Adoption of Posy ( 2019 )

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17-P-1473 Appeals Court
ADOPTION OF POSY
(and a companion case1).
No. 17-P-1473.
Bristol. September 12, 2018. - February 4, 2019.
Present: Green, C.J., Milkey, & Singh, JJ.
Adoption, Dispensing with parent's consent. Minor, Adoption.
Parent and Child, Adoption, Dispensing with parent's
consent to adoption. Practice, Civil, Adoption, Findings
by judge.
Petitions filed in the Bristol Division of the Probate and
Family Court Department on September 18, 2014.
The cases were heard by Katherine A. Field, J.
Roberta Driscoll for the father.
Jeremy Bayless for Department of Children and Families.
Jaime L. Prince for the children.
SINGH, J. From his home in Guatemala, the father sought to
obtain custody of his two daughters who were placed in foster
care after the death of their mother in the United States. The
1 Adoption of Beth. The children's names are pseudonyms.
2
father could not take immediate custody of the children because
he had been deported earlier.2 After a one-day trial, at which
the father was necessarily absent due to his immigration status,
a Probate and Family Court judge issued decrees terminating the
father's parental rights. In finding the father to be an unfit
parent, the judge characterized him as having "abandoned" the
children. She also found that he had "a serious issue with
criminal activity" and "longstanding issues of domestic
violence." As none of these critical findings have adequate
support in the record, we vacate the decrees.
Background. The mother and father were both Guatemalan
nationals who met in New Bedford; they began their relationship
sometime in 2004 but never married. Posy was born in August,
2006, and Beth was born in June, 2009. In April, 2009, two
months before Beth's birth, the father was deported, preventing
him from acknowledging paternity on Beth's birth certificate.3
After he was deported, the father maintained telephone contact
with the mother (when she had access to a telephone) and the
children.
2 Counsel represented that there is a ten-year restriction
on the father's reentry to the United States, making him
eligible for return by April, 2019.
3 Although the father has not been adjudicated Beth's legal
father, there is no challenge to his paternity.
3
During the father's absence, the Department of Children and
Families (department) became involved with the family. The
first contact was in October, 2010, after the mother left the
children in the care of a neighbor while she went to the
hospital. She suffered from health conditions resulting from
alcohol abuse, and her hospital stay became extended. The
neighbor could not keep the children for this length of time,
which led to a report to the department that the children were
being neglected by their mother. Four additional reports of the
mother's alleged abuse or neglect of the children followed
during the period March, 2011, through February, 2014. Each of
the alleged incidents of abuse or neglect filed against the
mother occurred during the father's absence. No allegations of
abuse or neglect of the children were filed against the father.
In July, 2014, the mother died from complications relating
to her alcoholism. Shortly thereafter, a maternal uncle and his
girl friend became temporary guardians of the children for a few
months.4 Unable to place the children with another family member
or family friend (because of disqualifications based on the
immigration status of potential guardians), the department sua
sponte took custody of the children in September, 2014, and
4 The children occasionally spoke to the father by telephone
while living with the maternal uncle.
4
placed them with a foster family.5 At the same time, a
department social worker was assigned to the family.
Sometime after receiving her assignment, the social worker
contacted the father in Guatemala. Because the family was
receiving services from the department and the father sought
custody of the children, a service plan issued to the father
starting on November 11, 2014.6 The father indicated that, in
the interim, a paternal great uncle was interested in taking
care of the children; although the placement was "ruled out" by
the department, the paternal great uncle, a paternal great aunt,
and a paternal cousin (along with the paternal cousin's three
children) began regularly-scheduled visits with the children.
On December 9, 2014, less than one month after issuance of the
service plan, the goal for the children changed from
reunification with their father to permanency through adoption.
5 The children remained in this foster placement at the time
of trial.
