In re Xarina

109 N.E.3d 529
CourtMassachusetts Appeals Court
DecidedAugust 22, 2018
DocketNo. 18-P-82.
StatusPublished

This text of 109 N.E.3d 529 (In re Xarina) 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
In re Xarina, 109 N.E.3d 529 (Mass. Ct. App. 2018).

Opinion

BLAKE, J.

Following a trial in the Juvenile Court, a judge found the mother unfit to parent her daughter Xarina, terminated her parental rights, and approved the plan of the Department of Children and Families (department). On appeal, the mother argues that in the circumstances of this case, it was error for the judge to terminate her parental rights when the father's rights were not terminated.2 She also claims it was error for the judge to approve the plan proposed by the department. We affirm.

1. Background. Xarina was born in September, 2006. The mother and the father divorced in 2009. Following the divorce, the mother had legal and physical custody of Xarina. When Xarina was approximately two years old, a report pursuant to G. L. c. 119, § 51A (51A report), was filed against the mother alleging neglect of the child. Thereafter, the father was awarded sole legal and physical custody of Xarina.

The father married his current wife, Susan, in 2011, and they have two children together. The department investigated numerous allegations against the family, including that the father had physically abused Adam, Susan's son from a prior relationship. In October, 2014, the department *532received a 51A report after school staff noticed bruises on Adam. As part of its investigation, the department's social workers spoke with Xarina, who, after some resistance, reported that she saw her father hitting Adam and pushing him to the ground. She also said that she did not want to get anyone into trouble and that the father told her that if she spoke to the department, she would be taken away. She stated that she did not feel safe in the home and thought someone would "kill her." In November, 2014, the department filed a petition pursuant to G. L. c. 119, § 24, alleging that Xarina was in need of care and protection. She was removed from the father's home and placed in the custody of the department that same day.3

A court investigation report filed in February, 2015, stated that the department had little to no contact with the mother, and her whereabouts were often unknown. None of the mother's five children is in her custody. She has a history of homelessness, substance use, domestic violence, and untreated mental health issues.

By February, 2016, the mother had failed to meet with the department about Xarina and had failed to complete any of the tasks in her service plan. She failed to attend many of the Juvenile Court proceedings. By contrast, the father was cooperating with the department and stipulated in February, 2016, that he was currently unfit to care for Xarina. In March, 2016, the judge determined that the mother was unfit to parent Xarina and awarded the department permanent custody of the child. Neither the mother's nor the father's parental rights were terminated at that time.

In November, 2016, the department changed its goal for Xarina from reunification to adoption and sought to terminate the mother's and the father's parental rights. In April, 2017, on the day of trial, the department reported to the judge that after a lengthy discussion, the department had decided not to seek termination of the father's parental rights. The department proceeded against the mother. The mother, who was represented by counsel, did not attend the trial. Two department social workers testified. The adoption social worker testified that the plan for adoption that the department had filed with the court would be changed to a plan with a goal of guardianship following a department permanency planning conference.4 See G. L. c. 119, § 29B. The judge found that the mother was unfit and that it was in Xarina's best interests to terminate the mother's parental rights, and he approved the department's plan. This appeal followed.

2. Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 976 N.E.2d 814 (2012). In determining whether the best interests of a child are served by termination of parental rights, the judge "shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility" (emphasis omitted). Adoption of Elena, 446 Mass. 24, 31, 841 N.E.2d 252 (2006), quoting from *533G. L. c. 210, § 3(c ). "Where there is evidence that a parent's unfitness is not temporary, the judge may properly determine that the child's welfare would be best served by ending all legal relations between parent and child." Adoption of Cadence, 81 Mass. App. Ct. 162, 169, 961 N.E.2d 123 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Adoption of Jacques, supra at 606-607, 976 N.E.2d 814.

a. The mother's unfitness. The mother argues that it was error for the judge to terminate her parental rights, because her actions did not trigger the filing of the care and protection petition, and that termination was not necessary where the permanency goal for Xarina changed from adoption to guardianship. She argues that the department sought termination of her parental rights to "punish her" for failing to visit with Xarina, and that the department's decision to leave the father's parental rights intact supports this argument.

Notably, the mother does not contend that the judge's finding that she is unfit is error. She concedes that she has not completed any of the tasks in her service plan, that she has visited Xarina only once during the pendency of the proceedings, and that she is not in a position to take custody of the child. Although "[u]nfitness does not mandate a decree of termination," Adoption of Imelda, 72 Mass. App. Ct. 354, 360, 892 N.E.2d 336

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Related

Adoption of Paula
651 N.E.2d 1222 (Massachusetts Supreme Judicial Court, 1995)
Adoption of Willow
745 N.E.2d 330 (Massachusetts Supreme Judicial Court, 2001)
Adoption of Nancy
822 N.E.2d 1179 (Massachusetts Supreme Judicial Court, 2005)
Adoption of Elena
841 N.E.2d 252 (Massachusetts Supreme Judicial Court, 2006)
Adoption of Dora
754 N.E.2d 720 (Massachusetts Appeals Court, 2001)
Adoption of Imelda
892 N.E.2d 336 (Massachusetts Appeals Court, 2008)
Adoption of Cadence
961 N.E.2d 123 (Massachusetts Appeals Court, 2012)
Adoption of Jacques
976 N.E.2d 814 (Massachusetts Appeals Court, 2012)
Care & Protection of Yetta
2 N.E.3d 910 (Massachusetts Appeals Court, 2014)

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Bluebook (online)
109 N.E.3d 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-xarina-massappct-2018.