Opinion
No. 16–P–537.
10-21-2016
ADOPTION OF FERRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother of Ferris appeals from an order of a judge of the Juvenile Court dismissing her appeal from a decree terminating her parental rights. The basis for dismissal was the mother's failure to timely docket the appeal in this court. Although the propriety of dismissal is what brings this case before us, the mother, the Department of Children and Families (department), and the child have fully briefed the merits of the appeal from the decree. In view of the mother's right to the effective assistance of counsel, see Care & Protection of Stephen, 401 Mass. 144, 148–149 (1987), and the absence of specific and detailed findings indicating that the mother's failure to timely docket her appeal was due solely to her own inexcusable neglect and not that of her attorney, we vacate the order dismissing the appeal “in order that so vital a matter for parent[ ] and child shall not fail of a review here on the merits.” Custody of a Minor (No. 3), 16 Mass.App.Ct. 998, 999 –1000 (1983). After consideration of the mother's arguments, we affirm the decree.
The child's father surrendered his parental rights. He is not a party to these proceedings.
Background. Since at least the age of eighteen, the mother has struggled with substance abuse and mental health disorders. She also has multiple drug-related convictions for, e.g., possession of heroin, possession of drug paraphernalia, and crimes commonly associated with addiction such as shoplifting and petty larceny. In December, 2009, when the mother was twenty-six, she gave birth to Ferris. The department became involved the next day, upon receiving a report under G.L. c. 119, § 51A (§ 51A report), that the infant was born with methadone in his system. Over time, the department received several additional § 51A reports alleging, inter alia, the mother's continued use of heroin.
A care and protection petition was filed by the department as a result of an incident on August 15, 2011, when the mother was arrested at her home on a warrant relating to a common night walking charge. At that time, the mother's social worker noted the mother's dramatic weight loss and swollen hands, the latter being consistent with a report from Ferris's father that she was injecting opiates through her fingers. When the mother was arrested, Ferris was found at home, hungry and dirty from engine oil. He also was found to have a yeast infection. Ferris was taken to his paternal grandparents' home, where he has remained ever since. The paternal grandparents already had been involved in the child's life, as he would visit their home, where he had clothes and toys, at least weekly. They were concerned about the mother's ability to care for him properly, because he would arrive in the afternoons still in pajamas, dirty, and often with a soiled diaper. Although he was about twenty months old at the time of his placement with the paternal grandparents, Ferris was nonverbal at the time.
Even before Ferris's removal from the mother's care, she had a history of being uncooperative with the department. Twice in June, 2011, she refused to cooperate with investigations made under G.L. c. 119, § 51B (§ 51B report). Just prior to her arrest, in August, 2011, the department was unable to communicate with her in connection with a § 51A report alleging neglect.
In September, 2011, the mother signed a service plan that, among other things, required her to take a parenting class, provide drug screens, begin treatment for substance abuse, and attend Narcotics Anonymous. At least twice she told her social worker that she was enrolling in a parenting course, but she failed to follow through and only enrolled in January, 2013, when the trial in this case was originally scheduled to begin. She had not completed the class by the time the trial actually took place, in March, 2013.
The mother also failed to comply with tasks related to her drug abuse. After a few days of detoxification, she enrolled in a Suboxone-based treatment program but only attended orientation. She told her social worker that she would enroll in a different drug treatment program but failed to do so. Her social worker observed her appearing to be high and, at visits with Ferris, noticed that the mother had “track marks” on her hands. The mother also failed, without a credible explanation, to undergo regular drug screening. On the two occasions when she managed to get screens, she tested positive for opiates and failed to provide the results to the department.
The judge also found other cause for concern, including that the mother appeared to be under the influence of drugs during visits with the child; she refused since August, 2011, to permit department social workers to come into her home; she frequently missed appointments; she falsely told her social worker that she was still attending therapy; she did not provide credible evidence of employment; and she failed to attend the second day of trial without a credible explanation. At the time of trial, she had not completed any of her service plan tasks.
Although therapy was not part of her service plan, she claimed to attend when, in fact, she had been terminated for missed appointments and barred from returning because she had left a threatening voicemail message.
Discussion. Before terminating parental rights, the trial judge must determine, by clear and convincing evidence that the parent is currently “unfit,” and, if so, whether termination is in the best interests of the child. Adoption of Nancy, 443 Mass. 512, 515 (2005). In determining unfitness, the question for the judge is “whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or activity harmful to the child.’ “ Adoption of Olivette, 79 Mass.App.Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
The mother claims that her unfitness was not established by the requisite clear and convincing evidence. See Custody of Eleanor, 414 Mass. 795, 799 (1993). Central to this argument are her subsidiary challenges to certain findings. The mother first claims that eleven findings are based on the judge's erroneous reliance on a group of documents, offered in evidence by the mother, purporting to be Alcoholics Anonymous (AA) sign-in sheets. If credited, the documents would have shown that the mother consistently had attended AA meetings four times per week from April 28, 2012, to March 13, 2013. However, based on a number of compelling indications that the documents were fraudulent, the judge found that the mother had forged them. The judge then relied on the forgery as evidence of both the mother's unfitness and her lack of credibility. The mother now argues that the documents were not properly entered in evidence and therefore should not have been relied on for any purpose.
The record is somewhat ambiguous about the documents' status. It is significant, however, that the mother was the proponent of this evidence and that her counsel referred to the AA sign-in sheets in closing argument in support of the proposition that the mother had complied with her service plan. Having offered the documents, having obtained the judge's ruling that they were allowed in evidence, and having urged the judge to draw conclusions from them, the mother cannot now be heard to complain that the judge considered them. Cf. Camerlin v. Marshall, 411 Mass. 394, 398 (1991) (there is no right to appellate review of introduction of documents to which no objection has been made).
After the mother offered the documents and an objection was raised by counsel for the department, the judge initially said, “I'm not going to allow the AA sheets,” but after further colloquy, stated, “All right. I'll allow it.” Additional discussion at that time reflects that the documents were in a stack of papers on counsel's table and, hence, they were not marked immediately. A transcriber's note states: “The Court accepts the AA Sign–In Sheets as Mother's Exhibit 1; however, they were not marked or entered at this time.” We may infer from the judge's reliance on the documents in her decision that at a later point Exhibit 1 made its way into the court file and was available to the judge.
The mother also claims that findings and conclusions regarding her leaving Ferris with inappropriate caretakers, exposing him to her substance abuse, and being neglectful of his medical needs either lack support in the record, or are drawn from statements in § 51A reports that could be used only for the limited purpose of “setting the stage,” and § 51B reports that could be used only to establish “primary facts.” Except for one finding concerning the child's immunization status, which is agreed to be in error, the findings would appear to be fair inferences from the evidence and generally within the strictures placed on the use of § 51A and § 51B reports. Regardless, even if all of the challenged findings are stripped from consideration, there remains clear and convincing evidence of the mother's unfitness, e.g., her neglect of the child, her criminal activity, her failure to address serious addiction and mental health issues identified in her service plan, and her unexcused absence from part of the trial.
Although there is no argument to the contrary, there also was ample evidence that it was in the best interests of Ferris to terminate the mother's parental rights and thereby facilitate adoption by the paternal grandparents in whose care the child has thrived.
We note that the judge entered an order providing for parental contact four to six times per year between Ferris and the mother and her relatives, to be determined by Ferris's legal custodians in accordance with his best interests.