Opinion
21-P-946
05-05-2022
ADOPTION OF RACHEL.[1]
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
Following a trial, a judge of the Juvenile Court found the mother unfit to parent her daughter, Rachel, and terminated her parental rights. The mother appeals from the decree, arguing that the judge erred in concluding that the mother physically abused Rachel and that she had not provided the child with a stable home environment. She also claims that the judge failed to articulate a nexus between her substance abuse and mental health conditions and her inability to provide Rachel with adequate care. For the reasons that follow, we affirm.
Background.
We recount the relevant, mostly undisputed facts, reserving certain details for later discussion. Between the ages of twenty-two and thirty-four, the mother had six children. Rachel, the youngest of those children, is the subject of the present case.
All six of the children have been removed from the mother's care.
The mother has suffered from a long and continuing history of drug and alcohol use. She first became involved with the Department of Children and Families (department) in 2004 after she tested positive for drugs during her second pregnancy and failed to seek proper prenatal care. She has since struggled to seek treatment and remain free from substance abuse. At Rachel's birth in June of 2018, the mother admitted that she was using cocaine and marijuana. The hospital filed a report pursuant to G. L. c. 119, § 51A (51A report), and after investigation, the department opened a clinical case but did not take custody of the child in the hope of keeping the child with the mother. The mother largely declined to participate in the department's efforts designed to help her retain custody.
For instance, the mother failed to provide drug screens or engage in drug abuse treatment.
The mother also suffers from mental health conditions including bipolar disorder, obsessive compulsive disorder, attention deficit hyperactivity disorder, depression, and anxiety. She has consistently failed to manage these conditions or follow through with treatment. And, on several occasions, she has been dishonest with the department about her participation in therapy and the services she has received.
The mother's conditions have contributed to her longstanding struggle with housing instability. She has experienced bouts of homelessness, most recently after the Rachel's birth, when the two resided at a shelter.
The mother's conditions have also caused her to exhibit angry and aggressive behavior, which she has repeatedly directed toward the department and toward her children. Over the years, numerous witnesses reported that the mother verbally and physically abused her children. Relevant here, while the mother and Rachel resided at the shelter, staff overheard yelling, swearing, and slapping sounds coming from the mother's room. On another occasion, staff overheard the mother tell Rachel that "[t]hey won't let me hit you anymore." The mother subsequently admitted to yelling at Rachel but denied hitting her.
A 51A report was filed after this incident.
The mother was also frequently neglectful of Rachel during the time they resided at the shelter. Shelter staff found Rachel unattended numerous times, and in one instance, staff heard her crying but could not find her until they realized she was stuck behind a couch. In another incident, staff found Rachel alone in a hallway, playing with a bottle of the mother's medication. Staff filed a 51A report and soon afterward, the department assumed emergency custody of Rachel and filed a care and protection petition.
Throughout the pendency of the care and protection petition, the mother consistently refused to cooperate with the department. She declined to complete numerous tasks on her service plan, was often unresponsive to the inquiries of department workers, and failed to keep the department updated on her varying living arrangements.
In August of 2020, the mother began a detox program for alcohol abuse without informing the department. Afterward, she entered an inpatient residential treatment program. But because she exhibited aggressive behavior toward staff and other residents, she was transported to a crisis stabilization program. The mother was discharged from this program too after similarly aggressive behavior. She then ceased seeking treatment for her substance abuse, despite additional referrals from the department, and moved in with her uncle in Boston. At the time of the trial the mother was not participating consistently in any addiction or mental health services.
A trial was held in March of 2021. After making 140 findings of fact, the judge concluded that the mother was unfit and terminated her parental rights to Rachel. Roughly a dozen considerations supported the judge's conclusion. Most importantly, the judge considered the mother's unabated substance abuse and mental health conditions, history of violence toward her children, failure to provide a stable living environment or follow through with the department's service plans, and inability to meet Rachel's significant special needs.
