Opinion
16-P-1268
03-30-2017
ADOPTION OF BRET.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree issued by a judge of the Juvenile Court terminating her parental rights to her son, Bret. The mother claims the judge abused his discretion in terminating her parental rights and in failing to order posttermination or postguardianship visitation. We affirm.
Background . We summarize the relevant facts from the judge's comprehensive findings, reserving some details for discussion of the issues. The Department of Children and Families (department) first became involved with the mother and Bret in 2010, when Bret was born addicted to Vicodin. Bret remained in the hospital for ten days and was treated for withdrawal symptoms. The mother entered drug rehabilitation treatment and the department closed the case. Three years later, the mother was hospitalized for psychiatric treatment twice in one month due to suicidal thoughts. As a result of her suicidal thoughts and allegations of her and the father's use of marijuana while caring for Bret, a G. L. c. 119, § 51A, report was filed. The allegations of Bret's neglect were found to be supported.
Bret's father and the mother were not together when Bret was born. The father has waived his parental rights to Bret.
Weeks later, the mother intentionally overdosed on prescription medication in front of her other child (Bret's younger half-brother) in an attempt to commit suicide. Another 51A report was filed and allegations of neglect were supported once again. Immediately following her discharge from the hospital for the suicide attempt, the mother reported to police that her boy friend raped her at his home. Because Bret was present during the incident, a 51A report alleging neglect was filed. The report was found to be supported. At that time, the department assumed emergency custody of Bret. See G. L. c. 119, § 51B(c ).
Bret's half-sibling is not a part of this case.
Rape charges against the mother's boy friend were subsequently dismissed.
Soon after the department assumed custody, the mother began inpatient treatment for her drug addictions. However, she left treatment after five days, against medical advice, and declined all outpatient and follow-up appointments.
The mother's cooperation with the department has been "at best, limited." The department assigned the mother service plans which included requirements that she maintain stable housing and reliable income, complete a domestic violence program, enter a substance abuse program, remain substance-free, attend therapy, and follow a visitation schedule. During a review of her compliance with her first service plan, the department reported that the mother failed to complete a single task. She also refused to accept departmental services aimed at improving her parenting skills, and missed most of her court dates regarding this case. Immediately prior to trial, the mother made some progress in complying with her service plan, including attending therapy for her anxiety and depression and completing a domestic violence program.
For the first three months following Bret's removal from her care, the mother consistently attended weekly one-hour visits with him. She then began canceling and failing to attend visits. As a result, the department decreased the visits to every other week. At one point, the mother told the department she was moving to Texas, and Bret was informed. A termination visit was held, but four days later, the mother told the department that she was no longer moving, and the visits resumed. The mother continued to cancel and miss visits and, as a result, the department reduced them to monthly.
The record reflects the mother's continuous struggles with substance abuse and mental health issues. She has been diagnosed with borderline personality disorder, bipolar disorder, posttraumatic stress disorder, cannabis use disorder, benzodiazepine use disorder, and attention deficit disorder. In addition to her suicide attempt in 2014, she also attempted suicide once prior to Bret's birth. In the weeks prior to trial, the mother finally began to address certain mental health issues through attending therapy.
Throughout Bret's life, the mother has failed to secure stable housing. She has frequently been unemployed and unable to pay bills. Additionally, she has an extensive criminal record and a history of involvement with abusive partners. At the time of trial, she was pregnant with her third child. A department social worker testified that the pregnancy concerned her because the mother asked her what would happen if the child tested positive for drugs at birth.
For more than one year prior to the start of trial, Bret lived with the maternal aunt. The department determined that the maternal aunt "met all of [Bret's] needs" and that Bret had "developed a trusting relationship with Maternal Aunt and made gains in her home." At trial, the department proposed a plan in which Bret would remain with the maternal aunt and she would become his guardian. Bret's father supported the department's plan.
Notably, Bret's teacher reported that around visitation days with the mother, Bret was "a completely different person" and asked her not to let the mother or anyone else take him away. Bret also experienced night terrors after visits with the mother. The maternal aunt also testified that on visitation days, Bret often asked to stay home because he knew he would be picked up from school and brought to visit with the mother.
Discussion . 1. Parental unfitness . The mother challenges several of the judge's subsidiary findings and claims that his decision to terminate her parental rights to Bret was not supported by clear and convincing evidence. "[I]n care and protection proceedings, subsidiary evidentiary findings need only be proved by a fair preponderance of the evidence. Taken together, these facts must then prove parental unfitness, since it is the ‘critical inquiry,’ by clear and convincing evidence." Care & Protection of Laura , 414 Mass. 788, 793 (1993). We review these findings for clear error. See Custody of Eleanor , 414 Mass. 795, 799 (1993) ; Adoption of Jacques , 82 Mass. App. Ct. 601, 606-607 (2012).
The record here amply supported the judge's ruling that the mother was unfit to continue parenting Bret. Based on the facts established at trial, the judge found that the mother's substance abuse and mental health issues, her failure to follow department service plans, her inability to secure stable housing and employment, her inconsistent attendance at visits with Bret, her history of choosing abusive partners, her criminal record, and her overall physical and emotional neglect of Bret, including her drug use while pregnant which led to Bret being born addicted to Vicodin, as well as her suicide attempt while she was Bret's caretaker, all properly factored into the judge's determination of the mother's unfitness. See Care & Protection of Bruce , 44 Mass. App. Ct. 758, 761 (1998).
