Lawyers Weekly (June 29, 2020 Issue) "This Week's Decisions:
Where a mother's parental rights with respect to two children were terminated, that order should be affirmed despite the mother's contention that (1) the trial judge erroneously applied an adverse inference from the mother's failure to attend the last two days of the seven-day trial, (2) the judge erred by terminating her parental rights to favor of adoption by the maternal grandmother, and (3) the judge erred by leaving visitation to the discretion of the maternal-grandmother.
"Unlike in criminal proceedings, in child custody and termination of parental rights proceedings judges posses the discretion to draw an adverse inference concerning a parent's fitness from the fact that the parent is present at trial but does not testify. We extended this principle to permit an adverse inference to be drawn against a parent who, having notice of the proceedings, is absent from a child custody or termination proceeding without an adequate excuse.
"In his thirty-seven page findings of fact, conclusions of law, and order, the judge made three references to the mother's absence. In the preliminary summary of the case, the judge stated that he 'was particulary troubled by the mother's misrepresentations as to her whereabouts, and drew a negative inference from her failure to appear'. He next referred to the mother's absence in a paragraph discussing her lack of cooperation with the department, noting that her engagement with the department was minimal, that she was not present for the final two days of trial, and that she testified that she did not wish to cooperate with her ongoing social worker. And finally, in a paragraph concerning the evidentiary significance of a parent's failure to testify, the judge noted, correctly, "This factor by itself is not sufficient to satisfy the department's burden, but rather has been treated as one evidentiary factor, along with other relevant factors, bearing on the issue of the parent's unfitness.' The judge then stated that he drew a negative inference because the mother 'did not attend the last two days of trial, nor did she present a credible reason for her failure to appear.'...
"We discern no abuse of discretion. Even though the mother testified at trial, the judge could reasonably conclude that her failure to appear for the last two days, without an adequate explanation, was evidence that she was not making eforts to be reunited with her children. Perhaps that adverse inference was not particularly strong, where the mother had been present for most of the trial, as recently as one week before her two absences. ...But as with any other subsidiary factural finding, we must 'accord deference to a trail judge's assessment of the credibility of witnesses and the weight of the evidence.'
Here the judge was also warranted in concluding that the mother gave a false reason for her absence, permitting a reasonable inference that the true reason, whatever it was, would not bear favorably on her fitness as a parent.The judge could fairly conclude, as he did, under the totality of the circumstances, the mother's unexcused absences for the last two days of the trial was one evidentiary factor tending to show her unfitness. ...
"The judge did not abuse his discretion in concluding that a complete severance of the mother's rights was in the children's best interests. ...
"The evidence gives no indication whatsoever that visits with the mother would assist Helga in her transtion to adoption by her grandmother but, rather, indicates that it would make the transition more difficult. Although Julia has a bond with the mother, the judge could permissibly infer that the mother's beligerence in dealing with the maternal grandmother would deter, rather than facilitate, Julia's transition."
