ADOPTION OF JASMINE v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother appeals from a decree entered by a Juvenile Court judge terminating her parental rights. On appeal, the mother contends that (1) there was not clear and convincing evidence of her unfitness, and (2) the judge failed to consider the child's best interests.³ We affirm.

Background. We draw on the detailed findings of fact made by the trial judge, which find ample support in the record. At the time of the child's birth, the mother was twenty-nine years old and had a history using heroin intravenously since she was sixteen years of age. She also had a history of alcohol misuse, resulting in police intervention on at least three occasions. She graduated high school and took some college courses. She considered herself a “functioning [heroin] user,” and acknowledged that she did not try to stop using before she became pregnant in 2017. She had no family support.

After moving to Massachusetts in 2015, the mother began dating the putative father, with whom she used drugs and who she described as a “trigger” for her. In 2017, she discovered that she was pregnant, and eventually entered a detoxification program at SSTAR and then Health Care Resource Center (HCRC).⁴ At HCRC, the mother began methadone treatment, engaged in group and individual counselling, and maintained negative drug screens, except for methadone.

Prior to the child's birth in October 2017, the mother had one ultrasound and two prenatal doctor visits. Two days before the child was born, the mother tested positive for methadone and cocaine at HCRC. Both the mother and the child tested positive for methadone and cocaine when the child was born. The mother claimed that she had not used cocaine, but had placed bags of it in her mouth to avoid being arrested when she was with her cousin. Hospital staff notified the Department of Children and Families (department).

The department was awarded custody in October of 2017 while the child was still hospitalized. At that time, the mother acknowledged that she needed to focus on the child. She considered entering an inpatient treatment program, and recognized that the putative father's unwillingness to stop using drugs could cause her to fail as well. The social worker gave the mother the names of three residential programs.

The mother was discharged from the hospital before the child was discharged and visited with her inconsistently.⁵ The mother was given the option to stay overnight with the child, but declined to do so. Six days after the child's birth, the mother told the department that she was living with the paternal grandfather and had supplies for the child. An unannounced home visit by the department the next day revealed a lack of supplies.

The child was discharged from the hospital and placed in a foster home, where she remained throughout these proceedings. Around the time of discharge, the department lost contact with the mother. Telephone calls, text messages, letters, and certified mail to the mother went unanswered. Due to the mother's absence, the department created an action plan without her input. In February 2018, the social worker made another unannounced visit to the paternal grandfather's home, where she learned that the mother and putative father, who had been released from jail, had been kicked out of the home.

The social worker next encountered the mother in public, including at a District Court criminal session, more than once. In April 2018, the social worker learned that the mother was being held at a house of correction; the social worker traveled to the court for the mother's next hearing, and met with the mother after her release on the same day. The mother cried and indicated she was open to working with the department. The mother acknowledged that her decision to move in with the putative father had not been a good one “due to triggers” in that living situation. The social worker gave the mother her contact information and stressed the importance of starting to reunify with the child quickly as the child had been in foster care for six months. The mother agreed, but again failed to call or meet with the social worker thereafter.

Also in April 2018, the social worker went to the paternal grandfather's home for a scheduled home visit, and saw the mother and putative father leaving the home. The putative father saw the worker and said something, but kept walking. No meeting occurred. The paternal grandfather reported that he had kicked the parents out, and he considered the case closed.

The social worker again ran into the mother at a court house on the day of a pretrial hearing for the present case. The mother was there to meet with her District Court probation officer. The mother stated that she was unaware that her case with the department was also scheduled for a hearing. The social worker encouraged the mother to attend the hearing, and noted that the mother could speak with her attorney. The mother did not do so. On June 4, 2018, the social worker learned that there was an active warrant for the mother for noncompliance with the terms of her probation, which included drug treatment. Approximately one week later, the department changed the goal from reunification to adoption.

Again, in June 2018, the social worker ran into the mother in the community around the paternal grandfather's home. She informed the mother about the change in the department's goal. The mother acknowledged there was a warrant for her arrest, and indicated that she planned to go to a detoxification program. She told the social worker that she did not know if she would visit with the child. The social worker again gave the mother her contact information. The mother left, visibly upset, and walked toward the paternal grandfather's house. The social worker did not know the mother's whereabouts thereafter and did not hear from her in the following weeks.

In July 2018, the social worker learned that the mother had been in custody at a house of correction “for a few weeks,” and would be evaluated for acceptance into drug court. On July 19, 2018, the social worker went to visit the mother, but the mother avoided the meeting by going to shower during visiting time. On July 25, 2018, the social worker again went to the house of correction and learned that the mother had been released the prior day.

On August 21, 2018, the mother contacted the department. She reported that she was at an intensive inpatient, court-mandated treatment program. The mother expressed remorse and told the social worker that she was thirty weeks pregnant with her second child. At a subsequent meeting, the mother indicated a desire to work with the department and signed an action plan and necessary releases; she told the social worker that she wanted to reunify with the child.

On September 7, 2018, the mother had her first visit with the child since the child was discharged from the hospital in October 2017. The next visit occurred on September 20, 2018. At this time, the social worker and the mother discussed alternative treatment programs because the program that the mother was in would not allow a child over the age of one to live there with her. The mother's plan had been to remain in that facility until she was ready to leave, with the maximum duration being until October or November 2019. The third and final visit occurred on November 26, 2018, at which time the mother introduced the child to her sibling, the mother's newborn daughter.

The mother's fitness. “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 Jacques, 82 Mass. App. Ct. 601, 606 (2012). On appeal, “[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Ilona, 459 Mass. 53, 59 (2011).

“Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). When determining parental unfitness, a judge's decision is not “a moral judgment or a determination that the mother and father do not love the child.” Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). Rather, the judge must determine “whether the parents' deficiencies or limitations ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ ” Id., quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

The record amply supports the judge's finding that the mother was unfit. As set forth supra, the mother has a long history of substance use. While she had made some progress immediately prior to trial, the judge appropriately considered the mother's relapses, continued inability to remain sober outside of a court-mandated program, choice to live in a place that was a “trigger” for her substance use problems, abandonment of the child for nearly all of the child's life, and unwillingness to work with the department throughout most of the pendency of this case. See G. L. c. 210, § 3 (c) (v) ⁶ ; Adoption of Serge, 52 Mass. App. Ct. 1, 6-8 (2001).

Prior to placement in the residential program, the mother was homeless and had inconsistent housing with the putative father and paternal grandfather. This was an appropriate factor for the judge to consider. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004). And, because the mother's goal was to remain in her current program that precluded the child from joining her, the judge properly concluded that the mother had no plan for stable housing for the child.⁷ See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

The mother's central criticism is that the judge failed to consider her recent sobriety and that the judge equivocated about whether the mother's sobriety was likely to continue.⁸ To the contrary, the judge's findings of fact and conclusions of law reflect careful attention to the evidence in view of the mother's history of substance use and treatment. Indeed, the mother's “past pattern of behavior is ․ not irrelevant; it has prognostic value.” Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986). The mother testified that she was not prepared to be discharged from her program and would like more time there. Furthermore, she confirmed on appeal that at the time of trial, she was not available to parent the child and was not seeking custody. There was no error in the judge's reliance “upon prior patterns of ongoing, repeated, [and] serious parental neglect, ․ in determining current unfitness.” Adoption of Carla, 416 Mass. 510, 517 n.7 (1993), quoting Adoption of Diane, 400 Mass. 196, 204 (1987). The judge need not “wait for inevitable disaster to happen.” Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997). Moreover, the record amply supports the judge's finding that the mother's desire to engage in treatment was motivated by her impending incarceration and not her desire to reunify with the child.

Best interests of the child. “[T]he best interests analysis ․ requires a court to focus on the various factors unique to the situation of the individual for whom it must act.” Custody of a Minor, 375 Mass. 733, 753 (1978). “The parental fitness test and the best interests of the child test are not mutually exclusive, but rather reflect different degrees of emphasis on the same factors.” Adoption of Rhona, 57 Mass. App. Ct. 479, 490 (2003), quoting Care & Protection of Three Minors, 392 Mass. 704, 714 (1984). “In determining whether the best interests of the child will be served by issuing a decree dispensing with the need for consent ․ the court shall consider the ability, capacity, fitness and readiness of the child's parents or other person named in [G. L. c. 210, § 2,] to assume parental responsibility, and shall also consider the plan proposed by the department or other agency initiating the petition.” G. L. c. 210, § 3 (c).

Here, the child cannot be left in perpetual legal limbo. See Adoption of Nancy, 443 Mass. 512, 517 (2005). Indeed, the mother's rights are “secondary to the child's best interests and ․ the proper focus of termination proceedings is the welfare of the child.” Adoption of Ilona, 459 Mass. at 61, quoting Adoption of Gregory, 434 Mass. 117, 121 (2001). For all of the reasons that the mother is unfit, termination is in the child's best interests, especially where the child has known only one “mother” for her entire life and is well adapted. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 679 (2019); Adoption of Astrid, 45 Mass. App. Ct. 538, 545 (1998).

Other issues. To the extent that the mother alleges that the department failed to make reasonable efforts to reunify her with the child, that argument is waived as it was not raised in the Juvenile Court. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020).

With regard to sibling visits, the mother clarified at oral argument that she was not raising a claim of error in the lack of an order regarding sibling visitation. Rather, she contends that the child's best interests require a consideration of the potential for an ongoing relationship with her sibling in the future. This issue was not raised in the Juvenile Court and, as such, is waived.⁹ Moreover, the children met for a fleeting moment once and the evidence supports the judge's conclusion that no relationship existed between the two. See Adoption of Hugo, 428 Mass. 219, 231 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

Conclusion. On this record, we cannot say that the judge abused her discretion or committed a clear error of law in concluding that the mother's inability to provide for the child's needs rendered the mother unfit, that this unfitness would continue into the foreseeable future, and that the best interests of the child would be served by termination of parental rights.

Decree affirmed.

FOOTNOTES

3.   The putative father never established paternity and is not a party to this appeal.

4.   The putative father was incarcerated at this time.

5.   For example, the mother left one visit early and was a “no show” for another visit.

6.   General Laws c. 210, § 3 (c) (v), provides:“In considering the fitness of the child's parent ․, the court shall consider, without limitation, the following factors: ․ (v) the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least 6 of the immediately preceding 12 months and the child cannot be returned to the custody of the parents at the end of such 12-month period; provided, however, that the parents were offered or received services intended to correct the circumstances and refused or were unable to utilize such services on a regular and consistent basis.”

7.   The mother argues that the judge's finding of fact that she was unavailable to parent the child until November of 2019 when her program ended was erroneous. Assuming, without deciding, that the finding was erroneous because the mother's time at that program was undetermined at the time of trial, this finding was not central to the ultimate conclusion of her unfitness. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). Indeed, the mother testified that she was not seeking custody at the time of trial and did not believe she was ready to leave the program.

8.   The mother contends that the judge held her to a higher legal standard that required that she be “changed forever.” Reading the findings of fact and conclusions of law in their totality and putting the challenged finding in context, we conclude that the judge did not hold the mother to a higher legal standard.

9.   Trial counsel made a passing reference to sibling visitation in her closing argument.