6 The father's tasks under the service plan were to (1)
maintain monthly contact with the department; (2) provide
verification of domestic violence treatment services received in
Guatemala; (3) provide current contact information; (4) maintain
monthly contact with the children, including letter writing; (5)
engage in individual therapy and support the children's need for
placement; and (6) "keep the [department] informed of any
attempts or process in returning to the" United States. The
social worker's responsibility under the plan, among other
things, was to "[m]ake all necessary referrals for the family."
5
A one-day trial on the petition to dispense with consent to
adoption was held on July 14, 2016, at which the father was
represented by counsel but not present. On October 3, 2016, the
order and decrees issued terminating the father's parental
rights. In the accompanying findings, the judge determined that
the father had abandoned the children by getting deported. The
judge found that there was "clear and convincing evidence of
long-standing issues of domestic violence and parental neglect."
She concluded that "a serious issue with criminal activity and
domestic violence [had] create[d] a continuing risk of harm due
to neglect of the children." She approved the department's plan
of adoption of the children by the foster parents and declined
to order posttermination and postadoption contact. The father
appealed.
Discussion. "[T]o take the 'extreme step' of irrevocably
terminating the legal relationship between a parent and child,"
the judge "must determine 'by clear and convincing evidence that
the parent is currently unfit to further the child's best
interests.'" Adoption of Yale, 65 Mass. App. Ct. 236, 239
(2005), quoting Adoption of Carlos, 413 Mass. 339, 348 (1992).
"'[C]areful factual inspection and specific and detailed
findings' by the trial judge are required to 'demonstrate that
close attention has been given the evidence.'" Adoption of
Yale, supra, quoting Custody of Eleanor, 414 Mass. 795, 799
6
(1993). "A judge's [subsidiary] findings will not be disturbed
unless shown to be clearly erroneous. Custody of Eleanor,
supra. '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.'" Adoption of Abby, 62 Mass. App. Ct. 816, 823-824
(2005), quoting Custody of Eleanor, 414 Mass. at 799.
We begin by noting the overall problematic nature of the
findings of fact and conclusions of law in this case. As
acknowledged by all parties, many of the findings of fact are
without support in the record.7 The conclusions of law, which
encompass ten single-spaced pages, recite generic propositions
of law, without regard to the issues in the case.8 The ultimate
7 Indeed, the findings most critical of the father recite
conversations among identified people occurring on specific
dates, yet, inexplicably, there is nothing in the record to
support these detailed findings. Additionally, there are other
findings that appear not to relate to this case at all (e.g.,
the father's "documented failure to understand basic concepts of
parenting such as appropriate types, amounts and when to feed
this child").
8 Many of the conclusions of law have no relevance to the
case, such as those dealing with parental unfitness due to
mental health issues and physical abuse of the children. It is
unclear which conclusions the judge actually drew in this case.
For example, one of the legal propositions recited is that a
judge may draw a negative inference from a parent's failure to
testify at trial. Here, the judge waived the father's absence
at trial due to his immigration status, so any negative
inference was unwarranted.
7
conclusions are untethered to any specific findings of fact and
generally assail the father with references to "poor parenting
choices," "poor parenting," "poor decision making," and
"parental neglect."9
Although we are cognizant of the significant burdens placed
on trial judges in these cases, the task of setting forth
adequate findings and conclusions provides a valuable safeguard.
"[A]s every judge knows, to set down in precise words the facts
as [s]he finds them is the best way to avoid carelessness in the
discharge of [one's] duty: Often a strong impression that, on
the basis of the evidence, the facts are thus-and-so gives way
when it comes to expressing that impression on paper." Custody
of a Minor (No. 1), 377 Mass. 876, 886 (1979), quoting United
States v. Forness, 125 F.2d 928, 942 (2d Cir.), cert. denied sub
nom. Salamanca v. United States, 316 U.S. 694 (1942).
Apart from the deficiencies in the judge's findings and
conclusions, we are troubled by the swiftness with which the
9 It is unclear what poor parenting choices the father made
while he was out-of-country and others had custody of the
children. The judge did find that the father "never took any
actions to seek to remove the girls from their alcoholic mother
or the neglect that was ongoing for years." While the statement
is true, it is unfair. The record does not support the premise
that the father was aware of the issues with the mother or the
extent of them. Nor does it support the premise that the father
was in any position to seek to remove the children from their
mother. We note that the department, which was fully aware of
the issues with the mother and legally obligated to seek removal
if circumstances warranted, did not do so.
