Opinion
12-P-775
01-08-2013
CARE AND PROTECTION OF ILSA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and father of a minor child, Ilsa, appeal from a judgment of the Juvenile Court, declaring both parents currently unfit to assume parental responsibility for Ilsa, and adjudicating her in need of care and protection. Ilsa, who was fourteen and one-half years old at the time of trial, has been in the care of her paternal aunt since September, 2010. The aunt's petition for guardianship (to which the father, but not the mother, has assented) remains pending.
Contrary to the mother's position, it was well-within the judge's discretion to leave Ilsa in the care of her aunt in the interim.
Both the mother and the father argue that they should not have been found unfit. In considering their positions, we stress that, 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 inquiry is whether the parent has the present ability to take parental responsibility for that particular child and to provide that child with adequate care and stability. Here, the judge was entitled to conclude that neither parent was in a position to meet Ilsa's particular needs at this time. 1. The mother. By the time of trial, the mother had completed tasks requested of her in the Department of Children and Families' (department) service plan, she had not tested positive for drugs in the last year, and she had been participating in therapy. At the time of trial, she had custody of two other children (ages two and ten months) and was expecting another child. Nevertheless, regardless of the mother's progress in dealing with her substance abuse and mental health issues and her apparent ability to care for her younger children, the judge had valid reasons for concluding that the mother was not presently a suitable caretaker for Ilsa.
The mother has withdrawn her argument that the judge should have dismissed the petition against the mother at the close of the Department of Children and Families' case. See Care & Protection of Benjamin, 403 Mass. 24 (1988). We therefore do not address it.
'One who is fit to parent in some circumstances may not be fit if the circumstances are otherwise. A parent may be fit to raise one child but not another.' Guardianship of Estelle, 70 Mass. App. Ct. 575, 581 (2007). Ilsa, who had been removed from the mother's custody in 2008, and, after a brief period of reunification, removed a second time in 2010, expressed fear about being removed yet again if the mother relapsed. So strong were Ilsa's feelings that, when confronted with the possibility of reunification with the mother, Ilsa engaged in self-injurious behavior. In view of Ilsa's emotional fragility, as well as her mature age, the judge was entitled to give due weight to Ilsa's wishes, which were to remain in the care of her aunt, while continuing to have visitation with her mother. See Custody of Vaughn, 422 Mass. 590, 599 (1996); Care & Protection of Georgette, 439 Mass. 28, 36 (2003); Adoption of Nancy, 443 Mass. 512, 518 (2005). We discern no error in the judge's determination that, given Ilsa's particular needs, the mother is not presently able to resume parental responsibility for her.
2. The father. The record reflects that throughout this matter, the father, whose relationship with the mother ended in 2004, did not have contact with the department and did not take steps to have Ilsa placed with him. At trial, the father did not testify or present a case for his current ability to parent Ilsa. He did not attend the first day of trial, and, on the second day, he assented to the aunt's petition for guardianship. Although he currently maintains a relationship with Ilsa -- visiting her every other weekend -- he acknowledges that he does not have suitable housing to assume custody of her. The judge properly could conclude that, as the father, himself, has admitted, he is not presently able to assume parental responsibility for Ilsa.
Judgment affirmed.
By the Court (Cypher, Brown & Cohen, JJ.),