Opinion
No. 16–P–648.
01-05-2017
ADOPTION OF OBEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and father appeal from a Juvenile Court judge's decision (1) terminating each parent's parental rights, (2) denying each posttermination visitation, and (3) approving the Department of Children and Families' (DCF) adoption plan whereby their son, Oben, will be adopted by his foster mother. We affirm.
1. Background. We draw on the detailed findings of fact made by the trial judge, which find ample support in the record. The mother and father each have lengthy substance abuse histories coupled with criminal records and mental health diagnoses. The mother began using opiates recreationally in her late teens and became addicted in her early twenties, eventually escalating to daily intravenous heroin use. She has participated in a number of treatment programs with no success at maintaining long-term sobriety. The mother's mental health history includes diagnoses of bipolar disorder, depression, and anxiety.
The father began using opiates when he was fifteen years old and quickly escalated to heroin use. He has reportedly attended many different treatment programs. Like the mother, he has been unable to achieve sobriety. The father also has a significant mental health history which includes diagnoses of anxiety, posttraumatic stress disorder, and depression.
The mother's criminal record includes charges of larceny, shoplifting, drug possession, and assault and battery by means of a dangerous weapon. She also had a G.L. c. 209A restraining order issued against her. At the time of trial, three of the charges against the mother were still open. The father's criminal record includes charges of assault and battery, larceny, operating to endanger, disorderly conduct, and disturbing the peace. In 2014, the father was convicted of armed robbery and received a two and one-half to four year prison sentence.
Before his incarceration, the father lacked stable housing, living temporarily with friends, relatives, or in a "sober house." Similarly, the mother has admitted that she "bounced around a lot and was homeless for the majority of the pendency of this matter."
The mother and father's first child, Matthew, was born in September, 2008. Two reports were filed on Matthew's behalf pursuant to G.L. c. 119, § 51A, the first in 2008 when he tested positive for painkillers at birth, the second in February, 2011, alleging neglect and substance abuse. The maternal grandmother obtained permanent guardianship of Matthew in November, 2011; neither parent has sought to have custody returned.
A pseudonym.
Oben, the mother and father's second child, who is the subject of this proceeding, was born prematurely in February, 2013. At birth, he tested positive for methadone and required hospitalization for several weeks. He has resided in continuous foster care since March, 2014.
A 51A report was filed by a mandated reporter at the time of the child's birth. During the subsequent investigation, DCF learned that the mother had cancelled at least five prenatal appointments between August, 2013, and January, 2013, and that she had tested positive for PCP in January, 2013. The mother also admitted that she and the father would use heroin together. Before the child was discharged from the hospital, a hospital nurse recommended a visiting nurse to aid the parents and referred the mother for early intervention services; the mother declined the services.
The child's discharge from the hospital was delayed because both parents lacked a permanent residence. The maternal grandmother agreed to allow the mother and the child to reside with her temporarily, provided the mother searched for a place to live, participated in substance abuse treatment, and worked with early intervention, a visiting nurse, and DCF.
In March, 2013, the mother claimed that she had her own apartment, was engaged in a treatment program, and the child was being followed weekly by a visiting nurse and receiving routine pediatric care. In May, 2013, the mother reported that she was attending a new treatment program and attending therapy. However, the clinician reported that the mother was not engaged in services at that time and had tested positive for cocaine and marijuana. Around this same time, DCF was repeatedly unsuccessful in scheduling a home visit because the mother was unreachable.
In July, 2013, the mother admitted that the child was living with the maternal grandmother, while the mother was living with a friend. She further admitted that she was no longer receiving treatment for substance abuse and had neglected to transfer the child's early intervention services. The child's pediatrician reported that the mother had missed three scheduled appointments.
In October, 2013, another 51A report alleging neglect was filed. The report alleged that the mother became belligerent when asked to leave a drug treatment facility. She was holding the child, who "was without socks, shoes, or a jacke [t]" at the time, and then sped out of the parking lot in her car with the child inside. The mother had been discharged from the program in September due to "substance related and behavioral issues."
During the ensuing investigation, DCF had trouble locating the mother and the child. With the assistance of law enforcement, DCF was able to enter the mother's apartment. The DCF investigator observed numerous bottles of prescription medications on the floor in one of the bedrooms; the majority were prescribed to the father. Although the mother claimed not to know the father's whereabouts, the investigator found him hiding in a closet. DCF immediately removed the child from the home and filed a care and protection petition on his behalf.
