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Adoption of Ilian

Appeals Court of Massachusetts, Bristol

June 28, 2017

ADOPTION OF ILIAN. [1]

          Heard: May 3, 2017.

         Adoption, Dispensing with parent's consent. Minor, Adoption. Parent and Child, Dispensing with parent's consent to adoption. Practice, Civil, Findings by judge. Department of Children & Families.

         Petition filed in the Bristol County Division of the Juvenile Court Department on August 23, 2013.

         The case was heard by Siobhan E. Foley, J.

          Matthew P. Landry, Assistant Attorney General, for the Department of Children and Families.

          Abigail H. Salois, Committee for Public Counsel Services, for the father.

          Diane Messere Magee for the child.

          Present: Kinder, Henry, & Desmond, JJ.

          KINDER, J.

         Following trial, a Juvenile Court judge found that Ilian's parents were unfit to parent him and that termination of their parental rights was in Ilian's best interests, and she accordingly issued decrees terminating their parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. The judge approved a plan put forward by the Department of Children and Families (DCF) for Ilian's adoption by the foster family with whom he had been living for eighteen months. On appeal, the father claims error in the termination of his parental rights in light of his plan for a paternal cousin (cousin) to serve as Ilian's caregiver. The father contends that the judge failed to conduct an "even-handed assessment" of the two plans. We agree that the judge's assessment of the father's plan should have been more explicit. More detailed findings regarding the cousin's credibility as a witness and suitability as a caregiver would have clearly demonstrated the required even-handed assessment. Nevertheless, for the reasons that follow, we conclude that the judge adequately considered the father's alternative plan and properly concluded such placement was not in Ilian's best interests.[2] Accordingly, we affirm.

         Background.

         We summarize the relevant facts, which have ample support in the record. Ilian was born in May, 2011, and was almost five years old at the close of the trial. DCF's first involvement with Ilian's family was in September, 2012, when DCF received a report pursuant to G. L. c. 119, § 51A (51A report), for neglect, alleging that Ilian was present when the father shot a sixteen year old boy. Ultimately, DCF's investigation did not support the claim that Ilian was present at the shooting. However, the father was convicted of the underlying criminal offenses and sentenced to four to five years in State prison. The father was incarcerated from the time of his arrest in 2012 through the termination of parental rights trial in the Juvenile Court trial in 2016. At the time of the termination trial, his release date was uncertain. There was no evidence that the father had ever been Ilian's primary caregiver.

         After the father's arrest, the mother's life became increasingly unstable. She was unable to maintain a home and lived with friends and in homeless shelters. Eventually, the mother moved into an apartment with a woman who suffered from alcoholism. In August, 2013, a second 51A report was filed after the mother and her roommate were involved in a violent altercation. Each woman claimed to have been stabbed by the other. The mother was arrested. At the time of her arrest, the home was in a "deplorable" condition and Ilian was "filthy." DCF assumed temporary custody of Ilian and placed him with the maternal aunt. At the time, Ilian was just over two years old and was exhibiting developmental delays, including a profound speech problem.

         DCF's initial plan to reunify Ilian with his mother was changed to adoption in February, 2014. In March, 2014, another 51A report was filed alleging neglect by the maternal aunt and, on DCF's investigation, the allegations were supported. In May, 2014, Ilian was removed from the aunt's home and ...


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