Opinion
20-P-18
10-02-2020
ADOPTION OF DALTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
This case involves the welfare of Dalton, a boy born in September of 2010. After trial, a Juvenile Court judge issued a decree that, inter alia, found Dalton in need of care and protection, found the mother unfit, awarded permanent custody to the Department of Children and Families (DCF), terminated the mother's parental rights, and approved a plan under which Dalton would be adopted by his current foster parents (with whom he has been placed since November of 2017). We affirm.
These proceedings originally involved a second child, Dalton's older sister Barbara (a pseudonym). Although the judge found the mother unfit to parent Barbara, the judge did not terminate the mother's rights as to Barbara and in fact recognized that Barbara had not lost hope that the mother might eventually become fit and they could be reunited. After the mother initiated a review and redetermination proceeding regarding Barbara, she and Barbara were reunited, and the judge dismissed the care and protection petition with respect to Barbara. In a separate order issued on September 25, 2020, we dismissed the mother's appeal with respect to Barbara, as well as Barbara's own appeal.
The father was also found unfit and his rights were terminated as to both children. He has not appealed.
After trial, but prior to the termination decree's issuance, the mother filed a motion seeking to reopen the evidence. That motion was based on an alleged change in circumstances: namely, that since the trial's end, the mother's husband -- who lived with her -- was allowed to take custody of two of his children. The mother contended that DCF's allowing those two children to live in her household signified that she was also fit to parent Dalton. On the same date that she issued the decree, the trial judge denied the mother's motion to reopen the evidence. Later, the judge issued a memorandum of decision explaining the reasons for the denial.
The mother's husband is not the father of Dalton and Barbara. The mother and her husband have two children together who were the subject of a separate care and protection proceeding. The mother has appealed the decrees in that case, but, according to DCF, the record has not yet been assembled.
Parental fitness. The mother's principal parental deficiency has to do with her well-documented history of substance abuse, particularly involving pain pills and heroin. Her own expert described her level of addiction as "moderate to severe." She has relapsed several times. The mother also had multiple incarcerations.
The children were removed from the mother's custody in 2013, at which time Dalton was two years old. That was the last time Dalton lived with the mother.
In 2014, the mother stipulated to her unfitness, the children were placed with their father, and the care and protection proceeding was dismissed. The current care and protection proceeding was filed in 2017 following evidence that the children were being neglected and missing significant school time. The father participated at the seventy-two hour hearing; the mother did not. A four-day termination trial was held beginning on November 29, 2018, and concluding on January 28, 2019. During that trial, nine witnesses testified, and seventy-six exhibits were entered in evidence. Findings from a separate care and protection trial involving the mother's other two biological children were admitted without objection. The mother herself submitted the trial transcript from that separate trial.
At the time of trial, Dalton was eight years old. He had some visitation with the mother since 2013 when he last lived with her. After such visits, he would display behaviors that concerned DCF. The judge found that "any parent-child bond between [the mother and Dalton] has been so disrupted by her repeated relapses and re-incarceration and lengthy time away from him that it is not significant to the child."
At the time of trial, Dalton had been placed with a foster family who intended to adopt him if allowed to do so. He had lived with that family for approximately one year, and he was thriving in that environment. This was in part because the foster mother was a zealous advocate on Dalton's behalf with regard to special needs he had exhibited. As the judge found, Dalton has "formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of [his] life, [and] the forced removal of [him] from the caretaker would likely cause serious psychological harm to him."
Barbara was differently situated from Dalton in multiple respects. Although Barbara, like Dalton, had not lived with the mother since 2013, and had no contact with her for much of the intervening period, she had developed a positive relationship with the mother by the time of trial. Barbara did not want to go back to the mother's custody at that specific time, but she expressed a desire to be reunited with her if the mother stayed sober. Although the judge formally approved DCF's plan that Barbara be adopted by a third party, the judge recognized that Barbara was old enough to veto any adoption and had expressed her intention to do so. In the end, the judge decided not to terminate the mother's rights with respect to Barbara. As noted, see note 2, supra, the mother and Barbara have since been reunited, and the appeals regarding Barbara are no longer before us.
