Adoption of Rico

889 N.E.2d 974, 72 Mass. App. Ct. 214, 2008 Mass. App. LEXIS 729
CourtMassachusetts Appeals Court
DecidedJuly 11, 2008
DocketNo. 07-P-1883
StatusPublished
Cited by7 cases

This text of 889 N.E.2d 974 (Adoption of Rico) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of Rico, 889 N.E.2d 974, 72 Mass. App. Ct. 214, 2008 Mass. App. LEXIS 729 (Mass. Ct. App. 2008).

Opinion

Wolohojian, J.

After a trial that continued over thirteen days, a Juvenile Court judge issued a lengthy, detailed decision finding unfit the mother and two of the fathers of the five children who were the subject of the case; terminating parental rights, [215]*215pursuant to G. L. c. 210, § 3; and approving, but not mandating, parental and sibling postadoption visitation. Only one of the fathers and his biological son, Rico, have appealed. The father appeals the finding that he is unfit and the visitation order; Rico appeals the visitation order only.

Factual background. The factual findings by the Juvenile Court judge are detailed and amply supported by the evidence. We recite here only a summary of those findings pertaining directly to the father and Rico. The Department of Social Services (DSS) first learned about the family in November, 1998, when Mercy Hospital filed a G. L. c. 119, § 51 A, report because the mother had twice screened positive for cocaine during the pregnancy with her third child. DSS closed the case after investigation when it found no evidence of alcohol abuse, domestic violence, or further drug use.

The family next came to DSS’s attention in May, 2000, as a result of an emergency § 51A report made in connection with the accidental shooting of Rico’s younger sister, Felicia,2 who was eighteen months old at the time. That report was supported by a G. L. c. 119, § 5IB, investigation. Felicia was accidentally shot when the father was cleaning one of several guns stored in the apartment.3 Nine firearms were found in the apartment by the police, including a stolen gun containing live ammunition that was stored under the bed upon which Felicia had been sleeping at the time she was shot.4 In addition to the firearms, police also found ammunition, a large pit bull terrier, and a “fortified” door.5 The police informed DSS that the family’s apartment had been under surveillance by the narcotics bureau, which suspected the father of being a drag dealer.

Even before the shooting, things were far from ideal in the household. The father had been dealing drugs. The father had [216]*216been having a sexual affair for a few years with a seventeen year old neighbor. That relationship was a source of tension and distress in the family, in part because it was known to the children, who witnessed confrontations (including physical fights) between their mother and the neighbor. The children had not been uniformly immunized and apparently were not regularly seen by a pediatrician.

After the shooting, the children were immediately removed from the parents’ care. Rico was three at the time. About one month after the children were removed, the apartment was raided and the father and mother were charged with possession of a class A substance and possession with intent to distribute a class A substance. The father was convicted6 and sentenced to from four to six years due to the shooting of Felicia and was convicted of distribution of a class A substance (heroin) and a class A substance (cocaine) and given sentence of eighteen months and one day.

When first incarcerated, the father did not participate in any of the recommended programs available to him in prison, and he fought with other inmates, which resulted in his being placed in a higher security facility. But things improved over time; the father became a better prisoner and took courses7 required on his service plan. Since his release in July, 2005, however, the father has not participated in any of the programs required by his service plan. He has refused to sign his plan and has not participated “in any services that would assist him in reunification with [Rico].” The father’s domestic arrangement is murky. The father denied at trial that he was involved in a relationship with Rico’s mother; but his parole officer testified that he has seen women’s clothing at the father’s apartment and that the father told him that he was living with Rico’s mother and that she was his wife.8

The only service the father has participated in since his release from prison is visiting Rico, which he has done consistently. [217]*217Although there is evidence of the father’s affection for Rico, he has little day-to-day knowledge about his son: at the time of trial, he did not know what grade Rico was in, how he was doing in school, or whether he has special educational needs. He knew, however, that Rico was interested in sports.

For a variety of reasons, Rico has not been in a stable placement since he was removed from his biological parents. At oral argument, counsel represented that Rico is currently placed with a preadoptive family (not his first) and receiving monthly visits with the father. All involved agree that Rico has a strong bond with the father and enjoys his visits with him.

Termination of parental rights. Parental unfitness to provide for the welfare and best interests of a child under G. L. c. 210, § 3, must be proved by clear and convincing evidence. Adoption of Don, 435 Mass. 158, 164-165 (2001). Subsidiary findings must be supported by a preponderance of the evidence, and those findings will not be disturbed unless clearly erroneous. Ibid. 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 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

We consider the judge’s finding of the father’s unfitness supported by clear and convincing evidence and her subsidiary findings amply supported by the record. Although the evidence demonstrates an undeniable and strong emotional bond between Rico and the father, and the father has a commendable record of regular visitation both while incarcerated and since his release, he is in no position to parent Rico. As of the time of trial, the father continued to have limited — if any — understanding of the significance or seriousness of the environment of violence in the home he had provided to his children. He demonstrated little understanding of the reasons why the children had been initially removed. He continued to minimize his role in and responsibility for Felicia’s shooting. His domestic situation since his release from prison was unclear, and not frankly described to his parole officer. Apart from visiting Rico, he has met none of the require[218]*218ments of his service plans, including attending parenting or anger management programs. In these circumstances, there was no error in terminating the father’s parental rights.

Visitation. In that section of her decision entitled “Adjudication, Commitment and Order to Issue Decrees,” the judge “approve[d] of post-adoption contact with the known parents as long as it is deemed appropriate by the Department and the adoptive families and it remains in the best interests of the children.” With respect to sibling visitation, the judge similarly “approve[d] of sibling visitation as long as it is deemed appropriate by the Department and the adoptive families and it remains in the best interests of the children.” The judge did not order a specific schedule or number of visits.

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Cite This Page — Counsel Stack

Bluebook (online)
889 N.E.2d 974, 72 Mass. App. Ct. 214, 2008 Mass. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-rico-massappct-2008.