Rachel's special needs include autism, speech delays, and gross motor delays. These conditions have improved drastically since her removal from the mother's care, and she received consistent services such as early intervention and occupational, and physical therapy after her removal.
Discussion.
The decision to terminate a parent's rights requires a two-part analysis. See Adoption of Garret, 92 Mass.App.Ct. 664, 671 (2018). "First, the judge must determine whether the parent is fit to carry out the duties and responsibilities required of a parent." I_d. Here, the burden rests with the department to prove unfitness by clear and convincing evidence. See Care & Protection of Erin, 443 Mass. 567, 572 (2005). If the judge finds that the department has met this burden and there is no "credible evidence supporting a reasonable likelihood that the parent will become fit" in the near future, the judge next assesses whether termination of parental rights is in the best interests of the child. Adoption of Ilona, 459 Mass. 53, 59 (2011). "[T]he parental fitness test and the best interests of the child test are not mutually exclusive, but rather reflect different degrees of emphasis on the same factors" (quotation omitted). Adoption of Garret, 92 Mass.App.Ct. at 671, quoting Care & Protection of Three Minors, 392 Mass. 704, 714 (1984) . Factors relevant to this determination include "a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Garret, supra, quoting Adoption of Mary, 414 Mass. 705, 711 (1993). At bottom, the inquiry is whether these considerations render the parent "so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child" (citation omitted). Adoption of Chad, 94 Mass.App.Ct. 828, 838 (2019).
We review decisions to terminate parental rights to ascertain whether the trial judge "abused [her] discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). There must be clear and convincing evidence to support the conclusion that the parent is unfit and that termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 515-516 (2005). Further, the judge must "make specific and detailed findings, demonstrating that close attention has been given to the evidence." Adoption of Gregory, 434 Mass. 117, 126 (2001). The trial judge's subsidiary findings, which must be supported by a preponderance of the evidence, are entitled to substantial deference and will not be disturbed unless shown to be clearly erroneous. I_d. "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993) .
1. Physical abuse.
The mother first challenges the judge's findings that she was physically violent toward Rachel.
The judge made the following relevant findings of fact: In January of 2020, a mandatory reporter at the shelter filed a 51A report after workers heard yelling, swearing, and a slapping noise coming from the mother's room. The mother yelled, "I don't' give a fuck, get off me, drink it." The judge inferred that the mother directed this statement at Rachel. The judge also declined to credit the mother's explanation of the incident, that she was on the phone with Rachel's father and that she slapped her own leg out of frustration with the conversation.
The judge relied on the above findings in her conclusions of law to determine that there was "substantial evidence of [the][m]other's domestic violence toward [Rachel]" and that her "temperament toward [Rachel] was . . . consistent with [her] history" of violence with her other children.
The mother contends that the judge's conclusion was "against the weight of the evidence" and reasonable inferences drawn from it. She points out that the judge's conclusion of physical abuse was based on a single instance with no witnesses; that the shelter staff did not observe any marks or bruises on Rachel; that the department later ruled out abuse; that the mother provided a contrary version of events; and that there were many accounts of the mother's loving behavior toward the child.
These countervailing circumstances fail to establish that the judge's findings and conclusions were clearly erroneous. See Custody of Eleanor, 414 Mass. at 799. After reviewing the record, we think that the judge made a fair assessment of the facts, which were based in the evidence, and which support her conclusions of law. Her assessment "of the weight of the evidence and the credibility of the witnesses is entitled to deference." Care & Protection of Bruce, 44 Mass.App.Ct. 758, 763 (1998) .
2. Failure to provide a stable home environment.
The mother next challenges the judge's findings that she failed to provide a stable home environment for her daughter, claiming that they are unsupported by the record.