The judge recognized that the mother was undertaking positive steps to try to control her addiction. At the same time, the judge also recognized the mother's multiple relapses and recurrent reincarcerations. The mother was unable to provide Dalton a safe and stable home environment in other respects as well. After concluding that the mother's grievous shortcomings as a parent were likely to continue for the indefinite future, the judge concluded that there was clear and convincing evidence of her unfitness. The judge terminated the mother's rights as to Dalton, and approved DCF's plan that he be adopted by his current foster family.
For example, whether related to her substance abuse or otherwise, the mother's life was marred by verbal and physical abuse by a boyfriend (not the father or the mother's husband) that Barbara witnessed. The mother also failed to see that at least one of her children received proper dental care despite being advised to do so, resulting in serious consequences to the child (a "severely decayed tooth" and repeated abscesses).
We address the mother's challenge to the finding of unfitness first. "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" (citations omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). The mother does not appear to challenge the judge's subsidiary findings, and, in any event, those findings enjoy ample support in the record. Indeed, much of the evidence presented at trial -- including especially the evidence of the mother's substance abuse -- was uncontested. To the extent that the mother suggests -- based on Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997) -- that DCF failed to put forward evidence that the mother's shortcomings negatively affected Dalton, those suggestions are plainly without merit. It suffices to point out that during her periods of heroin addiction, the mother effectively abandoned Dalton for periods of time while she used heroin, leaving him in the care of other heroin addicts.
The mother also contends that the judge should have given more weight to the evidence of her positive progress and current sobriety. Especially given the mother's previous relapses, her recent progress does not so convincingly rebut the evidence of her unfitness as to make the judge's finding clearly erroneous.
As to termination of her parental rights, the gravamen of the mother's argument on appeal is based on the fact that, again, she was making positive efforts by trial, had "affectionate" visits with her children, and had presented evidence that she had maintained her sobriety for several months. According to the mother, the judge did not give sufficient weight to such evidence, and thereby erred in terminating her rights without giving her additional time to demonstrate her long-term sobriety.
The mother is, of course, correct that "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). However, it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005). As time passes, it becomes increasingly important that a child obtain a stable, safe, and nurturing home environment. As the judge accurately pointed out, the mother had relapsed several times since DCF first became involved with the family. While there may have been indications at the time of trial that the mother's most recent effort was more promising, "it is only fair to the children to say, at some point, 'enough.'" Id. The judge did not abuse her considerable discretion in concluding that that point had been reached in this case.
As we previously have stated:
"We pause to note that the mother has shown evident affection toward [the child], 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 . . . do[es] not love the child. 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.'"Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
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 Adoption of Gregory, 434 Mass. 117, 121 (2001). With the overarching "best interests" standard in mind, we discern no error in the judge's decision to terminate the mother's parental rights as to Dalton. As noted, at the time of trial, Dalton had been placed for one year with his current foster family, in whose care he was thriving. They intend to adopt him, an outcome that he strongly favors. Dalton is now ten years old, and he last lived with the mother when he was still two. The judge did not abuse her discretion in concluding that termination was warranted.
Nor do we discern any error in the judge's denying the mother's posttrial motion to reopen the evidence. In a thoughtful memorandum and order, the judge explained why the new evidence the mother wanted the judge to hear would not have changed her conclusions. Specifically, the judge stated that she had
"carefully weighed the [m]other's history of placing her children in danger, and the prognostic evidence derived from her continued pattern of doing so. The passage of time and treatment has not deterred her before, and the court cannot find that it will do so in the future. The court also has weighed [the m]other's lengthy unavailability to parent [Dalton], and the impact that this separation has had on him. Moreover, [Dalton] has significant behavioral issues that require heightened attention to his needs. His special needs in this regard are met with the consistency and advocacy of his pre-adoptive mother. [DCF] suggests that reopening the evidence would show that since contact with his [m]other ended, [Dalton] has stabilized dramatically, and that his bond with his pre-adoptive foster home has deepened. In this context, reopening evidence would serve little purpose."The mother has not demonstrated that the judge abused her discretion in reaching such conclusions and in denying the mother's motion to reopen the evidence.
Decree affirmed.
Order denying motion to reopen evidence affirmed.
By the Court (Green, C.J., Milkey & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: October 2, 2020.