Opinion
15-P-891
04-15-2016
ADOPTION OF HANNON.
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 mother appeals from a Juvenile Court decree that dispensed with parental consent to the adoption of her son, Hannon, pursuant to G. L. c. 119, § 26, and c. 210, § 3, and left postadoption visitation to the discretion of Hannon's preadoptive parents. The mother argues that the judge abused her discretion (1) by ruling that the Department of Children and Families (DCF) met its burden to prove the mother's unfitness by clear and convincing evidence, and (2) by failing to consider the strength of the bond between the mother and Hannon when issuing the visitation order. Hannon appeals from so much of the decree as leaves visitation to the discretion of his preadoptive parents. After careful consideration of the judge's findings and the evidence in the record, we vacate that portion of the decree pertaining to visitation and remand the case to the Juvenile Court for further proceedings consistent with this memorandum and order. The decree is otherwise affirmed.
The father surrendered his parental rights to the Department of Children and Families and is not a party to this appeal.
We refer to Hannon's current foster parents as his "preadoptive parents" because the permanency plan approved by the judge calls for them to adopt Hannon.
Background. We summarize the judge's relevant findings of fact, supplemented by unchallenged evidence from the record that the judge implicitly credited. Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) ("Appellate courts may supplement a judge's finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony"). DCF removed Hannon from the custody of the father and mother in an emergency proceeding on March 3, 2013, after the mother stabbed the father with a metal pipe and was arrested. DCF received temporary custody on March 8, 2013. The best interests trial was initially scheduled to start on July 29, 2014. On that day, the mother filed an adoption surrender and tested positive for cocaine following a court-ordered drug test. On September 16, 2014, the judge allowed the mother's motion for new trial and revoked her adoption surrender based on the positive drug test. The trial took place on December 2 and December 16, 2014. The judge issued her findings and ordered decrees entered on January 20, 2015. She found the mother unfit, terminated parental rights, and left visitation to the discretion of Hannon's preadoptive parents. The mother filed a timely notice of appeal. Hannon filed a late notice of appeal with leave of the court.
Although the mother was never found guilty of this crime, the judge found that it did occur. This finding is not clearly erroneous.
The mother has a long and continuing history of drug use. She started smoking marijuana when she was thirteen, using crack cocaine between the ages of thirteen and fifteen, and using heroin when she was a teenager. In 2006, the mother was arrested for possession of heroin and ordered to undergo substance abuse counselling. The mother stopped using heroin prior to Hannon's birth, attended a Suboxone clinic where she was prescribed Subutex to treat her addiction, and attended therapy sessions regularly. However, the mother relapsed on cocaine in 2011, 2012, 2013, and 2014. After she tested positive for cocaine when she appeared at court on July 29, 2014, she failed to take another court-ordered drug test when she appeared on November 25, 2014. She then tested positive for marijuana on the December 2, 2014, trial date and for amphetamines on the December 16, 2014, trial date. The judge found that the mother's substance abuse issues have not been properly treated and are likely to continue for the foreseeable future. In light of the evidence, this finding was not clearly erroneous.
For the purposes of this decision, we assume that the mother never used heroin again, as the judge below did not find any facts to the contrary.
The mother also suffers from other mental illnesses. She has been diagnosed with depression, anxiety, attention deficit hyperactivity disorder (ADHD), and personality disorder. She also admits to having anger management issues. The judge found that the mother failed to attend therapy sessions on a consistent basis and that these illnesses have not been properly addressed and treated.
While the mother and father were living together, their relationship involved regular incidents of domestic violence, some of which occurred while Hannon was present. On March 3, 2013, the mother stabbed the father with a metal pipe during a dispute. Later, when the mother was at the police station, she told a social worker and another DCF worker that the father "beats the shit out of her." In mid-2013, the mother received services at the Elizabeth Freeman Center to learn about domestic violence. However, by August, 2013, she and the father had moved back in together. The mother's relationship with the father finally ended in December, 2013, when they were evicted from their apartment for failing to pay rent.
Between December, 2013, and October, 2014, the mother lived with various family members and friends. The mother has been dating a former neighbor (boy friend) since July, 2014, and living with him in the maternal grandmother's house since October, 2014. The boy friend pays all the expenses, including rent to the maternal grandmother. As of the trial, the boy friend was not aware that the mother continued to use cocaine and stated that he would not stay with her if she continued to use drugs. The mother has no source of income but receives approximately $200 per month in food stamps.
