Opinion
19-P-553
06-05-2020
ADOPTION OF JAMAR.
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 appeals from a decree entered by a Juvenile Court judge terminating her parental rights to her son, Jamar. On appeal, the mother contends that (1) there was not clear and convincing evidence of her unfitness, and (2) terminating her parental rights was not in the child's best interests. We affirm.
The father's parental rights were also terminated. He has not appealed.
Background. We begin with a brief summary of the facts, reserving other relevant facts for the discussion of the issues. The mother has a history of substance abuse, a lengthy criminal history, and suffers from depression and anxiety stemming from posttraumatic stress disorder (PTSD). The mother relies heavily on service providers to help her with daily tasks such as bathing, cooking, and managing her finances. Her inability to manage her own well-being and her inconsistent utilization of services she depends on affect her ability to care for the child, who has special needs.
The child has trouble regulating his emotions and has tantrums that can become violent. One therapist reported a diagnosis of PTSD and adjustment disorder.
At his birth in February 2012, the child was removed from the mother's care upon the mother admitting to care providers that she had used "crack" cocaine and marijuana during her pregnancy. A report under G. L. c. 119, § 51A (51A report), was filed with the Department of Children and Families (department), and was found to be supported following an emergency investigation under G. L. c. 119, § 51B (51B investigation). The department filed a care and protection petition pursuant to G. L. c. 119, § 24, and the child was placed in the department's custody.
The 51A report was supported because the mother had two restraining orders against the father, who was nonetheless at the hospital with the mother; the mother admitted to smoking crack cocaine and smoking marijuana on a regular basis while pregnant; and the mother could not rationally make decisions during her delivery, which caused the child to have a septic infection. We note that we reference 51A and 51B reports only for the limited purpose of providing background information and primary facts. See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). Our review of the judge's findings of fact and conclusions of law is based on other properly admitted evidence, including testimony that was to the same effect.
The child was returned to the mother about eight months later, and the department began working with her to help her parent the child. The department, however, remained concerned about the mother's supervision of the child, and was especially concerned that the mother was allowing friends in her house, and around the child, who were active substance abusers and who struggled with mental illness.
The department once again took emergency custody of the child in December 2015 following an investigation into three 51A reports filed over the course of two days alleging abuse and neglect of the child. The first of these reports was filed by ServiceNet workers who, upon visiting the mother's apartment, found the mother passed out on her bed while two intoxicated men were in the living room with the child. The second 51A report alleged that when the fire department entered the mother's apartment as part of a wellness check requested by ServiceNet, the child was unsupervised in the bathtub and bleeding from a cut on his mouth, but the mother did not know how the child injured himself. The third report alleged that the mother's apartment was "in complete disarray and unsanitary," that open beer and other alcohol bottles "littered the apartment," and that pill bottles were within the child's reach.
When an investigator and social worker from the department went to the apartment to conduct a 51B investigation, they observed "a foul odor of cigarette smoke and alcohol" in the home and found the apartment to be extremely dirty. The social worker observed that the only bed in the apartment was a bare, stained mattress with no linens, and the child's changing table was covered with items and dirty clothing. The mother was not cooperative with the investigator and eventually told the investigator to "just take" the child. The department decided to take emergency custody of the child and deemed the allegations in the 51A reports supported.
Since the child was removed from the mother's care in December 2015, and up to the time of trial, the mother has had service plans and action plans with the department. The plans required the mother to complete tasks such as providing verification to the department of her progress in treatment through signing releases or otherwise; engaging in substance abuse and mental health therapy; understanding how her substance abuse and mental health affected the child; maintaining her sobriety; and keeping those who used or abused substances out of her home. The mother has not been compliant with these tasks.
The mother stipulated to her unfitness in March 2017 and the child was found to be in need of care and protection. In May 2018 the department filed a motion for a review and redetermination pursuant to G. L. c. 119, § 26 (c), seeking to dispense with the mother's rights to consent to the adoption of the child. A four-day trial was held over the course of October and November 2018, and on December 28, 2018, the judge issued a decree terminating the mother's parental rights. The judge subsequently issued detailed findings of fact and conclusions of law in which he found the mother unfit based on her history of substance abuse and ongoing substance abuse issues; her pattern of exposing the child to potentially dangerous individuals in her home; her inability to comply with her service and actions plan tasks; and her inconsistent utilization of critical therapy and services, and he concluded that termination of the mother's parental rights was in the child's best interests. This appeal followed.
Standard of review. Our standard of review is well established, as recently described in Adoption of Ulrich, 94 Mass. App. Ct. 668, 675-676 (2019):
"A person's right to parent her child can be terminated only if a judge determines that she is unfit and that termination is in the best interests of the child. [P]arental unfitness must be proved by clear and convincing evidence, and we review the judge's determination of the child's best interests for an abuse of discretion. Subsidiary findings must be supported by a preponderance of the evidence, and none of the findings will be disturbed unless clearly erroneous. We review the judge's findings with substantial deference, recognizing [his] discretion to evaluate a witness's credibility and to weigh the evidence." (Quotations and citations omitted.)
Discussion. 1. The mother's unfitness. The mother first argues that there was not clear and convincing evidence supporting her unfitness. She primarily contends that in finding her unfit the judge relied too heavily on past conduct and ignored her recent progress. We disagree.
