ADOPTION OF ZARITA v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree of the Juvenile Court finding him unfit and terminating his parental rights to his daughter, Zarita. On appeal, he contends that the finding of unfitness was not supported by sufficient evidence and that the judge impermissibly shifted the burden of proof. We affirm.

Background. The following facts are drawn from the judge's findings, supplemented by uncontested evidence from the record. Three days after Zarita's birth, the Department of Children and Families (DCF) filed a care and protection petition pursuant to G. L. c. 119, § 24, and assumed emergency custody of her.³ Several months after Zarita's birth, the father, whose name had not appeared on the birth certificate, was adjudicated Zarita's father. DCF initially sought a permanency plan for him to obtain custody of Zarita and created an action plan to that end.⁴

In November of 2017, DCF received an anonymous report, pursuant to G. L. c. 119, § 51A (51A report), alleging that the father used heroin daily. DCF investigated and learned that the father had a significant history of using heroin and benzodiazepines, had been discharged from a substance abuse ⁵ program for fighting with another participant, and had previously tested positive for marijuana and OxyContin. Despite the father's action plan requiring that he provide DCF with documentation of his sobriety, the father delayed signing the necessary releases or providing documentation for several months, and even then the documentation he provided predated the current care and protection proceedings. The father also had a “well-documented and corroborated history of mental illness” yet at trial denied any such difficulties. He was “irritable, angry, and reclusive” when asked about his substance use and mental health and “ha[d] failed to take any responsibility for his actions.” The judge did not credit the father's attempts to deny or explain his past positive drug tests or his testimony that he had not tested positive for opiates, cocaine, benzodiazepines, and fentanyl in February of 2019.⁶ Additionally, the judge did not credit the father's testimony that he did not use cocaine during the pendency of the care and protection proceedings.

In February 2019, DCF observed the father's home and reported that it was unsuitable for occupancy by a child due to exposed wires and the absence of a stove. In July 2019, the court investigator observed that while those issues were remedied, the home was cluttered and in disarray. The father admitted that the home was not ready, and the judge found that at the time of trial it was “still under construction” and was not a “safe environment for [the] child[ ].”⁷ The judge also noted that the father was given additional time to render his housing safe for occupancy and had not done so; he had six months leading up to trial to complete the necessary repairs, and the trial took place over two years after the father purchased the home.

The judge's findings also demonstrate that the father had a pattern of aggression and poor anger management. He “ha[d] lashed out against service providers, court staff, attorneys, and [DCF] social workers.” This aggression was also demonstrated through the father's lengthy criminal record, which included numerous violent offenses.⁸

The DCF social worker testified that the father had not improved his ability to parent Zarita; as of the date of trial, he had not engaged in services nor completed any of the tasks that DCF required of him. All of the father's progress through the action plan predated the current proceedings. Accordingly, the judge concluded that the father had not engaged in treatment plans or the action plan tasks aimed at reuniting him with Zarita and improving his ability to parent her.

The trial judge found that “[the father] has failed to take responsibility for his shortcomings over the duration of the case,” and had demonstrated an “inability or unwillingness to acknowledge or take responsibility for such. Father has not demonstrated an understanding for how these features have impacted the present case and led to his involvement with [DCF].” The judge also found eight of the statutory factors in G. L. c. 210, § 3 (c), to be applicable to the father's relationship with the child.⁹ The judge found the father unfit to assume parental responsibility for Zarita and found that it was in Zarita's best interests to terminate the father's parental rights.

Discussion. 1. Termination of parental rights. The father argues that the judge's finding of unfitness was not supported by clear and convincing evidence. In determining whether to terminate a parent's rights, a judge must evaluate whether there is clear and convincing evidence that the parent is unfit and, if found to be unfit, whether terminating the legal relationship between parent and child would serve the child's best interests. See Adoption of Nancy, 443 Mass. 512, 514 (2005). To determine whether termination of parental rights best serves the child's interests, “the court shall consider the ability, capacity, and readiness of the child's parents ․ to assume parental responsibility.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c). In reviewing a judge's decision to terminate parental rights, we give the judge's decision substantial deference “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). There is an abuse of discretion where “the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “[T]he ‘judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.’ ” Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986), quoting Custody of Two Minors, 396 Mass. 610, 618 (1986).

As an initial matter, the father challenges the judge's finding that he lacked adequate housing. Although the father had remedied the exposed wires and lack of stove, the father had had considerable time to prepare the home and at the time of trial it was still cluttered and in disarray and the father agreed the home was “not ready” for Zarita. While the father also testified that the home needed only minimal work, the judge was entitled to not credit this testimony. Given that as of the date of trial, the father had owned the home for two years but it was not yet ready for the child, this finding is not clearly erroneous.

