Opinion
18-P-957
04-05-2019
ADOPTION OF JEDEDIAH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and the father appeal from decrees of the Juvenile Court finding them unfit to parent their child, Jedediah, terminating their parental rights, and declining to order posttermination and postadoption visitation. Both argue that the judge placed undue weight on their shortcomings, ignored their achievements, and relied on improper factors in reaching her decision. Concluding that the judge's findings were not clearly erroneous and that the evidence clearly and convincingly supported her ultimate conclusion that the parents were unfit and that terminating their parental rights was in Jedediah's best interests, we affirm.
Background. Both parents suffered from substance use disorders and were heroin addicts for most of their adult lives. The mother began using heroin at age eighteen. She became pregnant with Jedediah when she was twenty-three. She tested positive for heroin three times while pregnant, the last time four months prior to his birth. The father, who turned thirty-five the week after Jedediah was born, began using heroin intravenously at age nineteen. The judge noted that the father stopped using heroin after Jedediah's birth.
The mother stopped using heroin, and started taking methadone, during her pregnancy. Jedediah was born with methadone in his bloodstream and was immediately transferred to the neonatal intensive care unit because of the severity of his withdrawal symptoms; he remained in the hospital for two weeks. When he was discharged into his parents' care, he weighed just over six pounds and was referred to the Grow Clinic at Boston Medical Center (BMC).
For the first few months after Jedediah's birth all appeared well. The parents, who were living in the South Boston section of Boston with the paternal grandmother, kept Jedediah's appointments at the Grow Clinic. However, about the time Jedediah's Grow Clinic appointments were reduced from twice per month to once per month, allegations of neglect began to surface. The parents were abusing prescription medications and, due in part to the paternal grandmother's mental illness, the home was unsanitary. The Department of Children and Families (department), which had been investigating the report of neglect arising from Jedediah's birth, opened a case for services.
When Jedediah was about six months old, the parents moved to a family shelter in Attleboro. A few weeks later, the parents arrived at the South Boston Community Health Center (health center) in Boston, where Jedediah was a patient, appearing to be under the influence of drugs. Jedediah had not gained any weight, and in fact had lost four ounces, in the month since his last appointment. The department later learned that the mother had cancelled several medical appointments at the health center and had terminated Jedediah's treatment at the Grow Clinic. Jedediah was taken to BMC by ambulance. The parents, for their part, denied having used drugs but would not consent to urine screens. The department took emergency custody of Jedediah.
At this point, both parents had stopped using heroin and were receiving regular methadone treatment at the Community Substance Abuse Centers (CSAC) in Boston. The mother had also been prescribed a low dose of Klonopin, and the father had been prescribed two other medications, but their prescriptions were not current. When the department obtained the mother's recent drug screens showing no heroin use, it agreed to release Jedediah to her, but not to the father because he had been taking nonprescribed medications.
The mother and Jedediah together entered a shelter program in the Brighton section of Boston. However, in violation of the shelter's rules and ignoring warnings from the shelter's staff, the mother and Jedediah spent many nights away, staying either with the maternal grandmother or with the paternal grandmother. The mother also failed to comply with the condition of her service plan that she enter an intensive outpatient treatment program to address her chronic substance use disorder. Because of the mother's many absences, the shelter terminated her placement there. Due to lack of housing, as well as reports that the mother had been arriving at the shelter in an intoxicated state, the department took custody of Jedediah. At ten months old, he was placed in the foster home where he was living at the time of trial.
Five months later, the department tried for the second time to reunify the mother and Jedediah, again without the father because of his continued use of nonprescribed medication. The department first arranged a weekend visit. Jedediah was returned to the mother at the paternal grandmother's house in South Boston on a Friday, and the mother was informed that Jedediah had a medical appointment at BMC on the following Monday. Jedediah became sick over the weekend, and after the medical appointment, the department permitted Jedediah to stay with the mother rather than return to the foster home where other children were ill. A few days later the mother failed to take Jedediah to a scheduled appointment with an eye doctor.
Although the mother was supposed to meet the foster mother at BMC for the appointment, she misunderstood the arrangements and failed to do so.
The evening before the eye appointment, the father successfully completed the Nurturing Father's program assigned under his service plan. The mother and Jedediah attended the graduation ceremony, where the mother appeared to be under the influence. The next day her case worker asked her to appear at the department's office. When she arrived, Jedediah had a bump on his head, for which the mother gave inconsistent explanations. The department returned Jedediah to the foster mother.
