Opinion
No. 11–P–1953.
2012-06-21
ADOPTION OF WENDY. ,
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals the termination of her parental rights, alleging that the trial judge erred in (1) finding the mother unfit without clear and convincing evidence; (2) admitting inadmissible expert testimony; (3) waiving Max's patient-psychotherapist privilege, see note 2, supra; and (4) failing to order postadoption sibling visitation.
Deciding as we do, we find the latter two of the mother's arguments to be irrelevant and moot. First, we find that the mother has no standing to contest Max's rights. Even if permissible, the mother has not shown how that testimony applies to the mother's parental rights with respect to Wendy. Secondly, as of March 14, 2012, the sibling visitation issue was corrected by the trial court judge. We conclude that the trial judge properly detailed the parameters surrounding the sibling visitation schedule and, therefore, deem the issue moot.
I. Background. On November 3, 2009, a care and protection petition was filed on behalf of Max and Wendy after the mother and her boyfriend engaged in a verbal and physical altercation when Max was present. The mother was found intoxicated and arrested at the scene for assaulting a police officer and disturbing the peace. At the initial temporary custody hearing, the mother stipulated to being unfit. Thereafter, for nine months, the mother successfully complied with her service plans. However, after the mother's arrest in 2010 for larceny and drug possession, the Department of Children and Families (department) changed the plan for the children from reunification to adoption. On May 6, 2011, the trial court judge found that Wendy was in need of care and protection and that it was in her best interest to terminate the mother's parental rights.
However, because the department had not identified a preadoptive placement for Max, the judge found that it was not in Max's best interest to terminate the mother's parental rights. A decision to terminate parental rights calls for a two-step analysis. See G.L.c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). First, the judge must find, by clear and convincing evidence, that the parent is unfit. Id. at 514–515. Second, if parental unfitness is established, a judge must then determine whether the termination of parental rights serves the best interest of the child. Ibid.
Crediting the importance of the mother's role in Wendy's life, the judge ordered supervised visitation three times per year.
As noted above, the mother argues that the judge's finding that she was unfit was not supported by clear and convincing evidence. We disagree.
“[T]he central judgment does not concern the [the mother's] merits or demerits, but whether, in all the circumstances (including consideration of those merits or demerits), [she] has the capacity to act as a fit parent.” Adoption of Nicole, 40 Mass.App.Ct. 259, 262 (1996).
The record reflects that there was ample evidence to support the judge's finding of unfitness. A finding of unfitness requires the judge to determine that the parent's deficiencies “place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). The judge concluded that the mother's inconsistent efforts to seek treatment for her mental health issues, her history of substance abuse and her then current relapse, her inability or unwillingness to remove herself from relationships involving domestic violence,
and her inability to provide a stable home affected her capacity to assume parental responsibility.
Both children were continuously exposed to domestic violence while in the mother's care. On one such occasion, Wendy was burned several times by a cigarette after the mother got into a physical altercation with an acquaintance and fled the apartment, leaving Wendy alone with the acquaintance.
Here, there were no allegations of abuse of either child by the mother.
The trial judge credited the mother's nine-month compliance with her service plan and the initiative the mother took to find placement within the suggested programs. See Adoption of Paula, 420 Mass. 716, 731 (1995) (judge bound to consider recent positive gains, along with evidence of a likelihood of genuine improvement in the parent's situation). However, in evaluating the totality of all the evidence before her, the trial judge could properly find that the mother was unfit.
The mother's reliance on Adoption of Zoltan, 71 Mass.App.Ct. 185 (2008), and Adoption of Imelda, 72 Mass.App.Ct. 354 (2008), are misplaced.
“The judge [may] properly rely upon prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining current unfitness.” Adoption of Diane, 400 Mass. 196, 204 (1987). Care & Protection of Frank, 409 Mass. 492, 495 (1991) (parent's criminal record may be considered as it bears on the issue of fitness). After August, 2010, the mother refused to submit to drug screenings. In January, 2011, the mother was voluntarily hospitalized for two to three weeks during which she tested positive for cocaine. The mother has refused to seek treatment, attend follow-up appointments with her psychiatrist, or to take her medication. Furthermore, after the mother's second arrest and two-week incarceration, her willingness to work with the department and spend quality time with Wendy deteriorated. The mother failed to disclose her relationship with a new man. During a visit with Wendy, she brought the man, claiming that he was Wendy's uncle, which the trial judge explicitly discredited.
The mother attempts to mischaracterize the findings of the trial judge by arguing that the judge erroneously relied on exhibit 17 to conclude that the mother relapsed on drugs. Contrary to the mother's contention, exhibit 17 does in fact state that the “[mother] has discussed her recent relapse in incarceration with the Department at length.” Furthermore, exhibit 25 shows that the mother, as of January, 2011, was found with illegal narcotics in her system. The judge was correct to conclude that the mother had relapsed.
There was sufficient evidence to find that the mother was unfit and that it would be in Wendy's best interest to terminate the mother's parental rights.
The trial judge considered, for example, Wendy's placement with her paternal grandmother and the progress she made as a result of the stable environment the grandmother provided.
II. Expert testimony. The mother's contention that the department experts relied on inadmissible evidence when forming their opinion is unavailing. “It is established that an expert may ‘base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider formulating an opinion.’ “ Adoption of Seth, 29 Mass.App.Ct. 343, 352 (1990), quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). The testimony of Janice Stubelefield–Tave was predicated on her communications with the department's social worker, the mother, Wendy's day care provider, and Wendy. To the extent that the mother believed that the testimony of the experts was of a “mixed foundation” of admissible and inadmissible evidence, “the recommended approach would [have been] for the mother's counsel to request a voir dire.” Adoption of Seth, 29 Mass.App.Ct. at 353. This option was neither requested nor utilized.
Decree affirmed.