ADOPTION OF TIFFANY v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Department of Children and Families (department) filed this care and protection petition in January of 2017 and was granted temporary custody of the child, Tiffany. After a 2019 trial, a Juvenile Court judge found the father unfit and terminated his parental rights. On appeal, the father argues that the judge erred in (1) shifting the burden to him to prove his fitness, (2) giving excessive weight to criminal charges against him not resulting in convictions, (3) finding that he did not engage meaningfully with needed services, (4) finding that his unfitness was likely to last indefinitely without considering whether the department had made reasonable efforts towards reunification, (5) penalizing him for being homeless, and (6) finding him unfit based on mental health conditions that had no clear nexus to his fitness. Both the department and Tiffany ask that we uphold the decree. We affirm.

Background. The family first came to the department's attention in January of 2017 when, shortly after Tiffany's birth, and while Tiffany was present, the father broke down the mother's door and began shoving her, as well as her three year old son ³ from a prior relationship. The father was arrested and charged with two counts of reckless endangerment of a child, assault and battery on a family or household member, malicious destruction of property, and intimidation of a witness. The department obtained emergency custody of both children, and ultimately placed them in foster care with their maternal grandparents.⁴

The charges against the father were nol prossed in April of 2017, at which time he was released from custody and stayed in a homeless shelter. The father enrolled in and attended a domestic violence education program, but program staff reported that the father did not benefit from the program and had been terminated from group sessions. In November of 2017, the father was again arrested and jailed on charges of domestic violence offenses against the mother.

In February of 2018, the goal for Tiffany was changed from reunification to adoption. At about the same time, the charges against the father were dismissed, he was released from jail, and he was readmitted to the domestic violence education program. Program staff again reported, however, that the father made no progress in the program. He lived at shelters throughout this period. As of the time the trial started in March of 2019, the father had not obtained stable housing and was staying in a shelter where children were not permitted.

After trial, the judge found that the father was unfit to parent Tiffany and likely to remain so into the indefinite future. The judge based this finding primarily on the father's unresolved issues with domestic violence, his inability to provide stable housing for Tiffany, and, to a limited extent, his mental health issues. The judge ruled that termination of the father's parental rights, and the department's plan providing for guardianship by the maternal grandparents, were in Tiffany's best interests. Because the father had consistently visited Tiffany while she was in the department's custody, and because there was a significant attachment between them, the judge ordered monthly posttermination visits until the guardianship was finalized, and three visits per year thereafter. The father appealed.

Discussion. It was the department's burden to prove by clear and convincing evidence that the father was currently unfit to parent. See Adoption of Gregory, 434 Mass. 117, 126 (2001). “Subsidiary findings must be proved by a fair preponderance of the evidence.” Adoption of Helen, 429 Mass. 856, 859 (1999). “We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, 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). We discuss the father's appellate arguments seriatim.

1. Shifting of burden of proof. The father contends that the judge erroneously shifted the burden to him to prove his fitness. He bases this argument on two isolated passages in the judge's decision that refer to the father's failure to demonstrate that he could provide a stable home environment for Tiffany. We are not persuaded.

The judge's decision repeatedly refers to the department having the burden of proof. There was ample evidence to prove, by the requisite preponderance of the evidence, that the father could not provide stable housing. This evidence included the father's admission at trial that, if he regained custody of Tiffany that day, he could not bring her to the shelter where he was staying. The father further testified that he had not filed a housing application, even for himself, because he had lost a copy of a required form related to his status as a veteran. Although the judge's choice of words in the passages the father cites was inartful, we are confident that her findings were based on a proper allocation of the burden of proof to the department.

2. Father's record of domestic violence offenses. The father argues that the judge gave excessive weight to domestic violence related criminal charges against him that were either nol prossed or dismissed, meaning no convictions resulted. The father acknowledged at oral argument that records pertaining to these charges were admissible in evidence, but he maintains that the judge ignored what he says is their “pervasive lack of credibility.” This argument merely reflects “dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations” and furnishes “no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). To the extent that the father challenges as clearly erroneous the finding that he committed numerous acts of domestic violence against the mother, the challenge fails. Upon review of the entire record,⁵ we are not “left with the definite and firm conviction that a mistake has been committed” (citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993).