8
department changed its goal from reunification to adoption. The
judge found that the department changed its goal "[d]ue to [the
father's] lack of progress with respect to his service plan."10
In contrast to the judge's finding, the department stated its
reason for the goal change at a review hearing: "Given the fact
that the mother is deceased and the father, it's impossible for
him to come here, the children are United States citizens, our
goal has recently been changed to adoption." This explanation,
making no mention of the father's alleged lack of progress,
indicates a greater concern with the father's immigration
status. We are cognizant of the department's charge to
establish permanency for the children and that deported parents
present a special challenge. That challenge must be met,
however, consistent with due process. See Hall, Where Are My
Children -- And My Rights? Parental Rights Termination as a
Consequence of Deportation, 60 Duke L.J. 1459, 1472 (2011).
We now turn to an examination of the most significant
findings underlying the judge's determination of parental
unfitness: (1) the father "abandoned" the children, (2) the
10If indeed this was the reason, the father was given an
unreasonably short amount of time -- less than one month -- in
which to show progress. See Adoption of Daisy, 77 Mass. App.
Ct. 768, 782 (2010), quoting Adoption of Lenore, 55 Mass. App.
Ct. 275, 278 (2002) (department "required to make reasonable
efforts to strengthen and encourage the integrity of the family
before proceeding with an action designed to sever family
ties"); 110 Code Mass. Regs. § 1.02(4)-(9) (2008).
9
father had "a serious issue with criminal activity," and (3) the
father had "longstanding issues of domestic violence." These
critical findings do not have adequate support in the record.
"Stripped of the clearly erroneous findings," the remaining
"findings do not rise to the level of establishing the
[father]'s current unfitness to parent." Adoption of Abby, 62
Mass. App. Ct. at 827.
1. Abandonment. In applying the factors required to be
considered on the issue of parental fitness, see G. L. c. 210,
§ 3 (c), the judge concluded that the father had abandoned his
children by virtue of his deportation. Yet, "abandoned" is
defined in the statute as "being left without any provision for
support and without any person responsible to maintain care,
custody and control because the whereabouts of the person
responsible therefor is unknown and reasonable efforts to locate
the person have been unsuccessful" (emphasis added). Id. The
father's location was well known to the department, and as
testified to by the ongoing social worker, he kept in "pretty
extensive contact" with the department. He also, although
unsuccessfully, suggested various family members as potential
interim caretakers for the children. Thus, the father did not
10
abandon the children, as that term is defined in the statute;
the finding is clearly erroneous.11
2. Criminal activity. The judge concluded that the father
had "a serious issue with criminal activity." Yet, the father's
criminal history report submitted in evidence reflects a single
unadjudicated charge for misdemeanor assault and battery.12
Other than stating that the father was deported because of
unspecified "criminal activity," the judge did not make any
subsidiary findings concerning any specific criminal activity in
which the father had engaged.13 This general allegation,
11To the extent that the judge found the father to be unfit
due to his unavailability at the time of trial, this was an
insufficient ground for termination of parental rights,
particularly where the unavailability was temporary. Contrast
Adoption of Ilona, 459 Mass. 53, 59-62 (2011) (termination may
be appropriate where parental unfitness is likely to continue
into indefinite future). Additionally, as the judge noted in
her findings, unavailability due to deportation, similar to
unavailability due to incarceration, "alone is not a ground for
termination of parental rights, and the 'compelled absence of a
parent by reason of [deportation] [is] to be taken into account
but [does] not conclusively render a parent unfit.'" Adoption
of Jacqui, 80 Mass. App. Ct. 713, 718 (2011), quoting Adoption
of Nicole, 40 Mass. App. Ct. 259, 261 (1996).
