Opinion
16-P-890
02-22-2017
ADOPTION OF ZARA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree entered by a judge of the Juvenile Court terminating her parental rights. Because we conclude that the evidence presented at trial supports the judge's determination by clear and convincing evidence that the mother is unfit to parent Zara and that the termination of the mother's parental rights is in Zara's best interests, we affirm.
We note that the mother has shown evident affection toward Zara, and none of the judge's findings 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 does not love Zara. The inquiry instead is whether the mother's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce , 44 Mass. App. Ct. 758, 761 (1998).
Background . The factual findings of the judge are summarized below. Zara, born in 2010, is the mother's fifth child. The mother first became involved with the Department of Children and Families (department) in 1995. All four of the mother's older children were removed from her custody and her parental rights terminated as to each. Zara was born addicted to Subutex, and underwent immediate treatment for withdrawal symptoms. She remained in the mother's care.
In June, 2014, the department obtained temporary custody of Zara, alleging that Zara was in need of care and protection following an incident on May 31, 2014, in which, while the mother was sleeping, Zara got out of the house and was found outside, unattended. Following a hearing, the judge returned Zara to the mother subject to certain conditions. In August, 2014, a department social worker alleged that the mother had violated the conditions of her custody, including testing positive for cocaine. After a hearing, the department was granted temporary custody of Zara. The department returned Zara to the mother in February, 2015; however, Zara was removed again the same month. Zara has been in the department's custody ever since. In February, 2015, Zara was placed with her maternal uncle and his wife, who have already adopted Zara's brother.
The mother's inconsistent substance abuse treatment and repeated relapses have been the basis of the department's removal of her four older children. In February, 2015, the last time Zara was removed from her mother's care, the mother admitted that she was abusing prescription medication and that she was hallucinating. After Zara's removal, the mother repeatedly committed to attend substance abuse treatment but always had an excuse as to why she could not and did not get herself to her programs. In June, 2015, the mother tested positive for opiates.
The mother also failed to engage in domestic violence treatment after years of abuse by Zara's putative father (father), who is a level three sex offender and has an extensive criminal history. Zara has seen the father strike the mother and she has seen the mother return to him repeatedly.
No father is listed on Zara's birth certificate, and no father appeared before the trial court, though many of the judge's findings of fact involved the putative father. A second putative father was identified during the course of this case, but paternity has never been established.
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After a hearing in June and July of 2015, the judge terminated the mother's parental rights and declined to order posttermination or postadoption visitation.
Discussion . We give substantial deference to a judge's decision that termination of parental rights is in the best interests of the child, and reversal is appropriate "only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona , 459 Mass. 53, 59 (2011).
The mother does not directly challenge any of the judge's findings of fact. Rather, she argues that the judge erred in (1) admitting findings of fact and conclusions of law from a prior care and protection matter involving one of the mother's older children; (2) terminating the mother's parental rights even though she engaged in services and where there was no nexus between the mother's substance abuse and her ability to provide minimally adequate care for the child; and (3) not ordering posttermination and postadoption visitation between the mother and child.
1. Findings from prior care and protection matter . The mother first argues that it was error for the judge to incorporate into her findings in Zara's case sixty findings of fact from a previous care and protection case involving one of the mother's older children. Generally, "[w]hen the same parents had a compelling incentive to litigate at the prior termination proceeding, and the findings from that earlier termination decision are relevant and material and not stale, those findings, while not dispositive, may be considered by the judge in a subsequent termination proceeding." Adoption of Darla , 56 Mass. App. Ct. 519, 521 (2002) (factual findings from termination proceeding involving older children properly considered in subsequent termination proceeding). See Adoption of Frederick , 405 Mass. 1, 5, 12 (1989) ; Adoption of Paula , 420 Mass. 716, 721-722 (1995) ; Adoption of Simone , 427 Mass. 34, 44 (1998). This case is distinguishable from Care & Protection of Zita , 455 Mass. 272, 283-284 (2009), where the court disapproved of the judge's use of information that the judge had learned at a prior proceeding relating to other children and that was not admitted in evidence at the hearing in question.
