435 Mass. 158 | Mass. | 2001
The mother and the father appeal from orders and decrees of the Barnstable Division of the Juvenile Court Department adjudicating their five biological children in need of care and protection pursuant to G. L. c. 119, § 26; ordering the commitment of the children to the permanent custody of the Department of Social Services (department); and dispensing with the need for parental consent to adoption pursuant to G. L. c. 210, § 3, as well as the denial by a single justice of the Appeals Court of the parents’ separate motions to stay the decrees dispensing with their consent to the adoption of their minor children pending resolution of this appeal.
The parents contend that the trial judge erred in relying on “stale” evidence in concluding that the department had proved by clear and convincing evidence that they were unfit to have custody of their children, when more current evidence demonstrated their fitness. They also argue that, because of the fundamental liberty interests at stake for them, they had a right under art. 12 of the Declaration of Rights of the Massachusetts Constitution to face-to-face confrontation with two of their children, when those children testified against them at trial. In the alternative, they argue that their due process rights were violated when the judge, with no evidentiary basis, set up special seating arrangements for the two child witnesses so that the parents could watch them testify only in profile, and from the rear of a small courtroom. Finally, they assert that their due process rights were violated by the extreme length of the proceedings against them, which did not conclude until nearly five years after the removal of the children by the department. We granted the parents’ joint application for direct appellate review and now affirm the orders and decrees of the Juvenile Court, as well as the single justice’s denial of a stay.
The mother was emotionally and physically abused by her own parents, who were alcoholics. The father grew up without a father, and began drinking and using drugs in his teens. The mother was aware of the father’s substance abuse problems while they were dating, but she continued a relationship with him and they had their first child, Don, out of wedlock in 1986. The father continued to use drugs after Don was bom. Nevertheless, mother and father were married in 1987, shortly before the birth of their second child, Kelly. Michael was bom in 1989, and Cliff in 1991. During this period, the father had several “relapses” into substance abuse. He attended rehabilitation programs on a sporadic basis in 1989, before dropping out entirely. The mother showed a willingness to accept her husband’s behavior and explanations for not following through on rehabilitation, explanations that the judge did not find credible.
By the time the mother became pregnant with a fifth child, Andrew, her relationship with the father was under great stress, due in part to what she characterized as a house “full of children.” In August, 1992, the mother applied for voluntary services from the department because she was “overwhelmed.” A social worker set up services for the family, noting that in addition to alcohol, the father was actively using crack cocaine.
On September 4, 1992, a G. L. c. 119, § 51 A, report was filed and supported for neglect of the children by both parents due to domestic violence, substance abuse and the mother’s need for psychiatric treatment. On September 30, 1992, another § 51A report was filed and supported for neglect of the children by both parents. That same month, the police were called to the family home by the mother, who claimed she had been abused by the father. She secured a protective order.
Andrew was bom in March, 1993, while the other children remained in voluntary placement. The department provided a parent aide to the family to assist with parenting tasks and skill development. The plan was for the children to return to their parents in June, 1993, but the mother asked for more time to prepare the transition for the children’s return home. As a result, it was not until the end of November, 1993, that all of the children were back in the home.
In March and November, 1994, § 51A reports were supported for the physical abuse of Don by his father, including one incident in which the father bit the son’s nose. In March, 1994, a § 51A report was supported for the physical abuse of Cliff. In December, 1994, a § 51A report was supported for the medical neglect of Kelly. On December 15, 1994, the department filed an emergency care and protection petition pursuant to G. L. c. 119, § 24, alleging the abuse and neglect of the five
Another § 51A report was filed on April 3, 1995, with the result that the department took custody of Kelly, Michael, and Cliff.
Don and Andrew were removed from the home on June 23, 1995, and placed in the temporary custody of the department.
