ADOPTION OF OPAL (And Two Companion Cases). ( 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-975
ADOPTION OF OPAL 1 (and two companion cases 2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found the mother
unfit to parent Opal, Nisa, and Tessy and terminated her
parental rights. 3 The mother appeals, contending that the judge
abused his discretion by relying on clearly erroneous findings
and conclusions of law regarding domestic violence in the
parents' relationship, her housing instability, and her mental
health concerns. We discern no abuse of discretion or error of
law, and affirm.
Background. The mother and father were in a relationship
for approximately fourteen years. The oldest child was born in
June 2011. When the family resided in Rhode Island, Rhode
Island's Department of Children, Youth, and Families removed her
1 A pseudonym.
2 Adoption of Nisa and Adoption of Tessy, both pseudonyms.
3 The father stipulated to the termination of his parental rights
and waived his right to appeal.
twice, in November 2011 and December 2012, due to substance
abuse concerns and unsanitary conditions in the home.
The family came to the attention of the Massachusetts
Department of Children and Families (DCF) in April 2014, when
the middle child was born substance exposed and DCF received
G. L. c. 119, § 51A, reports (51A reports) that the mother
tested positive for illicit substances during her pregnancy.
DCF subsequently opened a case for services. Between 2017 and
2018, DCF received multiple additional 51A reports alleging
neglect of the two older children, including both parents'
overdoses. The mother had overdosed after dropping off the
children at daycare, and police discovered her unresponsive in
her car. DCF also found that the parents were not engaging in
services with providers. At the conclusion of its investigation
in October 2018, DCF removed the two older children from their
parents' care and filed a care and protection petition.
Following this removal, the middle child reported to the court-
appointed investigator that it makes her sad when her parents
fight, and when asked what her parents do when they fight, she
responded: "Daddy hit mommy. Daddy yells, mommy doesn't.
Sometimes mommy hits."
Four months after the two older children returned to their
parents' care, in December 2019, DCF became involved with the
2
family again when they got into a car accident. 4 At the time of
the accident, the mother was pregnant with the youngest child,
and the two older children were not in car seats. 5 Police found
in the car drug paraphernalia, including a metal spoon and
syringe, and prescription medication, which the mother admitted
she was not taking as prescribed and was sharing with the
father.
In March 2020, the youngest child was born substance
exposed. The family had been residing in a home in Ashland
owned by the mother's family. DCF informed the parents multiple
times that the father should not be in the home until he
completed a long-term treatment program for substance abuse.
Based on continuing concerns about the parents' substance abuse,
their inaccurate reporting to DCF, and the father's unpermitted
presence in the home, DCF removed all three children in April
2020 and filed a second care and protection petition.
4 The precise circumstances of the accident were somewhat
unclear. A DCF social worker reported that (i) the parents
provided "inconsistent information regarding which adult had
been operating the vehicle," (ii) the mother identified herself
as the driver, and (iii) the parents "eventually explained that
[the father] drove the vehicle at the time that the accident
occurred, but that [the mother] moved to the driver's seat after
the accident happened." The trial judge found that the "parents
were inconsistent in their account of the incident regarding who
was driving"; and that the mother "claimed she was driving the
vehicle" and that she "hit a pole and totaled the front of the
vehicle."
5 As a result of the accident, the mother was charged with child
endangerment. The charge was later dismissed.
3
Between October 2020 and January 2021, the mother was
repeatedly hospitalized or in residential treatment programs.
In October 2020, the mother entered a residential treatment
program but was terminated the same day when she left and did
not return after a visit to the hospital. She then entered a
second residential treatment program, Hart House, in November
2020. Twice in December 2020, during meetings at Hart House,
the mother and her social worker discussed domestic violence
concerns in the parents' relationship. In the second meeting,
the mother disclosed a history of domestic violence in their
relationship, including physical, verbal, and emotional abuse.
At trial, the mother denied physical abuse by the father but
testified that they verbally and emotionally abused each other.
In January 2021, Hart House terminated the mother from its
program after she got into an altercation with another client.
