ADOPTION OF ZED v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge found both the mother and father unfit, adjudicated the children, Zed and Ellen, to be in need of care and protection, and terminated the mother's parental rights as to both children and the father's parental rights as to Ellen.³ See G. L. c. 210, § 3. The judge placed the children in the permanent custody of the Department of Children and Families (department) and approved the permanency plan proposed by the department for adoption of the children by their preadoptive foster parents. Both parents appeal from the decrees finding each of them unfit and terminating their parental rights. We affirm.

Background. The mother and father began a relationship in 2014. The mother gave birth to Zed in May ⁴ 2015. Within the first six months of Zed's life, the department received six reports pursuant to G. L. c. 119, § 51A (51A report), described in more detail below, each alleging reasonable cause to believe that Zed was being neglected as a result of circumstances including domestic violence between the father and mother and the mother's medical neglect of Zed. On November 16, 2015, the court awarded the department temporary custody of Zed and he was placed in a foster home.

In May 2016, the mother gave birth to Ellen. Three days later, the department filed a care and protection petition on Ellen's behalf grounded on concerns about the history of violence between the mother and father, the mother's medical neglect of Ellen, and the father's lack of engagement in services. The department removed Ellen from the mother's care on July 30, 2016, and was granted temporary custody of Ellen on August 1, 2016, when she was placed in a foster home.⁵

Discussion. 1. Standard of review. “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 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). “ ‘Parental unfitness’ ․ means ‘grievous shortcomings or handicaps’ that put the child's welfare ‘much at hazard.’ ” Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). We review the judge's findings and conclusions with substantial deference and will not disturb them except “where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

2. Father's appeal. The father claims that many of the judge's subsidiary findings were clearly erroneous, and therefore the evidence was insufficient to support the judge's conclusion that the father was unfit. “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’ ” (citation omitted). Adoption of Larry, 434 Mass. 456, 482 (2001). “We defer to a judge's assessment of the weight of the evidence and the credibility of the witnesses.” Id. The father also claims that the judge ignored several “troublesome facts” in arriving at his conclusion of unfitness. “Troublesome facts” are those “pointing to a conclusion contrary to that reached by the department or the judge.” Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). Having carefully reviewed the record in this case, we conclude that the department proved by clear and convincing evidence that, at the time of trial, the father was unfit and the termination of his parental rights was in Ellen's best interests.

a. Domestic violence. The father argues that his criminal record was “too stale” to show his unfitness to parent Ellen at the time of trial, because his most recent conviction was imposed for a drug offense in 2008. Although the judge noted the father's “historic criminal conduct and drug use”⁶ as “constant factors in his life,” these findings were “not central to the ultimate conclusion of unfitness.” Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). The overwhelming thrust of the judge's findings attributed the father's unfitness to his long history of domestic violence and his lack of engagement in services on that issue.

As the judge summarized it, the “father has engaged in a lifetime of aggressive, threatening, controlling, and violent behavior toward women.” There was ample support for that conclusion, and for the judge's finding that such conduct rendered the father unfit. Police reports documented multiple domestic disturbances between the mother and father. See Mass. G. Evid. § 1115(b)(5) (2021). On August 1, 2015, police responded to a domestic violence call where the mother reported that while she was holding Zed, then less than four months old, she and the father argued, she put Zed in a stroller, and the father punched her in the face. The police noted that the mother was crying, had a swollen lip, and had blood dripping from her mouth. That incident led to a 51A report, which was supported. On September 22, 2015, police responded to a physical altercation during which the mother's sister, with whom the father was romantically involved, threw a glass plate at the mother while she was holding Zed; the judge found that the father “did not do anything to protect [Zed] or prevent it from happening.” That incident resulted in three 51A reports, which were supported. On April 7, 2016, a month before the birth of Ellen, the mother and father argued in the department's office lobby; the father yelled at the mother and then tried to close the door on the mother so that she could not follow him. The department subsequently prohibited the mother and father from having parent-child visits at the same time, “due to their history of domestic violence.”

In addition, the judge's finding of the father's unfitness to parent Ellen was supported by his chronic domestic violence in relationships with women other than the mother. The father testified that besides Ellen, he has seven children with five other women, all of whom have obtained abuse prevention orders against him. At trial, the father testified that a total of ten such orders had issued against him, seven of which had issued since his release from prison in 2011. All ten of those orders included stay away orders from the respective children. In March 2016, two months before Ellen's birth, the father was charged with violating an abuse prevention order filed by a former girlfriend.

