Opinion
No. 15–P–1277.
06-24-2016
ADOPTION OF WILTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is a sad and difficult case involving decrees terminating the parental rights of the mother and father. G.L. c. 210, § 3.
Mother. The mother argues first that the judge erred in concluding that the mother's unfitness was likely to continue into the indefinite future to a near certitude. The mother argues, among other things, that “she knew how to obtain an income” and that there was insufficient evidence that her unstable housing situation would lead to an inability properly to shelter her and her child in the event they were reunited.
Prior to the Department of Children and Families (DCF) taking custody of the child, however, her unstable housing situation had resulted in the child being in a number of physically dangerous circumstances. The mother stayed in the unheated basement of the house of an eighteen year old friend who was observed by a social worker holding the child while visibly under the influence of marijuana. The basement was noticeably cold, and “[t]he mother had no diapers and only a sparse amount of clothing for” the child. The mother also sometimes stayed at the maternal grandmother's house. The maternal grandmother, however, had substance abuse and mental health issues, and a parent aide and a social worker observed strange men, some of whom were intoxicated, in various stages of undress in the house. The parent aide also found the child naked and alone on a changing table. A finding that the mother's unstable housing situation would likely continue indefinitely into the future therefore was adequately tied to a risk of harm to the child. See Adoption of Quentin, 424 Mass. 882, 887 (1997) (“ ‘[S]imply because ... parents embrace ideologies or pursue life-styles at odds with the average’ is not a basis for depriving the parents of custody.... However, a judge may consider whether parental behavior adversely affects the child”). See also Care & Protection of Lillith, 61 Mass.App.Ct. 132, 136 (2004) (holding that judge was permitted to focus on mother's frequent moves with child when assessing mother's fitness).
We note the judge's finding that the mother reported having plenty of blankets for the child, but that does not negate the potential for harm to the child from living in a cold basement with inadequate clothing.
The judge made a number of other findings that were relevant to the conclusion that the mother was unfit. The judge found that after leaving a program for teen parents without permission, and therefore being expelled therefrom, the mother remained out of contact with DCF and the child for two months, that at the time of trial she had not attended a parent-child visit for six months, that at the time of trial she continued to have an unstable housing situation, and that, although at one point prior to entering the teen parents program she had obtained a job at Dunkin' Donuts, by the time of trial she remained unemployed. The judge also found that the mother had failed to comply with several other service plan tasks.
In light of these findings, we conclude that clear and convincing evidence supported the judge's necessarily prognostic determination that the mother's unfitness was likely to continue for a prolonged or indeterminate period. Adoption of Ilona, 459 Mass. 53, 59–60 (2011) (“In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit.... [A] parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period”). The judge did not abuse her discretion or commit a clear error of law in deciding that it was in the child's best interests to terminate the mother's parental rights. Id. at 59 (“We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion”).
The outcome in this case is particularly unfortunate. As found by the judge, prior to becoming pregnant with the child, “[t]he mother had been awarded an Adams College Scholarship based on her high MCAS test scores but lost the scholarship when she dropped out of high school in the 11th grade due to her pregnancy.”
Father. At the time of trial, the child was eighteen months old. The father, who had been incarcerated for roughly seven months of the child's short lifetime, was incarcerated at the time of trial and was to remain incarcerated for at least fifteen months thereafter. He had never been the child's primary caregiver, though he had behaved appropriately at visits with the child. He stopped attending visits when he was arrested and detained in October of 2014.
The judge found that the father had been committed to a house of correction for eighteen months, sixty days to serve, on June 24, 2014, and that he had been arrested and detained pending trial on other charges on October 21, 2014. The trial on one of these latter charges occurred on December 16, 2014, after which the father was committed to a house of correction for six months, sixty days to serve. Before those sixty days had concluded, the father was found to have violated his probation under the first of these two sentences and committed to a house of correction for sixteen months. Thus, altogether, the father served two months in a house of correction starting on June 24, was detained pending trial from October 21 to December 16, and then returned to a house of correction on December 16 until the date of this trial.
The father testified at the trial, which occurred on March 16, 2015, that his release date was December 25, 2016, which would mean he was facing an additional twenty-one months of incarceration. He also testified at trial that there were charges pending against him for “[d]elivering drugs to a prison.” However, the judge did not make any findings to this effect. Rather, the judge merely found that the father had been committed to a house of correction for sixteen months as of February 5, 2015, and was also serving a sentence of sixty days on another charge.
Fifteen months is a very long time in the life of an eighteen month old child. Unfitness includes the concept of unavailability. Adoption of Serge, 52 Mass.App.Ct. 1, 8 (2001) (“Physical unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, was relevant evidence of unfitness”). The judge's determination that the father's unavailability would continue for a prolonged or indeterminate period was adequately supported by the facts found by the judge.
Viewing the record as a whole, there was clear and convincing evidence to support the judge's determination that the father was unfit and that his unfitness was likely to continue into the future. The judge did not make a clear error of law or abuse her discretion in determining that it was in the child's best interests to terminate the father's parental rights.
The father also argues that the judge failed adequately to evaluate his proposal that his grandmother be an adoptive resource for the child. He is correct that where there are competing adoption plans, the judge must evaluate them and determine, which, if any, is in the child's best interests. See Adoption of Dora, 52 Mass.App.Ct. 472, 476 (2001).
The father, however, did not put forward his grandmother as a potential adoptive placement. He testified during cross-examination by the mother's counsel that if his parental rights were not terminated, he would like his grandmother to raise the child, presumably during the period of time in which he remained incarcerated. He testified both that he had spoken to his grandmother about this and that he had spoken to a social worker about placing the child with his grandmother.
There was testimony from a DCF social worker that in order to be considered as an adoptive placement, the father's grandmother was required to obtain a waiver, apparently because of some prior history with DCF. This testimony related to the adoptive plan put forward by DCF which, in fact, indicated that DCF would attempt to place the child for adoption with the father's grandmother, but if she were unable to adopt, they would then seek another adoptive resource. Although the judge could certainly have considered giving temporary custody to the father's grandmother and not terminating the father's parental rights, there was no competing plan for adoptive placement of the child with the father's grandmother and therefore Dora, supra, is inapplicable. The judge thoroughly and adequately evaluated the only plan for adoption before her, that submitted by DCF, as she was required to do.
She further testified that the father's grandmother had filed an application for a waiver three months prior to trial, and that the application had been pending for three months. She testified that additional paperwork had been needed from the father's grandmother and that it had taken some time to obtain it, though there was no testimony about who bore responsibility for the delay.
Consequently the decrees are affirmed.
So ordered.