In re Adoption Garret

• Decision Date: 04 October 2017
• Docket Number: 17–P–79
• Citation: 92 Mass.App.Ct. 664,91 N.E.3d 1139
• Parties: ADOPTION OF GARRET (and two companion cases ).
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 664

91 N.E.3d 1139

ADOPTION OF GARRET (and two companion cases ¹ ).

17–P–79

Appeals Court of Massachusetts, Hampden..

October 4, 2017

January 22, 2018

Katrina McCusker Rusteika for the mother.

Madeline Weaver Blanchette for Garret & another.

Briana Rose Cummings for Susan.

Jeremy Bayless for Department of Children and Families.

William B. Tobey, for the father, was present but did not argue.

Present: Agnes, Sacks, & Lemire, JJ.

AGNES, J.

This termination of parental rights case involves a blended family consisting of seven individuals: the mother, the father, and their child, Susan; Garret and Elizabeth, the father's children from a prior relationship; and Peter and Michael, the mother's children from her prior marriage. On August 2, 2012, the Department of Children and Families (DCF) filed two petitions pursuant to G. L. c. 119, § 24, in the Juvenile Court alleging that all five children were in need of care and protection. A judge granted DCF temporary custody of Elizabeth that same day. DCF was subsequently granted temporary custody of the remaining four children on August 21, 2012. Both the mother and the father waived their rights to a temporary custody hearing on September 10, 2012. The care and protection petitions were later consolidated.

The termination trial occurred over the course of eleven days in 2014; twenty-three witnesses testified and over fifty exhibits were introduced in evidence. The judge subsequently made 913 written findings of fact and seventy-one conclusions of law, including conclusions regarding the fourteen factors enumerated in G. L. c. 210, § 3(c ), with respect to each parent.² As relevant to this appeal, the judge found that the mother and the father were unfit to parent Susan and their other respective children both at the time of trial and into the future.³ All of the children were adjudicated in need of care and protection and were committed to the care of DCF pursuant to G. L. c. 119, § 26. Pursuant to G. L. c. 210, § 3, the judge terminated the mother's parental rights to Susan and Michael,⁴ and the father's parental rights to Susan, Garret, and Elizabeth.^{5 ,6} The judge found that it was in Garret's best interests to be placed in the custody of his maternal grandmother. After concluding that the mother (i.e., Garret's stepmother) was not Garret's de facto parent, the judge further determined that visitation between Garret and the mother should be left to the discretion of DCF, or any adoptive parent or guardian, "consistent with the best interests of the child." The judge declined to order visitation between Garret and the father on the basis that they did not have a significant relationship or bond. No order was issued for posttermination sibling visitation.

The mother, the father, Garret, Michael, and Susan raise a variety of issues on appeal, which we address in detail below. For the reasons that follow, we conclude that the judge's findings were supported by the evidence before her, that she properly applied the law to the facts found, and that she did not abuse her discretion with regard to fitness, termination, custody, and visitation. We therefore affirm the decrees.

Background. We summarize the relevant facts as found by the judge, reserving some facts for later discussion.⁷

1. Familial relationship of the parties. a. Family one. While living in New York, the father and Harriet entered into a relationship at some point in 1999. The father was eighteen years old at the time, and Harriet was thirteen years old. Harriet became pregnant shortly after the relationship began, giving birth to Garret in the summer of 2000. Harriet later gave birth to the couple's second child, Elizabeth, in September, 2001.

During the course of their relationship, the father committed multiple acts of violence against Harriet. The father did not live with Harriet and the children, did not support them financially, and only visited the children when Harriet requested that he do so. The relationship between the father and Harriet ended in 2003. Garret and Elizabeth continued to live with Harriet until 2010, when New York's Administration for Children's Services removed the children from Harriet's custody, citing her daily marijuana use, lack of suitable housing, and a history of domestic violence between Harriet and her partners.

b. Family two. While living in New York, the mother and Kevin began a relationship in 1996. Their first child, Peter, was born in the winter of 1998. The mother and Kevin married in 1999, when the mother was sixteen years old. The couple had another child, Michael, in the winter of 2003.

