Opinion
16-P-376
02-02-2017
ADOPTION OF WILDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial pursuant to G. L. c. 119, § 26, a Juvenile Court judge found the mother unfit to care for her daughter, Wilda, and terminated her parental rights as in the best interests of the child. We conclude that the judge's finding of unfitness was supported by clear and convincing evidence, and we discern no error in his finding that Wilda's best interests would be served by the termination of the mother's parental rights. For these reasons, we affirm the decree.
Wilda's father stipulated to a judgment terminating his parental rights and executed an open adoption agreement. He is not a party to this appeal.
Background . We summarize the relevant facts and procedural history from the judge's comprehensive findings, which are amply supported by the record. The mother, born in April, 1982, is the mother of three children. Her first two children, Jane, born in October, 2006, and David, born in January, 2005, were born during the mother's marriage to Adam. The present case involves her third child, Wilda, who was born in August, 2011, after the mother and Adam had separated. Wilda's father is Stephen (a pseudonym).
Jane, David, and Adam are pseudonyms.
The Department of Children and Families (department) first became involved with the family in May, 2005. Following a violent incident of domestic abuse perpetrated by Adam, the mother sustained injuries for which she received medical treatment at a local hospital. As a result of this incident, a report was filed pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of Jane and David. Thereafter, a series of 51A reports based on incidents of domestic violence, drug use, alleged sexual abuse of Jane, and physical abuse of David were filed and substantiated. The mother and Adam eventually separated. At the time of trial, Adam had physical and legal custody of Jane and David.
In 2010, the mother became involved with Stephen, whom the mother had known as a teenager. Wilda was born prematurely in August, 2011. She was underweight at four pounds, eight ounces and tested positive for Suboxone, which the mother admitted taking during her pregnancy. Wilda spent one month in the neonatal intensive care unit. By the time Wilda left the hospital, the mother and Stephen had separated, and Wilda lived with the mother.
The mother suffered a serious relapse before Wilda's first birthday. Wilda's pediatrician and a family member filed 51A reports alleging neglect of Wilda due to the mother's drug use in May and June of 2012. Then, on July 16, 2012, the department learned that Wilda had been left in the care of a twelve year old babysitter overnight. The department removed Wilda from the mother's care that same day and placed her in the home of her paternal aunt (foster mother), where she continues to reside.
Several weeks after Wilda was placed in foster care, the mother began methadone treatment and by February, 2014, she had maintained a period of sobriety and was consistent with her visits with Wilda. As a result, the department changed the goal from adoption to reunification. Between February and April, 2014, the mother was compliant with her service plan, maintained a close bond with Wilda, and was generally stable. At the end of April, however, the department stopped the reunification process after a 51A report was filed alleging that the mother, driving without a license, left the department's office with Wilda in the car without a car seat. At the same time, the mother was discharged from her substance abuse treatment program for noncompliance. The mother also continued to have contact with Adam. When the department then cancelled the reunification plan, the mother left the area, abandoned her treatment, and failed to visit Wilda.
When the mother returned to the area around October, 2014, she was arrested on a default warrant. At that time, she informed the police that she had a "serious heroin habit." Although the mother reengaged in counselling services, she was twice found by police (in May, 2015, and August, 2015) and taken to the hospital by ambulance due to suspicion she was under the influence of drugs.
The mother was arrested at Adam's house. When police arrived, they saw several needles on the bathroom floor, a spoon with burn marks, and fresh blood on the bathroom sink. Another needle and spoon were seen on the bed, as well as a baggie containing what was believed to be heroin. The judge found that this incident was evidence that the mother continued to engage in abusive relationships, and the presence of drugs in the apartment called the mother's sobriety into question.
