Opinion
20-P-974
05-24-2021
ADOPTION OF EMMA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered by a judge of the Juvenile Court finding her unfit to parent the child and terminating her parental rights. The child was born in 2012, and was six at the time of the trial in 2018. The mother has a history of serious substance abuse, mental health, and domestic violence issues, and the child's life has been marred by instances of neglect by the mother, beginning just after her birth. For most of her life the child has lived with and been in the custody of her maternal grandparents (grandparents), although the mother also lived with the child until October of 2016, and had custody of her for some of the child's first four years. The mother argues that the judge erred (1) in finding her unfit and (2) in denying her motions for a new trial based on a claim of ineffective assistance of counsel. We affirm.
The father did not appeal from the termination of his parental rights. The child's brief argues that the decree should be affirmed.
Background. We summarize the facts as found by the judge, which are amply supported by the evidence. As indicated, the mother has a lengthy history of mental health issues and abuse of "opiates, heroin, alcohol, [and] prescription medication." She has been diagnosed with anxiety, depression, ADHD, and possible PTSD. After the mother graduated from college, she worked as a paraprofessional at a high school. She met the father when he was one of her students, and he and the mother began dating when he was nineteen years old. The mother and father began to use opiates together. The mother had a positive drug test two months before the child was born. During her pregnancy, the mother was prescribed Subutex. The child was born in July 2012.
The Department of Children and Families (department) became involved with the mother after the child's birth, based on allegations of drug use by the mother. The mother and child lived with the grandparents. When the child was three months old, the grandparents obtained guardianship of her from the Probate and Family Court, after they found the mother unconscious in her room and the child crying on the floor. The grandparents’ guardianship ended after approximately one year, when it appeared that the mother was "doing better." However, in September 2015, the grandparents obtained a second guardianship of the child after they discovered drug paraphernalia (used needles, crushed pills) in the mother's room. The mother briefly regained custody of the child in June 2016, at which time the mother and child lived together in an apartment.
During the period after the mother regained custody in 2016, the department reported that "there were a number of positives for" the mother: she was "maintaining her own apartment, was seeing [a doctor] for Subutex and attending therapy. She had worked with a parenting partner, and had enrolled [the child] in [H]ead [S]tart." The department required that the mother "not allow Father to be in her home or ‘around’ [the child]" because of his lack of compliance with his service plan and their inability to verify that he was sober.
In October of 2016, the mother left the father alone with the sleeping child in her apartment while she went to visit a neighbor. When the mother returned, she found that the father had "trashed" the apartment, and she called the police. When the mother first reported this event to the department, she told them that the father had "broken in" to her apartment, but she told the police that she had invited the father into the apartment to babysit the child (although the father was not supposed to have unsupervised contact). During the subsequent investigation, it was discovered that the mother was missing nine Subutex pills; she could not explain the discrepancy. The department then filed the care and protection petition (petition) at issue in this case on October 25, 2016, the department was awarded custody, and the child was placed with the grandparents.
The police were again called to the mother's apartment five days later, on October 30, 2016, to investigate a report of an argument. The mother answered the door after the police knocked several times, and admitted that the father had been there and that they had been arguing, but that she had allowed the father to leave through the back door when the police arrived.
The mother was initially compliant with her service plan after the department filed the petition, and the department planned to reunify the mother and child in June 2017. However, in or around May 2017 things took a turn for the worse. The mother stopped attending therapy, missed a visit with child, and sounded intoxicated to the department social worker. The mother tested positive several times for marijuana and also Klonopin, for which she had no prescription. She denied being in a relationship with the father, but she was seen with him just outside the department's office, kissing. In September 2017, the department changed the goal from reunification to adoption by the grandparents.
As of September of 2017, the child was living with the grandparents, and mother was living alone. Although she told the department that she worked as a "spiritual medium," she provided no information to substantiate any income, other than from State benefits. In November of 2017 the mother was involved in a domestic violence incident with a new boyfriend; she called the police and told them that he had assaulted and strangled her. Although she told the department that she thereafter had ended the relationship, the mother saw the new boyfriend again in December 2017, and he allegedly assaulted her again. The judge found, based on social media postings presented at trial, that it "appeared" the relationship continued right up until trial in July of 2018.