We pause to note that the mother has shown evident affection toward Bret, and none of the judge's findings negates this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love her child. The inquiry instead is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce , 44 Mass. App. Ct. 758, 761 (1998).
We discern no merit in the mother's claim that certain of these findings were unsupported or contradictory to the evidence presented. The findings she highlights on appeal either show no contradiction or are based on weight and credibility determinations by the judge, which we must give deference. See Custody of Eleanor , supra ("[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference"). To the extent that the mother can point to actual errors in certain of the judge's findings, they are of little consequence because none is "central to the ultimate conclusion of unfitness." Care & Protection of Olga , 57 Mass. App. Ct. 821, 825 (2003).
For example, the mother claims that finding 11, which states in part, "[i]n 2010, Mother was dishonest about her opiate use during her pregnancy with [Bret]," is contradicted by a department assessment years later in which the mother "reported that she had an opiate addiction before." The mother also points to her admission that shortly after Bret's birth, she entered a drug rehabilitation program. However, neither of these facts contradicts finding 11, which is supported by an earlier department assessment in the record in which an investigator noted that the mother "reported that she drinks alcohol but does not do opiates," despite both she and Bret testing positive for opiates upon Bret's birth.
For example, the mother argues that finding 37, which states that she "signed provider releases [requested by the department]," and finding 48, which states that she "did not sign releases" are contradictory. Assuming finding 48 was erroneous, it was in no way "central to the ultimate conclusion of unfitness," Care & Protection of Olga , 57 Mass. App. Ct. at 825, given the amount of other evidence showing the mother's limited cooperation with the department as well as the other substantial evidence demonstrating her parental unfitness.
2. Best interests of the child . The mother next claims that even if she were properly determined unfit at the time of trial, termination of her parental rights was not in Bret's best interests because her unfitness was likely to be temporary. We disagree. This court reviews a determination of whether termination is in a child's best interests for an abuse of discretion. Adoption of Ilona , 459 Mass. 53, 59 (2011).
The judge properly applied the factors under G. L. c. 210, § 3, in concluding that, because of her failure to consistently engage in services to remedy her mental health issues and parental unfitness, her decision to leave substance abuse treatment against medical advice, her failure to maintain significant and meaningful contact with Bret, and her continued lack of progress over the last sixteen months, it is highly predictive that the mother's issues will continue unabated for the foreseeable future. See Adoption of Carlos , 413 Mass. 339, 349-350 (1992). The judge also weighed these factors against the merits of the department's permanency plan, in which Bret would remain with the maternal aunt, where he had been living and thriving for the past year. The judge's findings of fact therefore amply supported a determination that the mother's deficiencies were unlikely to be temporary and that termination of her parental rights would be in Bret's best interests. See Adoption of Nancy , 443 Mass. 512, 517 (2005). Accordingly, we discern no abuse of discretion in the judge's thoughtful consideration of the best interests of Bret.
We also disagree with the mother that the judge erred in relying on past deficiencies in determining parental unfitness. A pattern of past parental conduct is relevant to the assessment of both current and future parental fitness. See Custody of Two Minors , 396 Mass. 610, 619-621 (1986) ; Adoption of Larry , 434 Mass. 456, 469 (2001). In his findings, the judge acknowledged the mother's recent positive steps, including her meeting with a therapist as well as her completion of a domestic violence program. However, the judge reasonably determined these steps were not enough to overcome the mother's current or future unfitness. See Adoption of Lorna , 46 Mass. App. Ct. 134, 143 (1999). The judge also explicitly discredited the mother's testimony that she was fully compliant with department service plans based on the contradictory testimony of the department social worker.
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3. Visitation . The mother claims that the judge abused his discretion in failing to order posttermination or postguardianship visitation. We disagree. Once it is established that a parent is unfit, any visitation order is left to the discretion of the trial judge. See Adoption of Ilona , 459 Mass. at 65-66. The judge must base this decision on the child's best interests. Adoption of Vito , 431 Mass. 550, 553 (2000).
When determining the best interests of the child, the judge should consider whether there is "a significant, existing bond with the biological parent." Id . at 563. The maintenance of such a bond is especially important in circumstances in which a child is in a transitional period in order to "assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Id . at 564-565. The judge may also consider whether the child "has formed strong, nurturing bonds with his preadoptive family." Adoption of Rico , 453 Mass. 749, 754 (2008) (quotation omitted). Moreover, the judge may explicitly order that visitation be at the discretion of the legal custodian or adoptive parent, taking into consideration the child's best interests. Adoption of Ilona , supra at 66.
Here, Bret had been living with the maternal aunt for more than one year. As the judge stated, "[Bret] has become a full member of Maternal Aunt's family. ... [She] provides the consistent, stable, loving home environment that [Bret] needs." The judge also found that "Maternal Aunt crafts her work schedule around [Bret's] needs, brings him to and from school, facilitates relationships between [Bret] and his brother, [and] Father and Mother." Meanwhile, the mother had missed many scheduled visits with Bret. The record also showed that Bret was anxious about visits with the mother and often had night terrors as a result.
Based on the evidence presented at trial, the judge properly determined that Bret did not have a "significant, existing bond" with the mother and had, in fact, already "formed strong, nurturing bonds" in the maternal aunt's home. Accordingly, the judge did not abuse his discretion in ordering that posttermination or postguardianship contact be at the discretion of Bret's guardian, taking into account his best interests at the time.
Decree affirmed.