Opinion
No. 15–P–1323.
07-20-2016
ADOPTION OF ZIGMUNT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and the father appeal from decrees by a judge of the Juvenile Court terminating their parental rights with regard to their son, Zigmunt. For the reasons that follow, we affirm.
Background. We draw on the detailed findings of fact made by the judge, which find ample support in the record. The child, Zigmunt, was born in July, 2012, to the mother and father, who both struggled with substance abuse and whose relationship was marked by violence. At the time of Zigmunt's birth, the family was already involved with the Department of Children and Families (department).
The mother and the father began their relationship in January, 2011. Soon after they began dating, they had an altercation while intoxicated in which the mother stabbed the father with a knife. On May 23, 2011, the father was charged with assault and battery against the mother. On September 8, 2011, the mother called police to have the father removed from the home. On September 22, 2011, the mother was charged with assault and battery against the father. The mother testified that both cases were dismissed because “neither wanted to testify against the other.” She later testified that there was no domestic violence between her and the father. After the father completes his current prison sentence, the couple plan to reunite and resume living together.
On April 3, 2011, a G.L. c. 119, § 51A, report was filed by a mandated reporter after the mother was brought to the hospital from a bar where she had been drinking. The mother was borderline unresponsive and had a blood alcohol level of 0.396. The father brought the mother's two older sons to the hospital waiting room and left them there with three young teenagers as babysitters. As a result of the report, the department took emergency custody of the mother's two older boys and placed them with the maternal grandmother. Regarding this incident, the mother testified that she was “not used to drinking,” had a liver problem, had seizures, and had a bad reaction from mixing alcohol with her medications. In the fall of 2011, when the mother became pregnant with Zigmunt, she had not completed a psychological evaluation, denied having a substance abuse problem, refused to submit to urine toxicology screens, and had not kept appointments for substance abuse or mental health evaluations. Her psychiatrist reported that the mother had attempted to obtain more Adderall from the pharmacy than he had prescribed, and voiced concerns that the mother was abusing her medications.
In December, 2011, both the mother and father were charged with larceny of property valued at more than $250 after they were discovered in possession of items contained in packages stolen from their neighbors. The Juvenile Court judge found that “both Mother and Father take no responsibility for their behavior whether it is domestic violence, substance abuse, or criminal activity.” As of February, 2012, the mother was not in treatment of any kind, had not kept her appointment for a psychological evaluation, and had not completed urine toxicology tests through probation. She also did not comply with the term of her probation requiring her to stay away from the father. She continued to live with the father through April, 2012.
The mother tested positive for opiates on seven dates between April and July, 2012. Zigmunt, who tested positive for opiates at birth, was placed in the hospital's special care nursery. He began showing symptoms of withdrawal three days after his birth. The mother and the father did not visit Zigmunt on a regular basis while he was hospitalized.
The judge also found that the mother did not disclose to her primary care physician that she was pregnant when she was prescribed oxycodone in January, 2012. The department filed a care and protection petition on August 1, 2012, shortly after Zigmunt's birth, and was granted temporary custody of him. Zigmunt was initially placed with the paternal grandmother.
In the fall of 2012, the mother and the father had supervised visitation with Zigmunt. The father was observed “nodding off” at visits and appeared very tired and lethargic, while the mother interacted appropriately with Zigmunt. However, after the paternal grandmother allowed the mother and father unsupervised access to Zigmunt, he was removed from the paternal grandmother's custody and placed in a foster home.
On December 4, 2012, the police searched the mother and father's apartment and found a firearm, marijuana, up to $15,000 in cash, five cellular telephones, ten Suboxone pills, eleven grams of heroin, cocaine, digital scales, and other drug paraphernalia. Both the mother and the father were arrested and incarcerated, charged with crimes including drug possession and trafficking. The father pleaded guilty to several drug and firearm charges and was sentenced to five to seven years in prison. The mother had been aware that the father had a prior conviction for manslaughter and that he was violating the terms of his probation. While incarcerated following her arrest, the mother did not provide signed releases allowing the department to verify her participation in services while in prison. She declined a visit with Zigmunt during December, 2012. After a permanency planning conference, while both parents were incarcerated, the department changed the goal for Zigmunt to permanency through adoption.
Following her release from prison, the mother again failed to provide the department with documentation verifying her participation in services, and she maintained sporadic contact with the department. The mother did not comply with terms of her probation.
Although the mother enrolled in a Suboxone clinic in July, 2013, she continued to abuse heroin and Percocet. The mother submitted numerous urine toxicology reports showing negative results to the department, which differed from positive results shown on subpoenaed records from the same dates. She admitted relapsing on heroin and suffering from withdrawal. The judge inferred that the mother had submitted fraudulent documents to the department.
