ADOPTION OF RITA v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, a judge found the mother unfit to parent her daughter Rita, terminated her parental rights, and approved the plan of the Department of Children and Families (department) for the adoption of Rita by her foster parents. On appeal, the mother primarily argues that the evidence presented at trial did not support the termination of her parental rights. We affirm.

Background. The department first became involved with the mother shortly after Rita's birth in September 2011.³ From birth until the age of four and one-half, Rita lived with the mother and the maternal grandparents. In the interim, there were several additional G. L. c. 119, § 51A, reports (§ 51A report), filed against the mother alleging neglect of Rita, all essentially stemming from the mother's substance abuse.⁴

In April 2016, the mother was attending a “Moms in Recovery” meeting with Rita when the mother was observed to be “in and out” of consciousness (see note 3, supra); the department obtained temporary custody of Rita and placed her with the maternal grandparents on the condition that the mother could not also reside in the home. The mother was homeless for the following three months, living in the woods in the Springfield area, actively using drugs, and not attending visits with Rita. In July 2016, Rita was placed with the foster parents after the department learned that the mother had returned to live at the maternal grandparents' home, in violation of the conditions of the kinship placement.

On June 2, 2017, the mother began residing at Grace House, a residential drug treatment facility. On June 30, 2017, five and one-half year old Rita was reunified with the mother at Grace House. However, on the evening of July 24, 2017, the mother, claiming she was unhappy with the Grace House program,⁵ abruptly left the facility, leaving the child behind with no explanation and without saying goodbye; Rita was returned “in the middle of the night” to the foster parents.

The foster parents noticed that Rita exhibited behavioral issues (tantrums, defiance, food refusal) when she returned to their care. Rita became withdrawn at times, especially when asked whether she wanted to visit with the mother. She thereafter became adamant in her wish not to have contact with the mother. The family's ongoing social worker met with Rita at her daycare the week after Rita was returned to the foster parents' home.⁶ Rita appeared sad and told the social worker that she did not want to see the mother; the social worker did not force a visit believing that it would be too traumatic for Rita, but instead called Rita's therapist; the social worker tried each week for the next three weeks to encourage Rita to visit with the mother, but Rita refused.

In a continuing effort to make the visits happen, the social worker tried having the foster parents bring Rita to the department office for the visit rather than picking her up. She also involved Rita's therapist in the effort; after several failed attempts, the therapist suggested a “reprieve” from asking Rita about visits until she “emotionally stabilize[d].”⁷ In September 2017, visits were suspended, and around this same time the department's goal for Rita changed to adoption by the foster parents.⁸

In April 2018, because of the extended period of time without visits between the mother and Rita, the department devised a plan, together with Rita's therapist, to speak alone with Rita to determine her true desire as to whether she would like to visit with the mother; the mother would be standing by in case Rita agreed.⁹ In May 2018, the adoption social worker planned the outing with Rita; during the outing he asked Rita about a visit with the mother, but she refused. By the time of trial in June 2018, the mother had not seen the child for a year, since the mother left her at Grace House in July 2017.

Discussion. “In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child.” Adoption of Ilona, 459 Mass. 53, 59 (2011). “In determining whether the best interests of the child[ ] will be served by issuing a decree dispensing with the need for consent, a court shall consider the ability, capacity, fitness and readiness of the child's parents ․” (quotation omitted). Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See G. L. c. 210, § 3 (c). “Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference.” Adoption of Jacques, supra at 606-607.

In this case, the judge determined that the mother had a long-standing struggle with substance abuse, which interfered with her ability to parent the child. The judge found that the mother had relapsed on several occasions, despite being engaged in services; that she continued to use drugs and alcohol, despite being on probation and instructed not to do so; that she was not in compliance with a majority of her family action plan tasks; that she had not learned from the programs and services in which she did participate; that her recovery remained unstable; and that she lacked insight into the impact of her substance abuse and behavior on Rita. Additionally, the judge found that the mother had no suitable housing or independent source of income for herself and Rita and failed to appreciate the importance of this in providing stability for Rita. On appeal, the mother does not challenge these findings concerning her fitness to parent the child.

