ADOPTION OF OLIVE v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The mother appeals from decrees entered by a Juvenile Court judge terminating her parental rights. On appeal, the mother contends that there was not clear and convincing evidence of her unfitness.³ The mother and the children also claim that the permanency plans were not in the children's best interests.⁴ We affirm.

Background. We draw on the detailed findings of fact made by the trial judge, which find ample support in the record. The older child, Olive, was born in March 2015, while the mother and the father lived together in a shelter. When Olive was approximately one month old, a report was filed pursuant to G. L. c. 119, § 51A (51A report), alleging that the father had become aggressive toward the mother and shelter staff during an argument. Subsequently, the father was removed from the shelter and the mother entered into a plan with the Department of Children and Families (department).

In August 2015, another 51A report was filed, alleging that the mother snuck the father into the shelter where she was living, then asked for help when he refused to leave. Olive was subsequently removed from the mother's care and the department filed a care and protection petition. After one month, Olive was returned to the mother's care, with certain contingencies.

In November 2015, another 51A report was filed, alleging the mother and father were arguing in the shelter, while Olive was present. A video recording of the argument showed the mother releasing the child's stroller from her grip while arguing with the father on a staircase, which resulted in the child and the stroller falling down some stairs. Later that day, the parents returned to the shelter and the mother threatened shelter staff when she was told that the father could not enter due to his earlier conduct. The mother refused further help and left the shelter once she learned that she would be transferred to a different shelter due to the conflict with the father. The department was awarded temporary custody of the child.

The mother became pregnant and gave birth to the younger child, Andrea, in May 2016. Andrea was born substance exposed, and another 51A report was filed.⁵ The department filed a care and protection petition, and the mother regained temporary custody of Andrea after a seventy-two hour hearing. The department continued to offer services and directed the parents to address issues with respect to domestic violence, substance abuse, and housing instability.

The mother completed parenting and domestic violence classes and engaged in therapy. In 2017, Andrea's case was dismissed. In August 2017, Olive was placed with the mother, but the department retained legal custody. The mother and the children then moved into a shelter in Springfield. During that time, the father was incarcerated, and the mother told the department that she did not want to have contact with him. However, the mother maintained contact with the father and told the department that she did not need help facilitating visits between the father and the children.

The father was released from custody in 2018 and appeared at the shelter on Olive's birthday in March. He caused a disturbance and took the mother's keys. The mother and children subsequently relocated to another shelter and she obtained an abuse prevention order against the father pursuant to G. L. c. 209A. The mother did not return to court to extend the order, and it expired on April 26, 2018.

In April 2018, another 51A report was filed, alleging that the father beat the mother up while Andrea was present. The father forcibly entered the mother's shelter and pushed her, causing her to hit her head. After the incident, the mother declined a more secure domestic violence shelter placement, and the department removed the children. These proceedings followed.

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, despite the father's long history of violence, the mother continued to engage in a relationship with him, which significantly disrupted the mother's living arrangements and ability to care for the children. See Adoption of Zak, 87 Mass. App. Ct. 540, 543-544 (2015), citing Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139-142 (2004). Furthermore, the judge did not credit the mother's assertion that she and the father engaged in couples' counselling and had improved communications as a result. Indeed, the mother stated that she found better ways to cope with the father's violence and anger, which included avoiding calling the police. And, when faced with the option to move to a more secure shelter, the mother declined, further putting the children at risk. Finally, as late as August 2018, the mother remained in contact with the father and coordinated an unauthorized visit with him and the children one day after asking a substitute social worker for the visit to be held outside. See Adoption of Mary, 414 Mass. at 711.

In addition, the mother's untreated substance use and mental illness adversely impacted her ability to care for the children. The mother was often under the influence of marijuana while caring for the children, including during home visits by the department. She refused to undergo a substance abuse evaluation and resisted suggestions that she limit her consumption of marijuana. “Evidence of alcohol or drug abuse is also relevant to a parent's willingness, competence, and availability to provide care.” Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). A drug habit, on its own, does not make a parent unfit if they otherwise are able to attend effectively to the care of their child. See Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997). However, the judge's findings in the present case describe numerous instances in which the mother's substance use directly and adversely affected her ability to care for the children.

Although she initially complied with her service plan tasks, by the time of trial, the department directed the mother to repeat many services because she did not “retain any of the knowledge or skills she may have gained from participation in services.” The mother refused to repeat a parenting class, did not follow through on restraining orders, refused placements in specialty domestic violence shelters, and blamed herself when the father became angry. “Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children. As such, a judge must consider issues of domestic violence and its effect upon the children as well as a parent's fitness.” Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Care & Protection of Lillith, 61 Mass. App. Ct. at 139.

After the 2018 removal of the children, the mother visited with them weekly until she requested biweekly visits. Her conduct at visits with the children was not “consistent in quality or frequency.” The mother did not come prepared with diapers and wipes as requested. The mother swore at the social worker, was uncooperative in the presence of the children, and was not open to feedback on her parenting. On one occasion, Olive referred to her foster mother as “Mom,” and the mother “grabb[ed] her chin forcefully while pointing a finger in her face and instructing her that she ‘only has one Mom.’ ” With regard to Andrea, visits with the mother did not go well and the child would cry, throw herself on the floor, and yell. The judge's finding that the mother did not possess “the basic parenting skills necessary to address either of the children's behavior” is supported by the record.

