Opinion
19-P-1315
05-26-2020
ADOPTION OF LAKYRA (and three companion cases).
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 decrees entered by a judge of the Juvenile Court that found her unfit, and that terminated her parental rights to her four children. She argues that the finding of unfitness was not supported by clear and convincing evidence; that the Department of Children and Families (department) did not provide adequate services; that she was given inadequate notice that the goal for the children was changed from reunification to adoption; and that the judge erred in his posttermination and postadoption visitation order. We affirm.
The children's fathers have not appealed from the termination of their parental rights.
Background. We summarize the judge's detailed findings of fact, which are amply supported by the record. Of the mother's four children, three have the same father, whom the mother married in 2004. Those children are Lakyra (born in 2005), Ellen (born in 2007), and Tom (born in 2011). The father of these three children was physically abusive to the mother, and the mother ended the relationship shortly after Tom was born. The fourth child, Sarah, was born in 2015, and has a different father.
The mother's involvement with the department began in 2013, after an incident where the mother was intoxicated, and broke her ankle. Over the next five years, through the final trial date in May of 2018, the mother had persistent problems with alcohol abuse, and persistent interactions with the department. The department filed its first care and protection petition in September of 2013, due to concerns with the mother's alcohol use. This resulted in the removal of the three older children from her care (Sarah was not yet born); the children were returned to her custody and the petition was dismissed in February of 2014, although the department continued to be involved with the family.
Additional reports alleging neglect of the children due to the mother's alcohol use were filed in April 2014 (the mother was intoxicated when she dropped off Tom at his daycare center in the morning), May 2014 (the mother was involved in a car accident in her apartment building's parking lot while the children were in the car, after she had been drinking), August 2014 (the mother was taken into protective custody by the police after she became intoxicated at a party she attended with the children), and September 2014 (while intoxicated, the mother left the children in a hospital after stopping there to use the restroom). The department filed a care and protection petition following the September 2014 incident, and obtained emergency custody of the children. The mother regained custody of the children a few days later, on the condition that she move into Entre Familia, a residential treatment facility, with the children for treatment. She did so, but was discharged from Entre Familia on November 7, 2014 after multiple instances of alcohol use. The older children were again removed from the mother's care on November 7, 2014, and placed in a foster home. They have lived in foster care since that time.
During 2015, after the older children had been removed and while the mother was pregnant with Sarah, the mother continued to have serious alcohol issues. She was arrested twice for operating under the influence (OUI), had two positive breathalyzer tests for alcohol while the OUI charges were pending, and was hospitalized in a psychiatric hospital with suicidal ideation. In August of 2015 the goal for the older children was changed from reunification to adoption, but the department continued to work toward reunification with the mother.
Sarah was born in September of 2015. Shortly after Sarah was born the department filed a separate care and protection petition based on concerns that the mother drank during the pregnancy. Sarah was born healthy, however, and she was allowed to remain in the mother's care if the mother entered a residential treatment program (Turning Point) and stayed sober. The mother nonetheless left Turning Point with Sarah in February of 2016, even though she knew the department was planning on starting overnight visits with all the children within one or two weeks. In March of 2016, the mother relapsed, and she failed to appear at a court hearing to address a positive breathalyzer test. Sarah, who was then approximately six months old, was removed from the mother's care as a result.
The two care and protection petitions were heard together.
The mother's battles with alcohol abuse continued, on and off, from March of 2016 right up until trial began in November of 2017. The mother did show some improvement in 2016, and the department and the mother agreed to a reunification plan at that time. Sarah was returned to the mother's care in September 2016, and the older children were scheduled to return to the mother's care in November. However, during an overnight visit with all the children in October, the mother's dog bit Lakyra. The department social worker told the mother that the plan for reunification could not move forward until the dog was reliably trained or removed from the home. The mother took no action on the department's concerns and did not give away the dog until January 2017. In February 2017, the mother relapsed during an overnight visit with the children. After this relapse, Sarah was removed from the mother's care and placed in the same foster home as the older children. The mother continued to drink after this incident, and was involved in multiple additional events that required police intervention, all involving alcohol, as verified by police reports admitted as exhibits at trial.
This foster home is the preadoptive home for all the children.
The trial started on November 1, 2017, and continued for nine days until December 13, 2017. On February 15, 2018, the judge issued a decision, finding the mother currently unfit, but denying the department's request to terminate her parental rights. The department then filed a motion to reconsider and reopen the evidence, which was allowed. When the trial resumed in May of 2018, the judge heard evidence that on January 23, 2018, the mother became intoxicated at a bar, and was charged with attempting to commit a crime and malicious destruction of property. The judge then terminated the mother's parental rights as to all the children, concluding that the mother "has the capacity to be a very good, caring parent when she is sober. Nonetheless, she is currently unfit to care for the children by reason of her substance abuse and lack of insight into her dysfunctional, abusive relationships with men."
The judge based his refusal to terminate the mother's parental rights at that time on the fact that the mother had recently started therapy with a Spanish-speaking therapist, with the hope "that receiving treatment in her first language may be more effective than the treatment [the mother] had previously undergone." Based on subsequent events, the judge characterized this hope as "misplaced."
During the course of these proceedings, the mother was involved with a man who was described as "a functioning alcoholic," and then married another man who she primarily blamed for her drinking, who she was in fear of on at least one occasion, and who the judge found was "potentially abusive."