12It appears that the father was deported during the course
of the proceedings on that charge, resulting in the entry of
default.
13The judge found that the father was deported "as a result
of criminal activity in which he was found to have engaged."
However, there is no evidence in the record of any finding by
any authority that the father had engaged in any specific
criminal activity. Additionally, apart from counsel's
representation that there was a ten-year ban from reentry, there
is scant evidence in the record concerning the circumstances of
11
unsupported by any specific incidents, was insufficient to
support a conclusion that the father had a serious issue with
criminal activity; it was clearly erroneous.
3. Domestic violence. The judge concluded that the father
had "longstanding issues of domestic violence" with the mother.
Yet, the record is devoid of police reports documenting any
response to domestic violence in the parents' home, or any
indication that the mother sought, or obtained, a G. L. c. 209A
abuse prevention order for protection against the father.
Additionally, the parents each denied that any abuse occurred
during their relationship. The mother reported to the
department (during the various investigations relating to the
reports of her abuse and neglect of the children) that the
father was a "kind and loving man"; in fact, the mother informed
the department that she never experienced in her relationship
with the father any incidents of violence. She stated that the
father was never jealous, controlling, or possessive, and she
denied ever feeling afraid of him. She said that she became
depressed after the father's deportation. When first contacted
the father's deportation. Whatever brought the father to the
attention of the authorities, there is little to suggest that
the basis of the deportation was anything other than an
immigration violation. See 8 U.S.C. § 1182(a)(9)(B)(i)(II)
(2012) (ten-year ban on reentry for those who remain unlawfully
in United States for more than one year).
12
by the social worker, the father also denied any domestic
violence in his relationship with the mother.
The only source for any claim of domestic violence appears
to be an isolated comment from the mother's neighbor to a social
worker that the father was deported "due to domestic violence."
There was no further follow-up inquiry by the department to this
comment. There was no indication that the neighbor had any
first-hand knowledge of any such domestic violence, and no
details of any such incidents were offered. Again, this general
allegation, unsupported by any specific incidents, was
insufficient to support a conclusion that the father had
"longstanding issues of domestic violence."14 It was clearly
erroneous.15
14In an effort to support a single incident of domestic
violence, the department points to an investigator's report
indicating that the mother was the victim of an assault and
battery occurring on August 29, 2008, and the father's criminal
history report showing September 2, 2008, as the entry date on a
charge of assault and battery. Even if we accept the
department's suggestion that this evidence allows the inference
that the father was charged with assault and battery on the
mother, such an inference is still insufficient. Not only was
the charge never adjudicated, there is nothing in the record
detailing the event related to the charge.
15The judge also criticized the father for failing to
engage in treatment for domestic violence issues. Contrary to
the judge's conclusions that the father "refused" to "accept"
services "offered" or "provided" to him, the record reflects
that the department did not make any referrals to specific
service providers in his home country. In any event, "[g]iven
the lack of any clearly established parental shortcomings
[relating to domestic violence] which needed to be rectified in
13
Conclusion. Without the clearly erroneous findings, the
remaining subsidiary findings here show no "'grievous
shortcomings or handicaps [of the father] that put the
child[ren]'s welfare much at hazard,' Petition of the New
England Home for Little Wanderers to Dispense with Consent to
Adoption, 367 Mass. [631], 646 [(1975)], and thus the ultimate
finding of unfitness is not properly supported by the
[subsidiary] findings." Adoption of Leland, 65 Mass. App. Ct.
580, 585 (2006). As a result, the department failed to meet its
burden of proving the father's unfitness by clear and convincing
evidence. See Adoption of Imelda, 72 Mass. App. Ct. 354, 363
(2008). Therefore, we vacate the decrees terminating the
father's parental rights, and remand for further proceedings
consistent with this opinion.
So ordered.
order for the [father] to be able to provide minimally
acceptable care," the judge's criticism of the father's failure
to participate in domestic violence treatment "adds little to
the issue of [his] fitness." Adoption of Zoltan, 71 Mass. App.
Ct. 185, 192-193 (2008).