Opinion
14-P-197
11-12-2014
ADOPTION OF ADDISON (and a companion case).
NOTICE: Decisions issued by the Appeals Court 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from decrees of the Juvenile Court entered on July 25, 2013, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, finding two children to be in need of care and protection, committing the children to the custody of the Department of Children and Families (DCF), and terminating the parental rights of both parents. On appeal, the mother argues that her parental unfitness was not proved by clear and convincing evidence and that termination of her parental rights was not in the best interests of the children. The mother further contends that the judge impermissibly relied on inadmissible evidence in making her findings of fact and reaching her conclusions of law.
The father does not appeal.
1. Standard of review. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). The parental unfitness standard and the best interest of the child standard are not "separate and distinct, but reflect different degrees of emphasis on the same factors." Adoption of Nancy, 443 Mass. 512, 515-516 (2005) (citation omitted). As it is within the purview of the trial judge to weigh the evidence, assess the credibility of witnesses, and, accordingly, make findings of fact, id. at 515, the judge's findings will remain undisturbed unless shown to be clearly erroneous. Adoption of Jacques, supra at 606-607.
2. Evidentiary issues. The mother takes issue with the trial judge's decision to admit in evidence several DCF reports, including three G. L. c. 119, § 51B (§ 51B), investigative reports and six letters from social workers, all of which had been developed in regard to her older son, Robert, whose care and custody are not at issue in this case.
Robert does not share the same father as Addison and Norma. Robert was the subject of a separate care and protection petition that was filed in the trial court approximately one year before the current petition.
A. General Laws c. 119, § 51B, investigative reports. The mother argues that three of the trial judge's findings rest on impermissible hearsay, as they were based on § 51B reports from Robert's case that included third-party statements. However, as discussed in Adoption of George, given the number of people that play significant roles in protecting at-risk children, "[i]t would ill serve the interests of the parties or the court if each contributor to the case record were required to present testimony from her or his own mouth." 27 Mass. App. Ct. 265, 273 (1989). Traditional evidentiary rules regarding hearsay are not followed in this context. Care & Protection of Benjamin, 403 Mass. 24, 27 n.5. (1988). Even second-level hearsay is permitted when included in statements, such as those at issue here, made by identified school officials and a medical professional, and reported in routine and reliable fashion so long as the authors of the report and/or the other identified sources of information are available for cross-examination. See Adoption of George, 27 Mass. App. Ct. at 271-274; Care & Protection of Bruce, 44 Mass. App. Ct. 758, 765 (1998). Even if any of these statements had been inadmissible, "any incompetent material which drifted into the record was without consequence," particularly when compared to the 501 other findings of fact made by the trial judge. Adoption of George, supra at 275.
DCF is required to prepare an investigatory report under § 51B, in response to a G. L. c. 119, § 51A, report.
B. Letters from social workers in Robert's case. At trial, the mother objected to the admission, both in whole and in part, of six letters from Robert's social workers. At the time, the mother argued that the unsworn letters from Robert's case should be excluded as they were stale, irrelevant, or both, and included many instances of hearsay. In accordance with the procedure established by Care & Protection of Bruce, the trial judge admitted the evidence subject to certain conditions, namely that: (1) reports must either be limited to a statement of facts, or redacted to exclude opinion, diagnosis, or evaluation and (2) opposing parties must be able to cross-examine the author of the report, should they request so to do. 44 Mass. App. Ct. at 766. See G. L. c. 119, § 21A.
On appeal, the mother posits that the letters in question do not comport with the requirements established by Adoption of Bruce, as they refer to Robert, a different child from a different case. However, "[a] party may not raise an issue before the trial court on one ground, and then present that issue to an appellate court on a different ground." Adoption of Astrid, 45 Mass. App. Ct. 538, 542 (1998). See Adoption of Flora, 60 Mass. App. Ct. 334, 340 n.10 (2004). Therefore, the mother failed to properly preserve for appeal the evidentiary issue regarding the unsworn letters, and we need not consider it here.
C. Extent of reliance on Robert's evidence. The mother argues that the trial judge relied excessively on evidence from Robert's case. We disagree. Parental unfitness and the termination of parental rights "must be viewed in the light of the special needs of the particular children," Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 689, 698 (1985), and the ability of the parent to address the needs of each specific child. See Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986); Adoption of Stuart, 39 Mass. App. Ct. 380, 391 (1995). However, a parent's past conduct has prognostic value, and a judge may "properly consider past parental conduct as relevant to the issue of current parental fitness where that conduct [is] not too remote, especially where the evidence support[s] the continuing vitality of such conduct." Adoption of Larry, 434 Mass. 456, 469 (2001).
The trial judge appropriately considered the mother's conduct in relation to Robert. Moreover, the findings regarding Robert were thorough and were consistent with the remainder of the judge's extensive findings of fact, providing further support for the judge's ultimate conclusion.
