Opinion
No. 13–P–777.
2013-12-13
ADOPTION OF XENIA.
By the Court (WOLOHOJIAN, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Juvenile Court judge found the mother
unfit to parent Xenia, terminated her parental rights, and approved the plan of the Department of Children and Families (DCF) to place Xenia in an adoptive home. See G.L. c. 210, § 3. The mother appeals, arguing that the trial judge's conclusions regarding parental unfitness were not supported by clear and convincing evidence. We affirm.
Before the conclusion of trial, the father filed an adoption surrender, which was accepted by the judge. The father does not appear in this appeal.
Standard of review. “When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law.” Adoption of Elena, 446 Mass. 24, 30 (2006). “[T]he ultimate determination that a parent is currently unfit to further the welfare and best interests of children must be based on evidence that is clear and convincing.” Adoption of Daniel, 58 Mass.App.Ct. 195, 201 (2003). “Where, as here, the judge determines that the mother currently is unfit to parent her children, and where termination of parental rights is sought, the judge then must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Elena, 446 Mass. at 31 (quotations and citations omitted). In assessing parental fitness, “the State interest in protecting neglected children may properly be preventive as well as remedial.” Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979). Accordingly, “an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child.” Id. at 883. Unfitness. The mother does not dispute any of the trial judge's 151 well-documented findings of fact. Instead, she argues that the judge's findings, taken together, do not establish her unfitness by the requisite quantum of proof. We disagree. The trial judge's decision to terminate parental rights rested on two solid bases. First, she found that the parents' longstanding history of both verbal abuse and physical violence
placed Xenia at risk of emotional abuse and neglect, as well as potential physical abuse. The mother argues that this conclusion was unwarranted since the mother “understood the problem and sought to separate from [the father].” This argument would require us to disregard the fact that the trial judge did not credit the mother's claim that she sought to remove the “no contact” order only to maintain a possible route of contact to Xenia, rather than to the father.
In the span of nineteen months, August, 2010, through March, 2012, there were at least twenty police responses to reports of disputes between the father and mother. After a particularly brutal attack by the father, sustained over the course of eight days in March 2012, the mother went to an emergency room for care related to a series of injuries, including a head injury, “post-concussive syndrome,” and “bruises everywhere and shoe prints on her body.” During at least one domestic dispute, the child was at home. According to the 51A, report filed on August 28, 2011, when Xenia was approximately three months old, “Mother had become so upset [after a dispute with Father] that she threw the child onto the couch.”
The judge did not credit the mother, and found instead that her actions were only the most recent example of a long pattern of reunifying with the father “after very violent and serious episodes [of abuse].” We will not disturb the credibility determination of the trial judge. E.g., Custody of Two Minors, 396 Mass. 610, 618 (1986).
The mother testified that, should she be unsuccessful in contesting the termination of her parental rights, the father might continue to have some small measure of contact with Xenia. Through contact with the father, she hoped to continue to have some knowledge of Xenia.
Once Xenia was removed from the home, the parents were given a service plan with the goal of reunification. To address the issues that led to removal, the parents were to engage in counseling, case management, education courses, and evaluations. The trial judge found that while the mother was in partial compliance with her service plan, her “failures outweigh[ed] some of the benefits she may have received through her compliance.”
While the mother testified that she engaged in domestic violence counseling as required, she did not provide any verification nor could she adequately express anything she had learned through such counseling. The trial judge found that the severity and longevity of the abuse, coupled with the mother's refusal or inability to address the issue in a meaningful way, demonstrated her “inability to put the emotional and physical safety needs of the child first.”
The judge found that the mother was in compliance with only three of the eleven tasks assigned under the April 12, 2012 service plan.
The mother argues that the judge improperly relied on altercations with the mother's brother in determining her fitness as a parent. Even were this error, there is no prejudice as the evidence demonstrates the mother's continuing inability to extricate herself from the abusive relationship with the father.
Second, the judge found that the mother's untreated substance abuse and her undertreated mental health issues contributed to her inability to keep herself or her daughter safe from domestic violence. Although the mother now contends that “the trial judge was too quick” to find a nexus between the mother's substance abuse and any detriment to Xenia, this argument is unavailing. While substance abuse “without more, [does not] translate [ ] automatically into legal unfitness to act as a parent,” Adoption of Mario, 43 Mass.App.Ct. 767, 772 (1997) (citation and quotation omitted), the trial judge specifically found that the mother's “voluntary use and abuse of alcohol has served to exacerbate her vulnerability to domestic violence and her outstanding mental health issues.” The mother does not dispute that her alcoholism remains untreated, nor does she deny that drinking prevented her from testifying against the father in his criminal trial.
The mother's substance abuse was not the direct reason for the judge's determination of unfitness, but rather a contributing factor.
The trial judge credited the mother's testimony on this point, finding that “this failing, as sad and tragic (and understandable in the framework of domestic violence) as it may be, demonstrated Mother's current and long-standing inability to keep herself, or a child in her care, safe.”
The mother also argues that the judge did not even-handedly weigh the evidence in determining her unfitness. The trial judge's detailed findings regarding the mother's compliance with the service plan and the positive aspects of the mother's relationship with Xenia belie any such assertion.
Adoption. The mother asserts that even if the evidence is sufficient to support a finding of unfitness, adoption is not in the best interests of Xenia. See Adoption of Nancy, 443 Mass. 512, 515 (2005). However, “parental fitness and the best interests of the child are interrelated factors.” Adoption of Carlos, 413 Mass. 339, 348 (1992). Given the judge's findings related to the continuing unfitness of the mother, the length of time Xenia has spent in foster care, the age of the child, and the mother's inability to free herself from a cycle of violence as harmful to her as it is to Xenia, the determination that adoption is in the best interests of the child is not clearly erroneous. See Adoption of Greta, 431 Mass. 577, 587 (2000); Adoption of Elena, 446 Mass. at 33.
Taken together, the judge's findings clearly and convincingly support the conclusion that the mother is unfit to care for the child and that adoption is in Xenia's best interests.
Decree affirmed.