ADOPTION OF AZIZA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found the mother and the father of Aziza unfit as parents and issued decrees terminating their parental rights to the child. Both parents appeal, raising numerous challenges to the judge's findings and ultimate conclusions. Our assessment of the parents’ claims, particularly with respect to the dated evidence of domestic violence, constrains us to conclude that the Department of Children and Families (department) did not present clear and convincing evidence that the parents’ unfitness was likely to continue indefinitely. Therefore, we vacate the decrees terminating their parental rights and remand for further proceedings.
Background. The parents first met in 2015 when the mother was fifteen years old and the father was fifty-two years old. When the mother was sixteen years old, she became pregnant with the father's child. She terminated that pregnancy, and then became pregnant with Aziza. When she was about three months pregnant, in response to allegations of sexual, physical, and verbal abuse by the father, the department filed a care and protection petition with the mother as the subject child. In the first weeks after the petition was filed, additional altercations between the father and the mother led to police involvement. Six months later, at the age of seventeen, the mother gave birth to Aziza. In September 2016, when Aziza was one month old, the department petitioned for her care and protection in response to an incident at Mohegan Sun Casino. The petition for care and protection of the mother was dismissed in April 2017 when she turned eighteen. The first petition involving Aziza was dismissed in August 2017.
The department filed the present care and protection petition one month later, when Aziza was thirteen months old, following an incident of verbal and physical violence between the mother and the father. The incident began with an argument between the parents one evening and escalated to the mother reportedly chasing the father in a car through multiple front yards while Aziza was unsecured in the back seat. The next day, a police officer and a department social worker observed deep scratches on the father's face, which the father said the mother caused. That evening the father agreed to relinquish custody of Aziza to the department. The department was granted temporary custody and placed Aziza with her current foster family, who is now her preadoptive family.
Although the incident leading to the current petition was one of many instances of domestic violence in the parents’ relationship, it was one of the last. The last occurred two months later, in November 2017, when the police responded to a domestic disturbance at the father's home and observed a cut on the father's lip and scratches on his neck. The judge found no evidence of domestic violence after this incident.3
The absence of documented domestic violence in the parents’ relationship since 2017 coincided with the parents attending domestic violence 4 and anger management classes 5 as well as couple's counseling. After completing those classes, the parents began attending joint visits with Aziza in July 2018. The department, which does not permit joint visits in cases that present ongoing domestic violence concerns, did not report any disputes between the parents at their visits together. Moreover, whereas court orders in the earlier petitions required the mother to be kept and to keep away from the father, the family action plan in the current proceedings required the parents to apply the knowledge they had gained from participation in domestic violence prevention programs.
For the first fifteen months after the department obtained custody, the parents attended most scheduled visits with their daughter. At the visits, the mother rarely engaged with Aziza, struggled to properly handle her, and was inattentive to changing her diaper on two occasions. The department required the mother to complete a parenting class, which she did, but a department social worker expressed concerns that the class was insufficient, and the court appointed special advocate (CASA) observed no improvement in the mother's interactions with Aziza following the class. The father, who also attended a parenting class, engaged Aziza in appropriate and safe play, and voluntarily changed her diapers.
The parents’ attendance at visits, particularly the mother's, was less consistent at the beginning of 2019.6 Between January 2019 and March 2019, the mother did not attend a single visit and refused to explain why. The father also skipped some visits around the same time because they conflicted with his schedule and the department would not accommodate him. By April 2019, however, both parents were again regularly attending biweekly visits. By most accounts, the mother remained closed off from Aziza at visits while the father engaged and interacted with her.7 On a few occasions, the father did not listen to Aziza's requests for him to stop taking pictures of her, touching her, and disrupting her play. Aziza oscillated between displays of apathy and affection towards her parents. On at least two occasions, Aziza was visibly upset to be separated from her foster parents prior to visits with her biological parents. She did not generally talk about her visits without prompting from her foster parents.
The trial judge concluded that the mother's and the father's unfitness to parent Aziza “will continue undiminished in the future” based on their dishonesty, their history of domestic violence, their level of engagement in services,8 and the father's refusal until 2019 to sign the department's action plan.
Discussion. 1. Standard of review. “Because termination of a parent's rights is an ‘extreme step,’ ” the department must meet a high bar. Adoption of Ilona, 459 Mass. 53, 59 (2011), quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 239 (1991), S.C., 413 Mass. 339, 350 (1992). It must show, “by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, supra. Clear and convincing evidence conveys “a high degree of probability that the proposition is true” (quotation and citation omitted). Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).
