In re Emma

99 Mass.App.Ct. 1126

170 N.E.3d 345 (Table)

ADOPTION OF EMMA.¹

20-P-974

Appeals Court of Massachusetts.

Entered: May 24, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered by a judge of the Juvenile Court finding her unfit to parent the child and terminating her parental rights. The child was born in 2012, and was six at the time of the trial in 2018. The mother has a history of serious substance abuse, mental health, and domestic violence issues, and the child's life has been marred by instances of neglect by the mother, beginning just after her birth. For most of her life the child has lived with and been in the custody of her maternal grandparents (grandparents), although the mother also lived with the child until October of 2016, and had custody of her for some of the child's first four years. The mother argues that the judge erred (1) in finding her unfit and (2) in denying her motions for a new trial based on a claim of ineffective assistance of counsel.³ We affirm.

Background. We summarize the facts as found by the judge, which are amply supported by the evidence. As indicated, the mother has a lengthy history of mental health issues and abuse of "opiates, heroin, alcohol, [and] prescription medication." She has been diagnosed with anxiety, depression, ADHD, and possible PTSD. After the mother graduated from college, she worked as a paraprofessional at a high school. She met the father when he was one of her students, and he and the mother began dating when he was nineteen years old. The mother and father began to use opiates together. The mother had a positive drug test two months before the child was born. During her pregnancy, the mother was prescribed Subutex. The child was born in July 2012.

The Department of Children and Families (department) became involved with the mother after the child's birth, based on allegations of drug use by the mother. The mother and child lived with the grandparents. When the child was three months old, the grandparents obtained guardianship of her from the Probate and Family Court, after they found the mother unconscious in her room and the child crying on the floor. The grandparents’ guardianship ended after approximately one year, when it appeared that the mother was "doing better." However, in September 2015, the grandparents obtained a second guardianship of the child after they discovered drug paraphernalia (used needles, crushed pills) in the mother's room. The mother briefly regained custody of the child in June 2016, at which time the mother and child lived together in an apartment.

During the period after the mother regained custody in 2016, the department reported that "there were a number of positives for" the mother: she was "maintaining her own apartment, was seeing [a doctor] for Subutex and attending therapy. She had worked with a parenting partner, and had enrolled [the child] in [H]ead [S]tart." The department required that the mother "not allow Father to be in her home or ‘around’ [the child]" because of his lack of compliance with his service plan and their inability to verify that he was sober.

In October of 2016, the mother left the father alone with the sleeping child in her apartment while she went to visit a neighbor. When the mother returned, she found that the father had "trashed" the apartment, and she called the police. When the mother first reported this event to the department, she told them that the father had "broken in" to her apartment, but she told the police that she had invited the father into the apartment to babysit the child (although the father was not supposed to have unsupervised contact). During the subsequent investigation, it was discovered that the mother was missing nine Subutex pills; she could not explain the discrepancy. The department then filed the care and protection petition (petition) at issue in this case on October 25, 2016, the department was awarded custody, and the child was placed with the grandparents.

The police were again called to the mother's apartment five days later, on October 30, 2016, to investigate a report of an argument. The mother answered the door after the police knocked several times, and admitted that the father had been there and that they had been arguing, but that she had allowed the father to leave through the back door when the police arrived.

The mother was initially compliant with her service plan after the department filed the petition, and the department planned to reunify the mother and child in June 2017. However, in or around May 2017 things took a turn for the worse. The mother stopped attending therapy, missed a visit with child, and sounded intoxicated to the department social worker. The mother tested positive several times for marijuana and also Klonopin, for which she had no prescription. She denied being in a relationship with the father, but she was seen with him just outside the department's office, kissing. In September 2017, the department changed the goal from reunification to adoption by the grandparents.

As of September of 2017, the child was living with the grandparents, and mother was living alone. Although she told the department that she worked as a "spiritual medium," she provided no information to substantiate any income, other than from State benefits. In November of 2017 the mother was involved in a domestic violence incident with a new boyfriend; she called the police and told them that he had assaulted and strangled her. Although she told the department that she thereafter had ended the relationship, the mother saw the new boyfriend again in December 2017, and he allegedly assaulted her again. The judge found, based on social media postings presented at trial, that it "appeared" the relationship continued right up until trial in July of 2018.

In addition to the domestic violence, there were several instances of the mother's use of alcohol or other controlled substances during this same period in 2017 and 2018. The mother smelled of alcohol at an afternoon department meeting in October of 2017. She tested positive for cocaine in December of 2017, and for alcohol in February of 2018. In April of 2018 mother again smelled of alcohol prior to her department-supervised visit with the child; she was asked to go for a screening test at a nearby health center, and she left and did not return.

In finding the mother unfit and terminating her rights, the judge discussed all of the above facts. While acknowledging that mother cared deeply for the child and was bonded with her, the judge noted the lengthy history of substance abuse, the prior neglect, and the inability of the mother to avoid or to end violent relationships. The judge specifically found that although the mother had done some substance abuse classes, she "does not have ... insight" into her substance abuse issues, and frequently (and incredibly) denied that she has substance abuse issues. The mother's attitude toward her abusive relationships was very similar; she would deny that she was in such relationships when the evidence showed otherwise, and deny in any event that the abusive relationships created issues for parenting the child. The judge concluded her decision by citing the "[m]other's inability to parent [the child] safely since almost birth."

Discussion. 1. Unfitness. "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 the 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. 601, 606 (2012). We give substantial deference to the judge's findings, which we do not disturb unless they are clearly erroneous. See id. at 606-607. "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). The judge must determine "whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ " Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

The mother argues that "the judge's subsidiary findings fail to clearly and convincingly establish current parental unfitness." We disagree.⁴ The judge's finding of unfitness was warranted by the evidence, which established that "[t]he mother's unfitness resulted from a ‘constellation of factors.’ " Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting Adoption of Greta, 431 Mass. 577, 588 (2000).

Although the judge credited the mother for receiving regular treatment for her opiate use, and for not testing positive for opiates since 2017, the judge found that the mother "struggled to maintain her sobriety." On several occasions in 2017 and 2018, the mother came to the department's office for scheduled meetings and visits with the child smelling of alcohol.⁵ In addition, on multiple occasions the mother tested positive for a medication that was not prescribed to her. Although the mother completed a twenty-eight day outpatient addiction treatment program in May 2018, and testified that she attended between fifty and sixty Alcoholics Anonymous (AA) meetings,⁶ at trial the mother could identify only one of the AA steps. The judge found that the mother did not have an accurate view of whether she had a substance abuse problem,⁷ and that "[t]his lack of insight is likely to continue into the foreseeable future to a near certitude." While there was no direct evidence that the mother's alcohol use affected her ability to parent the child, in the circumstances of this case, it was reasonable for the judge to consider it in assessing the mother's unfitness. "Evidence of...