ADOPTION OF COOPER v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a two-day trial in July, 2018, a judge of the Juvenile Court found the mother permanently unfit to parent her son, Cooper, and daughter, Emma, and terminated the mother's parental rights to both children. On appeal, the mother argues that the Department of Children and Families (department) failed to present clear and convincing evidence that the mother's mental health challenges or the father's domestic violence against the mother put the children at risk, or that the mother's unfitness was permanent.³ We affirm.

“To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Oren, 96 Mass. App. Ct. 842, 844 (2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). “In determining whether the best interests of a child are served by termination of parental rights, the judge ‘shall consider the ability, capacity, and readiness of the child's parents ․ to assume parental responsibility’ (emphasis omitted),” Adoption of Xarina, 93 Mass. App. Ct. 800, 802 (2018), quoting Adoption of Elena, 446 Mass. 24, 31 (2006), and must also take into account “the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment.” Adoption of Carlos, 413 Mass. 339, 348 (1992). In doing so, the judge considers the evidence as a whole; “no one factor is determinative.” Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). We review the judge's findings for clear error or abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 59 (2011). In the absence of clear error, we will not disturb the judge's factual findings. See Adoption of Jacques, supra at 606-607.

We are not persuaded by the mother's argument that the judge's subsidiary findings were unsupported by the evidence at trial, see Adoption of Jacques, 82 Mass. App. Ct. at 606, and are satisfied that on the facts found by the judge, the department met its burden of proving the mother's ongoing unfitness by clear and convincing evidence.

1. Sufficiency. At trial, it was undisputed that the mother suffered from serious, long-term mental health conditions. See Adoption of Carla, 416 Mass. 510, 517 (1993) (parent's prior psychiatric history has prognostic value); Adoption of Frederick, 405 Mass. 1, 9 (1989) (mental illness relevant where it affects parent's “capacity to assume parental responsibility”). The judge found that despite the mother's willingness to involve herself in most of the counselling recommended for her, see Adoption of Paula, 420 Mass. 716, 730 (1995), the mother did not make gains in understanding how her mental health impacted the children, or in her ability to perceive and report facts accurately, to the detriment of the children.⁴ This conclusion is supported by the testimony of the department's witnesses that despite counselling, over the five years before trial, the mother's anger levels had escalated. The testimony was corroborated by the judge's own observations of the mother's aggressive behavior and labile mood at trial.

In determining that the mother's mental health concerns impacted the health and safety of the children, the judge also considered evidence of the mother's current deep and -- in the mother's own words, “non-logical” -- distrust of the department worker assigned to her case, and the fact that the mother's recent behavior included threatening the children's preadoptive parents. The judge gave weight to the mother's testimony that suggested that she was having difficulty caring for herself. Against that backdrop, the judge also considered the mother's identification of her own, admittedly violent, family as her support system in the event that the children were returned.⁵ See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (failure to comply with service plans relevant to the determination of unfitness).

We are likewise unpersuaded by the mother's challenge to the judge's findings that the mother failed to separate herself from the father, despite their ongoing history of domestic violence. As the judge found, the father had been physically abusive to the mother since the early days of their relationship, and had beaten her during her pregnancies. The mother had lost custody of Cooper at birth based on factors including the father's violence. Despite having regained temporary custody of Cooper contingent on her agreement to conditions intended to protect both the mother and the child from the father, the mother soon lost that custody based on her choice to leave shelter housing in order to be with the father. The father's abuse of the mother had continued at least until a few months before trial. While the mother obtained an abuse prevention order against him in December, 2017, the record demonstrated that the father failed to comply with that order; the mother nonetheless successfully sought to vacate its no-contact provision.⁶ See Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996) (documented history of domestic violence is relevant factor in determining parental unfitness).

Although there was no evidence at trial that either the mother's mental health challenges or her failure to sever her ties with the father actually resulted in specific harm to either Cooper or Emma,⁶ the judge was not required to wait for such harm to occur before terminating the mother's parental rights. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997). The judge's findings were grounded in the evidence and we are satisfied that she did not err or abuse her discretion in determining that the mother's condition and conduct put the health and safety of the children at unacceptable risk.

2. Unfitness not temporary. As the mother's presentation at trial illustrated, she had not gained reliable control over her anger, or developed a constructive working relationship with the department. Despite her participation in counselling, at the time of trial she continued to struggle with “linear thinking,” and was “unable to accurately take in and reflect what is actually happening around her.”⁸ The “chaotic” nature of the mother's visits with the children and her inaccurate perception of their needs when she was with them reflected that, even with the supports built into a supervised visit, the mother lacked the necessary parenting skills to manage the children. Finally, as the judge found, the mother's ongoing pattern of abuse at the hands of the father, and her inability to disassociate herself from him even at the cost of custody of her children, was compelling evidence of unfitness with no foreseeable improvement.⁹ See Adoption of Elena, 446 Mass. at 32 (mother's inability to terminate relationship with partner who abused her and children relevant to her parental fitness). See also Adoption of Larry, 434 Mass. 456, 472 (2001) (parent's “persistent refusal or inability to recognize and address” risk of harm to child by abusive father speaks to unfitness); Adoption of Cecily, 83 Mass. App. Ct. 719, 726 (2013) (same).

The judge's findings had a proper foundation in the trial evidence, and her conclusion that the mother's unfitness was not transitory was amply supported.¹⁰ We therefore affirm the decrees.

So ordered.

Affirmed.

FOOTNOTES

3.   The father's parental rights to the children were also terminated. He is not a party to this appeal.

4.   Although the judge gave the mother credit for following through with many of the requirements of her service plan, the judge's findings show at least one significant lapse in the mother's compliance. The findings include the judge's observations that despite the mother's testimony that she completed an update to the psychological evaluation required as part of her service plan, and that she had provided the department with a release permitting it to obtain a copy of the evaluation, the social worker testified that the mother had refused to sign the release necessary to allow the department to make the referral required to initiate the evaluation. In that context, we understand the judge's finding that the department was unable to obtain a copy of the evaluation to mean that, despite the mother's testimony to the contrary, an updated evaluation had not been completed. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (failure to comply with service plans relevant to determination of unfitness).

5.   Based on the mother's own testimony, the maternal grandmother (one of the people on whom the mother planned to rely for support) had herself abused the mother in the past, and, more recently, had formulated a “kill list” that included the children and the mother.

6.   In addition to demonstrating the mother's ongoing relationship with the violent father, the record included other evidence that the mother was unable to provide a safe living environment for the children. See Adoption of Paula, 420 Mass. at 729 (chaotic and harmful home environment contributed to parental unfitness). The mother was subjected to threats and violence from other members of her own family, including the maternal grandmother and uncle, and from members of the father's family.

7.   With respect to Emma, who was removed at birth and has never been in mother's custody, there has been no opportunity for such harm to occur.

8.   Department records introduced at trial documented the mother's long-term mental health concerns, which were, in part, the basis on which the mother's parental rights to her three oldest children, Cooper and Emma's siblings, previously had been terminated.

9.   We observe here, as we have frequently had occasion to do, that a judge's determination of parental unfitness is not “a moral judgment or a determination that the parents do not love the children in question. The inquiry instead is whether the parents' deficiencies or limitations ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ ” Adoption of Garret, 92 Mass. App. Ct. 664, 665 n.3 (2018), quoting Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).

10.   The mother does not challenge the portion of the judge's order concerning posttermination and postadoption contact with the children.