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17-P-50 Appeals Court
ADOPTION OF TALIK.1
No. 17-P-50.
Suffolk. July 28, 2017. - October 4, 2017.
Present: Green, Ditkoff, & Wendlandt, JJ.
Adoption, Care and protection, Dispensing with parent's consent. Parent and Child, Dispensing with parent's consent to adoption. Minor, Care and protection. Practice, Civil, Care and protection proceeding. Evidence, Inference.
Petition filed in the Suffolk County Division of the Juvenile Court Department on March 6, 2013.
The case was heard by Peter M. Coyne, J.
Dennis M. Toomey for the mother. Bryan F. Bertram, Assistant Attorney General, for Department of Children and Families. Deborah J. Bero for the child.
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
1 A pseudonym. 2
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
2 The judge also terminated the father's rights. The father appealed, but the judge allowed a motion to dismiss his appeal, an order from which the father did not appeal. 3
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 4
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
3 The other children are not involved in these proceedings. 5
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
4 The mother also supported the relative as the adoptive parent of the child in the event that her rights were terminated. 6
child." Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017),
quoting from Adoption of Ilona, 459 Mass. 53, 59 (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 (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 (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. "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).
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 7
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 (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.
5 Because of the civil nature of these proceedings, certain constitutional rights attaching in criminal proceedings simply do not apply. Custody of Two Minors, 396 Mass. at 616-617. See e.g., Custody of a Minor, 375 Mass. 733, 746 (1978) (double jeopardy inapplicable); Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 592-593 (1981) (findings not required to be "beyond a reasonable doubt" standard of proof); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 384 Mass. 707, 710-711 (1981) (exclusionary rule inapplicable); Adoption of Don, 435 Mass. 158, 169 (2001) (right to face-to-face confrontation not required); Adoption of John, 53 Mass. App. Ct. 431, 435 (2001) (colloquy similar to that required for plea agreements in criminal cases is not required when parent enters into agreement for judgment). 8
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
(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 (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 (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
6 See Commonwealth v. Hightower, 400 Mass. 267, 269 (1987) (defendant's absence alone could not be used as evidence of consciousness of guilt without any additional evidence that defendant's nonappearance was motivated by choice to avoid trial); Commonwealth v. Kane, 19 Mass. App. Ct. 129, 137 (1984) (absence alone is not sufficient to warrant negative inference 9
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 be drawn . . . unless a case
adverse to the interests of the party affected is presented so
that failure of a party to testify would be a fair subject of
comment." Custody of Two Minors, 396 Mass. at 616. See Singh
v. Capuano, 468 Mass. 328, 333-334 (2014) (defendant's failure
to testify cannot be used to justify issuance of abuse
prevention order until case is presented on other evidence).
This "provides extra protection to parents." Adoption of Nadia,
42 Mass. App. Ct. at 308.
Further, a trial judge has discretion to determine whether
to draw an adverse inference from a parent's absence. See
Singh, 468 Mass. at 333 ("It is well settled that a fact finder
may, but is not required to, draw an inference adverse to the
nontestifying defendant . . ."). In determining whether to
exercise that discretion, "the judge as fact finder" is to
without facts in record supporting adverse inference); Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 637-640 (2003) (defendant's midtrial absence alone did not support consciousness of guilt jury instruction). 10
consider whether such an inference is "fair and reasonable based
on all the circumstances and evidence before" her. Id. at 334.
On appeal, we review such decisions for abuse of discretion.
See id. at 333-334.
In the present case, we discern no such abuse. The judge
inquired into the reasons for the mother's absence. The mother
had not been involved with the child for at least nine months
prior to the trial. The last time that the mother contacted DCF
was in March, 2014. At a pretrial hearing, the judge asked the
mother's counsel if he had had recent communication with his
client and counsel responded, "I have not spoken to my client in
some time." Again, at the start of the trial the judge asked
the mother's counsel if he had submitted a witness list.
Counsel responded, "I haven't had any contact with my client
since I was directed to request placement of the child in
California." The mother did not attend any of the trial days,
attending only on the day the judge announced his decision from
the bench. Even then, she offered no explanation for her
absence and made no motion to reopen the evidence; instead, she
was silent. The mother makes no claim that her absence was
occasioned by causes beyond her control. Under the
circumstances, it was not an abuse of discretion for the judge
to draw an inference adverse to the mother. In any event, as
set forth below, the adverse inference drawn by the judge from 11
the mother's absence at trial was but one of the many factors he
considered. See Adoption of Cecily, 83 Mass. App. Ct. 719, 727
(2013).
b. Unfitness. The mother argues that the judge's findings
are insufficient to establish the mother's unfitness by clear
and convincing evidence because, although she does not dispute
any of the factual findings, she asserts that the evidence is
stale. We disagree.
To begin, the evidence showed that the mother had ceased
visiting the child at least as of nine months prior to the
trial. Since March, 2014, she had had no contact with DCF and
failed to comply with the tasks on her service plan. The mother
was unavailable for the court investigator to observe her
parenting the child. The record shows that she had not been in
contact with her counsel and did not attend any of the days of
the trial except the last day. This evidence was not stale; to
the contrary, the mother's current absence from the child's
life, lack of communication with DCF, and failure to attend the
proceedings generally were relevant factors in determining
whether to terminate her parental rights. See Adoption of
Astrid, 45 Mass. App. Ct. 538, 544 (1998); Adoption of Fran, 54
Mass. App. Ct. 455, 462-463 (2002).