“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. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595-596 (1996). “Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children. As such, a judge must consider issues of domestic violence and its effect upon the children as well as a parent's fitness.” Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004). There is ample evidence in the record that Zed was exposed to domestic violence by the father during the year before Ellen was born. That evidence of domestic violence was not negated simply because the father was not convicted of crimes arising from those incidents. See Adoption of Zak, 87 Mass. App. Ct. 540, 542-543 & n.6 (2015) (incident of domestic violence for which father was not convicted supported judge's finding of pattern of violence). Cf. Adoption of Talik, supra at 374 (considering impact of domestic violence on fitness of mother, who was victim). Rather, the judge's finding was properly supported by the police reports documenting the details of the specific incidents of domestic violence and the father's testimony about the ten abuse prevention orders that had been issued against him. See Mass. G. Evid. §§ 405(b), 1115(b)(5) (2021). See Adoption of Zak, supra. Contrast Adoption of Posy, 94 Mass. App. Ct. 748, 754 (2019) (“record is devoid of police reports documenting any response to domestic violence ․ or any indication that the mother sought, or obtained, a G. L. c. 209A abuse prevention order for protection against the father”; judge's finding of “long standing issues of domestic violence” between mother and father was clearly erroneous).

To the extent that the father argues that a finding of his unfitness to parent Ellen should not be based on domestic violence that he perpetrated before she was born, we disagree.⁷ “[N]either agencies responsible for the welfare of children nor judges sitting on these sorts of custodial questions need to wait for inevitable disaster to happen” before intervening. Adoption of Katharine, 42 Mass. App. Ct. at 32. The record supports the judge's determination that the father's history of violence was indicative of a strong likelihood that his domestic abuse, and risk of harm to Ellen, would continue in the future. See Adoption of Carla, 416 Mass. 510, 517 n.7 (1993) (“the trial judge ‘could properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness’ ”); Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979) (“an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child”). Accordingly, we conclude that the judge's findings related to the father's history of domestic violence were supported by the record and were not clearly erroneous.

b. Service plan. The record also supports the judge's findings that the father was unfit to parent Ellen because he failed to engage in the services recommended by the department, particularly those related to domestic violence, and that factors G. L. c. 210, § 3 (c) (ii), (vi), and (viii), were applicable. The father continually refused to allow the department to conduct home visits, missed several scheduled parent-child visits, and refused to sign the service plan proposed by the department.

As to domestic violence programming, the father's service plan required him to “attend and participate in ․ an anger management group as well as a weekly certified batterer's intervention group to accept responsibility for [the] behavior/choices [he had] made, to recognize how violence affects [his] partner/children, and to practice alternatives to violent behaviors.”⁸ At the time of trial, the father had completed thirty-one weeks of a forty-week batterer's intervention program. Although a department report noted that as of May 2017, the father was “in full compliance” with that requirement, the judge credited the testimony of the ongoing social worker that the father was compliant only “on paper,” and in fact would not accept responsibility for and did not understand how his history of domestic violence impacted the children. The judge found that the father's “mere participation in this group does not necessarily translate to an understanding of his issues with anger and domestic violence.” Based on the father's own testimony, the judge found that the “[f]ather denies that he currently has or has ever had issues with domestic violence,” and that earlier in the case the father had refused to attend anger management or batterer's intervention programs because he considered them a “waste of money.” The judge was not required to find that the father was fit simply because he attended some domestic violence programming. See Care & Protection of Olga, 57 Mass. App. Ct. at 830 (“progress does not preclude consideration of past behavior as a means of predicting the likely future”). See also Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (“judge was not obliged to believe that the parenting skills of the ․ father had improved simply because of [his] recent cooperation with the department”). Rather, the judge did not err in concluding that although the father appeared to be complying with the service plan, he had not benefited from the services provided. See id.

c. Medical neglect. The father challenges the judge's findings that both children lacked appropriate medical care when in the care of the mother and father. On several occasions, the father voiced his strenuous opposition to routine childhood immunizations. At the time of Zed's birth, the father argued loudly with the mother that she should refuse immunizations for Zed ⁹ because he believed that they had “poison” in them. The father also told a department investigator that he opposed childhood vaccinations “for religious reasons”;¹⁰ the judge did not credit that that was the reason for his opposition. Although the father testified that if a doctor recommended an immunization he would agree to it “[i]f it was something that my child needed,” the judge found that neither child was immunized or had appropriate medical care when in the care of the mother and father. See Adoption of Bea, 97 Mass. App. Ct. at 426 & n.24. We afford substantial deference to “the judge's assessment of the weight of the evidence and the credibility of the witnesses.” Custody of Eleanor, 414 Mass. at 799. The judge's finding was not clearly erroneous.