From October, 1995, until the adjudication in this case on June 9, 1999, the mother continued to have supervised visits with the children. The judge found that most of the visits “went well.” However, the mother had difficulty controlling all the children together. Various visits were described by observers as “noisy” and “chaotic.” The mother was often in violation of visitation rules, faffing to provide appropriate activities for all the children, having difficulty disciplining the children and attending to the needs of Andrew, and in a number of cases relying inappropriately on the presence of a relative. The social worker did not seek unsupervised visits between the mother and the children because she did not see any change in the mother’s
The department prepared service plans for the parents from 1992 until the time of trial. The father’s plan tasks required that he attend Alcoholics Anonymous and Narcotics Anonymous, enter counselling, join a parenting group, enroll in an anger management group, participate in a domestic violence program, and refrain from using harmful discipline on the children. He failed to comply with these tasks.
The mother’s service plans required that she seek out counsel-ling for treatment of depression, engage in domestic abuse education, develop a safety plan to follow when the father became abusive, attend an alcoholism awareness program, and attend parenting classes. She failed to pursue domestic abuse education because she continued to deny there was any domestic abuse in her household. She could not identify anything she had learned by attending a parenting class. She developed no safety plan. She failed properly to treat her depression. The mother did attend a family learning class from November, 1995, until January, 1997, but her participation began to wane after September, 1996. She would not sign an extended service plan in September, 1997. She did not participate in the updated court investigation on January 26, 1998, and at the time of trial, she was not in compliance with her most recent service plan.
2. Proceedings. Prior to February, 1997, the department’s goal for the family was reunification. The department changed its goal to adoption for the four youngest children because the parents had not made sufficient progress for reunification. On April 24, 1997, after hearing, the judge granted the department’s motion to amend the pleadings to add a request, pursuant to G. L. c. 210, § 3, that the judge dispense with the need for parental consent to the adoption of the four youngest children.
The trial on the merits took place over forty-five nonconsecutive days between April 28, 1997, and December 11,
The parents filed timely notices of appeal. The parents also filed separate motions for a stay pending appeal from the orders dispensing with parental consent to adoption. The motions were denied. On September 21, and October 28, 1999, a single justice of the Appeals Court denied the parents’ respective motions for a stay. The parents’ appeals from the denial of the motions for a stay were consolidated with the instant appeal from the underlying adjudication.
On October 19, 1999, the department filed with the trial court a notice of intent to dispense with the parents’ right to consent-to Don’s adoption.
3. Evidence of current unfitness of parents. In order to grant a petition to dispense with parental consent to adoption pursuant to G. L. c. 210, § 3, due process requires that the judge must find by clear and convincing evidence, Santosky v. Kramer, 455 U.S. 745, 748 (1982), based on subsidiary findings proved by at least a fair preponderance of evidence, Care & Protection of Laura, 414 Mass. 788, 793 (1993), that a parent is currently
The judge’s findings — which, as noted above, are unchallenged by either parent — are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence. Adoption of Helen, 429 Mass. 856, 859 (1999), citing Adoption of Hugo, 428 Mass. 219, 224 (1998), cert, denied sub nom. Hugo P. v. George P, 526 U.S. 1034 (1999); Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). The mother nevertheless claims that the testimony of certain witnesses summarized in the judge’s findings demonstrated that the mother had “done her utmost to comply with the many tasks imposed on her by [the department], and had progressed remarkably far in her personal development,” and thus it was error for the judge to declare her a currently unfit parent. We do not agree.
The judge properly focused on the current fitness of the parents. Adoption of Quentin, 424 Mass. 882, 886 (1997), citing Adoption of Carla, 416 Mass. 510, 517 (1993). Adoption of Kimberly, 414 Mass. 526, 528-529 (1993). She appropriately took into account each “parent’s character, temperament, conduct, and capacity to provide for the [children] in the same context with [each] child’s particular needs, affections, and age,” Adoption of Mary, 414 Mass. 705, 711 (1993), and had an adequate evidentiary basis to find that, even in the period from the removal of the children in 1995 to the time of trial,
“We do not sit as a trial court to review de novo the evidence presented by the parties.” Adoption of Paula, 420 Mass. 716, 730 (1995). Many of the parents’ arguments amount to no more than a disagreement with the judge’s weighing of the evidence and credibility determinations regarding witnesses.
