Opinion
14-P-1391
04-27-2015
ADOPTION OF MADELINE (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The proceedings involving these two young children began with a care and protection petition filed in December, 2011. See G. L. c. 119, § 24. At the time, the child Madeline was one year old and the other child, Emily, was one month old. In the early proceedings, the mother and father stipulated to findings of unfitness. A review and redetermination trial was held in December, 2013, and January, 2014, after which the Juvenile Court judge found the mother and father unfit and entered decrees terminating their parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. The mother and father appeal. We affirm.
The evidence at trial was primarily limited to relevant facts that occurred after the aforementioned stipulation but also included pertinent background information.
1. Evidence of parental unfitness. Separately, both the mother and father assert that the judge erred in finding them currently unfit. Our review of the record suggests that the decrees terminating the parents' rights were supported by clear and convincing evidence. See Adoption of Quentin, 424 Mass. 882, 886 (1997). The judge's findings of fact and conclusions of law, detailing the parents' longstanding substance abuse, neglect of the children, conflicts with the law, episodes of aggression on the part of the father, and both parents' inability to provide a stable home environment for the children -- all taken in light of the children's young ages, bonds with their preadoptive families, and Emily's special medical and other needs -- find abundant support in the record.
"Parental unfitness must be determined by taking into consideration 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 Mary, 414 Mass. 705, 711 (1993).
The mother has a longstanding drug addiction. Both the mother and father were drug addicted and used drugs continuously throughout their relationship, including before and after the birth of the second child, Emily -- precedent to the care and protection petition. The neglect of the children was a direct result of the parents' drug use.
The judge found, among other things, that "Mother and Father both abused drugs while both lived with [Madeline]," that "Mother continued abusing drugs after Father was incarcerated, and after [Emily] was born," and that "Mother's substance abuse directly affected both [Madeline] and [Emily]." As to the effect on the children, there was evidence that "[Emily] had not been seen by the pediatrician since her discharge from the hospital," and that Madeline missed a physical examination.
Indeed, while pregnant with Emily, the mother was abusing drugs. There was evidence that this abuse continued until at least the fifth month of pregnancy and that immediately following Emily's birth, the mother stopped taking Subtex, a drug designed to treat her addiction, and began abusing drugs again.
When Emily was born, the mother suffered placental abruption; Emily was unresponsive at birth as a result of losing eight minutes of oxygen, and she suffered from seizures.
The mother argues that the judge "relies exclusively on the mother's past unfitness instead of focusing or crediting her with current successes and following through with services." That is not so. There were recent relapse problems which the judge considered. For example, the mother "slipped" back into drug use after a visit to the hospital for an infection. Further, "prior to that, she relapsed in February 2012, when she slipped by abusing Opana."
Both the mother and father have criminal records. The mother's criminal record includes "at least two separate incidents involving larceny," and most recently, she was "pulled over for a speeding violation and subsequently charged with driving with a suspended license." This stop occurred during the course of the review and redetermination hearings. The father has a "criminal record related to illegal drug distribution from before he met Mother," and "also has crimes of violence on his record, including two charges of intimidating a witness," and "at least six arrests." See Care & Protection of Frank, 409 Mass. 492, 494 (1991) (criminal record appropriate factor in determining parental fitness).
The father has identified one finding that appears to be erroneous. The judge found that "[a]t one point Father cracked his dog's neck as he attempted to get the dog into a vehicle." This finding is unsupported by the record. However, this isolated error does not alter our view of the judge's overall findings. See, e.g., Adoption of Helen, 429 Mass. 856, 860 (1999).
The record further indicates that the father, while in prison, engaged in a pattern of misconduct and aggression, leading to a serious of disciplinary actions. The judge's findings detail that while incarcerated, the father "has had six disciplinary bids," including "incidents of noncompliance, . . . multiple fights, abuse of staff, threatening and possession of contraband." In particular, the father was removed from his job in Community Corrections "because of a conflict with another inmate," and was removed from his job on a "stick and pick" crew for "refusing to wear his helmet and vest" and calling his supervisor "a fat fuck." More recently, in November, 2012, after being denied parole, the father told the Parole Board: "Fuck Parole. Fuck your consideration of my parole."
The trial judge also appropriately (but not exclusively) focused on the mother's and father's inability to provide a stable home environment for the children, their precarious plan to engage in coparenting, and their lack of capacity to meet the children's needs. For instance, the judge's findings state: "[T]he Court continues to have protective concerns with both parents as evidenced by their lack of insight and understanding of the depth of [Emily's] needs, Mother's illegal activity while trial was ongoing, their joint testimony that they are 'triggers' for each others substance abuse and risk of relapse, coupled with a wholly myopic view of their ability to 'co-parent' from different states." "Stability in the life of a child is important." Adoption of Willow, 433 Mass. 636, 647 (2001).
Finally, contrary to the father's assertions, the judge properly weighed, and the record supports, that both children had formed strong, positive bonds with their preadoptive parents and that removing the children from their preadoptive homes would cause psychological harm. See Adoption of Melvin, 71 Mass. App. Ct. 706, 713-715 (2008).
In particular, the judge found that Madeline had been separated from the mother and father for "two thirds of her life," and that "[f]or the great majority of her life [she] has lived with and developed attachment and emotions ties with her foster family." As to Emily, at the time of the redetermination hearing she had been living with her foster family for nearly "her entire life," and had developed a strong attachment and emotional bonds with them.
2. Posttermination and postadoption contact. "Once it is established that a parent is unfit, the decision to grant postadoption visitation must be left to the sound discretion of the trial judge." Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The judge must apply the best interests of the child standard in determining whether posttermination or postadoption visitation is appropriate. See Adoption of Helen, 429 Mass. 856, 862-863 (1999). We discern no abuse of discretion in this case, particularly where the children have spent a significant portion of their lives in preadoptive homes, have developed strong bonds with their preadoptive parents, and in light of the mother's history of drug abuse, criminal record, inability to provide a stable home for the children, and the sparse evidence that the children had developed any significant relationship with the mother.
In her appeal, the mother argues that the judge erred in not issuing an order for sibling visitation. From all that appears, the judge did order sibling visitation to occur not less than twice per month.
Decrees affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 27, 2015.