Adoption of Tonetta. ( 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-1214
ADOPTION OF TONETTA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a Juvenile Court
judge terminating his parental rights with respect to his
daughter, Tonetta. 2 On appeal, the father claims that the
Department of Children and Families (DCF) failed to establish by
clear and convincing evidence that he was an unfit parent, and
that the judge erred in terminating his parental rights. We
affirm.
Discussion. The father first argues that the findings in
the aggregate were not supported by clear and convincing
evidence and thus did not meet DCF's burden of proving the
father's unfitness. We disagree.
"When reviewing a decision to terminate parental rights, we
must determine whether the trial judge has abused his discretion
1 A pseudonym.
2 The mother's parental rights were also terminated. She is not
a party to this appeal.
or committed a clear error of law." Adoption of Elena, 446
Mass. 24, 30 (2006). "When making this determination,
subsidiary findings of fact must be supported by a preponderance
of the evidence, with the ultimate determination of unfitness
based upon clear and convincing evidence." Adoption of Rhona,
63 Mass. App. Ct. 117, 124 (2005) (Rhona II). See Adoption of
Luc, 484 Mass. 139, 144 (2020). "Clear and convincing evidence
is evidence that is 'strong, positive and free from doubt.'"
Adoption of Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018),
quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849,
871 (1975). The evidence "must be sufficient to convey a high
degree of probability that the proposition is true" (quotations
and citations omitted). Adoption of Rhona, 57 Mass. App. Ct.
479, 488 (2003) (Rhona I), S.C., 63 Mass. App. Ct. 117 (2005).
"Clear and convincing proof involves a degree of belief greater
than the usually imposed burden of proof by a preponderance of
the evidence, but less than the burden of proof beyond a
reasonable doubt imposed in criminal cases." Custody of
Eleanor, 414 Mass. 795, 800 (1993), quoting Stone, supra.
Here, the judge's findings are specific and detailed,
"demonstrating that close attention has been given to the
evidence." Adoption of Hugo, 428 Mass. 219, 224 (1998). The
conclusions of law consider each of the fourteen factors set out
in the relevant statute, G. L. c. 210, § 3 (c), and those
2
elaborated in case law. These findings were supported by clear
and convincing evidence introduced at trial, and they
demonstrate that DCF met its burden of proving the father's
unfitness and that the father's parental rights were properly
terminated.
The judge's findings indicate that the child was born
substance exposed in 2017, entered DCF custody shortly after her
birth, was placed in a foster home, and later transferred to a
second foster home. The father became involved in the child's
case in November of 2017, consistently visited with the child,
and was adjudicated the child's parent in September of 2018.
The child was reunited with the father in March of 2019,
but the care and protection case remained open due to his
failure to formally obtain custody of the child through the
Probate and Family Court. After this reunification, numerous
concerning events occurred at the father's residence: (1) the
father had been shot in May of 2018; (2) the father had been
stabbed in March of 2019; (3) the father's girlfriend, who was
the child's primary caretaker, was arrested in July of 2019
following an altercation with a neighbor that escalated to
threats of violence and the father punching a window out,
causing injuries to himself that required medical attention; (4)
the police had conducted multiple "drug raids" at the father's
apartment building, including a search of his apartment in April
3
of 2020 that led to the discovery of a small plastic baggie of
crack cocaine in his waistband, wads of cash, and drug
paraphernalia, and to the father being charged with possession
of cocaine with intent to distribute; (5) incidents of domestic
violence between the father and his girlfriend; and (6) an
incident of domestic violence between the father and his
girlfriend's son, who also lived with them.
In June of 2020, DCF removed the child from the father's
care, citing safety concerns related to potential drug
trafficking and domestic violence. The child was place again in
the second foster home, where she is cared for by two foster
parents. The judge found that the child has adjusted very well
to this living situation, and it is in the best interests of the
child to be adopted by the foster parents and continue to have
visits with the father.
The father also claims that the judge gave improper weight
to his criminal history. We disagree. Evidence of a criminal
record, "to the extent that it had a bearing on [the father's]
fitness as a parent, is germane in care and protection
proceedings." Care & Protection of Quinn, 54 Mass. App. Ct.
117, 125 (2002). The father's criminal history is replete with
charges of violence against persons, drug trafficking, and
possession of weapons, which certainly bear on the father's
4
ability to provide a safe and secure home environment for the
child.
Even though most of the charges brought against the father
did not lead to convictions, there are numerous other facts
indicating, as the judge found, that the father's unfitness is
not merely temporary, but will continue undiminished into the
foreseeable future. Over the course of DCF's attempts to
permanently reunite the child with father, the father has
refused to acknowledge the impact of his perpetration of
physical, emotional, and mental abuse against his partners; 3 has
refused to accept responsibility for the physical violence and
crimes he has perpetrated; has failed to understand how his
criminal activity and resulting "drug raids" put the child at
risk; has not had a job or taken steps to ensure he has a stable
income to provide for the child; has often been hostile to DCF
workers; has refused or not productively utilized services DCF
recommended to help ameliorate the conditions leading to the
child's removal from his custody; and has refused to engage in a
drug screen or substance abuse evaluation. 4
3 The record indicates numerous incidents of domestic violence
the father perpetrated against women. For example, while the
mother was five months pregnant with the child, the father was
arrested after she reported that the father grabbed her by the
neck and choked her until she lost consciousness because she
used his ten-dollar bag of marijuana.
4 The father claims in his brief that "the action plan tasks were
just busywork DCF gives all parents regardless of whether they
5
Moreover, the judge was appropriately concerned with the
father's inability to attend to the child's specialized medical
needs. The father did not attend any of her medical
appointments while she was living with him, does not fully
understand her current needs and issues, and has not been able
to address these in a prompt and consistent manner. "[T]he
health and safety of the child must be the paramount concern,"
Care & Protection of Walt, 478 Mass. 212, 213-214 (2017), and we
share the judge's concern that the child's health and safety
would be at risk were she to return to the father's care.
While the father has been consistent with visiting the
child and has a positive personal relationship with her, the
judge did not abuse his discretion or commit a clear error of
law in determining that these facts do not outweigh the
overwhelming amount of evidence indicating that the father is
need such tasks" and "have no bearing on his ability to parent"
the child. We disagree. The challenged tasks were related to
the safety concerns identified by DCF that led to the child's
removal and to the impact of his actions on the child's well-
being. Two of these tasks related to potential substance use
issues, which the father denied having, yet he refused to
undergo any drug screening or evaluations. However, the fact
that he was arrested for having crack cocaine on his person
while the child was present, in addition to other drug-related
arrests and searches of his home, is enough to raise a concern
of substance use. "[A] parent's substance use or misuse
'clearly is relevant to a parent's willingness, competence, and
availability to provide care, though not necessarily dispositive
of the issue.'" Adoption of Jacob, 99 Mass. App. Ct. 258, 265
(2021), quoting Care & Protection of Frank, 409 Mass. 492, 494
(1991).
6
unfit. Contrary to the father's belief, the judge did consider
the father's positive interactions and emotional bond with the
child, as these facts led to the judge concluding that it is
nonetheless in the child's best interests to permit the father
to have posttermination visitation every other month and
postadoption visitation four times per year with the child.
Decree affirmed.
By the Court (Vuono, Meade &
Walsh, JJ. 5),
Clerk
Entered: October 30, 2023.
5 The panelists are listed in order of seniority.
7