3. Termination of the mother's parental rights. On appeal, the mother argues that the termination of her parental rights did not serve the best interests of Addison and Norma. We are not persuaded by the mother's arguments.
A. The mother's unfitness was not temporary. Before terminating parental rights, "it is appropriate for a judge to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary." Adoption of Carlos, 413 Mass. 339, 350 (1992). The mother contends that the evidence at trial demonstrates that she was on the "verge of parental fitness." The judge's finding are to the contrary. A judge may not decline to terminate parental rights "based on a faint hope that the family will succeed if reunited," as considerations of a parent's future fitness "should never be made at the expense of the child, whose interest is paramount." Adoption of Inez, 428 Mass. 717, 723 (1999).
The 504 specific and detailed findings the trial judge made support the judge's determination that the mother's unfitness was not temporary. The findings detail the mother's significant history of drug abuse, mental health issues, extensive involvement with domestic violence, criminal activity, and overall instability. Furthermore, the judge found that the mother "does not understand the extent and nature of her parenting deficiencies" as demonstrated by her "poor decision making abilities, lack of judgment, and inability to follow through with services." These findings have abundant support in the record, and were correctly considered in the determination of unfitness. See Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) (inconsistent assumption of parental responsibilities and instability relevant to best interest analysis); Adoption of Ramon, 41 Mass. App. Ct. 709, 718 (1996) (judge was justified in concluding that parents with long and documented history of domestic violence were not merely temporarily unfit); Adoption of Serge, 52 Mass. App. Ct. 1, 7 (2001) (judge not bound to conclude that mother's six-year pattern of drug abuse and relapse was temporary); Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (drug use properly considered in determination of unfitness when a factor contributing to established neglect).
While we appreciate the efforts made by the mother to improve her situation and her ability to care for her children, we conclude that in the face of her prior history, the judge did not abuse her discretion or commit an error of law in determining that the mother is currently unfit and that her condition is not temporary. See Adoption of Jacques, 82 Mass. App. Ct. at 609.
B. Addison. Referring specifically to Addison, the mother argues that due to the lack of a permanent home for him and his attachment to the mother, termination of her parental rights was not in his best interest. Though it is true that DCF had not placed Addison with a preadoptive family at the time of trial, five potential adoptive homes had been identified. Moreover, "[a]lthough a factor, the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights." Adoption of Jacques, 82 Mass. App. Ct. at 610. In the meantime, Addison's foster mother, with whom he has formed a secure attachment, expressed her willingness to care for him for as long as necessary. Though the judge did determine that Addison and the mother shared a substantial relationship and bond, this does not outweigh the evidence of Addison's significant developmental progress after being removed from the mother's care, or undermine the judge's decision to terminate the mother's parental rights. Adoption of Kimberly, 414 Mass. 526, 530-531 (1993).
This was the number of families DCF deemed to be most promising, from an initial group of twenty who had been originally recruited by DCF.
C. Norma. The mother argues that the judge erred in referring to Addison and Norma collectively, without making child-specific findings regarding Norma. Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004). The mother posits that this failing was especially pertinent because, aside from DCF-sponsored visitation, Norma has never been under the mother's care, making it impossible for the mother to have failed to meet Norma's specific needs. However, the mother overlooks the many findings of fact made specifically regarding Norma and the mother's failure to fulfill her parental responsibilities.
While five months' pregnant with Norma, the mother attempted suicide while in police custody in an ill-founded attempt to "get out of jail," which the judge found indicative of the mother's judgment. On the day that Norma was born, a mandated reporter filed the seventh 51A report in this case, alleging that the mother neglected Norma, as it was unclear if the mother had been taking her prescribed medications. While Norma was still hospitalized, the mother indicated to hospital staff that the child should not be left alone with the father, a level three sex offender, but the very next day, the mother told hospital staff to allow the father to visit with Norma so the mother could run some errands. When it came time to create a hospital discharge plan for Norma, the mother was unable to work with hospital and DCF staff to reach an acceptable outcome. The mother was unable to provide Norma with proper nutrition or to display adequate parenting skills. After an eighth 51A report was filed, DCF received temporary custody of Norma due to concerns about the mother's inability to meet Norma's needs or provide a stable environment due to issues of substance abuse and domestic violence. Even after the mother entered another service plan with DCF, and the mother was granted community visits with Norma, the mother was unable to demonstrate that she had an age-appropriate car seat for the then three month old Norma. The judge's findings of fact are replete with such examples, which examine, in detail, the mother's failure to meet Norma's needs.
In addition, a judge may properly consider a parent's past patterns of conduct for prognostic value, Adoption of Larry, 434 Mass. at 469, and in light of that past conduct, "need not wait for inevitable disaster to happen." Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997).
Conclusion. In sum, the judge's findings of fact and conclusions of law, for which there is more than adequate support in the record, establish that the mother was unfit, her unfitness was not temporary, and termination of the mother's parental rights was in the best interests of Addison and Norma.
Decrees affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.),
Clerk Entered: November 12, 2014.