Opinion
15-P-1266
04-28-2016
ADOPTION OF MAX.
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 and father appeal from decrees entered in the Juvenile Court terminating their parental rights as to the minor child. Both parents stipulated to their unfitness at trial, but they contend that the judge abused his discretion in concluding that the mother's unfitness was "likely to continue into the indefinite future to a near certitude." We affirm.
The Department of Children and Families (department) disputes the father's standing to maintain this appeal. Because a determination of the father's standing would not affect the outcome of this appeal or our analysis of the issues, we need not and do not reach the question.
To grant a petition terminating a parent's legal rights, the judge "must find by clear and convincing evidence that a parent is presently unfit to provide for the welfare and best interests of the child." Adoption of Mary, 414 Mass. 705, 710 (1993). Upon review, "our task is not to decide whether we . . . would have made the same decision, but to determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "In recognition of the trial judge's superior position to evaluate witness credibility and weigh the evidence, we review [his] findings with substantial deference." Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012).
In this case, the judge made extensive findings leading to his ultimate conclusion that the parents were unfit and that the child's best interests would be served by the termination of parental rights. That conclusion was neither erroneous nor an abuse of discretion. The child was born with opiates and cocaine in his system, and was hospitalized for weeks as he struggled with effects of withdrawal, including seizures. In the following months, his parents all but abandoned him; they visited him in the hospital once, at most, ignored most of the department's efforts to contact them, and did not complete any tasks on their service plans. The mother admitted to regular drug use for at least one year or two during and after the pregnancy and prior to her incarceration. She had been convicted of several crimes related to her drug use, and she was incarcerated at the time of trial. The father acknowledged a lifelong drug addiction and an extensive criminal history related to his addiction. The judge found a nexus between the parents' drug use and their neglect of the child. The mother testified that she intended to continue her relationship with the father, and they maintained contact while they were both incarcerated.
Considering the factual findings made by the judge, he acted within his discretion in terminating the parents' rights. The parents point to the mother's claim to have participated in treatment programs while incarcerated, as well as her stated intention to remain sober, as proof that her unfitness was temporary. However, the judge was not required to credit the mother's assertions (which were not corroborated by documentary or other evidence, such as records of her program participation). Furthermore, he clearly weighed this evidence against the evidence of the mother's long-term, habitual drug use, her expressed intention to reunite with the father, and the fact that the father and the maternal grandmother (also a drug user and dealer) were the mother's primary support system. Given the totality of the evidence, it was reasonable for the judge to conclude that the mother was likely to resume drug use upon release from incarceration. See Adoption of Serge, 52 Mass. App. Ct. 1, 7 (2001) (period of "enforced sobriety" while incarcerated not enough to compel finding that parent will maintain long-lasting sobriety). Although it is possible the mother may achieve sobriety in the future, the "judge is not required to grant the [mother] an indefinite opportunity for reform." Adoption of Cadence, supra at 169. See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("[I]t is only fair to the [child] to say, at some point, 'enough'"). Finally, although the judge incorrectly stated that the mother had been incarcerated off and on since 2010, this error did not affect the outcome of the case. The mother had a lengthy criminal history, and in any event, the judge's reasoning did not rely on that fact. Instead, the crux of the judge's decision was that the parents' admitted drug use had caused great harm to the child and prevented the parents from being able to take adequate care of him, and that their drug use was likely to continue into the indefinite future.
Decrees affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 28, 2016.