The department initiated one more attempt to reunify Jedediah with both parents, which required them to be admitted to a residential treatment program for families. While they were on the waiting list, the mother asked the department to place Jedediah with her at a different residential treatment program. The case worker demurred as he had been unable to confirm the parents' compliance with services at their methadone clinic. The parents responded angrily and hostilely. Shortly thereafter, the department abandoned the reunification plan in favor of an adoption plan.
Prior to the change in goals, the parents had been partially complying with their service plans. Both received regular treatment at CSAC, and both began seeing a psychiatrist, Dr. Mark Howard. The father completed the Nurturing Father's program. The mother, however, did not engage in the recommended intensive outpatient program for substance use.
After the change in goals, their compliance fell off. The mother enrolled in Mom's Project, which provides outpatient recovery services, but attended only sporadically and ultimately abandoned the program. When the department learned that both parents continued to use nonprescribed drugs, their case worker asked them to obtain referrals for treatment programs from their counselor at CSAC, but this did not occur. The mother later returned to Mom's Project and participated regularly for a few weeks, but again stopped attending. A clinician expressed concern that the mother was using nonprescribed medication. The mother told the case worker that she would be entering a residential treatment program, but she never followed through. In addition, both parents withdrew the releases that had permitted the department to communicate with their clinicians.
Although the case worker testified that the father was in compliance with his service plan as of March 2017, and the judge so found, his engagement was limited to keeping up with his methadone treatment and seeing Dr. Howard once a month. Dr. Howard treated the mother for mood and anxiety disorders, and the father for mood and anxiety disorders as well as posttraumatic stress disorder and opioid dependency (in remission). Dr. Howard testified that the father's prognosis for management of his mood and anxiety issues was "fair or guarded, but has the potential to be good," if he maintains his sobriety, and the mother's prognosis "is a similar one." To Dr. Howard, maintaining sobriety means "abstinence from in particular opiates and IV drugs," not marijuana, "although we'd love to see her discontinue use of that."
Specifically, he diagnosed her with panic disorder without agoraphobia, moderate recurrent depressive disorder, and a substantial trauma history.
At the parents' request, a new social worker was assigned to their case. They moved into a one-bedroom apartment, with a roommate occupying the living room. The judge did not credit the mother's testimony that she was employed and earning income as a personal care assistant for the roommate. The mother planned to enter a shelter with Jedediah, and later to find an apartment, if Jedediah was returned to her. The father planned to look for a new apartment.
The parents' visits and interactions with Jedediah were, for the most part, appropriate. A few visits were cancelled when they failed to confirm or failed to attend, and they often arrived late. They were provided with a copy of Jedediah's nutrition plan, which prohibited sweets, but they either did not understand its importance or decided it did not apply to their visits.
One joint visit was cancelled when neither the mother nor the father called to confirm. The mother failed to show up for one of her scheduled visits, and the parents missed two scheduled joint visits.
The judge based her unfitness and termination decisions on the parents' "insufficient progress toward eradicating the issues that brought [Jedediah] into care," emphasizing their failure to address their substance use and mental health issues, their inability to manage Jedediah's special medical needs, and their failure to establish stable housing.
Discussion. Our standard of review is well established, as recently described in Adoption of Ulrich, 94 Mass. App. Ct. 668, 675-676 (2019):
"A person's right to parent her child can be terminated only if a judge determines that she is unfit and that termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 514 (2005). . . . '[P]arental unfitness must be proved by clear and convincing evidence,' Adoption of Rhona, 57 Mass. App. Ct. 479, 488 (2003), and we review the judge's determination of the child's best interests for an abuse of discretion. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). 'Subsidiary findings must be supported by a preponderance of the evidence, Adoption of Helen, 429 Mass. 856, 859 (1999), and none of the findings will be disturbed unless clearly erroneous. Adoption of Greta, 431 Mass. 577, 587 (2000). Custody of Eleanor, 414 Mass. 795, 799 (1993). We review the judge's findings with substantial deference,
recognizing [her] discretion to evaluate a witness's credibility and to weigh the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997).' Adoption of Nancy, supra at 515."
