Ma Department of Family and Children Parental Rights

Massachusetts DCF Attorney Nicole G. Levy reviews the factors that Massachusetts judges employ to identify unfit parents in Juvenile and Probate and Family unit Courts.

Claims of parental unfitness are ofttimes fabricated in divorce and child custody cases, but are the main concern of judges who are focused on the "best interest of the kid" standard. The threshold for proving unfitness are loftier, and often involve at least a minimal level of interest by the Department of Children and Families (DCF), and so long equally a child has ane "fit" parent, Probate and Family Courts can generally determine custody and parenting time using the "best interests of the kid standard" instead of delving into unfitness. In Guardianship of a Minor proceedings, however, the police requires a finding of unfitness in gild for a non-parent to retain custody of a kid over a biological parent's objection. Meanwhile, even in child custody cases involving biological parents, the elements of the unfitness assay tin can be useful in evaluating problematic parental behavior.

We have discussed what parental unfitness means in Massachusetts before, and a recent opinion from the Massachusetts Appeals Court provides some boosted item to the elements nosotros have discussed in our blogs surrounding child neglect and abuse.

Alleged Incidents of Violence and Substance Abuse Outcome in Children'south Removal From Home

The case in question was Adoption of Ulrich (2019), which concerned the welfare of five children who had been removed from their parents' habitation by DCF in late 2012 and early 2013 pursuant to care and custody proceedings brought in the Suffolk County Juvenile Courtroom before Hon. Stephen M. Limon. According to the Appeals Court opinion, the children were removed from the home after their mother was arrested for allegedly stabbing the children'southward father with a pair of pair of scissors in front of the children.

Following the mother'south arrest, the children were initially placed by DCF with the children's grandmother, earlier being placed with a paternal aunt. The children were afterwards removed from this abode, as well, "after evidence of sexual and physical abuse of at to the lowest degree some of the children within the paternal aunt's home became apparent" and DCF "obtained custody of the four children on May 20, 2013."

The mother gave nativity to a fifth child, a daughter, in March of 2013. A few months later, nonetheless, "the mother (believing that the father had engaged in a romantic relationship with a neighbor'southward daughter) forced her way into the neighbor's apartment while making threats and brandishing a knife." The youngest child was afterward removed from the mother's care by DCF.

As the example proceeded over several years, DCF placed the children in dissimilar locations:

In July, 2013, Ulrich, who turned ten during the trial, and Charles, who turned viii during the trial, were both placed in a residential treatment facility (residential facility). Past the time of trial, Ulrich had been placed in a foster home. Sarah, nearly seven years sometime by the terminate of trial, and Amy, who turned v years old during trial, were placed together in the department'south foster care in May, 2013. In Nov, 2013, Sarah and Amy were placed in separate foster homes. Ellen was placed in a kinship foster home in February, 2014, where she remained at the time of trial.

Additional evidence at trial included the results of a psychological evaluation in which the "mother was diagnosed with mood disorder, post-traumatic stress disorder, and polysubstance dependence." In 2014, the mother "entered a residential substance corruption treatment facility but was before long asked to leave afterwards that facility designated her as a safety risk."

In 2015, the mother made strides, however. That yr, she was "deemed to be in full compliance with her service programme and had improved her acrimony direction and communication skills." She also completed a "parenting grade and engaged in a parenting support grouping, and there were no longer substance abuse concerns." During a home visit, "the court investigator reported that the mother'south four-bedchamber apartment was extremely clean and well kept, furnished with beds for the children, and was 'cipher short of impressive.'" Despite this progress, concerns remained:

Still, at the time of trial, the mother had non seen her mental health therapist in several months and missed a scheduled abode visit the calendar week earlier trial.

Co-ordinate to the Appeals Courtroom, "[v]isits between the female parent and children ranged from successful to disastrous." The opinion describes a diversity of problematic behaviors attributed to mother during visits, ranging from statements made to the children to conduct aimed at staff and supervisors. Furthermore, foster intendance placements proved to be significantly beneficial to the children involved. Post-obit a trial in the summer of 2016, the mother'due south parental rights of the five children were terminated. The mother appealed, but the Massachusetts Appeals Courtroom affirmed the Juvenile Court's conclusion.