In January, 2014, a judge of the Juvenile Court awarded conditional custody of the child to the mother. She was required to comply with her service plan, allow DCF access to her home, and "not permit the child to be in Father's presence at any time." The father was arrested at the mother's apartment on the aforementioned armed robbery charge, while the child was in the home, approximately two weeks later. Additionally, the mother failed to bring the child to medical appointments, failed to sign a release verifying her continued participation in drug treatment, and was not forthcoming about the child's whereabouts. DCF was granted custody of the child in March; neither parent attended the subsequent custody hearing.
From March, 2014, to June, 2014, the mother was not in compliance with her service plan. She had been "living from place to place," arrested once, reportedly had a "breakdown" requiring hospitalization, failed to comply with her service plan, and repeatedly failed to visit the child when afforded the opportunity. The mother had her first visit with the child in September, 2014, six months after his removal. She admitted to DCF that she had not engaged in services since the child's removal. The mother stated "there was no reason why [DCF] should have her son in care" and felt that "she did nothing wrong." The father has remained incarcerated and has had minimal visitation with the child. He has not engaged in any services while in prison, though he claims to be on the waiting list.
The child has been with the foster mother since June, 2014. He has met all appropriate medical milestones and by all measures has adjusted well to the foster mother's home.
2. Discussion. We review the mother's and father's claims to determine whether the trial judge abused his discretion or committed a clear error of law. Adoption of Imelda, 72 Mass.App.Ct. 354, 360 (2008) (Imelda ). Here, the judge's findings are specific, detailed, and demonstrate that close attention was given to the evidence. See Adoption of Anton, 72 Mass.App.Ct. 667, 673 (2008). Contrary to the mother's assertions, review of the judge's well-supported factual findings does not reveal any error of consequence. All that remains for determination is whether the trial judge abused his discretion in concluding that termination of the mother's and father's parental rights, denial of posttermination visitation, and approval of DCF's adoption plan, served the child's best interests.
The trial judge issued 216 findings of fact and thirty-three conclusions of law. Finding seventy contains a typographical error or mistake. The error is not central to the ultimate conclusion of unfitness. Care & Protection of Olga, 57 Mass.App.Ct. 821, 825 (2003).
a. Termination of parental rights. "A decision to terminate parental rights involves a two-step analysis. First, a determination that the parent is currently unfit, and, second, a determination that termination is in the best interests of the child ." Imelda, supra (citation omitted). The trial judge must consider whether the parents' deficits "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). "Once a parent is found to be unfit, the judge must then ascertain whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Imelda, supra (quotation omitted).
The mother and father argue that DCF did not meet its burden to prove parental unfitness by clear and convincing evidence. We disagree. Here, the judge fully and properly considered the required factors set forth in G.L. c. 210, § 3(c ), and found factors (i), (ii), (iii), (v), (vi), (viii), (x), (xii), and (xiii) applicable to his determination that the mother and father are unfit. The mother has been "uncooperative and oppositional with [DCF] since the case's inception." Her visitation with the child has been sporadic at best, and she has repeatedly failed to comply with even the most basic requirements of her service plan. She failed to attend "AA/NA" meetings regularly, obtain a sponsor, engage in individual counselling, and maintain stable housing. Perhaps most concerning, the mother has been unable to maintain sobriety for any significant period of time, including during the pendency of this matter. The judge found that she relapsed on opiates in February, 2013, benzodiazepines in March, 2013, cocaine in May, 2013, and cocaine and marijuana in June, 2013, and that it is unlikely that the mother was clean for any period of time during the first six months of the petition. Since her most recent discharge from a treatment facility, she has failed to engage in services as recommended by her treatment providers and DCF.
The judge noted that "Mother claims that she lives with her aunt, however, she refused to provide [DCF] access to the home or to the homeowners. At the time of trial, the Court has no real idea of where Mother was living as neither the court nor [DCF] had verification of her housing."
The father "has relapsed during most of this petition," and was abusing drugs "right up until his incarceration." Though the father has reportedly remained sober while incarcerated, the judge attributed this fact solely to the father's incarceration. Notably, the father testified that he has not engaged in any services while incarcerated.
The father was under the influence of benzodiazepines and cocaine at the time he was taken into custody.
