Adoption of Doris. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-455
ADOPTION OF DORIS.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Doris appeals from a decree entered following
a trial in the Juvenile Court that found her unfit and
terminated her parental rights. She contends that the judge
erred in finding her unfit and failed to consider all record
evidence. We conclude that the judge's determination of
unfitness is supported by the record, as is evidenced by her
thoughtful and detailed decision. Because the finding of
unfitness is supported by the record and because termination was
in the child's best interests, we affirm.2
Background. The mother does not contend that any of the
judge's factual findings are clearly erroneous. We summarize
the facts as found by the judge. The child was born in 2011.
The mother experienced intimate partner violence with the
1 A pseudonym.
2 The department did not seek to terminate the father's parental
rights, which he retains.
child's father. The child and the mother first came to the
attention of the Department of Families and Children
(department) in 2014 after the department received two reports
filed pursuant to G. L. c. 119, § 51A, alleging neglect. Around
this same time, the child witnessed a physical altercation
between the mother and the maternal grandmother. After an
investigation conducted pursuant to G. L. c. 119, § 51B, the
department supported the allegations of neglect based in part on
the unsafe condition of the mother's room in a homeless shelter
where she and the child lived. The child was removed by the
department for several days while the mother attempted to make
her room safe for the child. Although the child was returned to
the mother, the department removed the child later that same
year so that the mother could again address her housing
situation. On each occasion, the child stayed with the maternal
grandmother. For the next few years, the mother continued to
struggle to provide the child with stable and safe living
conditions.3
The mother also suffered from continuous substance misuse
during the child's early years. The mother's substance use
disorder began when she was herself a teenager. It continued
3 In the first six years of the child's life, the child and the
mother experienced periods of homelessness and lived at five
different addresses. When the mother did have housing, the
living conditions were often unsafe.
2
when, after a sports injury, the mother became dependent on
opiates, using them from 2006 onward. The mother later used
heroin from 2016 to 2018. The mother's addiction continued even
while she engaged in a medically supervised program to safely
wean herself off painkillers. While in this program, she sold
her prescribed Percocet for money.
In August 2018, the mother received a certificate of
achievement from a medical center for her efforts and
accomplishments regarding her attendance in a treatment program.
However, one month later, despite appearing to have turned a
corner, the mother was found in the family home with heroin
residue and was involuntarily committed to a substance misuse
treatment program. She fully participated in drug treatment for
approximately two months and established a support network upon
discharge. Despite this progress, upon her discharge to a
transitional program the mother did not stay in the program, as
she had agreed to, and instead went to live with her boyfriend.
In July 2019, the mother entered another residential drug
treatment program, where the department attempted reunification
with the child. The child was removed from the mother's care
after the mother was arrested for shoplifting, tested positive
for amphetamines, and was found to be using multiple prescribers
for her medications. For these reasons and for knowingly
3
breaking other program rules, the mother was removed from the
program in August 2019.
In September 2019, the mother entered another residential
drug treatment program. Because this program did not allow
children, the department did not discuss reunification with the
mother. While she was in this program, the department changed
the goal for the child from reunification to adoption, citing
concerns about the length of time the child had been in the
department's care and the mother's apparent lack of progress.
The mother completed the program and received another
certificate of achievement in March 2020 and subsequently moved
into her own apartment. After March 2020, the mother
participated in family drug court, engaged with a recovery
coach, attended AA/NA meetings,4 and participated in individual
therapy.
The department remained concerned about the mother's well-
being despite her involvement in treatment because the mother
was presenting as "energetic and slightly disorganized." The
department was also concerned about the mother's sobriety
because she presented as "tired looking." In addition, the
department was concerned that the mother had engaged in several
unsafe relationships and believed that she was continuing to
4 The judge did not credit the mother's testimony that she had
been attending AA meetings since 2018.
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make unsafe partner choices. On August 23, 2020, the mother was
arrested for shoplifting and, in a search incident to arrest,
heroin, fentanyl, clonazepam, amphetamines and methamphetamines
were found in her purse.
Police responded to several calls regarding domestic
violence between mother and her boyfriend on several occasions
from July of 2020 to June of 2021. The department had concerns
about this man, and mother agreed that he was unsafe. Although
mother obtained a restraining order against him and denied being
in a relationship with him, she remained in contact with him.
