Court: Massachusetts Appeals Court; January 18, 2018; Massachusetts; State Appellate Court
The father is appealing a Juvenile Court decree that terminated his parental rights under G. L. c. 119. 26, which placed the child, Leroy, in the care of the Department of Children and Families (DCF) and approved an adoption plan. He contends that DCF did not make reasonable efforts to reunify him with Leroy, that the finding of parental unfitness was erroneous, and that the judge's involvement compromised his right to a fair trial. The court affirmed the termination of parental rights.
Background: DCF became involved on April 5, 2013, following a report of neglect regarding Leroy, who tested positive for cocaine and oxycodone at birth and exhibited withdrawal symptoms. The mother, with a history of substance abuse, and the father sought to leave the hospital with Leroy against medical advice. DCF took emergency custody and filed a care and protection petition on April 8, 2013. Leroy was placed with a foster family, later designated as the preadoptive family.
By May 9, 2013, DCF had developed a service plan for the father, requiring him to complete seventeen tasks aimed at addressing his substance abuse and ensuring the child's safety. The judge found the father had not consistently engaged with the services. A psychological evaluation in February 2014 revealed the father suffered from a Personality Disorder with Narcissistic Features, and he was resistant to recognizing his issues, including ongoing substance abuse, lack of mental health treatment, and domestic violence.
After changing Leroy's permanency goal to adoption in February 2014, the court held a trial in December 2015 and January 2016, ultimately ruling that Leroy was in need of care and protection and terminating the father's parental rights.
Discussion: The father's argument that DCF failed to make reasonable efforts to reunify the family was rejected. He claimed that DCF did not provide services until paternity was established, but the record indicated a service plan was in place within a month of Leroy's birth, including supervised visitation. Additionally, the immediate placement of Leroy in a preadoptive home did not demonstrate a lack of reasonable efforts, as the goal was initially family reunification. This goal was reassessed only after nine months, during which time the father did not comply with required evaluations and classes.
Judges, excluding the trial judge, concluded that the department made reasonable efforts before taking custody of Leroy and before shifting the permanency plan from reunification to adoption. The father did not contest these determinations at the relevant time, as permitted by precedent. The father's claim that the department failed to investigate his brother in New York as a potential foster parent was rejected; the brother was only identified in December 2014, nine months after the adoption goal was set. Although the department attempted to consider the brother, challenges arose regarding Leroy's health insurance eligibility in New York, which was hindered by the father's insufficient financial information. Despite conflicting testimony from social workers about the father's disclosures, he admitted that a lack of an updated financial form impeded the process, leading to the judge's findings that the father's inaction precluded further consideration of his brother as a placement option. The department's obligation to make reasonable efforts is contingent on the parent's fulfillment of responsibilities.
Even if the department had failed in its obligations, it would not prevent the court from making orders in the child's best interest. The department bore the burden of proving by clear and convincing evidence that the father was unfit to parent and that Leroy’s best interests justified dispensing with the father's consent to adoption. The father contested several factual findings and the judge's conclusions regarding his fitness, but these challenges were found unpersuasive. The judge's detailed findings were based on a preponderance of the evidence and were reviewed for clear error. The judge had discretion in assessing witness credibility and was not required to accept the father's testimony. Numerous challenges targeted findings linked to credibility, particularly regarding the father's substance abuse and parenting deficiencies, which were deemed not clearly erroneous. Additional mischaracterizations by the father included issues related to Leroy's drug exposure at birth, the father's living situation, his criminal history, and his visitation failures. Although the father disputed the characterization of his missed visits as 'willful,' the judge noted instances where the father canceled visits following the mother's cancellations, supporting the conclusion of willfulness.
The judge found the father unfit based on the criteria outlined in G. L. c. 210, specifically challenging four out of eight factors.
1. **Factor (iii)**: The judge determined that the father had canceled multiple visits and failed to engage in recommended services to address his parenting deficiencies. Despite the father's claim of attending eighty percent of visits, evidence showed he exhibited anger during visits, arrived under the influence of alcohol, and created anxiety for the child, Leroy. The judge concluded these behaviors indicated a lack of bonding and poor insight into Leroy's needs, affirming the weight of this factor in favor of termination.
