In re Jacob
| Decision Date | 01 March 2021 |
| Docket Number | No. 20-P-4,20-P-4 |
| Citation | 99 Mass.App.Ct. 258,166 N.E.3d 475 |
| Parties | ADOPTION OF JACOB. |
| Court | Appeals Court of Massachusetts |
Cara M. Cheyette, for the mother.
William A. Comeau, for the father.
Andrew Don, Scituate, for the grandparents.
Charles G. Levin, Boston, for the child.
Brian Pariser, for Department of Children and Families.
Present: Massing, Singh, & Grant, JJ.
This multiparty appeal arises from a petition for care and protection that was tried in the Juvenile Court together with a petition for guardianship. The guardianship petitioners, the child's paternal grandparents (grandparents), had temporary custody of the child when the trial began. The judge found the child's mother and father to be unfit and that the child's best interests would be served by terminating their parental rights and allowing the Department of Children and Families (department) to go forward with its plan for adoption by recruitment, rather than permitting the child to remain with the grandparents. The primary issues on appeal concern the judge's consideration of domestic violence in assessing the mother's fitness, the grandparents' exclusion from portions of the trial, and the suitability of the department's permanency plan. We affirm.
Background. Even before the child's birth, the mother and the father, both individually and as a couple, faced significant issues that would affect their fitness as parents. The mother struggled with her mental health, having been diagnosed with bipolar disorder
, attention deficit hyperactivity disorder, posttraumatic stress disorder resulting from a sexual assault and robbery, borderline personality disorder, and severe generalized anxiety disorder. Although she engaged in some mental health treatment, including counseling, she frequently misused her prescribed medications, and she "self-medicated" with alcohol and nonprescribed substances, both while she was pregnant and throughout the pendency of the care and protection petition.
The father faced similar mental health challenges, exacerbated by a history of physical injuries from his participation in extreme sports and numerous motor vehicle accidents. To treat both his mental and physical conditions, the father was prescribed medication, including opiates, which he misused. He also shared medications with the mother. The record is replete with evidence of the father's manic behavior
and disorganized thinking, suggesting undiagnosed mental health conditions. Both parents had difficulty complying with the department's family action plan tasks.
In addition, the couple's relationship was fraught with conflict. The father abused the mother verbally, emotionally, and, on a few occasions, physically. The mother made excuses for the father's conduct and was unwilling or unable to separate from him. The grandparents, for their part, minimized the father's abuse of the mother and the extent of his mental health problems, failing to recognize the danger these issues posed to the child's safety and well-being.
The child, Jacob, was born in May 2017 with a low birthweight and tetrahydrocannabinol in his urine. The mother had tested positive for morphine
and Klonopin during her pregnancy.2 Although Jacob was discharged into his parents' custody, the hospital filed a report pursuant to G. L. c. 119, § 51A, citing concerns about Jacob's substance exposure. The department conducted a home visit one day after Jacob was discharged from the hospital. Later that same day, the department sought emergency temporary custody of Jacob after the parents arrived, apparently intoxicated, over an hour late to an appointment with Jacob's pediatrician. Jacob, who was seven days old, was removed from his parents' custody and placed temporarily in the custody of the department. The grandparents applied to serve as Jacob's foster parents in June 2017, but they did not meet eligibility requirements because they kept unsecured firearms in their home. After Jacob spent six months in foster care, the judge awarded temporary custody to the grandparents pursuant to a stipulated third-party conditional custody agreement. The department soon changed its permanency goal from reunification with the parents to adoption.