Here, the judge heard evidence over five trial days and then reopened the evidence, giving the mother an opportunity to introduce further evidence. The judge made reference to only so much of the prior findings as detailed the mother's prior interaction with the department. All of the judge's references to prior findings reflect basic factual information, and the judge noted that much of the material referenced in the prior findings was based on direct evidence in the form of the testimony of the mother herself, who was represented by counsel in the prior proceeding and had a compelling incentive to litigate and did so. The evidence presented at trial regarding the mother's behavior in parenting Zara was consistent with the mother's past conduct. The judge made careful and detailed findings in a forty-three page decision. Unlike Zita , this is not a case where "it is impossible for this court to say with confidence that the result would have been the same if the judge had not considered the evidence." Zita , supra at 284 (quotation omitted).
2. Termination of the mother's parental rights . The mother contends that it was an abuse of discretion to terminate her parental rights because she has engaged with services. She also argues that there was no nexus between the mother's substance abuse and her ability to provide minimally adequate care for Zara, and thus her parental rights should not have been terminated.
The judge's findings reflect that the mother has attended individual therapy, a parenting class, and was at times compliant with outpatient alcohol and substance abuse programs. However, the judge did not credit much of the mother's testimony about her compliance with her service plan or her attendance in substance abuse and domestic violence treatment at the time of trial. The judge did credit the testimony of the mother's primary care physician, who recommended more treatment for the mother than she currently receives in order to address her mental health, substance abuse, and continuing domestic violence issues. The judge also found that the mother's continued neglect of Zara is a direct result of her mental health and substance abuse issues. The judge found that in May, 2014, the mother's misuse of prescription medication made her unable to supervise Zara, with the result that the mother was unconscious inside the house when Zara wandered outside. Additionally, in 2015 the mother placed numerous calls to the police, making unsubstantiated claims that she had seen the father inside and outside her house. The mother was seemingly hallucinating and admitted that she was not taking one of her medications and taking more than prescribed of another medication.
The mother does not challenge any finding as clearly erroneous. The mother was given multiple opportunities to parent Zara. Zara was returned to the mother's custody repeatedly and each time she was removed again because of the mother's struggle with sobriety, inability to protect Zara from witnessing domestic violence, and erratic behavior. The evidence supported the judge's conclusions that the mother failed to consistently follow her service plan, that she was abusing prescription and illegal narcotics, and that the mother's continued neglect of Zara is a direct result of her unresolved mental health and substance abuse issues.
3. Posttermination and postadoption visitation . Finally, the mother contends that the judge should have ordered posttermination and postadoption visitation between the mother and Zara.
"The decision whether to grant posttermination visitation is within the judge's sound discretion." Adoption of Cecily , 83 Mass. App. Ct. 719, 727-728 (2013). However, that discretion is not unfettered, and posttermination visitation must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent [ ]or the legal consequences of their natural relation." Adoption of Terrence , 57 Mass. App. Ct. 832, 839 (2003), quoting from Adoption of Vito , 431 Mass. 550, 562 (2000). Though the judge found that the mother and Zara have a bond and visits have gone well, she found that an order of visitation was not in Zara's best interests, instead leaving any visitation to the discretion of the preadoptive parents. The judge based her decision on the mother's failure to maintain visits with Zara since August 25, 2015, and her failure to exercise posttermination and postadoption contact with Zara's brother, who was adopted by Zara's preadoptive family. This was not an abuse of discretion.
Conclusion . The evidence presented at trial supports the judge's determination by clear and convincing evidence that the mother is unfit to parent Zara and that the termination of the mother's parental rights is in Zara's best interests. The judge committed no clear error or abuse of discretion.
Decree affirmed.