Opinion
16-P-1487
07-06-2017
ADOPTION OF LOREEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decision by a judge of the Juvenile Court finding her unfit to assume responsibility for her daughter Loreen and terminating her parental rights. Specifically, the mother contends that a number of the judge's factual findings are clearly erroneous, and that her findings do not support her conclusion of parental unfitness. The mother also argues that it was error for the judge not to order postadoption visitation with the child. We affirm.
Background. The Department of Children and Families (DCF) first became involved with the mother and the child shortly after the child's birth, when the child tested positive for opiates. The mother attempted to explain to the investigator that she had been prescribed morphine because she was in preterm labor. However, the child's initial pediatrician informed the investigator that there was no early labor and that no doctor would have prescribed morphine for such a condition. The mother did not provide any documentation to support her claim. A report pursuant to G. L. c. 119, § 51A (51A report), was filed regarding the child's positive test for opiates, but the report was screened out. Based on two additional 51A reports, DCF then conducted an assessment of the mother pursuant to G. L. c. 119, § 51B, which led to DCF's decision to keep the case open for a more comprehensive assessment of the mother's parenting abilities and understanding of child development and safety. However, DCF closed the case after the assessment because the mother "refused services and refused to work with [DCF]."
The mother has reported that in the past she has used opiates, marijuana, and cocaine, including during early pregnancy, before she was aware that she was pregnant.
It appears that the initial 51A report was screened out because the child's urine and meconium test results had not yet been received, leaving only the mother's positive test for opiates the day prior to the child's birth. However, two subsequent 51A reports, filed the next day and two weeks later, were screened in due to the child's subsequent positive test and the mother's failure to bring the child to her one-week appointment with the pediatrician, respectively.
There were concerns about the mother's issues with drugs and alcohol, which she denied having problems with, as well as concerns about the mother's ability to care for the child. The mother refused to immunize the child despite numerous warnings from the social worker and the child's pediatrician. The social worker also received reports that the mother often dressed the child inappropriately for the weather. In addition, the mother made certain statements to the social worker, such as telling the social worker that the child was already attempting to walk at nineteen days old, that caused the social worker concern that the mother did not have age-appropriate expectations of the child.
DCF again became involved with the mother and the child three years later, on July 2, 2014. DCF received a telephone call from one of the mother's roommates around 8:00 P.M. , reporting that the mother left the apartment at 3:00 A.M. that morning, intoxicated and carrying a bottle of alcohol. The roommate had been watching the child all day but needed to leave for work, and the mother's whereabouts were unknown. When DCF workers arrived at the apartment with police, they were approached outside by the mother, who had an odor of alcohol and initially refused to identify herself. The mother later claimed that she had left the apartment at 7:00 A.M. that morning to go to the automated teller machine, but stated that she was kidnapped by someone who claimed to be a member of the Latin Kings gang. This person reportedly held her hostage all day before releasing her. The judge did not credit the mother's story.
This was not the first time that the mother failed to make appropriate arrangements for the child's care in her absence. The mother "frequently" left the child in the care of men she was dating or the people with whom she was currently living, occasionally for days at a time. With regard to the July 2 incident, the mother claimed that her friend had agreed to watch the child, but the friend told DCF workers that he had only agreed to watch the child for ten minutes, and that he had been gone all day and had left the child with another roommate.
The mother claimed that some years prior, her then boy friend was murdered by a member of the Latin Kings.
The child was removed from the mother's custody and placed with the mother's aunt (aunt), who had cared for the child previously. DCF provided the mother with a series of service plans designed to address her issues. The service plan tasks included attending monthly visits with DCF and with the child, participating in an alcohol and substance abuse evaluation, enrolling in counselling, participating in a parenting evaluation, obtaining stable housing, and demonstrating the ability to budget and pay bills on time.
The mother did not follow her service plans, failing to complete any of the tasks assigned to her. At a foster care review, the reviewer found that the mother attended only one session of a substance abuse evaluation, where she tested positive for cocaine. In addition, the mother was terminated from individual therapy for noncompliance. She had not demonstrated an ability to manage her finances and had not obtained stable housing. She was also frequently late to appointments with DCF workers and was late to or failed to appear at scheduled visits with the child. At the time of trial, the mother remained noncompliant with every one of her service plan tasks.
The mother disputed the results of the test, blaming the worker for incorrectly labeling her sample, and refused to continue with the evaluation. The judge did not credit the mother's allegations. The mother also refused other opportunities to participate in alcohol and substance abuse treatment.
Of approximately thirty scheduled visits, the mother failed to appear for four or five, called to cancel three or four more, and two visits were canceled by DCF due to the mother's lateness. Of the nineteen visits that did occur, the mother was late to fifteen of them, but DCF allowed the visits to take place. One visit on the child's birthday, which the mother had specifically requested, had to be canceled because the mother arrived nearly an hour late.
Discussion. We review the decision of the trial judge to determine whether there was any abuse of discretion or error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). In doing so, we grant substantial deference to the judge's decision, because a "judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment [regarding fitness]." Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).
