Opinion
11-P-72
10-24-2011
ADOPTION OF MURIEL (and two companion cases).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the mother appeals from the termination of her parental rights to two children, Muriel and John, and an adjudication of a third child, Lisa, to be in need of care and protection. The mother contends that the judge's finding of unfitness is not supported by clear and convincing evidence because her acknowledged parental deficiencies were stale and not predictive of her future conduct. Additionally, she asserts that the judge's findings that she failed to productively use services, had no significant bond with two of her children, and failed to attend trial without excuse were clearly erroneous. We affirm.
The children's fathers are not involved in this appeal.
'The factual conclusion' of 'current parental unfitness' is the 'critical inquiry' when determining whether to remove a child from the custody of a parent. Care & Protection of Laura, 414 Mass. 788, 791 (1993). If the judge finds a parent unfit in a care and protection petition, he may commit the child to the custody of the Department of Children and Families (DCF). G. L. c. 119, § 26. If the judge concludes that the parent's unfitness is such that it would be in the child's best interests to sever all legal relations between parent and child, termination of parental rights is warranted. Adoption of Nancy, 443 Mass. 512, 515 (2005). We review the judge's factual findings with substantial deference. See ibid. Subsidiary findings need only be proved by a fair preponderance of the evidence and will not be disturbed unless clearly erroneous. See ibid. Taken together, the facts must establish parental unfitness by clear and convincing evidence. Care & Protection of Laura, 414 Mass. at 791, 793.
Here, the judge made detailed subsidiary findings that are supported by the evidence and, taken together, establish by clear and convincing evidence that the mother is unfit to parent the three children involved here, and that termination of her parental rights to the younger children, Muriel and John, is in their best interests. The judge did not err in concluding that the mother's lengthy struggle with depression, drug abuse, domestic violence (as both victim and abuser), physical abuse of the children, instability in relationships and in tending to her own needs, and inability to meet even the most basic needs of the children on a consistent basis rendered her unfit. Moreover, the judge was warranted in concluding that the mother's troubling pattern of short term sobriety followed by a recurring inability to parent the children as they were about to be returned to her was a predictor that the children would be at risk if returned to her care. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32- 33 (1997).
At the time of trial, all three children had been in DCF custody for over six years. During that time, they had resided with the mother for only brief periods during two unsuccessful attempts at reunification. To the extent that the mother attempted to overcome the substantial and acknowledged deficiencies that led to removal of the children, she was unable to do so consistently. She failed to comply consistently with DCF service plans and failed to utilize productively the services provided. The judge did not err in concluding that the mother's apparent ability to care for another child, born in 2008, did not establish her fitness to parent the three children in the present case, all of whom have special behavioral and emotional needs that the mother has demonstrated little understanding of or ability to manage. See Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006) (a parent may be fit to raise one child but not another).
We reject the mother's contention that several of the judge's subsidiary findings are clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993). Although the mother utilized services sporadically during her lengthy involvement with DCF, she did not do so consistently or productively. Especially is this so after the second removal of the children, when the mother ceased attending biweekly therapy sessions, skipped meetings with her social worker without notice, repeatedly missed foster care evaluations, and visited the children only sporadically. The judge did not err in concluding that the mother's behavior and failure even to visit with the children damaged any bond between them to the point where no significant bond remained. Nor did he abuse his discretion in drawing a negative inference against the mother when she left the witness stand during her own testimony and did not attend the final five days of trial. Although the mother's counsel offered an excuse in each instance, the judge could reasonably infer that the mother's failure to visit and her absence from trial provided additional evidence of her indifference to the children's welfare and her overall unfitness.
Decrees affirmed.
Judgment affirmed.
By the Court (Cypher, Grasso & Kantrowitz, JJ.),