Similarly unpersuasive is the father's challenge to the judge's finding ⁶ that the father did “not take ownership for any of the [domestic violence] allegations against him” or “demonstrate[ ] any remorse, understanding, or recognition of the abuse he inflicted” upon the mother's son. To be sure, the father testified with regard to the January 2017 domestic violence incident that he did not think it was right for children to be in the same room while he and the mother were “convers[ ]ing.” But the judge was not required to credit this vague statement as demonstrating the father's ownership or understanding of, or remorse for, his violent behavior. The same is true of a social worker's testimony that, according to another social worker's notes of a February 2018 meeting, the father “took accountability for the domestic violence that he had been involved with.” It was unclear whether this was the perception of the social worker present at the meeting or merely the father's self-report. The father's trial testimony sheds no further light on the matter. The judge was not required to find that the father accepted responsibility for, understood, or regretted his violence toward the mother.

The father is correct in noting what could be construed as an overstatement in the judge's finding that he had “a history of abuse against children” (emphasis added). The father argues that there was no evidence he had physically abused any child other than the mother's son, in the January 2017 incident. But Tiffany, too, was present at that same incident, and a child who witnesses domestic violence “suffers a distinctly grievous kind of harm.” Custody of Vaughn, 422 Mass. 590, 595 (1996). The judge's use of the plural in the phrase “abuse against children” could be viewed as technically incorrect, but it does not undermine her fundamental conclusion that the father had a serious domestic violence problem that put Tiffany's emotional well-being significantly at risk.

3. Failure to engage with needed services. The father challenges as clearly erroneous the judge's finding that he did not engage meaningfully with domestic violence and other needed services. The father consistently attended a domestic violence program, and he testified that he had benefited from it. But there was evidence from the program director that the father denied ever having been involved in domestic violence and was only in the group to get his daughter back, and that because the domestic violence charges against him had been dismissed, he was innocent of any wrongdoing. According to the program director, the father consistently presented himself as a victim. The father attacks these statements as biased, but it was for the judge to determine whether to credit this evidence. See Adoption of Quentin, 424 Mass. at 886 n.3. We cannot say that the judge's finding of failure to engage meaningfully with domestic violence services was clearly erroneous.⁷

The father also points to evidence that he attended parenting classes. Although this was commendable, the judge made no finding regarding the father's engagement (or lack thereof) with such classes. Nor did she rely on it in finding the father unfit. We see no error.

4. Reasonable efforts. The father argues for the first time on appeal that the judge, before finding that his unfitness was likely to last indefinitely, should have considered whether the department had made reasonable efforts toward reunification. Although a reasonable efforts claim cannot be raised for the first time on appeal, see Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), the father invokes the principle that “[a] judge may consider the department's failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary.” Adoption of Ilona, 459 Mass. at 61.

We review the judge's finding that the father's unfitness was likely to be permanent only for clear error. Id. at 62. Here, in making that finding, the judge focused specifically on two aspects of unfitness: the father's unresolved issues with domestic violence and his inability to provide a stable home environment for Tiffany. On appeal, the father cites nothing to suggest that his issues with domestic violence were merely temporary or that better efforts by the department could have assisted him in this regard. In other words, he has not shown clear error in the judge's finding that his domestic violence problem was likely to be permanent.

As for the father's inability to provide a stable home environment for Tiffany, the father points to evidence that the department's efforts to assist him in obtaining such housing were anemic. Particularly concerning is the evidence that the father needed Tiffany's social security number (SSN) in order to apply for housing that could accommodate the two of them, and that the father repeatedly asked the department to provide the SSN, yet the department did not do so. Indeed, several months before trial, on the father's motion, the judge ordered the department to provide him with the SSN, yet the department acknowledged at trial that, even after receiving that order, it did not provide the SSN. The department's failure to offer any explanation for this apparent disregard of the judge's order is disturbing.

Nevertheless, the record does not require a finding that, with more assistance from the department, the father could likely have obtained housing for himself and Tiffany in the foreseeable future. The father testified that department personnel asked him to bring in the housing application so that they could complete it -- implicitly, by adding Tiffany's SSN -- yet the father declined to do so because “it could have taken a while.” The father offered no coherent reason for not pursuing this option, suggesting that he “didn't want to bother [any]body” and would “just ․ get it done.”⁸ At trial, however, he testified that he had still not submitted an application for housing, even for himself, because he had lost a copy of the required form showing his status as a veteran. He also testified that his parents would offer him housing, but he did not explain why he had not accepted their offer. Thus, in light of the father's own deficient efforts, we cannot say the judge clearly erred in finding that the father's inability to provide suitable housing was likely to last indefinitely.