d. Bonding. The father argues that there was insufficient evidence to support the judge's finding that because of the father's lengthy absence and his inability to meet the needs of Ellen, she had formed a strong, positive bond with her foster parents, so that G. L. c. 210, § 3 (c) (vii), was applicable. The department petitioned for care and protection of Ellen when she was only three days old, based in part on the father's history of domestic violence. When Ellen was less than three months old, she was placed in the custody of the department; when she was eleven months old, she moved to the home of the preadoptive parents, where Zed joined her a month later. The judge credited the testimony of the adoption social worker that there was a “nurturing bond” between both children and the preadoptive parents, and credited the testimony of the ongoing social worker that Ellen's bond with the father was “indifferent.” See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003) (expert testimony pertaining to bonding not required in all cases). Putting aside the question whether either social worker was qualified to describe whether Ellen was bonded either to the preadoptive parents or to the father, see Adoption of Hugo, 428 Mass. 219, 234 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), we conclude that the finding that Ellen would suffer psychological harm if removed from the preadoptive parents was “not central to the ultimate conclusion of unfitness,” because even without such evidence, the judge's conclusion that the father was unfit had sufficient clear and convincing evidentiary support.¹¹ See Care & Protection of Olga, 57 Mass. App. Ct. at 825.

e. Housing instability. In reaching his ultimate conclusion of the father's unfitness to parent Ellen, the judge found that the father had moved “countless times” since the children were born, and that at various points during trial, the father testified that he was living at three different addresses with various women.¹² The father does not dispute these findings, but contends that the judge should have credited his testimony that the home where he was staying at the end of trial was appropriate housing for Ellen. However, the judge “was not obliged to give undue weight” to evidence that the father had obtained housing by the end of trial. Care & Protection of Lillith, 61 Mass. App. Ct. at 136. Given the father's history of unstable housing, we see no error of law or abuse of discretion in the judge's conclusion. See Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986) (“A past pattern of behavior is ․ not irrelevant; it has prognostic value”).

3. Mother's appeal. We conclude that the judge's findings that the mother was unfit to parent both Zed and Ellen were supported by clear and convincing evidence, including evidence of the mother's medical neglect, domestic violence issues, and housing instability. The mother contends primarily that in concluding that she was unfit, the judge improperly attributed the father's grievous shortcomings to her.

a. Medical neglect. There was ample evidence in the record to support the judge's conclusion that the mother had medically neglected both children. See Adoption of Bea, 97 Mass. App. Ct. at 426 & n.24. The medical neglect by the mother began prior to each child's birth: she refused prenatal vitamins while pregnant with Zed and smoked marijuana while pregnant with both children. As described above, the mother and father both refused childhood immunizations for both children. When both children were infants, the mother repeatedly missed their pediatrician appointments, including missing six consecutive appointments for Zed in his first three and one-half months. Further, in July 2016, the mother refused to allow doctors to treat Ellen for a high fever, and left the emergency room with her against advice of the medical professionals.¹³ We conclude that the record supports the judge's conclusion that the mother medically neglected the children.

b. Domestic violence. We find unpersuasive the mother's argument that the judge improperly found her unfit based on Zed's exposure to domestic violence because, she contends, the evidence showed it was the father who created the volatile situations. Regardless of whether the mother was the perpetrator or the victim of the domestic abuse, the evidence was clear that she was unable to remove herself from the abusive relationship, thus continuing to risk harm to the children. See Adoption of Bea, 97 Mass. App. Ct. at 430 (“judge properly considered whether the mother could adequately protect herself and the child from the deleterious impact of domestic violence”). See also Adoption of Elena, 446 Mass. 24, 31-32 (2006) (finding mother unfit where she had “long history of involvement with drugs and abusive men”); Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021), citing Custody of Vaughn, 422 Mass. at 599 (“Domestic violence may imperil a child's physical safety and psychological development”).

