Opinion
21-P-832
03-04-2022
ADOPTION OF HARRIS (and two companion cases[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
After a trial held over eight days in September and October 2019, a Juvenile Court judge found the mother unfit to parent three of the four children subject to the underlying care and protection petitions and terminated her parental rights to those children. He ordered the Department of Children and Families (department) to implement a transition plan to return the oldest child to the mother's care. In this appeal, the mother challenges the judge's determination of her unfitness as well as the termination of her parental rights. We affirm.
The father of the three children entered a stipulation of judgment in which he assented to the termination of his parental rights; he is not a party to this appeal.
Background.
At the time of trial, the mother had five children: Andrew (fifteen years old), Harris (seven years old), Kevin (six years old), Lucy (two years old), and Sara (eleven months old) . The department first became involved with Andrew when he was around four years old following allegations that the family's dog had attacked him multiple times and that unregistered sex offenders, including the father, lived in the family's home. Shortly thereafter, while the department's case with respect to Andrew remained open, the mother was arrested for possession and distribution of cocaine, and the department took custody of Andrew.
Sara has the same father as the three children at issue here; Andrew had a different father, who is deceased. References to "the father" herein are to the father of the four younger children.
The mother regained custody of Andrew about one year later, in January 2011, but before long he, and later Harris and Kevin, were subjected to repeated neglect and abuse by the mother and the father. In November 2014, for example, the father kicked in the family's door and then pushed the mother while the children were present. In the months that followed this incident, concerns about Andrew's frequent absences from school, Kevin's missed medical checkups, and the cleanliness of the home prompted the department to develop a service plan for the mother. Then, in September 2015, the department briefly took custody of Andrew, Harris, and Kevin after the mother was seen swearing at and hitting them.
In January 2017, the mother was out of compliance with the department's service plan and pregnant with Lucy. The department filed the current care and protection petition with respect to Andrew, Harris, and Kevin and took custody of them after a finding of reasonable cause to support allegations of physical abuse of Andrew and neglect of all three children. Andrew had marks and bruises on his face, upper arm, shoulder blades, hips, and spine, the causes of which were unexplained. Harris had not attended a well-child visit in fifteen months, and although the mother knew that the children had been and continued to be exposed to lead paint, Kevin's lead level had not been tested for six months.
Less than two weeks after the department took custody of the three oldest children, the department filed the current petition with respect to the infant Lucy and took custody of her. At the hospital following Lucy's birth, both the mother and Lucy tested positive for oxycodone, and Lucy exhibited withdrawal symptoms. The mother admitted that she had taken Percocet during the latter part of her pregnancy and had neglected prenatal care for the previous four months.
The mother's struggles with substance abuse continued in the months immediately after she lost custody of her four children. In May 2017, she was arrested for operation of a motor vehicle under the influence of drugs, possession of class B and class C substances, possession with intent to distribute a class B substance, and drug trafficking. After the arrest, she completed a month-long partial hospitalization program; she was subsequently incarcerated while awaiting trial on the drug charges.
The mother was eventually convicted on one indictment charging possession with intent to distribute a class B substance in February 2019 and sentenced to one year of probation. The remaining charges were nolle prossed.
The mother's incarceration was a turning point for her in some respects. While in jail she remained drug free and was involved in a self-discovery class, a relapse prevention class, Alcoholics and Narcotics Anonymous meetings, a victim impact class, and a parenting class. In preparation for her release in December 2017, she applied for a program at Two Rivers Recovery Center for Women. Although she was not able to enter the program immediately, there was no evidence that she experienced substance abuse issues during the months she spent in the community living with a friend awaiting an opening at Two Rivers. She did, however, become pregnant with Sara after reengaging with the father despite the history of domestic violence in their relationship.
The mother made some notable strides in dealing with her substance abuse issues upon entering Two Rivers in March 2018 and enrolling in the Franklin Family Drug Court in November 2018. She worked with a recovery coach, therapist, case manager, and Narcotics Anonymous sponsor, had completed several parenting classes, and largely remained drug free. She did, however, test positive for prohibited drug use on two days in December 2018, which prompted Two Rivers to place restrictions on her activities for several months, even though she had also twice tested negative on those days.
