Opinion
11-P-1063
12-12-2011
ADOPTION OF ZITELLA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the termination of her parental rights by a judge of the Juvenile Court. For the reasons set forth in the judge's detailed decision, we affirm.
The father stipulated to his unfitness to parent, and is not involved in these proceedings.
Background. A cursory review of the evidence demonstrates that the mother's appeal, essentially based on an assertion of insufficient evidence, has little basis. The judge found the following: the mother suffers from depression and has been on a prescribed regimen of Prozac for more than ten years. Her four older children were the subjects of care and protection proceedings, all of which ended in the mother's loss of parental rights.
The mother has a record of approximately a dozen convictions for various criminal acts including drug possession, threats, breaking and entering, shoplifting and malicious destruction of property, and has been incarcerated at various times. These convictions span the time period between January of 2005 and March of 2010. Two restraining orders were issued against the mother; these date back to 2000 and 2004.
The mother has struggled with drug abuse intermittently for all of her adult life. Zitella and one of the mother's other children tested positive for controlled substances at birth. The mother has a lengthy history of participating in drug treatment programs. She has not been successful in her attempts at treatment, especially in relation to her addiction to cocaine.
Discussion. The mother's arguments on appeal are that the judge failed to address facts favorable to her including recent progress in addressing her problems, made contradictory and erroneous findings, and failed properly to apply factors set forth in G. L. c. 210, § 3(c). We discern no abuse of discretion or clear error; to the contrary, the record, only summarized briefly here, amply supports the judge's determinations.
'When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law.' Adoption of Elena, 446 Mass. 24, 30 (2006). In such a fact sensitive case 'much must be left to the trial judge's experience and judgment.' Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). With regard to factual findings, we 'determine whether the judge's findings were clearly erroneous and whether they proved parental unfitness by clear and convincing evidence.' Custody of Eleanor, 414 Mass. 795, 802 (1993).
Given the mother's substantial record of drug abuse and its sustained negative impact on her parenting ability, we cannot say that the judge erred in considering her long history of substance dependency, even when she had shown some, albeit comparatively recent, progress. In his decision, the judge made credibility determinations that are supported by the record and that we decline to disturb. Turning to the judge's factual findings we find no clear error. The findings are adequately supported by the evidence and most of the mother's contentions revolve around semantics and the supposed bias of the judge.
In his factual findings the judge duly noted the progress that the mother had made.
As an example, the judge cited specific bases for his determination that the testimony of the mother's former case manager should not be credited.
Finding 92 appears to conflate the dates of two different incidents: one where the child asked her caretaker what was wrong with the mother, and another where the caretaker observed the mother walking with an unsteady gait in court. Even if this were error, 'we have no doubt that the judge would have reached the same result' without this peripheral discrepancy. Care & Protection of Leo, 38 Mass. App. Ct. 237, 243 (1995).
For example, the mother contends that, based on her own testimony, the time between her return from Puerto Pico and her resumption of drug use was nine months while the judge referred to it as 'approximately a few months.'
The mother also asks us to reverse the judge's decision because the judge failed to take into account several statutory factors under G. L. c. 210, § 3(c). Concerning factors (ii), and (vi), the judge specifically took into account the mother's use of departmental services, finding that the 'mother failed to meaningfully learn from the programs and services offered to her.' With respect to factor (vii), while the judge did not make detailed findings on the bonding of the child, she did consider the emotional ties between the child, her mother and her caretakers. Furthermore, drug abuse and neglect were the decisive factors in terminating the mother's parental rights, therefore more detailed findings on bonding were not required. See Adoption of Katharine, 42 Mass. App. Ct. 25, 30-31 (1997). Finally, the mother's other arguments amount to a disagreement whether she showed sufficient improvement to overcome her past problems. As discussed previously, based on the mother's chronic history of drug abuse and neglect, the judge did not err in finding her recent progress insufficient to retain parental rights.
In order to consider these two statutory factors, the Department of Children and Families must have offered social services to correct the circumstances and the parent must have refused or been unable to utilize such services on a regular or consistent basis. See G. L. c. 210, § 3(c). Contrary to the mother's assertion, the judge did not find factor (iv) applicable.
Decree affirmed.
By the Court (Berry, Brown & Grainger, JJ.),