Opinion
20-P-921
07-26-2021
ADOPTION OF ORION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge found the mother and the father unfit to parent the child, entered decrees terminating their respective parental rights, and approved the plan of adoption put forward by the Department of Children and Families (department). Both the mother and the father appeal. The child was born in 2013 exposed to methadone and opiates, and was seven years old at the time of trial. While the mother periodically had custody of the child for several years (until 2018), the mother has struggled, among other things, with serious substance abuse issues. The father has been incarcerated for much of the child's life due to drug offenses, and was incarcerated at the time of trial. The mother argues that there was insufficient evidence to support her unfitness, and also that the judge erred when, in 2018, she declined to dismiss the care and protection petition despite a stipulation of dismissal signed by all parties. The father argues, among other things, that the termination of his parental rights impermissibly was based solely on his criminal history and current incarceration, and also that the judge abused her discretion in approving the department's permanency plan of recruitment. We affirm.
The child also was originally an appellant, but shortly before argument he moved to strike his brief and proceed as an appellee, which was allowed. The child had been placed with the maternal grandmother in March of 2021, had "adjusted well," and wished to remain in the placement.
Background. We summarize the facts as found by the judge, which are amply supported by the evidence. The mother has a lengthy history of substance abuse including opiates, unprescribed methadone, and marijuana. She has been diagnosed with various mental health disorders including bipolar disorder, attention deficit hyperactivity disorder, panic disorder, agoraphobia, social anxiety disorder, and generalized anxiety disorder, for which she is prescribed certain medications.
As noted, the child was born in March of 2013; he remained in the hospital for approximately one week after his birth to receive treatment for withdrawal symptoms. The department accordingly became involved with the family at the time of his birth; that case was subsequently closed. The department again became involved with the family in April of 2015, when it learned of a police raid on the mother's apartment at which a significant amount of heroin and drug packaging materials were seized; the father was arrested as a result. After initially denying it, the mother eventually admitted that the child was present at the time of the police raid.
The department previously had been involved with the mother in connection with her other son, Sam (a pseudonym), born of a different father. Sam was originally named in the petition in this case, but after his father retained sole legal and physical custody Sam was dismissed from the petition. Sam is not a party to this appeal.
In May of 2017, a G. L. c. 119, § 51A report ( § 51A report) was filed against the mother after police were called to a U-Haul facility where the mother appeared to be under the influence; the child was with her at the time. The mother and the child were transported to the hospital by ambulance, but the mother left the hospital with the child before a toxicology screen was completed. The department assumed emergency custody of the child the next day at the paternal grandmother's house, where the mother had left him the night before "wearing a diaper only, with no clothing."
In September of 2017, the child was returned to the mother's temporary custody, with conditions. Nine months later, at a hearing on May 18, 2018, a stipulation of dismissal of the care and protection petition was presented to the judge, signed by all parties. The case was set for trial that day, and the department represented that "[a]t this point we do not believe we can meet our burden." The department assured the judge that if a new § 51A report was filed against the mother, it would refile the care and protection action. The child's attorney stated that he had "sign[ed] this agreement with mixed feelings." After reviewing the department's May 18, 2018 letter to the court, in which a "number of concerns [were] raised" about the mother's behavior and parenting, the judge declined to dismiss the case. The mother objected. Temporary custody remained with the mother, with the same conditions.
Those conditions included, among other things, that the mother maintain her methadone treatment, participate in announced and unannounced home visits with the department, sign releases for treatment providers, fully comply with her action plan tasks, take all prescribed medications, engage in individual therapy, and ensure the child attended daycare daily.
The child was again removed from the mother's custody shortly thereafter, on July 3, 2018, after the department learned that the mother had again tested positive for fentanyl on May 8 and June 26, 2018. The mother also tested positive for fentanyl in August and October 2018; indeed, since starting her methadone treatment in July 2017, the mother had tested positive for fentanyl eleven times, and had inconsistently tested for her prescribed medications.
