Quotes child’s counsel: “He deserves to spend what little remains of his childhood with the only stable and loving, albeit imperfect and disabled, parental figure that he has ever had in his life."
In a victory for parents’ rights advocates, in February 4, 2019, published decision (Adoption of Posey, No. 17-P-1473), the Massachusetts Appeals Court vacated a Probate and Family Court’s termination of a father’s parental rights. Specifically, from his home in Guatemala, the father sought to obtain custody of his two daughters who were placed in foster care after the death of their mother in the United States. The father could not take immediate custody of the children because he had been deported earlier. After a one-day trial, at which the father was necessarily absent due to his immigration status, a Probate and Family Court judge issued decrees terminating the father's parental rights. This was based, at least in part, by the Department of Children and Families shifting from a stance encouraging reunification of the children with the father to one encouraging that the children be adopted in the United States by other individuals. In finding the father to be an unfit parent, the judge characterized him as having "abandoned" the children. She also found that he had "a serious issue with criminal activity" and "longstanding issues of domestic violence." The Appeals Court determined that none of these critical findings have adequate support in the record, and so it vacated the decrees.
In analyzing the issues, the Appeals Court noted that "to take the 'extreme step' of irrevocably terminating the legal relationship between a parent and child," the judge "must determine 'by clear and convincing evidence that the parent is currently unfit to further the child's best interests.'" Adoption of Yale, 65 Mass. App. Ct. 236, 239 (2005), quoting Adoption of Carlos, 413 Mass. 339, 348 (1992). Further, "'careful factual inspection and specific and detailed findings' by the trial judge are required to 'demonstrate that close attention has been given the evidence.'" Adoption of Yale, supra, quoting Custody of Eleanor, 414 Mass. 795, 799 6 (1993).
In conclusion, the Appeals Court noted that without the clearly erroneous findings, the remaining subsidiary findings in the case show no "'grievous shortcomings or handicaps [of the father] that put the child[ren]'s welfare much at hazard,' Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. , 646 [(1975)], and thus the ultimate finding of unfitness is not properly supported by the [subsidiary] findings." Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006). As a result, the department of children and families failed to meet its burden of proving the father's unfitness by clear and convincing evidence. See Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008). Therefore, the Appeals Court vacated the decrees terminating the father's parental rights, and remanded the case for further proceedings consistent with the opinion.