CARE AND PROTECTION OF UMIKA v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A judge of the Juvenile Court found the mother to be currently unfit to parent her daughter Umika and adjudicated Umika, then four years old, in need of care and protection. The mother and Umika appeal, arguing that the mother's unfitness was not established by clear and convincing evidence.³ ,⁴ We affirm.

Background. We summarize the judge's findings of fact, which are unchallenged on appeal,⁵ reserving certain details for later discussion. The mother has long been involved with the Department of Children and Families (department), largely because of her history of relationships plagued by domestic violence. The mother has two older children, Susan and Paul (pseudonyms). In June 2006 a report was filed under G. L. c. 119, § 51A (51A report), alleging that Susan's father put the mother “in a headlock” and threw her to the floor. In December 2009 another 51A report was filed, alleging that Paul's father, Steve Smith (a pseudonym), “grabb[ed] [the mother] by the arms,” “toss[ed] her up and down several times,” and bit her on the arm. The report further alleged that the mother had arranged with her neighbors that, “if she were unable to speak,” she would request help “by stomping on the floor.” A subsequent 51A report, filed in April 2011, also alleged violence between the mother and Smith; this time, the mother reportedly acted as the aggressor by “grabb[ing] [Smith] by the arms, leaving marks and bruises on him.” The department investigated and substantiated all three of these reports under G. L. c. 119, § 51B.⁶

Umika was born in April 2014. In October 2015 the department became involved with Umika because of reports about an injury to her leg. The department's involvement escalated to removal after two 51A reports were filed on April 4, 2016, both alleging that the mother's then-boyfriend, John Patterson (a pseudonym), punched her in the face and pushed Susan and Paul. One reporter “could hear the bodies being slammed on the floor,” and another reported that a child was yelling for help, saying that the mother was bleeding and that Patterson was going to kill her. The department investigated and substantiated these allegations. After this incident the department filed the underlying care and protection petition; the mother waived a temporary custody hearing, and the children were removed from her care.

Although the mother obtained two abuse prevention orders against Patterson,⁷ she did not sever their relationship. At one point the mother modified the order to have contact with Patterson, and she communicated with him through social media. Also, around March 2017, the mother asked Patterson to come to her apartment to paint it. The mother was unconcerned about inviting Patterson to her apartment because “he was going to jail a week later” and she could tell if he was “stable” by looking at him. The judge found it “more likely than not” that this occurred when an abuse prevention order was in effect against Patterson.

In April 2017 the children were briefly reunified with the mother. The department instructed the mother that the children could not have contact with their fathers, a prohibition stemming from then-existing concerns about substance abuse and domestic violence. Yet the mother allowed both Paul and Susan to see their fathers and had no concerns about that decision when the department raised the issue. Around this time the department also learned that the mother and Patterson were still in contact. As a result, after approximately one week, the children were again removed from the mother's care.

Discussion. A judge's finding of unfitness must be supported by clear and convincing evidence based on subsidiary findings proved by a preponderance of the evidence. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). “Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age.” Id.

Here, the mother has a history of exposing her children to domestic violence, “a distinctly grievous kind of harm.” Custody of Vaughn, 422 Mass. 590, 595 (1996). For many years the mother has been in various relationships marked by domestic violence and has herself engaged in violence on at least one occasion.⁸ That the mother arranged with her neighbors how she would signal for help suggests the pervasiveness of the issue. And during the most recent incident, which occurred about two years before trial, two of the children were not only witnesses, but also victims of the violence.

In addition, after this latest incident, rather than extricating herself from her abusive relationship with Patterson, the mother continued to associate with him and even invited him into her home. See Adoption of Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018) (“A parent's willingness to ignore or minimize abusive behavior can be an indicator of unfitness, regardless of whether the child is at risk of abuse or witnessing abuse”). The judge found that the mother put herself at risk by inviting Patterson to her apartment, modifying the restraining order against him, and allowing her older children to see their fathers despite the department's concerns about substance abuse and domestic violence. The judge also found that, if the mother continued to make poor decisions, she would put Umika at risk. The judge was entitled to conclude that the mother's history of domestic violence and poor decision making supported a finding that she was unfit.

The mother's lack of stable housing for Umika provided further evidence of unfitness. Though unfitness cannot be based solely on homelessness, see Adoption of Linus, 73 Mass. App. Ct. 815, 821 (2009), the mother's failure “to keep a stable home environment” is a relevant consideration, Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). During much of her adult life, the mother “bounced between shelters,” and she lacked a stable home at the time of trial.⁹ Furthermore, the mother lost a valuable opportunity to obtain housing assistance through the YWCA. The mother started working with the YWCA in 2017 to obtain help with housing, but she missed appointments with her support specialist, failed to complete her assigned chores, and was ultimately terminated from the program because she violated the curfew policy.¹⁰

The mother and Umika contend that the judge's decision was not supported by clear and convincing evidence because the evidence he relied on was stale. But while an unfitness determination cannot rest on stale information, a judge can “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). See Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998) (judge can use past conduct to “predict future ability and performance as a parent”). Here, the judge properly considered the mother's history of domestic violence for its prognostic value. See Adoption of Carla, 416 Mass. 510, 517 (1993). Moreover, the most recent incident of violence occurred two years before trial, which was not too remote in time and was followed by poor decision making by the mother that showed the past conduct's “continuing vitality.” Adoption of Larry, 434 Mass. 456, 469 (2001). Cf. Care & Protection of Lillith, 61 Mass. App. Ct. 132, 140-142 (2004) (domestic violence incident occurring six years before trial warranted careful consideration in custody decision).

