MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Juvenile Court found the mother and father unfit to parent Xanthus, terminated their parental rights, and granted permanent custody of Xanthus to the Department of Children and Families (DCF). See G.L. c. 119, § 26 ; G.L. c. 210, § 3. The judge also declined to award either parent visitation. The mother and father both appeal. For the reasons set forth below, we affirm.
Discussion. To terminate parental rights and dispense with parental consent to adoption, a judge must find by clear and convincing evidence that the parent is unfit to care for the child and that termination is in the child's best interests. Adoption of Nancy, 443 Mass. 512, 515 (2005). Subsidiary findings must be established by a fair preponderance of the evidence. See ibid.; Adoption of Elena, 446 Mass. 24, 30–31 (2006). We “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. 53, 59 (2011).
Termination of parental rights. The mother and father contend that the judge based her findings on stale evidence regarding their care of two older children (a girl and a boy). As a result, the mother and father argue that the judge's findings and conclusions are unsupported by clear and convincing evidence of their current unfitness to parent Xanthus. See Adoption of Yale, 65 Mass.App.Ct. 236, 239 (2005). The mother and father also argue that (1) the judge “ignored” or “minimized facts” that were contrary to her finding of unfitness, (2) many of the judge's conclusions of law lacked evidentiary support, and (3) the findings taken as a whole do not demonstrate that it was in the child's best interests to terminate their respective parental rights.
Since the mother and father are the biological parents of Xanthus, and this case only concerns Xanthus, we refer to them as the mother and father. The two older children are not involved in these proceedings. The father is not their biological parent.
We see no error in the judge's findings, all of which are supported by the record. The mother and father seriously abused the two older children. The father placed the girl's hands under scalding hot water until her skin began to bubble and peel. The mother treated the burns by applying peroxide to the blistered wounds, together with ointment and bandages, but did not take the girl to see a doctor for at least two weeks. The girl did not go to school for five and one-half months after the burns were inflicted.
The mother and father forced the girl to clean and then lick the floor after a dog relieved itself inside the house. The father also repeatedly kicked the girl in the genitals, causing her to bleed. The mother saw the bleeding but did nothing. The father beat the girl with extension cords and brooms, put a knife to her throat and threatened her life, gagged her with a sock and tape and beat her while she was naked, and held her by her ankles and “sw[u]ng her into the wall.” The mother beat the girl with a belt and an electrical cord, and threatened to kill her. The abuse occurred over a substantial period of time and ended only when the children were removed from the home. These findings were supported not only by the DCF investigation, but the testimony of the girl, who testified at trial.
There was also evidence that the girl was sexually abused by an unknown perpetrator. The mother denied the sexual abuse and told others that the girl was born without a hymen, although medical records indicated otherwise. The mother also told the girl not to tell DCF that the father had beaten her. Additionally, the father hit and kicked the boy, and beat him with a belt. The mother hit the boy with a wooden spoon. The boy told a foster parent that at some point the father threatened to kill him. The father had also threatened the mother with a knife while both children hid under a blanket.
After the older children were removed, DCF learned that the mother might be pregnant with Xanthus. When contacted, the mother denied the pregnancy and refused to discuss it with DCF. Ultimately, the mother's parental rights were terminated as to the two older children. By this point, DCF had learned of the birth of Xanthus and of the mother's whereabouts.
On the day that the mother's parental rights were terminated with respect to the two older children, DCF filed a care and protection petition on behalf of Xanthus due to the significant pattern of severe physical abuse inflicted on Xanthus's older half-siblings. The next day, DCF went to the parents' home to remove Xanthus, but no one in the family was willing to disclose where the baby was or if he existed. The father, who had not been home at the time, later learned that DCF had come to remove Xanthus. The father then kept Xanthus from DCF for the weekend. The following Monday, however, the father surrendered the child to DCF. Xanthus was lethargic, expressionless, and emotionless, but had no apparent physical injuries.
A pattern of past parental conduct is relevant to the assessment of current and future parental fitness. See Custody of Two Minors, 396 Mass. 610, 619–621 (1986) ; Adoption of Carla, 416 Mass. 510, 516–517 (1993) ; Adoption of Larry, 434 Mass. 456, 469 (2001). The evidence of severe and chronic abuse of the older children was not stale because the parents continued to deny past abuse, and stated that they would not care for Xanthus any differently than the older children. The judge also properly considered their resistance to cooperating with DCF, and their failure to fully comply with service plans. The judge considered all of the evidence, the weight of which was for her to determine. Adoption of Elena, 446 Mass. at 30–31.
Neither the mother nor the father was fully compliant with the service plan tasks. The mother refused to engage in dialectic behavior therapy and refused to participate in home visits. The father stated that he was willing to participate in home visits, and participated while he was living with his parents, but after moving in with the mother the social worker was only able to complete one home visit. The father also did not participate in treatment for paranoid distortions or taking responsibility for his actions.
--------
This case is starkly different from Adoption of Yale, 65 Mass App.Ct. 241. There, the “the judge's findings ... suggest[ed] that the mother's circumstances were vastly different when her parental rights were terminated as to [an older child], compared to her present circumstances. The mother was sixteen years old and involved in an abusive relationship when [the older child] was born,” but at the time her parental rights of the subsequent child were adjudicated, she was twenty-six, had family support, and plans to continue her education; and there was no indication of drug abuse. Here, by contrast, the parents have demonstrated no change or growth, and have not even acknowledged their past history of abuse.
Visitation. The mother and father also contend that the judge abused her discretion by failing to order posttermination and postadoption visitation because no preadoptive family has been identified for Xanthus. The father also argues that the judge erred as a matter of law when finding that DCF's adoption plan for Xanthus was sufficient where DCF had not presented to the judge a written adoption plan.
“Although it need not identify prospective adoptive parents, the adoption plan must provide information with respect to the ‘prospective adoptive parents and their family environment so that the judge may properly evaluate the suitability of the department's proposal.’ “ Adoption of Vito, 431 Mass. 550, 568 n. 28 (2000), quoting from Care & Protection of Three Minors, 392 Mass. 704, 717 (1984). See Adoption of Stuart, 39 Mass.App.Ct. 380, 393 (1995). DCF's adoption plan, as testified to by DCF witnesses, had sufficient content and substance, and no written plan was required by the statute. See G.L. c. 210, § 3(c). Compare Adoption of Stuart, supra at 392–294. The judge did not abuse her discretion in declining to order visitation.
Decrees affirmed.
--------
Notes: