Opinion
No. 15–P–1713.
06-20-2016
ADOPTION OF TARGUS (and two companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from decrees terminating her parental rights to her children, Targus, John, and William, by a judge of the Juvenile Court. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. She argues that the judge erred in making certain findings of fact and that collectively, his findings fail to demonstrate by clear and convincing evidence that she is unfit to parent the children. Alternatively, she asserts that the judge abused his discretion in concluding that her unfitness would likely continue into the indefinite future or that it was therefore in the best interests of the children to terminate her parental rights.
The father of the three children stipulated to the termination of his parental rights during trial and is not a party to this appeal.
We focus on the findings of fact and conclusions of law that relate to the best interests of the children and to the mother's fitness to parent the children. The judge made a total of 132 findings based on forty exhibits and testimony spanning five days of trial. The evidence consisted both of first-hand observations by Department of Children and Families (department) and court-appointed witnesses and also reports containing statements by third parties including social workers, the father, and the children's foster mother.
The judge heard testimony from the mother, the children's foster mother, a Department of Children and Families investigator, two Department of Children and Families social workers, a friend of the mother, and an employee from a nonprofit health care and social services agency.
Hearsay statements contained in such reports are admissible if they bear the indicia of reliability. Brantley v. Hampden Div. of the Probate & Family Ct., 457 Mass. 172, 185 (2010). “Case work documents and court investigator reports prepared by department staff in the course of their work” bear such indicia. Ibid. (quotation omitted).
The mother identifies three findings of fact that she claims are clearly erroneous. “[S]ubsidiary evidentiary findings need only be proved by a fair preponderance of the evidence.” Care & Protection of Laura, 414 Mass. 788, 793 (1993). First, the mother objects to the finding that she “has failed to make rental payments during the past eighteen months.” The mother testified during trial that she was currently behind on her rent, and that as of the trial date, she was still making payments to become current. She further testified that she received one eviction notice in 2014. The judge's finding does not imply that the mother failed to make payments for all eighteen months, nor does it specify the number of months in which the mother failed to pay rent. Based on the evidence, this finding was not clearly erroneous.
This finding does not imply that the mother failed to make payments for all eighteen months, nor does it specify the number of months in which the mother failed to pay rent.
The mother also claims error in the finding that she reported the father struck John in 2010. The mother testified at trial that in 2010, John was injured “as a result of something [the father] did,” which resulted in John receiving stitches. Based on the record, the injury to the child appears to have been the result of the father's inattention rather than any deliberation.
Finally, the mother claims error in the finding that the mother's frequent relocation between different States caused disruption to Targus's education and schooling. The record shows that the mother moved between three different States and resided in at least nine different locations within a one-year period. Again, we perceive no clear error.
In sum, three findings of a total of 132 may be characterized as partly, but not completely, supported by the evidence. In context this does not suffice to conclude that the totality of the evidence fails to support the result on a clear and convincing basis. As set forth below, and as supported by the record, the judge emphasized the mother's issues with substance abuse, mental health, anger management, and housing instability in determining unfitness, the likelihood that her unfitness would continue, and that adoption was in the best interests of the children. See Adoption of Astrid, 45 Mass.App.Ct. 538, 547–548 (1998) (error in one of fifty-eight findings of fact harmless when it had little impact on ultimate findings of fitness and best interests). From the record before us, we see no clear error in the judge's findings of fact and conclusions of law, nor do we discern any abuse of his discretion. See Adoption of Hugo, 428 Mass. 219, 225 (1998).
History of substance abuse and mental health impairment. The judge found that the mother has a serious history of substance abuse and mental illness spanning fifteen years, which was one basis of the care and protection petition filed by the department on behalf of the three children in July of 2013.
The mother first began using alcohol and illegal substances at the age of fifteen. She has a long history of continued illegal substance use and putting herself in situations that provide access to illegal substances. During the times she abstained from drugs, she still abused alcohol. Although the mother sought treatment for substance abuse at times, she has had several relapses.
In 2010, the mother was stopped for driving under the influence due to combining alcohol and her prescribed dosage of Xanax, substances that she knew she shouldn't combine. Additionally, the mother arrived at a visit with the children under the influence of alcohol. She was found abusing illegal substances and alcohol in late 2013, and went through a detox program in early 2014 as a result. Although the department repeatedly recommended that the mother complete a substance abuse evaluation, she refused to do so until November of 2014. However, the mother did not allow the evaluator to release any information to the department other than the fact that the mother was completing an evaluation.
The judge also found that the mother has several mental health diagnoses that she failed to fully acknowledge and treat. The mother was prescribed several medications to manage her mental health issues, including suicidal ideation. In late 2014, the department voiced concerns whether the mother was taking her medication as prescribed.
On one occasion when the mother allowed the department to count her pills, the number of pills remaining was less than expected had the mother taken the pills as prescribed. On another occasion, she claimed she was allowed to take up to four tablets a day of another medication although the instructions on the bottle prescribed only two tablets a day.
The judge found that the mother's inability to treat her substance abuse and mental health issues resulted in frequent relapses and hospitalizations. The judge concluded that the mother's abuse of her medications and illegal substances rendered her unable “to walk, talk or stand, and she essentially abandoned her children during her periods of relapse.”
