In re Adoption Talik, 17-P-50

• Citation: 92 Mass.App.Ct. 367,84 N.E.3d 889
• Decision Date: 28 July 2017
• Docket Number: No. 17-P-50,17-P-50
• Parties: ADOPTION OF TALIK.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 367

84 N.E.3d 889

ADOPTION OF TALIK.¹

No. 17-P-50

Appeals Court of Massachusetts, Suffolk..

July 28, 2017

October 4, 2017

Dennis M. Toomey for the mother.

Bryan F. Bertram, Assistant Attorney General, for Department of Children and Families.

Deborah J. Bero for the child.

Present: Green, Ditkoff, & Wendlandt, JJ.

WENDLANDT, J.

The mother appeals from a decree issued by a judge of the Juvenile Court finding her unfit to parent her son, Talik, terminating her parental rights, placing the child in the care of the Department of Children and Families (DCF), and approving DCF's plan for adoption of the child by his foster parents.² The mother argues that (1) the judge impermissibly drew an adverse inference from her failure to attend the trial; (2) the evidence of her unfitness was stale and thus could not support a finding of her unfitness by clear and convincing evidence; and (3) the pretrial placement of the child with the foster parents instead of with the child's maternal grandmother's first cousin (relative) in California was an abuse of discretion. We conclude that the judge did not err in drawing a negative inference from the mother's absence and finding that the mother was unfit, and that there was no abuse of discretion in the child's pretrial placement. Accordingly, we affirm.

1. Background. We draw on the detailed findings of fact made by the judge, which find ample support in the record. The child was born in March, 2013, and his meconium tested positive for marijuana. The mother tested positive for OxyContin

, cocaine, and opiates. The child was admitted to the neonatal intensive care unit due to high blood sugar levels (attributed to the mother's mismanagement of her diabetes during the pregnancy), a possible heart murmur, and concerns regarding his liver. During the pregnancy, the mother tested positive for marijuana at her first prenatal appointment, which occurred just over two months before the child was born. She refused toxicology screens for the remainder of her pregnancy. Between December, 2012, and the child's birth, the mother exhibited drug seeking behavior, visiting the hospital several times to seek pain medication ostensibly because she was unable to regulate her insulin levels; on one occasion, she smelled of alcohol.

Three days after the child's birth, DCF filed a care and protection petition seeking custody of the child. Both parents waived their rights to a temporary custody hearing, and the petition was allowed. Twelve days after his birth, the child was discharged to the care of his foster parents, where he has remained ever since.

After DCF took temporary custody of the child in March, 2013, DCF drafted a service plan for the mother with the goal of reunification. The plan tasked the mother with (1) attending parenting classes; (2) participating in substance abuse treatment; (3) providing toxicology screens; (4) engaging in mental health treatment and taking any prescribed medications; (5) maintaining contact with DCF; (6) making her whereabouts known to DCF; and (7) attending visits with the child. The mother attended an outpatient addiction and treatment management program in March, 2013, but was discharged from the program in May, 2013, due to her lack of attendance. She submitted two urine screens in April, 2013, both of which came back negative. Other than these efforts, the mother did not complete the service plan tasks. In addition, the mother has a long history of domestic violence with the father in front of their other children,³ and additional incidents of domestic violence were reported after DCF obtained temporary custody of the child.

In September, 2013, DCF changed the child's placement goal to adoption. The mother continued her noncompliance with DCF's service plan and has not visited the child or had any contact with DCF since March, 2014.

Shortly after the birth of the child, the relative, who resided in California, expressed interest in having the child placed with her. California Child Protective Services completed a placement study in October, 2013. The relative's home did not meet Massachusetts standards; specifically, the home had insufficient physical space available for the child in view of the number of people already living there. DCF did not place the child with the relative; instead, the child remained in the custody of his foster parents. In March, 2014, the mother filed a motion seeking a determination whether DCF's "refusal to place the ... child with [the relative] is an abuse of [DCF's] discretion ... and if [DCF] has so abused its discretion, to order [DCF] to place the child with the [relative]." The motion was denied.⁴

The trial took place over four days between December, 2014, and January, 2015. The mother had notice of the trial, and her attorney was present throughout. However, the mother herself was not present, and her counsel was not aware of her location. The judge heard testimony from social workers, expert witnesses, the father, the relative, and one of the foster parents. Closing arguments were presented on January 23, 2015, and again the mother was not present. On January 30, 2015, with the mother present, the judge issued his decision from the bench, terminating the mother's parental rights and approving DCF's plan for adoption of the child by his foster parents. The judge drew a negative inference from the mother's failure to attend and testify at trial. In January, 2016, the judge issued his findings of fact, conclusions of law, and order supporting his earlier decision terminating the mother's rights.

2. Discussion. "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 Ilian, 91 Mass. App. Ct. 727, 729, 78 N.E.3d 779 (2017), quoting from Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011). A finding of unfitness 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, 976 N.E.2d 814 (2012). "Parental unfitness must be 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, 610 N.E.2d 898 (1993).

We give substantial deference to the judge's decision to terminate parental rights "and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59, 944 N.E.2d 115. "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.’ " Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977).

a. Adverse inference. On appeal, the mother argues that the judge erred by drawing an adverse inference against her based on her absence from trial in violation of her right to due process, which she contends includes the same protection against an adverse inference that is afforded to a defendant who is absent from a criminal proceeding. We disagree.

"Custody proceedings are not criminal in nature and, accordingly, the full panoply of constitutional rights afforded criminal defendants does not apply in these cases." Custody of Two Minors, 396 Mass. 610, 616, 487 N.E.2d 1358 (1986). Instead, these are civil cases; the State acts to protect children, not to punish misbehaving parents.⁵ Ibid. Nonetheless, removal of a child from a parent is a significant deprivation and implicates fundamental and constitutionally protected interests. Accordingly, after a parent has received notice of proceedings affecting her rights in her child, we require further that the parent be represented by counsel and that the Commonwealth prove the parent unfit by clear and convincing evidence. Id. at 618, 487 N.E.2d 1358. These requirements "provide a sufficient measure of extra protection" in view of the parent's interests at stake. Ibid.

Significantly, the Supreme Judicial Court has held that an adverse inference may be drawn in a child custody case from a parent's failure to testify even though such an inference would be impermissible in a criminal trial. See id. at 617, 487 N.E.2d 1358 (permitting adverse inference in care and protection hearing where parent declines to testify based on his privilege against self-incrimination); Adoption of Nadia, 42 Mass. App. Ct. 304, 307-308, 676 N.E.2d 1165 (1997) (holding that adverse inference is permissible in case involving termination of parental rights); Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120-121, 763 N.E.2d 573 (2002) (permitting negative inference against father for failure to testify as to his fitness even though father faced parallel criminal proceeding). It follows that an adverse inference may be drawn against a parent who, despite having received notice, is absent from a child custody or termination proceeding, even though such an inference would be impermissible in a criminal matter absent affirmative evidence showing consciousness of guilt.⁶ Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child's best interests.

Importantly, the adverse inference drawn from a party's absence is not sufficient, by itself, to meet an opponent's burden of proof. "No inference can...