MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Juvenile Court, a judge found the mother unfit to parent her daughter Amy, terminated her parental rights, and approved a plan of the Department of Children and Families (department) for the guardianship of Amy by the maternal grandparents. The mother appeals, arguing that the judge erred in not finding specifically why termination was in Amy's best interests. She also claims that several of the judge's findings were erroneous. We affirm.
As the judge noted in his findings: "A finding of unfitness does not translate to or imply that the court finds that the parent does not love the children. Rather, the inquiry must be whether the parental deficiencies or limitations put the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." See Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
Background. Amy was born in August 2017. A few days later she was placed in the care of her maternal grandparents, where her four siblings already resided; she remained in that home throughout the duration of this case. Amy was one year old at the time of trial; she was meeting developmental milestones, although there were concerns that she may have hearing loss in one ear. The permanency plan for Amy was guardianship with the maternal grandparents.
Although the mother named the putative father, he did not acknowledge paternity. No person claiming to be Amy's father ever appeared in this action.
Prior to Amy's birth, there already was pending with the department an open care and protection case alleging the mother's abuse and neglect of her twin daughters (by another father). Because the mother was not in compliance with her service plan tasks in that case, including engaging in counseling and having stability in her housing situation, the department filed a petition for care and protection with regard to Amy as well.
The mother never married; she has been involved with the department since 2010 regarding, at one time or another, each of her four other children. Throughout this time, the issues of concern remained substantially the same; specifically, there was evidence of unstable housing; pervasive domestic violence in the mother's relationships with her partners (some of whom fathered one or more of her children); her inability to recognize the impact of domestic violence on her children; neglect of her children; and consistent noncompliance with her department required service plan tasks. Her service plan tasks throughout this care and protection action consisted essentially of requiring her to obtain and maintain stable housing; participate in individual counseling; continue to see her psychiatrist; provide urine screens; complete a domestic violence course or program; attend all court dates and conferences; meet regularly with the department social worker; attend scheduled visits with Amy; and participate in a psychological evaluation.
As noted, the instability in the mother's housing has been an issue throughout this case. She has followed a cycle of homelessness where she would secure a spot in a homeless shelter for a short period of time, then move to a hotel or stay with friends for a few days, and finally, when her money ran out, would live in her car. Although the mother received a monthly Social Security disability benefit, she had failed while living in the shelter to save any of those funds to secure stable housing, as the department had encouraged her to do; she also declined offers from the department to assist her in learning to budget her monthly funds. The mother admittedly understood that stabilizing her housing situation was a prerequisite to regaining custody of Amy. The judge did not find the mother credible when she testified that she would cease living with her then boyfriend and secure a place in a shelter if she regained custody of Amy.
Another ongoing issue was the occurrence of domestic violence in the mother's relationships with each of her partners; her minimization of the abuse she suffered and her unwillingness or reluctance to separate from her abusers were also ongoing problems. In 2011, while in a relationship with the father of her second oldest child, Beth, the mother suffered frequent physical abuse, sometimes in the presence of the children; Beth suffered extensive physical abuse inflicted by her father and the mother; both were charged criminally for what occurred. Nonetheless, the mother remained in the relationship with Beth's father. Moreover, despite the frequent abuse, the mother often left Beth and Susan, her oldest child, alone in the care of Beth's father. The mother admitted to a social worker that, although she knew of the abuse Beth's father inflicted on the children, she did nothing to stop it because she was afraid; in particular, she never called the police. After Beth's injuries were discovered, the mother obtained an abuse prevention order against Beth's father; however, she allowed it to lapse.
The mother reported that while she was pregnant with Beth, Beth's father strangled her, punched her in the head and face, grabbed her arms, and pushed her against the wall. On one particular occasion, while the mother was driving in the car with Beth and Susan, he repeatedly punched her in the face causing her to have to stop the car.
A G. L. c. 119, § 51A, report (51A report) was filed against the mother and Beth's father when Beth was brought to a hospital emergency room in August 2011; after examination it was discovered that Beth had multiple broken bones (two broken ribs, a broken forearm, and fractures to both legs) in various stages of healing, including a fractured skull with bleeding on the brain. Beth was diagnosed with shaken baby syndrome based on retinal hemorrhaging, and she also was grossly underweight. The mother ended her relationship with Beth's father after September 2011, when both were arrested and charged with inflicting Beth's injuries. The mother later pleaded guilty to assault and battery on a child, and served one year of probation on her conviction. Between 2011 and 2012, the mother completed a domestic violence program, although she stated that she "didn't really learn anything" from the classes.