In addition to the domestic violence, there were several instances of the mother's use of alcohol or other controlled substances during this same period in 2017 and 2018. The mother smelled of alcohol at an afternoon department meeting in October of 2017. She tested positive for cocaine in December of 2017, and for alcohol in February of 2018. In April of 2018 mother again smelled of alcohol prior to her department-supervised visit with the child; she was asked to go for a screening test at a nearby health center, and she left and did not return.
In finding the mother unfit and terminating her rights, the judge discussed all of the above facts. While acknowledging that mother cared deeply for the child and was bonded with her, the judge noted the lengthy history of substance abuse, the prior neglect, and the inability of the mother to avoid or to end violent relationships. The judge specifically found that although the mother had done some substance abuse classes, she "does not have ... insight" into her substance abuse issues, and frequently (and incredibly) denied that she has substance abuse issues. The mother's attitude toward her abusive relationships was very similar; she would deny that she was in such relationships when the evidence showed otherwise, and deny in any event that the abusive relationships created issues for parenting the child. The judge concluded her decision by citing the "[m]other's inability to parent [the child] safely since almost birth."
Discussion. 1. Unfitness. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of the evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). We give substantial deference to the judge's findings, which we do not disturb unless they are clearly erroneous. See id. at 606-607. "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). The judge must determine "whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ " Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
The mother argues that "the judge's subsidiary findings fail to clearly and convincingly establish current parental unfitness." We disagree. The judge's finding of unfitness was warranted by the evidence, which established that "[t]he mother's unfitness resulted from a ‘constellation of factors.’ " Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting Adoption of Greta, 431 Mass. 577, 588 (2000).
As required, the judge considered the factors set out in G. L. c. 210, § 3 (c ), and found factors (ii), (iii), (iv), (viii), and (xii) applicable.
Although the judge credited the mother for receiving regular treatment for her opiate use, and for not testing positive for opiates since 2017, the judge found that the mother "struggled to maintain her sobriety." On several occasions in 2017 and 2018, the mother came to the department's office for scheduled meetings and visits with the child smelling of alcohol. In addition, on multiple occasions the mother tested positive for a medication that was not prescribed to her. Although the mother completed a twenty-eight day outpatient addiction treatment program in May 2018, and testified that she attended between fifty and sixty Alcoholics Anonymous (AA) meetings, at trial the mother could identify only one of the AA steps. The judge found that the mother did not have an accurate view of whether she had a substance abuse problem, and that "[t]his lack of insight is likely to continue into the foreseeable future to a near certitude." While there was no direct evidence that the mother's alcohol use affected her ability to parent the child, in the circumstances of this case, it was reasonable for the judge to consider it in assessing the mother's unfitness. "Evidence of alcohol or drug abuse is clearly relevant to a parent's willingness, competence, and availability to provide care, though not necessarily dispositive of the issue." Care & Protection of Frank, 409 Mass. 492, 494 (1991).
On the last of these occasions, in April 2018, the mother arrived at 2 p.m. to visit with the child at the department office. The department social worker told her the visit could go forward only if she agreed to a drug and alcohol test. The mother agreed to get a test at a site that was a ten-minute walk away and then come back to the office, but she did not return. The social worker called her a few times to remind her that the testing site was only a short distance away, and that the visit could not be rescheduled if she did not return that day. The mother first told the social worker that she was "on her way," then reported that the testing site was closed when she got there after 4 p.m. , even though she had left the office two hours before.
The judge did not credit the mother's testimony about the number of AA meetings she had attended.
The judge did not credit the mother's testimony that she had her last alcoholic drink before she started the treatment program in April 2018. The mother first testified that she could drink "once a month" at social events without relapsing, but then testified that she would stop drinking completely. The judge was not convinced by the mother's decision "mid-trial" to stop drinking; it appeared to the judge that the mother was "saying what she thinks the Court wants to hear about alcohol, without true commitment to sobriety."
In addition, the judge considered the mother's involvement with men who were physically abusive, and found that the mother "has a pattern of remaining in unhealthy/abusive relationships. She also has a pattern of being untruthful about [these relationships] with" the department. After the incident in October 2016 during which the father "trashed" the mother's apartment, she allowed the father into her apartment again five days later, then allowed him to leave through the back door when the police arrived. In July 2017, after the mother denied being in a relationship with the father, the mother was seen holding hands and kissing him outside the department office.
