Opinion
16-P-1168
02-24-2017
ADOPTION OF ADELE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree issued by a judge of the Juvenile Court terminating her parental rights with respect to her daughter Adele and declining to order posttermination visitation. See G. L. c. 119, § 26. For the reasons set forth below, we affirm.
The father's parental rights were also terminated. He has not appealed.
Background . In a thorough, comprehensive, and carefully reasoned decision, the judge made the following findings rulings, which we summarize.
1. The mother's first child . The family came to the attention of the Department of Children and Families (the department) soon after the birth of the mother's and father's first child, Mary, in 2013. The department filed a care and protection petition regarding Mary on February 12, 2013. During trial on that petition in December, 2014, the mother and father reached an agreement with the department whereby they agreed to surrender their parental rights to Mary. The mother admitted that she had not been in compliance with her service plan tasks.
A pseudonym.
2. Adele . Adele was born in April, 2014, while Mary's case was still pending, and before the trial in that case. The mother did not immediately tell the department about her pregnancy because she feared that the department would remove Adele once she was born. The department filed a care and protection petition the day after Adele's birth. A judge of the Juvenile Court declined to grant the department immediate temporary custody of Adele, and allowed custody to remain with the mother, subject to certain conditions.
On May 23, 2014, Adele suffered a second degree burn on her left arm while under the mother's care in a supervised residential shelter. The mother did not make any effort to treat the burn, which blistered. At some point she called a pediatrician, but did not follow his or her advice. When doctors, social workers, and police asked the mother how Adele received the burn, the mother lied and said she did not know what happened. Adele received medical attention only after a fellow shelter resident reported the burn to staff. In May, 2014, Adele was removed from the mother's custody.
After the incident the mother spoke to the staff at the shelter and lied about how Adele got the blisters, telling them that she did not know how it happened. The mother also contacted Adele's pediatrician. The mother told the pediatrician that she did not know how Adele got the blisters, but that Adele was either "bitten or burnt." The pediatrician advised the mother to apply ice on the blisters and prescribed Adele an ointment. The mother did not apply the ice or fill the prescription for the ointment.
The mother contacted the father after the incident and lied about Adele's injuries. The mother told the father that she was not sure how Adele got the blisters on her arm. Two days after the incident, a resident of the shelter saw the injury on Adele's arm and alerted the staff at the shelter. The staff called an ambulance, and the ambulance took the mother and Adele to the hospital. At the hospital, the mother again told doctors and the police that the blisters were either from a bite or a burn from a hot outdoor patio chair. While at the hospital, two department social workers spoke to the mother, and the mother lied to them about Adele's injury.
At trial in this case, the mother testified that she lied about the injuries to Adele because she was afraid that the department would remove her. On the basis of this testimony, the judge found, with ample support in the record, that the mother placed her own needs ahead of the welfare of Adele, and that she failed to appreciate the consequences of her actions.
After Adele was removed from the mother's custody, the mother called the department social worker and claimed that Adele had been burned while taking a bath. At trial, the mother told the same story. The judge did not credit the mother's explanation of Adele's injuries.
The mother claims that Adele screamed for five minutes and her arm appeared red, but that she was fine thereafter. The judge did not credit this testimony.
3. The mother's lack of cooperation . The mother stopped attending parenting classes in June of 2013. After Adele was removed, the mother stopped taking her prescription medication for depression, bipolar disorder, and anxiety. Immediately after surrendering her parental rights to Mary, the mother stopped attending therapy.
After Adele was removed from her custody, the mother moved out of the supervised shelter home in which she had resided and moved in with the father. The father was verbally and emotionally abusive toward the mother. The father argued with the mother and threatened that his older sister and his mother would "tak[e] care of her." She understood this to mean that his mother or sister would "fight her." The mother claimed the father was controlling, told her what to wear, and accompanied her when she went out. Nonetheless, she remained with the father. Between September and December of 2014, the mother spoke with a department social worker about separating from the father, but did not follow through.