On the other hand, she made little effort to address the department's repeated concerns about domestic violence in her relationships. She refused to attend domestic violence groups because they interfered with programming at Two Rivers and only started weekly one-on-one counselling to address the issue two months before the end of trial.
Evidence that she was capable of appropriately caring for all five children was also mixed. Sara remained in her care, and the department did not have any concerns about that child. The mother regularly attended bimonthly visits with the children in the department's custody, arriving on time with snacks and age-appropriate activities. She struggled, however, to safely manage all the children at the visits. Harris and Kevin were rough with each other, climbed on and threw things around the room, and did not follow the mother's prompts. The mother had to rely on Andrew and the department's supervising staff to intervene and help with the other children. In attending to the other children, she would seat baby Sara on the couch without anyone there to support her. Moreover, the mother did not engage with Lucy.
The department also had concerns about where the mother would live following her expected departure from Two Rivers in November 2019. Her criminal background made her ineligible for some subsidized housing, and she had not been able to identify market-rate apartments within her budget that had lead-safe certificates and would accommodate five children.
While the mother struggled to secure stable housing, Harris, Kevin, and Lucy had all found stability with their current foster families, who had been caring for the children's particular needs and were interested in adopting them. Harris and Lucy had lived together with their foster family since May 2018, and Kevin had lived with his foster family since January 2017. All three were strongly attached to their foster families.
Discussion.
1. Standard of review.
"To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's 'best interests will be served by terminating the legal relation between parent and child.'" Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). In considering whether the judge's findings constitute clear and convincing evidence, we defer to "the judge's assessment of the weight of the evidence and the credibility of the witnesses," but set aside any findings that are clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id., quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Whether termination of parental rights is in a child's best interests is a discretionary decision. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).
2. Challenges to the judge's findings.
The mother asserts that three of the subsidiary findings supporting the judge's unfitness determination were clearly erroneous: the finding that the mother twice tested positive for heroin in tests administered by the Drug Court in December 2018, the finding that the mother had been participating in drug rehabilitation at Two Rivers for only six months as of the conclusion of the trial, and the finding that the mother had not provided relapse prevention plans to a department social worker.
While the evidence of the mother's positive drug screens was contested, the judge's finding, rejecting the credibility of the mother's testimony "that those tests were false positives and that she did not ingest heroin on those occasions," was not clearly erroneous. The findings demonstrate that the judge was aware of documentation indicating that the mother's positive drug tests may have been caused by prescribed medication and stating that on those same days the mother tested negative in tests administered at other locations. "[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference," and we are not left with the firm conviction that the mother did not ingest heroin prior to those tests. Custody of Eleanor, 414 Mass. at 799.
The mother is correct that, in one conclusion of law, the judge misstated the amount of time the mother had spent in drug rehabilitation at Two Rivers. In fact, she had resided at Two Rivers for closer to eighteen months, having been admitted to the program in March 2018 and continuing through the end of trial in October 2019. But the judge's miscalculation, which was likely attributable to mistakenly counting the months from March 2019 instead of March 2018, was tempered by other findings indicating the judge's awareness of the mother's complete history at Two Rivers. For example, the judge found that she entered the program several months after her release from prison in December 2017 and that she had negative drug screens at Two Rivers in December 2018, both of which are consistent with her having spent far longer than six months there. Moreover, the judge based his conclusion about the mother's unfitness on her unproven track record to maintain sobriety outside of institutional settings, not on the precise number of months she spent in drug rehabilitation. The counting error was "not central to the ultimate conclusion of unfitness." Care & Protection of Olga, 57 Mass.App.Ct. 821, 825 (2003).
Contrary to the implication of the mother's third assertion, the judge found that the mother had in fact prepared drug relapse prevention plans. The related finding that she had not provided those plans to one of her social workers who had been on medical leave was both accurate and immaterial to the judge's consideration of the mother's relapse risk.
3. Fitness to parent Harris, Kevin, and Lucy.
The judge found by clear and convincing evidence, which the record supports, that the mother was unfit to care for Harris, Kevin, and Lucy. In particular, the mother had failed over many years to establish a stable home life and to adequately address the conditions that had previously led to repeated abuse and neglect of the children. Four months after she lost custody of her children for the third time, she was arrested and charged with multiple drug-related felonies. Her efforts to address her substance abuse issues in the roughly two years following that arrest were not entirely successful, and the possibility of a future relapse while caring for multiple young children remained high given her long history of substance use when not in an institutional setting. Additionally, the mother repeatedly demonstrated her inability to safely care for and manage all five children at one time.
