In re Adoption Virgil

93 Mass.App.Ct. 298

102 N.E.3d 1009

ADOPTION OF VIRGIL.¹

No. 17–P–776

Appeals Court of Massachusetts, Essex..

Argued January 9, 2018

Decided May 30, 2018

Lynn M. Isaman, Lowell, for the mother.

Richard A. Salcedo for Department of Children and Families.

Rachel T. Rose, Boston, for the child.

Present: Trainor, Massing, & Singh, JJ.

TRAINOR, J.

The mother appeals from a decree of the Juvenile Court finding the child to be in need of care and protection, terminating her parental rights to the child, and declining to order posttermination and postadoption visitation.² The mother argues that the judge erroneously found a nexus between the mother's substance abuse, poverty, and homelessness, and her ability to provide minimally adequate care of the child. The mother additionally argues that the judge erroneously admitted and relied upon her substance abuse treatment records in reaching his findings. We affirm.

Background. We summarize the relevant facts and procedural history as set forth in the judge's decision and as supported by the record. The child, Virgil, was born in February, 2010. The Department of Children and Families (department) first became involved with the mother and Virgil in August of 2014 when Virgil's pediatrician filed a G. L. c. 119, § 51A, report (51A report) alleging the mother's neglect of Virgil. The report specifically alleged that the mother was unable to attend to Virgil's hygiene due to her severe depression.³ Within the same month, another 51A report was filed alleging "deplorable conditions" in the mother's apartment. That report alleged that there were flies everywhere, trash on the floor and on the kitchen stove, and a strong odor of cat urine. Both 51A reports were supported by the department.

During an investigation conducted by the department, Virgil's doctor's office reported that the mother was inconsistent with Virgil's medical care, missing more than twenty scheduled appointments for Virgil. In September, 2014, the mother was charged with larceny pursuant to a single scheme of an amount over $250. In October, 2014, the mother was evicted from her apartment. Using funds provided by Compass for Kids, a jobs program for homeless parents, the mother moved to a new apartment. During that same month, the mother was arrested for open warrants pertaining to previous motor vehicle and larceny charges. The department was notified after the mother was unable to make arrangements for Virgil at the time of her arrest. After the mother posted bail, an emergency response worker from the department accompanied the mother to her new apartment to determine its suitability. The emergency response worker observed old food on the counters, dirty dishes piled in the sink, overflowing trash, black trash bags piled around the apartment, and clothes strewn throughout. On November 28, 2014, a department social worker made an unannounced visit to the mother's apartment. Upon arriving, the social worker heard the mother screaming and yelling obscenities at Virgil. Once inside the apartment, the social worker observed that the apartment was "filthy," filled with trash, piles of clothes, and broken items. The department removed Virgil from the mother's care that same day due to the mother's mental health issues and the apartment's condition.

On December 1, 2014, the department filed a petition with the Juvenile Court, pursuant to G. L. c. 119, § 24, asserting that Virgil was in need of care and protection. The department was granted emergency temporary custody. The mother thereafter signed a service plan with the department but ultimately was unable to complete any of the service plan tasks. Starting in June of 2015, the mother failed to attend any of the scheduled visits with Virgil. On August 18, 2015, the department filed its notice of intent to seek termination of the mother's parental rights to Virgil.

In September, 2015, the mother was referred to Habit Opco, a drug abuse treatment facility, after she had been admitted to Lawrence General Hospital for a drug overdose. Upon admission to Habit Opco, the mother tested positive for opiates, cocaine, and buprenorphine. The Habit Opco drug abuse treatment records indicate that the mother informed counsellors that she started using opiates five years prior to her admission and heroin four months prior, and that she was currently using two bags of heroin daily. From March of 2015 to March of 2016, the mother was in and out of several shelters, was arrested for trespassing, and was reprimanded by, as well as asked to leave, various shelters for aggressive behavior. On March 16, 2016, the mother entered a drug treatment program at Women's View, where it was noted that she had a significant risk of relapse. On April 8, 2016, in the middle of trial, the mother was arrested and charged with breaking and entering. A few days after her arrest she was allowed to reenter a shelter, where she tested positive for benzodiazepines.

