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ADOPTION OF UDELL v. << (2021)

Appeals Court of Massachusetts.

ADOPTION OF UDELL (and a companion case 1).


Decided: February 26, 2021

By the Court (Green, C.J., Sullivan & Shin, JJ.2)


The father appeals from decrees entered in the Juvenile Court terminating his parental rights to the children, Udell and James, dispensing with need for his consent to their adoption, awarding permanent custody of the children to the Department of Children and Families (department), and providing for posttermination and postadoption visitation twice annually.3 On appeal, the father contends that the judge's factual findings were clearly erroneous and that the remaining findings do not demonstrate unfitness by clear and convincing evidence. We affirm.

Discussion. Parental rights may not be terminated unless “a judge ․ find[s] by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (quotation and citation omitted). Adoption of Cecily, 83 Mass. App. Ct. 719, 726 (2013). We further review the trial judge's rulings to determine whether there was an abuse of discretion or error of law. Adoption of Lisette, 93 Mass. App. Ct. 284, 292 (2018), citing Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

1. Substance abuse. The father contends that the judge's finding that he placed the children at risk because of his history of substance abuse and his failure to seek treatment was unsupported by the evidence.4 The evidence supported the findings.

Putting aside the use of marijuana, the father had a past history of methamphetamine and heroin use, and the misuse of prescription drugs. He admitted to tampering with a urine screen while on probation. Although the mother denied that the father used drugs, she also told the department social worker that he was “off” and “spaced out,” and that she didn't want him to see the children until he had had a drug screen.

On one occasion in December of 2015 the department social worker checked the mother's Suboxone prescription and found that there were eight pills when there should have been twenty-four. The mother said that her pills were sometimes stolen, but was unsure whether the father was taking them. At this juncture the social worker requested that the father undergo random urine testing.5 He declined. He provided two negative drug screens for heroin to the department, but refused all other testing, and blacked out the other results on the two screens he did provide. On the night the mother was admitted to the hospital, the nurse on duty stated that the father appeared to be “high as a kite.” When arrested in 2018, several months after the mother's death, he was found in possession of what he acknowledged was Suboxone.

From this constellation of facts the judge was permitted to find that the father was engaged in substance abuse. It was for the judge to weigh the evidence and assess credibility. See Adoption of Querida, 94 Mass. App. Ct. at 778, citing Custody of Two Minors, 396 Mass. 610, 618 (1986). There was a trail of evidence of drug use, starting with his conviction of Federal drug distribution and money laundering charges in 1997, through the period of his supervised release, until his 2018 arrest.6 Most importantly, with respect to present unfitness, the judge was permitted to draw the inference that the father was using drugs from the fact that he refused to submit to random drug testing, and instead only provided test results on a selective basis. See In re Shane M., 318 Conn. 569, 595-596 (2015) (drawing adverse inference in termination of parental rights case for refusal to take drug test). See generally Matter of a Care & Protection Summons, 437 Mass. 224, 236 (2002) (adverse inference drawn from parents’ earlier refusal to testify regarding whereabouts of child's remains); Custody of Two Minors, supra at 616 (adverse inference drawn from failure to testify); Care & Protection of Vieri, 92 Mass. App. Ct. 402, 406 (2017) (adverse inference drawn from refusal to permit social worker in home); Adoption of Talik, 92 Mass. App. Ct. 367, 370-373 (2017) (adverse inference drawn from failure to appear at custody or termination hearing).

The father claims that this finding was unfair because he was told he did not have to take a full drug screen panel. The social worker “informed him that [the worker was] not saying that he need[ed] to do the screen but it would help rule out the concern.” There was no court order to undergo the screen, and in this sense the father didn't have to do it, but the social worker informed him of the consequences of refusal.

The father also suggests that the judge “ignored the uncontested evidence” that the department did not believe that the father had substance abuse issues, because it did not place substance abuse counselling on his action plan until seven months after it removed the children. The department did maintain the case open for a comprehensive assessment of drug use by the father based on its January 2016 investigation pursuant to G. L. c. 119, § 51B (51B investigation). However, the father continued to refuse to undergo requested drug testing or to provide the name or contact information of his primary care physician. Moreover, during a subsequent home visit, he told the assessment worker who requested a drug screen to get a court order, stating that “he didn't want any documentation proving he is a bad parent because he had unprescribed medication in his drug screen.” The issue before us is not what the department believed, or could have done sooner, but what the judge found. As previously stated, the judge was permitted to weigh the evidence in the light of the entire record.

