ADOPTION OF FARRELL (And a Companion Case). ( 2024 )

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
23-P-1013
ADOPTION OF FARRELL (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parents appeal from decrees entered in the Juvenile
Court terminating their parental rights with respect to their
two youngest children, Farrell and Amy. The parents challenge
both the ultimate conclusion of unfitness and several of the
factual findings on which it stands. The mother additionally
asserts that the Department of Children and Families
(department) failed to make reasonable efforts to reunify the
family. We affirm.
1. Contested findings. We begin by addressing the
parents' claims that several of the trial judge's findings of
fact were clearly erroneous, stale, or incompatible with an
even-handed assessment of the evidence. "In proceedings to
1 Adoption of Amy. The children's names are pseudonyms.
dispense with parental consent to adoption, the judge must make
specific and detailed findings demonstrating that close
attention has been given to the evidence." Adoption of Quentin,
424 Mass. 882, 886 (1997). Subsidiary findings of fact must be
supported by a preponderance of the evidence. See Care &
Protection of Laura, 414 Mass. 788, 793 (1993).
"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). Custody of Eleanor, 414 Mass.
795, 799 (1993). "[T]he judge's assessment of the weight of the
evidence and the credibility of the witnesses is entitled to
deference." Id.a. The mother's sobriety. Both parents argue that the
judge erroneously discredited the mother's assertion that she
had overcome her use of substances "cold turkey" because the
evidence did not establish exactly when she had last used
substances or whether she was still using them at the time of
trial. We see no basis on which to disturb the judge's
credibility determination. The judge was not required to make a
specific finding on the mother's last known date of substance
use before finding that she had "not made or maintained any
observable changes regarding her mental health or substance
2
abuse." This finding was supported by a fair preponderance of
evidence, including the mother's lack of a recovery program and
the father's inconsistent cooperation with the department in
fashioning a relapse prevention plan for the mother. See
Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607 (2012).
In light of the mother's noncompliance with inpatient and
outpatient programs, as well as her failure to consistently
complete action plan items with respect to substance abuse, the
mother's argument that direct evidence of her drug use was stale
or unfounded is meritless. The judge's finding that monthly
drug screening was insufficient to keep the mother's substance
abuse in check was not clearly erroneous. See Care & Protection
of Vieri, 92 Mass. App. Ct. 402, 406 (2017) ("The judge was
permitted to draw a negative inference from the mother's
unexplained refusal to cooperate with the department").
b. Marijuana use. The father challenges the finding that
he gave the mother marijuana in addition to what she procured
for herself. At trial, he testified that he did not supply her
with marijuana and that she obtained her own from a dispensary
-- although he did admit that he took her to the dispensary
every time she went. The discrepancy between the judge's
finding and the evidence is minor. In any event, the parents'
marijuana acquisition and use carried little weight in the
3
judge's conclusion of unfitness, which focused on the mother's
unaddressed misuse of stronger substances.
c. The father's criminal history and police interactions.
The father contends that the judge's finding that he "has a
criminal history and significant police interaction" is clearly
erroneous because all criminal charges against him were
dismissed or nolle prossed. He also takes issue with the
judge's use of the mother's abuse protection orders against him
as a basis for finding that he had a criminal history. We agree
that the finding that he had a criminal history was clearly
erroneous. However, the evidence -- including the dismissed
assault and battery charges from 2013 and 2017 -- does support
the judge's finding that he had "significant police
interaction."
d. Relapse prevention plan. The father challenges the
finding that in July 2020, after the department asked him to
develop a relapse prevention plan for the mother, he
"articulated several reasons why he had not provided one,
including that he did not want to, he was unable to speak with
Mother's providers, [and] he was not understanding why it was
needed." The judge's finding that the father did not understand
"why it was needed" is a plausible interpretation of the
testimony of the ongoing social worker, who listed "not
understanding" as one of the reasons the father did not provide
4
a plan. The finding with respect to this particular
conversation in July 2020 is not clearly erroneous. We do note
that the father was a party to numerous "conversations
pertaining to safety planning around Mother's relapse prevention
plan."
e. Domestic violence. The facts reveal a volatile
relationship between the parents. They obtained several abuse
prevention orders against each other between 2011 and 2019.2 In
July 2021, the father "reported that he was going to leave the
home in fear for his own safety," and with referrals from the
department, he called two domestic violence hotlines for advice.