“[T]he idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard.” Adoption of Yvonne, 99 Mass. App. Ct. 574, 577 (2021), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). Current unfitness alone is insufficient. See Adoption of Ilona, 459 Mass. at 59. The department must also show by clear and convincing evidence that a parent's unfitness is reasonably likely to continue indefinitely. See Adoption of Bianca, 91 Mass. App. Ct. 428, 431 (2017).
In considering whether the judge's findings constitute clear and convincing evidence, we set aside any finding that is clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993). “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.’ ” Id., quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).
2. Challenges to the judge's findings. We first address the parents’ many challenges to the judge's factual findings. We disagree with many of the challenges, but credit several.
a. Domestic violence and participation in services. Both parents contend that the judge's finding of current domestic violence in their relationship was clearly erroneous. We agree. The latest finding of domestic violence occurred in November 2017, eighteen months before the trial commenced, and thirty-two months before the judge found the parents unfit and ordered the entry of decrees terminating the parents’ rights. There was no documented domestic violence since that time. The parents attended joint visits under the department's supervision for two years without incident.
Both parents also challenge the judge's findings concerning their participation in services. The judge found that both parents “engaged in programs pursuant to [their] service plan[s],” but their participation was “inconsistent” and they “limited the access the Department had to [their] service providers by delaying releases for the Department.” The evidence supports these findings. The mother failed to attend and complete the first anger management program she attempted,9 and her parenting skills showed little improvement after she completed a parenting class. Likewise, the father was terminated from a domestic violence program for lack of participation. Moreover, neither parent engaged in services after June 2018 despite concerns from the department that the services to that point were insufficient and the parents had not made adequate progress.
b. The mother's additional claims. The mother challenges the judge's reliance on reports from the child's CASA because the CASA labored under a conflict of interest, having represented the mother when the mother was the subject of care and protection proceedings as a teenager. Such a conflict on the part of a guardian ad litem would have been a disqualification for appointment. See Probate and Family Court Standing Order 1-05, Standards for Guardian Ad Litem/Investigators 1.3.A. (2021); Probate and Family Court Standing Order 1-08, Standards for Guardian Ad Litem/Evaluators 1.3.A. (2021).
CASAs, unlike guardians ad litem, are not subject to explicit standards of conduct. The lack of such standards, however, does not mean that a CASA's compromised impartiality should be of no concern, given that a CASA “could be considered the functional equivalent of a guardian ad litem” (citation omitted). Adoption of Georgia, 433 Mass. 62, 68 (2000). It is troublesome here that, months into the trial, the judge had apparently forgotten about the CASA's previous involvement with the mother, despite the mother's counsel having raised the issue and orally moved for appointment of a new CASA at a status hearing early in the proceedings. At that time, the judge promised to provide guidance to the CASA, but she did not follow through.
Notwithstanding this concern, the mother's midtrial written motion to dismiss the petition due to the CASA's conflict of interest cited no legal authority, and we cannot say that the judge committed clear legal error or abused her discretion in denying the motion.10 Given our disposition of this appeal, we need not belabor this issue. In further proceedings, however, the judge should be mindful of the CASA's divided interests.
The mother also argues that the CASA impermissibly compared her to Aziza's foster parents in assessing Aziza's best interests. While determinations of parental fitness are not comparative in nature, see Care & Protection of Zelda, 26 Mass. App. Ct. 869, 872 (1989), nothing in the findings suggests that the judge herself made such comparisons or that she relied on the CASA's reports or statements to this effect.11
Finally, the mother challenges the judge's drawing of a negative inference from the mother's refusal at trial to explain why she did not attend any visits with Aziza for two months in early 2019. We discern no error. The testimony in question occurred on just the second day of trial. The mother's attorney had ample opportunity to inform the mother of the consequences of her refusal to testify and to get the mother's reasons for missing visits during those two months on the record.
c. The father's additional claims. The father raises numerous claims of factual error. Again, while most of these claims are of no consequence, some have merit.
The father challenges the judge's finding that both parents “frequently moved throughout [Aziza's] life” and failed to “demonstrate the existence of an adequate home environment.” This argument has some force. The parents moved only two or three times during Aziza's life, and one or two of those moves occurred while Aziza was in the department's custody. Additionally, their disputed move to Lowell in 2019 did not demonstrate any instability at their Rhode Island residence, as the judge found that the parents continued to maintain that residence even after securing the Lowell home. On these facts, the suggestion of housing instability did not support a finding of unfitness. Cf. Adoption of Yvonne, 99 Mass. App. Ct. at 580-581 (“mother did not maintain stable housing for nearly the entire duration of the proceedings”); Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004) (mother and child resided in at least four locations in just eight months).