5. Penalizing homelessness. The father contends that the judge's finding of unfitness based in part on his inability to provide suitable housing was tantamount to penalizing him for being homeless. This is not the law. See Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018) (“homelessness, poverty, and financial instability alone are not sufficient to terminate a person's parental rights[ ] [but] are proper considerations in an unfitness determination”); Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004) (parent's frequent moves with child were factor indicating unfitness); Custody of a Minor, 21 Mass. App. Ct. 1, 8 (1985) (father's inability to offer child “a stable home environment or financial support” was one of several factors indicating unfitness).

6. Mental health issues. The father's final contention is that the judge erred in finding him unfit based on mental health conditions that had no clear nexus to his parenting ability. See Adoption of Jacob, 99 Mass. App. Ct. 258, 265 (2021) (mental impairment does not indicate unfitness except to extent it affects parent's ability to care for child). We conclude that, to the extent that the judge may have erred in her consideration of the father's mental health issues, any such error was not prejudicial.

The judge credited the father's testimony that he had been diagnosed with depression, anxiety, attention deficit disorder, and posttraumatic stress disorder. But the judge did not credit the father's testimony that he had engaged in therapy, and this was one basis for the judge's conclusion -- repeated several times in her written decision -- that the father did not engage meaningfully in the programs recommended by the department.

These aspects of the decision are somewhat puzzling, because the department's social worker acknowledged that obtaining mental health treatment was not a task on any of the father's department-prepared action plans. Instead, it was recommended to the father only orally, perhaps as late as the end of 2018, four or five months before trial. The social worker further acknowledged that the father followed up on that recommendation and attended therapy for several months, although the father then stopped attending and revoked the release allowing his therapist to speak to the social worker. Although the father may not have been enthusiastic about therapy -- the record is silent as to the reasons he stopped participating and revoked the release -- it is difficult to view his involvement as demonstrating a significant failure to engage meaningfully, given the recency and informality of the department's recommendation. Nor did the judge identify any connection between his mental health issues and his parenting deficiencies. Cf. Adoption of Jacob, 99 Mass. App. Ct. at 265.

Nonetheless, we conclude that, even without reliance on the father's mental health issues -- and the extent to which the judge relied on them is unclear ⁹ -- there was clear and convincing evidence of the father's unfitness, based on his unaddressed propensity to engage in domestic violence and his inability to provide a stable home environment. The judge's “properly supported findings” on those issues “were [ ]sufficient to prove current parental unfitness by the proper legal standard.” Custody of Eleanor, 414 Mass. at 802 n.12. See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 664 (1986) (concluding that judge's “subsidiary findings fully support his ultimate conclusion” of unfitness).

We further see no abuse of discretion in the judge's determination that Tiffany's bests interests would be served by terminating the father's rights. See Adoption of Ilona, 459 Mass. at 59-60, 62 (absent error of law or clearly erroneous subsidiary findings, termination decision reviewed for abuse of discretion). There is no indication in the judge's decision that the father's mental health issues played any significant role in assessing Tiffany's best interests. Cf. note 8, supra.

Decree affirmed.

FOOTNOTES

3.   The son is not a subject of this appeal.

4.   The children continued to reside there at the time of trial. The mother stipulated at trial to her unfitness as to both children, but her rights were not terminated. She is not involved in this appeal. Her son's father was also found unfit and did not appeal.

5.   We need not summarize here all of the underlying findings on this issue or the evidence supporting them.

6.   Although the judge framed this as a conclusion of law, it is more appropriately reviewed as a finding of fact.

7.   The father points out that, as support for this finding, the judge cited to part of a department document that she had previously stricken from evidence. This error was not prejudicial, however, because the evidence we have discussed supra was admissible and amply supported the judge's finding.

8.   The department's reasonable-efforts obligation is “contingent upon [a parent's] own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services.” Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011), quoting Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001).

9.   Mental health issues most directly implicate G. L. c. 210, § 3 (c) (xii), which directs a judge, in assessing parental fitness, to consider whether the parent has “a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness” (emphasis added), and which makes the parent unlikely to provide minimally acceptable care of the child. Here, in discussing this factor, the judge focused on the father's domestic violence and prolonged homelessness, and she did not mention the father's mental health issues.