The Statutory Factors in Parental Unfitness Cases

Before moving frontward with the assay, information technology's important to understand one major difference between the "best interests of the kid" standard employed in traditional child custody cases involving two parents, and the "parental unfitness" standard employed in Care and Custody and Guardianship proceedings. Unlike the amorphous "best involvement of the child" standard, which some have described every bit "you know it when you run across it," the unfitness standard is actually based on a clear statute.

The Massachusetts adoption without consent statute, Ch. 210 § 3 (c), provides the post-obit specific factors that can requite rising to a finding of unfitness:

• the parent abused or neglected the child or another immediate family unit member;
• the parents accept non maintained contact with the child for the previous six months;
• the child who is four or older, has been in foster intendance for at least twelve of the preceding 15 months, and cannot be returned to his or her parents' care;
• the child who is under four, has been in foster intendance for at to the lowest degree half dozen of the preceding twelve months, and cannot be returned to his or her parents' intendance;
• the parents cannot provide proper care for the kid;
• the kid has formed a strong positive bond with his or her substitute caretaker that cannot be broken without damage to the child, and the parent is unable to alleviate the damage;
• the parent has put forth try to remedy the weather condition that led to the child's removal from the home;
• the child, or some other child in the home, has been subjected to severe or repetitive concrete, emotional, or sexual corruption or neglect by the parent;
• the parent willfully failed to visit the kid;
• the parent willfully failed to pay back up for the child;
• the parent has a condition that is prolonged and that volition prevent him or her from caring for the child;
• the parent is incarcerated and cannot provide a dwelling for the child; and,
• there has been a prior design of neglect or misconduct, or an assault resulting in serious bodily injury to the child.

Indeed, in the kid custody context, it is non unusual for family law attorneys to point to the presence of some of these factors as grounds for a parent's asking for sole custody nether a "best interest of the kid" assay.

Parental Unfitness and Best Interests of the Child: Dual Standards in Care and Custody Proceedings

Before examining the Appeals Court'southward analysis in Ulrich, it's worth acknowledging the somewhat convoluted standard of review employed by Massachusetts appellate courts in Care and Custody decisions. The Ulrich Court defined the legal standard every bit follows:

A person's right to parent her child can be terminated only if a guess determines that she is unfit, and that termination is in the all-time interests of the child. These twin determinations are not separate and distinct only, instead, are cognate and connected steps that reflect unlike degrees of emphasis on the aforementioned factors. Parental unfitness must exist proved by articulate and convincing evidence and we review the approximate's determination of the kid'due south best interests for an abuse of discretion. Subsidiary findings must be supported by a preponderance of the evidence, and none of the findings will be disturbed unless clearly erroneous. We review the guess'southward findings with substantial deference, recognizing [his] discretion to evaluate a witness'southward credibility and to counterbalance the evidence. (Citations and internal quotations omitted.)

Information technology is off-white to call the in a higher place legal standard "convoluted," where it is nearly impossible to separate the Court's parental fettle analysis – which purports to focus on the parent's behavior – from its "best interest of the child assay" – which focuses on the individual needs of the child. The "clear and convincing evidence" standard is meant to convey a more than stringent standard of proof than in ordinary custody determinations. However, equally noted in our weblog on Massachusetts contempt cases, the "clear and convincing" standard is really poorly divers in Massachusetts:

[T]he phrase "articulate and convincing evidence" is poorly defined under Massachusetts law. Hither is what we know: in an ordinary civil case, the winning party must show its example past a "preponderance of the evidence". This means that one party need but show that his or her position was more than likely to be right than the opponents. Thus, if the jury felt 51% sure the plaintiff should win correct – and 49% convinced the defendant should win – then the plaintiff would prevail, because his or her case was slightly better than the defendant's case.

