Opinion
No. 15–P–1623.
06-17-2016
ADOPTION OF STAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a Juvenile Court judge's termination of her parental rights as to her child. See G.L. c. 210, § 3. She claims that the judge's findings about her drug abuse were internally inconsistent, and thus the determination of her unfitness was not supported by clear and convincing evidence. She also claims that the judge improperly considered her failure to establish a permanent residence in finding her unfit. We affirm.
The father stipulated at trial that he was unfit to parent the child and “waived all rights of appeal.”
For the first time on appeal, the mother claims that the Department of Children and Families (DCF) provided her with insufficient support services, and that she was not obliged to comply with some DCF service plan tasks because they do not fit the statutory definition of “services.” These arguments are waived. See Adoption of Willow, 433 Mass. 636, 651 (2001) ; Adoption of Norbert, 83 Mass.App.Ct. 542, 545 (2013). Even assuming the arguments were timely raised, they are unavailing for the reasons delineated, infra.
1. Background. We summarize the facts found by the judge, reserving more detailed discussion in some instances for our analysis of the issues. In March, 2012, while the mother was incarcerated at Massachusetts Correctional Institution, Framingham on drug-related charges, she gave birth to the child. A report was filed pursuant to G.L. c. 119, § 51A, alleging that the mother had neglected the child, that the child's meconium had tested positive for opiates and methadone, and that the mother had tested positive for benzodiazepines, methadone, opiates, and cocaine during her pregnancy. The Department of Children and Families (DCF) initiated an investigation, and on April 19, 2012, DCF supported allegations of the mother's neglect of the child.
On May 22, 2012, the mother was released from incarceration and resumed her residence with the father. DCF social workers visited the mother's residence on May 25, three days after the mother's release, and observed the mother's “somnolent presentation.” At that time, the mother admitted to taking methadone. DCF subsequently developed an emergency service plan, which prohibited the mother from being a caretaker for the child until the mother received substance abuse treatment. The mother agreed to seek substance abuse treatment and remain sober.
Another § 51A report was filed on June 3, 2012, alleging that the mother had gone to the hospital seeking treatment for abdominal pain, and that a urine screen had tested positive for cocaine, opiates, methadone, and antidepressant pills. On June 5, 2012, a Juvenile Court judge issued a care and protection order on behalf of the child based upon an affidavit filed by DCF, and DCF was granted temporary custody of the child.
The mother visited the child only irregularly in March and April, 2013. On May 9, 2013, DCF changed the goal for the child to adoption and subsequently pursued termination of both parents' parental rights at trial. The mother had not visited the child at all between May, 2013, through the second day of trial on January 21, 2015. After May of 2013, the mother made no inquiry of the social worker as to how the child was doing, never sent gifts, clothing, or anything else for the child, and never provided or offered any financial, emotional, or psychological support in any form for the benefit of the child.
The trial was held on November 12, 2014, and January 21, 2015. On February 9, 2015, the judge issued findings and determined that the mother and the father were unfit to care for the child, the “child [was in] need of care and protection,” and, “[b]ased upon clear and convincing evidence, ... the best interest of the subject child [would] be served by a termination of parental rights of mother and father of the subject child.” In addition to ordering the termination of the parents' rights, the judge found, “by clear and convincing evidence, that the adoption plan [proposed by DCF would] serve[ ] the best interest of the child,” and approved that plan. The judge subsequently issued detailed findings of fact and conclusions of law, which included a finding that there is no evidence of any bond or attachment between the mother and the child and that the mother had abandoned the child. This appeal ensued.
The mother did not attend the trial, despite confirmation from several sources that she knew of the scheduled trial date.
2. Discussion. When reviewing a judge's findings in a child custody proceeding, we apply the following principles:
“The judge's findings must be left undisturbed absent a showing that they are clearly erroneous. Moreover, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference. In care and protection proceedings, subsidiary evidentiary findings of fact only need to be proven by a fair preponderance of the evidence. When all of these subsidiary facts are taken together, they must establish parental unfitness by clear and convincing evidence. Parental unfitness must be proven by clear and convincing evidence in both care and protection cases and in proceedings to dispense with consent to adoption under G.L. c. 210, § 3.”
Adoption of Warren, 44 Mass.App.Ct. 620, 625 (1998) (quotations and citations omitted).
The mother principally argues on appeal that the judge's finding that she failed to “establish a sober and healthy lifestyle” was inconsistent with his findings that she never “admitted to any substance abuse” and that the judge did “not have a sufficient evidentiary basis to make a finding that mother had a substance abuse issue.” Therefore, she contends, the judge's determination that she was unfit was not supported by clear and convincing evidence. We disagree.