The mother tested positive for opiates and cocaine on September 3, 2013, and on September 16, 2013, she was arrested for being present where heroin was knowingly kept. The judge found that “Mother dismisse[d] or disregard[ed] the gravity of her situation, fail[ed] to be accountable for her actions, and remain[ed] uncommitted to her sobriety.”
The mother continued to test positive for illicit substances during September and October, 2013, and violated the terms of her probation. A urine sample that she submitted for a toxicology test on January 13, 2014, could not be analyzed due to suspected adulteration. Another one taken on April 1, 2014, was “suspicious for water,” and when another sample was submitted, it tested positive for opiates.
By the time of trial, held during the summer of 2014, the mother admitted that she was an addict, but she had not submitted a copy of her relapse prevention plan to the department. She was eventually terminated from the Suboxone program after testing positive for amphetamines three times during a two-month period.
The father had his first visit with Zigmunt while incarcerated on August 23, 2013, during which Zigmunt was at ease and able to play. However, while in foster care, Zigmunt began to experience increased anxiety manifested by rocking and banging his body, which worsened during visits with the father. Zigmunt became distressed and inconsolable, trying to throw himself out of the chair at one visit at the prison. He whined and pushed the father to try to get away from him, and at times emitted an “ear-piercing scream” during the car rides to and from the prison. The father, however, testified that Zigmunt was always in a good mood during visits and had no behavioral problems. The judge found that the father was in denial about his son's trauma and lacked understanding of Zigmunt's behavioral difficulties and special needs. Although he was on a waiting list for a fatherhood group by the time of trial, the father was unable to access programs in prison to complete his service plan tasks.
After visits with family members during the spring of 2014, Zigmunt had difficulty sleeping and exhibited behaviors such as body rocking, shrieking, and tantrums. He continued to be agitated and distressed during visits with the father, and the department restructured Zigmunt's visiting schedule as a result. Zigmunt has been diagnosed with global developmental delays in all evaluated areas except speech. However, since his placement in his preadoptive home in February, 2014, many of Zigmunt's sensory issues have lessened or ceased. By July, 2014, his rocking and shrieking had stopped, and his tantrums were not as severe. He appears attached to his preadoptive parents and sister. The preadoptive parents are agreeable to contact with Zigmunt's older siblings and the maternal grandmother, who has adopted them.
Discussion. a. Evidentiary issues. The mother first asserts that the judge improperly relied substantively on the information contained in G.L. c. 119, § 51A, reports. Second, she argues that the judge's findings include inadmissible hearsay from G .L. c. 119, § 51B, reports and other department records.
The judge noted in her findings that the 51A reports were admitted “solely to set the stage,” i.e., to explain why the family came to the department's attention. See Custody of Michel, 28 Mass.App.Ct. 260, 267 (1990). Nothing in the findings “intimate[s] that [she] used them for anything more.” Ibid. See Mass. G. Evid. § 1115(b)(2)(A) (2016). As to the material gathered through 51B investigations, “[p]rimary facts contained in Section 51B investigations are admissible.” Mass. G. Evid. § 1115(b)(2)(B). See Adoption of George, 27 Mass.App.Ct. 265, 271–275 (1989). Hearsay statements contained in a § 51B report may be admitted substantively if they are statements of primary fact or satisfy an exception to the hearsay rule. See id. at 272.
Again, the trial judge demonstrated her awareness of these rules by noting the purposes for which she relied on the contents of the § 51B reports. The same is true of other department records, which are admissible under the official records exception to the hearsay rule, see Mass. G. Evid. § 803(8), after redaction of expressions of opinion, evaluation, or judgment. See Adoption of George, supra at 274–275; Mass. G. Evid. § 1115(b)(2)(C) & Note. The mother does not argue that her right to cross-examine the authors of the admitted documents was abridged in any way. See Custody of Tracy, 31 Mass.App.Ct. 481, 485–486 (1991).
b. Standard of review. Because “[p]arents enjoy a fundamental liberty interest in the care, custody, and management of their children,” Adoption of Zoltan, 71 Mass.App.Ct. 185, 187 (2008), the termination of parental rights must be supported by clear and convincing evidence that a parent is “currently unfit to further the child's best interest[s].” Adoption of Katharine, 42 Mass.App.Ct. 25, 27 (1997). The judge's subsidiary findings of fact must be supported by a fair preponderance of the evidence and will not be disturbed on appeal unless they are clearly erroneous. Adoption of Gregory, 434 Mass. 117, 126 (2001). We grant substantial deference to the judge's assessment of the weight of the evidence and the credibility of witnesses. Ibid. To terminate parental rights, the trial judge's subsidiary findings, taken as a whole, must demonstrate parental unfitness by clear and convincing evidence. Adoption of Kimberly, 414 Mass. 526, 528–529 (1993). The trial judge must then decide whether termination of all legal relations between parent and child is in the child's best interests. Adoption of Nancy, 443 Mass. 512, 515–516 (2005). General Laws c. 210, § 3(c), provides a nonexhaustive list of factors to be weighed in determining the child's best interests.