The father challenges the judge's findings related to his visits with Aziza on several grounds. While we discern no error in the judge's finding that the father was inconsistent when it came to visits, the finding that the father “rarely chose to engage in play with Aziza” at visits is clearly erroneous. Indeed, at least eight of the judge's subsidiary findings document observations of the father actively engaging with Aziza at different visits over the years.
We reject the father's remaining claims of error, as the challenged findings all find record support. For example, the judge found that he “has shown an unwillingness to pay court-ordered fines.” While the judge found that the father did pay a fine following his convictions for larceny and workers’ compensation fraud, on at least three occasions in 2018 and 2019 the father defaulted on payments for traffic citations. The judge also found that Aziza had “minor health issues” when she was first placed with her foster family. Despite doctors’ reports from the same period indicating Aziza's good health, the judge's finding is adequately supported by the foster mother's testimony and does not overstate Aziza's condition at the time of removal.
The judge did not abuse her discretion in discrediting the parents’ expert witness on bonding. Nothing about the judge's treatment of the expert witness was improper. The judge acted within her discretion when she concluded that the expert's conclusions were unreliable. See Adoption of Bea, 97 Mass. App. Ct. 416, 429 (2020). The judge's conclusion was supported by conflicting evidence from the social worker, the CASA, and the foster mother, particularly evidence of Aziza's reluctance to attend visits and apathy toward the parents, as well as the mother's failure to engage with Aziza at visits. The judge was not bound to defer to the parents’ expert based on the expert's credentials or years of experience.12
The judge did not err in concluding that Aziza had a strong, positive bond with her foster parents, that removal would likely cause serious psychological harm, and that the parents were not prepared to meet her needs upon removal. See G. L. c. 210, § 3 (c) (vii). The evidence showed that Aziza had formed a positive bond with her foster parents, including calling them “momma and daddy” and her “best friends,” and that she became upset before visits with the mother and the father. However, because the harm that might flow from severing Aziza's bonds with her foster parents was just one factor, and not a “decisive factor,” in the termination decision, the judge was not required to make more specific findings. See Adoption of Katharine, 42 Mass. App. Ct. at 30-31.
The father also argues that the judge did not properly account for his limited English proficiency when she considered his failure to sign his action plan or to follow court orders. The father improperly raises this claim for the first time on appeal, having failed to call the judge's attention to it before or during the trial. See Adoption of West, 97 Mass. App. Ct. 238, 242-243 (2020). In any event, the evidence does not support the father's contention that he did not understand the content of the action plan or relevant court orders. The plan was orally translated for him, he said he did not need an interpreter when the department presented him an updated plan, and he claimed that he completed all the plan's tasks. As for the court orders, the father testified that he knew that prior orders had prohibited his contact with the mother and Aziza.
Finally, the father argues that the judge erroneously found that the child prefers adoption. The judge made no such finding, but noted that the child was three years old and that her experience in foster care had been positive.
3. The parents’ fitness to parent Aziza. The parents contend that the department failed to show by clear and convincing evidence that they were unfit to parent Aziza and that termination of their parental rights was in her best interests. We agree. Most significantly, the evidence of the parents’ past domestic violence was incompetent to predict future unfitness; the remaining evidence was insufficient to support the judge's conclusion, by clear and convincing evidence, that the parents “both have grievous shortcomings that put the subject child, Aziza, at risk.”
While “[v]iolence within a family is highly relevant to a judge's determination of parental unfitness,” Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005), the passage of time diminishes the capacity of past domestic violence to predict domestic future violence, “especially when evidence contradicting the prediction is readily available.” Adoption of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117 (2005) (judge's reliance on drug use from four years ago to predict parent's future behavior was problematic). As discussed supra, several years had passed since the last incident of domestic violence between the parents, and in the interim, both parents had completed domestic violence and anger management classes and had attended couples’ counseling. Although we are cognizant of the judge's concern that the programs did not have a significant impact on the parents, she could not ignore the improvement in their relationship since 2017. Both parents acknowledged the presence of domestic violence in their past. Cf. Adoption of Nancy, 443 Mass. 512, 514 (2005) (father's denial of alcohol problem factor in terminating parental rights). The parents’ history of domestic violence did not supply clear and convincing evidence of future unfitness.