The mother and social worker discussed contacting a local domestic violence prevention center but the mother never followed up. They discussed getting housing independent of the father, but the mother declined that as well. She attended a few counselling sessions at the domestic violence prevention center, but stopped. The mother was aware of the domestic violence group therapy sessions offered at the center, but never attended.
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In November, 2014, the mother tested positive for cocaine. The department requested that the mother take two additional drug tests, but she did not comply.
The mother started to address her service plan tasks, but only on the eve of trial. After the first day of trial, the mother signed up to take classes to obtain her high school diploma. The mother lived on and off with father from November, 2014 to April, 2015, but in April of 2015, shortly before trial, the mother moved in with her parents. However, the judge found that she continued to see the father, and did not credit that the move was real or permanent.
During the course of her involvement with the department, the mother was assigned two different parenting partners. She did not work with either of them because she did not get along with them. However, once trial began on July 1, 2015, the mother requested a new parenting partner. The judge did not credit the sincerity of this request.
The mother has not worked since November of 2014. She was fired from two previous jobs due to discrepancies in the money in her cash register. One of these discrepancies led to charges of larceny over $250. The mother was placed on probation until February of 2015. On August 12, 2015, the mother missed a portion of the termination trial because it "slipped her mind."
Discussion . "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 and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona , 459 Mass. 53, 59 (2011). "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." Ibid .
1. Termination . The mother contends that the judge erred in finding that she is unfit because the judge did not conduct an evenhanded assessment of the evidence and disregarded her progress.
The judge did not abuse her discretion in finding the mother unfit. "[T]he judge was entitled to consider the evidence of [the mother's] recent improvements within the context of her earlier and continuing deficits." Adoption of Jacques , 82 Mass. App. Ct. 601, 608 (2012). The judge concluded that the mother had demonstrated "grievous shortcomings" as a parent that would continue into the future, placing Adele at risk of abuse and neglect. She based her decision on Adele's serious injury while in the mother's care, the failure of the mother to treat it, the mother's attempt to cover up the injury, her lack of candor as to its cause, and the mother's failure to appreciate that the cover-up caused the child additional injury and suffering. The judge also considered the mother's failure to maintain a safe and stable living arrangement, her ongoing relationship with the father, who was both verbally and emotionally abusive, her failure to address ongoing mental health concerns, take medication, participate in therapy, attend parenting classes, and her failure to maintain a job and financial stability.
The judge acknowledged that the mother did, finally, begin to do some of the things enumerated in her service plan, such as enrolling in a program to obtain her high school diploma and enrolling in therapy and counselling. However, she did so only on the eve of trial. "Weighing strengths against weaknesses is within the core competency of the trial judge, who has the benefit not only of the evidence, but of seeing and assessing the parents themselves." Ibid . Here, the judge did not find the mother's claim that she was turning her life around to be credible, based in part on the timing of her efforts and in part on the fact that the judge considered these efforts to be either insincere or transitory, or both. "[T]he mother's gains were offset by continuing deficits, many of which were highlighted by the mother's lack of credibility on a number of fronts." Ibid . The "judge's assessment of the credibility of witnesses and the weight of the evidence is entitled to deference." Ibid .
2. Posttermination visitation . The mother also contends that the judge erred by not ordering posttermination visitation. "We have repeatedly recognized the equitable authority of a judge to order visitation between a child and a parent whose parental rights have been terminated, where such visitation is in the child's best interest." Adoption of Ilona , 459 Mass. at 63. "[A] judge should consider, among other factors, whether there is ‘a significant, existing bond with the biological parent’ whose rights have been terminated." Id . at 63-64, quoting from Adoption of Vito , 431 Mass. 550, 563 (2000). Here, Adele was removed from the home within one month of her birth, resulting in little initial bond with the mother. The mother missed some scheduled visits. When the mother did attend the visits, the mother did not play with Adele and Adele did not seek her out. The foster mother, who is also one of the preadoptive parents, and with whom the child has a significant bond, stated her willingness to continue with visitation so long as it was in the child's best interests. The judge did not abuse her discretion.
Decree affirmed.