Opinion
16–P–1478
07-27-2017
ADOPTION OF OPHELIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree issued by a judge of the Juvenile Court finding him unfit to parent his daughter, Ophelia, and terminating his parental rights. We affirm.
Background. In a comprehensive and thoughtful decision, the judge made the following findings of fact, which are amply supported by the record. Ophelia was born in May, 2012, and two child abuse and neglect reports were filed on her behalf fewer than three months after her birth, pursuant to G. L. c. 119, § 51A (51A reports). The 51A reports alleged that the father and mother were living a nomadic lifestyle, were not adequately caring for Ophelia, and were abusing substances. The Department of Children and Families (DCF) began an investigation, during which the father was largely uncooperative. When DCF confirmed that the parents and Ophelia had moved to Maine, the 51A reports were not supported, and the investigation concluded.
The mother is not a party to this appeal, as she stipulated to the termination of her parental rights on the first day of trial after reaching a visitation agreement with the proposed adoptive parents.
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DCF again began investigating the parents following another 51A report filed in January, 2013, after they had moved back to Massachusetts. The investigation indicated that the father was actively engaging in substance abuse and that the parents were constantly moving and unable to maintain a stable household. Continued, untreated substance abuse and housing instability ultimately led to the removal of Ophelia from the parents' care in April, 2013. At the time of the removal, Ophelia had bruises on her face. The parents' lack of progress in complying with DCF's plan for reunification led DCF to change the goal from reunification to adoption in November, 2013. In addition to the father's struggles with substance abuse, the judge also found that he had untreated mental illness, including a mood disorder, anxiety, and posttraumatic stress disorder.
The issues that had plagued the father throughout the DCF investigation continued during the pendency of the trial. The father overdosed on heroin twice while the termination trial was ongoing and was twice arrested, once for assaulting the mother and once for uttering a false prescription. The father and mother continued their relationship despite its volatility and instability and a mutual recognition that they were each triggers for the other's substance abuse problems. There was evidence that the father unsuccessfully sought treatment for both his substance abuse issues and mental illness, yet the father also repeatedly denied struggling with either problem.
Citing the father's continued untreated substance abuse and mental health issues, ongoing financial and housing instability, and persistent involvement in criminal activity, the judge found him unfit to care for Ophelia. In reaching her decision, the judge further cited the continuation of the father's relationship with the mother despite the inherent issues in that relationship and the father's lack of cooperation with treatment plans and DCF's service plan.
Discussion. "In termination of parental rights cases, the trial judge must make specific and detailed findings demonstrating that close attention has been given the evidence. While subsidiary findings must be proved by a fair preponderance of the evidence, taken together these findings must prove parental unfitness, which is the critical inquiry, by clear and convincing evidence." Adoption of Leland, 65 Mass. App. Ct. 580, 583 (2006) (citation omitted). On review of a judge's decision to terminate an individual's parental rights, we give the trial judge's decision substantial deference and "reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).
On appeal, the father contends that the judge's findings regarding his continued mental illness were not supported by a preponderance of the evidence, that there was no established nexus between any mental illness and unfitness, and that his substance abuse did not automatically render him unfit. We conclude that the judge's findings regarding the father's mental illness had ample support in the record and therefore were not clearly erroneous. The father admitted to a DCF worker that he was prescribed several medications that treat mental illness, including Lithium and Seroquel. The father has been psychiatrically hospitalized at Salem Hospital, and he informed a DCF investigator that he suffered from bipolar disorder and posttraumatic stress disorder. The father further admitted that one episode of excessive drug use was triggered by his depression and failure to keep up with his mental health treatment. Considering the father's several admissions relating to his mental illness, we discern no error in the judge's findings relative to the subject.
The father further argues that, even if his mental illness were properly established, the judge did not establish a sufficient nexus between his mental illness and unfitness. We disagree. "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child ...." Adoption of Mary, 414 Mass. 705, 711 (1993). The record indicates that the father was emotionally unstable, physically abusive to both the mother and Ophelia, and verbally abusive to DCF workers during their investigation. Further, the judge noted that the father's behavior at trial was "consistent with a diagnosis of mental illness and substance abuse." The judge found that the father's failure to address his admitted mental illness renders him unfit to parent Ophelia, as his mental health has contributed to his substance abuse and left him without stable housing or employment. We agree, and we therefore conclude that there was a sufficiently established link between the father's mental illness and his unfitness as a parent. Adoption of Saul, 60 Mass. App. Ct. 546, 554 n.11 (2004) (mental illness is relevant to fitness inquiry "once a nexus has been established between the illness and diminished parenting ability").
The father finally argues that there is an insufficient nexus between his established substance abuse and his unfitness. Again, the argument lacks merit. The father concedes that drug abuse is a relevant consideration in a fitness inquiry, yet compares his case to one where this court determined that "a cocaine habit, without more, [does not] translate[ ] automatically into legal unfitness to act as a parent." Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997). Simply put, the case before us is not analogous. Here, the father overdosed twice during the pendency of the termination trial, his addiction has led to ongoing legal problems, and it has contributed to his nomadic and unstable life. His untreated substance abuse, the judge found, has left him unable to meet the basic obligations of parenthood. Similar to his mental illness, his substance abuse has left him without stable housing or employment and his continued relapses further leave him unable to meet basic parenting needs. As such, the judge properly considered the father's substance abuse a major factor in the unfitness inquiry and noted the relationship between the father's substance abuse and unfitness. See Adoption of Helen, 429 Mass. 856, 860 (1999) ("unsuccessful attempts to address" substance abuse issues properly considered in termination proceedings); Adoption of Leland, 65 Mass. App. Ct. at 584.
In the end, we conclude that the judge's decision to terminate the father's parental rights was proper. His substance abuse, mental illness, and ongoing instability are such that there is not "a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary." Adoption of Carlos, 413 Mass. 339, 350 (1992). Accordingly, the father's unfitness renders it in the child's best interests to terminate his parental rights. See Adoption of Ilona, 459 Mass. at 59.
Despite our conclusion, we pause to note that the father has shown affection for the child, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the father does not love the child. The inquiry instead was whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Decree affirmed.