The other factors on which the judge relied provide only minimal support for the determination of future unfitness. Neither parent's engagement with services was perfect -- each of them had a fitful start, but they both eventually completed all the classes in their action plans and demonstrated some improvement. The father's refusal to sign his action plan carries little weight given that he largely complied with the plan. See Adoption of Zoltan, 71 Mass. App. Ct. 185, 192 (2008) (attributing less weight to omissions of parent that “are not closely related to any clearly identified parental deficiencies”). And although the judge perceived the parents to be dishonest in their testimony at trial, the judge supplied no link between their dishonesty and their ability to care for Aziza. See id. at 191.
Stripped of the erroneous findings of fact, the only significant evidence that the parents were unfit and likely to remain so indefinitely was the fact that Aziza was born under questionable circumstances, amidst a tumultuous and sometimes abusive relationship between a teenager and a much older man. Once she was removed from their care, the parents’ relationship stabilized and they completed their action plans. Although at times they resisted the department's efforts, they were not belligerent or hostile. There was no evidence of drug use, no mental health issues, no recent criminal activity relevant to parental fitness, and no showing that the parents could not become capable of properly caring for the child. Even though the foster parents “may provide a more advantageous environment for the child's upbringing,” this was not a sufficient ground to terminate parental rights. Guardianship of Estelle, 70 Mass. App. Ct. 575, 580 (2007). “The evidence presented by the department was not strong, positive, full or decisive; it left far too much to speculation, conjecture and surmise.” Adoption of Iris, 43 Mass. App. Ct. at 105.
Accordingly, we vacate the decrees terminating the parents’ rights to Aziza and remand this matter for further evidence and findings as to the parents’ fitness.13 We note that the trial ended nearly two years ago, and that circumstances may have changed. The judge should consider current circumstances on remand. To the extent that traumatic severance of bonds with the foster parents may have become a decisive factor, the judge must make particularized findings. See Adoption of Katharine, 42 Mass. App. Ct. at 30-31. All we determine here is that the findings that the judge made did not justify the extreme step of terminating the parents’ rights.
Conclusion. The decrees are vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
vacated and remanded
3. At trial, a social worker testified that, in early 2018, the father came to the department's office with a black eye and said he feared the mother. The department did not introduce any documentary evidence to substantiate this testimony, and the judge made no such finding.
4. The father was initially terminated from a domestic violence program for lack of participation, but later completed a different one. The director of the program that the father did complete expressed concern about the father's ability to apply knowledge from the class to his own life.
5. On one occasion, the mother sent Aziza's grandmother to attend an anger management class in her place. The mother later completed a different anger management class.
6. Home visits were also disrupted at this time after the father denied the social worker permission to visit and then moved to Rhode Island. They restarted in July 2019 after the parents obtained a residence in Lowell.
7. The social worker explicitly noted the mother's active engagement throughout two visits during the trial, including one attended by the parents’ expert witness on bonding. The expert also testified that she observed “physical proximity between Aziza and her parents and frequent interactions” at the five visits she attended.
8. Specially, the judge noted the mother's “decision to not meaningfully engage in services” and the father's “termination from services for lack of participation.”
9. After the mother sent Aziza's grandmother to a session of this program, she failed to complete the program “due to lack of attendance.” To the extent that the judge found that the mother was terminated from a second program for lack of participation, that finding is clearly erroneous.
10. CASA reports are admissible so long as the CASA is available to testify and the CASA's sources are sufficiently identified to give the affected party an opportunity to rebut any adverse or erroneous material. See Adoption of Georgia, 433 Mass. at 69. These requirements were met here, and the judge was thus permitted to give the reports as little or as much weight as she saw fit. See Mass. G. Evid. § 1115(c)(3) (2021).
11. The same is true for the mother's undeveloped argument that the CASA improperly “dismissed [the mother's] reserve as a cultural quality given that the foster parents were Asian, too ․”
12. The parents’ claim that bias infected the judge's findings regarding their credibility and honesty likewise fails. “[T]he judge's assessment of ․ the credibility of the witnesses is entitled to deference.” Custody of Eleanor, 414 Mass. at 799. We discern no abuse of discretion in discrediting the parents’ testimony or clear error in finding that the parents were dishonest, given the judge's ability to assess their demeanor and numerous examples of their trial testimony contradicting their prior out-of-court statements.
13. In view of the result, we need not address the judge's decision not to order posttermination visits.
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