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 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 subsidiary 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 record amply supports the judge's finding that the mother was unfit. As set forth supra, the mother had a long history of alcohol abuse. The judge did not credit her testimony about her periods of sobriety. The judge properly considered and made detailed findings about the mother's relapses, her decisions to have dysfunctional relationships with men who enabled her drinking, and her unwillingness to accept the department's recommendations to obtain more intensive treatment. See Adoption of Serge, 52 Mass. App. Ct. 1, 7-8 (2001). Although the mother had engaged in "numerous courses of treatment for her alcoholism," and was at the time of trial involved in regular counselling, the judge found that the mother "has made very limited, if any, progress in her treatment." See Adoption of Elena, 446 Mass. 24, 33 (2006) (proper to consider mother's "lack of candor" with drug counsellor and minimization of her problem with drugs in finding her unfit). And while the mother testified that she was ready to have custody of the children, she admitted that her longest period of sobriety in 2017 was from August to the start of trial in November. She also did not have a realistic plan for not drinking when the children were with her.
The mother testified that her plan was to "[b]reathe. Enjoy and be present," and to attend daily meetings of AA, something she was not doing at the time of trial.
A judge should also consider whether the parent's current unfitness "may be only temporary." Adoption of Carlos, 413 Mass. 339, 350 (1992). Here, however, the judge was fully justified in finding that the unfitness was not temporary. The judge's findings and conclusions reflect careful attention to the evidence in view of the mother's history of alcoholism, her various treatment choices, and her persistent lapses. Contrary to the mother's argument, the evidence relied on by the judge was not stale. See Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) ("stale information cannot be the basis for a finding of current parental unfitness"). The mother's "past pattern of behavior is . . . not irrelevant; it has prognostic value." Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986). "The judge was not bound to conclude that the mother's [lengthy] pattern of [alcohol] abuse and persistent, periodic relapse would change." Adoption of Serge, 52 Mass. App. Ct. at 7. There was clear and convincing evidence to support the finding that the mother was unfit, and that the unfitness would continue into the future. See Adoption of Elena, 446 Mass. at 33-34.
The mother states in her brief that "[s]ince beginning treatment with her new providers in February of 2018, including commencing a new medication protocol, Mother has been much more functional and able to comply with the ongoing recommendations of the Department. Mother has successfully remained sober since this time."
These statements, however, are not supported by the evidence at trial, including the evidence adduced when the judge reopened the trial in May of 2018. In fact, the judge specifically found that the mother had made only limited progress in her treatment, and that "the addition of medication to [the mother's] treatment regimen does not provide reason to expect that [the mother] will now stay sober."
The judge found the factors set forth in G. L. c. 210, § 3 (c) (iii), (iv), (v), (vi), (vii), (viii), and (xii) applicable to the mother's unfitness determination. He specifically found that factor (xii) ("a condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol . . . addiction . . ., and the condition makes the parent . . . unlikely to provide minimally acceptable care of the child") "weighs in favor of allowing the petition."
2. Adequate services. "Before seeking to terminate parental rights, the department must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. 53, 60 (2011), quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). The mother argues that the department did not adequately help her "address all of her challenges, including those associated with her domestic violence, trauma, and substance abuse." She also argues that the department did not "acknowledge the triggers associated with residential treatment programs" and did not adequately support her in her attempts to obtain outpatient care. These issues were not raised during the Juvenile Court proceedings, and we need not review them. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), quoting Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010) ("a parent must raise a claim of inadequate services in a timely manner").
Even were we to consider these issues, we would not be persuaded. The judge's detailed findings about the mother's treatment history contradict the mother's argument: the mother's stay at Turning Point was for treatment of domestic violence and substance abuse issues; the mother engaged in individual and group therapy to treat PTSD; and the mother started an outpatient treatment program at AdCare in March of 2016 for treatment of issues related to PTSD, trauma, and addiction. We do not view the judge's statement in his written decision that the mother's treatment did not focus on domestic violence as a finding that the department did not adequately assist her in obtaining such treatment, especially in light of the evidence that the department consistently encouraged the mother to engage in additional and more intensive treatment. Moreover, the overriding concern is the best interests of the children, and we see no abuse of discretion in the judge's determination that it was in the children's best interests to terminate the mother's parental rights. See Adoption of Ilona, 459 Mass. at 61.
3. Change of goal from reunification to adoption. The mother argues that she was deprived of her due process rights because the department did not give her adequate notice that the goal for the children had changed from reunification to adoption. Paradoxically, she argues that "[s]he consistently was unable to remain sober and the department persisted in attempting to return the children." The judge made detailed findings about the department's attempts to reunify the children with the mother both before and after informing her of the change in goal to adoption. In each instance, the department's attempts were derailed because the mother relapsed. The department continually reminded the mother that she needed to remain sober in order to regain custody of the children. The mother's claim that she was misled because the department continued to attempt reunification even after it changed the children's goal to adoption is unavailing. See Adoption of Melvin, 71 Mass. App. Ct. 706, 710 (2008) (appropriate for department to engage in "concurrent planning for adoption and reunification").
4. Posttermination and postadoption visitation. The judge recognized that there was a bond between the mother and the children, and that it was in the children's best interests to maintain contact with the mother. The judge ordered posttermination visits, leaving the number and length of each to the discretion of the department. Following adoption, the judge ordered visits "at least four times per year for not less than two hours for each visit," if the adoptive parents determine that the visits are in the children's best interests and "provided that [the mother] is sober and emotionally stable for each visit." The mother argues that the case "should be remanded for entry of a specific post-termination and post-adoption contact order." The judge's visitation order balanced the benefit to the children of continued contact with the mother with the rights of the adoptive parents, who, it is presumed, will act in the best interests of the children. See Adoption of Ilona, 459 Mass. at 64-65. We see no error.
Decrees affirmed.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 26, 2020.