Opinion
No. 12–P–445.
2012-11-29
Adoption of REDMOND.
By the Court (CYPHER, GRAINGER & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and father of Redmond, age one and one-half years at the time of trial, appeal from decrees of a judge of the Juvenile Court terminating their parental rights. The mother claims that her recent improvement in an intensive drug treatment program renders her fit to parent Redmond, and that it is in the child's best interest that she do so. The father maintains that certain factual findings regarding his capabilities as a parent were clearly erroneous. Both parents challenge the judge's finding that the child has special needs. We affirm.
Discussion. In order to terminate parental rights and dispense with parental consent to adoption, a 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. Adoption of Peggy, 436 Mass. 690, 701 (2002). “Subsidiary findings must be proved by a fair preponderance of the evidence.” Ibid. In making this best interests determination, “a [judge] shall consider the ability, capacity, fitness and readiness of the child's parents ... to assume parental responsibility.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G.L. c. 210, § 3( c ). Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference. See Adoption of Don, 435 Mass. 158, 165 (2001); Petitions of the Dept. of Soc. Servs. to Dispense with Consent to Adoption, 18 Mass.App.Ct. 120, 127–128 (1984); Adoption of Jacques, 82 Mass.App.Ct. 601, 606–607 (2012). a. Termination of the mother's parental rights. The record supports the following findings made by the judge. The mother was repeatedly sexually abused while a child, an adolescent, and later as an adult, by various adults in her life. She began drinking and using drugs at the age of fifteen, and continued to do so at all times material to this proceeding, except those periods of time when she was incarcerated or in a treatment program. As of the time of trial, the mother had an extensive history of substance abuse, and her longest period of sobriety had been nine months.
The mother also had a lengthy criminal record. She has been incarcerated numerous times, had multiple drug charges as of the date of trial, and was on probation. Two additional cases involved trafficking in controlled substances, and were later resolved with a term of two years' probation. Redmond was born while the mother was incarcerated.
As a result, the mother had not had custody of Redmond at any time in his life; the longest time that Redmond had spent with either parent was four days. The mother's oldest child was in the custody of her aunt. Two of her children had been born addicted to methadone, and required detoxification at birth.
In April of 2010, after reoffending and facing the threat of reincarceration, the mother entered a residential rehabilitation program. There is record evidence that she has made progress while in that facility and has remained sober while there. Her infant son Joel, who shares the same father as Redmond, was born while the mother was in residential treatment. Although she had abused cocaine, opiates, and benzodiazepine during the early stages of pregnancy, she ceased using drugs after entry into the program. Joel had spent the period since birth in a neonatal intensive care unit undergoing treatment for methadone withdrawal, and was anticipated to leave intensive care and join his mother in the treatment center. At the time of trial the mother had not cared for any of her children for a sustained period of time while maintaining sobriety.
The mother claims error with respect to the judge's finding that her recent progress in treatment came too late to warrant further efforts at reunification. The judge based this finding on the fact that the mother had made “no progress” in the first year of Redmond's life when she had participated in some treatment programs, but relapsed and reoffended. The mother points out that she has achieved nine months of sobriety and participated in treatment while at the residential center. The judge found that the mother had made recent progress, and that the mother was hopeful for the future. She also found the mother's efforts “commendable.” However, past patterns of ongoing, repeated, and serious misconduct that would place a child at risk may be considered in determining a parent's present and future ability to care for a child. See Custody of Two Minors, 396 Mass. 610, 620 (1986). In light of the evidence regarding the mother's prior substance abuse, relapses, and criminal activity, which continued after Redmond's birth, the judge's finding that this improvement came “too late and is too uncertain in prognosis” was not clearly erroneous.
The mother also makes a subsidiary argument that the finding that Redmond would suffer psychological harm if removed from his current foster home is clearly erroneous. The evidence supports this finding. Redmond has been in the care of his preadoptive mother since May 16, 2010, a substantial period of his life. He is loving and affectionate toward her, and has formed a secure attachment to her. He has never been in the care of his mother and has difficulty in separating from his foster mother when visiting the mother.
While it is true that the Department of Children and Families (department) must make reasonable efforts to reunite children with their parents, those efforts were made here. The goal was changed to adoption from reunification only after the mother relapsed and recidivated again in March of 2010. The circumstances of the mother's life have been tragic, and her difficulties are understandable, but the judge did not err in deciding that the best interests of the child warranted termination of the mother's parental rights.
b. Termination of the father's parental rights. Redmond has not lived with his father since birth and has had only occasional visits with him. The father had used drugs and alcohol in the past, but testified that he has not used them in fifteen years. However, he still maintains his friendships with addicts and continued to see them when the mother was struggling with her addiction. He has a lengthy criminal record, and was incarcerated from ages twenty-seven to thirty-five. He was also arrested on trafficking and distribution charges in June of 2009, to which he pleaded guilty and was placed on five years' probation. Although he maintained at trial that he no longer uses drugs or engages in criminal activity, he has not been able to care for Redmond himself, formulate a plan for his care, or to provide a home for him. In response to this somewhat chaotic situation, the department had provided the father with a service plan with a goal of reunification. The department required him to (1) attend counselling, (2) engage in a parenting evaluation, (3) secure stable housing, and (4) be on time for visits with Redmond. The judge found that he had not complied with these terms. The father challenges these findings.
