Opinion
No. 16–P–307.
10-14-2016
ADOPTION OF GALINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree of the Juvenile Court finding her unfit to assume parental responsibility for Galina and terminating her parental rights. , See G.L. c. 119, § 26 ; G .L. c. 210, § 3. The mother argues that there was insufficient evidence to demonstrate her unfitness and, in fact, that there was overwhelming evidence of her current fitness. The mother also argues that the judge's findings and conclusions demonstrated that he was not even-handed in his assessment of the evidence.
The father did not pursue an appeal.
Although the mother's notice of appeal names both Galina and her brother, on appeal she argues only that the decree terminating her parental rights to Galina should be reversed.
The mother agrees that Galina's brother, whom we shall call Henry, should remain in his current placement due to his extraordinary medical needs. She argues here, however, that Galina was “simply an afterthought caught up in and obfuscated by concerns with [Henry's] medical neglect.” The judge did not treat Galina's situation as an afterthought to the concerns about Henry, as the judge made more than thirty findings specifically regarding the mother's neglect of Galina, the impact of this neglect, and the likely harm that would result if Galina were returned to the mother's custody. The mother does not challenge any of the findings as being clearly erroneous. These findings clearly and convincingly support the judge's ultimate finding that the mother is currently unfit to parent Galina and that such unfitness is likely to continue in the foreseeable future.
Generally, while Galina does not suffer from the extraordinary and special medical needs that Henry does, the judge concluded that she still “requires an attentive caretaker who will recognize her needs, and provide a structured, nurturing environment.” The judge found that Galina had regressed emotionally between the time that she was returned to the mother's custody at the close of the first care and protection proceeding and her subsequent return to the custody of the Department of Children and Families when the second care and protection petition was filed. Galina was medically behind when removed from the mother's custody in 2013, she gorged herself with food at mealtime, and while the mother was aware of this behavior, she did nothing to address it. The foster mother had to contend with other concerning behaviors upon Galina's return. Galina engaged in outbursts, tantrums, and aggressive behaviors, including kicking, slapping, and hitting to show her emotions. This behavior carried over to her return to school. Her kindergarten teacher testified that at the start of the school year she showed anger and frustration toward her classmates. Galina has attended therapy for more than two years to address these anger issues. This is not a situation where “a parent may be fit to raise one child and unfit to raise another.” Adoption of Rhona, 57 Mass.App.Ct. 479, 487 (2003). The mother is incorrect in her claim that Galina has no special needs, and this lack of understanding is consistent with the judge's findings and conclusions.
In addition to finding that the mother neglected Galina medically and ignored troubling emotional issues Galina exhibited, a number of other issues contributed to the mother's unfitness. The judge found that the mother failed to address her continued substance abuse. This is not a situation where substance abuse bears no connection to parental unfitness. See Adoption of Katharine, 42 Mass.App.Ct. 25, 31 (1997) (cocaine habit, without more, did not justify finding of parental unfitness). The judge here concluded that the mother's mental health and untreated substance abuse issues contributed, and will continue in the future to contribute, to her inability to parent Galina.
The judge also found a long-standing pattern of irresponsible decision making by the mother that directly endangered her children. The mother's housing situation was uncertain throughout the trial. She regularly borrowed money from family members to pay her rent. Despite this, she still failed to pay her rent on time or to pay it at all for extended periods while the case was pending. As a result, the judge described the mother's housing as “tenuous.” While homelessness cannot be the sole basis to support a finding of parental unfitness, Adoption of Linus, 73 Mass.App.Ct. 815, 821 (2009), the failure to maintain a stable home life and environment is a contributing consideration and relevant to a determination of unfitness. Petitions of the Dept. of Soc. Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).
The judge found that the mother failed to consistently engage in services offered to address and remediate issues contributing to her unfitness. Evidence of a parent's failure to maintain and follow through on the requirements of service plans and the refusal to participate in counseling programs, as well as the refusal of other assistance, is relevant to the determination of parental unfitness. See Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005) ; Adoption of Leland, 65 Mass.App.Ct. 580, 585 (2006).
Finally, the mother argues that the judge failed to even-handedly assess the evidence presented at trial when she determined that the mother was currently unfit to parent Galina Our review of the record, however, indicates no such bias, and therefore no error. We defer to the trial judge's assessment of the weight of the evidence and the credibility of the witnesses Custody of Eleanor, 414 Mass. 795, 799 (1993).
Ultimately, a judge is entitled to prognosticate about future parenting ability and performance based upon evidence of past performance. The judge need not “wait for the inevitable disaster to happen.” Adoption of Katharine, 42 Mass.App.Ct. at 32.