Opinion
21-P-192
10-07-2021
ADOPTION OF TONYA. [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
The mother appeals from a decree terminating her parental rights as to her youngest child, Tonya (child) .' The mother contends that the Juvenile Court judge relied on stale information and hearsay and that the evidence did not establish clearly and convincingly her unfitness to parent the child. We affirm.
The mother also appealed from the trial judge's order denying her motion for relief from the judgment, but she has not made any appellate argument regarding the denial of that motion. The father participated in the trial, and his parental rights to the child were also terminated. He is not a party to this appeal.
Although this matter began in 2014 with a care and protection petition that included the child and all three of her older siblings, the termination trial at issue here, conducted on nonconsecutive days in 2018 and 2019, concerned only the child; at the time of the trial, two of the child's three siblings had reached their majority and the third was in the temporary custody of the Department of Children and Families, and was later returned to the custody of the mother.
Legal standard.
Parents have a "fundamental liberty interest ... in the care, custody, and management of their child[ren]." Santosky v. Kramer, 455 U.S. 745, 753 (1982). See Commonwealth v. Dorvil, 472 Mass. 1, 8-9 (2015). "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 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). See Adoption of Ilian, 91 Mass.App.Ct. 727, 729 (2017) (same). Additionally, the judge must find that the current unfitness "is not a temporary condition." Adoption of Virgil, 93 Mass.App.Ct. 298, 301 (2018). In making this determination, the judge must take into account the parent's abilities to provide for the child's particular needs, see Adoption of Mary, 414 Mass. 705, 711 (1993), and "may consider past conduct to predict future ability and performance." Adoption of Jacob, 99 Mass.App.Ct. 258, 262 (2021), quoting Adoption of Katharine, 42 Mass. app. Ct. 25, 32-33 (1997).
On appeal, we defer to the judge's assessments of the weight and credibility of the evidence, Adoption of Elena, 446 Mass. 24, 31 (2006), disturbing the judge's findings only where they are clearly erroneous. Adoption of Zak, 87 Mass.App.Ct. 540, 542 (2015). We review the judge's application of the law to the facts for clear error or other abuse of discretion. Adoption of Elena, supra at 30.
Discussion.
The judge made 214 findings of fact that demonstrate "close attention has been given the evidence" and that amply satisfy the requirement that the findings supporting his decision be "specific and detailed." Adoption of Gregory, 434 Mass. 117, 126 (2001). We accept the uncontested majority of those findings as true. See Custody of Eleanor, 414 Mass. 795, 799 (1993). The mother disputes only the judge's findings related to her substance abuse and its impact on the children.
1. Evidence of mother's history with department.
On appeal, the mother contends that the judge erred by relying on evidence consisting of or incorporating information taken from records of the mother's entire history with the Department of Children and Families (department). In doing so, she argues that the department's evidence included "stale" information about her long-term struggles with domestic violence, concerns about substance abuse in her home, and the judge's consideration of her inability to empathize with the child and one of the child's older siblings. Additionally, the mother challenges the testimony of the department's experts concerning the mother's substance abuse and history of domestic violence on the grounds that the testimony was based on unreliable hearsay, and she argues that the evidence failed to support the judge's conclusion that the mother was unfit.
a. Hearsay.
Assuming that this minimally-supported challenge rises to the level of appellate argument, see Adoption of Zak, 87 Mass.App.Ct. at 545 n.8, we reject it. "[F]irst-and second-level hearsay contained within [department] reports and official [department] records is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination, should the party challenging the evidence request to do so" (footnotes omitted). Adoption of Luc, 484 Mass. 139, 153 (2020). To the extent that the records at issue reported hearsay accounts of the mother's experiences with domestic violence, drug use, and her responses to the risks facing her children from those sources and their own behaviors, they adequately identified the sources of that information. The mother does not argue that she was not permitted to cross-examine those sources; rather, her challenges are to the judge's assessment of the weight and credibility of those accounts. As we have noted, those assessments are within the judge's discretion. See Adoption of Elena, 446 Mass. at 30-31.
b. Staleness.
We are likewise unpersuaded that the judge's consideration of the department's evidence extending, in some cases, back to the years before the child was born was improper; the judge was entitled to rely on those records of the mother's past conduct as predictors of the mother's future ability to parent the child. See Adoption of Yvonne, 99 Mass.App.Ct. 574, 579 (2021), quoting Adoption of Katharine, 42 Mass.App.Ct. at 33 ("judge may consider past conduct to predict future ability and performance"). We consider the areas of concern that the mother highlights on appeal.
i. Domestic violence.