While recognizing that there was no direct "evidence of physical
force between the parents," the judge concluded that "the level
of mental and emotional abuse enacted by them upon each other is
indeed domestic violence."
We agree with the father's contention that there was no
evidence of physical force or violence that would equate to
"domestic violence" for purposes of determining parental
unfitness. See Custody of Vaughn, 422 Mass. 590, 595-596
(1996). The relationship may have been "toxic and codependent"
in the sense that the parents repeatedly sought distance from
each other and that the father was more of a negative than a
2 The orders, and the factual bases for them, are absent
from the record appendix.
5
positive influence on the mother's deficiencies as a parent. At
trial, the father admitted that the mother could be manipulative
in the sense that "[i]f she doesn't get . . . something she
wants, she, you know, gets angry," and sometimes did so when
their three eldest children were present.3 The issuance of abuse
prevention orders against him is evidence that the mother
experienced a reasonable fear of imminent physical harm from the
father, and the father acknowledges that the department had
concerns about the mother perpetrating domestic violence against
him. The judge had a responsibility to examine the issue
closely and make explicit findings. See id. at 599-600. While
troubling and relevant to the ultimate finding regarding the
children's best interests, these facts do not establish a
pattern of physical force or violence to justify the label of
domestic violence.
f. Special needs. Both parents challenge the judge's
findings that Farrell and Amy each have significant special
needs requiring attention and care that "neither parent is
prepared to effectuate." Farrell has been diagnosed with
attention deficit hyperactivity disorder and receives social and
emotional support through an individualized education program.
The parents rights to their three eldest children were
3
previously terminated, and those children were not a part of
this proceeding. See part 2.a, infra.
6
Amy receives early intervention services, "occupational therapy,
physical therapy, and speech therapy" as a result of substance
exposure at birth, and she has shown symptoms of a milk allergy
and a relatively minor skin condition. Both children are
receiving appropriate care and resources from their preadoptive
caregivers. The judge's findings in this regard are not
erroneous.
2. Parental fitness and children's best interests. Even
if some subsidiary findings are erroneous, the judge's ultimate
conclusion may still be "amply supported" by evidence of a
parent's unfitness. Adoption of Helen, 429 Mass. 856, 859
(1999). We summarize the findings of fact underlying the
judge's ultimate conclusions, discarding any clearly erroneous
findings. Where necessary, we supplement the judge's findings
with evidence from the record appendix, and we reserve certain
facts for later discussion.
a. Background. The mother has lost her parental rights
with respect to all seven of her children.4 She had two children
before her relationship with the father began. She gave birth
to her first child in 1996, when she was a teenager. That child
4 The judge's finding that the mother "has given birth to
six children," rather than seven, is clearly erroneous. The
error is immaterial, however, where the findings referred to all
seven children by name and, in any event, the exact number of
children born to the mother has no bearing on the ultimate
issues here.
7
was removed by the department and adopted after an alleged
domestic violence incident with that child's father in 2000.
The department removed her second child, born in 2006, because
he was exposed to controlled substances at birth. That child
was later adopted. The parents' relationship began sometime
between 2006 and 2009, and they had three children together
between 2010 and 2012. The parents' rights to their first three
children were terminated after a trial in 2015. Farrell, born
in June 2016, and Amy, born in November 2019, are the parents'
fourth and fifth children together. They were born substance-
exposed and have been in the department's custody since days
after their births.5
The mother has suffered from significant substance abuse
and mental health issues for most of her life. She dropped out
of school following the seventh grade. She started using
cocaine and "crack" cocaine at age twenty-one and heroin at age
thirty-one. She has intermittently received methadone
treatments since 2010 and was attending methadone clinics around
5 Farrell tested positive for marijuana and methadone at
birth and suffered withdrawal symptoms in the hospital. The
mother admitted to using heroin, cocaine, and marijuana during
the pregnancy. Amy tested positive for methadone at birth, but
she showed no withdrawal symptoms. The mother admitted to using
heroin, "crack" cocaine, and marijuana while she was pregnant
with Amy. The mother also tested positive for the same
substances, as well as methadone, benzodiazepines, and fentanyl,
earlier in the pregnancy.
