In re Raheem

97 Mass.App.Ct. 1103

141 N.E.3d 452 (Table)

ADOPTION OF RAHEEM.¹

19-P-1079

Appeals Court of Massachusetts.

Entered: February 14, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The father appeals from a decree terminating his parental rights to his son, Raheem.³ See G. L. c. 210, § 3. On appeal, the father asserts that the trial judge improperly assessed the evidence of domestic violence, failed to pay close attention to the record, placed undue reliance on perceived character flaws, and erred in concluding that the father's unfitness was permanent and ongoing. The father further maintains that some of the judge's subsidiary findings are erroneous, or do not support the ultimate finding of unfitness. We affirm.

Discussion. To terminate parental rights, "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 Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). We review findings of fact under the clearly erroneous standard, which grants substantial deference to the judge's decision. See id. "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" (quotation and citation omitted). Adoption of Cecily, 83 Mass. App. Ct. 719, 726 (2013). We review the trial judge's rulings to determine whether there was an abuse of discretion or error of law. Adoption of Lisette, 93 Mass. App. Ct. 284, 292 (2018), citing Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

Before us is a record replete with evidence of the father's longstanding and sustained history of anger, aggression, and violence, starting with a sexual assault as a juvenile.⁴ As an adult, the father was charged with assault and battery on a household member, the mother, on three separate occasions, and with assaulting mother with a knife and threatening to kill her. While all of these charges were dismissed, the contemporaneous police reports were properly before the judge.⁵ Care & Protection of Frank, 409 Mass. 492, 495-498 (1991). One incident occurred in May, 2016 -- after the initial care and protection petition was filed. An investigator from the Department of Children and Families (department) saw injuries to the mother's face in June, 2015 and May, 2016, after criminal charges had been filed against the father for assault. Although the father claimed that he was no longer in a relationship with the mother, the judge found that the father and mother remained in a relationship, although their status at the time of trial was unclear.⁶

It is now well established that "physical force within the family is both intolerable and too readily tolerated, and that a child who has been ... the spectator of such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, 422 Mass. 590, 595 (1995). The father contends that mother was the perpetrator of domestic violence in the home, or at the very least she was unstable and volatile, and that his conduct must be considered in that light. The record does contain reports of domestic violence against the father by the mother. The father asserts that the judge, given the mother's absence at trial, placed too great an emphasis on the father's conduct, as opposed to the mother's.

This contention misses the mark for multiple reasons. It is for the judge to weigh the evidence and assess credibility. Adoption of Querida, 94 Mass. App. Ct. at 778, citing Custody of Two Minors, 396 Mass. 610, 618 (1986). The judge's findings regarding the father's role in the domestic violence were fully supported by the record, including the police reports. Indeed, reports of abuse and neglect were filed precisely because the mother did not terminate her relationship with the father after she was assaulted in June of 2015. Moreover, this argument was not made to the trial judge, and is therefore waived. See Adoption of Gregory, 434 Mass. 117, 120 n.1 (2001). But even if mother had also assaulted the father, the father's continued relationship with the mother, and his failure to protect the child from the impact of domestic violence in the home, is an important consideration when determining the father's fitness and the best interests of the child. See Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. at 595 ("It is well established that exposure to domestic violence works a ‘distinctly grievous kind of harm’ on children"). The salient issue is not the relative fault as between the mother and the father, but rather the impact of family violence, whatever the source, on the child. Indeed, the judge was required to make specific findings regarding the presence of domestic violence and its impact on the child. See Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005) ("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"). See also Adoption of Imelda, 72 Mass App. Ct. 354, 365 (2008).⁷

The father further contends that there is no evidence of domestic violence in the two years preceding hearing, and that the judge gave undue weight to stale conduct. In another context, the Supreme Judicial Court has recently reemphasized the importance of considering a past history of domestic violence in determining the best interests of the child. See Malachi M. v. Quintana Q., 483 Mass. 725, 733-736 (2019). Furthermore, the judge made a specific finding that the father had not benefited from attendance at an intimate partner abuse education program, noting that the father had said only that he learned "not to date crazy women." The judge did not give undue weight to the past history of domestic violence and the father's failure to protect the child from it. See generally Adoption of Larry, 434 Mass. 456, 469 (2001) ; Adoption of Diane, 400 Mass. 196, 204 (1987) ; Care & Protection of Georgette, 54 Mass. App. Ct. 778, 784 (2002).

The father's anger and outbursts were not limited to the home. On three occasions the father removed department social workers from his home. On one occasion, the father ignored and then yelled at a department social worker, whom the father then chased from the home. Home visits terminated and visits with the child were moved to the department's offices. The father was verbally abusive to department workers, and put his fist through a wall during one visit to a department office. He also told the foster father during visits at the department office, "You better take care of my son," and "If something happens to my son, it's going to be you." The father called the foster father "fruity" and "a sissy."

The father also displayed aggressive behavior toward the child, then age two. Minutes after giving a department social worker his certificate of completion from a parenting...