The mother does not dispute that she witnessed physical abuse in her home as a child, and later, as an adult, became the victim of abuse at the hands of a series of men, including three of the four fathers of her children. She likewise does not claim that the judge erred in finding that her children were present at times when she was abused --including, notably, when the child's father broke the mother's jaw -- or that the children themselves were victims of that violence, as when one of the mother's partners broke the arm of one of her older children. During the pendency of the care and protection proceedings relating to the child, the mother continued to suffer from inadequately-explained injuries that the judge attributed to traumatic assaults. See Adoption of Larry, 434 Mass. 456, 469 (2001) (proper to consider past parental conduct in assessing current fitness, "especially where the evidence supported the continuing vitality of such conduct"). This "long-standing pattern" of domestic violence was "admissible as prognostic evidence of future unfitness and was within the purview of the judge to consider." Adoption of Jacques, 82 Mass.App.Ct. at 607-608. See Custody of Vaughan, 422 Mass. 590, 599 (1996) ("profound impact on children" of witnessing domestic violence). That evidence, and evidence that the mother acknowledged only some of the instances of violence in which she and her children were involved, was likewise admissible to show that despite her participation in some of the domestic violence services offered to her, the mother was unable to appreciate the risks posed to her children by her own involvement with abusive partners. See Adoption of Mary, 414 Mass. at 711. In short, the evidence was not limited to "[i]solated problems in the past or stale information," Adoption of Rhona, 57 Mass.App.Ct. 479, 487 (2003), S_.C. 63 Mass.App.Ct. 117 (2005), quoting Petitions of the Pep't of Social Servs. to Pispense with Consent to Adoption, 18 Mass.App.Ct. 12 0, 12 6 (1984), and the judge was within his discretion to consider "the mother's continued failure to address how domestic violence affected her parenting." Adoption of Yvonne, 99 Mass.App.Ct. at 579-580.
ii. Substance abuse.
While there was conflicting evidence on the question whether mother abused alcohol or other substances in a way that interfered with her ability to care for the child, the judge's findings that she did so were supported by the evidence as the judge, acting within his discretion, credited it. In addition to the testimony of court clinician Paul Hodlin, the department's records reflected ongoing concerns about the mother's substance use, particularly her use of alcohol, and it is undisputed that the mother had allowed drug use and even drug sales in the home before the child's birth.
Even if they were not so supported, however, we agree with the department that the evidence of the family's involvement with domestic violence, particularly when considered in combination with the judge's findings concerning the mother's inability to provide consistent housing and other support for the child's siblings, would mitigate very strongly in favor of affirming the decree. See Adoption of Daniel, 58 Mass.App.Ct. 195, 205 (2003) (affirming decree where admission of evidence, even if error, "did not prejudice the mother on the issue of her fitness").
We agree with the mother that in light of the department's concession at trial that the mother's service plans never included substance abuse treatment, the evidence did not support the judge's conclusion that the department made reasonable efforts to address this facet of the mother's needs. See Adoption of West, 97 Mass.App.Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002) (department "required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties") . Nonetheless, however, we conclude that that error does not require reversal.
As the department argues, the mother did not raise a reasonable efforts argument as to the issue of substance abuse at trial. "Although the mother . . . could have raised the issue more pointedly at trial," the department's failure to require more than intermittent urine screens in response to its concerns about the mother's substance abuse was a live issue. See Adoption of Chad, 94 Mass.App.Ct. 828, 839 n.20 (2019) . We decline to treat the issue as waived.
Even were we to assume that the mother would have taken advantage of the services -- a conclusion we view as speculative, given the mother's inconsistent track record of compliance with the department's efforts -- the strong evidence of the mother's inability to eliminate violence from her life and her lack of appreciation for its impact on her children leads us to conclude that the judge would have been within his discretion to conclude that termination of the mother's parental rights was in the child's best interests, regardless of the department's failure to use reasonable efforts to address the mother's alcohol use. See Adoption of Ilona, 459 Mass. at 61 ("even where the department has failed to meet [its] obligation, a trial judge must still rule in the child's best interest"). See Care & Protection of Walt, 478 Mass. 212, 220 (2017), citing G. L. c. 119, § 29C.
