Opinion
No. 16–P–403.
01-09-2017
ADOPTION OF RHONDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree of the Juvenile Court finding her unfit to assume parental responsibility for her daughter, Rhonda, and dispensing with her consent to adoption pursuant to G.L. c. 210, § 3. The mother argues that the Department of Children and Families (DCF) violated her due process rights by filing a motion requesting dates for a termination of parental rights trial less than six months after the adjudication of permanent custody. The mother also argues that the judge's findings, collectively, do not support the conclusion that she is unfit to parent Rhonda and that it was an abuse of discretion to conclude that it was in Rhonda's best interests to terminate her parental rights. We affirm.
Rhonda's biological father is deceased.
The mother argues that DCF's motion for trial dates was actually a petition for review and redetermination pursuant to G.L. c. 119, § 26(c). A petition for review and redetermination could not be heard sooner than six months after the grant of permanent custody to DCF. See G.L. c. 119, § 26(c ). This argument, however, has no merit. DCF filed its motion for the termination trial dates on February 23, 2015, the day before the permanent custody trial occurred on February 24, 2015, following which the judge awarded permanent custody to DCF. In its motion, DCF sought trial dates for the termination of the mother's parental rights and dispensing with her consent to adoption pursuant to G.L. c. 210, § 3. DCF was not seeking a review and redetermination of the permanent custody order issued pursuant to G.L. c. 119, § 26(c ). "A review and redetermination proceeding is a readjudication of the custody order under G.L. c. 119, § 26" (emphasis supplied). Care & Protection of Erin, 443 Mass. 567, 571 (2005). While a termination of parental rights proceeding may be, and usually is, consolidated with a care and protection proceeding, they are nonetheless separate and distinct inquiries. "[When] a Juvenile Court judge in a care and protection proceeding adjudicate[s] a child in need of care and protection and dispense[s] with parental consent to adoption, there [are] two separate adjudications, one represented by a decree dispensing with parental consent to adoption and the other represented by a judgment adjudicating the child in need of care and protection." Adoption of Donald, 44 Mass.App.Ct. 857, 861 (1998). We do not read the six-month waiting period for reconsideration of an order adjudicating a child to be in need of care and protection to apply to termination of parental rights proceedings pursuant to G.L. c. 210, § 3.
The mother also argues that there were numerous defects in DCF's motion for trial dates and that this failure to follow the procedural rules also violated her due process rights. The mother, however, failed to raise these arguments at trial and raises them now for the first time on appeal. These arguments are not properly before us and we will not address them. See Adoption of Mary, 414 Mass. 705, 712 (1993) ; Adoption of Willow, 433 Mass. 636, 651 (2001) (argument was not raised at trial and therefore, was waived on appeal). See also Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001), citing Adoption of Carla, 416 Mass. 510, 515 (1993).
While the mother did not appear and was not represented by counsel at the permanent custody trial, she was appointed counsel at the first court date at which she appeared. Counsel would have had the opportunity, and obligation, at that time, to raise any issues concerning procedural or trial defects. Indeed, the mother's counsel did raise the issue of DCF's failure to wait six months before seeking to terminate parental rights at that time.
Finally, the mother argues that the evidence did not clearly and convincingly demonstrate her unfitness to parent Rhonda and that termination of her parental rights was not in Rhonda's best interests.
The mother had been involved with DCF for approximately ten years before the trial. During that entire period she struggled with drug addiction, alternating between periods of active drug abuse and sobriety. The judge concluded that her addiction and poor judgment directly led her "to neglect [Rhonda's] physical and emotional development including ... [her] need for a stable home life; her need for adequate supervision appropriate to her age; the child's necessary medical and dental care; her attendance at school, accomplishment of school work, and academic performance; the need for adequate substitute caretakers when the mother was unavailable; and [her] physical and nutritional care." The mother had allowed inappropriate caretakers to care for Rhonda, allowed her, as a toddler, to leave the house alone without adequate clothing and in a dangerous area, and failed to provide her with adequate medical or dental care. The mother failed to communicate with DCF during her periods of drug abuse and otherwise failed to adequately participate in services to address her drug abuse and her mental health issues. The mother claims that she achieved sobriety and continued treatment in January, 2015, until the termination trial which concluded on July 1, 2015. During this time, however, she was participating in some but not all of the recommended services and her participation was inadequate. See Adoption of Lorna, 46 Mass.App.Ct. 134, 138 (1999). In June of 2015, the mother admitted to filling a prescription for Percocet, despite her previous abuse of that drug. Significantly, at that time the mother also revoked the release allowing DCF to obtain the results of her drug tests as well as confirm her degree of compliance with her treatment. Given all this, it was not error for the judge to conclude that the mother did not provide more than a "faint hope" that she could parent Rhonda. This behavior, immediately before the termination trial, was consistent with the mother's behavior during the previous ten years. "[N]either agencies responsible for the welfare of children nor judges sitting on these sorts of custodial questions need wait for the inevitable disaster to happen. They may consider past conduct to predict future ability and performance." Adoption of Katharine, 42 Mass.App.Ct. 25, 32–33 (1997) (citations omitted). See Adoption of Inez, 428 Mass. 717, 723 (1999) ; Adoption of Elena, 446 Mass. 24, 3334 (2006). The judge's determination that the mother's lack of stable housing, employment, and lack of consistency in visitation are relevant considerations in a determination of unfitness was not error. The judge's decision to terminate the mother's parental rights was based primarily on her long history of substance abuse, her inability to provide for Rhonda's basic needs, and her inability or unwillingness to learn from services intended to address those concerns.
Decree affirmed.