ADOPTION OF FELIPE v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father of Carol and Sara (father 1) appeal from decrees issued by a judge of the Juvenile Court, terminating their parental rights with respect to Carol and Sara. The mother's parental rights with respect to her son, Felipe, were also terminated; Felipe was placed in the custody of his biological father (father 2). On appeal, the mother and father 1 argue that the judge erred in failing to place Carol and Sara with the paternal grandfather. The mother also claims that the judge abused her discretion in terminating her parental rights with regard to Felipe. We affirm.

Discussion. 1. Custody of Carol and Sara. The mother and father 1 claim that the judge abused her discretion in failing to place Carol and Sara with the paternal grandfather.³ We disagree.

“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). Upon termination of the parent's rights, the trial judge must then carefully evaluate the proposed adoption plans, and choose the plan that serves the best interests of the child. See Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). Ultimately, “[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, supra.

Here, the judge found that both the mother and father 1 were unfit to fulfill their parental responsibilities toward Carol and Sara.⁴ The judge specifically concluded, “Mother's life has been unstable in key ways since the children were removed [from her custody].” The mother suffered from a substance abuse disorder, and has regularly continued to use drugs up through the time of trial.⁵ The mother repeatedly insisted that she would only stop using drugs if the children were returned to her care, and saw no reason to stop her cocaine use while the children were not in her custody. The mother repeatedly downplayed the severity of her substance abuse issues “because she is not selling her belongings or the children's belongings so as to afford her drugs and because she's not overdosing or dead from substance abuse.” The mother remained steadfast in her position that her drug use had no effect on her children, and believed that there was no issue with having drugs in her home, so long as her children were unable to access them. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (“Evidence of alcohol or drug abuse is also relevant to a parent's willingness, competence, and availability to provide care”).

Like the mother, father 1 also previously tested positive for cocaine. Following father 1's positive test for cocaine in August of 2018, he continuously refused to participate in any additional drug screens. Father 1 also downplayed the significance of the mother's substance abuse disorder, and its effect on the children.⁶ See Adoption of Elena, 446 Mass. 24, 31-32 (2006); G. L. c. 210, § 3 (c) (xii).

The mother and father 1 were also evicted from their home. Father 1 stated that the eviction was caused by the mother's unpaid legal fees, but the Department of Children and Families (department) expressed concerns that the eviction resulted from “issues of cleanliness, lack of rent payments, and potential criminal activity.”⁷ See Adoption of Anton, 72 Mass. App. Ct. at 676 (inability to secure “adequate stable housing” is properly considered in determining parent's unfitness). Finally, the judge also noted that the mother and father 1 refused to cooperate with the department on numerous occasions, particularly after the department's goal for the children was changed to adoption.⁸

Given the substantial evidence of the mother's and father 1's housing instability, drug use, lack of cooperation with the department, and consequent unfitness, the judge did not abuse her discretion by terminating their parental rights. See Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) (“It is in the best interests of [the children] to have ‘parents’ who can and who will ․ provide [the children] with the stable and continuous care and nurturing [they] need[ ] and will continue to need as [children]”).

Upon terminating the parental rights of the mother and father 1, the judge was presented with two adoption plans. The mother and father 1 proposed that Carol and Sara be placed with the paternal grandfather. The department, however, sought to have Carol and Sara placed in a specific preadoptive home. The mother and father 1 claim that the judge abused her discretion in failing to place Carol and Sara with the paternal grandfather. We disagree.

The paternal grandfather did not present himself as a viable placement option for Carol and Sara. First, he did not complete the proper procedure in order to adopt the children, as he refused to submit to a fingerprint-based background check. See G. L. c. 119, § 26A (a) (“the department shall conduct fingerprint-based checks of the state and national criminal history databases for all applicants [requesting] to become adoptive or foster parents”). The paternal grandfather's application ultimately remained open for five months. The department followed up with him via letter, but he did not engage any further in the adoption application process, and he was never fingerprinted. After his application was denied for failure to submit to a fingerprint-based check, the paternal grandfather again attempted to become a placement for Carol and Sara. However, again, he did not follow through with the proper procedures.