8
the time of trial. Still, she continued using heroin and
marijuana during treatment, and by the time of trial, she had
"no recovery program or services other than medication
maintenance and (approximately) monthly urine screens." The
judge discounted any deterrent effect of urine screens because,
in 2016, the father reported that the mother was likely storing
urine to defeat the probation department's drug tests.
The mother has a notable history of crime and encounters
with law enforcement. She has been convicted of possession and
distribution of cocaine and assault and battery by means of a
dangerous weapon. Charges of larceny, attempted larceny, and
uttering a false check were continued without a finding. At the
time of trial, there were multiple open criminal charges against
her for possession of heroin and cocaine, driving with a
suspended license, and leaving the scene of an accident after
causing property damage. The judge permissibly drew a negative
inference from the mother's assertion of her privilege against
self-incrimination when questioned about her arrests and open
charges. See Custody of Two Minors, 396 Mass. 610, 616 (1986).
Unlike the mother, the father does not have a criminal record or
a pattern of serious substance abuse, although he has had
"significant police interaction" and uses marijuana daily,
likening it to "sipping coffee."
9
Both parents have struggled to maintain adequate income and
stable housing. The mother's mental health conditions qualify
her for Social Security disability income, which, around the
time of trial, she supplemented with earnings from two
supervisory retail positions. The father, despite holding a
master's degree and a doctorate in music, has had "a long
history of homelessness and housing instability," as well as
financial instability. He has been employed as a delivery
driver and part-time music teacher.
During the care and protection proceedings for their first
three children, the parents were unable to consistently maintain
electricity, hot water, or clean living conditions in the family
home. In October 2015, they absconded with the three children
to South Carolina without notifying the department, family
members, the children's school, or any collateral resources.
They moved "primarily to evade" the department and "had no
secured housing, no services in place, and nowhere to settle
once they reached South Carolina." The judge did not credit the
father's testimony that he thought they were permitted to leave
the State with the three older children, nor did she credit
either parent's testimony that the mother was sober and did not
suffer from withdrawal symptoms on the way to South Carolina.
To the contrary, the father had to bring the mother to a
hospital at least twice for emergency doses of methadone. Six
10
days after they left Massachusetts, the parents were arrested by
South Carolina police for possession of controlled substances.
Department social workers flew to South Carolina to retrieve the
three children, took custody of them, and placed them in foster
care. The parents followed the three children to Massachusetts.
As noted, the parents' rights to those children were eventually
terminated.
After Farrell's birth, the parents continued to experience
housing instability. During parts of 2018 and 2019, the parents
lived in the father's van, and police officers responded to
calls for wellness checks. While pregnant with Amy in 2019, the
mother entered a residential treatment program for three months.
By the time she left the program and gave birth to Amy, she had
separated from the father and started using substances again.
She stayed in hotels and "sometimes in a car" during this
period. By the spring of 2020, about one year before trial, the
parents had reconciled and were living at a shelter in
Northampton and at times in a boarding house in Springfield.
Violence and substance abuse by the other residents, as well as
the mother's conflicts with other residents, drove the father to
leave on his own and seek housing assistance from the
department. The parents reconciled again at some point and
lived in an apartment in Westfield.
11
In November 2020, the parents moved to Granby, Connecticut,
where they stayed at a motel for "a couple of months" before
leasing an apartment on a month-to-month basis. The father
hoped to distance the mother from her addiction "triggers" in
Westfield, about one-half hour's drive away. They resided in
the Granby apartment at the start of trial. However, after
their relationship with the landlord deteriorated, the parents
lost the Granby apartment in March 2022, while the trial was
ongoing. They failed to attend a virtual home visit scheduled
for the day after their tenancy ended. At the conclusion of the
trial, the parents' living situation was unknown.
The parents' relationship and marriage have been
turbulent. The marriage began in May 2013. The father filed
for his first abuse prevention order against the mother just two
months later. They have separated at least twice, and the
father has filed for divorce at least three times. While there
is virtually no evidence of physical domestic violence,6 the
6 The only arguable instance of physical domestic violence
was when, in 2018, the mother went to a police station and
reported that the father had pulled her out of his van "with
force" following an argument. She left the station before the
police could obtain a formal statement. During a wellness check
the following month, neither parent reported any concerns about
domestic violence. As noted earlier, however, the parents'
successful applications for abuse prevention orders against each
other suggests that the threat of imminent physical harm arising
from the tension in their relationship was present at various
times.
