ADOPTION OF SIBYL v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued decrees finding that the mother was unfit to assume parental responsibility of her three children, terminated her parental rights, and approved the adoption plans proposed by the Department of Children and Families (department). On appeal, the mother claims the evidence of unfitness was insufficient, the judge erred in his application of certain statutory factors, and he minimized her progress during the case, and therefore, termination was not warranted.³ We affirm.

1. Background. We draw on the four hundred and thirteen findings of fact made by the trial judge, which find ample support in the record. In October 2015, the department filed a petition alleging that Sibyl (born in 2010) and John (born in 2015) were in need of care and protection based on allegations of abuse and neglect of the children by the mother. Days after Joseph's birth, in 2017, the department filed a petition alleging that he was in need of care and protection, based in part on the fact that the mother tested positive for marijuana early in the pregnancy.

Throughout the pendency of the case, the mother was unable to maintain appropriate and consistent housing for herself and her children. Her eviction from public housing in June 2016 made her ineligible for housing assistance for three years. She also struggled with drug use and alcohol, and was inconsistent in her compliance with her service plan tasks. She complied for short periods of time, but ultimately relapsed into noncompliance for longer periods of time. Although the mother enjoyed periods of consistent visitation with the children, she also missed visits because she overslept or missed her bus. She violated department directives by bringing other people to the visits without permission, had to be reminded to limit her use of electronic devices during visits, cancelled visits, and arrived late or unprepared for visits. In March 2018, the mother missed four visits with Joseph due to her active alcohol use. She failed to engage in individual therapy for blocks of time. The mother also failed to meet with department workers at times and withheld information from the department regarding relevant issues including her substance use, relationships, and domestic violence. Importantly, from April to October 2018, the mother hid the fact that she was pregnant with her fourth child, who is not subject to this appeal, from the department.

By the end of the trial, the mother was in a residential substance abuse treatment facility, and in substantial compliance with her service plan tasks. Notwithstanding, the judge found that there no was evidence that the mother could maintain her sobriety, compliance, and stability while living in the community. As a result, the judge found that the mother was unfit to parent the three children, and that it was in the children's best interest to terminate her parental rights.

2. 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).

Notably, the mother does not claim that the judge's findings as to her past instability were clearly erroneous. Instead, she contends that the judge erred in failing to consider her progress in determining that she was currently unfit. We are not persuaded.

a. Housing. The judge found that the mother was unable to maintain stable and appropriate housing for both herself and the children. The mother counters that her housing issues stemmed from poverty and not a lack of effort or failure to utilize services. It is true that poverty cannot serve as a sufficient basis for a finding of parental unfitness, see Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006), and while the mother's financial situation may have contributed to her housing instability in this case, it was not the cause of it.⁴ The mother was evicted from public housing as a result of too many people in the home and multiple noise complaints. Put another way, it was the mother's actions that caused her to be evicted and subsequently banned from public housing, not her financial situation.

At the time of the trial, the mother remained in a residential program where there were concerns about her cleanliness and clutter. And, while she was on a waiting list for subsequent housing, the mother's housing was in flux at the conclusion of the trial. Moreover, while the mother's housing at the time of trial was trending toward stable, the judge found that she may have to leave that housing two months after the trial ended. In any event, the mother's housing was not appropriate for the children as it was only temporary. The judge did not err in considering the inadequate housing in determining the mother's unfitness. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (“judge properly concluded that parent's unstable housing ․ had deleterious effect on child” [citation omitted]).

b. Stale evidence. The mother argues that any issues with her substance use, domestic violence, and anger management were resolved by the time of the trial, and therefore the judge improperly relied on stale evidence. We disagree. 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).

The mother smoked marijuana during her pregnancies and care of the children. After Joseph's birth, the mother stopped smoking marijuana, and turned to alcohol. Her drinking was so severe that it interfered with her ability to function. “Evidence of alcohol or drug [use] is ․ relevant to a parent's willingness, competence, and availability to provide care.” Anton, 72 Mass. App. Ct. at 676. Here, the judge's findings reflect a multiyear history of the mother's use of substances with short term sobriety prior to trial. See Adoption of Luc, 484 Mass. 139, 144-145 (2020) (past conduct relevant in determining fitness).