In addition, the paternal grandfather stated that he had no concerns about Carol and Sara being returned to the mother and father 1. He also stated that if he were to have custody of Carol and Sara, he would allow the parents to come to his home “anytime.”⁹ Furthermore, the paternal grandfather has shown a lack of knowledge as to the severity of the mother's drug problem. While the paternal grandfather was aware of the mother testing positive for cocaine, he did not know how often she was using illegal drugs. Despite being a substance abuse counsellor, he did not know the impact of the mother's substance abuse on the children, and he had no knowledge of father 1 testing positive for cocaine. The paternal grandfather further expressed that he had no problem if father 1 occasionally used substances, and would have no concern leaving his own youngest daughter in father 1's care, even if he tested positive for cocaine.¹⁰

Given the paternal grandfather's failure to appreciate the severity of the mother's substance abuse disorder, his failure to follow the proper procedures required for him to be a viable adoption resource, and his willingness to allow Carol and Sara to be left unsupervised in the care of the mother and father 1, we discern no abuse of discretion in the judge's approval of the department's plan to place Carol and Sara with the preadoptive parents instead of the plan propounded by the mother and father 1 for placement with the paternal grandfather. See Adoption of Zak, 87 Mass. App. Ct. 540, 546 (2015).

2. Mother's parental rights as to Felipe. Finally, the mother claims that the judge abused her discretion in terminating her parental rights with respect to Felipe, after placing him in the custody of his biological father, father 2.¹¹ We disagree.

Upon a determination that a parent is unfit to assume his or her parental responsibilities, the judge must then determine whether “it would be in the child's best interests to end all legal relations between parent and child.” Adoption of Nancy, 443 Mass. 512, 515 (2005). Where termination is appropriate, the judge must make specific and detailed findings to support such a conclusion, demonstrating that she has given the evidence close attention. See id. at 514-515. Such findings are given substantial deference, as we recognize the judge's discretion “to evaluate a witness's credibility and to weigh the evidence.” Id. at 515.

Here, the judge found by clear and convincing evidence that the best interests of Felipe would be served by the termination of the mother's parental rights, coupled with a permanent order of custody to father 2. Specifically, the judge found that Felipe had been neglected while in the care of the mother, as evidenced by his multiple cavities, and the open sores on his legs and arms caused by a staph infection. Furthermore, there was substantial evidence of the mother's severe substance abuse issues, her untreated mental health issues, and her reluctance, and at times outright refusal, to participate in the department's services. Such behavior does not evidence a parent “who can and who will, on a consistent, long-term basis, assume all parental responsibilities and who can provide [Felipe] with the stable and continuous care and nurturing [he] needs and will continue to need as a child.” Adoption of Gwendolyn, 29 Mass. App. Ct. at 136.

In contrast, the judge found “no concerns” as to father 2, who was a “consistent placement and parent” to Felipe since he was placed in his custody in December of 2017. Upon receiving custody of Felipe, father 2 sought medical treatment for him, and “advocated for [Felipe's] education and works with him on his homework every day.” Father 2 immediately addressed any behavioral issues that he noticed in Felipe, and “parented him well over the life of the case.”

Given the instability in the mother's life, coupled with father 2's ability to assume, on a consistent, long-term basis, the parental responsibilities that accompany serving as Felipe's sole parent, the judge did not abuse her discretion by terminating the mother's parental rights as to Felipe. See Adoption of Nancy, 443 Mass. at 517.

Decrees affirmed.

FOOTNOTES

3.   The mother and father 1 argue for a presumption in favor of a kinship placement over a nonkinship placement, such that custody ought to have been awarded presumptively in favor of the paternal grandfather. Contrary to their argument, the Supreme Judicial Court has stated that the central question in awarding custody is the best interests of the child. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). Where there are multiple proposed adoption plans, “the judge's task is to determine which plan will serve the best interests of the child, not to afford any particular weight to either plan.” Id. at 226 n.9. Therefore, we decline to adopt any rule presumptively favoring kinship placements over nonkinship placements.

4.   We note that on appeal, the mother and father 1 do not contest the findings of their unfitness.

5.   The mother tested positive for benzodiazepines, cocaine, opioids, and marijuana during the trial.

6.   Father 1 stated that the mother's continued substance abuse does not constitute a true relapse, but only “lapses.” The judge found that father 1's inability to fully appreciate the mother's substance abuse disorder to be a significant risk to the children.

7.   The judge did not credit father 1's explanation for the eviction.

8.   The mother and father 1 refused to engage in services recommended by the department in their family action plans until the children were returned to their custody.

9.   The paternal grandfather testified that if the department told him that the mother and father 1 could not be alone with Carol and Sara, he would “adhere” to that.

10.   The paternal grandfather also testified that he would not leave father 1 with the children if father 1 “was under the influence.”

11.   The mother argues that it was an abuse of discretion to terminate only her parental rights as to Felipe. However, a judge may terminate the rights of one parent, while keeping intact the rights of the other parent, assuming that it is in the best interests of the child. See Adoption of Xarina, 93 Mass. App. Ct. 800, 803 (2018).