The present case is easily distinguished from Adoption of Yale, 65 Mass.App.Ct. 236 (2005), upon which the mother relies. There, the court concluded that the mother's failure to comply with a DCF service plan requirement to submit to random urine screenings for drugs was not of great significance because “there [was] no indication that the mother ha[d] a problem with substance abuse .... [, and those service plan tasks did] not appear related to any clearly identified deficiencies.” Id. at 241–242. In the instant case, by contrast, the child tested positive at birth for methadone and opiates, and the mother responded to DCF's concerns about numerous and repeated allegations of her substance abuse issues, including her criminal history, by agreeing to DCF's service plan requirement that she attend drug abuse treatment. Consequently, the judge drew the reasonable inference that “that there was a basis to make [attending substance abuse treatment] one of the tasks in [the mother's] service plan.” The judge considered the mother's failure to “fully engage in drug treatment .... [and] gain the benefit from ... those programs” as one factor, of many, supporting his determination of her unfitness. See G.L. c. 210, § 3(c)(ii), (iii), (v), (vi), and (viii). We discern no error in this consideration. As the mother's counsel acknowledged at oral argument, past history of this nature is relevant and may be considered by the judge. He was therefore entitled to consider the mother's failure to avail herself of substance abuse treatment in light of her recent history. He found that the mother's “ongoing criminal issues and outstanding warrants” were also factors supporting his determination of the mother's unfitness and that her “unfitness [was] likely to continue into the foreseeable future to a near certainty.” See Adoption of Abigail, 23 Mass.App.Ct. 191, 196 (1986) (“A past pattern of behavior is, in any event, not irrelevant; it has prognostic value”). Moreover, the judge specifically found that the “mother's criminal history [was] reflective of substance abuse issues.” Although “evidence of prior criminal convictions will not be conclusive of parental unfitness in every case[, t]o the extent it bears on fitness, ... evidence of prior convictions may properly be weighed in the balance.” Care & Protection of Frank, 409 Mass. 492, 495 (1991). In light of this evidence, the judge's subsidiary finding that the “[mother] did not establish a sober and healthy lifestyle” was not clearly erroneous, and viewed in context, was not inconsistent with his other findings. See Adoption of Eden, 88 Mass.App.Ct. 293, 297 (2015) (appellate court may affirm decree terminating parental rights even where judge's findings contained minor factual errors).
The mother also challenges the judge's finding that she “did not establish ... any type of permanent residence which she made known to DCF.” The claim lacks merit. The judge was permitted to consider the stability of the household that the mother could provide to the child in making a determination of the mother's fitness. See Care & Protection of Three Minors, 392 Mass. 704, 713 n. 11 (1984) ; Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008). This is true even absent a DCF service plan explicitly requiring the mother to provide stable housing. See Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc. to Dispense with Consent to Adoption, 395 Mass. 180, 181–182, 184 (1985) (considering stability of family's housing).
As a more general matter, the evidence of the mother's unfitness was overwhelming. The judge fully and properly considered the required factors set forth in G.L. c. 210, § 3(c), and found factors (i), (ii), (iii), (v), (vi), (vii), (viii), (x), and (xii) applicable to his determination that the mother was unfit. The judge's findings are supported by abundant evidence in the record. Based on those findings, the judge ultimately concluded that
The judge also found that at the time of trial, the mother had not visited the child for almost two years.
“the mother has abandoned this child, manifested by the failure of visitation, the failure of mother to cooperate with DCF, or even contact them to inquire after her child, to follow through on recommended services to help to resolve her issues, or to be involved in court proceedings. When considered in conjunction with her inability to establish any type of living arrangement and her ongoing criminal issues and outstanding warrants, which may well lead to further incarceration and lack of availability to parent this child, this court has found, by clear and convincing evidence, that mother is currently unfit, and that said unfitness is likely to continue into the foreseeable future to a near certainty.”
3. Conclusion. Upon our review of the record on appeal, “we see no error in the decree[ ] terminating the parental rights of the [mother]. None of the [significant] facts found were clearly in error, and, taken together, they support by clear and convincing evidence [the judge's] determinations both of unfitness and that termination is in the best interests of the child [ ].” Adoption of Eden, supra at 297–298. The judge's findings are both specific and detailed, and demonstrate that close attention was given to the evidence. See Adoption of Anton, supra at 673.
Decree affirmed.