4. Right to confrontation. Don and Kelly both testified against their parents at trial.
The parents assert that these seating arrangements denied them their right under art. 12 to confront the child witnesses face-to-face.
“Custody proceedings are not criminal in nature . . . .” Custody of Two Minors, 396 Mass. 610, 616 (1986). “As parens patriae, the State does not act to punish misbehaving parents but to protect children,” id., and the dependent child’s needs are paramount. This is not to derogate the natural right that parents have to the custody of their children, a right that is fundamental and constitutionally protected. Little v. Streater, 452 U.S. 1, 13 (1981). Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). Accordingly,
We have, however, repeatedly rejected incorporating the full panoply of constitutional rights afforded criminal defendants into proceedings involving custody and termination of parental rights. See, e.g., Custody of Two Minors, 396 Mass. 610, 617 (1986) (“privilege against self-incrimination applicable in criminal proceedings, which prevents the drawing of a negative inference from a defendant’s failure to testify, is not applicable in a child custody case”); Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 384 Mass. 707, 711 (1981) (exclusionary rule does not apply to termination proceedings); Custody of a Minor, 375 Mass. 733, 746 (1978) (double jeopardy principles do not apply). We are not persuaded that the unique characteristics of a termination of parental rights proceeding require incorporating the art. 12 right of face-to-face confrontation guaranteed to defendants in criminal cases, and decline the invitation to do so here.
5. Delay. The parents argue that the length of the proceedings
6. Motions for a stay. Finally, we do not disturb the orders of the single justice of the Appeals Court denying the parents’ respective motions for a stay in this case,
7. Conclusion. The adjudications that the children were in need of care and protection are affirmed. The decrees terminating parental rights to consent to adoption are affirmed. The orders of the single justice denying motions for a stay are affirmed.
So ordered.
In her signed affidavit in support of the protective order, the mother stated:
“[The father] has pulled my hair and had cornered me . . . . In the past [the father] had thrown me across the room bruising my back. My oldest [child] witnessed it. [The father] has hit me in the nose has once*161 tried to strangle me. The verbal abuse is ongoing. The abuse at one point happened when I was pregnant. I am also pregnant now [with Andrew], [The father] is a drug addict and alcoholic and scares me more when [he] drinks because his ang[er] increases. There are times when he is drinking and will have the kids with him. Because he has done these things I am asking the court to protect me.”
In her testimony at trial, however, the mother denied that the father ever struck her, or that she was ever in fear of him. She denied saying that in 1992 she felt a lack of safety for herself or her children. The judge did not find this testimony credible, and noted that the mother was now adamantly denying any form of domestic abuse even though she had disclosed the father’s abusive conduct to many different people.
When the mother requested voluntary placement for her children, she stated that she was afraid of the effects of the father’s substance abuse on Kelly and Don. At trial, however, she denied that this abuse had had any effect on her children, and also failed to acknowledge any detrimental effect on the children resulting from her decision to place them in the custody of the department.
Kelly was removed for issues surrounding enuresis and depression. Cliff sustained an injury when he fell from his father’s arms and hit his head. Michael had recently become very aggressive at school.
The parents have not had any children in the home since June, 1995.
A department social worker made a number of attempts to contact the father and send him a service plan after his incarceration. The father failed to communicate with the department, and did not participate in an updated court investigator’s report in January, 1998.
In the procedural history accompanying her findings of fact, the judge lists only sixteen of these trial dates. Her findings, however, encompass the entire trial record.
In 1996, Don told a court investigator that he wanted to disassociate himself from his father, and' that his mother could not protect him. In January, 1997, Don began to express a desire to be adopted. He chose not to participate in visitations with his mother after December, 1997.
