In re Adoption of Gillian

• Decision Date: 04 May 2005
• Docket Number: No. 04-P-1344.,04-P-1344.
• Citation: 63 Mass. App. Ct. 398,826 N.E.2d 742
• Parties: Adoption OF GILLIAN (and a companion case<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

826 N.E.2d 742

63 Mass. App. Ct. 398

Adoption OF GILLIAN (and a companion case¹).

No. 04-P-1344.

Appeals Court of Massachusetts, Middlesex.

Argued February 11, 2005.

Decided May 4, 2005.

COPYRIGHT MATERIAL OMITTED

Deborah Sirotkin Butler, Arlington, for the father.

Michael F. Kilkelly for the mother.

Brian Pariser for Department of Social Services.

Mary L. Gallant, Quincy, for the daughter.

Amy E. Valletta, Worcester, for the son.

Present: BECK, BERRY, & GRAHAM, JJ.

GRAHAM, J.

The parents appeal from decrees of the District Court dispensing with their consent to the adoption of their twelve year old daughter Gillian and their nine year old son Stephen pursuant to G.L. c. 210, § 3, and from the denial of their post-judgment motions for relief.

In her appeal, the mother chiefly challenges the ultimate finding of her unfitness as unsupported by the requisite quantum of clear and convincing evidence. The father's argument on appeal is primarily that termination of his and the mother's parental rights are not in the best interests of the children. They both contend that entry of a permanent guardianship with respect to Gillian rendered the care and protection issues, as to her, moot. The parents also allege that the judge committed error by (1) admitting in evidence certain hearsay statements of Stephen accusing the father of sexual molestation; (2) failing to provide for posttermination visitation; and (3) failing to provide them with an evidentiary hearing relative to their motion for relief from judgment. We affirm.

Procedural and factual background. We recount the relevant facts, reserving certain details for our discussion. The Department of Social Services (department) filed a care and protection petition in the District Court on September 28, 2000, alleging neglect of Gillian, who was born on August 18, 1992, and Stephen, who was born on April 1, 1995, as well as another sibling, Jake, who was born in 1990. At that point, the department already had a long history of involvement with the parents.² The mother, who was born in 1967, was abused physically and emotionally by alcoholic parents and had been in therapy for eleven years with the same therapist. As a child, she had learning disabilities and was placed in special education classes. She currently receives Social Security disability benefits for depression, anxiety, epilepsy, and posttraumatic stress disorder.

The mother exposed the children to a lengthy period of domestic violence, demonstrating an inability to protect the children from the father's abuse. She also physically abused the children. Although the mother participated in parenting classes provided by the department, and was assisted by a parenting aide, she was unable to internalize the lessons she learned.

The father, who was born in 1968, currently receives Social Security disability benefits for depression. He developed behavioral problems at age five after his father died in an industrial accident, and attended a residential school for children with behavioral problems, where he lived in a group home between 1977 and 1981. The father had been physically and emotionally abusive to the mother and the children before they were taken into custody by the department. The record discloses several acts of domestic violence by the father against the mother and the children, including incidents in which he left bruises on them by kicking and hitting them in the legs and head. These actions led to several G.L. c. 209A orders being issued against him.

Despite her abusive treatment, Gillian is a bright child with mostly minor behavioral issues. At the time of the trial, Gillian had been living with her aunt since the spring of 2001 and expressed a desire to remain there. Stephen suffers from attention deficit and hyperactivity disorder and, as a result of his abusive treatment, is emotionally fragile. In the summer of 2001, Stephen was placed at the Franciscan's Childrens Hospital for psychological evaluation and treatment. At the time of trial, he had been placed in a highly structured foster home where he was doing well. He requires extensive special education services due to his behavioral problems.

During the spring of 2001, the children's teachers complained about their behavior at school. When the children were picked up to visit the parents, they often yelled at each other, kicked the seats of the car, and threw objects. At other times they engaged in name calling, screaming, and swearing. The children were generally out of control during their visits with the mother, but well behaved during their visits with the father and well behaved for their paternal grandmother.

