Opinion
No. 11–P–620.
2012-06-19
Care and Protection of YVONNE.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the judgment of a Juvenile Court judge finding her unavailable to further the best interests of her minor child and granting permanent custody of the child to the father; the mother's parental rights were not terminated.
The mother argues that the judge's findings were not supported by clear and convincing evidence and that, in finding the mother unavailable, the judge went beyond the scope of the Department of Children and Families' (DCF) petition. We affirm.
The father has filed his brief jointly with the child asking this court to affirm the granting of permanent custody in his favor.
The mother first argues that the judge's finding that she was unavailable to parent was not supported by “a clear rationale.”
See Care & Protection of Erin, 443 Mass. 567, 568 n. 2 (2005) (finding of unavailability is equivalent to a finding of unfitness). She maintains that she was “completely ‘available,’ “ provided excellent care for the child while she was in her custody, was having regular unsupervised visits for an extended period of time, and complying with her service plan tasks. She argues that the child was not in her care at the time of her admitted drug and alcohol relapses. We accord substantial deference to the judge's assessment of credibility of the witnesses and the weight given to the evidence presented. Adoption of Peggy, 436 Mass. 690, 702 (2002). In addition, “[t]he judge's findings must be left undisturbed absent a showing that they are clearly erroneous.” Adoption of Greta, 431 Mass. 577, 587 (2000).
The mother fails to dispute any of the judge's 233 specific findings that support the judge's conclusion that the mother's “grievous shortcomings place [the child]'s welfare at risk.”
Here, as evidenced by her detailed and thoughtful findings, the judge provided an “even-handed, proper assessment of all the facts” and circumstances present in this case. Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 22 Mass.App.Ct. 62, 69 (1986). Among other things, the judge found that the mother “was previously involved with [DCF] regarding ... two older children who are no longer in her care.”
She has a long history of alcohol and drug abuse and tested positive for cocaine while pregnant with the child. Although the mother sought treatment in an inpatient program for her substance abuse after the child was born, she was terminated from the program for relapsing, and afterwards, did not seek either a day or inpatient program to replace it. She admittedly has suffered repeated relapses since the child's birth, and the child has more than once been found in her care when she was intoxicated. Taken together, these findings support the judge's determination of current unfitness and likelihood of harm to the child. Contrast Adoption of Ramona, 61 Mass.App.Ct. 260, 264 (2004). The judge is “not bound to wait for a disaster to happen” in determining the child was in need of care and protection. Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
The judge stated that she “did not take into consideration any issues regarding Mother's other children in reaching the merits of this case.”
In contrast, the judge found that the father complied with his DCF service plan, including attending a twelve-week fatherhood program. He also successfully completed recommended substance abuse evaluation, including individual therapy; his evaluation indicated no active abuse. “The judge found that there have been no protective concerns since [the child] was placed in Father's custody” in February, 2010; DCF supports continued custody by the father.
The judge appropriately “consider[ed] the best interests of the child [ ] in regard to each parent separately.” Adoption of Willow, 433 Mass. 636, 650 (2001). The child had a close relationship with her father; she was well cared for while in his custody and there were no safety concerns regarding her placement with him. The evidence clearly supports placing the child with her father after finding the previous caretaker, her mother, was currently unfit to parent her.
The mother also argues that the father, not DCF, was seeking to have the mother found unfit; therefore, she maintains, the judge should have deferred to the Probate and Family Court where an action was pending at the same time. To the contrary, DCF initiated the care and protection petition with regard to both parents, and did not abandon the petition as the mother claims. Counsel for DCF actively participated in the trial, asserting that the mother was currently unfit to parent. Even had DCF not taken that position, the father was entitled to pursue the case. See G.L. c. 119, § 24; Care & Protection of Benjamin, 403 Mass. 24, 26 (1988) (“Section 24 provides that ‘any person’ may allege the need for care and protection on behalf of a child. Implicitly, that section authorizes a person who commences such a proceeding to prosecute it.... Without deciding whether a mere volunteer could properly maintain such a proceeding, we readily conclude that a child's father ... may do so”).
We see no error.
Judgment affirmed.