Around this same time, cigarette burn marks were found on Susan's forearm during an examination; Susan reported to a department investigator that both she and Beth had been physically abused by both the mother and Beth's father. The children were removed and the mother never regained custody; the maternal grandparents have permanent guardianship of both Susan and Beth.
The mother has a criminal record, including the conviction for assault and battery on a child with injury, alleged to have occurred in 2011; as noted, she pleaded guilty on that charge in May 2015 and was placed on probation for one year. Her record also shows some other charges, but, other than the 2011 case, nothing later than 2009. A restraining order pursuant to G. L. c. 209A issued against her in 2008 and has since expired.
In 2012, the mother began a relationship with the father of her twin daughters, Ellen and Penny; she testified at trial that he was physically abusive to her and to her dog, and she described him as "crazy when he relapsed" on heroin. She remained in a relationship with the twins' father for four years; during that time he hit her in the face, hit her while she was pregnant with the twins, punched holes in their apartment walls, destroyed her clothing, broke her cell phone, and hit her dog. In September 2017, she recanted her reports of abuse by the twins' father, telling a social worker that he was "not that bad." The judge did not find credible the mother's recantation of the abuse, concluding instead that "the overall tenor of [the] mother's approach was to minimize or explain [away] much of [his] drug use and domestic violence." The mother ended the relationship with the twins' father when he came to the hospital high on heroin after the birth of the twins in June 2016; the department took custody of the twins on June 29, 2016.
The mother eventually reunited with the twins' father while the care and protection case involving the twins was ongoing; in September 2016, there was an incident between the mother, the twins' father, and the Seekonk police involving a police chase (with the mother driving), followed by a hostage situation where the twins' father barricaded himself and the mother in a hotel room she had rented. Despite the fact that the twins' father was wielding a knife during the incident, the mother denied at trial that she was afraid, insisting that she knew that he would not hurt her. The twins' father was charged and incarcerated as a result of the incident. The mother then allowed an abuse prevention order against the twins' father to lapse; she was in contact with him several months before the trial in this case.
The mother also was involved in a short-term relationship with Amy's putative father. She ended the relationship with him two months after he threw her prescribed medication out of her car window; she considered that action a "red flag" for violence. The mother described him as a drug addict, but denied that he otherwise abused her. She ended the relationship with Amy’s father before Amy's birth in August 2017.
While pregnant with Amy, the mother reported to the department social worker that she was arranging for a private adoption of the child. The private agency gave the mother money to obtain housing, but she spent it on other things within a few days; the private adoption never came to fruition. The mother did attend all of her prenatal appointments while she was pregnant with Amy.
In September 2017, the mother began a relationship with a new boyfriend who also was violent toward her; in December 2017, she began living in his apartment. The mother reported that he strangled her, ripped her nails out, hit her in the face with closed fists, and pulled her around by the hair. During meetings thereafter, the department social worker observed bruising (in various stages of healing) on the mother's face, arms, and back. On one occasion, the mother missed a visit with her children because she had two black eyes as a result of her boyfriend's abuse; she testified at trial that the most recent incident of abuse occurred only a few days before trial. The mother declined to get a restraining order against her boyfriend because she was afraid of him, and described their relationship as "scary" and worse than any of her previous relationships. The mother also testified that she would stay in this abusive relationship in order to "have a roof over [her] head."
As of April 2018 (two months before trial), the mother had been terminated from counseling due to her failure to appear; arrangements for a new therapist had been delayed because she allowed her health insurance to lapse. She had not completed any domestic violence programs since 2012; she had not engaged in a medical or psychological evaluation; she had entered into and remained in a new intimate relationship characterized by serious domestic violence; she had missed several visits with Amy; and she had not attended any foster care reviews. She had failed to establish suitable stable housing for herself or for Amy after more than two years, despite receiving monthly disability income. The mother also had consistently declined offered placements in a domestic violence shelter. The judge did acknowledge that the mother consistently had participated in counseling throughout this case (except as noted), and had attended most of her scheduled visits with Amy (and the twins), where she acted "in an appropriate and nurturing manner."
At the time of trial, the mother essentially was homeless after being served with a no trespass order from her boyfriend's mother who owned the apartment where the mother had been living.