The record evidence of each parent's unfitness is overwhelming. We agree with the judge's determination that the mother and father "have grievous shortcomings that place [the child] at risk." They have been unable to demonstrate "a substantial and permanent improvement" to the issues that led to the filing of this petition, "including severe substance abuse, mental health issues, chronic instability, poor decision-making, and criminal history." Further, the mother and father have neglected the child's "physical and emotional development, including without limitation, the following: [his] need for a stable home life; his need for adequate supervision appropriate to his age; [his] necessary medical care; and the need for adequate services to aid in his development." Services were developed to assist the mother and father and each failed to consistently engage in those services. Of further note, the mother refused to cooperate with DCF, engaged in confrontational behavior with DCF, refused to take any responsibility for her actions or behavior, and, as the judge found, lacked in credibility and truthfulness. The judge's conclusions that each parent is currently unfit, that each parent's unfitness is likely to continue into the indefinite future to a near certitude, and that termination would best serve the interests of the child, constitute neither an abuse of discretion nor a clear error of law.
b. Denial of posttermination visitation. Once it is established that the parent is unfit, the decision to grant posttermination visitation is left to the discretion of the trial judge. Adoption of John, 53 Mass.App.Ct. 431, 439 (2001). In determining whether posttermination visitation is appropriate, the court applies the best interests of the child standard. Adoption of Helen, 429 Mass. 856, 862–863 (1999). "[T]he best interests of the child standard is one grounded in the particular needs ... of the individual child in question," Adoption of Vito, 431 Mass. 550, 566 (2000), and the determination should be "based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent." Id. at 562.
We discern no abuse of discretion here. The mother and father have "clearly demonstrated" a "lack of interest in visiting with the child during the majority of this petition." The child has been in DCF's care since March, 2014. The father had only minimal contact with the child during the course of the petition, and the mother failed to visit with the child for the first six months of the petition. Once she began visiting, "she was inconsistent and missed visits with no justifiable basis," and the many missed visits were "detrimental" to the child. The child's best interests are paramount. Under the circumstances, the judge's conclusion that posttermination visitation is not in the best interests of the child is neither an abuse of discretion nor a clear error of law.
The trial judge did order continued visitation between the child and his older brother, Matthew, on a consistent basis.
c. Approval of DCF's proposed adoption plan. "[W]here alternative plans for adoption are presented, there must be an even-handed assessment of all the facts, and the judge must give appropriate weight to the personal, educational, psychological, and other support available to each prospective parent to address [the child's] needs. A plan proposed by a parent is not entitled to any artificial weight as opposed to alternative plans." Adoption of Irene, 54 Mass.App.Ct. 613, 617 (2002) (citations and quotations omitted).
Here, the father advocated that the child be placed with either the paternal grandmother or the paternal grandfather and maternal grandmother (who are married). The judge had misgivings about placing the child with either family. The mother and father have resided with each grandmother intermittently while using drugs. Throughout the case, the maternal grandmother has refused to recognize the mother's serious and ongoing drug use, covering for the mother at various times. The judge's concerns that the maternal grandmother lacked credibility, and would be unable to establish boundaries with the mother and father, are amply supported by the record. As to the paternal grandmother, the judge credited a social worker's testimony that she had not expressed interest in adopting the child before April, 2015. His concern that she would not be able to protect the child from the mother's and father's drug abuse is also supported by the record.
The child has been living with the foster mother since June, 2014, and, as the trial judge noted, he needs permanency and stability. The foster mother has held the same job for thirteen years and is pursuing her Master's degree in special education. She lives alone with the child and she shares a two-story home with her mother, with whom she has a very close relationship. The home "is extremely neat, clean, and nicely furnished," and the child has his own room.
The record supports the finding that DCF's proposed adoption plan with the foster mother is most consistent with the child's best interests. The child has met all appropriate medical milestones, attends daycare, and by all measures has adjusted well to the foster mother's home. The foster mother does not have any prior history or involvement with DCF or the courts, and does not have a criminal history. The judge's careful consideration and ultimate conclusion that DCF's adoption plan is most consistent with the child's bests interests shows no abuse of discretion or clear error of law.
To the extent that we do not address every aspect of the mother and father's arguments, we have concluded that they are without merit and no discussion is warranted. See Williams v. B & K Med. Sys., Inc., 49 Mass.App.Ct. 563, 577 (2000).
Decrees affirmed.