Care and Protection of Francie. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-978
CARE AND PROTECTION OF FRANCIE. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In November 2017, the Department of Children and Families
(department) filed a petition alleging that nine year old
Francie was in need of care and protection. At a trial four
years later, the department sought to terminate the parental
rights of the mother but not the father, who had been deported
to Brazil when Francie was two years old. A Juvenile Court
judge found the mother unfit and terminated her parental rights,
found the father currently fit, and further concluded that it
was in Francie's best interests to be reunified with the father.
Accordingly, he granted permanent custody of Francie to the
father, and Francie moved to Brazil in February 2022. 2 Francie's
1 A pseudonym.
2 In November 2021, Francie filed a motion in the trial court and
a petition in this court, both seeking a stay of the
reunification order, and both of which were denied.
appeal concerns only the judgment awarding permanent custody to
the father. 3
On appeal, Francie challenges certain findings as clearly
erroneous, including the finding that the department failed to
use reasonable efforts to reunify her with her father; claims
that the judge improperly disregarded the testimony of her
expert witness; and argues that the evidence does not support
the judge's conclusion that the father is fit to parent her. We
affirm.
1. Erroneous findings. a. The father's compliance. The
department gave the father an action plan with seven tasks. 4
Seeing "no evidence" that he "failed to follow through with
services," the judge found that the father did everything the
department asked of him. Francie claims this was clearly
3 The mother filed but did not perfect an appeal from the decree
terminating her parental rights. The child did not appeal from
the decree terminating the mother's rights.
4 The action plan required the father to (1) cooperate with the
international home study; (2) "cooperate with any other
recommendations by the Department and other professionals";
(3) "provide the Department with confirmation/verification of
recommended services"; (4) visit with Francie via "phone
calls/video chat"; (5) "meet with a therapist to support Father
with parenting and the potential transition of [Francie]'s
custody to Father as well as family functioning once the
transition is complete. Father is also recommended to have a
batterer's evaluation from a qualified therapist to assess his
need for treatment"; (6) "arrange and provide verification of
medical, dental, and therapeutic providers [for Francie] in
anticipation of an exchange of custody"; and (7) maintain a
violence and substance-free home.
2
erroneous because there was no written documentation verifying
what services would be in place for her in Brazil, and because
of the father's failure to get a batterer's evaluation and
consistently attend therapy.
"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 Posy, 94 Mass. App. Ct. 748,
751 (2019). Here, the judge's findings about services for
Francie in Brazil were supported by testimony from a social
worker that the father "provided verification of medical,
dental, [educational,] and therapeutic providers for [Francie]
as required." That same witness acknowledged that the
batterer's evaluation was recommended only because of "an
isolated comment" by the mother to the department in 2017, id.
at 754, that her arguments with the father "would turn into
physical disputes." The judge did not credit these statements
and drew a negative inference from the mother's failure to
appear for trial or testify. See Adoption of Talik, 92 Mass.
App. Ct. 367, 371 (2017). By contrast, he did credit the
father's testimony that there was no violence in the parents'
relationship, which also was what the mother told the department
in June 2010, two months after the relationship ended. In these
3
circumstances, which included the absence of evidence that the
department made "any referrals to specific service providers in
[the father's] home country," a finding that the father had
"domestic violence issues" would be clearly erroneous. Adoption
of Posy, supra at 754 & n.15. Particularly where there was no
indication of violence in the father's home with his wife, the
judge did not err in deciding not to be "unduly influenced" by
the mother's "flimsy, unsupported, [and] unreliable statement[]"
in 2017. Custody of Tracy, 31 Mass. App. Ct. 481, 485 n.5
(1991). The judge did not err in concluding that a batterer's
evaluation would "shed little light on [the father's] parental
fitness." Adoption of Leland, 65 Mass. App. Ct. 580, 587
(2006).
