In re Zed

99 Mass.App.Ct. 1124

168 N.E.3d 383 (Table)

ADOPTION OF ZED (and a companion case ¹ ).

20-P-210

Appeals Court of Massachusetts.

Entered: May 11, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge found both the mother and father unfit, adjudicated the children, Zed and Ellen, to be in need of care and protection, and terminated the mother's parental rights as to both children and the father's parental rights as to Ellen.³ See G. L. c. 210, § 3. The judge placed the children in the permanent custody of the Department of Children and Families (department) and approved the permanency plan proposed by the department for adoption of the children by their preadoptive foster parents. Both parents appeal from the decrees finding each of them unfit and terminating their parental rights. We affirm.

Background. The mother and father began a relationship in 2014. The mother gave birth to Zed in May⁴ 2015. Within the first six months of Zed's life, the department received six reports pursuant to G. L. c. 119, § 51A (51A report), described in more detail below, each alleging reasonable cause to believe that Zed was being neglected as a result of circumstances including domestic violence between the father and mother and the mother's medical neglect of Zed. On November 16, 2015, the court awarded the department temporary custody of Zed and he was placed in a foster home.

In May 2016, the mother gave birth to Ellen. Three days later, the department filed a care and protection petition on Ellen's behalf grounded on concerns about the history of violence between the mother and father, the mother's medical neglect of Ellen, and the father's lack of engagement in services. The department removed Ellen from the mother's care on July 30, 2016, and was granted temporary custody of Ellen on August 1, 2016, when she was placed in a foster home.⁵

Discussion. 1. Standard of review. "To terminate parental rights to a child and to dispense with parental consent to adoption, 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 Jacques, 82 Mass. App. Ct. 601, 606 (2012). " ‘Parental unfitness’ ... means ‘grievous shortcomings or handicaps’ that put the child's welfare ‘much at hazard.’ " Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). We review the judge's findings and conclusions with substantial deference and will not disturb them except "where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

2. Father's appeal. The father claims that many of the judge's subsidiary findings were clearly erroneous, and therefore the evidence was insufficient to support the judge's conclusion that the father was unfit. "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’ " (citation omitted). Adoption of Larry, 434 Mass. 456, 482 (2001). "We defer to a judge's assessment of the weight of the evidence and the credibility of the witnesses." Id. The father also claims that the judge ignored several "troublesome facts" in arriving at his conclusion of unfitness. "Troublesome facts" are those "pointing to a conclusion contrary to that reached by the department or the judge." Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). Having carefully reviewed the record in this case, we conclude that the department proved by clear and convincing evidence that, at the time of trial, the father was unfit and the termination of his parental rights was in Ellen's best interests.

a. Domestic violence. The father argues that his criminal record was "too stale" to show his unfitness to parent Ellen at the time of trial, because his most recent conviction was imposed for a drug offense in 2008. Although the judge noted the father's "historic criminal conduct and drug use"⁶ as "constant factors in his life," these findings were "not central to the ultimate conclusion of unfitness." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). The overwhelming thrust of the judge's findings attributed the father's unfitness to his long history of domestic violence and his lack of engagement in services on that issue.

As the judge summarized it, the "father has engaged in a lifetime of aggressive, threatening, controlling, and violent behavior toward women." There was ample support for that conclusion, and for the judge's finding that such conduct rendered the father unfit. Police reports documented multiple domestic disturbances between the mother and father. See Mass. G. Evid. § 1115(b)(5) (2021). On August 1, 2015, police responded to a domestic violence call where the mother reported that while she was holding Zed, then less than four months old, she and the father argued, she put Zed in a stroller, and the father punched her in the face. The police noted that the mother was crying, had a swollen lip, and had blood dripping from her mouth. That incident led to a 51A report, which was supported. On September 22, 2015, police responded to a physical altercation during which the mother's sister, with whom the father was romantically involved, threw a glass plate at the mother while she was holding Zed; the judge found that the father "did not do anything to protect [Zed] or prevent it from happening." That incident resulted in three 51A reports, which were supported. On April 7, 2016, a month before the birth of Ellen, the mother and father argued in the department's office lobby; the father yelled at the mother and then tried to close the door on the mother so that she could not follow him. The department subsequently prohibited the mother and father from having parent-child visits at the same time, "due to their history of domestic violence."

In addition, the judge's finding of the father's unfitness to parent Ellen was supported by his chronic domestic violence in relationships with women other than the mother. The father testified that besides Ellen, he has seven children with five other women, all of whom have obtained abuse prevention orders against him. At trial, the father testified that a total of ten such orders had issued against him, seven of which had issued since his release from prison in 2011. All ten of those orders included stay away orders from the respective children. In March 2016, two months before Ellen's birth, the father was charged with violating an abuse prevention order filed by a former girlfriend.

"It is well established that exposure to domestic violence works a ‘distinctly grievous kind of harm’ on children...." Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595-596 (1996). "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." Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004). There is ample evidence in the record that Zed was exposed to domestic violence by the father during the year before Ellen was born. That evidence of domestic violence was not negated simply because the father was not convicted of crimes arising from those incidents. See Adoption of Zak, 87 Mass. App. Ct. 540, 542-543 & n.6 (2015) (incident of domestic violence for which father was not convicted supported judge's finding of pattern of violence). Cf. Adoption of Talik, supra at 374 (considering impact of domestic violence on fitness of mother, who was victim). Rather, the judge's finding was properly supported by the police reports documenting the details of the specific incidents of domestic violence and the father's testimony about the ten abuse prevention orders that had been issued against him. See Mass. G. Evid. §§ 405(b), 1115(b)(5) (2021). See Adoption of Zak, supra. Contrast Adoption of Posy, 94 Mass. App. Ct. 748, 754 (2019) ("record is devoid of police reports documenting any response to domestic violence ... or any indication that the mother sought, or obtained, a G. L. c. 209A abuse prevention order for protection against the father"; judge's finding of "long standing issues of domestic violence" between mother and father was clearly erroneous).

To the extent that the father argues that a finding of his unfitness to parent Ellen should not be based on domestic violence that he perpetrated before she was born, we disagree.⁷ "[N]either agencies responsible for the welfare of children nor judges sitting on these sorts of custodial questions need to wait for inevitable disaster to happen" before intervening. Adoption of Katharine, 42 Mass. App. Ct. at 32. The record supports the judge's determination that the father's history of violence was indicative of a strong likelihood that his domestic abuse, and risk of harm to Ellen, would continue in the future. See Adoption of Carla, 416 Mass. 510, 517 n.7 (1993) ("the trial judge ‘could properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness’ "); Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979) ("an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child"). Accordingly, we conclude that the...