First, contrary to the mother's assertion, the mother's history of substance use was properly considered by the judge as a factor in her unfitness. At the outset, the evidence established a nexus between the mother's substance use and her parental deficiencies. The child was first removed from the mother's care at birth, after the mother admitted to using crack cocaine and marijuana during her pregnancy. Later on, the child was again removed from the mother's care because of an incident during which she appeared to be drinking heavily. While "a [substance use] habit, without more, [does not] translate[] automatically into legal unfitness to act as a parent," this past conduct has prognostic value, and the judge was allowed to consider it in assessing the mother's current parental fitness. Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997). See Adoption of Larry, 434 Mass. 456, 469 (2001).
The mother's past substance use is especially relevant because "the evidence support[s] the continuing vitality of such conduct." Adoption of Larry, 434 Mass. at 469. Since the child was most recently removed, the mother has admitted to relapsing three times with crack cocaine and alcohol. Although the mother has completed treatment programs for substance abuse, she would not sign a release for the department to obtain any information about her engagement with the program in which she was most recently enrolled. At the time of trial, the mother was not engaged in substance abuse treatment of any kind. Accordingly, the evidence of her substance use was not stale, and the judge did not err by considering it as part of the calculus. See Adoption of Nancy, 443 Mass. 512, 516 (2005). See also Care & Protection of Frank, 409 Mass. 492, 494 (1991) ("Evidence of alcohol or drug abuse clearly is relevant to a parent's willingness, competence, and ability to provide care").
The judge did not abuse his discretion in declining to credit the mother's testimony at trial that her relapse with alcohol consisted only of drinking one beer about six months before her testimony.
Similarly, the record amply supported the judge's consideration of the mother's past pattern of permitting substance users, people suffering from serious mental illness, and persons with criminal histories around the child. Despite social workers repeatedly expressing their concern to the mother that these individuals could pose a risk to the child, the mother continued to allow them into her home. The mother struggled to understand the concerns of the social workers, and only acknowledged that it was not the best practice to allow such people into her home near the end of the trial. Accordingly, the judge properly found this to be "a predictable pattern that the mother will repeat in the future."
The judge did not abuse his discretion in declining to credit the mother's assertion that she would be able to intervene in order to protect the child from these individuals when necessary.
To the extent that the mother argues that her recent progress indicates that, with appropriate services, she would become fit in the foreseeable future, the judge did not abuse his discretion in finding those efforts to be outweighed by the unchallenged evidence supporting a finding of unfitness. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 830 (2003). Notably, while the mother was receiving critical services at the time of trial, her history with the department included significant gaps in critical services and therapy. Additionally, the mother did not complete a dual-diagnosis program as requested by the department, was not forthcoming about her relapses to her social worker, and only began taking medication for her anxiety and depression symptoms during the pendency of the trial. Because there was little evidence that the mother's recent efforts to utilize the assistance of services and manage her mental health would be more than temporary, the judge properly afforded them minimal weight.
For example, despite the mother crediting her therapist with keeping her alive and functioning, she recently stopped therapy for an eighteen-month period. Additionally, the mother's refusal to work with a ServiceNet provider led to the mother losing her benefits due to her inability to open her mail.
The mother also argues that the judge erred in finding that the department made reasonable efforts to preserve family integrity. The mother, however, waived this argument by not raising it in a timely manner. See Adoption of Gregory, 434 Mass. 117, 120 n.1 (2001). Moreover, there was strong evidence that the mother refused to cooperate with the department or to make adequate use of the services that the department did provide.
We conclude that the judge carefully considered the factors set forth in G. L. c. 210, § 3, and properly determined that the mother was unable to respond to or meet any of the child's specialized needs. There was clear and convincing evidence that the mother is unfit to parent the child.
The mother's argument that the judge's findings failed to show the thoughtfulness and attention required is without merit. The judge made specific and detailed findings demonstrating attention to the evidence and the fourteen statutory factors. See Adoption of Nancy, 443 Mass. at 516. To the extent that we do not address the mother's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
"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." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). "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.'" Id., quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
2. Best interests of the child. "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). In making such a decision, "[a] judge may consider evidence that provides a 'reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests.'" Id., quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). Because the interests of the child are paramount, however, predictions of future fitness must rest on "credible evidence" of the likelihood of improvement, not on a "faint hope." Adoption of Inez, 428 Mass. 717, 723 (1999).
We discern no abuse of discretion in the judge's determination that the mother's unfitness was not merely temporary and that terminating her parental rights was in the child's best interests. The mother claims that, with the appropriate services, she could manage the child's behavior as well as the child's preadoptive parents. The mother, however, had several years -- most of the child's life -- to engage in services to address the issues that put the child at risk, but was unable to do so. Moreover, the mother's assertion that the child behaved better with her than he did in foster care is not supported by the record. Finally, the preadoptive mother has shown commitment to helping the child with his significant emotional needs. In sum, there was ample support for the conclusion that the child would suffer if returned to the custody of the mother, and the mother has failed to put forth countervailing evidence.
The judge did not err in discrediting the mother's plan for the child's return.
Conclusion. On this record, we cannot say that the judge abused his discretion or committed a clear error of law in concluding that the mother's inability to provide for the child's needs rendered her unfit, that this unfitness would continue into the foreseeable future, and that the best interests of the child would be served by termination of the mother's parental rights.
Decree affirmed.
By the Court (Milkey, Lemire and & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 5, 2020.