The mother claimed to earn money from cleaning houses "under the table," but the judge did not find this credible.
The mother has a long history of arrests and convictions. She was found guilty of shoplifting on three occasions between March, 2010, and August, 2013, and was arrested for shoplifting once again in June, 2014. A few months prior to trial, she was charged with driving with a suspended license. She has also been found guilty of trespassing, intimidation, and possession of heroin. Other charges of assault and battery, assault and battery by means of a dangerous weapon (metal pipe), trespassing, disturbing the peace, shoplifting, and possession of heroin have been dismissed or continued without a finding. On at least two occasions, these arrests have rendered the mother unable to care for Hannon.
DCF has been involved with Hannon since his birth in November, 2010. The mother received her first DCF service plan on March 2, 2011. She violated this service plan by failing to provide DCF with access to drug screens and to remain drug free. The mother received another service plan on March 6, 2013. She violated this service plan by failing to maintain steady employment, housing, income, sobriety, and monthly visits with Hannon, as well as by failing to provide DCF with drug screens between February, 2014, and July, 2014.
There is evidence that Hannon was neglected while he lived with the mother and father. On January 25, 2013, an early intervention service provider informed the family's social worker that there were BB gun pellets on the floors throughout the home, which presented a choking hazard. The service provider also stated that its staff would no longer make home visits because of the father's threatening behavior. When Hannon was removed on March 3, 2013, he was very dirty, had a sour smell, and had an unexplained bruise on his forehead.
After Hannon was removed, the mother was entitled to two visits with him per month. However, she missed both visits in March, 2013, one of the visits in June 2014, and both visits in July, 2014. During a visit in March, 2014, she appeared to be under the influence.
Hannon has several specialized needs. He has a blood clotting disorder, posttraumatic stress disorder, and ADHD, all of which require treatment, and he has exhibited behavioral issues that require weekly therapy. His behavior has significantly improved since he was placed with his preadoptive parents. The judge found that he had formed a strong bond with his preadoptive parents and would suffer serious harm if returned to his mother.
The judge found that when Hannon was placed with his preadoptive parents in September, 2013, he exhibited yelling, punching, kicking, pinching, spitting, temper tantrums, hitting his head against the wall, breaking crayons and toys, gorging himself, and sexualized behavior. Hannon lived in seven different foster homes between March, 2013, and September, 2013, and there was no evidence about when he started exhibiting these behaviors. The judge did not conclude that they were caused by living with the mother. The behaviors are relevant only to Hannon's specialized needs, which bears on the mother's fitness.
Discussion. 1. The termination of parental rights. The mother challenges the termination of her parental rights as to Hannon.
"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. . . . 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." Adoption of Ilona, 459 Mass. 53, 59 (2011). "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). "In deciding whether termination of parental rights will serve the child's best interests, [t]he inquiry . . . is not whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child. . . . In other words, the judge must find grievous shortcomings to justify terminating parental rights." Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012) (quotations and citations omitted).
In a decision terminating parental rights, "[s]ubsidiary findings must be supported by a preponderance of the evidence, Adoption of Helen, 429 Mass. 856, 859 (1999), and none of the findings will be disturbed unless clearly erroneous. Adoption of Greta, 431 Mass. 577 , 587 (2000). . . . We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997)." Adoption of Nancy, 443 Mass. 512, 515 (2005).
A parent's persistent drug use is relevant to a parent's current and future fitness. See Adoption of Elena, 446 Mass. 24, 33 (2006); G. L. c. 210, § 3(c)(xii). However, drug use alone cannot support a finding of unfitness "when the care of the child to date has been, on the whole, satisfactory, and, certainly, free of abuse or neglect." Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997) ("[W]e do not think a cocaine habit, without more, translates automatically into legal unfitness to act as a parent"). See Care & Protection of Frank, 409 Mass. 492, 494 (1991) ("Evidence of alcohol or drug abuse clearly is relevant to a parent's willingness, competence, and availability to provide care, though not necessarily dispositive of the issue"); Adoption of Nancy, 443 Mass. at 516 (upholding termination where "[t]he judge's findings make clear that her decision to sever legal ties between the girls and their father was based on her determination that there was no hope that the father would stop drinking and, thus, would not be capable of any normal parenting duties"); Adoption of Yale, 65 Mass. App. Ct. 236, 241 (2005) (insufficient evidence of unfitness where "even if the mother has engaged in occasional drug use . . . there is absolutely no indication in the record that any drug use has adversely affected her ability or fitness to parent the child").
