Opinion
18-P-1321
12-04-2019
ADOPTION OF OPHIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves the welfare of a girl born in September of 2007, to whom we refer as Ophira. After trial, a Juvenile Court judge issued a decree that, inter alia, found Ophira in need of care and protection, found the mother unfit, terminated the mother's parental rights, and approved a plan that Ophira be adopted by the maternal great-aunt. On the mother's appeal, we affirm.
It is undisputed that the father is deceased.
Parental fitness. The mother's principal parental deficiency has to do with her well-documented substance abuse, particularly involving alcohol and pain pills. Her level of addiction was severe. For example, by the mother's own admission, at the time Ophira was first removed from the mother's care, the mother was drinking a gallon of vodka a day and taking pain pills when she blacked out. Whether related to her substance abuse or otherwise, the mother's life was marred by incidents of domestic violence with various partners, and she was unable to maintain a safe and stable home environment. Her substance abuse also interfered with her ability to hold a job, and she suffered from various forms of mental illness, including bipolar disorder, anxiety, and posttraumatic stress disorder.
"While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous" (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). Notwithstanding the mother's claims to the contrary, the judge's subsidiary findings here enjoy ample support in the record. Indeed, much of the evidence presented at trial -- including especially the evidence of the mother's substance abuse -- was uncontested. To the extent the mother has raised questions about the accuracy of some findings, any errors are of no significant consequence. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (affirming termination decrees where errors in fact finding were "not central to the ultimate conclusion of unfitness"). Additionally, we discern no merit in the mother's suggestions -- based on Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997) -- that the Department of Children and Families (DCF) failed to put forward evidence that the mother's shortcomings negatively affected Ophira. It suffices to point out that principally as a result of her binge drinking, the mother vanished from Ophira's life for an eighteen-month period, leading Ophira to question whether the mother was still alive.
For example, the mother challenges the judge's finding that she "remained in relationships with abusive partners following incidents of domestic violence." At trial the mother testified that there were two violent relationships, that she left both after the first incident of violence, and that neither incident took place in front of the child. However, the judge was entitled to disbelieve such testimony and to credit instead other evidence, such as an investigative report filed under G. L. c. 119, § 51B, after one of the incidents that documented that the mother "disclosed prior domestics in the home to which [the child] was disclosed [sic ]." See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990) (§ 51B reports are admissible for "statements of fact"). See Mass. G. Evid. § 1115(b)(2)(B) (2019). See also Mass. G. Evid. § 801(d)(2) (statement is not hearsay if "[t]he statement is offered against an opposing party and ... was made by the party").
For example, even if the mother is correct that the judge erred in finding that she currently was suffering from pancreatitis, had only received two and not three Vivitrol shots at the time of trial, and was not currently receiving psychiatric care, this case does not turn on the details of the mother's health at the time of trial.
In her brief, the mother specifically argues that there is no evidence that moving to thirteen different residences in ten years harmed Ophira. To the contrary, a report from the court-appointed investigator documented how difficult the frequent moves were on Ophira.
Moreover, as the mother acknowledged at oral argument, the judge's ultimate finding that she was not fit to regain custody of Ophira as of the end of the trial is difficult to challenge. The mother's own trial testimony confirmed that at that time, she remained in a particularly vulnerable and fragile state as she strove to maintain her sobriety. To be clear, we do not fault the mother for acknowledging that her principal focus had to be on maintaining her sobriety. Nonetheless, it remained true that she was at that point unequipped to take on parenting Ophira.
We pause to note that the mother has shown evident affection toward Ophira, and the judge's findings do not 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 parents' 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).
The gravamen of the mother's argument on appeal is based on the fact that she was making positive efforts by the end of trial and apparently had maintained her sobriety for approximately four months. According to the mother, with her having demonstrated these positive signs, the judge erred in concluding that her unfitness would likely continue for the indefinite future and in terminating her rights without seeing if she could maintain her sobriety going forward.
The mother additionally argues that the judge erred in drawing an adverse inference regarding her absence from the first two scheduled trial dates, pointing out that her counsel was late or absent on those same days. Where there was uncontested evidence that the mother was drinking heavily during that period and no explanation for her absences appears in the record, her counsel's scheduling difficulties are beside the point. We discern no abuse of discretion in the judge's drawing such an inference. See Adoption of Talik, 92 Mass. App. Ct. 367, 371-373 (2017). In any event, it is evident to us that the mother's missing the first two trial dates played little independent role in the judge's decision.
The mother is, of course, correct that "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). It is also true, however, that it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005). With the passage of time, it becomes increasingly important that a child obtain a stable, safe, and nurturing home environment. In the end, "[w]hile courts protect the rights of parents, ‘the parents' rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child.’ " Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). With this overarching standard in mind, we discern no error in the judge's decision to terminate the mother's parental rights.
As the judge accurately pointed out, the mother had relapsed several times since DCF first became involved with the family. While there may have been indications at the time of trial that the mother's most recent effort held new promise, "it is only fair to the children to say, at some point, ‘enough.’ " Adoption of Nancy, 443 Mass. at 527. The judge did not abuse her considerable discretion in concluding that that point had been reached in this case.
In regard to Ophira's best interests, we note that at the time of trial, Ophira had been placed with the maternal grandfather, where she was doing well. The plan put forward by DCF was to place Ophira in the long-term care of the maternal great-aunt, who was prepared to adopt her. Nevertheless, given the bond between the mother and Ophira, the judge ordered that quarterly visits between them be allowed posttermination and postadoption, so long as the mother stayed sober. Significantly, Ophira -- who is now twelve years-old -- supports both visitation and termination. If the mother is able to continue her sobriety, she will be able to maintain a significant role in her daughter's life.
In the event that Ophira could not be placed with the great-aunt, the maternal grandfather had agreed to continue with Ophira in his care. In the event he could not do so, DCF's plan was adoption by recruitment. At our request, Ophira's lawyer provided an update at oral argument that Ophira currently was placed with the maternal great-aunt.
We note that the decree does not preclude Ophira's foster or adoptive parents from allowing the mother to have increased contact with Ophira should they determine that it is in Ophira's best interests.
Decree affirmed.