Opinion
No. 11–P–1632.
2012-05-23
ADOPTION OF QUINTA.
By the Court (GREEN, GRAINGER & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Quinta's mother appeals from a decree adjudicating Quinta in need of care and protection and terminating the mother's parental rights. We affirm.
Quinta's father is not a party to this action.
The mother argues that the Department of Children and Families (DCF) failed to prove her parental unfitness by clear and convincing evidence because the judge relied on stale evidence and on the mother's poverty and her resulting inability to access services. We disagree, since the evidence at trial supported the judge's subsidiary findings of fact that the mother neglected Quinta on numerous occasions, exposed her to domestic abuse, left her in the care of a level 3 sex offender, and failed to recognize her own deficiencies or to take advantage of services to improve her parenting.
When DCF seeks to terminate parental rights, the evidence must clearly and convincingly prove “that the parents are currently unfit to provide for the welfare and best interests of [the child].” Adoption of Quentin, 424 Mass. 882, 886 (1997). Subsidiary factual findings need only be supported by a preponderance of the evidence, and, as “taken together,” they must demonstrate parental unfitness “by clear and convincing evidence.” Care & Protection of Laura, 414 Mass. 788, 793 (1993). Those findings will not be disturbed unless clearly erroneous. Custody of Eleanor, 414 Mass. 795, 799 (1993). A number of factors can contribute to a finding of unfitness, including “a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). The mother claims that the judge based her finding on stale evidence because she relied on a parenting evaluation prepared one year before the date of trial. “A judge whose order will have the effect of irreversibly terminating the legal parent-child relationship must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child who is the subject of the petition.” Adoption of Paula, 420 Mass. 716, 731 (1995). Evidence of past behavior can be stale and not useful to predict future unfitness if the parent's circumstances have changed. See Adoption of Linus, 73 Mass.App.Ct. 815, 820 (2009) (“the passage of four years is too long a period to rely on the predictive value of past behavior without verification”). However, Dr. Darsney's evaluation was only one year old, and she had interviewed the mother less than two years prior to trial. The judge was entitled to credit Dr. Darsney's parenting evaluation and testimony. “The judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.” Custody of Two Minors, 396 Mass. 610, 618 (1986). In addition, at the time of trial the mother's circumstances remained the same in many respects. She remained unwilling or unable to utilize services, to maintain stable employment, or to acknowledge how her behaviors contributed to Quinta's removal from her care. Therefore, this was not a case where changed circumstances rendered old evidence unreliable. Cf. Adoption of Linus, 73 Mass.App.Ct. at 820–821.
The mother also claims that the judge inappropriately based her conclusions, in part, on the mother's poverty. “A finding of unfitness may not be based on a parent's financial condition,” Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 n.19 (1987), and “the State may not deprive parents of the custody of their children merely because they are poor.” Custody of a Minor, 389 Mass. 755, 766 (1983). However, the inability to maintain some financial stability is a relevant consideration. Petitions of the Dept. of Social Servs., 399 Mass. at 289 n.19. Therefore, it was not inappropriate for the judge to consider issues such as the mother's inability to maintain health insurance, employment, and stable housing on a consistent basis. In addition, while we recognize that the mother's financial circumstances may have made it difficult to comply with tasks such as calling to cancel visits with her daughter, her financial circumstances do not excuse the series of parenting deficiencies that the judge detailed in her findings.
For example, the judge found that the mother exposed Quinta to domestic violence, and that she had a pattern of engaging in abusive relationships. A child who is exposed to domestic abuse “suffers a distinctly grievous kind of harm.” Custody of Vaughn, 422 Mass. 590, 595 (1996). The fact that the mother is not currently and has not recently been in an abusive relationship is positive and important. However, this development is not sufficient to overcome a finding of unfitness in light of the mother's other deficiencies, including in particular her continuing inability at the time of trial to recognize or acknowledge those deficiencies or her responsibility for them.
In addition, the judge found that DCF had prescribed a series of service plans for the mother, designed to assist her in improving her parenting skills. In making an unfitness determination, the judge is “entitled to focus on the consistent inability or unwillingness of the parents to cooperate with service plans.” Custody of Michel, 28 Mass.App.Ct. 260, 270 (1990). The judge found that the mother consistently failed to comply with the tasks identified in her service plans, failed to recognize her need for help with her parenting skills, and failed to take advantage of services that DCF recommended to help her improve her parenting.
In light of the mother's continuing inability or unwillingness to recognize her failure to meet Quinta's needs, her inability to understand how her behavior contributed to Quinta's removal, and her lack of participation in services to improve her parenting, we discern no cause to disturb the decree.
Decree affirmed.