The mother's contention that the findings of fact do not constitute clear and convincing evidence of unfitness is unavailing. As to her claim that the evidence was impermissibly based on “issues existing from the start of the case that never posed a risk or prevented reunification,” we note that the mother's “past pattern of behavior is ․ not irrelevant; it has prognostic value.” Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986). And, the judge may rely “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).

Contrary to the mother's claim, the judge did not rely on irrelevant or stale evidence. The father's criminal history was relevant to the significant risk of violence that he posed to the mother and the children. A parent's criminal history alone is not sufficient to terminate parental rights, however, “evidence of prior convictions may be properly weighed in the balance [of parental fitness].” Care & Protection of Frank, 409 Mass. 492, 495 (1991). And, the recitation of the mother's childhood and early adulthood trauma put her circumstances into context and was not the basis of the judge's ultimate finding of unfitness.

Finally, the evidence of the mother's past relationship with the father was relevant to her present ability to parent. “[W]itnessing domestic violence, as well as being one of its victims, has a profound impact on children” (citation omitted). Adoption of Zak, 87 Mass. App. Ct. at 543. “[A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm.” Custody of Vaughn, 422 Mass. 590, 595 (1996). The mother's prior unwillingness to extricate herself and the children from the father informed the judge's determination as to the likelihood the children would be exposed to further violence. The judge need not “wait for inevitable disaster to happen.” Adoption of Katharine, 42 Mass. App. Ct. at 32. There was no error.

Best interests of the children. 1. The mother's argument. “[T]he best interest 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 ․ 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). We afford the judge's determination substantial deference, and will reverse only where the trial judge abused their discretion or committed a clear error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998).

At the time of trial, the children were in separate foster homes. Following the 2018 removal, the children were initially placed together, but Olive became physically aggressive toward Andrea, and the department determined that separation was necessary. Olive was in a preadoptive home where she had been since April of 2018. The judge found that she was bonded to her adoptive family, that all of her needs were met, and that she was well settled. There was no error in the judge's finding that this placement was in her best interests. See Adoption of Nancy, 443 Mass. 512, 520 (2005).

Andrea was in a temporary foster home at the time of trial, and the family was willing to keep her until a preadoptive home was found. Andrea has special needs and requires early intervention, including speech and developmental services. While the department's plan for Andrea is adoption through recruitment, the social worker described her efforts with respect to prospective adoptive homes that would be the “right fit” for Andrea. As the judge found, this plan was sufficient and in the child's best interests. See Adoption of Lars, 46 Mass. App. Ct. 30, 31-32 (1998); Adoption of Stuart, 39 Mass. App. Ct. 380, 393 (1995). Moreover, the department acknowledged that if the social worker's efforts were unsuccessful, it would continue to recruit a home for Andrea. “The adoption plan need not be fully developed to support a termination order,” Adoption of Willow, 433 Mass. 636, 652 (2001), but it must be “sufficiently detailed to permit the judge to evaluate the type of adoptive parents and home environment proposed” and whether the plan will “meet the specific needs of the child.” Adoption of Varik, 95 Mass. App. Ct. 762, 771 (2019). Here, the department's plan was sufficient, and G. L. c. 119, § 29B, provides for an annual review of the permanency plan including a consideration of whether it remains in the child's best interests.

2. The children's argument. The children argue that a remand is necessary to determine whether it is “in the current best interests of the children to remain permanently separated.” This argument is unavailing as the judge explicitly found that “separating the children was in their best interests [at the time of separation], and [it] remains in their best interest at the time of trial.”⁶

They also argue that the judge's finding that sibling visitation was in the children's best interests was accompanied by an “aspirational” order because it only directed the department to “continue to use its best efforts to recruit placements willing to facilitate sibling contact.” However, the order provided that the contact should occur “at least once per month and in-person contact no fewer than four times per year.” This order was not aspirational: it explicitly directed the department to find placements that would be able to fulfill the terms of the order. See G. L. c. 119, § 26B (b). The children's argument that the judge's order failed to provide a mechanism for review or oversight, “as required by G. L. c. 119, § 26B,” is misplaced. Section 26B does not require that the judge order and manage sibling visitation, Adoption of Garret, 92 Mass. App. Ct. 664, 679-681 (2018); rather, the department has “concurrent authority to ensure that sibling visitation is carried out.” Id. at 680. There was no error.

Decrees affirmed.

FOOTNOTES

3.   The children's father did not appear for trial and is not a party to this appeal.

4.   The children's motion to file late motion to appeal was allowed. On appeal, the children do not argue that the judge erred with regard to the finding of unfitness or in terminating the mother's parental rights.

5.   The child tested positive for barbiturates, and the mother admitted to using marijuana while pregnant.

6.   The children argue that the department has a policy of presuming that placing siblings in the same home is in the children's best interests, and “the judge minimized the principle in G. L. c. 119, § 26B, that children should be placed together.” See 110 Code Mass. Regs. § 7.101 (2009). This regulation does not so state. Rather, it provides that “[t]he [d]epartment shall place a child with the child's full or half sibling(s) unless doing so would be contrary to the safety or well-being of the child or sibling(s), or otherwise not in the child's best interest.” 110 Code Mass. Regs. § 7.101(4).