Also, on May 31, 2018, the department learned, after requesting police records, that in March of 2018 the police had responded to the mother's apartment for an overdose of her male friend (although the mother had conditional custody at the time, there was no record of the child being present during the incident); the mother eventually admitted to the department that she had been using fentanyl at the time.
In February of 2019, the department changed its goal for the child from reunification to adoption, due to the mother's continued failure to comply with her action plan tasks. In July of 2019, the mother ended her methadone treatment after failing to comply with the program requirements; neither the department nor her providers recommended that she end her treatment. In October of 2019, the mother was terminated from treatment by her prescribing physician after noncompliance with her prescription medication and a discrepancy in a pill count; she then attempted to obtain her medication from various hospital emergency rooms. The mother failed to participate in an out-patient drug treatment program after agreeing to do so, and between December 2019 and January 2020 she failed to provide any urine screens to the department.
During 2019 the mother missed nearly half of her scheduled weekly visits with the child. On at least two occasions she appeared for a visit while under the influence of substances, resulting in the visit being canceled. The mother was also consistently late for visits, and due to the mother's consistent tardiness, the department changed the visitation protocol by requiring her to arrive at the department offices one hour prior to her scheduled visit; she failed to do so. In February of 2020, the visits were reduced to every two weeks.
As to the father, the judge found that he had an extensive criminal record dating back to 1992, which had resulted in significant periods of incarceration. As noted, the father was arrested for distributing drugs out of the family home in 2015, for which he was serving a four- to six-year sentence at the time of trial; his anticipated release date was March of 2022. The father also was a drug user, and had been receiving methadone treatment at the time of his 2015 arrest. Because the father planned to reside in a halfway house if paroled early and had not developed a custody plan, he was unavailable at the time of trial and beyond to parent the child. The father proposed placement of the child with the paternal grandmother.
In finding the mother and the father unfit and terminating their respective parental rights, the judge discussed all the above facts. The judge specifically found the mother's trial testimony "largely not credible," and concluded that the mother was "unable, or unwilling, to take responsibility for her myriad parenting deficiencies." The mother also failed to understand how her substance abuse, and her inability to consistently take her prescribed medications, affected her ability to parent the child. In addition, the mother had not engaged in provided services consistently, and aside from the period between February and April of 2019, her attendance at visits with the child had been inconsistent.
The judge likewise found the father unfit. The judge cited not only the father's extensive criminal history and multiple terms of incarceration, but the judge also concluded that the father "ha[d] not demonstrated an ability to live a stable, crime-free life when not incarcerated." Even if paroled before 2022, the judge found that the father's intention to live in a halfway house was not an appropriate environment for the child. The father proposed only the paternal grandmother as an alternative placement option for the child, despite her already being denied by the department as a viable placement due to her own criminal history, which included drug charges.
Finally, the judge concluded that the mother's and the father's parental shortcomings were likely to continue undiminished into the future. , This appeal followed.
Due to the child's connection with both the mother and the father, the judge ordered posttermination and postadoption visits allowing limited contact. Neither parent appeals from this portion of the decrees.
The judge also noted that the child needed a caretaker able to work cooperatively with service providers, and also able to ensure that the child would receive ongoing individual counseling for behavioral issues.
Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of the evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). We give substantial deference to the judge's subsidiary findings, which we do not disturb unless they are clearly erroneous. See id. at 606-607. "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). The judge must determine "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 Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
1. The mother. The mother argues that the department's evidence failed to show that her issues -- and in particular, her substance abuse -- had any significant impact on her parenting of the child, and accordingly that there was insufficient evidence to support termination of her parental rights. The mother also argues that the judge erred when she declined to dismiss the case in the face of a stipulation of dismissal signed by all the parties.