12
father has struggled to set appropriate boundaries to protect
the children from the effects of the mother's mental health and
substance abuse. The father's divorce attempts were apparently
meant to distance himself from the mother's conduct. He
reported the mother's substance abuse incidents to the
department at least twice. Still, the parents remained
committed to each other at the time of trial. The father has
consistently reconciled with the mother to help "keep her in the
game" so that she may one day be "around and healthy" for the
children. Indeed, the parents testified that they intended to
parent Farrell and Amy as a couple.
Both parents failed to cooperate with the department or
show consistent compliance with their action plans. They
refused to meet with department employees or sign releases for
services following Farrell's initial removal in 2016. The
mother inconsistently attended individual counselling and did
not follow through with a psychological evaluation, treatment,
early intervention services, or her parenting group. She has
not cooperated with the department since December 2020. By the
time of trial, she "ha[d] not made or maintained any observable
changes regarding her mental health or substance misuse." While
the father made more progress on the items identified in his
action plans, namely mental health and marijuana use, he
declined to sign off on nearly every action plan, and he
13
disputed most of the action items before he joined the mother in
refusing to cooperate further. Finally, the parents moved to
Connecticut to avoid interacting with the department.
b. Discussion. "To terminate parental rights . . . 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. at 606. In so finding, the judge
"shall consider the ability, capacity, and readiness of the
child's parents . . . to assume parental responsibility
(emphasis added)." Adoption of Elena, 446 Mass. 24, 31 (2006),
quoting G. L. c. 210, § 3 (c). Parental unfitness is not merely
"ineptitude, handicap, character flaw, conviction of a crime,
unusual life style, or inability to do as good a job as the
child's foster parent. Rather . . . parental unfitness means
grievous shortcomings or handicaps that put the child's welfare
much at hazard" (citations omitted). Adoption of Darlene, 99
Mass. App. Ct. 696, 702 (2021). Whether termination of parental
rights is in a child's best interests is within the trial
judge's discretion. See Adoption of Hugo, 428 Mass. 219, 225
(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.
1034 (1999). On appeal, "we must determine whether the trial
14
judge abused [her] discretion or committed a clear error of
law." Adoption of Elena, supra at 30.
i. Termination of the mother's parental rights.
Discounting the few erroneous factual findings, the judge's
decision that the mother is unfit to parent falls well within
"the range of reasonable alternatives" (citation omitted).
Adoption of Xarissa, 99 Mass. App. Ct. 610, 616 (2021). The
record contains voluminous evidence of the mother's substance
use and mental health concerns, past and pending criminal
record, housing instability, and refusal to cooperate with the
department. Farrell and Amy, as substance-exposed newborns,
have been in the department's custody virtually since birth and
have never lived with the mother or the father. The children
have strong bonds and are thriving in their preadoptive homes.
The judge properly considered the mother's likely inability to
meet the children's special needs, as compared to the proven
capability of the preadoptive caregivers. The judge did not
abuse her discretion in weighing these factors to find the
mother unfit.
The mother argues that the judge's conclusion of parental
unfitness was unsupported by clear and convincing evidence that
her substance use and mental health struggles prevented her from
providing the children with minimally acceptable care.
Substance abuse during and after pregnancy, even involving
15
cocaine and similarly dangerous illegal substances, cannot be
the sole ground for terminating parental rights without evidence
that the parent "provide[d] less than minimally acceptable care"
for the child. Adoption of Katharine, 42 Mass. App. Ct. 25, 31
(1997). Here, however, the record contains ample evidence of a
nexus between the mother's substance use and mental health
issues and her ability to parent.