We pause to acknowledge that, as the mother points out, at the time of trial the department was in the process of reunifying the mother with one of the child's siblings. Given the absence of any evidence of the sibling's particular needs and circumstances, and the well-settled proposition that "[a] parent may be fit to raise one child but not another," Guardianship of Estelle, 70 Mass.App.Ct. 575, 581 (2007), we do not view the reunification of the child's sibling here as significant to our analysis.
iii. Lack of empathy.
To the extent that the judge's ultimate decisions rested on his findings about the mother's "lack of empathy" toward her children based on the child's older sibling's "acting out," it is plain from the judge's conclusions of law that he considered this as evidence that the mother "lacked insight regarding the effect domestic violence had on the children." The judge's findings and conclusions about the mother's misguided attempts to address the child's toileting concerns supported his determination that the mother lacked insight and judgment into the appropriate methods of identifying, prioritizing, and addressing the child's needs. There was no error in these findings, and no abuse of discretion in the judge's consideration of them as evidence of the mother's unfitness. See Adoption of Mary, 414 Mass. at 711; Adoption of Yvonne, 99 Mass.App.Ct. at 577-578.
It is worth noting that the conduct at issue included at least one extremely concerning incident in which the child's older sibling was hospitalized after slicing her wrists. The judge found that the mother minimized this conduct by accusing the sibling of "fak[ing] it" and discharging the sibling from the hospital against medical advice.
2. Child's bonding with foster mother.
There was no conflict in the evidence at trial of the mother's bond with the child, and the judge explicitly acknowledged that the bond the mother shares with the child is a "significant" one. It was not, however, the only bond the judge identified; he also found the then eight year old child had "a strong bond" with her foster mother, with whom she had lived since she was nineteen months old.
As we have often had occasion to emphasize, "[d]espite 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 children. The question for the judge is 'whether the parent's deficiencies "place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren]."'" Adoption of Lisette, 93 Mass.App.Ct. 284, 285 n.2 (2018), quoting Adoption of Olivette, 79 Mass.App.Ct. 141, 157 (2011).
Crediting the opinion of the child's expert witness, Dr. Virginia Merritt, that removing the child from her foster mother would cause "irreparable harm" comparable to the harm that would result from the death of a parent, and that the mother was not equipped to manage the needs of the child under those circumstances, the judge concluded that the evidence of the child's bonding mitigated in favor of termination of the mother's rights. We discern no error.
First, and contrary to the mother's contention, the judge did consider what would be required of the mother if the child were removed from the foster mother and returned to the mother, but determined that the mother lacked the "maturity, patience, and ability to listen and put [the child's] needs ahead of [her] own" required to address them. This was neither error nor an abuse of discretion. See Adoption of Melvin, 71 Mass.App.Ct. 706, 714 (2008) (affirming termination of parental rights where "the mother . . . simply did not have the insight and equipment necessary to deal successfully with the psychological trauma [the child] would suffer were the bond between him and his caretakers to be severed involuntarily").
Second, there was no error in the judge's reliance on Dr. Merritt's testimony, to the extent that he credited it. As the mother properly concedes, "[t]he admission of expert testimony is 'largely within the discretion of the trial judge.'" Adoption of Hugo, 428 Mass. 219, 232 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). Assuming that the mother's challenge to the foundation for Dr. Merritt's opinion was preserved at trial, we are not persuaded by the mother's argument that Dr. Merritt's opinion was too "speculative" to be a proper subject of the judge's consideration. Given that the child had been in the foster mother's exclusive care since she was a toddler, it is not surprising that Dr. Merritt relied on her professional experience, and not the child's past conduct, in predicting the likely impact of removing the child from her long-term foster placement.
We also reject the intimation that the judge simply rubber-stamped Dr. Merritt's opinion while ignoring that of the mother's expert, Dr. Dante Spetter. To the extent that the judge did not mention Dr. Spetter's remaining opinions, particularly those relating to the child's best interests and the mother's and child's ability to navigate the child's removal from the foster home and return to the mother's care, we note that the experts reached opposite conclusions on those issues. We infer that the judge's explicit endorsement of one opinion reflected his rejection of the other. We do not discern in the judge's decision an abdication of his obligation to wrestle with "[t]roublesome facts." Adoption of Leland, 65 Mass.App.Ct. 580, 583 (2006), quoting Adoption of Stuart, 39 Mass.App.Ct. 380, 382 (1995) .
Conclusion.
We affirm the decree and the order denying the mother's motion for relief from judgment.
So ordered.
Green, C.J., Singh & Hand, JJ.
The panelists are listed in order of seniority.