Opinion
No. 15–P–993.
05-27-2016
ADOPTION OF XANDRA (and a companion case).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parents appeal from decrees of the Juvenile Court, finding them unfit and terminating their parental rights to two minor children. The mother argues that there was not clear and convincing evidence that she was unfit at the time of trial, or, in the alternative, that any unfitness was only temporary. She claims that certain of the judge's findings are not relevant, while others are clearly erroneous. She also asserts that the statutory factors relied on by the judge to determine unfitness did not apply to her, and that the judge's decision to terminate her parental rights is predicated on past conduct (domestic violence and substance abuse), ignoring her progress and current circumstances. The father argues that the police reports detailing incidents of domestic violence between the parents, which were not admitted at trial by agreement of the Department of Children and Families (department), were nonetheless relied on by the judge to support certain findings. He also contends that several of the judge's findings are erroneous, or “erroneous by omission,” and that a number of conclusions of law are not supported by the facts in evidence. The children support the judge's decision in all respects. We affirm.
The mother contends that findings 66–69 are irrelevant; findings 75 and 85 focus only on the mother's “minor” relapse in the fall of 2012, and the parents' homelessness; findings 107 and 108 are erroneous; and findings 85, 87–88, and 90 are misleading and not indicative of parental unfitness.
We do not consider the challenged findings in deciding this case.
Findings 32, 66–68, 79, 81, 87, 103, 104, 113; conclusions of law 13–15, 17.
Background. The judge heard the following evidence. At the time of trial, the parents had been together for approximately seven years, the most recent two as a married couple. When the present case began on March 26, 2012, the parents had custody of the mother's five children. During March, 2012, the department received four reports of domestic violence and drug use in the family home; an additional allegation of neglect was reported when the maternal grandmother, believed to be intoxicated, crashed her car into a pole while the mother and four of her children were in the car.
The father is the biological father of Xandra (born in May, 2009) and Susan (born in February, 2011), the youngest of the five children. The three older children have a different biological father; we refer to him as John Smith, a pseudonym. Our use of “parents” refers to the mother and father of Xandra and Susan. Although the three older children were initially part of the underlying petition, a permanent guardianship was granted to their paternal grandmother (Smith's mother) after the first day of trial by stipulation. The three older children are not involved in this appeal.
The department has been involved with this family since the parents' relationship began in 2007 ; in 2007 and 2008 there were reports of neglect of the three older children due to ongoing domestic violence and substance abuse issues in the home. The parents were arrested in April, 2008, and charged with rape and kidnapping as a result of a sexual incident with a third party, involving drug use and culminating in domestic violence, which was witnessed by the children. The three older children were temporarily placed with the maternal grandmother as a result of the parents' incarceration.
The department was also involved in 2004 during the mother's prior long-term relationship with Smith; there were ongoing domestic violence and substance abuse issues during that relationship as well.
The rape and kidnapping charges were dropped.
In March, 2012, the underlying petition was filed after allegations of neglect were supported, and all five children were removed from the home. The three oldest children were placed with the paternal grandmother, and Xandra and Susan were placed with a family friend. After two months, custody of Xandra and Susan was transferred from the family friend to the department, and they were placed in foster care; they remained in department custody at the time of trial. Although the department attempted to reunify the family in the fall of 2012, the effort was unsuccessful because the parents had become homeless, and the mother had several positive drug screens. In February, 2013, the department received a report that the father had sexually assaulted one of the mother's older children years earlier; the allegations were supported after investigation by the department.
The department initially had difficulty locating Xandra and Susan after the petition was filed, as both had been staying with the family friend for some time before they were removed; the father had told the department that he and the mother had previously given the two children to the family friend. When the family friend was contacted by the department, she stated that the mother was in drug treatment and had not recently been to see the children.
The child later recanted.
Xandra and Susan are currently together in a preadoptive placement; they share an extremely close bond. Xandra, age five at the time of trial, takes medication to help her sleep but is otherwise in good health; she has some behavioral problems “and is described as being full of rage and anger.” Susan, age three at the time of trial, is in good health; after one year of early intervention services to address speech delays, she was found to have greatly improved; after the services ended, however, her speech regressed and she stopped speaking. The children appear to be happy and content in their preadoptive placement; the adoptive parents are willing to continue contact between the children and the parents after adoption.
