Opinion
No. 11–P–1366.
2012-07-12
ADOPTION OF BELLE (and a companion case ).
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals the termination of her parental rights with respect to two of her daughters, Belle and Lisa, who have been in the care of the Department of Children and Families (department) since January, 2008.
She argues that there was not clear and convincing evidence of her unfitness and that termination was not in the best interests of the children. We affirm.
The father stipulated to an order issuing decrees terminating his parental rights to Belle and Lisa. The department withdrew its request that parental rights be terminated as to a third child, who is in the custody of the father.
1. Unfitness. The mother argues that the evidence does not substantiate a finding of parental unfitness by clear and convincing evidence, Adoption of Nancy, 443 Mass. 512, 515 (2005), and that some of the trial judge's factual findings are not supported by the evidence. “Subsidiary findings must be established by a fair preponderance of the evidence, and will not be disturbed unless clearly erroneous.” Adoption of Elena, 446 Mass. 24, 30–31 (2006) (citation omitted). A finding is “clearly erroneous when there is no evidence to support it.” Custody of Eleanor, 414 Mass. 795, 799 (1993). The judge's findings that the mother was unable to meet the needs of the children as babies, was unable to maintain her children's hygiene, and failed to maintain the children in safe and clean housing, were not clearly erroneous. As a baby, Belle struggled to gain weight, and the mother admitted that she had failed to follow her pediatrician's feeding instructions. Additionally, the children were often not properly cleaned, lacked adequate clothing, and played in a very dirty house. Similarly, the record supports the finding that “[o]ver the years, the mother has been unable to maintain a clean or safe household while the children were in her care and the only noticeable improvement to the home came when [the] children were in foster care.” When one or more of the children were returned to the mother's care, they were exposed to domestic violence, engaged in sexualized conduct (and were exposed to parental sexual conduct), and their special needs were neglected. When the children visited, the mother was unable to sufficiently feed them, “was unable to get a child in her care up and ready for school during overnight visits on a consistent basis,” and allowed unpermitted family visits to interfere with the children's visits and therapy sessions. Finally, the judge's finding that the mother “is without a credible, reliable and genuine support system” to raise her children is not clearly erroneous. The mother reported that her support system consisted of her therapist; her own mother, who was homeless and living in her car; her best friend, who lives on Cape Cod; and one other friend.
Taken together, these findings establish clear and convincing evidence of the mother's unfitness. We disagree with the mother's contention that this evidence has no predictive value in the finding of unfitness. “While we agree that a finding of current unfitness cannot be based on stale information, ... we note that prior history does have prognostic value.” Adoption of Carla, 416 Mass. 510, 517 (1993). “[T]he trial judge ‘could properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness.’ “ Id. at 517 n. 7, quoting from Adoption of Diane, 400 Mass. 196, 204 (1987). “Such evidence, particularly where unrebutted by more recent proof of parental capacity, provides a satisfactory basis for a finding of current parental unfitness.” Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). In this case, the judge properly considered the mother's history of neglect. There was no evidence that the mother ever was able to consistently and successfully provide for the health and safety of any one of the children alone, let alone all of them together, even after years of services from the department.
We disagree with the mother's contention that the judge improperly minimized credible evidence of the mother's fitness by discrediting the opinion of the psychologist who testified on the mother's behalf. “[T]he judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference.” Adoption of Elena, 446 Mass. at 31. The judge was within her discretion to conclude that the doctor's opinion of the mother's fitness was insufficient to overcome the overwhelming evidence of her inability to parent her children.
We likewise reject the mother's argument that the judge overemphasized the history of violence between the parents. There was ample evidence that the children were repeatedly exposed to domestic violence and heated arguments between the parents while they were in the mother's custody or in her care for a visit. These incidents occurred regardless of whether the parents were living together, and the judge was entitled to conclude that this pattern was likely to continue to the children's detriment. See Custody of Vaughn, 422 Mass. 590, 599 (1996).
2. Best interests of the children. The mother also argues that there was insufficient evidence that termination of her parental rights was in the best interests of the children. “In determining whether the best interests of the children [are served by terminating parental rights], a ‘court shall consider the ability, capacity, fitness and readiness of the child's parents....' G.L. c. 210, § 3( c ).” Adoption of Nancy, 443 Mass. at 515–516.
First, the mother contends that application of G.L. c. 210, § 3( c )(ii), (iv), (v), and (vi), was inappropriate because she participated in every service required by the department and sought additional help on her own. These factors apply, however, even where, as here, a parent utilized such services but did not effectuate “a substantial and material or permanent change in the circumstances which led to the abuse or neglect.” G.L. c. 210, § 3( c )(ii). The mother is to be commended for her participation in services, just as the department is to be commended for its extensive attempts to reunite the mother with her children. Despite these mutual efforts, however, each failed reunification attempt demonstrated that the children remained at risk of neglect and exposure to domestic violence. Evidence of such failure is relevant to the judge's conclusion that termination is in the best interests of the children. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).
Finally, the mother argues that the judge should not have applied G.L. c. 210, § 3( c )(xii),
because she gave no explanation as to the condition the mother suffered from. It is clear, however, from the judge's findings and conclusions as a whole that the condition the judge considered is the mother's history of depression. The mother has been diagnosed with a severe and recurrent major depressive disorder and has taken medication and received therapy throughout her adult life. The only evidence that the mother cites to rebut this finding was discredited by the judge. Moreover, the mother's depression was relevant to her ability to care for her children. See Adoption of Frederick, 405 Mass. 1, 9 (1989). The mother receives disability benefits due to her chronic depression, has previously struggled to overcome her symptoms in order to properly care for her children, and her ability to sufficiently manage her condition has been inconsistent. The judge could properly conclude that the mother's history of depression and inability or failure to obtain adequate treatment for it render her unable to sufficiently care for children with special emotional and developmental needs.
.General Laws c. 210, § 3( c )(xii), as amended by St.1999,
c. 3, § 17, requires the judge to consider “a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent or other person named in section 2 unlikely to provide minimally acceptable care of the child.”
For these reasons, the decrees terminating the mother's parental rights are affirmed.
So ordered.