In contrast, in a criminal example, the land must testify a defendant'due south guilt "beyond a reasonable doubt". This is a far more hard threshold to meet than "preponderance of the show." A guess or jury must find a defendant "non guilty", in a criminal case, if the fact-finder has any reasonable uncertainty at all regarding the defendant's guilt. Accordingly, "preponderance of the evidence" and "beyond a reasonable doubt" stand at opposite extremes in terms of evidentiary burdens. Preponderance of the evidence is a relatively low, easy to meet standard, requiring less persuasive bear witness. Across a reasonable doubt is a high, difficult to run across standard, requiring much more persuasive evidence. The "clear and disarming" standard used in contempt cases is the often ignored "middle-step-kid" of legal standards in Massachusetts. Information technology is largely defined every bit falling somewhere betwixt a "preponderance of the evidence" and "beyond a reasonable doubt".

Making Intendance and Custody cases even more confusing is that the estimate'due south factual findings are reviewed past the Appeals Court using the lower, "preponderance of the evidence" standard, and that these findings are given "substantial deference" past the appellate Courtroom, and that the lower court will ultimately be reversed if the appellate court finds that the lower court "abused its discretion".

As a practical matter, we know that Juvenile Court decisions terminating parental rights are very often appealed and only very infrequently reversed on appeal. Information technology is besides worth noting that dissimilar traditional child custody cases before the Probate & Family Court, where litigants must typically pay for their own attorneys, care and custody proceedings generally include the date for each parent, each child, DCF and sometimes even guardians and foster parents. The proliferation of land-paid attorneys in care and custody proceedings brand them some of the almost frequently appealed cases in Massachusetts.

Seven Concrete Details that Contributed to a Finding of Parental Unfitness in Ulrich

In affirming the Juvenile Court's ruling of unfitness in Ulrich, the Massachusetts Appeals Courtroom focused on seven distinct factual areas in the record. While these focus areas are non an all-inclusive exam for unfitness, the aggregating of facts presents a typical analysis. Also notable is the blending between "unfitness" and "best interest of the child".

one.) The first issue in focus was the Juvenile Court's finding that "[t]he tape shows that the female parent had a difficult time managing her anger and that this issue had a significant upshot on the children." The Appeals Courtroom cited lower court findings that the mother "stabbed the father during an statement" and "threatened a neighbor with a pocketknife and and then attempted to break downwardly a adult female's door." In add-on:

The female parent was also asked to leave a substance abuse handling facility because she was deemed to be a condom risk. Additionally, the female parent displayed an aggressive attitude with the children and counsellors at a number of visits, including 1 incident where she shouted obscenities at ane of the children forth with telling him that 'I don't desire to come across you again.

Taken together, the Appeals Court supported the lower court'southward utilise of the "female parent's repeated prior behave to predict her time to come interactions with the children" to find unfitness.

2.) Second, while the mother demonstrated signs of improvement and was making an attempt to consummate parenting courses and self-improvement, the Appeals Court held that "mere participation in the services does non render a parent fit 'without evidence of appreciable improvement in her ability to meet the needs of the child[ren].'" In addition, the Court noted the post-obit:

At trial, the mother was unable to ostend that she completed an anger management course. She also had not attended therapy during the months leading up to trial. She was not attending a domestic violence plan at the time of trial and had not provided her social worker with any document of completion from a prior domestic violence program. Nor did her actions indicate that her parenting abilities were improved past the classes she did attend.

Taken together, the Courtroom found that the "the mother'south disability to consistently attend, consummate, and do good from classes required by her service plan is 'relevant to the determination of unfitness.'"

three.) Tertiary, the Juvenile Court plant that the mother minimized — and often completely denied — the existence of extremely troubling conditions affecting the children." Evidence cited past the Court included:

Later existence confronted with evidence that Ulrich and Charles were sexually driveling while in the care of a paternal aunt, the mother denied that any such behave occurred and stated that the allegations were concocted by the maternal grandmother. When told of the allegations that several of the children were being physically driveling in the paternal aunt's home, the mother failed to investigate or take whatever other action simply because she had no proof that the allegations were truthful, even though "she had a suspicion someone may have hit" 1 of the children.

four.) Fourth, the Court found that the mother "refused to acknowledge at trial that Charles was having gender identity issues, stating that he 'may accept' issues and that she was not 'too sure because he nevertheless identifies himself as a boy.'" The Courtroom cited this and the facts in a higher place in terminal that the "prove conspicuously and convincingly establishes that the mother was unfit to parent the children." (Citations omitted.)