1. Unfitness and termination. "The term ‘unfitness' signifies something more than a standard by which we measure the limits of acceptable parental conduct"; it is a standard that we use to measure the circumstances within a family as those circumstances affect the child's welfare. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981). It requires careful consideration, reflecting the unique facts present in each case, of the capacity of the parents to care for the child. See Freeman v. Chaplic, 388 Mass. 398, 405 (1983). "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). See Adoption of Mary, 414 Mass. 705, 711 (1993). To terminate parental rights and dispense with parental consent to adoption, the trial judge must find by clear and convincing evidence that the parent is unfit to care for the child and that termination is in the child's best interests. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012) ; Adoption of Zak, 87 Mass. App. Ct. 540, 542 (2015). The subsidiary findings must be proved by a preponderance of the evidence, and the judge's findings will only be disturbed if clearly erroneous. See Adoption of Jacques, supra at 606-607; Adoption of Zak, supra.
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 question for the judge is "whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ " Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care &Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
In this case, the judge's conclusion that the mother is unfit rested on a number of facts which, taken together, provide clear and convincing evidence that the mother is currently unfit to parent the child, that she will likely remain so in the future, and that termination of her parental rights is in the child's best interests. "Evidence such as the failure of the parents to keep a stable home environment for the children, the refusal of the parents to maintain service plans, visitation schedules, and counseling programs designed to strengthen the family unit are relevant to the determination of unfitness." Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). Furthermore, "no one factor is determinative and the judge should weigh all the evidence" (footnote omitted). Id. at 290. The record before us demonstrates that the judge considered the mother's inability to provide stable housing for herself and the child; the mother's inability to appreciate the child's needs; the mother's history of leaving the child, for long periods of time, in the care of people unfit to care for her; and the mother's consistent failure to participate in the services offered by DCF. The judge also found that seven of the fourteen statutory factors enumerated in G. L. c. 210, § 3(c ), applied to the case. These are all relevant considerations when determining present and future unfitness.
See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) ("[I]ndifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit").
In addition, none of the findings challenged by the mother is clearly erroneous. Here, the judge's findings are detailed, thorough, and show that she gave the evidence her close attention. See Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). The mother's argument that some of those findings are erroneous and are not supported by the evidence is belied by the record and is largely based on the fact that the mother views the evidence differently from the judge. When, as in this case, the judge makes findings of fact based on her assessment of the weight of the evidence and credibility of the witnesses, we must accept them unless there is clear error, that is, unless based on the evidence in its entirety we are left with the "definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799 (1993) (quotation omitted). "Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting from Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985). The judge is not required to view the evidence from the mother's perspective. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).
In particular, there is support in the record for the factual finding indicating that the mother was not attentive to the child's medical needs. The mother refused to have the child vaccinated, failed to provide adequate nutrition for the child, failed to address the child's eczema condition, and failed to take appropriate steps to remedy the child's "poor articulation" speech delay. The mother's use and abuse of alcohol and drugs is well documented in the record before us. The only substance abuse evaluation the mother participated in during the pendency of the proceedings resulted in a positive finding for cocaine. The judge rejected the mother's explanation for this result. The mother refused to engage in any further alcohol or drug evaluation or treatment. Finally, evidence concerning the mother's behavior in 2014 was not stale as a matter of law but highly relevant and probative when considered in the light of more recent, consistent patterns of behavior. As we have said in many cases, "[p]rior history ... has prognostic value." Adoption of Jacques, 82 Mass. App. Ct. at 607 (quotation omitted).
2. Postadoption visitation. The mother claims that the judge erred in declining to order postadoption visitation, instead leaving such visits to the discretion of the child's adoptive parent. General Laws c. 210, § 3, permits a judge to grant postadoption visitation rights to a biological parent. Once custody is terminated, the trial judge has the discretion to decide whether or not to grant postadoption visitation. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). However, that discretion is not unlimited; the decision must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Vito, 431 Mass. 550, 562 (2000).
Here, we agree with the trial judge that the child does not have a relationship with the mother that rises to the level of a positive and healthy bond that would further the child's best interests. The mother did not demonstrate a desire to maintain consistent contact with the child, as shown by her inconsistent visits with the child, to which she was often late or which she canceled at the last minute. When visits did occur, the child's teachers noticed an increase in aggressive and assaultive behavior by the child on the days following the visits. Given those findings, the judge concluded that it was in the child's best interests to leave postadoption visitation to the discretion of the child's presumptive adoptive parent. Therefore, we discern no abuse of discretion in the trial judge's decision regarding postadoption visitation.
The judge did not abuse her discretion in ordering that any postadoption visitation be held at the aunt's discretion. The mother argues that because the aunt had not yet been approved as the adoptive parent, the judge was not authorized under G. L. c. 210, § 3, to leave visitation to the aunt's discretion. See Adoption of Ilona, 459 Mass. 53, 63 (2011). However, the judge's order clearly referred to the aunt in her capacity as an adoptive parent, calling her "great-aunt/adoptive parent," in keeping with DCF's adoption plan, which the judge approved.
Decree affirmed.