After a six-day trial, the judge found the mother unfit,
and concluded that termination of her parental rights was in the
child's best interests. The judge approved the department's
plan for the maternal grandmother's guardianship of the child
and issued a decree terminating the mother's parental rights.
Discussion. The mother's primary argument, that the judge
committed error in finding her unfit, rests on three
contentions. First, the mother contends that the department did
not present sufficient evidence to support the judge's
conclusion that the mother failed to gain significant insights
from her participation in services. Second, the mother asserts
that the judge's finding of unfitness unfairly focused on her
past failures and did not consider her recent progress and her
current condition. Third, the mother alleges that the judge
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ignored the mother's commitment to and relationship with the
child. We discuss each of these contentions supporting her
argument in turn, reviewing for either "a clear error of law or
abuse of discretion" (citation omitted). Adoption of Talik, 92
Mass. App. Ct. 367, 370 (2017). Although the mother's arguments
all relate to the finding of her unfitness, we also briefly
discuss how the record supports the judge's conclusion that
termination is in the child's best interests.
1. Mother's unfitness. When determining whether the
parent is currently unfit, "subsidiary findings of fact must be
supported by a preponderance of the evidence, with the ultimate
determination of unfitness based upon clear and convincing
evidence." Adoption of Rhona, 63 Mass. App. Ct. 117, 124
(2005), citing Adoption of Daniel, 58 Mass. App. Ct. 195, 201
(2003). "In order to be clear and convincing, the evidence must
be sufficient to convey a high degree of probability that the
proposition is true. . . . The requisite proof must be strong
and positive; it must be full, clear and decisive" (quotations
and citation omitted). Adoption of Zoltan, 71 Mass. App. Ct.
185, 188 (2008). "Clear and convincing proof involves a degree
of belief greater than the usually imposed burden of proof by a
preponderance of the evidence, but less than the burden of proof
beyond a reasonable doubt imposed in criminal cases" (citation
omitted). Custody of Eleanor, 414 Mass. 795, 800 (1993).
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a. Lack of insight from services. The judge's conclusion
that the mother failed to gain significant insights from her
participation in services is supported by the record. See
Adoption of Elena, 446 Mass. 24, 32-33 (2006) (determination
that "the mother's recent progress at rehabilitation was
questionable" was supported by evidence that "the mother had
availed herself of services that had been offered, but that she
had failed to utilize effectively those services to address
issues of drug abuse and domestic violence"). The mother was
involved in therapy, addiction services, and domestic violence
services. Although we have no doubt that the mother has gained
some benefit, it is clear from this record that, as the judge
describes, the mother has had a "lack of progress in gaining
insight and altering her lifestyle choices." While the mother's
completion of her most recent residential drug treatment program
and the certificate of achievement she received showed progress,
her most recent arrest with drugs found in her purse showed that
she had not undergone the kind of significant change that would
have been required to lead the judge to believe she had gained
meaningful and significant insights from addiction services.
Contrast Adoption of Imelda, 72 Mass. App. Ct. 354, 361-362
(2008). Additionally, the evidence that mother was still in
contact with her previous partner who had been abusive toward
her demonstrated that she did not gain insight from domestic
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violence services. See Adoption of Yvonne, 99 Mass. App. Ct.
579-580 (2021) (judge properly considered how failure to address
domestic violence affected parenting). For those reasons, we
see no abuse of discretion in the judge's conclusion that the
mother failed to gain significant insights regarding
consistently maintaining her sobriety and altering her unsafe
lifestyle choices.
b. Unfitness based on present conditions. "A judge whose
order will have the effect of irreversibly terminating the legal
parent-child relationship 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 who is the subject of the petition." Adoption of
Paula, 420 Mass. 716, 731 (1995). "[W]e recognize that relapse
is part of recovery." Commonwealth v. Eldred, 480 Mass. 90, 99
(2018). Although evidence of addiction is not alone sufficient
to terminate parental rights, "the parent's willingness to
engage in treatment is an important consideration in an
unfitness determination where the substance dependence inhibits
the parent's ability to provide minimally acceptable care of the
child." Adoption of Luc, 484 Mass. 139, 147 (2020).