On or about December 4, 2015, and March 30, 2016, the department filed motions for disclosure of the mother's substance abuse treatment records from Habit Opco and Women's View, respectively; both motions were allowed. After a seven-day trial,⁴ the judge found the mother unfit and the child in need of care and protection, terminated the mother's parental rights, and declined to order posttermination and postadoption visitation.

Discussion. 1. Termination of parental rights. In order to terminate a parent's rights, the department must first prove and the judge must find, based upon the record evidence, that the parent is currently unfit to further the best interests and welfare of the child, and, as a result, the child is in need of care and protection. See Custody of a Minor, 389 Mass. 755, 766, 452 N.E.2d 483 (1983) ; Adoption of Ramona, 61 Mass. App. Ct. 260, 262–263, 809 N.E.2d 547 (2004). A determination of parental unfitness must be supported by clear and convincing evidence, and the subsidiary findings upon which such unfitness determination is based must be "proved by a fair preponderance of the evidence."⁵ Adoption of Helen, 429 Mass. 856, 859, 712 N.E.2d 77 (1999). The judge must not only find that the parent is currently unfit, but must also find that the current parental unfitness is not a temporary condition. See Adoption of Jacques, 82 Mass. App. Ct. 601, 610, 976 N.E.2d 814 (2012). The determination of parental unfitness is not focused on whether the parent is a good one, but rather "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." Adoption of Leland, 65 Mass. App. Ct. 580, 584, 842 N.E.2d 962 (2006), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 694 N.E.2d 27 (1998). "Parental unfitness means ... more than 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.... ‘[P]arental unfitness’ means ‘grievous shortcomings or handicaps’ that put the child's welfare much at hazard." Adoption of Leland, supra, quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28, 674 N.E.2d 256 (1997). A judge, however, need not wait for disaster to happen but may rely upon past patterns of parental neglect or misconduct in determining current or future fitness. See Custody of a Minor (No. 1), 377 Mass. 876, 882–883, 389 N.E.2d 68 (1979) ; Care & Protection of Stephen, 401 Mass. 144, 152, 514 N.E.2d 1087 (1987) ; Adoption of George, 27 Mass. App. Ct. 265, 268, 537 N.E.2d 1251 (1989) ; Adoption of Jenna, 33 Mass. App. Ct. 739, 744, 604 N.E.2d 1325 (1992).

Next, in this bifurcated analysis, if a judge finds that the parent is currently unfit and that such unfitness is not a temporary condition, termination of parental rights requires the additional finding that such termination is in the child's best interests.⁶ "After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that would it be in the child's best interests to end all legal relations between the parent and child." Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). In making that determination, "the court shall consider the ability, capacity, fitness and readiness of the child's parents ... to assume parental responsibility," as well as the plan proposed by the department. G. L. c. 210, § 3(c ), as amended by St. 1999, c. 3, § 17.

"A judge, when deciding whether to dispense with consent to adoption [i.e., termination of parental rights], 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. Predictions must be supported by credible evidence, meaning they must be more than hypothetical. A judge may not decline to dispense with consent based on a faint hope that the family will succeed if reunited. Evidence of future fitness must be more substantial in proceedings to dispense with consent to adoption than in a care and protection case. An estimate about the future rests on a more solid basis for justifying a temporary remedy ( [such as] keeping the child under care and protection) than for an irrevocable one such as dispensing with consent to adoption" (emphasis supplied). Adoption of Inez, 428 Mass. 717, 723, 704 N.E.2d 509 (1999) (quotations and citation omitted). "In determining whether that extreme step [of terminating parental rights] should be taken, consideration of the future is a necessity." Adoption of Carlos, 413 Mass. 339, 350, 596 N.E.2d 1383 (1992). See Adoption of Jacques, 82 Mass. App. Ct. at 610, 976 N.E.2d 814. "Consideration of future fitness, however, should never be made at the expense of the child, whose interest is paramount." Adoption of Inez, supra.

Here, the mother argues that the judge erroneously determined her to be unfit and subsequently terminated...