We first address the judge's decision not to dismiss the case in May of 2018, when presented with the signed stipulation of dismissal. There is considerable force to the argument that this was error, as all parties who had appeared in the action had stipulated to the dismissal, including the child. Contrast Care & Protection of Benjamin, 403 Mass. 24, 26 (1988) (father as party allowed to continue care and protection matter after department as proponent of petition dropped out). Where all parties to a litigation agree to dismiss a case, there is no adversary process remaining, and thus, nothing to litigate. Indeed, under the Massachusetts Rules of Civil Procedure the stipulation of dismissal is effective, and "[a]pproval of the court is not required ...." Tuite & Sons, Inc. v. Shawmut Bank, N.A., 43 Mass. App. Ct. 751, 755 (1997). While it is not clear that the Rules of Civil Procedure apply directly to this action, they at least "may well be accepted as a cogent standard" (quotation and citation omitted). Guardianship of Phelan, 76 Mass. App. Ct. 742, 753 (2010).
The Massachusetts Rules of Civil Procedure state explicitly that they govern "the Juvenile Court in proceedings seeking equitable relief." Mass. R. Civ. P. 1, as amended, 474 Mass. 1402 (2016). Nevertheless, case law suggests that the Rules of Civil Procedure may not apply directly to a care and protection proceeding. See Care & Protection of Richard, 456 Mass. 1002, 1002 n.3 (2010) ; Guardianship of Phelan, 76 Mass. App. Ct. at 753.
We need not decide the issue, however, because here any error was harmless under the circumstances, where almost immediately after the hearing additional facts came to light that would have caused the department to refile a petition for care and protection. See Adoption of Sherry, 435 Mass. 331, 336 (2001) (although judge made erroneous findings judgment not dismissed "when error did not affect the outcome"). Had the judge accepted the parties’ stipulation of dismissal, the petition would have been dismissed without prejudice. The department specifically advised the judge that it would continue to work with the family, and as noted, it also stated that it would refile the petition if further adverse information was reported. As it happened, less than two weeks later (on May 31, 2018) the department learned about the police response in March 2018 for an overdose at the mother's home. In addition, shortly thereafter, the department discovered that the mother had twice tested positive for fentanyl (on May 8 and June 26, 2018), and that she had demanded the testing facility delete the June positive urine screen from her record. This information prompted the child's removal on July 3, 2018, for the second time. Had the case been dismissed in May 2018 as requested, the subsequent discoveries by the department undoubtedly would have prompted the refiling of the care and protection petition. Moreover, the events that occurred or that came to light after the May 18 hearing supported the judge's findings of unfitness, and the judge's determination to terminate the parents’ respective rights. Under the circumstances, the refusal to dismiss the case was harmless error.
Next, the judge's finding of unfitness was warranted by the evidence, which established that "the mother's unfitness resulted from a ‘constellation of factors.’ " Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting Adoption of Greta, 431 Mass. 577, 588 (2000). The termination of the mother's parental rights was in the child's best interests based on consideration of the mother's "ability, capacity, fitness and readiness ... to assume parental responsibility." G. L. c. 210, § 3 (c ). See Adoption of Nancy, 443 Mass. 512, 515-516 (2005).
The mother challenges a handful of the judge's 416 factual findings, but her challenges are unavailing. The facts the mother contests do not go to the heart of the judge's unfitness finding. For example, the mother challenges finding number 397, which states that the mother failed to bring the child to an ear, nose, and throat specialist, and also failed to "consistently ... transport [the child] to therapy." Regardless of whether these findings were in error (and we are not convinced that they were), they do not address the critical findings discussed supra, that the judge determined were sufficient to demonstrate her unfitness. See Adoption of Helen, 429 Mass. 856, 860 (1999) ("although the judge's findings on these points may have been erroneous, the judge's over-all conclusion of parental unfitness is fully supported by the record"). Those critical findings include in particular the mother's persistent drug use and the fact that it had resulted in neglect of the child in the past, her inability to understand or to appropriately address her shortcomings, and her inability to consistently attend visitations or to arrive timely and not under the influence. We give substantial deference to the judge's findings, which we will not disturb unless they are clearly erroneous. See Adoption of Jacques, 82 Mass. App. Ct. at 606. "In effect, the mother's arguments [as to the specific findings] amount to dissatisfaction with ... the judge's assessment of the weight of the evidence and the credibility of the witnesses." Adoption of Jacob, 99 Mass. App. Ct. 258, 266 (2021).