After a trial on the merits, the judge found both parents unfit to parent the children and terminated their respective parental rights. Supervised biannual posttermination and postadoption visits between the parents and children were ordered, based on the existing parent-child bond; sibling visits were encouraged consistent with the children's best interests. Both the mother and the father timely appealed.
Discussion. “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[ren] and that termination is in the child[ren]'s best interests.” Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). In determining whether the best interests of the children are served by a termination of parental rights, we “ ‘shall consider the ability, capacity, and readiness of the child[ren]'s parents ... to assume parental responsibility’ (emphasis added).” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G.L. c. 210, § 3(c). In doing so, “[w]e give substantial deference to a judge's decision ... 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).
The mother. The judge's findings of fact and conclusions of law, for which there is record support, establish the mother's unfitness clearly and convincingly. The mother has a long history of substance abuse, often using drugs in the home while the children were present. She has admitted to her lack of control over drugs, and there is substantial support in the record to find that the mother has been and is a drug addict. Although the judge did acknowledge the mother's participation in drug treatment programs, including the prescribed use of methadone and Suboxone, she also considered the mother's relapses during this treatment, and the several positive drug screens and interruptions in the mother's treatment. She reasonably concluded that the mother continues to be a drug addict. In addition, the mother testified that both parents continue to go to bars and drink alcohol.
The parents' primary care provider, who was treating the mother for substance abuse, reported that in the year before the trial, the mother “had some relapses over the course of the last six months, with both opiates and alcohol.”
Even though the parents have complied with various aspects of their respective service plans, they still may be found unfit if they do not demonstrate that they have benefited from the services provided. See Adoption of Lorna, 46 Mass.App.Ct. 134, 143 (1999).
While the mother was actively using drugs, the department received several reports of her neglect of the children, including some predating the filing of this petition. The judge's findings and conclusions demonstrate a link between the mother's substance abuse and the abuse and/or neglect of her children. Compare Adoption of Katharine, 42 Mass.App.Ct. 25, 30–32 (1997). The mother's inability consistently to assume parental responsibilities, including maintaining her sobriety and understanding the harmful effects of her substance abuse on her children, support the judge's conclusion that the mother has failed to remediate her shortcomings. See Adoption of Nancy, 443 Mass. 512, 516 (2005). See also Adoption of Carla, 416 Mass. 510, 517 (1993) (prognostic evidence based on ongoing pattern of negative behavior is appropriate in determining future parental fitness and likelihood of harm to children).
The mother has been arrested three times, the most recent arrest being in November, 2013, for disorderly conduct; the case was still pending at the time of trial.
The judge also found that the parents' relationship has been permeated with incidents of domestic violence, some in the children's presence, with many arguments between the parents escalating to physical altercations. The mother reported to the department that she and the father went through a very bad period in their relationship when they were drinking and using drugs and their situation was “out of control.” However, the issues appear to be ongoing. In November, 2012, Dr. Michael Sherry, a licensed psychologist, conducted a domestic violence and batterers' evaluation of the parents, and reported that “violence has been a regular feature of [the parents'] relationship.” He opined that “now that both are apparently clean and sober, [the problem of domestic violence] is still significant and worrisome.” In particular, the mother reported to Dr. Sherry that the children have not been affected by witnessing or overhearing the parents' arguments or fights. Doctor Sherry concluded that neither parent recognized that exposing the children to domestic violence over many years, including substance abuse, verbal abuse, and physical violence is “baleful to the children.”
The mother testified that she sometimes was the aggressor—yelling, swearing, and shoving the father.
Dr. Sherry's conclusion that the parents were “clean and sober” appears to have been based on their own report.
In addition, the mother continues to downplay the domestic violence and, at least at the time of trial, had no intention of separating from or divorcing the father. She clearly fails to recognize the harm that exposure to domestic violence has had on all of her children. See Custody of Vaughn, 422 Mass. 590, 595 (1996) (witnessing domestic violence is itself “grievous” harm). This inability to appreciate that harm bears on the mother's ability to parent and to protect her children from future abuse. See Adoption of Mary, 414 Mass. 705, 711 (1993).