The mother was also inconsistent in her reports about her relationship with her new boyfriend, who had been violent to her at least twice, in November and December 2017. In February 2018, the mother admitted that she was in a relationship with the boyfriend, but then denied it when the department expressed concern about domestic violence. Social media posts by the mother and the boyfriend in June 2018 were considered by the judge as evidence of a continuing relationship between them, and the judge did not credit the mother's testimony that she did not have a relationship with the boyfriend. The judge also found that the mother lacked insight into the effect of domestic violence on children, and had a "poor" understanding of who is a safe partner. The judge appropriately considered the mother's inability or unwillingness to end her relationship with an abusive partner. See Adoption of Willow, 433 Mass. 636, 645 (2001) (mother's inability "to deal with her long history of domestic violence from various abusive partners" supported finding of unfitness).
The judge recognized that the mother had engaged in many of the services that the department required of her -- substance abuse treatment, mental health counselling, and domestic violence counselling -- but that she "continues to struggle in these areas to the present day." See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019) ("although the mother did engage in some of the services offered by the department and was at one point fully compliant with her service plan, mere participation in the services does not render a parent fit without evidence of appreciable improvement in her ability to meet the needs of the child[ren]" [quotation and citation omitted]). The mother testified on her own behalf, and the judge found much of her testimony not credible. The mother's "arguments [about the judge's finding of unfitness] amount to dissatisfaction with the judge's weighing of the evidence. We, however, afford deference to the judge's assessment of the weight of the evidence and the credibility of the witnesses, as well as to the judge's determination of the child's best interests, reversing only if there is clear error or abuse of discretion.... The evidence was clear and convincing that the mother was unfit to parent [the child] and likely to remain so." Adoption of Jacob, 99 Mass. App. Ct. at 266.
The judge also considered the mother's struggles with keeping a clean apartment and lack of steady income, "[d]espite having no apparent physical limitations." The mother gave inconsistent testimony about her income from working as a spiritual medium, the money she received from her family and from the father, and the rent she paid for her subsidized apartment. See Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018) (judge could consider whether parent maintained financial stability in determining unfitness).
Despite her love for and bond with the child, there is little in this record that demonstrates the mother's ability to care for the child safely by herself. The mother neglected the child immediately after birth, and on other occasions over the next several years. The mother had custody of the child for a relatively short period of time, during which time she was unable to consistently "assume all parental responsibilities and ... provide [the child] with the stable and continuous care and nurturing she needs and will continue to need as a child." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). "[T]he judge did not need to wait for inevitable disaster to happen before acting in the child's best interests" (quotation and citation omitted). Care & Protection of Vick, 89 Mass. App. Ct. at 709. The department's actions to protect the child "may properly be preventive as well as remedial." Custody of a Minor (No. 2), 378 Mass. 712, 714 (1979).
2. Ineffective assistance of counsel. The mother filed a motion for a new trial and an amended motion for a new trial, alleging ineffective assistance of her trial counsel. The judge denied the motions in comprehensive written decisions after hearing arguments of counsel, and after taking testimony from the mother and trial counsel. We review a judge's denial of a motion for a new trial for abuse of discretion. See Adoption of Nicole, 40 Mass. App. Ct. 259, 264 (1996).
In "evaluating claims of ineffective assistance of counsel in care and protection proceedings," "[f]irst, we look to determine whether the ‘behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer’ and, if so, we further inquire ‘whether [counsel's conduct] has likely deprived the [parent] of an otherwise available, substantial ground of defence.’ " Care & Protection of Stephen, 401 Mass. 144, 149 (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Under the second prong, prejudice must be shown; prejudice is not shown if there is overwhelming evidence of unfitness." Adoption of Azziza, 77 Mass. App. Ct. 363, 368 (2010). "Where a strategic choice is at issue, ‘[a]n attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made.’ " Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
The mother alleges numerous failures by her trial counsel, including the failure to interview and call as a trial witness her treating physician, Dr. Hanno Muellner; failure to interview the department's expert witness, Dr. David Tobin, whose psychological and parenting report was admitted in evidence without objection; and failure to interview other witnesses suggested by the mother. She also faults trial counsel for his alleged general unpreparedness for trial, including his failure to adequately prepare the mother. On this record, we conclude that "trial counsel's performance was adequate." Adoption of Holly, 432 Mass. 680, 690 (2000).
