Opinion
14-P-1121
06-02-2015
ADOPTION OF RACHEL (and two companion cases).
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
After a trial, a judge of the Juvenile Court found that the parents of three children were unfit and terminated their parental rights. Various appeals ensued. We affirm.
The mother argues that her parental rights were terminated in error, improperly based on her lifestyle and a misapprehension about her ability to support her children financially. She particularly disputes the termination of her parental rights to Rachel (born in 2000), along with the judge's refusal to order posttermination visitation with Rachel, because of the bond between them and Rachel's expressed preference to return to the parents. The father argues that the judge erred in finding him unfit and terminating his parental rights. In his view, poor compliance with the Department of Children and Families' (department) service plan is insufficient to support terminating his parental rights. In addition, he contends the judge failed to provide a nexus between his substance abuse and his ability to parent the children. He also challenges the judge's failure to order posttermination and postadoption visitation with Rachel, given the strong bond between Rachel and the parents. Rachel argues that the department failed to provide clear and convincing evidence to support the finding of parental unfitness, and also argues that termination is not in her best interests.
The other two children, Lisa and Amy, support the trial judge's decision in all respects.
Background. The judge heard the following evidence. At the time of trial, the parents had been together for approximately sixteen years, although they had never married. When the present case began on July 20, 2012, the parents were living in a motel room with their then youngest child, Lisa (born in 2009). Rachel, who was then eleven, was living with the paternal grandparents so that she could go to school; she visited on weekends and some other times.
The family had been living in the motel room since early July, 2012, after they had been evicted from the maternal great-grandparents' home; in the interim they had lived briefly in motel rooms in Brockton, Norwell, and Braintree. They also had lost Department of Transitional Aid (DTA) housing for not following the required curfew.
The mother was working as a sex worker in the motel room where the family was living. The department filed a care and protection petition on behalf of both children, after the mother reported that she had been attacked at knifepoint in the motel room at 1:30 A.M. by a man who had answered her "Back Page" magazine sex-for-money advertisement. At the time of the attack, the father was out driving around with the two children, apparently aware that the mother intended to engage in prostitution in the motel room. The department took temporary custody of the children that night.
The mother admitted to engaging in sex work in order to make money.
Thereafter, both the mother and the father resisted assistance from the department to address any of the problems that were identified at the time of the removal. Both failed to submit required drug screens and continued to deny adamantly that they had substance abuse problems; neither attended the substance abuse treatment required under their respective department service plans; and both routinely missed scheduled meetings with the department and lied repeatedly regarding participation in individual counseling and substance abuse treatment, as well as efforts to obtain housing and employment. They continued to live in a motel room rather than seek stable housing and never showed a verifiable source of legitimate income. However, both parents regularly appeared for scheduled visits with their children.
The father, after completing a batterer's evaluation, refused to attend the recommended batterer's intervention program, claiming he did not have a problem with control or anger. When he did finally attend an intake at an outpatient substance abuse treatment center, he was described as "a mess," but refused admission for detox. He also was hospitalized for a lesion on his lung, but left the hospital against medical advice and failed to seek the recommended immediate follow-up medical treatment. He also failed to verify even "under the table" employment.
Batterer's intervention was included in the father's service plan because of a prior restraining order, and because he consistently showed controlling behavior toward the mother: he would dominate conversations with department representatives and "drag" the mother out of meetings with them, even when she seemed willing to participate. He frequently exhibited angry outbursts, and, eventually, arrangements were made for a police detail to be present during his meetings with the department.
The mother, after testing positive for THC and benzodiazepine at the time of Amy's birth in 2013, continued to abuse illegally obtained drugs. She was arrested for possession of oxycodone, and then violated the terms of her probation, triggering a thirty-day period of incarceration, three months after the department took custody of the children. In addition, in that same period, she continued to advertise herself for sex work, even after the earlier incident led to the removal of her children. She was unable to maintain any other steady employment and arrived at her substance abuse treatment intake interview "high as a kite." At that point, she entered and completed a short detox program.
In November, 2009, a G. L. c. 119, § 51A, report had been filed against the mother after Lisa's birth due to the mother's positive drug screen; a case was opened to monitor the family and assist with services.