The judge was within her discretion to consider the
mother's decades-long pattern of substance abuse, tendency to
relapse, and apparent willingness to flee the jurisdiction of
both the department and the Juvenile Court. See Adoption of
Elena, 446 Mass. at 33. We defer to the judge's decision not to
credit the mother's testimony that she had become sober and had
stopped using illegal substances "cold turkey." See part 1.a,
supra. The mother failed to make consistent progress in
addressing her mental health conditions to assure either the
department or the judge that she could provide the children with
a baseline level of care. The judge was entitled, if not
required, to view the mother's mental health struggles as
evidence of unfitness. See, e.g., Adoption of Gwendolyn, 29
Mass. App. Ct. 130, 133-134 (1990). "A judge . . . need not
wait for disaster to happen but may rely upon past patterns of
parental neglect or misconduct in determining current or future
16
fitness." See Adoption of Virgil, 93 Mass. App. Ct. 298, 301
(2018).
The mother also takes issue with the judge's conclusion
that, despite completing some action plan items, she "has not
demonstrably benefitted from . . . parenting education," arguing
that the judge disregarded evidence that the mother applied her
parenting education during visits with the children. Although
the mother's conduct during visits was generally appropriate, a
host of other factors weighed heavily in favor of unfitness.
See Adoption of Virgil, 93 Mass. App. Ct. at 303. There is
ample evidence that the mother's compliance with her action plan
was inadequate. She not only failed to participate in the
department's services, but intentionally evaded and circumvented
them by leaving the State with the eldest three children and
falsifying urine screens. In fact, she conceded her
noncompliance, claiming she was fit nonetheless. The mother's
failure to comply with or make tangible progress on her action
plan properly supported the judge's finding of unfitness. See
id. at 302 ("A judge may not decline to dispense with consent
based on a faint hope that the family will succeed if
reunited"). The judge did not err in assigning little weight on
the mother's agreeable behavior during visits. In short, the
mother's appellate arguments "amount to no more than a
disagreement with the judge's weighing of the evidence and
17
credibility determinations regarding witnesses." Adoption of
Don, 435 Mass. 158, 166 (2001).
ii. Termination of the father's parental rights. The
father asserts that, absent the erroneous factual findings, the
remaining facts were insufficient to support a finding of
unfitness. He maintains that he "was sober, maintained a home
for his children, was employed," and "consistently took
appropriate steps to ensure the home his children would return
to was safe by maintaining constant vigilance for a relapse by
mother." While the facts do not establish that the father had a
substance use problem or was consistently unemployed, they
overwhelmingly support the judge's findings that the father was
unable to prevent the mother from relapsing or maintain stable
and appropriate housing for the children.
We recognize that codependency within a committed
relationship is not proof of unfitness. Even so, under these
circumstances, the parents' enduring commitment to each other
conflicted with the best interests of the children. We must
defer to the judge's conclusion that the father is unable to set
appropriate boundaries with the mother. Where the father argues
that the judge "erroneously discredited" his "efforts to live up
to his obligations to his children and his wife," the judge's
findings to the contrary were well within her discretion and
18
entitled to our deference. See Care & Protection of Three
Minors, 392 Mass. 704, 711 (1984).
Finally, we are not persuaded by the father's claim that a
single instance of the judge mixing up the preponderance of the
evidence standard, applicable to subsidiary facts, with the
clear and convincing evidence standard, applicable to the
ultimate conclusions regarding unfitness and best interests,
betrayed a "lack of attention" throughout the decision. This
isolated error was harmless, as the judge repeatedly, in every
other instance, stated the correct standard. See Adoption of
Peggy, 436 Mass. 690, 702 (2002).
3. Reasonable efforts. The mother argues that the judge
erred in terminating her parental rights where the department
failed to make reasonable efforts to assist with reunification.
See G. L. c. 119, § 29C; Care & Protection of Walt, 478 Mass.
212, 221 (2017). Where, as here, "the parent's consent to
adoption of a sibling of the child was dispensed with under
[G. L. c. 119, § 26, or G. L. c. 210, § 3], or the parent's
rights were involuntarily terminated in a case involving a
sibling of the child," reasonable efforts are not required.
G. L. c. 119, § 29C (ii). See Care & Protection of Walt, supra
at 222; Adoption of Ilona, 459 Mass. 53, 60 n.10 (2011). See
also 42 U.S.C. § 671(a)(15)(D)(iii) (reasonable efforts not
19
required if "the parental rights of the parent to a sibling have
been terminated").
Decrees affirmed.
By the Court (Green, C.J.,
Vuono & Massing, JJ.7),
Clerk
Entered: August 8, 2024.
7 The panelists are listed in order of seniority.
20