The father engaged in therapy, but his therapy was
interrupted, first by the provider's maternity leave and then by
the COVID-19 pandemic. Francie recognizes these were factors
"beyond Father's control." His inconsistent attendance
therefore did not detract from the judge's findings, especially
where the therapy was to help the father with Francie's
transition, which had not yet started. 5
5 We note that the father was prohibited from entering the United
States until December 2020 and tried several times thereafter to
get a visa but was not successful. In-person visits were not
required by the action plan, however, and the father attended
every virtual visit with Francie, even when she chose not to
4
b. Reasonable efforts. The judge found that the
department "consistently failed" in its obligation to make
reasonable efforts toward Francie's reunification with the
father. See G. L. c. 119, § 29C. Francie claims that this
conclusion is based on erroneous facts and argues that, to the
contrary, the evidence established that the department did make
reasonable efforts, but that the lengthy separation between the
father and daughter, coupled with a language barrier, was simply
too great to overcome. We disagree. The judge's findings that
the department failed by (1) ignoring the father as an option
early in the case and changing Francie's goal to adoption even
though it was "clear for years predating this petition that
Father has sought to be a caretaker for this child"; (2) not
giving the father a family action plan for nearly one year and
then doing nothing to assist him to complete the tasks (e.g.,
not "assist[ing] in any way [with] efforts Father was making to
come to the U.S. to get the child"; (3) not offering language
lessons to the child; and (4) not developing a realistic
reunification plan or exploring appropriate methods to
accomplish that goal, including "not following through with
attend. Accordingly, the judge did not abuse his discretion in
finding the father in compliance with this task as well.
5
information in regard to assistance with international
placements," are amply supported.
The evidence established that the department did not
provide the father with an action plan until October or November
of 2018, after it had already changed its goal for Francie to
adoption. 6 It also did not request the international home study
required by that plan until the father filed a motion to compel.
The department waited until after the trial started in June 2021
to provide the father with a letter he first requested in
December 2020, which he thought would help him obtain a visa to
come to the United States to visit Francie. And it never used
information it received from the Brazilian Consulate about
social workers from other department area offices who had
experience transporting children to Brazil. The department knew
of a company that could transport Francie to Brazil and check in
on her monthly for six months after she arrived in Brazil but
did not discuss this option before trial, even internally.
Francie was not enrolled in Portuguese classes until two months
before trial started -- three and one-half years after the
6 The judge found that the plan was given to the father in
October; the department social worker testified that he
"believe[d]" he produced it in November. The plan itself was
not in evidence. To the extent there is error in this
unchallenged finding, it does not leave us with a definite and
firm conviction that a mistake was committed. Adoption of Posy,
94 Mass. App. Ct. at 751.
6
petition was filed -- then after two classes the department
allowed Francie to drop out because she "did not like it."
Finally, the department did not draft a transition plan for
Francie until it was ordered to do so on the second day of trial
in July 2021, even though reunification with the father had been
the department's goal for Francie since November 2020. Francie
does not challenge the judge's findings that the plan finally
submitted by the department was "superficial" and "skeletal."
The judge's "specific and detailed" findings about the
father's compliance with his action plan tasks and the
department's efforts are thus supported by the evidence and not
clearly erroneous. Adoption of Don, 435 Mass. 158, 165 (2001).
Francie "simply views the evidence differently from how the
judge viewed it." Adoption of Lisette, 93 Mass. App. Ct. 284,
295 (2018). On appeal, Francie asks us to adopt her view of the
evidence, but we may not. See id. at 292. We do not sit as
triers of fact. See Adoption of Don, supra at 166-167.
2. Expert witness. An expert witness interviewed Francie
when she was ten years old and met with her again a few weeks
before trial, when Francie was thirteen. The expert testified,
and the judge found, "that [Francie] is an exceptional young
woman who is adaptable and able to advocate for herself in any
environment," with "strength and ability to persevere despite
her trauma." The judge rejected the expert's opinion that
7
reuniting Francie with her father would be harmful to her,
however, reasoning that the opinion and the facts "do not
coincide" because Francie's "testimony and demeanor did not
reflect the inability to transition to Father." Francie claims
this was error, but it was not. The judge was not required to
accept the expert's opinion. See Adoption of Bea, 97 Mass. App.
Ct. 416, 429 (2020). His reasons for not doing so were neither
arbitrary nor an abuse of discretion. See Adoption of Don, 435
Mass. at 166-167.
3. Fitness and best interests. Francie argues that the
record does not support the judge's determination that the
father was fit to parent her. Parental fitness is "determined
by taking into consideration a parent's character, temperament,
conduct, and capacity to provide for the child in the same
context with the child's particular needs, affections, and age."