Rather, the mother contends that termination of her parental rights was unwarranted where the judge failed to address the impropriety of the department's refusal to allow her to visit with Rita for a year prior to trial and the consequent detrimental impact on her relationship with Rita. She argues that the department inappropriately allowed the preferences of a six year old child to supersede its own obligation to ensure visitation. Contrary to the mother's claim, the judge did not “circumvent” the issue of the mother's extended lack of visitation. The judge dealt with it squarely but came to a different conclusion than that advocated by the mother. The judge implicitly rejected the mother's claim that the department “sabotaged” her relationship with the child by improperly denying visitation. Instead, the judge found that the department made a “concerted effort” to attempt visits between the mother and Rita, working with her therapist and the preadoptive parents, all to no avail.¹⁰ Contrast Adoption of Rhona, 57 Mass. App. Ct. 479, 489-490 & n.12 (2003) (department unilaterally terminated visitation without sufficient cause). See Adoption of Gregory, 434 Mass. 117, 128 n.6 (2001), quoting Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997) (parents' arguments “amount to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations”).

In concluding that termination was in the child's best interests, the judge considered, as she must, the thirteen factors required under the provisions of G. L. c. 210, § 3, and determined that the department had met its burden by clear and convincing evidence. Notably, the judge did not ignore evidence regarding the mother's effort to improve. In fact, as she was permitted to do, the judge considered the mother's recent improvements within the context of her earlier and continuing deficits, weighing her strengths against her weaknesses in assessing the mother's ability to parent Rita. See Adoption of Hugo, 428 Mass. 219, 225 (1998) (judge's decision given substantial deference). A judge “may rely upon past patterns of parental neglect or misconduct in determining current or future fitness.” Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). In addition, “[t]he judge was not obliged to believe that the parenting skills of ․ the [mother] had improved simply because of [her] recent cooperation with the department, or that [her] good intentions eliminated risk of future abuse.” Care & Protection of Quinn, 54 Mass. App. Ct. 117, 126-127 (2002), quoting Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999).

Lastly, the judge considered the strong bond that Rita had developed with the preadoptive parents, “a consistent, skilled, loving and committed permanent resource,” and the trauma that Rita had already experienced in having been “alternately removed from her mother and substitute caretakers.” See Adoption of Serge, 52 Mass. App. Ct. 1, 8-9 (2001), quoting Adoption of Nicole, 40 Mass. App. Ct. 259, 262-263 (1996) (“bond between child and foster parent ‘is a factor that has weight in the ultimate balance’ ”). There was ample record support for the judge's termination order “based on her assessment of the overall damage that the [mother's] noncompliance had wrought on [Rita's life], and her determination that [Rita] should be protected from the uncertainty” of the mother's repetitive, “destructive behavior in the future.” Adoption of Nancy, 443 Mass. 512, 519 (2005). In concluding that her unfitness was not temporary, we discern neither error, nor an abuse of discretion, in the judge's determination that termination of the mother's parental rights was in Rita's best interests. See Adoption of Ilona, 459 Mass. at 59. See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Decree affirmed.

FOOTNOTES

3.   The mother tested positive for buprenorphine at the time of Rita's birth, which the department later learned was medication she was taking as part of her substance abuse treatment.

4.   Specifically, in March 2015 it was alleged that the mother had relapsed and was actively using drugs; in July 2015 the mother was arrested for shoplifting while Rita was present (the maternal grandfather came to the scene and picked up Rita); and in April 2016, while at a substance abuse meeting with Rita, the mother was observed to be under the influence while Rita was observed to have a bruise and swelling under her right eye. Subsequent to Rita's removal from the mother in April 2016, another § 51A report was filed, alleging that the mother had earlier physically abused the child by hitting her on her face and body; the report was supported due to the child's disclosure, marks that resulted from the abuse, and the child's behavior during therapy.

5.   The judge did not credit the mother's trial testimony regarding her complaints about the program.

6.   At this meeting, Rita reported to the social worker that the mother frequently slept during the day when she was with her, and that Rita was scared when she could not wake up the mother.

7.   Rita's therapist testified that to force Rita to visit with the mother would be “traumatizing to her.” Based on Rita's worsening behavior when mention of the mother or the mother's family occurred, the therapist suggested that Rita no longer be asked about visits with the mother. In August 2017, when Rita was no longer being asked about visits, the therapist observed during sessions a marked improvement in Rita's behavior -- she was “consistently very positive, pro-social, playful. She appeared very well adjusted, happy.”

8.   In response to the department's motion to suspend visitation, the judge appointed a guardian ad litem who, after investigation, recommended that a temporary suspension of visitation was in the child's best interests.

9.   This setting was suggested after the mother asserted that the foster parents were pressuring Rita not to visit with the mother.

10.   The mother challenges findings seventy-six through seventy-nine regarding the child's refusal to visit the mother and maternal grandparents. Each finding was grounded in the record evidence, as explicitly set forth in the judge's decision. Although the mother complains of the judge's failure to take into consideration the opinion of her expert witness, the issue of credibility was for the judge.