Opinion
22-P-79
09-28-2022
ADOPTION OF ED. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves the welfare of Ed, born in November 2017. After trial, a Juvenile Court judge issued a decree that, inter alia, found Ed in need of care and protection, found the mother unfit, awarded permanent custody to the Department of Children and Families (DCF), terminated the mother's parental rights, and approved DCF's adoption plan. We affirm.
The putative father of Ed was allowed to participate in the trial even though his paternity never was adjudicated. He was found unfit and his parental rights, if any, were terminated. He has not appealed.
In support of the decree, the judge issued findings and rulings that totaled forty-five pages and included 215 individual subsidiary findings. On appeal, the mother does not appear to challenge those findings, and, in any event, there is ample support for them in the record. See Adoption of Paula, 420 Mass. 716, 729 (1995) (subsidiary findings must be accepted unless clearly erroneous). Nor does the mother appear to claim that the judge's findings, when taken together, did not constitute clear and convincing evidence of her parental unfitness at the time of trial. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Rather, the principal focus of the mother's appeal is her contention that her unfitness was only temporary, and that the judge erred in terminating her rights without allowing her additional time to demonstrate her long-term prospects of achieving parental fitness.
It is uncontested that the mother suffers from significant mental illness, and that she first attempted suicide when she was eight or nine years old. The mother's engagement in mental health treatment was sporadic at best, and her mental illness therefore lay essentially untreated.
The mother also has a history of substance abuse, including heroin. Although marijuana, the substance she regularly used at the time of trial, is now legal, her intake of it was so extensive as to concern Dr. David Partyka, the expert who conducted a psychological and parenting evaluation of her. In addition, the mother had a lengthy history of being involved in domestic abuse, both as victim and aggressor. Her well-documented aggressiveness and volatility surfaced in other settings as well, and at the time of trial, she faced an open criminal case in which she was charged with assaulting a pregnant woman.
The mother admitted to using heroin on two occasions, during one of which she suffered an overdose.
The mother admitted to Dr. Partyka that she cannot eat or sleep without regularly using marijuana, and he expressed concern that her heavy use could exacerbate her mental health issues.
Notably, the trial evidence documented not only that the mother was unable to provide her children a safe and stable home environment, but also that her parental shortcomings had directly caused neglect and abuse of her children. For example, in 2017, Ed's older brother, then approximately two years old, was found shoeless and in urine-soaked clothing wandering the streets of Springfield. As a further instance, the mother once threw a bottle at Ed's putative father that instead struck Ed, then a newborn, in the head.
To the extent that the mother suggests -- based on Adoption of Katharine, 42 Mass.App.Ct. 25, 34 (1997) - that DCF failed to put forward evidence that the mother's shortcomings negatively affected Ed, those suggestions are plainly without merit.
The brother, who has a different father, was originally part of these proceedings. However, that portion of the case was dismissed after the brother's father obtained sole legal and physical custody of him.
Contrary to the mother's claims, the judge did not ignore "troublesome facts" regarding her fitness. See Adoption of Stuart, 39 Mass.App.Ct. 380, 382 (1995) ("Troublesome facts . . . are to be faced rather than ignored" [citation omitted]). For example, the judge found that the visits between the mother and Ed generally went well. The judge also recognized that the mother had made various efforts toward addressing her parental shortcomings, and she credited the mother for working to gain some "basic life skills, such as obtaining a driver's license, cooking, and employment skills." However, with respect to the mother's efforts to address her key deficiencies, including "her parenting skills, mental health, substance abuse, and domestic violence issues," the judge found that the mother "largely avoided and delayed services or engaged in them with no change in her behavior." Although Dr. Partyka provided an optimistic view that the mother would present only a "low to medium" risk of neglect toward Ed, this opinion was offered expressly contingent on the mother's undertaking mental health treatment and gaining insight from that treatment. The judge credited Dr. Partyka's opinion, but not the factual premise. Based on the mother's history, the judge found that she "either engaged in a service without developing insight or changing her behavior or failed to engage in the service at all." The judge was entitled to draw such conclusions. See Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998) (even where no documented history of neglect or abuse, "judge was not bound to wait for a disaster to happen if that seemed close to inevitable . . . [as] [h]e could use past conduct, medical history, and present events to predict future ability and performance as a parent").
In fact, in recognition of the continuing bond between the mother and Ed, the judge ordered that posttermination visits continue.
As we previously have stated:
"We pause to note that the mother has shown evident affection toward [the child], 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 . . . do[es] not love the child. The inquiry instead is whether the parent['s] deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'"Adoption of Bianca, 91 Mass.App.Ct. 428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44 Mass.App.Ct. at 761.
The mother is, of course, correct that "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass.App.Ct. 354, 360 (2008). However, it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517 (2005). As time passes, it becomes increasingly important that a child obtain a stable, safe, and nurturing home environment. Even if the mother had shown promising efforts at the time of trial, "it is only fair to the child[] to say, at some point, 'enough.'" Id. The judge did not abuse her considerable discretion in concluding that that point had been reached in this case.
It bears noting that in May 2021, which was one and one-half years after the trial ended, the judge held a status conference "to determine if any party wished to present updated evidence to the court." "[N]o party elected to do so."
Ed was removed from the mother's care when he was less than two months old, and he has not lived with her since. He has been in a stable long-term foster placement, and while that family does not currently plan to adopt him, the absence of any significant special needs makes his adoption prospects bright. DCF has been exploring kinship placements, and if those are not finalized, its plan is to pursue adoption by recruitment.
DCF did not submit a written adoption plan at trial, and its oral plans could be described as bare-boned. Nevertheless, in the context of this child's needs, we conclude that the plan was "sufficiently detailed to permit the judge to evaluate the type of adoptive parents and home environment proposed and consider whether the proposal [was] best suited to meet the specific needs of the child." Adoption of Varik, 95 Mass.App.Ct. 762, 770-771 (2019). We further conclude that even if the adoption plan was insufficiently detailed, this would not warrant vacating termination, but rather, a remand for further findings as to the adoption plan. See J_d. at 771-772. Finally, we note that DCF's efforts to find a permanent placement for Ed are subject to the continued scrutiny of the judge through the mandated permanency planning process. See G. L. c. 119, § 29B.
In the end, "[w]hile courts protect the rights of parents, the parents' rights are secondary to the child's best interests and . . . the proper focus of termination proceedings is the welfare of the child" (quotation and citation omitted). Adoption of Ilona, 459 Mass. at 61. With the overarching "best interests" standard in mind, we discern no abuse of discretion or other error in the judge's decision to terminate the mother's parental rights as to Ed.
Decree affirmed.
The panelists are listed in order of seniority.