Evidence of a parent's failure to maintain adequate housing and "keep a stable home environment" is relevant to the unfitness determination. See Petitions of the Pep't of Social Servs. to Pispense with Consent to Adoption, 399 Mass. 279, 289 (1987); Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008). See also Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 136 (1990) ("It is in the best interests of [the child] to have 'parents' who can and will, on a consistent, long-term basis, assume all parental responsibilities and who can provide [the child] with stable and continuous care and nurturing she needs and will continue to need as a child"). However, "[h]omelessness, poverty, and financial instability alone are not sufficient to terminate a person's parental rights." Adoption of Virgil, 93 Mass.App.Ct. 298, 303 (2018).
The judge predicated her legal analysis on extensive findings of fact about the mother's time at the shelter with Rachel and about her behavior throughout the care and protection case. Among numerous other considerations, the judge noted that since the department's initial involvement in 2004, the mother "has lacked stable and secure housing."
In challenging the conclusion that she was unable to provide a stable living environment for Rachel, the mother focuses on the judge's assessment of her housing instability. According to the mother, that assessment was flawed because it failed to recognize that the mother currently has stable housing with her uncle and that when Rachel was in her care, the two "continuously resided" at the same shelter. A review of the entire record demonstrates that the judge did not overlook these considerations. More importantly, the judge's conclusion that the mother had not provided a stable environment for Rachel was based on far more than her inability to maintain appropriate housing. The judge explained that she also based this conclusion on the mother's abuse and neglect of Rachel, continued use of drugs and alcohol and discharge from various rehabilitation facilities, and longstanding failure to cooperate and communicate with the department. See Adoption of Gwendolyn, 29 Mass.App.Ct. at 136. Therefore, the mother's suggestion that she was penalized for her homelessness is without merit.
Indeed, the judge specifically commented that "[w]hile living with her uncle, [the] [m]other showed no greater stability; she continued to miss visits with Rachel, visits with the [d]epartment, and appointments with her providers. In addition, she continued to use drugs and alcohol."
3. Nexus.
Finally, the mother claims that the judge's findings and conclusions failed to establish a nexus between her substance abuse and mental health conditions and her inability to provide Rachel with adequate care.
While "[p]arental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child," neither mental illness nor drug addiction alone can be the sole basis for a finding of unfitness. Adoption of Mary, 414 Mass. at 711. See Adoption of Frederick, 405 Mass. 1, 9 (1989). See also Adoption of Katharine, 42 Mass.App.Ct. 25, 33-34 (1997). There must be a nexus between those conditions and the parent's inability to provide minimally acceptable care for the child. See Care & Protection of Bruce, 44 Mass.App.Ct. at 763-764.
The judge sufficiently articulated the nexus between the mother's substance abuse and mental health conditions. The judge explained that the mother's mental health conditions caused her to be verbally aggressive, violent, and abusive toward others, including her children, and that this behavior "place[d] Rachel at great risk." See Custody of Vaughn, 422 Mass. 590, 595 (1996) (child who "has been either the victim or the spectator of [domestic violence] suffers a distinctly grievous kind of harm"). The judge also noted that the mother's demonstrated inability to manage her own mental health made it unlikely that she would be able to support Rachel's special needs. See Adoption of Luc, 484 Mass. 139, 146 (2020). As to the mother's drug use, the judge adequately explained, and the record amply supports, that the mother's ongoing battles with addiction contributed to her neglectful parenting and her unstable living environment. See Adoption of Katharine, 42 Mass.App.Ct. at 33-34. And much like her failure to address her mental health conditions, her failure to follow through with drug treatment and remain substance free similarly foreshadowed an inability to be attentive to Rachel's special needs. There was no error.
The judge also considered both conditions in their proper context, amidst numerous other factors, and for their proper relevance, to show the mother's capacity to properly care for the child. See Adoption of Luc, 484 Mass. 139, 146 (2020) (A "[m]ental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs . . . evidence of alcohol or drug use is relevant to, but not dispositive of, a parent's willingness, competence, and availability to provide care" [quotations omitted]); Adoption of Katharine, 42 Mass.App.Ct. at 34.
We reject the mother's argument that clinical evidence was necessary to show that her mental health conditions would impair her ability to provide adequate care for the child.
Decree affirmed.
The panelists are listed in order of seniority.