2. Domestic violence. The father also challenges the finding that the father's unwillingness to participate in services designed to reduce or eliminated domestic violence placed the children at risk. The mother told a mandated reporter at the Boston Medical Center emergency room that the father might be poisoning her. She also stated that the father had subjected her to emotional, verbal, and physical abuse. She later recanted her claims of physical abuse, but continued to say that the father had abused her verbally and emotionally. The department sustained the allegations for screening purposes in its 51B investigation. In a separate incident, the mother sought and obtained an abuse prevention order, which was not renewed after one month.

The judge did not make an explicit factual finding that the father had engaged in domestic violence or other abusive behavior in the home. The judge did find, however, that the allegations made were serious enough to raise protective concerns,7 and that the department's request that he attend the EMERGE program was reasonable and necessary. This recommendation was made not only because of the allegations of domestic violence, but because, as the judge found, the father had threatened and spit on DCF staff, behavior which resulted in a conviction for assault and a no contact order.8

In view of the mother's instability and in the wake of her death, the department chose to evaluate the extent of suspected violence in the home by requesting that the father participate in and complete services designed to quell his anger. The department's request was reasonable and the judge's finding that the failure to participate placed the children at risk was fully supported by the evidence. “It is well established that exposure to domestic violence works a ‘distinctly grievous kind of harm’ on children.” Adoption of Talik, 92 Mass. App. Ct. at 374, quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). See Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019), quoting Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) (“Violence of temper ․ might constitute unfitness”).

Several other findings support the judge's decision. The father had previously alerted the department to concerns about the mother's mental health. However, the father told the duty nurse on the evening of the mother's admission to the hospital that he knew that the mother was acting strangely, and had threatened to kill him and the children just the week before. He did not make any effort to get help, and admitted that he should have done more to cooperate with the department. Yet when a family action plan was drawn up after the mother's death he refused to sign it, and the department had difficulty reaching him. He did not sign releases or provide documentation to show that he had gone to substance abuse treatment or anger management classes. By his own admission, he refused these services for a period of nine months. Taken together, these lapses paint a portrait of a man who has not, over a period of years, made the best interests of the children a factor in his decision making. See Adoption of Olivette, 79 Mass. App. Ct. 141, 158 (2011).

3. Reasonable efforts. The father maintains that the department failed to use reasonable efforts at the time of removal, see Care & Protection of Walt, 478 Mass. 212, 217-218, 220 (2017), or thereafter. For all practical purposes that decision has been superseded by succeeding events and the intervening trial on the merits. Given the father's ongoing unwillingness to participate in the family action plan offered by the department after removal, and his refusal to undergo periodic drug screens, his claim that the department failed to make its best efforts to reunite the family is unavailing.

Decrees affirmed.


3.   The mother died by suicide in 2017, and the children have lived in a kinship foster placement since that time.

4.   The children were five and six at the time of trial.

5.   The social worker was investigating one of the numerous reports filed pursuant to G. L. c. 119, § 51A, on behalf of the children, which included allegations that the father was an active heroin user and was selling drugs, allegations that he denied.

6.   He received about a twelve year sentence on these charges. The father has a lengthy criminal record encompassing scores of offenses. At trial, his counsel objected to the introduction of dismissed charges. For purposes of this memorandum and order we rely on those charges of which he was convicted, and on the police reports in evidence that were admitted without objection. At the time of trial the father was incarcerated and was awaiting trial on pending charges.

7.   The mother also reported that her tires had been slashed and that “Kunt” had been scratched into her car.

8.   In addition to this incident, the department introduced police reports detailing other incidents of violent outbursts. The father threatened a stranger with a knife and on another occasion was charged with slashing tires with a knife. Although second level hearsay would normally be inadmissible, see Adoption of Paula, 420 Mass. 716, 727 (1995), these reports were admitted without objection and were therefore admissible for all purposes. We need not rely on these reports, however, because the threats against the department personnel were sufficient to place the question of the father's aggressive and violent behavior squarely at the heart of the case.

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ADOPTION OF UDELL v. << (2021)

Docket No: 20-P-436

Decided: February 26, 2021

Court: Appeals Court of Massachusetts.

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