Both the mother and the social worker testified at the two-day trial; afterwards, the judge determined, based on clear and convincing evidence, that the mother was currently unfit and that such unfitness likely would continue into the indefinite future "to a near certitude." In making this finding, the judge concluded that the mother had failed to maintain a safe and stable home, and that it was the mother's "choice to be homeless, or to live with men who are abusive." The judge based his decision on the mother's testimony that she stayed involved in relationships in which her partners were physically abusive to her; she also refused to take steps to protect herself (or her children) and to remove herself from those relationships. The judge concluded that the mother "ha[d] shown no progress in developing skills to address her child's needs, despite involvement by [the department] and offered and recommended services ... to ameliorate her" difficulties in parenting. The judge found that the mother continued to minimize or deny the violent characteristics of the men with whom she maintained relationships. She had failed to recognize that domestic violence is a threat to Amy's wellbeing; she had failed to prioritize Amy over her relationships with violent men to the detriment of the child. The mother continually had failed to recognize the impact that her involvement in violent relationships, along with constant homelessness, would have on Amy. She also had not complied with her service plan tasks, or followed through on department recommendations.
Ultimately, the judge concluded that termination of the mother's parental rights would be in Amy's best interests; he approved the department's recommended permanency plan of guardianship with the maternal grandparents where Amy will remain in the only home she has known, with her four siblings. The judge also ordered posttermination and postguardianship visits between the mother and Amy three times per year, unless the child's custodian determined those visits were not in her best interests. The mother timely appealed.
The judge also concluded that it was in Amy's best interests to terminate the parental rights of any unknown or unnamed father (noticed by publication). No legal father acknowledged paternity of Amy, nor appealed the termination of parental rights. See note 3, supra.
The visits with Amy are to be supervised while she is in the department's custody, and then are to be held in a supervision center (at the mother's cost) once Amy is in the custody of the guardians. If the mother misses three visits, her visitation privileges will be revoked.
Discussion. The mother argues on appeal that the judge failed to directly address, or provide an explanation for, the reasons as to why it was in Amy's best interests to terminate the mother's parental rights when the permanency plan for the child was guardianship rather than adoption. She also claims that several of the judge's findings were made in error. We are not persuaded.
A decision to terminate parental rights calls for a two-step analysis. See G. L. c. 210, § 3. See also Adoption of Nancy, 443 Mass. 512, 515 (2005). In order to do so, the judge must first find, by clear and convincing evidence, that the parent is unfit. Id. Second, the judge must determine whether the termination of parental rights serves the best interests of the child. Id. When determining unfitness, "no one factor is determinative and the judge should weigh all the evidence." Petitions of the Dep't of Social Servs. to Dispense with Consen to Adoption, 399 Mass. 279, 290 (1987). The judge "must analyze the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment." Adoption of Carlos, 413 Mass. 339, 348 (1992). "[T]he issue is not ‘whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child’ " (citation omitted). Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Zoltan, 71 Mass. App. Ct. 185, 188 (2008). "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, 459 Mass. 53, 59 (2011).
1. Termination of parental rights. Contrary to the mother's argument that the judge failed to address directly why termination of parental rights served Amy's best interests, the evidence in this case established, as the judge found, that the mother's unfitness was based on her inability to secure and maintain stable housing, and to remove herself from, or to avoid entering into, partner relationships characterized by violence that placed Amy at imminent risk of harm; her unwillingness to prioritize Amy over the mother's abusive partners; and her failure to follow through and comply with her service plan recommendations, especially the participation in a domestic violence program. The pattern of the mother's behavior in failing to separate from abusive relationships, failing to take steps to protect herself and her children from abuse, and, by her own admission, continuing to be involved with abusive partners, the last of whom was even more abusive than the others, has a prognostic effect, demonstrating that the mother has not benefited from the services she has participated in, that she is unfit adequately to parent Amy, and that the mother's unfitness will very likely continue into the future, rendering her unable to provide adequately for Amy's care and safety. "Where there is evidence that a parent's unfitness is not temporary, the judge may properly determine that the child's welfare would be best served by ending all legal relations between parent and child." Adoption of Xarina, 93 Mass. App. Ct. 800, 802 (2018), quoting Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012).
The mother essentially relies on two cases to support her argument; both are distinguishable. First, she claims that the circumstances in this case are similar to those in Adoption of Chad, 94 Mass. App. Ct. at 839-840, where the judge failed to make adequate findings as to how the mother's mental disability and other issues affected her ability to serve her children's best interests. Here, the judge made eighty-nine findings of fact, supporting his conclusion that the mother's continuing parental shortcomings -- from which she had shown no progress during the two years this case was pending -- along with her failure to develop skills to address Amy's needs, directly affected her ability to parent Amy. See Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c ) (judge "shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility").
Second, the mother relies on an unpublished memorandum and order of a panel of this court issued pursuant to the court’s rule 1:28, namely, Adoption of Maisie, 94 Mass. App. Ct. 1117 (2019). Her reliance on Maisie fares no better. She contends that that case is "squarely on point" with this one, where, in that case, the decision to terminate the parents' rights was remanded to clarify the judge's determination as to whether termination was in the children's best interests, given the fact that the permanency plan was for the maternal grandmother to become the children's guardian, rather than their adoptive parent; the judge in that case had failed in her findings to mention the potential for a permanent guardianship placement. See id.