Prior to her marriage, the department had advised the mother not to have the father around the older children until he agreed to take advantage of suggested services. She was not willing to follow that advice.
Finally, the parents have failed to provide stable housing. In the fall of 2012, at the time that reunification with the children was being planned, the parents were living in a hotel, and then, later, in their car. They did secure housing in April, 2013, but the judge found that “the parents cannot afford their rent based on income they earn, which presents a real risk of becoming homeless again.”
The mother's claim that the judge's findings and conclusions are based on past conduct and not on her most recent progress is without merit. Her inconsistent participation in drug treatment and continued drinking with the father (as recently as two weeks before trial) show the mother's inability to recognize and to comprehend the risk of harm this behavior has had, and will continue to have, on her children. The mother's belief that remaining in a relationship with the father is not harmful to her children is also indicative of her inability to assume parental responsibility in the near future, supporting the judge's determination to terminate her parental rights. “ ‘[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.” Adoption of Elena, 446 Mass. at 31, quoting from G .L. c. 210, § 3(c )(xii).
The father. Putting aside the challenged findings referencing certain police reports, there remains ample evidence to support the determination of the father's unfitness and termination of his parental rights. The father has freely admitted that he is an alcoholic, yet he continues to consume alcohol. He also has failed to seek treatment for his alcohol addiction, despite the department's service plan tasks. The judge did acknowledge that the father was treating his drug addiction with Suboxone, although he noted that the father had relapsed as recently as 2013. See Adoption of Elena, supra.
The father's history of domestic violence extends well beyond his relationship with the mother; his two prior relationships involved domestic abuse, and he has been the defendant in least eight civil restraining orders. The judge acknowledged the father's participation in a 2012 domestic violence and batterers' evaluation (another service plan task) with Dr. Sherry, and also that the father had begun an anger management course in 2013. According to Dr. Sherry's report, however, the father fails to recognize the effect that the verbal and physical violence between the parents has on the children. See Custody of Vaughn, 422 Mass. at 595–596. The father does not believe in divorce, telling the department that the only way his relationship with the mother will end is if “either I kill her or she kills me.” The domestic abuse also has occurred in the presence of the children; the judge found that the father's inability to recognize the harm to the children in witnessing such violence affects his ability to parent. See Adoption of Mary, 414 Mass at 711.
The judge also focused on a 2013 psychological and parenting fitness evaluation performed by Dr. David Tobin during which the father denied any domestic abuse in his relationship with the mother. Dr. Tobin reported that testing data revealed “a disturbing picture of [the father as] a substance abusing, manipulative, controlling, aggressive, and self-centered sociopathic individual, who has poor coping skills, poor judgment, problems with reality testing, problems with emotions, and limited ability to feel closely connected to others.... This clinical picture is also consistent with concerns raised by DCF including the history of substance abuse, a history of domestic violence, and a history of sexual exploitation and abuse of his [step]son, a vivid example of poor judgment.”
Although the father told the department he had been prescribed and was taking medication for depression, he failed to provide evidence of this. He also failed to address his diagnoses of schizophrenia and bipolar disorder, and has failed to attend individual therapy consistently as required by his service plan. The judge properly focused on the father's “parenting and its actual and predicted effects on” the children, and not on his mental illness, in determining the father's unfitness. Adoption of Eduardo, 57 Mass.App.Ct. 278, 283 (2003).
Finally, the father's criminal record, to the extent it bears on parental fitness, can properly be considered in determining parental unfitness. See Care & Protection of Frank, 409 Mass. 492, 494 (1991). Here the father's lengthy criminal record includes kidnapping and rape charges, weapons and intimidation charges, as well as drug possession and distribution charges. In addition, the father served several prison sentences between 1999 and 2009.
Different from the April, 2008, charges referenced in note 7, supra.
Conclusion. Considering only the findings that were not challenged, it is clear that the judge's remaining thoughtful and detailed findings of fact and conclusions of law amply demonstrate the parents' unfitness by clear and convincing evidence. As a result, we see no abuse of discretion, and no error, in the judge's determination that termination of the parents' rights is in the children's best interests.
Decrees affirmed.