Opinion
11-P-1183
12-22-2011
ADOPTION of DARA (and a companion case ).
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
In this appeal from the termination of her parental rights to her two children, the mother contends that (1) the judge's finding of unfitness is not supported by clear and convincing evidence because the mother's uncontested parental deficiencies are not prognostic of future neglect, and (2) termination is not in the children's best interests because they have bonded with her. We affirm.
The father does not appeal from the termination of his parental rights.
The judge's detailed subsidiary findings, which are not challenged on appeal, provide clear and convincing evidence that the mother is currently unfit to care for the children and will remain so in the future, and that termination of her parental rights is in the children's best interests. See Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997). The mother's substantial parental deficits, including her impulsivity, anger, and suicidal ideation, pose significant risk both to herself and to the children were they to be returned to her. See Adoption of Zoltan, 71 Mass. App. Ct. 185, 187-188 (2008) ('parental unfitness' means 'grievous shortcomings' that put child at risk of peril). The mother has a distorted view of reality and fails to acknowledge either the seriousness of her mental illness and angry behavior or its effect upon her children. Her unwillingness or inability to recognize and properly treat her chronic mental illness, to comprehend its effects upon her children, and to engage meaningfully in services place the children at risk and prevent her from assuming parental responsibility. See Adoption of Frederick, 405 Mass. 1, 9 (1989); Adoption of Mario, 43 Mass. App. Ct. 767, 772 (1997).
Indeed, at one point the mother expressed the belief that she is a rapper going to perform a benefit in Miami for the victims of the Gulf oil spill.
Also bearing upon the mother's unfitness is her violent temperament and inability to control her anger. See Adoption of Lorna, 46 Mass. App. Ct. 134, 142 (1999) (parent's character, temperament, and capacity to provide for children relevant to finding of unfitness). Indeed, on occasion, the mother engaged in verbal and physical confrontations with the children's father in front of the children that resulted in her arrest for domestic violence, an exposure that the judge rightly found harmful to the children's well being. See Custody of Vaughn, 422 Mass. 590, 599-600 (1996). The judge properly considered the mother's longstanding pattern of untreated mental illness, volatile, harmful, and criminal behavior as prognostic evidence that the mother's unfitness was likely to continue into the indefinite future, to a near certitude. See Adoption of Mario, 43 Mass. App. Ct. at 773 (pattern of parental misconduct is prognostic evidence of unfitness).
Contrary to the mother's contention that she had achieved stability and was in treatment at the time of trial, the uncontroverted factual findings establish that her mental health had deteriorated and her behavior at the time of trial had become as unstable and dangerous as at any time during the pendency of the petition. Likewise lacking merit is her contention that the Department of Children and Families (DCF) is responsible for her failure to treat her mental illness. Given the mother's refusal to consistently utilize services, her belief that she did not need services, and her hostility toward service providers, the mother's unfitness is her responsibility and not owing to the failure of DCF to do more. See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001) (DCF's obligation to work with mother contingent on mother's utilizing services).
Finally, the judge did not err in concluding that the children's best interests were served by terminating the mother's parental rights and approving a DCF plan that placed the children in the continued custody of the maternal grandparents. See Adoption of Dora, 52 Mass. App. Ct. 472, 474 (2001) (in addition to parental unfitness, judge must consider whether DCF plan is in child's best interests). The maternal grandparents had been the children's primary caregivers for the duration of the petition and had provided safe and appropriate care. It was in the children's best interests to remain in their custody. That the judge gave appropriate consideration to the extent to which the mother and the children had bonded is apparent from his order allowing for supervised, posttermination visits, provided that the mother followed a treatment program and refrained from engaging in harmful behavior. See Adoption of Vito, 431 Mass. 550, 562-563 (2000) (judge has discretion to allow postadoption contact where there is a significant bond between child and parent).
Decrees affirmed.
By the Court (Grasso, Cohen & Carhart, JJ.),