In determining whether a child has suffered abuse, a judge may consider the child's exposure to domestic violence. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. 590, 599 (1996). "[A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Id. at 595. See Adoption of Elena, 446 Mass. at 31-32 ("Although the brunt of the abuse was directed at the mother and the oldest children, [the younger children] were no less victims from having witnessed the abuse as opposed to being an intended recipient"); Adoption of Zak, 87 Mass. App. Ct. 540, 542-543 (2015); G. L. c. 210, § 3(c)(ii), (viii).
A number of other factors may be relevant to a fitness determination. The judge properly considered all of the factors required by G. L. c. 210, § 3(c), and other relevant factors. We consider the following as particularly relevant to the fitness determination in this case. A judge may consider the parent's mental illness, G. L. c. 210, § 3(c)(xii); degree of compliance with service plans, Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("[R]efusal to cooperate with the department . . . is relevant to the determination of unfitness"); prior inability to cease harmful behavior, Adoption of Cadence, 81 Mass. App. Ct. at 169 ("[T]he judge is not required to grant the [parent] an indefinite opportunity for reform"); behavior during visits with the child, Adoption of Elena, 446 Mass. at 28; wilful failure to visit the child, G. L. c. 210, § 3(c)(x); prior criminal record, Care & Protection of Frank, 409 Mass. at 494-495 ("[T]o the extent it bears on parental fitness . . . evidence of prior convictions may properly be weighed in the balance"); chronic unemployment, Adoption of Azziza, 77 Mass. App. Ct. 363, 365 (2010); and inability to maintain a residence, Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004) ("[T]he judge focused on the mother's frequent moves with the child. . . . The judge, while acknowledging that just prior to trial the mother had obtained appropriate housing, was not obliged to give undue weight to that evidence"). A judge may also consider the child's special needs, Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984) ("The specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness"), and degree of bonding with a substitute caretaker, G. L. c. 210, § 3(c)(vii).
Applying these principles, we determine that the judge's findings established by clear and convincing evidence that the mother is unfit and that she did not abuse her discretion in ruling that termination of parental rights is in Hannon's best interests. The judge found that the mother had abused drugs for years and continued to do so up to and during the time of trial. She continued abusing drugs despite the fact that it contradicted the terms of both her 2011 and 2013 service plans. Unlike in Adoption of Katharine, 42 Mass. App. Ct. at 34, this drug abuse has affected mother's ability to care for her child and is accompanied by other factors demonstrating unfitness. These include exposure of the child to domestic violence, repeated arrests, missed visits with the child, and failure to take advantage of services, comply with a service plan, or maintain employment.
While no single factor is determinative, all of these shortcomings, considered together and in light of Hannon's special needs and his bond with his preadoptive parents, show by clear and convincing evidence that the mother was unfit, that her unfitness was likely to continue into the foreseeable future, and that termination of parental rights was in Hannon's best interests.
2. Postadoption visitation. The mother and Hannon challenge the judge's decision leaving the question of postadoption visitation to the discretion of Hannon's preadoptive parents. In particular, they argue that the judge failed to consider the emotional bond between Hannon and his mother. Although we express no opinion on the ultimate question whether postadoption visitation would be in the child's best interests, we agree that the mother-child bond must be considered, and so we vacate that portion of the decree relating to postadoption visitation.
"In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family? . . . As to the first question, a judge should consider, among other factors, whether there is a significant, existing bond with the biological parent whose rights have been terminated." Adoption of Ilona, 459 Mass. 53, 63-64 (2011) (quotations and citations omitted). While a judge is not required to make extensive findings on the parent-child bond, she is required to make some findings, as "the existence, or not, of significant bonds between a child and his biological parent, as well as the existence, or not, of bonds between the child and a preadoptive or adoptive family, [are] important factors for a judge to weigh in determining whether to order postadoption contact." Adoption of Rico, 453 Mass. 749, 759 (2009).
The judge in this case did not make any findings as to the existence or extent of the bond between the mother and Hannon. Accordingly, the case must be remanded for reconsideration of that portion of the decree addressing postadoption visitation order in light of this factor.
Conclusion. The portion of the decree pertaining to visitation is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. The decree is otherwise affirmed.
So ordered.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 15, 2016.