ADOPTION OF YOKO v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge concluded that Yoko was in need of care and protection and that Yoko's mother and father were unfit to parent her. Decrees entered terminating both parents' parental rights. On appeal, the father claims that the evidence did not support the judge's findings of fact regarding the father's substance abuse, mental health, and domestic violence.³ The father further claims that the judge erroneously relied on police reports and restraining orders as evidence of the father's fitness to parent Yoko. Finally, the father argues that the judge's supported findings were not clear and convincing evidence that the father was unfit to parent Yoko.⁴ We affirm.

Background. We summarize the judge's findings, reserving some details for our discussion. The father's parental rights to five older children have been terminated.⁵ Before Yoko's birth, the father and the mother had a tumultuous relationship. The mother obtained a restraining order against the father due to his abusive conduct, and the father was later arrested and incarcerated for violating the restraining order. The father has been homeless since his release from a house of correction on June 20, 2018.

Yoko was born in May, 2018, while the father was incarcerated for violating the mother's restraining order against him. The following day a report was filed pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of newborn Yoko by the mother. The report alleged that Yoko was born substance-exposed due to the mother's marijuana abuse during pregnancy and expressed concern regarding the mother's ability to care for Yoko. As a result of the 51A report, Yoko was placed in the temporary custody of the Department of Children and Families (DCF), where she has remained throughout this case. Since August, 2018, Yoko has been “in a safe, caring and stable environment with [her] current foster home. She is in good physical health.” The foster parents have completed a home study application with the goal of adopting Yoko.

DCF provided the father with an action plan designed to achieve permanency for Yoko through reunification of the family. The father signed the action plan, reported that he wished to engage in services, and scheduled to meet with a social worker that afternoon. The father failed to appear for that meeting without explanation.

Over the next few months, the father failed to complete any of his action plan tasks. He missed scheduled visits with Yoko or arrived smelling of marijuana and with an impaired ability to communicate. When the father was confronted regarding his poor attendance at scheduled visits, he told the DCF worker to “take your head out of your fucking ass.” Due to the father's failure to comply with the various action plans, the goal for Yoko was changed from reunification to adoption.

Discussion. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of the evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “We give substantial deference to a judge's decision ․ and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. 53, 59 (2011). Here, after a careful review of the record, we conclude that the judge's comprehensive subsidiary findings of fact were supported by a preponderance of the evidence, that the judge fairly relied upon the police reports and restraining orders, and that there was no error of law in her conclusion of unfitness, which was supported by clear and convincing evidence.

1. Factual findings. The judge found that the father has “serious mental health issues, substance abuse issues, domestic violence issues, and homelessness that [he has] not addressed, causing [him] to be unable to provide stability or care for [Yoko]'s basic needs.” On appeal, the father claims that the findings regarding substance abuse, mental health, and domestic violence were clearly erroneous.

a. Substance abuse. We are not persuaded by the father's argument that there was not sufficient basis for the judge to find that he has a substance abuse problem. This subsidiary finding was supported by the father's admission that he used marijuana, the DCF worker's observations that the father smelled of marijuana and had difficulty carrying on a conversation, and the father's failure to complete a required DCF substance abuse evaluation.⁶

In a related argument, the father contends, relying on G. L. c. 94G, § 7 (d),⁷ that “[m]arijuana use cannot be the primary basis for termination of parental rights in the absence of clear and convincing evidence that the parent's marijuana use created an unreasonable danger to the child.” Here, however, the judge addressed the fourteen factors relating to parental fitness set forth in G. L. c. 210, § 3 (c), and found that ten applied to the father. Based on the judge's comprehensive findings of fact regarding the father's various parental shortcomings, it is clear that the father's marijuana use was not the primary reason for the termination of the father's parental rights.

b. Mental health. Second, the father argues that the judge erred in finding that the father has “a mental health issue.” We disagree. While the father did not have a formal mental health diagnosis, there was ample evidence of his emotional instability. The father repeatedly threatened the mother and engaged in violence toward others. Seven different women have obtained restraining orders against the father. Moreover, the father failed to engage in recommended therapy after committing to do so. The judge appropriately considered the father's recurring emotional outbursts and his “inability or unwillingness to control the issues that create a risk of harm to the child” in determining that he was unable to provide a stable environment for Yoko. We discern no error in the finding that the father's mental health issues have “significantly impacted his ability to assume responsibility for [Yoko]” and that he has failed to address those issues.