Despite the moral overtones of the statutory term “unfit,” the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the child. The question for the judge is “whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or 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).
c. The mother's unfitness. In her 220 factual findings, the trial judge detailed ample evidence to support her conclusion that the mother was not a credible witness, was presently unfit to parent Zigmunt, and that such unfitness was likely to continue undiminished into the future. This conclusion is well supported by the evidence. We agree with the trial judge that the mother “has not made sufficient progress in the timeframe that [the child] needed her to.”
The findings reveal a sustained pattern of drug abuse, violence, and criminal activity, for which the mother was unwilling or unable to take responsibility. Throughout the course of the case, the mother denied her substance abuse problem or attempted to hide it from department investigators and the judge. She was dishonest with several service providers about her drug use, and the judge concluded that she had submitted fraudulent urine toxicology results. She fell far short of participating in service plan tasks and was, at best, inconsistent in participation in substance abuse or mental health treatment.
While working toward reunification with her two older children, the mother remained in a violent relationship with the father, and the two sold drugs out of the home they shared. Like the father, she has minimized or denied the extent of violence in their relationship, and maintained at the time of trial that they planned to live together after the father's release from prison. At times, her whereabouts were unknown, and during the pendency of the case she was charged with several serious crimes. As the judge recognized, the mother did comply with some of her service plan tasks, but “the gaps [were] many.” The mother repeatedly violated the terms of her probation, has not provided requested releases of information, has continued to abuse illegal drugs, and has not been forthcoming to department employees and collaterals. She has not been able to adequately manage her addiction and has shown poor judgment and poor decision-making skills. If Zigmunt were placed in her custody, it is likely that he would be exposed to dangerous conditions and be at risk of serious abuse or neglect.
d. The father's unfitness. The trial judge's detailed and lengthy findings demonstrate that the father's grievous shortcomings and handicaps would endanger Zigmunt's welfare. There is no basis to disturb the judge's findings that the father is unable or unwilling to comprehend the level of care that Zigmunt requires. Furthermore, the father's lengthy period of incarceration makes him unavailable to provide the child with stable and nurturing care, and his proposed substitute caretaker, the mother, is also unfit. All of these factors demonstrate by clear and convincing evidence that the father's present unfitness is likely to continue undiminished into the future.
The judge noted that the father has minimally engaged with the child since his birth and placed his own needs above the child's. The pattern of domestic violence between the father and the mother had continued from the time of Zigmunt's birth until the father's incarceration, but like the mother, the father has either denied or minimized such conduct. While working toward reunification with Zigmunt, the father violated his probation when he was arrested for and pleaded guilty to drug trafficking and firearm charges, resulting in his five to seven year prison sentence. He admitted that he would have continued to sell drugs had he not been arrested.
e. The child's best interests. As the trial judge noted in her findings, neither parent has ever been a primary caretaker of Zigmunt, as he has resided in a kinship placement or in foster homes since his birth. The judge credited testimony that since his placement in his current foster home in February, 2014, Zigmunt has “made great strides” and is attached to his preadoptive parents and their daughter. Zigmunt's neurologist has noted marked improvement in his development since placement in this home.
Neither the mother nor the father is fit or ready to assume parental responsibility for Zigmunt, who is in need of a permanent home environment supportive of his medical, emotional, educational, and therapeutic needs. Neither parent has demonstrated a capability to understand Zigmunt's substantial needs, let alone to provide a home life that affirmatively supports those needs. At this time, he has resided in such a home for over two years with his preadoptive family. We agree with the trial judge's conclusion that his Zigmunt's best interests are served by severing legal relations with the mother and the father and continuing in his current placement with the goal of adoption.
f. Posttermination and postadoption visitation. The mother takes issue with the trial judge's decision not to order posttermination or postadoption visitation between Zigmunt and the parents. A judge deciding whether to order postadoption visitation “must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?” Adoption of Ilona, 459 Mass. 53, 63, (2011). Guided by the best interests analysis, “[o]nce it is established that a parent is unfit, the decision whether to grant postadoption visits must left to the sound discretion of the trial judge.” Adoption of John, 53 Mass.App.Ct. 431, 439 (2001). That discretion is “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.” Adoption of Vito, 431 Mass. 550, 562 (2000).
The circumstances of this case demonstrate that any bond between the child and his biological parents was minimal, given that he has never resided with either one. In fact, he has demonstrated significant behavioral problems following visitation with his parents in the past. In any event, such bond was clearly outweighed by the substantial bond he has developed with his preadoptive family. We see no abuse of discretion in the judge's decision to leave posttermination contact to the discretion of the department and the preadoptive family, and postadoption contact to the discretion of the adoptive family.
Decrees affirmed.