2. **Factor (v)**: The judge noted that Leroy had been in state custody since birth and the father had not meaningfully engaged with offered services to remedy his parenting issues. Although the father completed some routine tasks, he failed to consistently comply with critical requirements, such as substance abuse counseling and maintaining a safe home environment. The father's lack of acknowledgment of his issues and inability to prioritize Leroy’s needs led the judge to conclude this factor also weighed in favor of termination, despite minor overstatements about his engagement with services.
3. **Factor (vii)**: The judge found that Leroy had been in a preadoptive home since birth, where he had developed significant bonds with the preadoptive parents and siblings. The potential psychological harm from removing him from this stable environment further supported the judge's conclusion that this factor favored termination.
Overall, the judge's assessments regarding these factors were upheld, supporting the decision for termination.
The father contests the conclusion regarding Leroy's potential bonding with him, citing an expert's testimony suggesting that both Leroy and the father 'possibly' could adapt to a new relationship despite concerns about Leroy developing an attachment disorder. However, the judge's findings, which highlighted the significant risk of psychological harm to Leroy and the father's lack of necessary parenting skills, were unchallenged and supported the decision to terminate parental rights.
Regarding visitation, the judge noted that the father had canceled visits without sufficient justification, a claim that the father did not successfully contest. The father also alleged unfair trial conduct, claiming the judge's active questioning of witnesses biased the proceedings. Although the judge's involvement was noted as potentially overbearing at times, it was established that he had informed counsel at the trial's start about his questioning approach and did not inhibit the father's ability to present evidence.
The judge's inquiries did not constitute hearsay and were not aimed at undermining the father's arguments. Ultimately, the court affirmed the judge's ruling, confirming that clear and convincing evidence of the father's unfitness existed and that terminating his consent for Leroy's adoption was in the child's best interests. The mother’s parental rights were also terminated, though she did not appeal. The department is not mandated to allow a specific timeframe for a parent to comply with a service plan before pursuing adoption. Despite the brother's potential interest in relocating to Massachusetts, the department had not received further communication from him regarding this matter before the trial.
The father testified that his brother had moved to Massachusetts two months prior to the trial, but the judge did not determine if it was the department's duty to track the brother or the responsibility of the brother or father to notify the department of the move. Multiple findings from the trial highlighted various issues: the father's childhood exposure to substance abuse, his denial of domestic violence and substance abuse, and his lack of credibility regarding past complaints of abuse. The judge credited the testimony of a social worker and two doctors over the father's claims, particularly regarding the father's insufficient insight into the consequences of disrupting Leroy's bond with his preadoptive parents.
The findings also clarified that the father’s arguments about certain points were unfounded, such as finding 118, which accurately reflected the hospital's refusal to allow the father and mother to take Leroy home, regardless of the father's version of events. The father's claim that finding 205 misrepresented his situation was incorrect; it noted he allowed substance abusers into his home, which was relevant to Leroy's living conditions. Other findings related to the father's substance abuse, including his initial denial of having smoked cocaine-laced marijuana, were upheld as accurate. The father's criminal history was substantiated by his CARI record, and the judge did not imply any specific convictions.
Furthermore, findings concerning Leroy's feelings about visits with the father and his bond with the preadoptive mother were deemed relevant and not erroneous, despite the father's objections regarding hearsay. The judge's comprehensive consideration of the father's circumstances was evident throughout the findings, with no significant issues raised against their accuracy or relevance.
Finding 408 is upheld, crediting Dr. Kline's diagnosis of the father without error, despite the father's claim regarding her reference to his 'reported history,' which does not imply past interactions with the department. The judge correctly determined that the father's absence from a foster care review meeting was due to attending a trial, not a missed visit. The analysis involves whether custody was transferred to the department for at least six months during which the father had minimal contact and failed to utilize corrective services consistently. The father disputes the judge's conclusion regarding his lack of engagement with services aimed at addressing parenting deficiencies. This includes a consideration of the child's age, the length of custody by the department, and the parents' failure to engage in offered services, including maintaining contact, attending required meetings, and providing necessary documentation. A social worker confirmed the father's compliance with certain tasks. The evaluation also considers the emotional bond the child has formed with a substitute caretaker and the potential harm of removal due to the parent's inability to meet the child's needs. The judge's role in clarifying evidence is noted, emphasizing the need to avoid any appearance of bias. The judge's overruling of the mother's objection regarding substance abuse was deemed unnecessary but not improper. Additionally, the judge's inquiries about the father's anger management issues and controlling behavior were appropriate for clarification purposes, distinguishing between clinical diagnoses and behavioral issues.
