Opinion
15-P-356
01-14-2016
ADOPTION OF MAURA.
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
Following a trial in the Juvenile Court, the mother appeals from a decree declaring her unfit to parent Maura and terminating her parental rights. On appeal, she claims the judge made unreasonable inferences regarding her fitness and relied on "stale evidence" while ignoring favorable evidence in terminating her parental rights. We affirm.
The mother filed a motion to withdraw her appeal, which this panel denied without prejudice to be refiled as a stipulation of dismissal with prejudice signed by all parties on or before November 16, 2015. The mother has requested and received extensions of that filing deadline. In light of the fact that no stipulation has been filed, we have decided the appeal.
The mother claims the determination of her unfitness to parent Maura was not supported by clear and convincing evidence. We disagree. Several of the judge's findings here indicated the mother's failure to concern herself with the child's well-being. The mother had a relevant history of mental health issues and substance abuse, as well as a criminal history. Although neither substance abuse nor a criminal record is dispositive in determining parental fitness, the judge properly weighed both as they were relevant to the judge's evaluation of the mother's willingness, competence, and availability to provide care. See Care & Protection of Frank, 409 Mass. 492, 494 (1991).
For example, while pregnant, the mother received very little prenatal care, but made numerous hospital trips in order to obtain opiate medications.
In addition, the judge detailed the mother's decision to kidnap Maura after the Department of Children and Families (DCF) had gained temporary custody. During the nine-month period where the mother evaded authorities, Maura fell behind in her immunizations and received limited medical care. Contrary to the mother's assertion that no harm befell Maura, the judge could properly find she was indeed "much at hazard" during this time period. Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997) ("Of course, neither agencies responsible for the welfare of children nor judges sitting on these sorts of custodial questions need to wait for the inevitable disaster to happen"). This finding was neither erroneous, nor based on unreasonable inferences. See Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995) ("[D]eference is to be accorded the trial judge's assessment of the credibility of witnesses and the weight of the evidence").
The judge found that Maura was not only medically behind after this time period, but on entering foster care, she also displayed "disturbing behaviors" and suffered "very serious separation anxiety." The mother's contention that the judge improperly connected Maura's anxiety with the kidnapping has no merit. Although thee mother argues that Maura's troubling behavior only manifested after entering foster care, the judge permissibly and reasonably inferred that the child's issues related to the neglect and kidnapping.
We also reject the mother's contention that the judge improperly relied on the "stale evidence" from the period where the mother evaded authorities with Maura from April, 2012, until January, 2013, in deeming her unfit to parent Maura. The mother concedes that the judge accurately portrayed the circumstances during that time period, but argues that events occurring two years prior to trial did not demonstrate a present and future danger for Maura that required termination of her parental rights. However, in determining current parental fitness and the likelihood of harm to the child, a judge may rely on past patterns of neglect and misconduct. See Adoption of Diane, 400 Mass. 196, 204 (1987). In this instance, the judge properly considered the relevant factors described above in determining that the mother was unfit. Although some of the events described in the findings occurred two years prior to the trial terminating the mother's parental rights, the time period she complains of details some of her previous involvement and refusal to cooperate with DCF, which is indeed relevant to unfitness. See Custody of Michel, 28 Mass. App. Ct. 260, 270 (1990). Moreover, her uncooperativeness persisted even closer to the trial and after her deportation to Canada as well. Despite the mother's claims, the April, 2012, to January, 2013, period was highly relevant and properly considered.
The mother also suggests that the judge selectively relied on the April, 2012, to January, 2013, time period in finding that she had a "pattern of criminal activity and disrespect for the law," while ignoring her noncriminal history that would not signify a "present and future danger for [Maura]." We disagree. In fact, the judge considered all aspects of the mother's compliance with her service plan, including her success in completing a one-month outpatient substance abuse treatment program. However, despite some efforts to comply with DCF, the mother was unsuccessful in completing a majority of her other tasks. The mother's criminal activity, as discussed above, was just one of many factors for the judge to consider. The judge did not selectively ignore positive facts, but instead considered and appropriately weighed all the relevant facts in finding the mother unfit and terminating her parental rights. See Adoption of Stuart, 39 Mass. App. Ct. at 382.
Decree affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 14, 2016.