Finally, the judge did not shift the burden to the mother to prove fitness. Through testimony and documentary evidence the department met its burden of proving at trial "by at least a fair preponderance of the evidence" the mother's current unfitness. Adoption of Oren, 96 Mass. App. Ct. at 844. The judge's subsidiary findings were amply supported by the record, and sufficient to establish clearly and convincingly that termination of the mother's parental rights was in the child's best interests. Id.
As required, the judge considered the factors set out in G. L. c. 210, § 3 (c ), and found factors (ii), (iii), (iv), (vi), (vii), (viii), (x), and (xii) applicable to both parents.
2. The father. The father argues that the judge relied on stale evidence pertaining to his mental health and substance abuse issues in finding him currently unfit, and impermissibly based the decision to terminate his parental rights solely on his current incarceration. He also argues that the judge abused her discretion in approving the department's permanency plan over his proposed plan to place the child with the paternal grandmother. The father's arguments also fail.
First, the judge was permitted to consider the father's prior issues with substance abuse. "Although ‘stale information cannot be the basis for a finding of current parental unfitness[,] ... [p]rior history ... has prognostic value.’ " Adoption of Jacques, 82 Mass. App. Ct. at 607, quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). While acknowledging the father's participation in methadone treatment, the judge also noted that the father was arrested for drug distribution while participating in that treatment, and that the father had "never shown himself to be capable of living a crime-free life." The judge's findings established a nexus between the father's inability to extricate himself from a culture of drug use and distribution and his inability to adequately parent the child. Although the judge touched on the father's history of mental health issues, she specifically indicated in her conclusions of law that she did not rely on the father's mental health status to determine his unfitness.
Second, the judge was permitted to consider as one of several factors the father's lengthy criminal history dating back to 1992, much of which was intertwined with illegal drug use and distribution. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002) ("Evidence of the father's criminal record, to the extent that it had a bearing on his fitness as a parent, is germane in care and protection proceedings"). The father's arrest in 2015 after the police raid at the mother's home and while the child was present, which resulted in the father's conviction and current incarceration, was especially pertinent to his fitness to parent.
In addition, the judge was permitted to rely on the father's unavailability to parent in finding him unfit and terminating his rights. "Physical unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, [is] relevant evidence of unfitness." Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001). The father's incarceration in 2016 was not an isolated event but was part of a pattern of frequent incarcerations and subsequent unavailability that is not in the child's best interests. "It is in the best interests of [the child] to have ‘parents’ who can and who will, on a consistent, longterm basis ... provide [the child] with ... stable and continuous care and nurturing...." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). Given the father's history and inability or unwillingness to separate himself from criminal activity (especially involving illegal drugs), there was a sound basis for the judge's conclusion that the father's "shortcomings [would] continue into the future with an attendant harmful effect on the child."
Third, the judge did not abuse her discretion in adopting the department's permanency plan over the father's proposal of placement with the paternal grandmother, a placement that the department had previously declined due to the paternal grandmother's criminal history involving drug charges. The judge, as required, considered both the department's written permanency plan and the father's proposed nomination of the paternal grandmother, before determining that the department's plan was in the child's best interests. See Adoption of Hugo, 428 Mass. 219, 225-226 (1998), cert. denied, 526 U.S. 1034 (1999). See also G. L. c. 210, § 3 (c ). Because the child had no needs requiring specialized placement, the department's 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, 771 (2019). There was no error.
At the time of trial, the department was considering the child's placement and adoption by the maternal grandmother. As indicated by the child's motion to strike, in March 2021 he began living with the maternal grandmother in Florida, and has adjusted well to his new home environment. See note 2, supra.
Decrees affirmed.