While an unpublished summary decision may be consulted for persuasive value, it is not binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
Here, in contrast, the judge referenced throughout his detailed findings the intended guardianship placement with the maternal grandparents, and it is clear from those findings that the judge considered this to be a permanent placement when he noted that Amy's best interests would be served by providing "some measure of stability to the child's life" after terminating the mother's parental rights. Adoption of Xarina, 93 Mass. App. Ct. at 803. Although "[u]nfitness does not mandate a decree of termination," Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008), and termination is not a prerequisite for guardianship, it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. at 517-518. Termination of the mother's rights in this case "significantly eases the [child's] path to a stable placement." Adoption of Xarina, supra, quoting Adoption of Willow, 433 Mass. 636, 647 (2001).
"The standard for parental unfitness and the standard for termination are not separate and distinct, but reflect different degrees of emphasis on the same factors" (quotation omitted). Adoption of Nancy, 443 Mass. at 515. Here, after first finding the mother unfit, the judge proceeded to the second step of his analysis. See id. In so doing, he considered each of the statutory factors, and based his decision to terminate parental rights on the mother's inability and unreadiness to parent Amy, as well as the advantages of the permanency plan of guardianship with the maternal grandparents -- a stable home where Amy will remain with her four siblings. See G. L. c. 210, § 3 (c ). The judge specified the reasons for his conclusions, described in detail, supra, which, taken together, indicate clearly his view that a decision not to terminate the mother's parental rights would place Amy "at serious risk of peril from abuse, neglect, or other activity harmful to the child." Adoption of Chad, 94 Mass. App. Ct. at 838. Specifically, he noted that, given the mother's history with a series of violent and abusive men, "[e]ach and all of these actions/inactions result[s] in the prognostication that to return the child to her would be to put the child at imminent risk of harm." We discern no error, nor abuse of discretion, in the judge's decision to terminate the mother's parental rights after finding her unfit to parent.
2. Findings of fact. The mother does not challenge the judge's overall unfitness finding. She does, however, argue that "several" of the judge's findings and conclusions are clearly erroneous and not supported by the evidence. In fact, she challenges in her brief only one of the eighty-nine findings of fact (number eighty-eight), and one of the fifty conclusions of law (number twelve). The mother's quarrel with finding eighty-eight is that it is "not a Finding of Fact but rather a Conclusion of Law as set out here as it is cumulative and a conclusion ... -- and as such -- must be struck." She contends, essentially, that the judge's findings overall do not compel a conclusion that her parental rights must be terminated, as opposed to leaving those rights intact, "given that the goal for the [c]hild is guardianship with the maternal grandmother and "termination was not necessary to implement this goal of guardianship." We disagree; as described, supra, the judge made clear his conclusion that terminating the mother's parental rights and permitting the maternal grandparents to be awarded permanent guardianship was in the best interests of the child -- by leaving her permanently in the only home she had ever known, along with her siblings.
Finding number eighty-eight reads, "This court has found by clear and convincing evidence, based upon the subsidiary findings of fact set forth herein, that it serves the best interest of the child that there be a termination of the parental rights of her mother and the parental rights of any unknown/unnamed father, and has so ordered."
The mother's quarrel with "Conclusion of Law #12" is that she contends the domestic violence the mother experienced had occurred in the presence of only one child and not in the presence of "the children." This argument also does not alter our conclusion. Even if we were to find that a single disputed finding of fact or conclusion of law was erroneous, and we do not, considering the remaining findings and conclusions as a whole, "we cannot say that the judge abused h[is] discretion or committed clear error in the ultimate decision to terminate the [mother]'s parental rights." Adoption of Ilian, 91 Mass. App. Ct. 727, 730 (2017). We discern no error in the remaining -- and unchallenged -- findings of fact cited by the judge to support his determination of the mother's unfitness to parent Amy. See Adoption of Garret, 92 Mass. App. Ct. 664, 672 (2018), quoting Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002) ("we do not ‘assess the evidence de novo, but rather ... determine whether the judge's findings were clearly erroneous and whether they proved parental unfitness by clear and convincing evidence’ "). The judge's remaining conclusions of law are fully supported by the record. See Adoption of Elena, 446 Mass. at 31-32.
In that conclusion of law, the judge explained, "In making these determinations, the court may properly rely on prior patterns of ongoing, repeated, serious parental neglect, abuse or misconduct in finding current unfitness." He supported that conclusion with an observation that the abuse inflicted by the mother's various partners had occurred often in the presence of the children.