c. Domestic violence. Third, the father argues that the judge erred in finding domestic violence in the relationship between the father and the mother. We agree with the father that the second 51A report did not contain allegations of domestic violence. The judge's finding to the contrary was clearly erroneous. However, the error was harmless because there was ample record support for the judge's finding that the “mother and father have a volatile relationship which includes a history of verbal abuse and, at times, physical abuse.” Multiple police reports referred to law enforcement responses to a dozen different disputes between the mother and the father, including the father's violation of a restraining order against the mother. The judge found that the “[f]ather has threatened [m]other, and acted aggressively towards community staff members to the point that no trespass orders have been issued. Father has presented as aggressive and yelling at DCF social workers.” In these circumstances, we see no error in the finding that the mother and father have a volatile relationship that creates a risk of harm to Yoko.

2. Police reports and restraining orders. The father claims that the judge erroneously relied on police reports and restraining orders in assessing the father's fitness to parent Yoko. It is well established that a parent's criminal record “may properly be weighed in the balance” in a parental fitness determination. See Care & Protection of Frank, 409 Mass. 492, 495 (1991). Accordingly, we see no error in the judge's consideration of the over one hundred police reports and seven restraining orders documenting the father's criminal history and her conclusion that “[t]his criminal involvement is an indicator that [the father] may not be willing and/or not able to extricate [himself] from this dangerous lifestyle.” The judge's consideration of the police reports was permissible, and her emphasis on certain reports over others does not indicate a failure to conduct an “even-handed assessment of the evidence.” Adoption of Imelda, 72 Mass. App. Ct. 354, 365 (2008).

3. Clear and convincing evidence. Finally, the father claims that the judge's supported findings do not show by clear and convincing evidence that the father was unfit to parent Yoko. As set forth above, the judge's findings regarding the father's substance abuse, mental health problems, domestic violence, and failure to comply with the action plans were well supported. In addition, the father showed minimal interest in parenting Yoko. Despite having the opportunity for weekly visits after his release from jail until the time of trial, the father visited Yoko only twice. He ended the first visit fifteen minutes early and was twenty minutes late to the second visit. This failure to consistently visit Yoko was a relevant consideration in determining the father's fitness to parent her.⁸ See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).

Further, on the first day of trial, the father left the court house and did not return. The trial proceeded without him, and the judge appropriately drew a negative inference that if the father had been there to testify, “he would not be able to provide positive information to refute [DCF]'s evidence.” “Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child's best interests.” Adoption of Talik, 92 Mass. App. Ct. 367, 371-372 (2017).

Conclusion. For all of these reasons, the judge was correct to conclude that there was clear and convincing evidence of the father's unfitness to care for Yoko and acted within her discretion in concluding that termination of the father's parental rights was in Yoko's best interests.

Decree affirmed.

FOOTNOTES

3.   The mother is not a party to this appeal.

4.   Yoko has filed a brief and urges us to affirm the decree.

5.   Yoko's mother is not the mother of the father's older children.

6.   The father contends that the judge erroneously relied on 51A reports to support the conclusion that the father has a substance abuse disorder. The judge made clear, however, that she considered the 51A reports only to “set the stage,” a permissible use of 51A reports. See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019).

7.   General Laws c. 94G, § 7 (d), provides, in relevant part: “Absent clear, convincing and articulable evidence that the person's actions related to marijuana have created an unreasonable danger to the safety of a minor child, [the use or possession of marijuana permitted by c. 94G] by a person charged with the well-being of a child shall [not] form the sole or primary basis for ․ removal or termination or ․ denial of custody, visitation or any other parental right or responsibility.”

8.   The father argues that his homelessness and poverty impacted his ability to comply with the action plans including attending scheduled visits with Yoko. While we recognize these hardships, the judge appropriately considered the father's failure to foster a relationship with Yoko.