Additionally, the judge credited testimony that the mother has a significant history of angry and threatening behavior toward both department workers and others that she exhibited throughout the pendency of the case. During trial, she threatened both a social worker and a witness in the case. Both witnesses had their cars “keyed” at the same time, which the judge found could be attributed to the mother. The judge concluded that the mother lacked insight to the damaging effects of her threatening and violent behavior.
The judge found that the mother consistently refused to acknowledge or address her drug and mental health issues and was continuing to refuse services at the time of trial. Without treatment, the judge concluded that the mother will continue to go through periods requiring hospitalization during which she would be unable to care for the children.
Domestic violence. In March of 2013, the mother began a relationship with a man who was not the father of the children; that relationship turned abusive. In the subsequent four months, six reports were made pursuant to G.L. c. 119, § 51A, four of which included concerns of domestic violence. One such incident occurred on May 26, 2013, when the boyfriend was arrested and incarcerated for domestic assault and battery after punching the mother in the mouth.
The mother's involvement with the boyfriend ultimately led to the removal of her children. After the boyfriend was released from custody, he was found on July 12, 2013, driving at a high speed with then four year old William in the front seat without a car seat or seat belt.
Despite being afraid of the boyfriend and despite the department's advising the mother not to allow the boyfriend back into the home until he engaged in services, the mother continued her relationship with him each time he was released from his multiple incarcerations until March of 2014. She told social workers that they could not tell her who to date. At one point, she claimed she would marry the boyfriend. Despite completing a domestic violence program in late 2013, the mother continued to state “that she does not think [her boyfriend] did anything wrong by punching her face.” The judge concluded that the mother minimized each incident of domestic violence and showed little understanding of the effects of domestic violence on her children despite taking a domestic violence course.
Service plan compliance. The judge found that the mother was uncooperative with the department since the inception of the case. The mother was resistant to parenting classes, domestic violence support, educational groups, or anger management counselling; she claimed she did not need the services. The mother continuously refused to sign releases that would allow the department to gauge her progress. At the time of trial, the mother was not participating in support groups with the department or with any other agencies. The mother also continued to refuse to submit supervised urine screens to the department.
The mother received only one rating of full compliance with the department during the pendency of the case: the January 1, 2015, foster care review. The judge determined this was due to the removal of a urine screen from the list of tasks required by the plan. The judge noted that compliance with the department “does not measure the quality of the part[y's] participation or level of learning” and concluded that this positive gain was offset by the mother's many continuing issues. Cooperation with the department does not require the judge to find that the mother's parenting skills improved. See Adoption of Lorna, 46 Mass.App.Ct. 134, 143 (1999).
Criminal history. The mother's criminal history began during the department's involvement with the family. In November of 2013, she was charged with compulsory insurance violation, conspiracy, and shoplifting. In April of 2014, she was charged with conspiracy. In June of 2014, the mother was charged with permitting an unlicensed operator to drive her motor vehicle. The judge concluded that while the mother's criminal history is not lengthy, her behavior contributed to the finding that she is unfit to parent the children.
The effect of the mother's behavior on the children. The mother's unstable life resulted in the children moving to at least nine different places from July, 2012, until August, 2013, when the children were removed from her custody. Many of the stays were only for a few weeks and in places that were inappropriate for small children. The mother's residential instability continued after the children were removed.
Once the children were removed from the mother's custody, she did not visit the children consistently; she arrived late to the first three visits and was then absent for almost a month due to being hospitalized. She canceled one visit and failed to show up for another. At one point, the mother's boyfriend inappropriately arrived at the end of a visit. On another occasion, the mother came to a visit under the influence of alcohol.
The judge credited the testimony of the department social worker who testified that the mother did not engage with the children appropriately. During some visits, the mother broached the topic of the boyfriend to the children and asked questions about the foster home. Because the mother did not understand the negative impact of her behavior on the children, the department reduced her weekly visits to monthly visits. The judge concluded that the mother's failure to visit the children consistently significantly harmed the relationship between the mother and the children.
The judge found eight of the enumerated factors in G.L. c. 210, § 3(c ), to be applicable here. We see no error of law in his conclusions, especially that the mother does not “acknowledge her own deficiencies [and] she continued to minimize the seriousness of her issues.... [U]ntil [she] acknowledges her mental health and substance abuse issues and seeks consistent treatment, while engaging in an open and honest line of communication with her providers, her pattern of psychiatric hospitalizations and substance abuse will continue into the indefinite future.” In relying on the mother's consistent refusal to address her issues, the judge did not abuse his discretion in concluding that those issues would continue in the indefinite future and that termination of her parental rights was in the best interests of the children.
Conclusion. The judge engaged in a thorough review of the evidence in the record and conscientiously weighed the factors relevant to the decision. His exercise of discretion is fully entitled to the deference imposed by our standard of review.
The mother has also complained that the judge minimized the significance of terminating her parental rights, referring to decisions relating to termination and visitation as “just another piece of paper.” While the phrase would clearly have been better left unsaid, we interpret the remark as essentially heartfelt, and intended to describe the limited ability of judicial involvement to overcome the challenges faced by Juvenile and Probate and Family Court judges in these cases.
Decrees affirmed.