Adoption of Mary, 414 Mass. 705, 711 (1993). "The parental
unfitness test and the best interests of the child test are not
mutually exclusive, but rather reflect different degrees of
emphasis on the same factors," with the child's welfare being
"the most important consideration." Adoption of Lisette, 93
Mass. App. Ct. at 293. The question "is not whether the parent
is a good one, let alone an ideal one; rather, the inquiry is
whether the parent is so bad as to place the child at serious
risk of peril from abuse, neglect, or other activity harmful to
8
the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758,
761 (1998). See Bezio v. Patenaude, 381 Mass. 563, 579 (1980)
("A finding that a parent is unfit . . . must be predicated upon
parental behavior which adversely affects the child"). While
"[o]ne who is fit to parent in some circumstances may not be fit
if the circumstances are otherwise" because "[a] parent may be
fit to raise one child but not another," Guardianship of
Estelle, 70 Mass. App. Ct. 575, 581 (2007), as to each child,
"our law only recognizes two possibilities: in given
circumstances, a parent is either fit or unfit." Id. at 579.
"Custody of a child belongs to a parent unless that parent is
unfit." Id. at 578, and cases cited.
It is the department's burden to prove current unfitness by
clear and convincing evidence. See Care & Protection of Erin,
443 Mass. 567, 570 (2005). We review the judge's determination
"not to decide whether we, presented with the same facts, would
have made the same decision, but . . . whether the trial judge
abused his discretion or committed a clear error of law."
Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526
U.S. 1034 (1999).
Francie is a "good kid" who was pleasant, helpful, and
unselfish. She achieved all her developmental milestones, was
in good physical health, and had no specialized educational
needs. Given her trauma from "significant exposure" to the
9
mother's substance use and unstable lifestyle, however, and "due
to the transition of leaving her foster home and moving to a new
country," Francie "will have very specialized [emotional] needs"
requiring "stability, support, and connection to things that are
familiar." 7
Throughout the case, the father maintained a safe and
stable home environment and demonstrated love and a "desire to
have [Francie] come live with him." A study of the father and
his home in Brazil was approved in November 2019 and "did not
give any indication that Father and his family were unfit to
receive [Francie]." In particular, "Father [did] not have a
violent or unsafe home," and "[t]here [wa]s nothing to indicate
Father use[d] or abuse[d] illicit substances." Rather, the
7 In September and October 2017, the department investigated
three 51A reports and supported allegations of abuse and
neglect. See G. L. c. 119, §§ 51A, 51B. The mother agreed to
give temporary custody of Francie and her half-siblings to a
relative, but that relative became unwilling to be a placement
and the children returned to the mother. The father of the
half-siblings then petitioned a court for and was awarded
custody of his children. The mother "informed [the department]
that [Francie] would remain with her." Less than one month
later, the mother and Francie were dropped off at a hospital
emergency room. The mother "wanted treatment [for her substance
use disorder] but stated that she didn't have anyone to care for
[Francie]," so the department filed the petition and took
emergency custody, placing Francie in a foster home where she
stayed for the next four years. In those years, Francie had "a
series of different therapists," social workers, and teachers.
In 2020, the foster family announced it could not provide
permanency.
10
father lived "in a happy and healthy home with his family" that
included his wife and Francie's half-sister, with extended
family nearby. 8 It was the same home the father had lived in
since the inception of the case. He also maintained the same
job and had a steady income and health insurance. Recognizing
that reunification would "be a significant and likely difficult
change for [Francie]," and "want[ing] to do everything he can to
make sure she is emotionally stable through the transition," the
father made appropriate arrangements with bilingual providers
for Francie to receive private schooling and language classes,
medical and dental care, and therapy; took English classes to
better communicate with Francie; requested family therapy early
in the case to prepare Francie for the transition; and engaged
in therapy himself to work on issues related to his conflict
with Francie's mother and the child's transition to his care.
"[T]here were no other parties identified in a similar position"
to provide a "supportive, nurturing home setting built around
[Francie's] care." "The Department failed to produce, or even
argue any evidence of Father's unfitness except that he was
living in Brazil."
8 The judge found that the father's wife "has spoken to [Francie]
several times and loves her." Though he did not make a finding
about what language they spoke, there was evidence that the wife
spoke English.