Additionally, the mother has a pattern of choosing partners who are abusive to her, and to whom she has been abusive. Importantly, she failed to recognize why this is problematic. In fact, two weeks prior to the trial, the mother told the department social worker that she hoped the putative father of her fourth child (and of Joseph) would get alcohol treatment so that the pair could coparent, notwithstanding their history of domestic violence. The mother disclosed that on one occasion, she gave that putative father a black eye, and on another occasion, she punched him so hard that she fractured her own fingers. “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. 132, 139 (2004). The mother's unwillingness to extricate herself from the putative father of her fourth child, and other abusive relationships, properly informed the judge's determination that she was unfit. The judge need not “wait for inevitable disaster to happen.” Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997).

As to anger management, the mother's inability to manage her anger is best evidenced by the mother's disclosure that she had been arrested for assault and battery at least six times.⁵ Although a parent's criminal history alone is not sufficient to terminate parental rights, “evidence of prior convictions may be properly weighed in the balance [of parental fitness].” Care & Protection of Frank, 409 Mass. 492, 495 (1991). In addition, the mother was written up at her residential program for verbal altercations with other residents.

3. Statutory factors. The mother contends that the judge erred in his consideration of certain statutory factors.⁶ General Laws c. 210, § 3 (c), sets forth fourteen nonexclusive factors that must be considered in determining current parental fitness and whether termination is in the children's best interest. See Adoption of Bea, 97 Mass. App. Ct. 416, 427 (2020). The mother's principal claim, as to the statutory factors, is in the judge's application of factor (iii). See G. L. c. 210, § 3 (c) (iii). The preconditions of application of this factor provide that “a court of competent jurisdiction has transferred custody of the child from the child's parents to the department, the placement has lasted for at least six months and the parents have not maintained significant and meaningful contact with the child during the previous six months nor have they, on a regular and consistent basis, accepted or productively utilized services intended to correct the circumstances” (emphasis added). G. L. c. 210, § 3 (c) (iii). Here, there was meaningful, albeit not consistent, contact with the children. Notably, the judge's analysis of factor (iii) is centered on the mother's failure to accept or to consistently utilize services designed to correct her circumstances, which finds overwhelming support in the record. In addition, the judge also acknowledged the children's bond with the mother as reflected in his decision to order posttermination and postadoption visitation. However, to the extent the judge's treatment of factor (iii) may have been error, in consideration of the totality of his findings and conclusions, we see no basis to disturb his decision.

The mother's claims regarding the judge's application of the remaining contested factors also fail. The judge made the required findings about each factor including bonding, the mother's condition, including substance use, which made it unlikely she could provide minimally acceptable care to the children, and as discussed supra, her inappropriate housing, domestic violence relationships, anger management, and noncompliance with services. There was no reversible error.

4. Termination of parental rights. The mother argues that the judge abused his discretion in terminating her rights claiming any issues were temporary and therefore termination was premature. For many of the same reasons discussed supra, we are not persuaded. The judge properly considered the mother's current situation in light of her past history. Indeed, “[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. 298, 302 (2018), quoting Adoption of Inez, 428 Mass. 717, 723 (1999).

To the extent that the mother disagrees with the trial judge's assessment of the credibility of the witnesses and the weight of the evidence, we must defer to the judge. See Adoption of Elena, 446 Mass. 24, 31 (2006). The record demonstrates that the judge did not ignore the gains that the mother had made. Rather, he considered them against the backdrop of her past actions. The judge properly focused on the mother's limited insight into the needs of the children and her role in their removal from her care. The mother did not understand how her aggression, substance use, choice of partners, inconsistent engagement in services, and lack of stable housing impacted her children. 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 department). Moreover, the children are entitled to finality. “Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, 459 Mass. at 60, citing Adoption of Elena, supra, 31-32. There was no error.

Decrees affirmed.

FOOTNOTES

3.   The three children have different biological, legal, or putative fathers. No father participated at trial and no father has appealed.

4.   The mother was current in her rent. She was charged $150 in connection with the replacement of the stove in her apartment, for which she was required to make small installment payments.

5.   The record is silent as to the disposition of these cases. The mother was also charged with larceny. Again, the record is silent as to the disposition of the larceny case.

6.   General Laws c. 210, § 3 (c) (ii), (iii), (iv), (vii), (viii), and (xii).