We further reject the mother's and Umika's claim that the judge ignored evidence favorable to the mother, including expert testimony. The judge acknowledged that the mother complied with many of her service plan tasks, such as engaging in domestic violence education and attending weekly therapy appointments beginning in May 2017, which helped her to manage her emotions. In addition, the judge made twenty-six findings about visits, specifically noting that the mother acted appropriately and brought snacks and games, and that Umika showed affection for her. Indeed, based on this evidence, the judge determined that a strong bond existed between the mother and Umika and ordered continued weekly visitation.¹¹

The judge's findings also fairly encapsulate the expert testimony. Although the mother takes issue with the judge's failure to address certain aspects of the testimony -- including the expert's conclusions about how the mother internalized what she learned in therapy and the permanency of the positive changes she had made -- the judge did not need to specifically cite every piece of evidence so long as his decision reflected a “careful factual inspection” of the evidence as a whole.¹² Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003), quoting Adoption of Harriet, 29 Mass. App. Ct. 111, 112 (1990). It is apparent that the judge considered expert testimony favorable to the mother; his findings address, for example, the expert's observations that the mother demonstrated “improved judgment,” that her insight “appeared to be quite good,” and that she was able to discuss how her decisions negatively impacted her children. We are satisfied from the judge's findings that he paid close and fair attention to the evidence.¹³

In sum, the judge was not required to find that the mother's “good intentions” or the fact that she had made some progress rendered her currently fit. Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999). See Adoption of Don, 435 Mass. 158, 166-167 (2001). By approving the concurrent pursuit of both adoption and reunification -- a decision that was within the judge's discretion and not out of the ordinary, see, e.g., Adoption of Melvin, 71 Mass. App. Ct. 706, 710 (2008) -- the judge left open the door in the future for the mother or Umika to seek review and redetermination based on changed circumstances. See G. L. c. 119, § 26; Care & Protection of Erin, 443 Mass. 567, 571-572 (2005). But as to whether the mother was currently fit, we discern no error in the judge's conclusion that the evidence clearly and convincingly demonstrated that she was not.

Judgment affirmed.

FOOTNOTES

3.   The care and protection petition also named the mother's two older children, Susan and Paul. The mother assented to permanent guardianship of Susan by a court-approved guardian and to custody of Paul by his father, Steve Smith. Although the mother identified the visitation order as to Paul in her notice of appeal, she raises no argument in her brief regarding that order. The issue is therefore waived. The only issue before us is the finding of the mother's unfitness as to Umika. All the names are pseudonyms.

4.   Umika's birth certificate named Smith as her legal father, but the mother named a different individual as Umika's biological father. The judge terminated the parental rights of Smith and the named putative father as to Umika, and neither has appealed.

5.   Although the mother disputes several findings and argues that the judge mischaracterized some of the evidence, neither she nor Umika challenges any findings as clearly erroneous. The mother's arguments amount to dissatisfaction with the judge's weighing of the evidence and do not provide reason to disturb the findings. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

6.   Unlike 51A reports, which merely “set the stage,” reports generated under G. L. c. 119, § 51B, “may be considered for statements of fact.” Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).

7.   The first abuse prevention order was valid from April 3, 2016, to April 3, 2017, and the second from May 1, 2017, to May 14, 2019.

8.   The mother takes issue with the judge's finding that the mother viewed herself as both a victim and an aggressor. Though the mother testified at trial that she no longer viewed herself as an aggressor, she previously minimized Patterson's abuse by telling the department that she was the aggressor. “We see no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

9.   Regardless of the mother's assertion that she was living with a church friend by the end of trial, the evidence supported the judge's finding that she did not have stable housing, which affected the department's ability to conduct home visits.

10.   The mother claims that her ability to find housing was impeded by the department's failure to make referrals for her once the department changed Umika's goal to adoption. This is unpersuasive where the judge found that the mother was receiving assistance from the YWCA specialist, who made referrals, but the mother failed to follow through with the program.

11.   We also note that the judge did not credit the department's claim that the mother had indirect contact with Patterson after the children were removed from her care in 2017 following their brief reunification.

12.   Moreover, in determining how much weight to give the expert's testimony, the judge could have taken into account that the mother spoke with the expert only briefly about her history of domestic violence and did not mention the children's presence during any of the incidents. See Adoption of Don, 435 Mass. 158, 166-167 (2001) (judge need not view evidence from parent's perspective).

13.   Umika also argues that the judge failed to make an assessment specific to Umika's needs. This argument lacks merit because Umika was developing normally and did not have any identified special needs.