The couple's relationship was marred by Kevin's physical abuse of the mother, which occasionally took place in front of Peter and Michael. At some point in 2004 or 2005, Kevin moved to Florida, where he currently resides. The mother petitioned for custody of Peter and Michael in April, 2007, and the petition was allowed on May 17, 2007. The mother and Kevin divorced in 2010. Kevin did not see Peter or Michael again until they were placed in DCF custody,⁸ although he did attempt to contact them after he separated from the mother.

c. Blended family. The mother and the father entered into a relationship in the summer of 2004, when the mother was twenty-one years old and the father was twenty-three years old. That same year, the mother and the father moved in together, along with the mother's children, Peter and Michael. The mother's and the father's child, Susan, was born in April, 2009. However, Garret and Elizabeth, the father's older children, were living with their mother, Harriet, and their maternal grandmother, until the father received custody of both children in the summer of 2010.

The mother and the father married on February 14, 2011. On February 16, 2011, the mother and the father, along with the five children, moved to Massachusetts. The trial judge found that this move was motivated in part by the father's desire to remove Garret and Elizabeth from the presence of their mother, Harriet, and their maternal grandmother, and in part by the mother's desire to hide from Kevin. With the exception of Garret, who was sent to live in New York with his paternal grandmother from October, 2011, to July, 2012, the blended family lived together in a three-bedroom apartment until August, 2012, when the children were placed in DCF custody.

Although the mother filed for divorce from the father prior to the trial in this matter, the judge found that the relationship between the mother and the father continued unabated throughout the course of trial. A judgment of divorce nisi between the mother and father entered in the Probate and Family Court in August, 2017.

2. Abuse of Elizabeth. a. Factual circumstances. On August 1, 2012, Elizabeth, who was then eleven years old, ran away from home. She was ultimately transported to a local hospital after she was found with several injuries. Upon her arrival at the hospital, a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of all five children and abuse of Elizabeth, was screened in for investigation.⁹ A DCF investigator met with Elizabeth at the hospital and observed numerous injuries on her body. When questioned about the source of her injuries, Elizabeth indicated that they were inflicted by the father.

At the hospital, Elizabeth was examined by a physician, who was qualified at trial as an expert in pediatrics and child abuse medical assessments. The physician's examination revealed that Elizabeth had a number of traumatic injuries at various stages of healing, including a broken arm. The physician determined that these injuries likely resulted from abuse. As a result, Elizabeth was placed in a foster home on August 2, 2012. Garret, Peter, Michael, and Susan were removed from the mother's and the father's care on August 21, 2012, after the mother and the father were arrested and charged with crimes arising from the abuse of Elizabeth.

On April 27, 2015, the father pleaded guilty to charges arising from his abuse of Elizabeth.¹⁰ The father was sentenced to from five to seven years in State prison, followed by a probationary term of six years to be served from and after his incarceration. On that same date, the mother pleaded guilty to assault and battery and wantonly permitting the endangerment of a child.¹¹ The mother was sentenced to five years of probation.

At trial, Elizabeth testified at length about the physical and verbal abuse that she was subjected to by both the mother and the father.¹² Other evidence, including the testimony of the physician who treated Elizabeth upon her arrival at the hospital, two court investigator reports, and the testimony of Elizabeth's foster mother, provided the judge with a detailed account of Elizabeth's extensive injuries. While abundant evidence regarding the abuse of Elizabeth was presented at trial, the evidence was in conflict as to whether any of the four other children living with the mother and the father were physically abused.¹³

b. The mother's testimony at trial. At trial, the mother consistently denied that she had knowledge of or participated in the abuse of Elizabeth. The mother denied ever seeing the father hit Elizabeth and stated that she was unaware of the extensive injuries sustained by Elizabeth beyond two "cat scratches." When questioned about photographs of Elizabeth's injuries that she was shown prior to trial, the mother stated that she believed that Elizabeth was abused, but denied any knowledge of the abuse and indicated that she never saw the father being abusive toward Elizabeth. The judge did not credit any of this testimony. Instead, she concluded that the "[mother] was a participant in [Elizabeth's] abuse, and that she conspired with [the father] to intentionally deny [Elizabeth] medical treatment."

The mother also testified that her relationship with the father ended after she saw photographs of Elizabeth's wounds

and heard the allegations of the...