1. The mother's appeal. The mother contends that the judge did not conduct an "even-handed assessment of all the relevant facts," Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 261 (1978), and ignored, rather than faced, "[t]roublesome facts" in reaching her decision, id. at 260, quoting Adoption of a Minor (No. 2), 367 Mass. 684, 688-689 (1975). Most of these contentions, however, reduce to a disagreement with the judge's credibility assessments or the weight the judge chose to place on certain facts. For example, there was ample evidence that the mother was under the influence of drugs when she arrived at the medical appointment on October 8, 2015, appearing lethargic, slurring her speech, unsteady on her feet, and confused. There was also evidence, which the judge discussed, that the parents were just tired from rides that began at 6 A.M. that day to various medical appointments. The judge found the evidence that the parents were under the influence to be more credible. Making unfavorable findings does not equate with ignoring troublesome facts or taking an unbalanced approach. "[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. at 799.
Likewise, the mother assails the judge's conclusion that she failed to provide adequate care for Jedediah's medical needs based on evidence that the mother repeatedly missed or cancelled doctor's appointments, that Jedediah lost weight over the course of one month when he was an infant, and that the mother did not follow Jedediah's nutrition plan during one visit. The mother emphasizes the many medical appointments that she did not miss and suggests that Jedediah's failure to thrive might be the result of an underlying medical condition rather than her parenting. The facts remain, however, that Jedediah was born addicted to methadone, spent the first two weeks of his life recovering in the neonatal intensive care unit, and thereafter his precarious health required special vigilance. "[A]lthough a parent's shortcomings, viewed in isolation, would not preclude his or her meeting the law's somewhat undemanding standard of parental fitness, they nevertheless do so when viewed against the more complex and attention-consuming needs of a child who has been impaired in his development by early neglect." Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990).
The mother faults the judge for attributing the father's failures to her, arguing, for example, that it was the father who offered Jedediah powdered doughnuts at a visit, tried to sneak them into his backpack, and said that sweets during weekly visits "weren't going to hurt him." While the mother is correct that the father was the primary offender in this regard, the judge's finding that "Mother and Father brought powdered donuts for [Jedediah]" is not clearly erroneous; it describes a visit at which both were present, and accurately reflects the social worker's testimony that "even after presenting them with the meal plan they tried to give the child some powdered doughnuts." Moreover, the judge may properly evaluate the parents' influence on each other as it affects the welfare of their child. See Petition of the Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 395 Mass. 180, 186 (1985).
The mother argues that many of the judge's findings regarding the testimony of Dr. Howard were clearly erroneous. They were not. The judge's finding that the mother's marijuana use could have significant effects on her mental health correctly reflected Dr. Howard's testimony that the use of marijuana could exacerbate anxiety and depression disorders. Contrary to the assertion in the mother's brief, Dr. Howard did in fact testify that on "at least one occasion [the mother] also came up positive for another anxiety medication known as Valium." When Dr. Howard testified that the mother's prognosis was "fair," but only if she remained sober, he was indeed referring to not using opiates. However, the judge did not err by emphasizing the caveat "if they maintain sobriety," and then noting that "[b]oth have tested positive for non-prescription medication and marijuana on more than one occasion during the life of this case." The judge could reasonably conclude that the parents' continued use of illicit substances cast doubt on their ability to remain opioid free.
The judge also correctly relied on the mother's housing and employment instability. While "[p]overty is not a reason upon which to base a determination of unfitness," Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006), the judge may properly consider a parent's "inability to hold a steady job and to manage her financial affairs responsibly." Care & Protection of Three Minors, 392 Mass. 704, 713 n.12 (1984). See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004); Custody of a Minor, 21 Mass. App. Ct. 1, 8 (1985).
The mother accurately points out that the judge's finding that she "has a well-documented history of failing to follow the rules of the shelters she has resided in" is in fact based on the mother's experience with only one shelter. This factual error is "insignificant given the extensive evidence concerning the mother's unfitness." Care & Protection of Lillith, 61 Mass. App. Ct. at 136 n.6.
The primary reason for the judge's termination decision was that the mother utterly failed to address the root cause of her unfitness, her lifelong substance use disorder. The department's service plan emphasized the need for programming and therapy for the mother to understand and address this issue, but the mother only minimally engaged in such services. As a result, three attempts at reunification were unsuccessful. We discern no reason to disturb the judge's determination that the mother was unfit as a parent and unlikely to improve.
