This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
Trainor, Brown & Meade, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother has five children at issue in this case: Sam and Oliver, the children of father 1, and Paul, Thomas, and John, the children of father 2 (hereinafter referred to as the father). In May, 2009, the Department of Children and Families (department) filed a care and protection petition and was granted temporary custody of the children. In 2010, both the mother and father stipulated to their unfitness, and the department was granted permanent custody of the children. After a four-day trial in 2011, a judge of the Juvenile Court terminated all three parents' rights. Specifically, the judge found that the mother " does not have the present ability[,] capacity, fitness or readiness to parent the children" and that her unfitness is " likely to continue into the indefinite future to a near certitude." The judge made similar findings as to the father. The mother and father appeal. We affirm. See Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993).
We defer to the trial judge's findings, absent a showing that they are clearly erroneous. Ibid. The mother and father do not contest the judge's 129 findings of fact. Rather, they contend that the judge misapplied the findings in her application of the statutory factors pursuant to G. L. c. 210, § 3. We disagree.
The mother argues that the judge misapplied the fourth factor. We discern no error. At trial, the mother conceded that she did not currently have a place to live with all of the children, as she testified that she could only care for two of them at her current location, the living room of her friend's home. Her theory that she could take all of the children and simply move into a homeless shelter amounts to nothing more than conjecture and demonstrates that she does not have a feasible plan for reunification. See Custody of a Minor (No. 1), 377 Mass. 876, 883, 389 N.E.2d 68 (1979). In light of this, the judge was free to discredit her testimony. See Care & Protection of Three Minors, 392 Mass. 704, 711, 467 N.E.2d 851 (1984) (" It is within the judge's discretion to evaluate the credibility of witnesses and make his findings of fact accordingly" ).
In addition, the record supports the finding that the mother has not benefited from the department's programs and services relating to domestic violence. The judge thoroughly outlined a vast history of domestic violence, which the mother either minimized or denied. The mother denied evidence that the father and Adrienne, then age fifteen, were in a sexual relationship, and faulted the department for allowing Adrienne to visit the father unsupervised. Most notably, the mother acknowledged that a condition of her service plan was to avoid the father. However, in an effort to work things out between them, she visited him approximately thirty times while he was incarcerated. The judge did not err in finding that the mother failed to appreciate the harm domestic violence inflicted on her and her children, and that failure would prevent her from keeping her children safe from future harm. See Adoption of Don, 435 Mass. 158, 160 n.2, 755 N.E.2d 721 (2001).
The mother next challenges the seventh factor of G. L. c. 210, § 3, which, contrary to her argument, was applied solely to John. The judge found that John, with the exception of a two-week stay at another home, has been in the same foster home since coming into the department's care. Though there was no direct evidence that removing John from his foster home would cause him substantial harm, there was evidence that he is happy and has had no problems in his foster home. From this evidence, the judge could infer a strong bond between John and his foster family. See Adoption of Serge, 52 Mass.App.Ct. 1, 9, 750 N.E.2d 498 (2001).
The findings of unfitness against the father were also well supported. The father takes issue with the judge's findings under the thirteenth factor of G. L. c. 210, § 3, contending that the judge improperly ignored his testimony that he would be released from prison shortly after trial. The father, however, misstates his own testimony. When asked repeatedly at trial when he would be released, the father responded that he had no idea. He understood his sentence to be two years, and that he was receiving time off of his sentence for good behavior. His testimony, therefore, was insufficient to establish that his release was imminent. Consequently, the judge was free to consider the father's current incarceration as evidence of his unfitness. See Adoption of Serge, supra at 8 (" Physical unavailability of the parent . . . including for reasons of incarceration, [is] relevant evidence of unfitness" ).
Furthermore, the judge's findings of unfitness, based on the father's past behavior, have ample support in the record, which is replete with instances of domestic violence. See Adoption of Katharine, 42 Mass.App.Ct. 25, 32-33, 674 N.E.2d 256 (1997) (judge may consider past conduct to predict future performance). In addition to the multiple G. L. c. 209A orders against him, the father acknowledged that he engaged in domestic violence in the children's presence. See Custody of Vaughn, 422 Mass. 590, 595, 664 N.E.2d 434 (1996). Moreover, at trial, the father denied leaving marks on the children and refused to recognize his behavior as abusive, instead categorizing it as " incorrect discipline." The judge properly concluded that the father's refusal to acknowledge his behavior as ...