The mother refused a referral to a third residential treatment
program. Following her eviction from the Ashland home in
February 2021, the mother stayed at a sober house for
approximately a week, and then moved into a friend's house for
approximately another week. After a brief hospitalization, she
returned to the friend's house, where she remained through
trial. As the mother had been unwilling to provide information
about her residence to her social worker, DCF did not know her
whereabouts until trial.
4
Discussion. "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 Ilian, 91 Mass. App. Ct. 727, 729 (2017), quoting
Adoption of Ilona, 459 Mass. 53, 59 (2011). "We give
substantial deference to the judge's decision to terminate
parental rights '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 Talik, 92 Mass. App. Ct.
367, 370 (2017), quoting Adoption of Ilona, supra. "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.'" Adoption of
Larry, 434 Mass. 456, 462 (2001), quoting Custody of Eleanor,
414 Mass. 795, 799 (1993).
1. Domestic violence. "It is well established that
exposure to domestic violence works a 'distinctly grievous kind
of harm' on children, Custody of Vaughn, 422 Mass. 590, 595
(1996), and instances of such familial violence are compelling
evidence for a finding of parental unfitness." Adoption of
Talik, 92 Mass. App. Ct. at 374. "A judge may properly consider
5
a parent's decision to remain in a relationship with an abusive
partner in determining parental fitness." Adoption of Jacob, 99
Mass. App. Ct. 258, 265 (2021).
The record supports the judge's findings and conclusions
regarding domestic violence in the parents' relationship.
During a meeting with her social worker at Hart House, the
mother disclosed a history of domestic violence with the father,
including physical, verbal, and emotional abuse. The mother
further testified at trial that she and the father verbally and
emotionally abused each other. In addition, the middle child
reported to the court-appointed investigator that when the
parents fought, the father "hit" the mother and yelled, and the
mother "[s]ometimes . . . hits" as well.
The judge found it particularly concerning that the mother
remained involved with the father, despite her own recognition
of their relationship as unhealthy and disruptive to her
stability. Indeed, the mother allowed the father in the home
when she knew her DCF action plan forbid him from returning
until he completed a substance abuse treatment program, and the
parents were "always together" according to their social
workers, contrary to the mother's consistent assertions to the
social worker who assumed the family's case in December 2020
that she had ended her relationship with the father.
6
Based on the reports of domestic violence from both the
mother herself and the middle child and the mother's inability
to distance herself from the father whom she disclosed as her
abuser, the judge appropriately considered the issue of domestic
violence in making his determination as to the mother's fitness. 6
2. Housing instability. The inability to secure "adequate
stable housing" is properly considered in determining a parent's
unfitness. Adoption of Anton, 72 Mass. App. Ct. 667, 676
(2008). See Petitions of the Dep't of Social Servs. to Dispense
with Consent to Adoption, 399 Mass. 279, 289 (1987). Moreover,
"it is proper for a judge to consider a parent's living
arrangements at the time of trial despite the fact that the
child was not living with her at that time." Adoption of
Virgil, 93 Mass. App. Ct. 298, 303 (2018).
The evidence supports the judge's conclusion that the
mother lacked stable housing. At the time of the children's
final removal, the mother was residing in the Ashland home. She
subsequently attempted to participate in two residential
treatment programs but left one program on the first day and did
6 The mother also takes issue with the judge's finding that the
mother did not engage in domestic violence treatment, pointing
to the absence of such treatment requirement in her DCF action
plan. While the mother is correct that DCF did not add domestic
violence treatment to her action plan, the judge did not
significantly rely on the mother's failure to engage in such
treatment to draw his conclusions about domestic violence in the
parents' relationship.
7
not return and was terminated from the second for not following
program rules; the mother also refused a referral to a third
program. After her eviction from the Ashland home, the mother
stayed at a sober house for a week, then moved in with a friend.
As the mother had been unwilling to inform her social worker,
DCF learned of her present living situation only at trial and
was not able to conduct home visits until then. See Adoption of
Yvonne, 99 Mass. App. Ct. 574, 581 (2021) (judge properly
considered housing instability where DCF was "unable to verify
the mother's living situation or to conduct home visits"). The
judge also found that the mother had no concrete plans for
acquiring adequate and permanent housing if she were to be
reunified with her children. At trial, the mother gave unclear
and inconsistent testimony regarding how long she planned to
stay with her friend. 7 There was, thus, ample evidence to
support the judge's conclusions about the mother's housing
instability.