11
Francie testified at the trial and "reflected the ongoing
trauma of the tumultuous childhood," the judge found, by
suggesting that part of her reason for not wanting to leave the
United States was the lack of "closure with her feelings toward
Mother abandoning her years earlier." Francie "expressed
reservations about going to Brazil," but "[t]he Court did not
find the child to be as opposed to the move as had been
expressed" by the child's counsel and expert witness. The judge
recognized that Francie "no longer ha[d] the bond that she may
have once had with Father" and had some concerns about Francie's
"particular needs once she is reunified with Father and living
in a different country"; however, the judge ultimately concluded
that Francie "deserves a loving, supportive, and consistent
parent, and the evidence shows that Father is exactly that."
The judge determined that the father was "prepared to meet all
of [Francie]'s educational, medical, and emotional needs,"
therefore, the department "failed to present sufficient evidence
to establish that Father has grievous shortcomings or handicaps
that would put this child at risk," and failed to show "by clear
and convincing evidence that the Father is unfit." Reasoning
that the father "has a right to custody of his child," which
also "serves the best interests of the subject child," the judge
ordered reunification.
12
Francie claims this was error because, despite engaging in
services and visiting with Francie, the father did not "evidence
the insight that would allow him to parent a teenager who was
not bonded to him" and who had "complex emotional functioning."
Francie also asserts that the judge (1) "ignored crucial
unchallenged evidence" showing the father did not prioritize
Francie's needs over his own, and (2) made up his mind without
hearing all the evidence, as reflected by his comments about the
father's commitment to Francie and that "we're sort of just
going through an exercise here" because there was "no real
dispute as to" the father's fitness. Finally, Francie alleges
that the judge acted "with little regard for her well-being" by
ignoring her wishes and acting as if Francie's "best interests
were secondary to [the department]'s supposed failures (and
Father's rights)." Although this case presents a number of
concerns, we are not persuaded that the judge made a clear error
of judgment in weighing the factors relevant to the decision,
such that his decision fell outside the range of reasonable
alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
The father demonstrated growth from his therapy and an
understanding of Francie's emotional needs when he testified to
Francie's devastation by the loss of contact with her mother and
his support of the mother's recovery and Francie regaining
13
contact with her. In addition, before trial, he agreed during a
visit where Francie asked about his deportation to wait for
Francie's therapist to be present before he answered because he
knew the conversation would be emotional. The father also asked
a social worker for help telling Francie about his wife's
pregnancy in a way that would help Francie feel supported
because he worried she "might have a difficult time with this
information." Finally, the father identified a bilingual
therapist for the child, and planned to have her continue
therapy once in Brazil, because he "appreciates the challenges
that [Francie] is going to have . . . adjusting to the new
culture and family." Francie's assertion that the father failed
to demonstrate growth in his understanding of and ability to
meet Francie's needs is grounded in the father's supposed
refusal to accept that Francie did not want to move to Brazil,
and is belied by the judge's findings. The judge credited the
father's testimony that he "totally understand[s]" Francie's
fear of "leaving everything behind that she knows of and moving
to a different place."
In sum, "there was adequate evidence to support" the
judge's view that the father understood and was prepared to meet
Francie's particular needs, Adoption of Quentin, 424 Mass. 882,
887 (1997), making him "fit to parent this child in these
circumstances at this time." Guardianship of Estelle, 70 Mass.
14App. Ct. at 582. Francie's disagreement with the father's
decision to seek reunification in Brazil rather than allow
Francie to stay in the United States is understandable, but her
disagreement does not create parental unfitness.
We are not persuaded that the judge's comments, in context,
show that he prejudged the case. While he did express a
favorable view of the father's efforts to maintain a
relationship with Francie after he was deported, the judge also
said, "I don't know that he's perfect," and denied the father's
request for a decision without hearing from Francie's expert.
Nor do we believe the judge acted without regard to Francie's
wishes or well-being. To the contrary, the judge had "deep
appreciation for the wishes of the child," characterizing her
"discontent in moving to a new country" as "very real."
