In re Cadence

• Decision Date: 24 January 2012
• Docket Number: No. 11–P–721.,11–P–721.
• Citation: 961 N.E.2d 123,81 Mass.App.Ct. 162
• Parties: ADOPTION OF CADENCE.1
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 162

961 N.E.2d 123

ADOPTION OF CADENCE.1

No. 11–P–721.

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 13, 2011.Decided Jan. 24, 2012.

Shelli C. Hamer, Whitinsville, for the mother.

Daniel R. Katz for the father.

Robert L. Quinan, Jr., Assistant Attorney General, for Department of Children & Families.Margaret G. Barmack for the child.

Present: GRAHAM, RUBIN, & WOLOHOJIAN, JJ.

GRAHAM, J.

The parents of Cadence appeal from decrees of the Juvenile Court that, among other things, terminated their parental rights to consent to adoption, guardianship, or other custody disposition concerning their daughter Cadence. At the proceedings to adjudicate care and protection of Cadence, the Juvenile Court judge rejected the permanency plan put forward by the Department of Children and Families (department), which would have established a coguardianship by Cadence's great-uncle, Mark, and his daughter, Amanda. The judge instead ordered a plan of adoption that named Amanda as the sole adoptive parent, which none of the parties advocated at trial.

In his appeal, the father argues that the judge erred in failing to make specific and detailed findings in support of her conclusion that termination of his parental rights was in Cadence's best interests; in denying him posttermination visitation; and in ordering a plan of adoption without complying with the requirement of G.L. c. 119, § 26( b )(2)(i), that a home study of the potential custodian be conducted.

The mother appeals only that part of the decree ordering a plan of adoption. The mother argues that the judge lacked authority to order adoption when none of the parties put forward such a disposition; that, in considering adoption, the judge considered an issue not properly before her; that the parties were denied due process of law in the proceedings below; that the judge abused her discretion in ordering a plan of adoption based upon insufficient evidence that Amanda was willing and able to assume responsibility as Cadence's adoptive parent; and that the judge failed to comply with the requirement of G.L. c. 119, § 26( b )(2)(i), that a home study of the potential custodian be conducted.

The department and Cadence disagree with the father's contentions regarding the judge's termination of his rights and denial of posttermination visitation, but join the mother and father in opposing the judge's order of adoption.²

We vacate the plan for adoption of Cadence by Amanda and remand the case for further proceedings to determine an appropriate placement option for Cadence. In all other respects the decrees are affirmed.

1. Procedural and factual background. Cadence was born in October, 2008. Both Cadence's parents are habitual users of heroin and cocaine, both have been homeless, and both have extensive criminal histories. As a result of her mother's drug use, when Cadence was born she suffered from the effects of congenital drug addiction. Two weeks after Cadence's birth, the department filed a petition under G.L. c. 119, § 26, for temporary custody on the grounds that the mother and father had neglected Cadence. Cadence was placed in the custody of the department on November 14, 2008. The mother and the father waived their rights to seventy-two-hour hearings and temporary custody remained with the department. Cadence was hospitalized and then placed in a medical foster home equipped to treat Cadence's drug withdrawal.

The mother was arrested when she appeared at the seventy-two hour hearing, and incarcerated at the Dartmouth house of correction, where she attended a parenting education class, a bible study group, and an addiction support group. During her incarceration, she also obtained her GED. After the mother's release, she moved directly to Nazareth House, a transitional shelter for mothers and children. On the department's recommendation, and subject to an order prohibiting her from using drugs or having contact with father, a judge of the Juvenile Court, who was also the trial judge, then awarded the mother temporary custody of Cadence on September 28, 2009.

In January of 2010, pursuant to an anonymous report of abuse or neglect made pursuant to G.L. c. 119, § 51A, a department social worker learned that the mother was no longer residing at Nazareth House, had been in regular contact with the father, was using heroin, and had been arrested for prostitution. The department then moved for and received emergency custody of Cadence on February 3, 2010. Cadence was thereafter placed in foster care, where she remained for approximately three weeks.

