Adoption of Ilian ( 2017 )

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16-P-1517 Appeals Court
ADOPTION OF ILIAN. 1
No. 16-P-1517.
Bristol. May 3, 2017. - June 28, 2017.
Present: Kinder, Henry, & Desmond, JJ.
Adoption, Dispensing with parent's consent. Minor,
Adoption. Parent and Child, Dispensing with parent's
consent to adoption. Practice, Civil, Findings by
judge. Department of Children & Families.
Petition filed in the Bristol County Division of the
Juvenile Court Department on August 23, 2013.
The case was heard by Siobhan E. Foley, J.
Matthew P. Landry, Assistant Attorney General, for the
Department of Children and Families.
Abigail H. Salois, Committee for Public Counsel Services,
for the father.
Diane Messere Magee for the child.
KINDER, J. Following trial, a Juvenile Court judge found
that Ilian's parents were unfit to parent him and that
termination of their parental rights was in Ilian's best
1
A pseudonym.
2
interests, and she accordingly issued decrees terminating their
parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3.
The judge approved a plan put forward by the Department of
Children and Families (DCF) for Ilian's adoption by the foster
family with whom he had been living for eighteen months. On
appeal, the father claims error in the termination of his
parental rights in light of his plan for a paternal cousin
(cousin) to serve as Ilian's caregiver. The father contends
that the judge failed to conduct an "even-handed assessment" of
the two plans. We agree that the judge's assessment of the
father's plan should have been more explicit. More detailed
findings regarding the cousin's credibility as a witness and
suitability as a caregiver would have clearly demonstrated the
required even-handed assessment. Nevertheless, for the reasons
that follow, we conclude that the judge adequately considered
the father's alternative plan and properly concluded such
placement was not in Ilian's best interests. 2 Accordingly, we
affirm.
Background. We summarize the relevant facts, which have
ample support in the record. Ilian was born in May, 2011, and
was almost five years old at the close of the trial. DCF's
first involvement with Ilian's family was in September, 2012,
2
The mother is not a party to this appeal, having
stipulated to the termination of her parental rights before
trial.
3
when DCF received a report pursuant to G. L. c. 119, § 51A (51A
report), for neglect, alleging that Ilian was present when the
father shot a sixteen year old boy. Ultimately, DCF's
investigation did not support the claim that Ilian was present
at the shooting. However, the father was convicted of the
underlying criminal offenses and sentenced to four to five years
in State prison. The father was incarcerated from the time of
his arrest in 2012 through the termination of parental rights
trial in the Juvenile Court trial in 2016. At the time of the
termination trial, his release date was uncertain. There was no
evidence that the father had ever been Ilian's primary
caregiver.
After the father's arrest, the mother's life became
increasingly unstable. She was unable to maintain a home and
lived with friends and in homeless shelters. Eventually, the
mother moved into an apartment with a woman who suffered from
alcoholism. In August, 2013, a second 51A report was filed
after the mother and her roommate were involved in a violent
altercation. Each woman claimed to have been stabbed by the
other. The mother was arrested. At the time of her arrest, the
home was in a "deplorable" condition and Ilian was "filthy."
DCF assumed temporary custody of Ilian and placed him with the
maternal aunt. At the time, Ilian was just over two years old
4
and was exhibiting developmental delays, including a profound
speech problem.
DCF's initial plan to reunify Ilian with his mother was
changed to adoption in February, 2014. In March, 2014, another
51A report was filed alleging neglect by the maternal aunt and,
on DCF's investigation, the allegations were supported. In May,
2014, Ilian was removed from the aunt's home and placed in a
residential program before being moved to a specialized foster
home in July, 2014.
Ten months later, in May, 2015, Ilian was placed with an
approved preadoptive foster family. At first, Ilian cried
easily and had difficulty communicating. By the time of trial,
Ilian was "thriving" and was able to engage in age-appropriate
conversations. He was interacting well with the other children
in the family. Ilian was described as "quite comfortable and
well settled."
Prior to placing Ilian with his preadoptive foster family,
DCF investigated several potential kinship placements. Two
relatives were excluded because of their criminal records. The
paternal grandmother was considered but then excluded after she
failed to secure appropriate housing despite DCF's offer of
assistance. The cousin was considered in May, 2014. She was
informed by DCF that she would need an apartment with at least
two bedrooms. The cousin next contacted DCF almost eighteen
5
months later, just prior to trial, indicating that she would
like to be considered as a placement for Ilian. At the time of
trial, the cousin was twenty-four and a single parent of an
infant son. She worked forty hours per week as bus monitor. By
that time, Ilian was well settled with his preadoptive family.
The cousin had not seen Ilian since he was approximately
fourteen to eighteen months old. In explaining the eighteen-
month gap between her contact with DCF in 2014 and her contact
just before trial, she testified at trial that she had lost the
telephone number of Ilian's case worker, was caring for her own
son, and needed "to get my own self situated before I even did
anything else."
Discussion. 1. Termination of the father's parental
rights. "In deciding whether to terminate a parent's rights, a
judge must determine whether there is clear and convincing
evidence that the parent is unfit and, if the parent is unfit,
whether the child's best interests will be served by terminating
the legal relation between parent and child." Adoption of
Ilona, 459 Mass. 53, 59 (2011). Such a finding must be
supported "by clear and convincing evidence, based on subsidiary
findings proved by at least a fair preponderance of
evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606
(2012). See Adoption of Mary, 414 Mass. 705, 710-711 (1993).
"We give substantial deference to a judge's decision . . . and
6
reverse only where the findings of fact are clearly erroneous or
where there is a clear error of law or abuse of
discretion." Ilona, supra.