Here, the judge's findings of fact and conclusions of law
evidence that the judge not only took into consideration the
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mother's past actions, but that the judge also evaluated the
mother's present condition. The mother being found with heroin
in her purse during her recent arrest, in conjunction with her
long history of failing to maintain sobriety, support the
judge's conclusion that the "[m]other's substance abuse issues
have impacted and continue to impact her ability to parent and
care for the subject child." While we applaud the mother's
efforts to overcome her addiction and get the treatment she
needs, her efforts must be viewed against the backdrop of the
evidence supporting a long history of unfitness. See Adoption
of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997) (judge does not
"need to wait for inevitable disaster to happen" and "may
consider past conduct to predict future ability and
performance"). We also see no abuse of discretion in the
judge's determination that this condition is not temporary. See
Adoption of Elena, 446 Mass. at 31 ("[A] condition which is
reasonably likely to continue for a prolonged indeterminate
period, such as alcohol or drug addiction . . . [that] makes the
parent . . . unlikely to provide minimally acceptable care of
the child is not a temporary condition" [quotation and citation
omitted]). The mother's recent criminal history, which directly
evidenced her inability to maintain her sobriety and thus
provide a consistently safe environment for the child, was also
properly considered by the judge. Care & Protection of Quinn,
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54 Mass. App. Ct. 117, 125 (2002) ("Evidence of the [parent's]
criminal record, to the extent that it had a bearing on [their]
fitness as a parent, is germane in care and protection
proceedings"). Additionally, although a lack of housing cannot
alone justify a finding of unfitness, see Adoption of Linus, 73
Mass. App. Ct. 815, 821 (2009), the judge properly considered
the mother's inability to consistently provide safe housing for
the child. See Adoption of Anton, 72 Mass. App. Ct. 667, 676
(2008). The judge also gave the proper weight to the violent
altercation witnessed by the child between the mother and the
maternal grandmother as well as the mother's multiple unsafe
partners. See Custody of Vaughn, 422 Mass. 590, 599 (1996) ("It
is well documented that witnessing domestic violence, as well as
being one of its victims, has a profound impact on children").
In total, the judge's findings evidence consideration of both
the mother's past actions and present condition in assessing her
future unfitness. We discern no abuse of discretion or clear
error.
c. Mother's relationship with the child. Contrary to the
mother's claim, the judge considered the mother's commitment to
and relationship with the child. Among other factors, the judge
may consider the child's existing bonds with the biological
parent. See Adoption of Lenore, 55 Mass. App. Ct. 275, 283-284
(2002). Throughout the findings of facts and conclusions of
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law, the judge points out many factors weighing in the mother's
favor, such as the "[m]other has largely cooperated with the
[d]epartment while engaging in services," and the "[m]other has
maintained meaningful contact with the subject child and has
engaged in services on her action plan tasks." In relation to
the mother's bond with the child, the judge stated that "[t]he
child has a bond with mother," but ultimately found that "the
child has developed a strong bond with her caretaker for the
last two plus years, her maternal grandmother." The findings of
fact and conclusions of law evidence not only that the judge
carefully considered the mother's commitment to and relationship
with the child, but also gave those factors weight in her
deliberations before determining the mother's unfitness. In
summary, the judge's findings evidence that the determination of
the mother's unfitness was based on a "constellation of
factors." Adoption of Greta, 431 Mass. 577, 588 (2000).
2. Child's best interests. "We 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. at 59. "[T]he best interests 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
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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" (quotation and citation omitted). Adoption of Rhona,
57 Mass. App. Ct. at 490. Here, the judge thoughtfully
considered the mother's "ability, capacity, fitness and
readiness," G. L. c. 210, § 3 (c), before deciding whether the
department's proposed plan of guardianship by the maternal
grandmother was in the best interests of the child. She
examined the mother's criminal history, her substance abuse
history, and her history with domestic violence before
determining that termination of the mother's parental rights was
in the child's best interests. The judge also, as previously
discussed, considered the child's relationship with both the
mother and the maternal grandmother before deciding the
department's plan was in the child's best interests. The record
evidence amply supports the judge's findings and determination
that termination of the mother's parental rights was in the
child's best interests.
Conclusion. After a thorough review, we discern no abuse
of discretion or clear error in the judge's decision.
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For that reason, we affirm.
Decree affirmed.
By the Court (Blake, Walsh &
Hershfang, JJ.5),
Clerk
Entered: July 19, 2023.
5 The panelists are listed in order of seniority.
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