Opinion
18-P-1607
07-21-2020
ADOPTION OF SANDRA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After concluding that the mother and father (1) were unable to provide a stable home environment, (2) were unable to address their substance abuse issues, (3) failed to comply with service plan tasks, and (4) were unable to meet the heightened medical needs of their child, a judge of the Juvenile Court terminated the parental rights of the mother and father. The parents, who were represented by separate counsel, each filed a motion for a new trial on the basis of ineffective assistance of counsel. The trial judge denied both motions. We affirm the decrees terminating parental rights and the orders denying the motions for a new trial.
Discussion. 1. Termination of parental rights. In reviewing a decision to terminate parental rights, we give "substantial deference to the judge's findings of fact and decision, and will reverse only 'where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.'" Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation omitted). Adoption of Abby, 62 Mass. App. Ct. 816, 824 (2005).
The parents take issue with several of the judge's findings. They first challenge the judge's finding of an unstable living environment, arguing that they have resided at the same hotel for over twenty-two months. The judge's finding, however, is grounded in the father's claim that the hotel was "just temporary until I can situate things" and in evidence that the hotel was the latest in a series of short-term residences -- many of which terminated abruptly or hostilely.
The mother also challenges the judge's use of quotation marks around the word "living" in finding no. 54. The mother presumes that the use of quotation marks is derisive. We disagree. Rather, it appears that the quotation marks reflect the father's attempts to differentiate between places where he was "living" and places where he was "staying."
For example, the parents had been evicted from a grandparent's house, terminated from a Department of Transitional Assistance shelter, and removed from two other hotel or motel rooms.
The judge's findings that the living conditions had no items for the child and were inappropriate to meet the child's needs were also grounded in the testimony. The social worker testified to not seeing any items for the child in the hotel room and, further, that the hotel room could not even accommodate a crib for the child. Seeing no erroneous findings, we turn now to the determination of unfitness and termination.
We recognize that "[p]arents may not be deprived of custody simply because their households fail to meet the ideals approved by the community" (quotation omitted). Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006). Where there is no space for parents to provide a safe place for their child to sleep, however, such situation can be considered "so overcrowded as to create a situation of abuse or neglect." Id.
To find a parent unfit, the judge must find that the parents exhibit "grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). The judge began by noting a history of unfitness that resulted in the termination of parental rights for the parents' five older children. Although the ultimate issue is whether the parents are fit to raise this child, "it would defy logic here not to consider the [parents'] ability to care for [their] other . . . children." Adoption of Luc, 484 Mass. at 145 n.15. Judges need not "wait for inevitable disaster to happen. . . . They may consider past conduct to predict future ability and performance." Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997).
The parents had a long history with the Department of Children and Families (DCF), stemming from their struggles with substance abuse and housing instability. These struggles led to the termination of parental rights of five other children. The judge properly considered that there was little indication on this record that these issues had been resolved. For example, the parents' housing instability persisted -- their twenty-two month residence at the hotel was simply the latest in a series of temporary placements. Likewise, neither the judge nor DCF could confirm that the parents had resolved their long-term substance abuse issues. The parents failed to submit to drug screens, refused to submit to current substance abuse evaluations, did not engage in substance abuse treatment, and lied about their past drug use. This evidence amply supported the judge's determination that their substance abuse issues persisted. See Adoption of Diane, 400 Mass. 196, 204 (1987) ("The judge could properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness").
The evidence also established that the parents were unable to meet the child's serious medical needs. The judge noted that the parents had a history of missed medical appointments with their older children. This disregard for the children's medical treatment continued to the present. The mother attended only one prenatal appointment with this child, and attended to her own medical needs only when required to do so by DCF. The parents also had no plan for meeting the child's medical needs. When asked about a medical plan, they simply wrote in their response that they would "make sure [the child] goes to all medical app." Given the complexity of the child's medical needs, this was a serious concern. See Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990) ("although 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").
The child was born with her trachea connected to her esophagus. As a result, she required special formula, got sick frequently, and was susceptible to pneumonia. She required over forty doctors' visits in the year preceding trial.
The judge also properly considered the parents' past and present failure to comply with DCF service plan requirements. While we agree that the tasks related to domestic violence did not "appear related to any clearly identified deficiencies," Adoption of Yale, 65 Mass. App. Ct. 236, 242 (2005), these were not the only tasks the parents failed to perform. For example, despite the parents' clear history with substance abuse, they refused to engage in appropriate treatment. The judge properly weighed this refusal against the backdrop of their prior history of substance abuse. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness"). Accordingly, given the parent's continued housing issues, substance abuse issues, failure to comply with service plan tasks, and inability to meet the child's demanding medical needs, the judge's determination that the parents were unfit was proper. Adoption of Virgil, 93 Mass. App. Ct. 298, 302-303 (2018) (housing instability, substance abuse issues, and past neglect can support findings of unfitness and termination); Adoption of Eden, 88 Mass. App. Ct. 293, 294 (2015) (failure to appreciate considerable medical needs supports termination). Given this persistent instability and inability to meet the child's needs, we conclude, therefore, that termination of parental rights was in the child's best interests. See Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) ("It is in the best interests of [the child] to have 'parents' who can and who will . . . provide [the child] with the stable and continuous care and nurturing she needs and will continue to need as a child").
2. Ineffective assistance of counsel. "We review a judge's denial of a motion for a new trial for 'a significant error of law or other abuse of discretion,' granting 'special deference to the rulings of a motion judge who was also the trial judge.'" Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). In determining whether there has been ineffective assistance of counsel, we consider "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The judge considered the motion as a motion for relief from judgment. The denial of such motions are also reviewed for an abuse of discretion. See Matter of M.C., 481 Mass. 336, 344 (2019).
The father asserts that trial counsel's failure to present substance abuse treatment records in a timely manner and to counter unfavorable testimony regarding the father's participation in a parenting program deprived him of effective assistance of counsel. Where the father's history of substance abuse and parenting skills were at issue, we agree with the father that his counsel performed poorly. We also agree that counsel's repeated failure to present available evidence that might have established the father's favorable attempts to address his substance abuse issues and improve his parenting skills does not appear to have been the result of a tactical decision. See Adoption of Azziza, 77 Mass. App. Ct. 363, 369 (2010) (counsel was not effective where counsel "failed to marshal evidence favorable to the father").
Despite having a video in which the testifying witness described the father as an "active participant" in the Nurturing Father's program, counsel failed to refresh the witness's recollection or otherwise counter the witness's testimony at trial that the father's participation in the program was "relatively minimal."
Still, "[u]nder the second prong, prejudice must be shown." Adoption of Azziza, 77 Mass. App. Ct. at 368. "[P]rejudice is not shown if[, as is the case here,] there is overwhelming evidence of unfitness." Id. Both parents had a long history of housing instability, substance abuse issues, failure to comply with service plan requirements, and an inability to meet the medical needs of their children, which persisted to the present, and more importantly, which rendered them overwhelmingly unfit to tend to the serious needs of this child. Accordingly, we see no prejudice flowing from counsel's sub par performance. We conclude, therefore, that the judge did not abuse her discretion in denying the father's motion for a new trial. The mother fares no better. Although we agree with the judge that the mother failed to establish even the first prong of Saferian, such determination is immaterial. Like the father, the mother would also be unable to overcome the second prong.
We note that several of the records that the father says counsel should have presented are dated years before trial began in 2018. Furthermore, while portions of the records might be viewed favorably toward the father, other portions could be viewed unfavorably.
Decrees affirmed.
Orders denying motions for new trial affirmed.
By the Court (Rubin, Maldonado & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 21, 2020.