3. Mental health. "Mental disorder is relevant only to
the extent that it affects the parents' capacity to assume
parental responsibility, and ability to deal with a child's
7 The mother initially testified that she would stay with her
friend for six months to a year or a year and a half. She
subsequently testified that she and her friend agreed on three
months. The judge found her testimony about her housing "vague
and confusing."
8
special needs" (emphasis deleted). Adoption of Luc, 484 Mass.
139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9
(1989). Failure by the parent to recognize the need for or to
engage consistently in mental health treatment is relevant to a
determination of unfitness. See Adoption of Luc, supra;
Adoption of Eduardo, 57 Mass. App. Ct. 278, 281-282 (2003). A
trial judge is permitted to use "past conduct, medical history,
and present events to predict future ability and performance as
a parent." Care & Protection of Bruce, 44 Mass. App. Ct. 758,
761 (1998).
The mother does not challenge the judge's findings and
conclusions regarding her substance abuse but challenges those
about her mental health, arguing that there was no nexus between
her mental health diagnoses and her ability to parent. The
record, however, indicates that her substance abuse and mental
health issues were closely related, and supports the judge's
conclusion that her failure to address her mental health issues
directly contributed to her inability to parent her children.
The mother was diagnosed with attention deficit disorder or
attention deficit hyperactivity disorder, anxiety and panic
disorders, and schizotypal disorder. Her mental health
challenges led to multiple hospitalizations, including one for a
suicide attempt after taking twenty to thirty tablets of Xanax
in November 2020 and for severe depression and suicidal
9
ideations after relapsing on fentanyl in March 2021. DCF
offered services to address these challenges, but the mother did
not consistently engage in therapy or counseling, complete or
provide neuropsychological and medication evaluations, and sign
releases for DCF to speak with her providers.
The record further supports that the mother's failure to
address her mental health issues and misuse of prescribed and
nonprescribed substances "interfered with her ability to assume
parental responsibilities." Adoption of Jacob, 99 Mass. App.
Ct. at 265. When the mother hit a pole while driving and
totaled the front of the car, she was pregnant with the youngest
child, the two older children were not in car seats, and police
found in the car drug paraphernalia and prescription medication,
which the mother admitted she was not taking as prescribed and
was sharing with the father. While in the mother's care, the
oldest child's school attendance and punctuality were
inconsistent. In addition, after DCF took custody of the
children, the mother failed to consistently visit them, not
visiting in person from November 2020 to March 2021, canceling
visits last minute, and missing scheduled phone calls. Based on
this evidence, the judge appropriately considered the mother's
mental health concerns in determining unfitness.
Though the record supports the judge's findings and
conclusions on domestic violence in the mother's relationship
10
with the father, her housing instability, and her mental health
concerns, taken as a whole, we note as well that the judge's
decision did not rely heavily on those shortcomings. Instead,
the mother's unresolved substance abuse, which the mother does
not challenge, was at the center of the judge's determination of
her unfitness. The mother had an extensive history of substance
abuse and did not consistently participate in treatment to
address this problem. DCF removed the children from her care
multiple times due to substance abuse and overdose concerns
among others. The mother's housing instability was also in part
a consequence of her discharge from residential treatment
programs.
Conclusion. The judge did not err in considering evidence
of domestic violence in the mother's relationship with the
father, her housing instability, and her mental health concerns,
in reaching his conclusion that the mother is unfit. In any
event, the judge did not rely solely or even principally on
those factors; he properly considered, among other additional
factors, the mother's substance abuse issues and inconsistent
engagement with services, both of which the mother does not
challenge. We conclude that the judge did not abuse his
discretion in finding the mother unfit, or in concluding
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termination of the mother's parental rights to be in the best
interests of Opal, Nisa, and Tessy.
Decrees affirmed.
By the Court (Green, C.J.,
Desmond & Hodgens, JJ. 8),
Clerk
Entered: October 19, 2023.
8 The panelists are listed in order of seniority.
12