ADOPTION OF YEIRA v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother appeals from decrees of the Probate and Family Court finding her unfit to parent Yeira, terminating her parental rights, and granting custody of Yeira to the Department of Children and Families (DCF). We affirm.

Background. On May 21, 2015, a relative of the mother filed a petition for guardianship of Yeira, who was then not quite two years old. On October 26, 2015, a probate judge transferred custody of Yeira to DCF sua sponte.³ On July 18, 2017, DCF filed a petition in the Probate and Family Court to terminate parental rights to Yeira.⁴ After trial in December of 2017, at which the mother did not appear, a probate judge declared the mother unfit and terminated her parental rights to Yeira.⁵

Discussion. 1. Findings of fact. The mother challenges three of the judge's forty-six findings of fact, nos. 24, 26, and 43, as clearly erroneous or improperly grounded in evidence.

In finding no. 24, the judge stated that the mother was discharged from a residential drug treatment program in February 2017 “due to her anger issues and not cooperating with the staff.” The mother only challenges the quoted portion of the finding as to the reason for the discharge, rather than the discharge itself. There is no indication that the judge relied on the reason for the discharge as a basis for the termination. Even assuming error, this is a harmless error not central to the ultimate finding of unfitness.⁶

In finding no. 26, the judge stated that the mother used drugs in August and September 2016. The mother argues this finding was grounded in inadmissible hearsay because that evidence was only contained in the G. L. c. 119, § 51A, report (51A report), which “may not be considered substantively” in a care and protection proceeding. Care & Protection of Inga, 36 Mass. App. Ct. 660, 663 (1994). See Mass. G. Evid. § 1115(b)(2)(A) (2019) (“Section 51A reports are admissible for the limited purposes of setting the stage”).

However, G. L. c. 119, § 51B, reports (51B reports) are admissible for “statements of fact.” Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). See Mass. G. Evid. § 1115(b)(2)(B). See also Mass. G. Evid. § 801(d)(2) (statement is not hearsay if “[t]he statement is offered against an opposing party and ․ was made by the party”); Adoption of Larry, 434 Mass. 456, 464 (2001). Here, the relevant 51B report contained statements made by the mother to a DCF social worker admitting her drug use as reported in the 51A report, including on September 22, 2016, and while she was pregnant with her second child.⁷ The mother's statements are party admissions and not inadmissible hearsay. Therefore, finding no. 26 was not based on inadmissible hearsay, nor was it clearly erroneous.

The mother next challenges finding no. 43, which states that there was no evidence presented at trial demonstrating a bond between the mother and Yeira. Because the record contains some evidence of a bond between the mother and Yeira, the mother argues that finding no. 43 is clearly erroneous.⁸ We agree that the wording of this finding could have been more precise to indicate that as of the time of trial, there was no evidence of a bond or that any bond found was insufficient to avoid a finding of unfitness. However, there is ample evidence to suggest that any bond that existed became attenuated before trial due to fewer visits and the mother's lack of communication with DCF. The mother did not keep DCF informed of her whereabouts, refused to allow DCF to bring Yeira for visits while the mother was incarcerated, and even when the mother was not incarcerated and in contact with DCF, she only requested visits every three to four months. In addition, although a DCF social worker testified that during visits in 2017 Yeira “would squeal ‘Mama’ ” and was happy to see the mother, by the time of trial in December of 2017, the mother had not attended or requested a visit with Yeira for at least three months.

Even assuming error, the error would not be prejudicial because the existence of a bond does not preclude a finding of unfitness or termination of parental rights based on the best interests of the child. See Adoption of Bianca, 91 Mass. App. Ct. 428, 432 (2017). Cf. Adoption of Ramona, 61 Mass. App. Ct. 260, 265-266 (2004).

In short, even if findings no. 24, 26, and 43 were struck, the remaining findings support termination.

2. Ultimate finding of unfitness. The mother finally argues that the judge made no finding that there was a sufficient link between the mother's substance use and criminal history, and the mother's ability to provide for Yeira. We disagree.

a. Substance use. “Evidence of alcohol or drug abuse is ․ relevant to a parent's willingness, competence, and availability to provide care.” Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). The judge's findings demonstrate a link between the mother's drug use and the consequent harm to her children. Although the mother participated in several treatment programs, she failed to complete at least five of them. In fact, she had a history of being discharged from treatment programs due to noncompliance. In addition, the mother admitted to using drugs while pregnant with Yeira and her second child, see id., as well as while Yeira and her second child were in her care. Moreover, the mother's drug use and resulting incarcerations separated her from Yeira, thereby limiting her ability to provide care.

b. Criminal history. To the extent it impacts parental fitness, consideration of a parent's criminal history is “germane” in care and protection proceedings. Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). The mother's extensive criminal history spans from 2008 to the time of trial in 2017. Notably, the mother was charged with assault and battery by means of a dangerous weapon, and several other criminal offenses, while her second child was in her care. See Custody of Two Minors, 396 Mass. 610, 621 (1986) (“The court is permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness”). While incarcerated, the mother failed to maintain contact with DCF and Yeira. Moreover, the mother declined to attend the trial because of several open arrest warrants against her. The judge properly considered the mother's criminal history, and the judge's findings demonstrate a sufficient link between the mother's criminal history and her ability to provide adequate care for Yeira.

Conclusion. In Essex County Probate and Family Court No. ES15A0094CW, the custody decree is affirmed. In Essex County Probate and Family Court No. ES17A0054CW, the decree terminating parental rights to Yeira is affirmed.

So ordered.

affirmed

FOOTNOTES

3.   DCF involvement began two days after Yeira's birth and continued sporadically until DCF took custody of Yeira pursuant to the judge's sua sponte order. That case is Essex County Probate and Family Court No. ES15A0094CW.

4.   The termination petition was initiated as a separate case, Essex County Probate and Family Court No. ES17A0054CW.

5.   The judge also terminated the parental rights of the father; he did not appeal.

6.   Given our conclusion, we need not decide whether the mother waived this hearsay argument by failing to ask the judge to revisit the mother's motion in limine with respect to the social worker's report, as Yeira's brief argues.

7.   The mother was pregnant with her second child during August and September of 2016.

8.   For example, in 2013, a DCF assessment worker noted that the mother was “nurturing and loving to her daughter” and that she “appear[ed] to be bonded to her daughter.”