We also conclude that there was clear and convincing evidence of the father's unfitness. Each of the judge's considerations -- the father's housing, mental illness, history of substance use, termination from a substance abuse treatment program as a result of physical violence towards others, denial of his history of substance use and mental illness, criminal history, volatile temper, and failure to complete the service plan -- was supported by the evidence, relevant, and permissible. See, e.g., Adoption of Virgil, 93 Mass. App. Ct. at 303; Adoption of Saul, 60 Mass. App. Ct. 546, 553-554 (2004); Petition of Boston Children's Serv. Ass'n to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566, 573 (1985). The record in this case demonstrates the father's history of problematic substance use and mental illness. While a finding of parental unfitness cannot be based solely on a history of substance use, see Adoption of Katharine, 42 Mass. App. Ct. at 34, here the judge viewed evidence of the father's drug use in conjunction with his continuing denial and minimization of that and other problems. See Adoption of Saul, 60 Mass. App. Ct. at 554 n.11. The father's refusal to accept the seriousness of his past conduct and inability and unwillingness to comply with the ongoing DCF requirements bear heavily on his current unfitness. The judge could also consider the father's failure to complete the action plan tasks as evidence that he was not able to assume parental duties and responsibilities. See Adoption of Nancy, 443 Mass. at 516 n.6.

The judge correctly, as she stated, “considered the evidence in the aggregate” and did not “give[ ] conclusive weight to any single component standing alone.” The judge did not commit an error of law or abuse her discretion in what she considered or the weight she accorded each of these considerations. The judge's conclusion that the father was currently unfit and that this unfitness was reasonably likely to continue is supported by clear and convincing evidence.

2. Burden shifting. DCF bears the burden to establish clear and convincing evidence of parental unfitness, and this burden never shifts to the respondent parent. See Adoption of Larry, 434 Mass. 456, 470 (2001). The father argues the judge impermissibly shifted the burden of proof to him, pointing to certain statements in the judge's written findings and conclusions. At the time, the father was represented by counsel and did not object. While we acknowledge that some of the judge's statements, when take out of context, are susceptible to the defendant's interpretation, the record as a whole shows the judge did not impermissibly shift the burden to the father.

“[I]t is presumed that the judge as trier of fact applies correct legal principles,” Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992), and here the judge correctly stated the burden of proof, her conclusions are supported by clear and convincing evidence, and her analysis demonstrates she applied the correct legal principle in reaching her decision. The record suggests the judge's challenged statements refer to the father's ability to present rebuttal evidence against DCF's case, see Care & Protection of Ian, 46 Mass. App. Ct. 615, 619 (1999), and the father's attempts, outside of the court proceedings, to demonstrate to DCF that he was competent to parent Zarita. We therefore conclude that the judge did not impermissibly shift the burden to the father.¹⁰

Decree affirmed.

FOOTNOTES

3.   Zarita's mother died shortly after Zarita was born. The mother had a history of substance abuse and tested positive for controlled substances while pregnant with Zarita.

4.   The father's action plan tasks included completing a parenting class, establishing safe and permanent housing, engaging in early intervention services, and signing releases for DCF to access relevant documents.

5.   In using the word “abuse,” we use the language of most of the findings and intend no disrespect. We understand that the better practice is to use the phrase “substance use disorder.”

6.   As of April 4, 2019, the father had tested positive for marijuana in every drug screen except for one. As of July 2019, the father's physician reported that the father had a “mood disorder,” “depression,” “substance abuse,” and “severe opioid use disorder,” among other “active problems.” In July 2019, the court clinic evaluator also noted that the father had not yet had “any significant period of recovery” and recommended continued treatment, noting also that the father's current treatment may not provide an adequate level of support.

7.   The parties dispute whether the father or DCF was at fault for the failure to provide a more recent inspection of the home. The DCF social worker testified that he tried to schedule a home visit in October 2019, but the father canceled the visit. The DCF worker also testified that he was unable to reach the father via letters or phone calls until shortly before trial, at which time the DCF worker was unavailable to schedule a home visit before trial. This dispute is not material because the investigator reported his findings to the court.

8.   The father's criminal record included charges for assault and battery, assault and battery by means of a dangerous weapon, intimidation, strangulation, larceny, disorderly conduct, criminal harassment, and possession to distribute a class B narcotic, although many of these charges were dismissed. The father has had four harassment prevention orders issued against him pursuant to G. L. c. 258E and four abuse prevention orders issued against him pursuant to G. L. c. 209A. All four harassment prevention orders had been obtained by the same person, who at trial the father had listed as one of his supports in caring for Zarita. The four abuse prevention orders had been obtained by four different individuals, three of whom were women.

9.   We agree that the judge erroneously deemed G. L. c. 210, § 3 (c) (xiii), applicable. There is no evidence to suggest that Zarita “will be deprived of a stable home for a period of years” as a result of the father being convicted of a felony. However, this error was harmless, as the judge's determination of parental unfitness is supported by clear and convincing evidence.

10.   We have carefully considered each of the arguments presented in the father's brief. To the extent that any particular claim has not been addressed specifically herein, it is without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).