Opinion
14-P-1640
06-02-2015
ADOPTION OF TAMARA.
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 of a minor child, Tamara, appeals from a decree issued by a judge of the Juvenile Court adjudicating the mother unfit to further Tamara's best interests and dispensing with the mother's right to consent to Tamara's adoption. Without claiming that any of the judge's numerous and detailed findings is clearly erroneous, the mother argues that the determination of unfitness is not supported by the requisite clear and convincing evidence. See generally Adoption of Peggy, 436 Mass. 690, 701 (2002). After review, it is evident that there is ample support for the judge's decision. Accordingly, we affirm.
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment. The question for the judge is "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 from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Tamara's father executed a stipulation for judgment agreeing to the termination of his parental rights and an open adoption agreement, and did not participate in the trial.
Tamara was born in January, 2011, and was removed from the mother's care two months later in the aftermath of the following incident. The mother brought Tamara to the hospital emergency room reporting that she heard a "weird episode" on the baby monitor, and saw the child making choking actions and foaming at the mouth. Hospital staff notified the Department of Children and Families (DCF), because the mother had reported similar symptoms in her two older children, who died in infancy. When a DCF social worker came to the hospital to investigate, the mother exhibited dramatic mood swings and aggressive behavior. It was suggested that the mother undergo an emergency mental health evaluation, but she refused to do so.
In both instances, the official cause of death was listed as "sudden unexpected infant death in the setting of co-sleeping." The mother has never acknowledged that co-sleeping could have been a factor in the children's deaths or that these incidents have any bearing on her ability to parent Tamara.
Thereafter, the mother was given a DCF service plan requiring, among other things, that she address serious concerns relating to her mental health, substance abuse, and repeated victimization by domestic violence. The judge found that, although she partially completed some tasks and claimed to be receiving ongoing treatment, the mother refused to provide releases or otherwise cooperate with DCF's attempts to confirm her participation and progress.
The judge credited several experts who testified that the mother's character traits, mental health issues, unwillingness to accept feedback, and reluctance to work on her parenting skills made her an unsuitable caregiver. From his own observations, the judge found the mother evasive and lacking in credibility. In her interviews and trial testimony the mother refused to answer questions or claimed that she did not know or could not recall the information being sought. The judge explicitly disbelieved many of the mother's responses and weighed her lack of forthrightness against her. See Adoption of Hugo, 428 Mass. 219, 225 (1998) (judge's assessment of credibility of witnesses and weight of evidence is entitled to deference).
For example, the mother denied having any current problem with alcohol, despite having been charged with operating a motor vehicle under the influence of intoxicating liquor while this case was awaiting trial. She also testified that she was not the driver of the vehicle, even though she had disposed of the charge by admitting to sufficient facts.
While not central to his decision, the judge further found that the mother's history of housing instability raised doubts as to her ability to provide a secure home for Tamara. Although the mother was residing at the time of trial in a clean two-bedroom apartment, she had lived in approximately six different locations during the previous two years, and had shared her current quarters with two roommates for long periods of time.
We disagree with the mother's contention that the judge relied too heavily on stale information and failed to consider gains that she had made. The judge's findings reflect that he conscientiously considered whether older information was still relevant, as in the case of Dr. Hummel's evaluation, and noted where the mother had made improvement over the course of the case, as in the case of her housing situation. The judge nevertheless was entitled to conclude that the mother's most fundamental deficiencies were of a sort that would persist into the future. See Adoption of Jacques, 82 Mass. App. 601, 607-608 (2012) (recent gains found "offset by continuing deficits, many of which were highlighted by the mother's lack of credibility on a number of fronts").
To the extent that the mother separately challenges the judge's decision that it was in the best interests of Tamara to terminate the mother's parental rights and approve DCF's plan, there is no merit to her position. The decision to terminate is well-supported by his findings that Tamara is thriving in the preadoptive home of her paternal step-grandfather, and, based upon the testimony of an expert who performed a bonding assessment, that Tamara would be devastated if removed from his care.
Decree affirmed.
By the Court (Kafker, Cohen, & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 2, 2015.