Opinion
15-P-1293
04-27-2016
ADOPTION OF URSALA (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
This case involves the welfare of two children to whom we refer as Ursala and Sophie. After the mother in 2012 stipulated to her parental unfitness with regard to Ursala (born in May of 2005), Ursala was placed in the permanent custody of the Department of Children and Families (DCF). Sophie was placed in DCF's temporary custody at birth (June of 2013). After a consolidated trial, a Juvenile Court judge issued decrees that, inter alia, found Sophie in need of care and protection, found the mother unfit as to both children (in Ursala's case, that the mother continued to be unfit), granted permanent custody of Sophie to DCF, and terminated the mother's parental rights as to both children. On appeals brought by the mother and Ursala, we affirm.
Ursala's father stipulated to the termination of his parental rights. Although the biological father of Sophie remains unknown, the decree states that it terminated his rights. No issues related to the rights of either biological father are before us.
Ursala challenges the termination of the mother's rights, but not the finding of her continued unfitness.
"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous." Adoption of Paula, 420 Mass. 716, 729 (1995) (citation omitted). The judge made 139 factual findings that -- together with the rulings of law -- total thirty-one pages. The mother has targeted a number of the judge's findings as clearly erroneous.
Having reviewed the trial record, we conclude that overall the judge's findings are thoughtful and balanced. In fact, many of the key underlying facts were uncontested. In any event, there was robust evidentiary support for the following: the mother has been involved in several incidents of domestic violence with multiple boy friends (to which Ursala was exposed), she neglected Ursala in numerous documented respects unrelated to domestic violence, she suffers from mental illness and substance abuse issues, and she has lived a markedly unstable life (e.g., with regard to her housing). Contrary to the mother's claims, the judge did adequately explain the basis on which she found the mother unfit, and there is nothing improper about the judge's statement that she "considered the evidence in the aggregate."
For example, even though the mother was informed that Ursala was going through a particularly difficult time (her placement abruptly having terminated), the mother effectively disappeared and did not visit Ursala for months.
To the extent that the mother can point to errors in the judge's fact finding, these errors generally are of little consequence. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (affirming termination decree where errors in fact finding were "not central to the ultimate conclusion of unfitness"). A good example is that the judge -- in addition to making well supported findings that the mother suffered from anxiety and depression -- made an unsupported passing reference to the mother's being "bipolar."
Another example of an inconsequential error relates to evidence that when Sophie would return from visits with the mother, she -- or items that the mother had given her -- would smell of cigarette smoke. This was potentially troubling because Sophie suffered from respiratory problems. Perhaps in a rhetorical flourish, the judge stated that the mother was "ignorant" of the effect that exposure to second-hand smoke could have on Sophie. The mother argues with some force that the evidence established that she was aware of the problem even if she did not effectively address it. Under either version, the smoke remained a potential problem. A third example of an inconsequential error is the judge's occasional imprecision in referencing the mother's behavior toward her "children" when it is plain the judge meant the mother's behavior only toward Ursala (since Sophie was removed at birth).
There is one factual error that does give pause. The judge found that the mother's last therapy session was in July of 2014, when this was actually the date when her visits with her most recent therapist began. As the mother highlights, she remained in therapy when the case went to trial, and her therapist testified that she was progressing well. The judge's erroneous finding that the mother had quit therapy many months before trial cannot be dismissed as having negligible potential significance, because the judge partially relied on this in two of her conclusions of law. There, she concluded that "Mother's mental health issues have gone untreated since at least July, 2014," and that "Mother's mental health and substance abuse issues are reasonably likely to continue for the reasonable future [at least in part because] Mother has not engaged in therapy since July 2014."
As DCF acknowledged at oral argument, if the judge's determination of unfitness (or, with regard to Ursala, of continued unfitness) depended on the mother's mental health problems, then reversal would be appropriate. However, we agree with DCF that the ultimate finding of unfitness did not depend on the judge's assessment of the mother's mental health. Put differently, the judge's supported subsidiary findings regarding the mother's other deficiencies provided clear and convincing support for the ultimate finding that the mother is not fit to parent either child (both of whom present serious special needs) and that such unfitness was likely to continue for the foreseeable future. In the case of Ursala, the mother's unfitness is underscored by the fact that the child's profound psychological problems resulted, at least in great part, from the mother's own actions while she had custody of the child. As the mother's own expert acknowledged at trial: "the real damage to [Ursala] was done at the height of [the mother's] addiction and housing instability. She was at her worst and [Ursala] paid the price."