The judge obviously understood that "the fitness of parents
and the best interests of the child are related," Custody of a
Minor, 389 Mass. 755, 766 (1983), with "the balance to be struck
. . . more complex in nature" than simply doing what one or the
other wants, Petition of the Dep't of Pub. Welfare to Dispense
with Consent to Adoption, 376 Mass. 252, 266 (1978), because he
recited that "[t]he specialized needs of a particular child when
combined with the deficiencies of a parent's character,
temperament, capacity, or conduct may clearly establish parental
unfitness." He also considered that "the question is what's
15
different? Why is [the child] going to struggle if she's -- if
she ultimately is sent back to live with her dad. Why -- you
know, what makes her different than another kid." These
comments reflect an appropriate focus on the father's fitness as
a function of "the various factors unique to" Francie, Custody
of a Minor, 375 Mass. 733, 753 (1978), rather than on the
father's fitness "in the abstract," Guardianship of Estelle, 70
Mass. App. Ct. at 579, or on the department's failures.
Francie points out that the judge's frustration with the
department was indeed "palpable." In some circumstances such
frustration might create a risk that the "judge's impartiality
might reasonably be questioned." Commonwealth v. Morgan RV
Resorts, LLC, 84 Mass. App. Ct. 1, 10 n.16 (2013). We have
carefully reviewed the record, however, and are confident that
it did not cloud the decision. 9 The judge's comments at trial,
findings, conclusions, and decision denying Francie's
postjudgment motion for a stay demonstrate that, as required,
G. L. c. 119, § 29C, his "lodestar" was always Francie's best
interests. Adoption of Bea, 97 Mass. App. Ct. at 426. See
Adoption of Ilona, 459 Mass. 53, 61 (2011) ("even where the
9 We too are concerned by the department's failure to take steps
to enable an in-person visit, such as transporting Francie to
another country.
16
department has failed to [make reasonable efforts], a trial
judge must still rule in the child's best interest").
The negative facts about the father that Francie claims the
judge ignored appeared in a record of the department's June 2010
investigation of a 51A report, see G. L. c. 119, §§ 51A, 51B,
wherein the father denied that the mother used illicit
substances. Yet, based on the father's testimony at trial, the
judge found that the mother "was actively using" illicit
substances before, in, and continuing after June 2010. Francie
argues that the father was either lying then and "squandered"
the opportunity to help Francie or he is lying now to put
himself in a better light. However, the father's testimony
about his actions in 2010 did not put him in a good light. By
his own admissions, when the child was two, the father thought
the mother was misusing illicit substances but left the child in
her care. The judge did not condone those actions and neither
do we. Still, "a determination of unfitness must be based on
current evidence," Adoption of Ramona, 61 Mass. App. Ct. 260,
264 (2004), as the judge recognized, focusing the parties at
trial on the present circumstances. 10 See Adoption of George, 27
Mass. App. Ct. 265, 268 (1989) (stale information cannot be
10For example, the judge said during the trial, "Let's kind of
focus on the present," and "obviously the issue is where are we
today."
17
basis for finding of current parental unfitness, though prior
history can have prognostic value); Petitions of the Dep't of
Social Servs. to Dispense with Consent to Adoption, 18 Mass.
App. Ct. 120, 126 (1984) ("isolated problems in the past or
stale information cannot be a basis for a determination of
current parental unfitness").
Finally, the judge properly considered the father's rights
as part of the analysis, because they were "cognate and
connected" with Francie's best interests. Blixt v. Blixt, 437
Mass. 649, 658 (2002). The presumption that parents will act in
their child's best interests, id., applies equally to Francie.
See G. L. c. 209C, § 1 ("Children born to parents who are not
married to each other shall be entitled to the same rights and
protections of the law as all other children"). Since paternity
was never in dispute, the father's and Francie's relationship
was "a family unit worthy of protection." Petition of New
Bedford Child & Family Servs. to Dispense with Consent to
Adoption, 385 Mass. 482, 490 (1982). See Smith v. McDonald, 458
Mass. 540, 544 (2010) ("Once paternity is established . . . [a]
father, if not unfit, has a constitutionally protected right to
parent and maintain a relationship with his child"); G. L.
c. 210, § 4A (unwed father entitled to custody if not unfit and
18
in child's best interest). The judge did not err in treating it
that way.
Judgment affirmed.
By the Court (Vuono, Henry &
Grant, JJ. 11),
Clerk
Entered: August 9, 2023.
11 The panelists are listed in order of seniority.
19