In re Adoption of Francesca

90 Mass.App.Ct. 1107

59 N.E.3d 456 (Table)

Adoption of Francesca (and a companion case¹ ).

No. 16–P–294.

Appeals Court of Massachusetts.

September 29, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The parents appeal from decrees terminating their parental rights with respect to each child and dispensing with the need for their consent to adoption. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. The father challenges the sufficiency of the evidence of his unfitness, while the mother argues error in the denial of her motion to recuse and in the judge's visitation order. We affirm.

Background. After a trial which took place on five nonconsecutive days over the course of four months, the judge made 112 findings of fact which “are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence.” Adoption of Don, 435 Mass. 158, 165 (2001). We summarize his findings, which are not contested by the parties.

At the time of trial in March, 2015, Francesca was approximately nine years old and Sara was six. Three years earlier, in May, 2012, the Department of Children and Families (DCF) received a report that Francesca was sexually abused by a male cousin. The report was investigated but no action was taken because the perpetrator did not live in the home.

In the first days of October, 2012, the father turned himself in to authorities after he was charged in Maine with committing a triple homicide and arson. Before turning himself in, the father, the mother, and the children had been living as a family unit. That same month, DCF received two reports of neglect of the children because they had missed the first three weeks of school. See G.L. c. 119, § 51A. In December, 2012, DCF received two more reports of neglect of the children by the mother, due to their excessive absenteeism or tardiness at school, their poor hygiene, and their arrival at school dressed inappropriately for the weather. An investigation was opened, and DCF began to implement services for the family.

In April, 2013, DCF received two more reports of neglect of the children by the mother, because there was no electricity in the home and the children were dirty. When the electricity had not been restored by May and an investigation indicated concerns from the school regarding the children's hygiene and whether they had adequate food, DCF removed the children from the home. At that point, Francesca had not received any counselling for the prior sexual abuse.

The mother minimally participated in services after the children were removed. She entered a drug rehabilitation program for two months in 2013 before she was terminated for noncompliance; she has been sporadically employed; and she has not maintained stable housing. Although the father maintained minimal contact with DCF, he failed to participate in a “Comprehensive Family Assessment” as required by his service plan, and he did not provide DCF with documentation of any groups he was attending while incarcerated. Rather, he told the ongoing social worker that he was not being offered services “at this time.”³ The father was convicted in Maine of murder and arson, and, at the time of the termination trial, he was awaiting a decision on an appeal from the denial of his motion for a new trial in the Maine criminal matter.

Francesca struggles with attention deficit disorder, oppositional behaviors, forming attachments to others, sexualized behaviors, and aggression toward other children. While the case was pending, her behaviors became so challenging that she was removed from her foster home and placed in a residential treatment facility. Sara has shown some social and emotional needs based upon her past trauma history, but as of the time of trial, she had lived in the same foster home for over three years, and the foster parents have expressed an interest in adopting her or becoming her guardians.

Discussion. 1. Mother's appeal. The mother argues error in the judge's denial of her motion to recuse and in his order of visitation.⁴ On the first day of trial, the mother offered to stipulate to her unfitness and that the children were in need of care and protection. The judge rejected the stipulation in a written decision. On the second day of trial, the mother moved for reconsideration of that decision and, after that was denied, she moved for recusal. The judge “conducted the two part analysis set forth in Lena v. Commonwealth, 369 Mass. 571 (1967), and ... further considered the presentation of mother's counsel through the spectrum of the Code of Judicial Conduct and relevant ethics opinions ... published by the Committee of Judicial Ethics for Massachusetts,” but concluded that recusal was not required. We review his decision for an abuse of discretion, Commonwealth v. Rivera, 473 Mass. 1003, 1005 (2015), and see none.

The mother has not identified anything in the record to support her contention that the judge “demonstrated a bias or prejudice [against her] arising from an extrajudicial source, and not from something learned from participation in the case.” Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). The judge was “specific with mother and all parties that should the court decline to accept the stipulation, it could be withdrawn and of no consequence to the mother, with all of her rights to trial and appeal being preserved.” While the mother interpreted the rejection of the stipulation as an indication “that the court had formed a bias against her and already decided that her parental rights should be terminated,” she “points to nothing more than the [judge's] adverse rulings ... to support her claim that he was not impartial.” Erickson v. Commonwealth, 462 Mass. 1006, 1007 (2012). “A judge who has ruled against a litigant is not thereby barred from participating in subsequent proceedings involving that litigant,” id. at 1007 n. 1, and this judge engaged in the proper inquiry regarding his ability to remain impartial. See Commonwealth v. Daye, 435 Mass. 463, 469470 (2001). We see no evidence that the judge “was biased in this case, or that his ruling was ‘influenced by any considerations other than the law.’ “ Erickson v. Commonwealth, supra at 1007, quoting from Commonwealth v. Daye, supra at 470 n. 4.

The judge did not abuse his “broad discretion” in ordering supervised visitation between the mother and the children twice per year. Adoption of Douglas, 473 Mass. 1024, 1027 (2016). He properly “weighed the benefits to the children of some continued contact...