NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Juvenile Court terminated the mother's parental rights with respect to three children, Amanda (born in 2002), Beth (born in 2003), and Sara (born in 2008). The judge also terminated the parental rights of each of the three children's fathers (each has a different father). The instant appeal involves the termination of the mother's parental rights and the termination of Beth's father's (father) parental rights, as well as the approval by the judge of the adoption plans for Amanda and Beth proposed by the Department of Children and Families (DCF).
The fathers of Amanda and Sara did not appeal from the termination of their parental rights.
Amanda was diagnosed with depression and anxiety, and had struggled with attendance at school prior to foster care. In her foster placement, Beth exhibited sexualized behavior, touching Amanda inappropriately, which led to their separation. Sara also exhibited highly sexualized behavior while in foster placement and had to be moved. Amanda and Beth join the mother in her appeal from the termination of her parental rights and the denial of posttermination visitation for her. Sara supports affirmance of the judge's decision.
The mother suffers from mental illness, specifically schizoaffective disorder. Unfortunately she has been inconsistent in engaging in therapy and in taking her prescribed medications. Her relationships with men are poor, and are a frequent source of conflict and domestic violence in her home.
The father has a lengthy criminal record. He was incarcerated for the nine months before trial, and had pending criminal charges relating to intimidating the mother of another child of his. Although he lived with Beth and the mother for the first two or three years of Beth's life, after that his visits with Beth were irregular and infrequent. The father did not perform service plan tasks designed by the DCF.
The evidence in this case was sufficient to demonstrate by clear and convincing evidence that both parents were at the time of trial "unfit to provide for the welfare and best interests of the child[ren]." Adoption of Don, 435 Mass. 158, 165 (2001).
The mother's primary argument, in which Amanda and Beth join, is that her mental health is much improved due to a new medication regime. This is an argument properly addressed to the finder of fact: "[w]here there is credible evidence that there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary, a judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests" (emphasis supplied). Adoption of Elena, 446 Mass. 24, 31 (2006) (citation omitted). Here, the judge analyzed the mother's recent gains in the context of her entire treatment history, and, in addition to considering the mother's current fitness, prognosticated with respect to the mother's fitness in the foreseeable future. These determinations were within the judge's purview. See Custody of Two Minors, 396 Mass. 610, 621 (1986) (noting "[t]he court is permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child"). The judge's "conclusion that the mother's unfitness is likely to continue into the indefinite future to a near certitude [was] based on appropriate consideration of the evidence and [is] not clearly erroneous." Adoption of Elena, supra at 33-34 (quotation marks omitted). The same reasoning applies to the mother's challenge (in which Amanda and Beth join) to the judge's denial of posttermination visitation.
The father primarily objects to the judge's finding that his visits with Beth were sporadic. But the judge was not required to credit the father's testimony that he had seen his daughter weekly throughout her life prior to her removal from the mother's care.
Amanda and Beth argue on appeal (independent of their arguments above, relating to the mother) that the judge erred in her placement analysis, specifically in failing to award the maternal grandmother custody of Amanda and Beth. With respect to the best interests of the children, at issue in determining the proper placement, Adoption of Hugo, 428 Mass. 219, 226 n.9 (1998), cert. denied, 526 U.S. 1034 (1999), the judge was required to assess the significance of the fact that Amanda and Beth are unlikely to be, and oppose being, adopted. See Care & Protection of Georgette, 439 Mass. 28, 36 (2003) (stating that children's "positions, based on mature expression, are entitled to weight in custody proceedings [although not determinative]"). This is especially so when at trial in 2013, Amanda was eleven years old and Beth was ten years old, and on remand at least one of them will be old enough to block an unwanted adoption. See G. L. c. 210, § 2 (children above age of twelve must give written consent prior to decree of adoption being made). As there is no discussion of the significance of these facts in the judge's decision, that portion of the decrees approving DCF's proposed adoption plans for Amanda and Beth must be vacated and the case remanded.
We note also that there was limited or no discussion of what appears to have been, at least at the time of trial, instability, lack of treatment, and some academic deterioration of Amanda and Beth while they have been in DCF's care. And in terms of placement alternatives, while of course the judge is far closer to the situation than we, we think it worth at least noting that DCF has provided us with no source of law for the proposition that a fourteen year old outstanding warrant for resisting arrest should be an absolute bar from consideration of the maternal grandmother as a possible placement alternative, although we do not mean to imply that there is no such source of law or that she might otherwise be fit. We emphasize that we mean to put no thumb on the scale with respect to any of the questions that the judge may in her discretion choose ultimately to consider on remand.
We note that DCF does not argue that the maternal grandmother's underlying conduct fourteen years ago is akin to that involved in committing the crimes enumerated in G. L. c. 119, § 26A(f), which result in per se rejection of an applicant to be a foster or adoptive parent. Those crimes involve committing sexual or violent acts against children (or murder).
The decrees are affirmed as to the findings of unfitness and the denial of posttermination visitation. The portion of the decrees approving DCF's proposed adoption plans for Amanda and Beth is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
The panelists are listed in order of seniority. --------
Clerk Entered: July 30, 2015.