On the date the petition was filed, the judge awarded temporary custody of all three children³ to the department. The parents waived their rights to a seventy-two hour hearing on October 2, 2000. On August 21, 2001, the children's paternal aunt filed a petition pursuant to G.L. c. 201, § 1, seeking appointment as Gillian's guardian. Temporary custody of Gillian was awarded to her under the supervision of the department.

A joint trial on the guardianship care and protection petitions ended on February 14, 2002, and on May 3, 2002, the judge allowed the aunt's petition for permanent guardianship of Gillian. She also stated the following: "I have enough evidence that's credible and clear and convincing to terminate parental rights with regard to both Gillian and Stephen. I am not going to enter that decree today. However, I am going to note on the record that there is sufficient evidence." She made it clear that, while she had considered terminating parental rights in regard to Gillian, she had decided not to do so at that point. The judge noted that, although her usual practice was to dismiss the care and protection petition after the appointment of a permanent guardian, she chose not to do so in this matter "because there was an ongoing issue of law that was not resolved by the guardianship, to wit, the termination of parental rights." It is unclear whether there was a final judgment as to custody in the care and protection case at that point. See note 4, infra.

On December 20, 2002, the judge issued written findings of fact and conclusions of law. She found the parents unfit, committed Gillian and Stephen to the custody of the department, and terminated the mother's and father's parental rights with respect to Gillian. The judge further determined that there was sufficient evidence to terminate parental rights as to Stephen. She declined to do so, however, because the department's permanent plan for Stephen needed additional work. The decrees as to Gillian were appealed by the mother on January 2, 2003, and by the father on January 11, 2003.

On May 22, 2003, the judge, satisfied with the department's permanent plan for Stephen, terminated the parental rights of both parents with respect to Stephen. The parents filed notices of appeal that same day. Thereafter, on diverse dates, the parents filed the following motions: motion to dismiss the care and protection petition relative to Gillian; motion to reopen the evidence; motion for posttermination visitation; motion for stay of judgment; and motion for relief from judgment. These motions were all denied by the judge in her January 26, 2004, decision.⁴

Discussion. 1. Termination of parental rights. In termination proceedings, judges must decide whether a parent is capable of assuming the duties and responsibilities expected of a parent and if the termination of parental rights would be in the child's best interests.⁵ Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993). The judge is required to "articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [the judge] has given the evidence close attention." Adoption of Nancy, 443 Mass. 512, 514-515, 822 N.E.2d 1179 (2005). See Adoption of Frederick, 405 Mass. 1, 5, 537 N.E.2d 1208 (1989). Such detailed findings are required because the termination of parental rights is an "extreme step." Ibid., quoting from Petition of Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984). Subsidiary findings must be supported by a preponderance of the evidence, Care & Protection of Laura, 414 Mass. 788, 793, 610 N.E.2d 934 (1993), and, unless those findings are clearly erroneous, they will not be disturbed. Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). "We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence." Adoption of Nancy, supra at 515, 822 N.E.2d 1179.

The standard for termination of parental rights involves a two step analysis: first, a determination that a parent is unfit, and second, a determination that termination of the parental rights is in the best interests of the child. Adoption of Ramona, 61 Mass.App.Ct. 260, 265, 809 N.E.2d 547 (2004). The analysis is similar, but "reflect different degrees of emphasis on the same factors." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641, 328 N.E.2d 854 (1975). The "critical inquiry" is the finding of parental unfitness by clear and convincing evidence. Adoption of Frederick, supra at 4, 537 N.E.2d 1208.

Once the judge determines that a parent is unfit, she must then ascertain "whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. at 515, 822 N.E.2d 1179. In deciding whether the best interests of the child will be served by issuing a decree terminating parental rights, a judge "shall consider the ability, capacity, fitness and readiness of the child's parents ... and shall also consider the plan proposed by the department or other agency initiating the petition." G.L. 210,...