In addition, the mother has a history of substance abuse,
which gave rise to the initial petition for care and protection. 12
The mother asserts that the last available evidence regarding
her substance abuse is two clean toxicology screens in April,
2013. However, since April, 2013, she has neither participated
in any substance abuse treatment nor submitted to any further
screens in contravention of her service plan tasks. Given her
failure to continue treatment and her noncompliance with the
other service plan tasks, it was not error for the judge to
consider her substance abuse in assessing her fitness. See
Petitions of the Dept. of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987) ("Evidence such as the
failure of the parents to keep a stable home environment for the
children, the refusal of the parents to maintain service plans,
visitation schedules, and counseling programs designed to
strengthen the family unit are relevant to the determination of
unfitness"); Adoption of Rhona, 63 Mass. App. Ct. 117, 126
(2005) (parent's lack of cooperation with DCF was "relevant to
the determination of unfitness").
Moreover, the mother has a long history of domestic
violence with the father, including physical altercations in
front of their other children. This behavior continued in the
months after the child's birth, when the police responded to
numerous domestic disputes. It is well established that
exposure to domestic violence works a "distinctly grievous kind
of harm" on children, Custody of Vaughn, 422 Mass. 590, 595 13
(1996), and instances of such familial violence are compelling
evidence for a finding of parental unfitness. See id. at 595-
596; Adoption of Gillian, 63 Mass. App. Ct. 398, 404-405 & n.6
(2005). There was no evidence that the mother had participated
in any services to address this long history of domestic
violence. Accordingly, the judge appropriately considered this
history of domestic violence in making his determination as to
the mother's fitness.
The judge's findings are specific, detailed, and
demonstrate that he gave close attention to the evidence. See
Adoption of Anton, 72 Mass. App. Ct. 667, 673 (2008). The judge
properly considered the requisite factors under G. L. c. 210,
§ 3(c), in his determination of unfitness, finding factors (i),
(ii), (iii), (v), (vi), (vii), (viii), (ix), (x), and (xii) to
be applicable. In sum, the mother's lack of involvement with
the child for an extended period of time, substance abuse,
ongoing instability, and history of domestic violence show that
there is no "reasonable likelihood that the [mother]'s unfitness
at the time of trial may be only temporary." Adoption of
Carlos, 413 Mass. 339, 350 (1992). Accordingly, the findings
support the judge's determination of unfitness by clear and
convincing evidence and that termination is in the best 14
interests of the child. See Adoption of Eden, 88 Mass. App. Ct.
293, 297–298 (2015).7
c. Pretrial placement. The mother next argues that the
pretrial placement of the child with his foster parents and not
the relative in California was unreasonable and an abuse of
discretion. The mother does not address directly why the
propriety of the pretrial placement is not moot, but she does
argue that this ruling caused her prejudice at trial.8 Passing
over the question of mootness, we turn to the merits.
"Placement decisions, as opposed to custody decisions, fall
within the discretionary powers of the legal custodian as one of
the usual incidents of custody." Care & Protection of Manuel,
428 Mass. 527, 534 (1998). See G. L. c. 119, § 23. DCF
regulations require that the child's placement be made "based
upon safety, well-being and permanency of the child and the
child's individual needs." 110 Code of Mass. Regs. § 7.101(1)
(2009). "While the judge certainly may 'offer guidance to the
[custodian] concerning a child's residence,' the ultimate
decision regarding placement is the custodian's." Care &
Protection of Manuel, 428 Mass. at 534, quoting from Care &
7 Nor is there any abuse of discretion in the judge’s order denying posttermination or postadoption visitation to the mother, who had been absent from the child's life entirely for the nine months prior to trial. 8 See note 9, infra. 15
Protection of Isaac, 419 Mass. 602, 609 (1995). "That decision
is reviewable under [G. L. c. 119,] § 21[,] for abuse of
discretion or error of law only." Care & Protection of Manuel,
428 Mass. at 534. A decision is an abuse of discretion if it
amounts to a "clear error of judgment" that falls "outside the
range of reasonable alternatives." L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014) (quotation omitted).
Here, it was not an abuse of discretion to conclude that
the best interests of the child was to have him stay in the
custody of his preadoptive parents while awaiting trial.
Notably, the mother did not file her abuse of discretion motion
until one year after the child was placed with his foster
parents even though the California home study of the relative
had been completed five months earlier in October, 2013.
Meanwhile, the child was in a stable home where he was able to
attain the immediate care his early medical conditions required.
The child also had the opportunity to bond with his two
attentive and loving foster parents. In contrast, the proposed
California placement did not meet Massachusetts standards for
placement. The relative, who was already responsible for the
care of her disabled adult daughter and two toddlers, did not
appear to understand that the goal for the child was adoption,
and stated that she was overwhelmed. She has not met the child
and has no connection with the child's older brother, who is 16
placed in California with the maternal grandmother. Under these
circumstances, the judge did not abuse his discretion by
concluding that the best interests of the child favored
continued placement with his foster parents, where he had lived
since he was twelve days old and where he was thriving.9
Decree affirmed.
9 We additionally reject the mother's contention that the pretrial placement violated her right to have evidence available to her regarding the bond that she believes would have formed between the child and the relative. Due process is satisfied by providing notice and an opportunity to be heard. Care & Protection of Orazio, 68 Mass. App. Ct. 213, 220 (2007). Additional safeguards are provided in child welfare cases by requiring that parents be represented by counsel, and that DCF meet the clear and convincing evidence standard. There is no due process right to an opportunity to create evidence through a particular pretrial placement.