Opinion
13-P-1963
11-14-2014
CARE AND PROTECTION OF BANCROFT (and one companion case1).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and the younger child, Bancroft, appeal from a Juvenile Court judge's adjudication finding the mother unfit to parent her two children, Bancroft and Paul. The mother and Bancroft argue the judge improperly focused on the mother's past rather than her recent progress and, further, that the judge erroneously shifted the burden of proof onto the mother to demonstrate her fitness. The mother further contests the termination of her parental rights with respect to the older child, Paul. She contends the judge improperly focused on Paul's attachment to the foster parent while ignoring his bond with the mother. We affirm.
The children's putative fathers have not appealed from the termination of their parental rights.
Discussion. Rehabilitative efforts. The mother and Bancroft contend that the judge gave undue weight to the mother's past, failing to properly consider the mother's present history of rehabilitative efforts. They argue the judge's finding of unfitness lacks evidentiary support as a result. Giving substantial deference to the judge's decision, we review the determination for clear error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011). We do not disturb the judge's findings unless clearly erroneous. Ibid.
"While a judge may rely upon a parent's prior pattern of behavior in determining parental unfitness, the judge is required to assess whether a parent is currently unfit." Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004). A parent's current "unfitness must be proved by clear and convincing evidence." Adoption of Rhona, 57 Mass. App. Ct. 479, 488 (2003). "Isolated problems in the past or stale information cannot be a basis for a determination of parental unfitness." Id. at 487, quoting from Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 126 (1984). However, "past patterns of parental neglect may have prognostic value." Adoption of Don, 435 Mass. 158, 165 n.10 (2001).
Contrary to the mother's and Bancroft's contention, the judge considered the strides the mother had made; however, she also found the mother's efforts deficient. For example, the judge determined that the mother had completed only half of the required anger management sessions, missed parenting classes and therapy appointments, and had expressed that she "did not feel she needed services," which the judge saw as an "indicat[ion] that her participation may not be genuine and she may not be benefiting in a meaningful way." Balancing the mother's progress against her current state of deficiencies and patterns of past behavior, the judge determined that the mother "has not demonstrated that she has sufficient control over her own life," and found her unfit. We perceive no abuse of discretion. See Adoption of Jacques, 82 Mass. App. Ct. 601, 608-609 (2012).
The judge determined that "Mother has been alcohol and substance free since October, 2011," "Mother has engaged in therapy . . . since June, 2012," "[Mother has] continued taking her medications appropriately and as prescribed since March, 2013," "Mother initiated an additional service on her own volition when she began engaging in anger management courses," "Mother additionally began a ten-week parenting course in April, 2012, which she completed in September of 2012," and "Mother has been living at her current address since February 15, 2012."
The judge noted that "Mother continued to have abusive relationships with violent and abusive men after Paul was removed and up until she was hospitalized while pregnant with Bancroft," "Mother refused to cooperate with the Department [of Children and Families (department)] for two years after Paul was removed," "[w]hen Paul lived with Mother, he was often brought to others when Mother was overwhelmed, and often was dirty, unkept [sic], and sometimes had bruises or marks on him," and that the mother filed a false report under G. L. c. 119, § 51A, against Paul's foster mother. The judge also considered that the mother "only sought treatment and services after Bancroft was removed[, which was] two years after Paul [had been] removed," and that "[u]p until Paul was four years old, Mother's mental health and substance abuse concerns went unaddressed."
The mother also specifically disputes factual finding numbers 9, 21, 29, and 64. These findings are adequately supported by a fair preponderance of the evidence, and we do not disturb them. Care & Protection of Laura, 414 Mass. 788, 793 (1993) ("subsidiary evidentiary findings need only be proved by a fair preponderance of the evidence").
Notably, the mother is not foreclosed from seeking a redetermination of parental fitness with respect to Bancroft. Indeed, reunification with the mother appears to be the goal of the department for Bancroft, as, according to what the department claimed during oral argument, Bancroft has already been returned to the mother's care.
Burden shifting. The mother and Bancroft argue that where the only evidence pertaining to the mother's relationship with her current boyfriend came from the mother, who testified that it was not an abusive relationship, the judge's statement that she did "not have sufficient information to determine whether [the boyfriend] is abusive to Mother," constituted improper burden shifting. We disagree. The judge was entitled to discredit the mother's uncontroverted testimony and determine that the record lacked credible evidence on this issue. See Care & Protection of Martha, 407 Mass. 319, 328 (1990); Guardianship of Jackson, 61 Mass. App. Ct. 768, 774 (2004).
We also disagree with Bancroft's additional contention that the judge's use of the word "demonstrated" in the conclusion that the mother "has not demonstrated that she has sufficient control over her own life" represents another instance of improper burden shifting. See Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003) ("In the context of the over-all findings, the trial judge's use of the word 'demonstrated' on two occasions . . . does not indicate that she improperly shifted [the department's] burden of proof onto the mother").
Termination of parental rights. Finally, we fail to see any merit in the mother's contentions that (1) the judge improperly determined the existence of a bond between the foster mother and Paul without expert testimony, (2) the judge failed to consider the bond between the mother and Paul, and (3) the judge's decision to terminate the mother's parental rights under G. L. c. 210, § 3(c), lacked record support.
These challenges require little attention. Paul has been in the care of the foster mother, who is his maternal great aunt, since he was one and one-half years old. We fail to see the necessity of an expert to expound on their bond. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003) ("Expert testimony" is not "a requirement in all cases"). Moreover, that bond was only one factor weighing in the judge's decision. The judge also factored that "[u]p until October 2011, Mother showed a lack of effort to remedy the conditions creating a risk of harm" to Paul, who was both a witness and a victim of physical violence at the hands of the mother's past boyfriends. Finally, the mother's two remaining challenges go to the weight of the evidence, which we leave to the sound discretion of the judge. Accordingly, we see no error in the judge's conclusion that termination of the mother's parental rights was in the best interests of Paul.
Decree as to older child affirmed.
Judgment as to younger child affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.), Clerk Entered: November 14, 2014.
Panel members appear in order of seniority.
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