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ADOPTION OF VAN v. << (2021)

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Appeals Court of Massachusetts.



Decided: March 04, 2021

By the Court (Sullivan, Massing & Englander, JJ.2)


The mother appeals from a decree entered in the Juvenile Court finding her unfit to assume parental responsibility, terminating her parental rights, awarding custody of the child to the Department of Children and Families (department) with the goal of adoption by the paternal grandparents, and declining to order postadoption visitation.3 On appeal, the mother contends that the judge erred in finding that her unfitness was not temporary and abused her discretion in declining to order postadoption visitation. We affirm.

Background. The mother was placed in the department's custody as an infant. At the age of two years she was placed with a family, who adopted her at age seven years. The adoptive parents abandoned the mother at a hospital two years later. She had suffered physical and sexual abuse while in their care. She was subsequently placed in twenty different group or therapeutic foster homes. At the age of sixteen years she went back to her biological mother, who was addicted to drugs.

The mother has a long history of untreated mental illness (depression, anxiety, PTSD) and substance use (cocaine, heroin, fentanyl). The mother became pregnant at the age of twenty and moved in with the child's paternal grandparents, where the mother and child lived after the child's birth in April 2013. For the first one and one-half years of his life, the child was reported to be clean, healthy, and up to date on immunizations.

In November 2014, while the mother and child were living in a shelter, the department concluded that allegations of neglect were supported. The department took custody of the child following a report that the child was twice left unattended in the shelter. After the temporary custody hearing, the department retained custody of the child, but placed him with the mother. Soon thereafter the child was placed with the paternal grandparents while the mother moved into an apartment; the plan was to reunify the mother and child if the mother completed certain tasks.

For a brief period of time after the child's placement with the paternal grandparents, the mother made significant efforts to establish herself in the apartment, stay sober, and find employment. She was unable to complete the tasks outlined by the department's action plan, however, and the effort at reunification failed. In 2015-2016, she was asked to complete drug screens and a psychiatric evaluation and she did neither. The mother stipulated to her unfitness in February 2016 and her last visits with the child were in December 2017. After she stipulated to unfitness, the mother became increasingly disengaged from the department, which eventually lost contact with her. In July 2019 the mother made contact with the department regarding her case, but did not appear for scheduled appointments or at the October 2019 trial.

Discussion. Parental rights may not be terminated unless “a judge ․ find[s] 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 Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (quotation and citation omitted). Adoption of Cecily, 83 Mass. App. Ct. 719, 726 (2013). We review the trial judge's rulings “to determine whether there was any abuse of discretion or error of law.” Adoption of Lisette, 93 Mass. App. Ct. 284, 292 (2018), citing Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

1. Temporary condition. To terminate parental rights, the judge must find that “the current parental unfitness is not a temporary condition.” Adoption of Querida, 94 Mass. App. Ct. at 777, quoting Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). The mother contends that the judge erred in finding that her unfitness was not temporary and terminating her parental rights. The judge entered factual findings that the mother was unable to care for the child for several reasons, all of which support the judge's ultimate conclusion that the mother's condition was unlikely to abate and that parental rights should be terminated.

a. Mental illness and substance abuse. The judge properly considered the mother's history of unremediated mental illness and untreated substance abuse. She has a history of depression and suicidal ideation, anxiety, and PTSD. She was hospitalized as a child and has participated in individual therapy as an adult. But since she made the decision to stipulate to unfitness, she entered a downward spiral. At the time of trial, she was not receiving treatment for her mental illness.

The mother also has a history of largely untreated addiction to multiple substances, including heroin, fentanyl, crack cocaine, prescription drugs, and alcohol.4 See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (“Evidence of alcohol or drug abuse is ․ relevant to a parent's willingness, competence, and availability to provide care”). In 2018, the mother overdosed and Narcan was required to revive her. The mother attempted to detoxify twice, but on both occasions she left the treatment facility against medical advice after two days; the most recent detoxification attempt was in July 2019.

The judge could properly consider “a condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction ․ or mental illness, and the condition makes the parent ․ unlikely to provide minimally acceptable care of the child.” G. L. c. 210, § 3 (c) (xii). See Adoption of Luc, 484 Mass. 139, 146-147 (2020) (untreated mental illness); Adoption of Elena, 446 Mass. 24, 31 (2006) (untreated substance abuse).