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment or a determination that the parent does not love the child. The inquiry 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." Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998) .
The mother argues that the judge improperly relied on past behavior that was no longer indicative of her current fitness to parent given more recent positive changes she made in her life. See Adoption of Rhona, 57 Mass.App.Ct. 479, 485 (2003), S.C., 63 Mass.App.Ct. 117 (2005). Specifically, she takes issue with the judge's reliance on her history with substance abuse even though she had developed relapse prevention plans and had not had a major relapse for more than two years. While she is correct that evidence of past substance abuse can become stale, see Adoption of Ramona, 61 Mass.App.Ct. 260, 264 (2004); Adoption of Rhona, 57 Mass.App.Ct. at 485, the judge's conclusion that she remained at a high risk of relapse was well supported. As previously discussed, the judge had sufficient reason to conclude that the mother had ingested prohibited drugs less than one year before trial, and, ten years after drug use had first rendered her unfit to parent Andrew, she had yet to demonstrate an ability to remain drug free independent of incarceration or a drug rehabilitation program. Indeed, by her own account, the structure and schedule of Two Rivers, which she would not be able to maintain while caring for five children, was necessary to her continued recovery.
The mother also takes issue with the judge's reliance on her past child neglect even though she had successfully cared for Sara for nearly a year. See Adoption of Linus, 73 Mass.App.Ct. 815, 821 (2009). However, her fitness to raise Sara did not necessarily imply her fitness to raise Harris, Kevin, and Lucy. See Guardianship of Kelvin, 94 Mass.App.Ct. 448, 457 (2018). The judge had to weigh the mother's experience with Sara against her previous experience caring for her other children as well as her continued inability to adequately address the needs of Harris, Kevin, and Lucy at supervised visits.
Nor was the judge inconsistent in concluding that the mother was fit to raise Andrew, but unfit to raise Harris, Kevin, and Lucy. Andrew had spent far longer in the mother's custody than any of the other children, and the mother had a stronger relationship with him and a greater understanding of his needs, as demonstrated by his foster mother's reliance on the mother to address his behavioral issues. Perhaps more importantly, Andrew was nearing the age of majority and required less direct supervision than his younger siblings. While his siblings contributed to a sense of chaos at supervised visits, Andrew assisted his mother in trying to bring the situation under control. In addition, the mother did not have a viable housing plan for herself and five children. See Adoption of Virgil, 93 Mass.App.Ct. 298, 303 (2018).
The mother also argues that the judge lacked a factual basis to conclude that she had "difficulties engaging consistently with services" and did not show adequate improvement from her participation in services. To the contrary, the judge made subsidiary findings that she did not engage in a parenting and psychological evaluation, did not complete treatment programs prior to Two Rivers, and did not attend domestic violence groups. Unlike the service plan tasks discussed in Adoption of Yale, 65 Mass.App.Ct. 236, 242 (2005), all these services were directly related to addressing the mother's "clearly identified deficiencies" that had caused past abuse and neglect of the children.
4. Best interests of Harris, Kevin, and Lucy.
The record also supports the judge's conclusion that the termination of the mother's parental rights was in the children's best interests. In particular, the mother's fitness to parent Harris, Kevin, and Lucy had been an ongoing concern for the children's entire lives, and despite interventions by the department, the mother was unable to adequately address those concerns. "In these circumstances, where the [mother] has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to the children to say, at some point, 'enough.'" Adoption of Nancy, 443 Mass. 512, 517 (2005) . Such a conclusion was further justified by the strong bonds all three children had developed with their preadoptive placements, which the judge was permitted to consider without making explicit findings about the consequences of severing those bonds. See Adoption of Rhona, 63 Mass.App.Ct. at 126-127 (explicit findings required only if severance of bonds is decisive factor); Adoption of Daniel, 58 Mass.App.Ct. 195, 202-203 (2003) (children's attachment to foster families, while not dispositive, may be considered). Accordingly, we discern no error or abuse of discretion in the judge's decision to terminate the mother's parental rights to the children.
Decrees affirmed.
The panelists are listed in order of seniority.