The mother, attempting to draw an analogy to the case of Custody of Eleanor, 414 Mass. 795, 800 (1993) (finding of parental unfitness, based entirely on one allegation of inappropriate touching later withdrawn, reversed), claims in her brief that the “principal allegation” against her “was that she would not accept her daughter’s accusation of sexual abuse by mother’s male companion.” However, the judge in the present case stated in her findings that she would have determined it was in Kelly’s best interest to be free from her parents even in the absence of Kelly’s testimony about several instances of sexual abuse by the father.
The father, in his brief, properly notes that, although “past patterns of parental neglect may have prognostic value, it is preferable that parental unfit
The judge found that many of the witnesses relied on by the mother, and by the father, were not sufficiently familiar with the family’s problems to provide testimony helpful or relevant to the issues in this case. For example, the father argues in his brief that the judge erred in “ignoring current probative expert evidence that [f]ather had no pathological propensity for violent or abusive behavior.” The judge did not ignore this evidence, but found that it was based on primarily self-administered tests that relied on accurate reporting by the father. Because the father only selectively disclosed information to the psychologist administering the test, the judge found that conclusions based on tills self-reporting had no meaningful significance.
Don was eleven years old when he began testifying on January 28, 1998. He stated that his parents yelled and swore at each other a lot. His father hit him approximately five times a week. His mother would hit him “once in awhile.” He recalled his mother’s trying unsuccessfully to control the other children by yelling at them in an attempt to stop their boisterous or wild behavior. Don also witnessed domestic abuse between his mother and his father, and saw his father pulling his mother’s hair, yelling, and using profane language. Don once told a school nurse about being hit in his home.
Kelly was ten years old when she testified on September 23, 1998. She recalled a lot of hitting by her parents when she lived with them, mainly directed at Don and herself. Kelly recalled one incident of fighting when she saw her father pull her mother’s hair and almost push her down the stairs.
The judge explained at trial that “it’s the Court’s desire to keep the [child] witnesses as any other witnesses; testifying in the same chair where everyone else has testified, with no objection from counsel during this case . . . because this is the way this particular court room is set up.”
On the first day of Don’s testimony, when the attorney for the mother pointed out that the parents had been allowed to sit in the front row up to that point without objection from anyone, the judge explained: “Well, for the record, this is a small courtroom. And that would put . . . parents close to the young man. And I. . . want to give him a chance to be heard, without feeling overpowered by any of us, including parents. And I’ll do everything possible to make it as fair as possible.”
Article 12 of the Declaration of Rights of the Massachusetts Constitution reads, in pertinent part: “[Ejvery subject shall have a right ... to meet the witnesses against him face to face.”
The parents argue, in the alternative, that the special seating arrangements for Don and Kelly violated the parents’ due process rights. We conclude that, since the art. 12 right to confrontation does not apply to this type of proceeding, the judge’s instructions to the parents to sit anywhere they wished .in the back row of a small courtroom while the children testified, and to refrain from moving during their testimony, do not raise due process concerns. The judge was within her discretion in her commendable effort to make the proceedings “as fair as possible” to all parties concerned. See note 14, supra.
In a proceeding that can result in the termination of all parental rights, due process requires that “a parent have the opportunity effectively to rebut adverse allegations concerning child-rearing capabilities.” Adoption of Mary, 414 Mass. 705, 710 (1993). Adoption of Edmund, 50 Mass. App. Ct. 526, 529 (2000). Due process was satisfied here because the parents had the opportunity, through counsel, to cross-examine the child witnesses vigorously, in addition to presenting witnesses and other evidence on their own behalf.
Throughout the trial, the judge showed a consistent concern with the need to expedite these proceedings. There were various factors, beyond the continuances granted by the court (none of which is challenged by the parents) that contributed to the extended nature of the trial. These were delays caused by the illness of counsel, the failure of the correctional facility to deliver the father to court, the scheduling of counsel and the court, and by the mother as well.
“Absent the allowance of a stay, a court may act on the basis of a decree dispensing with consent to adoption.” Adoption of Duval, 46 Mass. App. Ct. 916, 917 (1999).