b. Stability. The judge's determination that the mother was unable to provide a stable and safe environment for the child is also supported by the evidence. The mother did not comply with the action plan, keep up with the visitation schedule, or maintain contact with the department. See Adoption of Xarina, 93 Mass. App. Ct. 800, 803-804 (2018) (mother's unfitness supported by findings of continued failure to engage in services, attend visits with child, and “work with the department or notify them of her whereabouts”). In addition, since the child was placed with the paternal grandparents in December 2014, the mother has been charged with numerous offenses, including assault and battery on a family or household member, possession of controlled substances, and misdemeanor breaking and entering, a charge that was filed when she was homeless and using a “boarded up building” as shelter from the cold. At the time of trial, the mother had several active warrants for her arrest. While charges are just that -- charges -- the judge could take into account the fact that the outstanding warrants were indicative of a lack of stability in the mother's life, a lack of stability which would impact the child. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (“Stability in the lives of children is important”).

c. Domestic violence. The judge found that the mother was “the perpetrator of domestic violence in the presence of children.”5 To address concerns about the mother's aggressive behavior, the department asked the mother to learn anger management techniques and engage in counseling as a perpetrator of domestic violence. The mother failed to complete the required classes. “It is well established that exposure to domestic violence works a ‘distinctly grievous kind of harm’ on children.” Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595 (1995). See Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019), quoting Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) (“Violence of temper ․ might constitute unfitness”).

d. Loss of contact. The department lost contact with the mother after her last visit with the child in December 2017. In July 2019, the mother contacted the department and stated she was aware that the department's goal changed to adoption and she wanted to speak with a social worker with regard to what she could do to regain custody. However, she did not appear for scheduled meetings and did not answer telephone calls; she also had not seen the child for almost two years before the October 2019 trial. See Adoption of Xarina, 93 Mass. App. Ct. at 804 (mother did not visit child or maintain contact with department). The judge also permissibly drew a negative inference from the mother's absence at trial. “[A]n adverse inference [may] be drawn against a parent who, having notice of the proceedings, is absent from a child custody or termination proceeding without an adequate excuse.” Adoption of Helga, 97 Mass. App. Ct. 521, 525 (2020).

e. The department's care of the mother. The mother contends that the department abused and abandoned her, leaving her with a well-deserved distrust of the department, and that it was therefore an abuse of discretion to terminate her parental rights. We are not unsympathetic to the mother's past history and the impact of that trauma on her current condition. We must, however, be guided not by our concerns about the mother's treatment by the department, or her best interests, but by the best interests of the child. “A judge ․ must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child. Predictions must be supported by credible evidence, meaning they must be more than hypothetical.” Adoption of Virgil, 93 Mass. App. Ct. at 302, quoting Adoption of Inez, 428 Mass. 717, 723 (1999). The judge did not err in determining that the clear and convincing evidence of the mother's mental health, substance abuse, history of domestic violence, and failure to visit the child or appear at trial demonstrated a likely long-term inability to care for the child. On that basis, the judge's ultimate conclusion that termination was warranted was fully supported by the record.

2. Postadoption visitation. The judge found that postadoption visitation would be in the best interests of the child but determined that an order was not necessary. The mother contends that the judge abused her discretion in declining to order visitation, instead leaving it to the paternal grandmother to determine when and if the mother could visit the child. “In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?” Adoption of Ilona, 459 Mass. 53, 63 (2011). See Adoption of Vito, 431 Mass. 550, 561-562 (2000) (“Adoptive parents have the same legal rights toward their children that biological parents do”).

When the child was first placed with the paternal grandparents, the mother was allowed to visit three times a week. The mother was inconsistent in appearing for her visits. Since stipulating to her unfitness, the mother attended ten of twenty-five visits between March and December 2016. The mother was then offered weekly visits in 2017, but she only attended two. The last supervised visit the mother had with the child was on December 27, 2017.

“[O]nce a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation ․ with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest.” Adoption of Ilona, 459 Mass. at 64-65. The paternal grandmother testified that she believed it best for the child to have a relationship with his parents and that she would allow the mother to visit so long as she was sober. The judge did not abuse her discretion in declining to issue a postadoption visitation order.

Conclusion. One additional observation is in order. Despite the moral overtones of the statutory term “unfit,” the judge's decision was not a moral judgment. A judge may find that a mother cares for her child to the best of her ability, but nonetheless reach the conclusion that the best interests of the child warrant termination of parental rights.

Decree affirmed.


3.   The putative father stipulated to his unfitness in March 2016 and the court terminated parental rights of any unknown/unnamed father in April 2016.

4.   While the mother resided with the child's paternal grandparents, she drank alcohol to the point that she slurred her speech, stumbled when she walked, and became aggressive. The paternal grandmother also witnessed the mother purchase and consume prescription painkillers. Hospital admissions records indicated polysubstance abuse, and she admitted to drinking daily, and to taking a variety of opiates.

5.   The paternal grandmother also testified to a history of domestic violence and erratic behavior by the mother while she resided in her home.

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