Here, the father does not contest the evidence of his
unfitness. He claims, however, that the decree terminating his
parental rights was error in light of his nomination of the
cousin as a suitable kinship placement for Ilian. He also
argues that certain factual findings were clearly erroneous.
After a careful review of the record, we conclude that, with two
exceptions discussed below, the judge's subsidiary findings of
fact were supported by a preponderance of the evidence, and
there was no error of law or abuse of discretion in her
conclusion that termination of the father's parental rights was
in Ilian's best interests.
The father assigns error to a number of the judge's factual
findings. In large part, however, his arguments challenge the
way in which the judge weighed the evidence. On such matters we
defer to the trial judge. See Adoption of Stuart, 39 Mass. App.
Ct. 380, 382 (1995) ("[D]eference is to be accorded the trial
judge's assessment of the credibility of witnesses and the
weight of the evidence"). There were two findings, however,
that lacked evidentiary support. First, there was insufficient
evidence to support the judge's finding that the father was
aware of Ilian's possible autism diagnosis prior to his
7
incarceration. However, the father admitted that he knew about
the possible diagnosis at least by October, 2013, and failed to
pursue services for Ilian. Second, there was no evidence that
the cousin's two-bedroom apartment was inadequate at the time of
trial. However, it is undisputed that the cousin had not seen
Ilian for several years. The cousin admitted that she failed to
stay in contact with DCF for eighteen months after she first
volunteered to care for Ilian and that she was unable to secure
adequate housing during that time. By then Ilian was settled in
a stable environment with his preadoptive family. Considering
these two erroneous findings in the context of all of the
evidence, we cannot say that the judge abused her discretion or
committed clear error in the ultimate decision to terminate the
father's parental rights. See Care & Protection of Olga, 57
Mass. App. Ct. 821, 825 (2003) (ultimate conclusion of unfitness
supported where errors not central to ultimate conclusion).
2. Assessment of plans. Under G. L. c. 210, § 3, there
are two considerations in determining whether termination of
parental rights is in the child's best interests. First, the
judge must consider the "ability, fitness, and readiness of the
[child]'s parents to assume parental responsibility." Adoption
of Vito, 431 Mass. 550, 568 n.28 (2000). Second, the judge must
review "the plan proposed by [DCF]," ibid., with equal
consideration given to any competing plan proposed by a parent.
8
See G. L. c. 210, § 3(c); Petitions of Dept. of Social Servs. to
Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 124
n.11 (1984). "[T]he judge must assess the alternatives and, if
both pass muster, choose which plan is in the child's best
interests, however difficult that choice may be." Adoption of
Dora, 52 Mass. App. Ct. 472, 475 (2001). "In choosing among
placement plans, it falls to the sound discretion of the trial
judge to determine what is in the best interests of the child,
and our review on appeal is one of substantial
deference." Adoption of Bianca, 91 Mass. App. Ct. 428, 434
(2017) (quotation omitted). Here, the father contends that the
judge did not adequately consider the father's plan to have the
cousin act as Ilian's caregiver. 3 We disagree.
DCF proposed, and the judge approved, a plan under which
Ilian would be adopted by his preadoptive foster parents. There
is no dispute that Ilian was thriving in that placement. The
judge found that Ilian "interacts well with the other children
in the home," that he is "comfortable with his pre-adoptive
parents," and that he "runs to [the] foster mother . . . and
displays affection towards her." See Adoption of Nicole, 40
Mass. App. Ct. 259, 262-263 (1996) (bonding between child and
3
We note that placement with the cousin was the last of a
number of family placements considered by DCF. The father does
not challenge DCF's rejection of the other three family members
as suitable caregivers.
9
preadoptive parent is factor to be considered). Significantly,
under the care of the preadoptive foster parents, Ilian's speech
had improved dramatically. See Adoption of Ilona, 459 Mass. at
62 (no abuse of discretion in terminating parental rights where
child demonstrated "extraordinary progress" when removed from
mother and placed with foster parents).
The judge's assessment of the father's plan for the cousin
to act as caretaker was less explicit, but she did make findings
related to the cousin's suitability. The judge found that
"[i]n May of 2014, Father's cousin . . . contacted [DCF] to be
considered for placement. [She] had a one bedroom apartment and
was advised that she would need a two bedroom." The judge
further found that "[i]n November of 2015, [the cousin] informed
[the adoption social worker] that she was still living in a one
bedroom apartment but was soon to secure a two bedroom. [The
cousin] had not seen [the child] since he was approximately 14-
18 months of age. He is now 5 years old." However, the
findings did not reflect that the cousin had secured a two-
bedroom apartment by the time of trial, as DCF required, and had
successfully completed a home study as ordered.
We are mindful that the judge heard extensive trial
testimony from the cousin explaining her relationship with
Ilian, her personal circumstances, and her absence from Ilian's
life. The judge was in the best position to weigh that
10
testimony. Although the better practice would have been for the
judge to make explicit findings of fact from which we could
determine her assessment of the cousin's credibility at trial
and her suitability as Ilian's caregiver, we think it is
implicit in the findings she did make that she considered
placement with the cousin and concluded such placement was not
in Ilian's best interests. In these circumstances, where the
child was thriving in a stable environment with the preadoptive
foster parents, and the economic and emotional stability of a
placement with the cousin was uncertain, the judge acted well
within her discretion in concluding that Ilian's best interests
were served by DCF's plan that Ilian be adopted by his
preadoptive foster parents. 4
Decree affirmed.
4
"Other points, relied on by the [father], but not
discussed in this opinion, have not been overlooked. We find
nothing in them that requires discussion." Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).