Further, in addition to the father's violence, the record is replete with instances of the mother's own violence and volatile behavior, documented in police reports and shown by her evictions from shelters due to her violent behavior. The mother also exhibited aggressive and threatening behavior toward the department social workers, once “stating that she would wait for [the social worker] in the parking lot” after a foster care review meeting at which she was unfavorably reviewed, and once following a social worker to her car and banging on the windows during an emergency removal.¹⁴ “Whatever their cause, the mother's behavior and decisions demonstrated her inability to prioritize [the children's] welfare and, therefore, were properly considered as evidence of her fitness.” Adoption of Bianca, 91 Mass. App. Ct. 428, 432 (2017). See Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019) (mother's “difficult time managing her anger” supported judge's finding of unfitness). Therefore, we discern no error in the judge's finding that the mother exposed the children to instances of violence.

c. Housing instability. The mother disputes the judge's finding that she is “unable to appropriately provide for the subject children's care and protection and [is] unable to provide a stable, continuous, and safe environment for the children.” She argues that she, in fact, did continuously maintain housing, and that therefore, the judge's finding does not support his conclusion that the mother was unfit. We disagree. “[P]overty or homelessness are not per se indicative of child abuse or neglect,” 110 Code Mass. Regs. § 1.11 (2008), nor may they serve as the sole basis of children's removal. See Adoption of Linus, 73 Mass. App. Ct. 815, 821 (2009). However, a judge may consider a parent's “lack of [a] ‘stable home environment.’ ” Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).

Although her service plan required her to obtain stable housing, the evidence showed that the mother struggled to do so throughout her involvement with the department. The judge found that the mother repeatedly moved from shelter to shelter, sometimes even across State lines. Specifically, the mother lived in ten different places during the four-month span between November 2015 and February 2016, and throughout her involvement with the department, lived in at least three different States. Accordingly, we discern no error or abuse of discretion in the judge's reliance on the mother's housing instability as a factor supporting the finding of the mother's unfitness. See Care & Protection of Lillith, 61 Mass. App. Ct. at 134 (considering mother's “nomadic lifestyle” in determination of unfitness). See also Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018), citing Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. at 289 (“failure to maintain stable living arrangement or to maintain financial stability are proper considerations in unfitness determination”).

3. Conclusion. In sum, with respect to both the mother and the father, we conclude that the judge's decision reflected an “even-handed, proper assessment of all the facts,” Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 22 Mass. App. Ct. 62, 69 (1986). His findings of fact and conclusions of law were supported by the record and clearly and convincingly established the mother's and father's unfitness as parents. We discern no error of law or abuse of discretion in the judge's ultimate conclusion that the father was unfit to parent Ellen and the mother was unfit to parent both Zed and Ellen, and that termination of parental rights was in the best interests of the children.

Decrees affirmed.

FOOTNOTES

3.   The mother is the biological parent of both children; the father is the biological parent of Ellen. The father was named as the father of Zed on the care and protection petition when it was filed, but his name was later stricken because he was not named on the birth certificate and never took action to establish paternity. We use “father” to refer to his paternity of Ellen only.

4.   The May 2015 birth date is from Zed's birth certificate. The judge's findings set forth the birth date as April 2015. The discrepancy is immaterial to the outcome of the case. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (clearly erroneous findings are immaterial when they are “not central to the ultimate conclusion of unfitness” and even without them, “conclusion has clear and convincing evidentiary support”).

5.   Zed's and Ellen's cases were consolidated for trial in the Juvenile Court.

6.   As to the father's drug use, the judge found that the “[f]ather denies drug use, but both the court clinician and social worker have observed red eyes and a strong odor of marijuana emanating from him on several occasions.”

7.   The father finds fault with the judge's conclusion of law that refers to “both” children having witnessed domestic violence. Even assuming that the judge heard no evidence of domestic violence in the presence of Ellen, the judge did hear evidence that the mother continued a relationship with the father after Ellen's removal. See Adoption of Bea, 97 Mass. App. Ct. 416, 427 & n.25 (2020) (judge properly based finding of unfitness on mother's continuation of violent relationship after child's removal).

8.   The father's brief mischaracterizes the judge's finding. The judge did not find that the service plan required the father to admit that he was a “batterer and abuser of women.” Rather, the judge found that the service plan required the father to “learn to accept responsibility for the consequences of his issues with domestic violence.”

9.   The father had no parental rights to Zed. See note 2, supra.

10.   The judge found that the father made this statement in his trial testimony; in fact, he made it to a department investigator. The discrepancy is immaterial.

11.   Because Ellen's bonding with the preadoptive parents was one of many factors that the judge considered, and not a “decisive factor,” the judge's findings with regard to this factor were adequate. See Adoption of Katharine, 42 Mass. App. Ct. at 30-31.

12.   Based on the father's testimony, the judge found that the father does not send weekly support to any of his children. The judge explicitly discredited the father's testimony about his income.

13.   In addition, on multiple occasions in July and August 2016, the mother left the infant Ellen alone in a shelter during the night. Those incidents resulted in 51A reports, later supported.

14.   The judge found that the mother's testimony at trial was “evasive, quarrelsome, and contentious.”