We pause to note that the mother has shown evident affection toward her children, 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 mother does not love her children. The inquiry instead is 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).
As noted, it is uncontested that the mother had a severe addiction problem with regard to pain pills. She highlights that she was in a program to try to overcome the problem, and that a witness from the program testified to the seeming progress that she had made there. However, the fact remains that the mother did not provide DCF with all of her drug screens as the agency repeatedly requested. Similarly, although the mother had participated in a short course on domestic violence and she is correct that the trial record includes no hard evidence that her current boy friend was abusing her, there was significant other evidence that she remained at great risk on this score. That evidence included her consistent pattern in selecting romantic partners, her inability or refusal to acknowledge the role that domestic violence played in placing Ursala at risk, and the current boy friend's prior restraining orders (involving two different girl friends) and evidence that his demeanor was controlling and belligerent. See Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990) ("A judge . . . does not have to wait for disaster to happen. In determining parental fitness a judge may use past conduct to predict future ability and performance").
Termination of parental rights. The mother also argues that even if she is currently unfit to parent the children, the judge erred in terminating her rights at this time, especially with regard to Ursala. As we have recognized, "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). But at the same time, it is unfair to leave the children in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("[I]t is only fair to the children to say, at some point, 'enough'"). With the passage of time, it becomes increasingly important that they obtain a stable, safe, and nurturing home environment. Sophie is thriving in her current foster placement (where she has lived since birth), and her foster parents plan on adopting her once these proceedings have concluded.
Ursala's situation is more precarious given the degree of special needs she presents and the corresponding level of specialized care she requires. However, it remains true that Ursala's adoption prospects are improved with the termination of the mother's rights. In the end, "[w]hile courts protect the rights of parents, 'the parents' rights are secondary to the child's best interests and . . . the proper focus of termination proceedings is the welfare of the child.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting from Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's declining to leave the termination question open indefinitely for either child.
Two kinship placements (one with her father and the other with her paternal grandparents) fell through, and at the time of trial, Ursala was living in a residential treatment facility. At oral argument, her attorney represented that she currently resides at a different residential treatment facility.
We acknowledge that because Ursala's paternal grandparents on the eve of trial ended Ursala's preadoptive placement with them, DCF had by that time developed only rudimentary plans to recruit a different adoption placement. However, we are unpersuaded that this alone mandates that the termination trial now be redone. See Adoption of Willow, 433 Mass. 636, 652 (DCF's plan of adoption -- without more -- was sufficient in light of "overwhelming evidence . . . [of] mother's unfitness"). Contrast Adoption of Stuart, 39 Mass. App. Ct. 380, 392-393 (1995) (DCF failed to adequately offer plan for children where it had initiated only minimal efforts to seek preadoptive placements for the children on the eve of trial, and DCF had not met its burden of showing parental unfitness).
Posttermination visitation. The judge determined that posttermination and postadoption visitation between the mother and Ursala "shall be allowed, provided that DCF determines such visitation would be in [Ursala]'s best interests." On this basis, the decree ordered "[t]hat Mother may have supervised post-termination and post-adoption contact with [Ursala], as long as it remains in the child's best interests." The judge thus determined that the ongoing visitation between the mother and Ursala should continue at this time, while leaving the details of that visitation and whether it should continue indefinitely to DCF (preadoption) and any adoptive parents. We discern no abuse of discretion in this disposition. See Adoption of Ilona, supra at 63-64. Compare Adoption of Vito, 431 Mass. 550, 563-564 (2000).
Strictly speaking, the judge mentioned only DCF. All parties appear to agree that the judge intended -- in the event Ursala were adopted -- to leave questions of ongoing visitation to the adoptive parents.
With respect to Sophie, the judge ruled that posttermination and postadoption visitation was not in Sophie's best interests, and on this basis declined to order mandatory visitation between her and the mother. The mother does not challenge those findings and rulings. We note, however, that DCF and Sophie's preadoptive parents have expressed a willingness to allow visitation (during the respective periods that they have custody) if they determine this to be in Sophie's best interests. None of the parties has interpreted the decree as barring such visitation.
Decrees affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 27, 2016.