5.) 5th, the Appeals Court examined the needs of the children, noting that "the [lower courtroom] judge found, on clear and disarming bear witness, that it was in the best interests of each child to terminate the mother'southward parental rights." Supporting bear witness for this conclusion included:

Ulrich had been diagnosed with attending deficit hyperactivity disorder and post-traumatic stress disorder, and she had been hospitalized several times for aggressive and self-harming behavior. …. Charles "suffered from `clinically significant' levels of anxiety and low, [and has been] diagnosed with postal service-traumatic stress disorder." …. Sarah likewise had been diagnosed with mental health issues, including mail-traumatic stress disorder and reactive attachment disorder. …. Amy was less than two years quondam when she was removed from her parents' care and showed fewer symptoms of mental health problems than her older siblings. …. Ellen was only a few months erstwhile when she was removed from her parents' custody and displayed none of the mental health problems exhibited past her older siblings.

The Appeals Courtroom held that the children'southward respective weather "firmly supports the [lower court] judge's determination that the mother was unfit to parent each kid and that information technology was in the best interests of each kid for the mother's parental rights to exist terminated."

6.) 6th, the Appeals Court'south opinion included a recitation of the Female parent'due south criminal history as follows:

The mother has a criminal history dating to 2004, including convictions of set on past means of a dangerous weapon and assault and battery on a constabulary officer. She has too been the subject area of five corruption prevention orders issued pursuant to G. Fifty. c. 209A, brought by five different individuals. Although the Appeals Court did not explicitly tie the Mother's criminal history to the termination of the Female parent's parental rights, the inclusion of the criminal record in the opinion suggests that the Mother's criminal record was a factor in the decision.

7.) Seventh and terminal, the Appeals Courtroom's analysis included a review of each kid'south status and potential options in the foster intendance system. Descriptions of the children's foster homes included:

[A]t the time of trial, Ulrich had been placed in the foster dwelling of a erstwhile residential facility employee and was happy there. …. At the time of trial Sarah remained in the same foster home where she had been for over ii years. This home provided her with a great deal of amore, care, and support. Sarah expressed a potent bail with her entire foster family unit, and her foster female parent was eager to help Sarah with her therapy. …. At the time of trial, [Amy] had been living in the same foster home for over two years, was happy and comfortable in the home, showed a significant bond with her foster mother, and had an affectionate relationship with the other members of her foster family unit. Sarah and Amy were able to visit i some other, and their foster families have relied upon each other to watch both girls when necessary. …. Three years onetime at the time of trial, [Ellen] had been placed in a kinship foster home, and the mother testified at trial that the foster abode provided the type of environment that Ellen required. She exhibited a strong bail with the foster family unit and was happy and good for you at the fourth dimension of trial. She received early on intervention services, and her foster family unit had shown a willingness to participate in visits with Sarah'southward and Amy's foster families. …. Charles "has fabricated progress in the stability that has been provided past the [residential facility]; that progress can exist all-time solidified through the department'due south efforts to locate a permanent adoptive family for him when he is ready."

Every bit noted above, in parental termination cases, it tin can be hard to know where the Court's "unfitness" analysis ends and the "best interests" analysis begins. What is articulate is that the courtroom's "best involvement" analysis often includes a review of the kid'southward placement in a facility, foster home or adoptive home. Even so, equally the Court acknowledged in Ulrich, a parental termination decree "may issue even if a specific adoptive family unit has not been identified. In Ulrich, the Court'southward decision included a fairly typical mix of "unfitness" and "best interest" factors.

Nigh the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law chaser for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is besides a mediator for South Shore Divorce Mediation.

Schedule a DCF phone consultation with Nicole Grand. Levy today at (781) 253-2049 or send her an email.

Ma Department of Family and Children Parental Rights

Source: https://www.lynchowens.com/blog/2019/april/seven-ways-that-massachusetts-courts-determine-p/