The judge's finding that Dr. Howard had concerns about the mother's cognitive functioning was not clearly erroneous, as it accurately reflected his testimony. Although the department also had such concerns, the judge did not rely on the mother's cognitive abilities in her ultimate unfitness and best interests determinations. With respect to the mother's (and the father's) failure to engage in the neuropsychological evaluations the department requested, the judge recognized that a referral from Dr. Howard was necessary, but he did not think it was "indicated" for the treatment he was providing. (Dr. Howard testified that he never personally received a request for a referral; the judge noted that Dr. Howard did not return the social worker's calls concerning the referral.) Even if the parents' failure to pursue the evaluations is excusable, it is just one of several examples of their failing to consistently engage in the necessary counselling, therapy, and evaluations that the department recommended.
2. The father's appeal. The father, like the mother, faults the judge for not placing greater weight on his successes, particularly his success in overcoming his heroin addiction. He also contends that the judge relied on stale evidence of his drug use. While the father's recent success is commendable, the judge did not abuse her discretion in taking the father's drug use into account in determining that he was unfit as a parent and likely to remain so.
A judge may properly consider a parent's lengthy past involvement with drugs in determining future fitness. See Adoption of Elena, 446 Mass. 24, 33 (2006). After giving up heroin the father repeatedly tested positive for nonprescribed medications, admitting to taking such medications, regularly used marijuana, and appeared on several occasions to be impaired. Moreover, his claim of sobriety is weakened by his decision to revoke his releases, which prevented the department, and the judge, from accurately assessing his use of substances.
The father contends that the finding of unfitness was unwarranted because he had meaningfully participated in services and at a March 2017 foster care review was found to be in compliance with his service plan. However, a careful review of the record discloses that his compliance throughout the case consisted of completing one Nurturing Father's program, regularly obtaining methadone treatment, and seeing Dr. Howard once per month. Again, the revocation of his releases prevented the department from confirming his compliance. The judge did not err or abuse her discretion in concluding that the father did not consistently engage in recommended services or increase his capacity to care for Jedediah.
With respect to the neuropsychological evaluation, see note 6, supra.
The father, like the mother, contends that the judge erroneously attributed evidence of the mother's unfitness to him -- claiming that he was not at fault when the mother failed to take Jedediah to certain medical appointments. Yet at the same time, he takes credit for the times that Jedediah did appear at his appointments when both parents had custody. As with the mother, the judge properly assessed the parents' influence on each other. See Petition of the Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 395 Mass. at 186.
The judge's finding of unfitness with respect to the father permissibly took into account his lack of financial responsibility -- such as the fact that he had no intention of searching for work, failed to complete the paperwork for Social Security disability income benefits, and "squander[ed]" his money on marijuana -- and the absence of any "indication of how he plans to attain and then maintain a stable home environment" for Jedediah. See Custody of a Minor, 21 Mass. App. Ct. at 8 (father "unable to offer . . . a stable home environment or financial support"). The father's attempt to blame the department for his failure in this regard is unavailing. While the department's decision to retain custody of Jedediah made the parents ineligible to stay at the Sage House family shelter, the department's decision was based on the parents' unfitness. The department is not obligated to place a child in danger of abuse or neglect so that the parents can receive housing assistance.
Finally, the father contends that the judge abused her discretion by failing to order visitation. "[A] judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). A judge must balance the benefit of an order of visitation with the intrusion that such an order imposes on adoptive parents, "who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. 53, 64-65 (2011).
The judge found that "[t]here was no evidence presented at trial that there is a significant bond between Jedediah and either parent or that severing such a bond would result in irreparable harm to [Jedediah]." The father points to some evidence in the record of affection between [Jedediah] and himself, but nothing that compels the conclusion that the judge's finding of no "significant" bond is clearly erroneous. "[T]he judge considered the relevant factors and her decision did not 'fall[] outside the range of reasonable alternatives.'" Adoption of Garret, 92 Mass. App. Ct. 664, 676-677 (2018), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Conclusion. Despite the moral overtones of the term "unfit," neither the judge's decision nor our affirmance thereof is any indication that the parents do not love their son. "The inquiry instead is whether the parents' deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Garret, 92 Mass. App. Ct. at 665 n.3, quoting Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). The judge did not abuse her discretion in concluding that the parents were unfit, terminating their parental rights, and declining to order posttermination and postadoption visitation.
Decrees affirmed.
By the Court (Vuono, Massing & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 5, 2019.