Jacob was nearly sixteen months old when the trial on the care and protection petition began. The grandparents filed a guardianship petition shortly before the trial. The two matters were tried together, but not formally consolidated, on sixteen nonconsecutive days over a four-month period. On the third day of trial, after concerns were raised about the grandfather's conduct in the court room, the judge allowed the department's motion to sequester witnesses, thereby excluding the grandparents from the care and protection proceedings. They were to be allowed back into the court room for proceedings on their guardianship petition.3 Evidence elicited early in the trial suggested that the grandparents had violated the terms of the conditional custody agreement by permitting the father and the mother to have unauthorized contact with Jacob. As a result, the department moved, midtrial, to revoke the grandparents' custody. The judge took no action on the motion at the time of trial but modified the custody order to require that all visits take place at a visitation center.4
On March 26, 2019, the judge found that both the mother and the father were unfit, terminated their parental rights, adjudicated Jacob in need of care and protection, and committed him to the custody of the department. The judge further found the department's plan of adoption by recruitment to be in Jacob's best interests, rejecting the competing plans proposed by the mother, the father, and Jacob, all of which involved Jacob remaining in the grandparents' care. The judge dismissed the grandparents' guardianship petition and revoked their temporary custody of Jacob. These appeals followed.
Discussion. The appellants and arguments in this appeal are numerous. The mother contends that the judge erred in finding her unfit and terminating her parental rights based on evidence of domestic violence, substance use, and mental health issues. The grandparents, joined by the father, the mother, and Jacob, appeal from the denial of their guardianship petition, contending that the judge erred in excluding them from the court room during portions of the proceedings and that their exclusion requires a new trial without a showing of prejudice.5 The father and Jacob argue that the department's proposed plan of adoption by recruitment was inadequate, and that the judge erred in rejecting their competing plans of guardianship or adoption by the grandparents.6
1. Termination of the mother's parental rights.7 Before terminating parental rights, a judge must find that a parent is unfit to care for the child and, consequently, that the child is in need of care and protection. See Adoption of Virgil., 93 Mass. App. Ct. 298, 301, 102 N.E.3d 1009 (2018). The judge's fitness determination must be supported by "specific and detailed" findings that demonstrate parental unfitness clearly and convincingly. Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). " ‘[P]arental unfitness’ means ‘grievous shortcomings or handicaps’ that put the child's welfare ‘much at hazard.’ " Adoption of Katharine, 42 Mass. App. Ct. 25, 28, 674 N.E.2d 256 (1997), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975). In ascertaining parental fitness, the judge "may consider past conduct to predict future ability and performance." Adoption of Katharine, supra at 32–33, 674 N.E.2d 256.
a. Domestic violence. Domestic violence may imperil a child's physical safety and psychological development. See Custody of Vaughn, 422 Mass. 590, 599, 664 N.E.2d 434 (1996) ; Adoption of Ramon, 41 Mass. App. Ct. 709, 714, 672 N.E.2d 574 (1996). Accordingly, evidence of domestic violence is relevant to a judge's determination of parental fitness. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139, 807 N.E.2d 237 (2004). Where the evidence raises concerns regarding domestic violence, a judge must "make detailed and comprehensive findings on domestic violence when making custody determinations." Id., citing Custody of Vaughn, supra at 599, 664 N.E.2d 434.
The judge found that domestic violence "permeated" the mother's relationship with the father. The mother asserts that the father's behavior was not sufficiently severe to factor into the judge's consideration of her fitness as a parent, particularly if viewed under the standards that apply to evidence of domestic violence in private custody disputes.
In private child custody disputes, the rights of the parents are, "in the absence of misconduct, ... held to be equal." G. L. c. 208, § 31. The determination whether to award shared legal or physical custody, or whether to give one parent sole legal or physical custody, thus turns entirely on "the happiness and welfare of the children." Id. There is "no presumption either in favor of or against shared" custody, id. -- unless the judge finds by a preponderance of the evidence that one parent has engaged in "a pattern of abuse," or a single "serious incident of abuse,"8 in which case a rebuttable presumption against granting custody to the abusive parent arises. G. L. c. 208, § 31A. See Malachi M. v. Quintina Q., 483 Mass. 725, 737-738, 136 N.E.3d 704 (2019). Although the Legislature has not seen fit to superimpose the procedures and presumptions of § 31A on care and protection or termination of parental rights proceedings, the mother suggests that this court should do so -- and hold that the evidence of domestic violence in this case was insufficient to create a presumption against custody under G. L. c. 208, § 31A. We decline the invitation.
Different standards apply to private custody disputes than apply to State-involved custody...
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