In an affidavit filed in support of the mother's motion for a new trial, Dr. Muellner stated that he had treated the mother for over seven years for "moderate opioid use disorder," which was in remission and for which he prescribed Subutex ; that he was not contacted by trial counsel about testifying at the trial, although he was willing to testify; and that if he had been called, he would have "testified favorably" that the mother had made "steady progress and has not relapsed into opioid addiction in over [seven] years." It was undisputed that the focus of Dr. Muellner's treatment of the mother was for "opioid addiction." The mother admitted that she had an alcohol use problem, but Dr. Muellner did not address the mother's alcohol use in his affidavit. Moreover, there was evidence of more recent opioid use by the mother that Dr. Mueller did not address -- in 2015, when the grandparents sought guardianship for the second time, and in 2017, when she tested positive for cocaine. Additionally, Dr. Muellner stated in his affidavit that he could not provide an expert opinion as to the mother's fitness or unfitness. Although we agree that it would have been better practice for the mother's trial counsel to have interviewed Dr. Muellner, the mother has not shown prejudice. As the judge concluded, Dr. Muellner's proposed testimony "would not have affected the outcome of the trial."
Similarly, the mother would not have gained materially from calling as witnesses the other individuals she proposed. Dr. Tobin's testimony would presumably have been consistent with his less than favorable report, which highlighted the mother's inconsistent reports of whether she was still using alcohol and other substances and whether she was still in contact with her abusive boyfriend, and which concluded that she was "not in complete remission from either substance use or domestic violence." With regard to the therapist, the judge noted that the therapist had to revise her original assessment because the mother "had not been forthcoming about her positive screens" or alcohol use; her testimony also would not have been helpful to the mother.
The judge found that the mother gave her therapist incomplete or inconsistent information, which was another indication of the mother's resistance to maintaining sobriety. As an example, the therapist at first did not recommend that the mother attend substance abuse treatment after the mother told her that she did not use substances. When the department explained to the therapist that the mother had tested positive for nonprescribed medication, cocaine, and alcohol, and that the mother had arrived at a visit smelling of alcohol, the therapist issued a new recommendation that the mother should have substance abuse treatment.
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The mother also complains that trial counsel was not prepared for trial on October 20, 2017, the original trial date, and also that he failed to prepare her properly for the 2018 trial. As to the original October 2017 trial date, the judge credited trial counsel's testimony about the steps he took before that date, including reviewing the file and meeting with the mother. During that meeting the mother said she did not want to go forward with the trial, and she in fact stipulated to unfitness on the original trial date after a lengthy colloquy during which the mother clearly stated that she understood the rights she was giving up by her stipulation. And as to the 2018 trial, the judge held an evidentiary hearing, and found as fact that trial counsel had adequately prepared the mother. That finding was based upon a careful review of the evidence, and was not clearly erroneous.
The judge's decision that trial counsel was not ineffective was not an abuse of discretion, especially since she observed trial counsel at all stages of the proceedings. See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996) (special deference to judge's decision on motion for new trial if she was also trial judge). While at least some of the witness interviews should have been conducted, we are satisfied that they would not have changed the outcome of trial, which was informed by clear and convincing evidence of the mother's inability to provide the child with a stable and safe environment. See Adoption of Gwendolyn, 29 Mass. App. Ct. at 136. The mother's own testimony at trial was inconsistent, and much of it was deemed not credible by the judge. See Adoption of Holly, 432 Mass. at 690-691 (father's testimony that was "contradictory and seriously lacking in credibility" was "decisive" in denying his claim of ineffective assistance of counsel). The mother has "failed to establish that better work on the part of trial counsel would have yielded anything material ... in defense of her own fitness to parent." Adoption of Raissa, 93 Mass. App. Ct. 447, 456 (2018).
Decree affirmed.
Orders dated April 10, 2019, and March 5, 2020, denying motion for new trial and amended motion for new trial affirmed.