Upon learning that Cadence was in foster care, the Stewart family, who are the mother's relatives, requested that she be placed in their home. After a home study of the Stewart family was conducted on February 25, 2010, Cadence was placed with them, and they have cared for her since. The Stewart family consists of parents Mark and Grace as well as their daughter Amanda. Mark works as a project director and his wife Grace works as a public school special needs teacher. Amanda has completed college and works at a daycare center, but lives at home and is financially dependent on her parents. Cadence has formed strong bonds with the Stewart family, especially Amanda, and looks to them to meet her needs.

Hearings on the merits were held on June 28 and on August 11 and 13, 2010. Under the original care and protection petition, the department sought the termination of the parents' rights and advocated coguardianship of Cadence by Mark and Amanda. The parents opposed the termination of their rights, and the father sought posttermination visitation with Cadence. The parties presented evidence on parental fitness and on the merits of the permanency plan. ³ On the latter question, Mark testified that he was willing to become Cadence's guardian, but, given his age, did not want to adopt her, and Amanda testified that she was willing to become Cadence's guardian, but did not testify that she was ready to adopt.

On September 13, 2011, the judge ordered the issuance of decrees terminating the mother's and father's parental rights. The judge also denied the father posttermination visitation, finding that visitation was not in Cadence's best interests because there were no strong emotional bonds between her and the father. Despite the fact that all parties supported coguardianship by Mark and Amanda as a placement option for Cadence, the judge rejected the coguardianship plan and instead approved adoption by Amanda alone, citing general concerns about the permanency and stability of guardianship arrangements. ⁴ Both parents appealed.

2. Standard of review. In recognition of the trial judge's superior position to evaluate witness credibility and weigh the evidence, we review her findings with substantial deference and will not disturb those findings unless clearly erroneous. Adoption of Quentin, 424 Mass. 882, 886, 678 N.E.2d 1325 (1997). In addition, we defer to the judge's determinations regarding the best interests of the child, and reverse only where there is a clear error of law or abuse of discretion. See Adoption of Hugo, 428 Mass. 219, 225, 700 N.E.2d 516 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999).

3. Discussion. a. Termination of parental rights and posttermination visitation. Pursuant to G.L. c. 119, § 24, a person concerned about a child's welfare may file a petition in the Juvenile Court to adjudicate care and protection of that child. A petition is warranted when the child “(a) is without necessary and proper physical or educational care and discipline; (b) is growing up under conditions or circumstances damaging to the child's sound character development; (c) lacks proper attention of the parent, guardian with care and custody or custodian; or (d) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention.” G.L. c. 119, § 24, as amended through St.2008, c. 176, § 84. Following emergency custody and seventy-two-hour hearings, a judge hears evidence on the merits from the petitioner and the parents regarding the parents' alleged misconduct toward the child pursuant to G.L. c. 119, § 26, as amended through St.2008, c. 176, § 84. The Juvenile Court judge has authority under § 26( b ) of that statute to adjudge the child to be in need of care and protection; to decide on an appropriate placement option for the child; and, if necessary, pursuant to c. 119, § 26( b )(4), terminate the parents' rights to receive notice of or give consent to an adoption, guardianship, or other custody disposition concerning the child in accordance with G.L. c. 210, § 3.

When deciding whether to terminate a parent's rights, the judge should evaluate whether the parent is “able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the child[ ].” Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993). “Because the termination of parental rights is an ‘extreme step,’ ... [a] judge [must] articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that she has given the evidence close attention.” Adoption of Nancy, 443 Mass. 512, 514–515, 822 N.E.2d 1179 (2005), quoting from Adoption of Frederick, 405 Mass. 1, 5, 537 N.E.2d 1208 (1989).

Before terminating the parents' rights, the judge must engage in a two-part analysis. Adoption of Nancy, 443 Mass. at 515, 822 N.E.2d 1179. First, the judge must find that the parent is presently unfit. See Adoption of Paula, 420 Mass. 716, 731, 651 N.E.2d 1222 (1995). In cases where the judge seeks to dispense with parental consent to adoption, the judge is required to consider the factors enumerated in G.L. c. 210, § 3, in assessing parental unfitness. Current parental unfitness must be proved...