The father testified that, as of March 2010, he was not attending counseling which was required by his service plan. He further testified that he was not taking a parenting class and that he told his department worker in June, 2010, that he was not going to follow through with his service plan.
The judge's findings as to these factors were not clearly erroneous.
Although his service plan required him to be on time to see Redmond, he was often late. This constituted a separate violation of the service plan. While this violation alone would not suffice to terminate parental rights, the judge could take it into consideration in assessing the father's overall compliance and reliability.
The father also contends that the findings that he is unable to secure a stable living environment and residence are contrary to the evidence, and that the judge improperly used his instability as a euphemism for homelessness and poverty. He is correct that neither homelessness nor poverty alone are bases for a finding of unfitness. See Custody of a Minor, 389 Mass. 755, 766 (1983); Petitions of the Dept. of Soc. Servs., 399 Mass. 279, 289 n. 19 (1987). See also 110 Code Mass. Regs. § 1.11 (2008). However, the father also testified that he had sufficient cash on hand to pay several months' rent in advance. The transient nature of the father's living arrangements thus cannot be attributed to poverty. Here, the evidence was that the father moved numerous times in Massachusetts and Rhode Island, at times living in hotels, with relatives, or in various apartments.
He testified at trial that he and Redmond could stay with one of his sisters, but had told the department the month before that he had no place to stay and no job as of August, 2010.
For example, the father told the department that he left the Worcester apartment because the landlady did not like the people who were coming to the apartment and had concerns about his CORI. In light of the mother's testimony that he continued to associate with addicts, the judge's crediting the landlady's reasons for ending the rental relationship were appropriate. In addition, the father told the department that he did not rent an apartment in Providence because it was in an attic and was not modern enough.
The failure to maintain a stable living arrangement or to maintain financial stability are proper considerations in an unfitness determination. Petitions of the Dept. of Soc. Servs., 399 Mass. at 289;Adoption of Vito, 431 Mass. 550, 555 (2000).
The department contacted both of the father's sisters as potential adoptive parents. Neither responded, and the younger sister died mid-trial.
To the extent the father attacks the finding that some of his money was ill-gotten, the judge did not base her finding of unfitness on that subsidiary finding. Moreover, the father admitted at trial that some of his income came from jewelry he purchased with the proceeds of former drug dealing.
Finally, the father contends that the judge failed to consider his strengths, and ignored “troublesome facts” that supported his position. It was within the judge's discretion to weigh the evidence, Adoption of Nancy, 443 Mass. 512, 515 (2005), and we find no error on that basis.
c. Special needs. Both the father and mother challenge the judge's finding that Redmond had significant special needs, and therefore suggest that the ultimate finding of parental unfitness, to the extent that it relied on this finding, is erroneous. Because he had been born addicted to methadone, Redmond received early intervention services to assist in the detoxification process. In addition, he suffered from irritability and gastrointestinal distress, and his prior foster parents had received special training in massage techniques to calm him. The evidence at trial was that Redmond had a sensory integration problem that caused him to self-stimulate by head banging. He also had a mild expressive language delay, and had been taught some sign language to assist in communication and reduce frustration. However, all tests were within the normal range. The judge found that the head banging had improved with therapy, and that continued stability and consistency would benefit Redmond, a highly active child.
We agree with the mother and father that the record does not support a finding of “special needs” as that term is used in the context of a professional assessment of special needs. The child was not found to be a child with special needs by the department, which declined to provide additional special needs funding to the previous foster care placement. However, the record amply demonstrates that Redmond, due to the circumstances of his birth, his history of multiple placements, and his sensory integration issues, is a child who requires significant individual attention, stability, and consistency. In that respect, the judge's findings are not clearly erroneous, and the judge was entitled to take those facts into consideration. Notably, however, she did not base her ultimate conclusion of parental unfitness on “special needs,” but instead on the conduct of the parents, and the extent to which this conduct necessitated the determination that termination of parental rights was in the best interest of Redmond under the statute. Any use or misuse of the term “special needs” was therefore not material to the ultimate determination.
Conclusion. One additional observation is in order. Both the mother and father have shown evident affection toward Redmond, 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. A judge may find that a mother and father love and provide for their child to the best of their ability, but nonetheless reach the conclusion that the best interests of the child warrant termination of parental rights. This is the case here.
Decrees affirmed.