After they were removed, Rachel and Lisa were placed in foster care with their great aunt and uncle. However, the great uncle was extremely ill, and later died. In May, 2013, the children were placed together with the preadoptive mother, and did very well. At the time of trial, Rachel was participating in individual counseling, as there were concerns about her self-cutting. She also was struggling academically, which was attributed to the prior instability in her life; she was receiving extra help with her school work.
At some point after placement with the preadoptive mother, it was discovered that the parents had given Rachel a cellular telephone, to which they sent "inappropriate" text messages, telling her to tell the judge that she wanted to be returned to her parents.
At the time she was removed from her parents, although otherwise medically up to date, Lisa suffered from extensive dental decay, requiring surgery and ongoing treatment. She also was participating in individual counseling and was said to "struggle[] with encounters with men." The preadoptive mother was able to help her cope with those challenges.
On January 11, 2013, both the mother and the father waived their right to trial, and were found unfit; the department obtained permanent custody of Rachel and Lisa. The department agreed to postpone the issue of the termination of parental rights in order to allow the parents additional time to participate in services and to show sufficient commitment to regaining custody of the children. In May, 2013, the mother gave birth to Amy. In an apparent attempt to hide the pregnancy from the department, she had not received any prenatal care. When she was admitted to the hospital, she denied that she was using drugs; however, she tested positive for opiates, oxycodone, THC, and benzodiazepines. Amy tested positive for THC, opiates, and oxycodone when she was born. Immediately after her birth, Amy was transferred to Tufts Medical Center due to respiratory distress; she remained there while experiencing withdrawal symptoms and later was transferred to Melrose/Wakefield Hospital where she continued to suffer adverse effects from the withdrawal process. When she was discharged on June 25, 2013, Amy was placed directly with the preadoptive mother and her two older sisters as a result of an emergency care and protection action initiated by the department. At the time of trial, Amy was meeting all of her developmental milestones; however, it is unclear whether her prenatal exposure to drugs will affect her development in the future.
The department was willing to continue to work with the parents toward reunification even though the department's goal for the children at that time was adoption.
This care and protection matter, although filed in a different county, eventually was consolidated with the original matter involving the two older children.
The trial occupied two days, February 7, 2014, and February 13, 2014. Although they had notice, neither parent appeared on either day of trial. Rachel, then thirteen years old, testified at trial that she would like to return to the parents, but, if she cannot, she wants to stay with the preadoptive mother; she does not want to move again. Most importantly, Rachel wants to stay with her sisters.
Up until the time of trial in February, 2014, the parents continued to refuse to engage in necessary services, failed to provide drug screens, never appeared to have legitimate employment, continued to live in motel rooms rather than obtain stable housing, and persisted in abusing drugs.
After finding each parent unfit, the judge determined that it was in the best interests of the children to terminate parental rights in order to provide the children with permanence and stability. The judge concluded, "Given the parents' inability to adequately address their own needs, the Court does not believe that they would be able to meet the needs of their children." The judge noted that Lisa and Amy are "well bonded" with the preadoptive mother, and that Rachel is old enough to make known her wishes to see the parents.
Rachel is older than twelve and, therefore, has the statutory right to consent (or refuse to consent) to her own adoption. See G. L. c. 210, § 2.
Discussion. Termination. In determining unfitness, "the department must prove by 'clear and convincing evidence that a parent is currently unfit to further the child[ren]'s best interest[s].'" Adoption of Zoltan, 71 Mass. App. Ct. 185, 187 (2008). "The inquiry is whether the parent's deficiencies 'place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren].'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Failure to follow department service plan tasks, including meetings with the social worker, are relevant in determining parental unfitness. Adoption of Leland, 65 Mass. App. Ct. 580, 585-586 (2006).
Here, there is ample evidence to support the judge's determination that the parents are unfit, including a pattern of neglect, and inability and/or refusal to engage in resources offered by the department to assist them in caring for their children. Both parents continually have failed to acknowledge both their ongoing substance abuse problems and the effect their addiction has had on their children. They consistently were homeless, in the sense that they were living at the homes of various family members, and then, after being evicted and losing DTA housing, moving to various motel rooms. See note 3, supra. Lisa lived in a string of motel rooms with the parents, and, during that time, the mother also used the motel rooms for sex work, apparently with the father's acquiescence. In addition, Rachel found drug paraphernalia in one of the rooms, shortly before she was removed from the parents' care. Lisa's dental problems are ongoing and she requires therapy to cope with her interactions with men and other residual effects of the parents' instability. Amy's addiction to opiates at birth may have long-lasting effects on her development.