Discussion . We review to determine whether the judge's subsidiary findings of fact are supported by a preponderance of the evidence and not clearly erroneous, whether the record supports the judge's ultimate finding of unfitness by clear and convincing evidence, and whether the termination of the mother's parental rights was an abuse of discretion and not in the best interests of the child. See Custody of Eleanor , 414 Mass. 795, 799-800, 802 (1993) ; Adoption of Elena , 446 Mass. 24, 31 (2006) ; Care & Protection of Amalie , 69 Mass. App. Ct. 813, 818 (2007).
Without specifically challenging any of the judge's findings, the mother argues that the evidence is insufficient to clearly and convincingly find her unfit. Contrary to the mother's assertions, despite her periods of sobriety and compliance with her service plans, the evidence supports the judge's conclusion that she was unfit to parent Wilda. The judge found that the mother had an ongoing substance abuse problem, which began in her early teenage years, and a history with domestic abuse. As late as October, 2014, the mother admitted to having "relapsed" into heroin use. In addition, the judge found that the mother has serious mental health issues, which have not been successfully addressed, and that affected her ability to parent Wilda. A court-ordered parenting evaluation conducted by Dr. Corinne Mannino one year before trial disclosed that the mother was suffering from antisocial personality disorder, borderline personality disorder, and possibly bipolar disorder (though Dr. Mannino needed more information to confirm the last). Dr. Mannino testified at trial and the judge credited her testimony. These facts, which are supported by the record, were sufficient for a finding of unfitness. See Adoption of Nancy , 443 Mass. 512, 516 (2005) (inability to maintain sobriety supports finding of unfitness); Adoption of Ramon , 41 Mass. App. Ct. 709, 717 (1996) (documented history of domestic violence is relevant factor in determining parental unfitness); Adoption of Darla , 56 Mass. App. Ct. 519, 522 (2002) (repeated failure to visit child is relevant to parental unfitness).
The mother also has a criminal record in large part stemming from her involvement in domestic violence and drug use. The record includes charges and convictions of assault and battery, assault and battery on a police officer, disorderly conduct, disturbing the peace, and operating a motor vehicle after suspension of her license.
The mother had been hospitalized for psychiatric reasons on eight occasions, twice due to suicide attempts.
The mother argues that Dr. Mannino's diagnoses were "flimsy," and that her own expert, Dr. Richard Stewart, disagreed with Dr. Mannino's diagnoses. However, "[c]redibility determinations ... lie exclusively within the province of the fact finder ... who is free to believe one witness and disbelieve another." Okoli v. Okoli , 81 Mass. App. Ct. 371, 379 (2012), quoting from Palmer v. Murphy , 42 Mass. App. Ct. 334, 343 (1997).
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The mother also argues that the judge's conclusion regarding her unfitness is unsound because there was a period of time in which the department failed to adequately document her compliance with services and failed to provide reasonable services to her. Undoubtedly, as the judge observed, the department was at fault and it was possible that the mother would have made more progress if the department had been more attentive. Nonetheless, as the judge went on to conclude, the department's failures were ultimately inconsequential. The judge did not abuse his discretion because, notwithstanding the department's failures, there was still substantial evidence of the mother's unfitness (such as her substance abuse, mental health issues, and history with domestic violence) and that termination of her parental rights was in Wilda's best interests. See Adoption of Ilona , 459 Mass. 53, 61 (2011), quoting from G. L. c. 119, § 29C ("A determination by the court that reasonable efforts were not made shall not [by itself] preclude the court from" terminating parental rights so long as such termination is "conducive to the child's best interest").
Finally, the mother argues that the judge's analysis of Wilda's best interests was flawed because he impermissibly contrasted what the foster mother could offer Wilda with what the mother could offer. We disagree. While the mother is correct that the judge made certain statements during the course of the trial from which one could infer such a comparison had been made, the judge's written findings, which the mother does not challenge, do not make any improper comparisons between the mother and foster mother. Given the mother's long history with substance abuse, mental illness, and domestic violence, and her unwillingness to seek and maintain assistance for these problems, the judge did not err in concluding that termination of the mother's parental rights was in Wilda's best interests.
Decree affirmed .