Although drug use by a parent, without more, is insufficient to support a determination of unfitness, in this case the numerous examples detailed in the judge's extensive findings clearly demonstrate the link between the parents' drug use, their denial of their problems, and consequent harm to the children. See Adoption of Mario, 43 Mass. App. Ct. 767, 772 (1997); Adoption of Rhona, 57 Mass. App. Ct. 479, 483-484 (2003). "These findings are sufficiently specific and detailed to allow us to ascertain which facts the judge considered and relied upon in determining that the [parents were] currently unfit to parent" Lisa and Amy. Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004).
Similarly, with regard to Rachel, there was sufficient evidence as to the parents' unfitness. "Stability in the lives of children is important, particularly in a case that has continued for a long period of time in the hope that the [parents] could and would successfully rehabilitate." Adoption of Nancy, 443 Mass. 512, 517 (2005). Because of her age, Rachel is "very aware" of her family circumstances and is "enormously frustrated" by her parents' failure "to be better" at addressing the issues that prompted removal of the children. She likely will require long-term therapy to help her cope with the instability she has experienced during her young life; she has had issues with self-cutting and struggles academically, at least in part because she never developed study skills while in the parents' care.
Among other things, Rachel testified at trial that, when she was at the motel with her family on weekends, the mother would leave the motel room and return with cash.
"When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused [her] discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child[ren]'s best interests to end all legal relations between parent and child[ren]." Adoption of Thea, 78 Mass. App. Ct. 818, 823 (2011), quoting from Adoption of Nancy, supra at 515. In issuing decrees terminating parental rights, the judge must "consider the ability, capacity, fitness and readiness of the child[ren]'s parents . . . and shall also consider the plan proposed by the department." G. L. c. 210, § 3(c), as amended by St. 2011, c. 93, § 43. "Because the termination of parental rights is an 'extreme step,' . . . [a] judge [must] articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that she has given the evidence close attention." Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012), quoting from Adoption of Nancy, supra at 514-515.
Here, in considering whether termination would serve the children's best interests, the judge recounted facts with specificity, showing the parents' ongoing neglect and resistance to assistance from the department, clearly indicating that the parents are unwilling, and unable, to achieve fitness to care for their children. In addition, the parents' failure to overcome their long history of addiction in order to take care of their children is a strong indication that neither parent will be able to care for the children anytime in the near future. After waiting several years for the parents to seek treatment for their addiction, "it is not now in their best interests to ask the girls to wait an unknown additional period . . . in the hopes that their [parents] might eventually engage in a meaningful way in [substance] abuse treatment." Adoption of Nancy, supra at 517.
The judge also took into consideration the wishes of Rachel. However, Rachel now receives needed services and experiences consistency in her life; neither is likely to continue were she to be returned to the parents. The judge's finding to this effect was based on the parents' prior neglect and continuing unwillingness to accept any kind of services for themselves. "There can be no doubt that the judge's termination order was based on her assessment of the over-all damage that the [parents'] noncompliance had wrought on the girls' lives." Id. at 519. Under all of the circumstances, we are satisfied that the judge did not abuse her discretion in ordering a termination of parental rights in the best interests of all three children.
Posttermination/postadoption visitation. "Following termination of parental rights, a biological parent has no right 'to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child named there.'" Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013). "[T]he parent whose rights have been terminated is without standing to determine the child's future." Ibid. Although the judge recognized the bond that Rachel shared with the parents, she found that it was in Rachel's best interests to terminate parental rights. As a result of the termination, neither the mother nor the father has standing to appeal the decrees denying posttermination and postadoption visitation with Rachel. Ibid.
The judge also acknowledged that the preadoptive mother is supportive of a relationship between Rachel and the parents, so long as that relationship remains in Rachel's best interests; it was, therefore, within the judge's discretion to decline to order posttermination and postadoption visitation, leaving such visits to the discretion of the preadoptive mother. See Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006).
Decrees affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 2, 2015.