In re Marissa

99 Mass.App.Ct. 1132

170 N.E.3d 720 (Table)

ADOPTION OF MARISSA.¹

20-P-1268

Appeals Court of Massachusetts.

Entered: July 2, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following an evidentiary hearing in January 2018 on the petition of the Department of Children and Families (department) for care and protection of Marissa, a Juvenile Court judge found that the mother was unfit to parent the child and awarded permanent custody to the department, but did not terminate the mother's parental rights. Thereafter, the mother filed her first motion for review and redetermination, and a hearing was held in December 2018 and January 2019. See G. L. c. 119, § 26. Again, the judge found that the mother was unfit to parent the child but declined to terminate the mother's parental rights. In July 2019, the mother filed her second motion for review and redetermination, and a hearing was held in September and October 2019. The mother now appeals from the resulting decree which found the mother unfit to parent the child, terminated her parental rights, and approved the permanency plan proposed by the department. On appeal, the mother contends that the department did not present clear and convincing evidence that she was unfit, and that the judge abused his discretion in concluding that termination of the mother's parental rights was in the child's best interests. We affirm.

"A person's right to parent her child can be terminated only if a judge determines that she is unfit and that termination is in the best interests of the child. ... [P]arental unfitness must be proved by clear and convincing evidence, and we review the judge's determination of the child's best interests for an abuse of discretion. Subsidiary findings must be supported by a preponderance of the evidence, and none of the findings will be disturbed unless clearly erroneous.^{[3 ]} We review the judge's findings with substantial deference, recognizing [his] discretion to evaluate a witness's credibility and to weigh the evidence." (Quotations and citations omitted.) Adoption of Ulrich, 94 Mass. App. Ct. 668, 675-676 (2019).

There was clear and convincing evidence to support the judge's determination that the mother was unfit to parent the child.⁴ Since the department became involved with the child, the mother has had a long history of struggling with substance use, and the judge properly considered and built upon findings from earlier stages of the proceedings in finding that these issues persisted. See Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). The child, as a newborn, tested positive for marijuana, and the mother admitted to using marijuana and other substances during her pregnancy. Furthermore, the mother neglected the child on multiple occasions and in each instance, there was evidence that she was intoxicated. For example, the mother left the child at the putative father's house without providing supplies necessary to care for her, and the father witnessed the mother stagger away. The father believed the mother was heavily intoxicated, and she had driven to the father's house with the child in the vehicle.⁵ As a result of this incident, the department assumed emergency custody of the child and she was transported to a hospital emergency room to be medically cleared, where doctors discovered that she was malnourished. At another time, when the department conducted an unannounced home visit, the mother was seen fleeing the residence and the child was left in the care of the mother's purported boyfriend, who was intoxicated. The department believed the mother was also intoxicated and when the department offered the mother the opportunity to submit to a sobriety test, she refused it. Though the mother was able to make some strides in curbing her substance use and occasionally regained conditional custody of the child, these incidents demonstrate a pattern of continued use that has repeatedly resulted in the neglect of the child and revocation of that custody. The judge was certainly permitted to consider this evidence of the mother's substance use in finding her unfit. "Evidence of alcohol or drug abuse is also relevant to a parent's willingness, competence, and availability to provide care." Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). A drug habit, on its own, does not make parents unfit if they otherwise are able to attend effectively to the care of their child. See Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997). " ‘[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. 24, 31 (2006), quoting G. L. c. 210, § 3 (c ) (xii).

Furthermore, the mother's continuing issues with substance use make clear that her condition, which has caused her to neglect the child in the past, is "reasonably likely to continue for a prolonged indeterminate period ... [and] makes the parent ... unlikely to provide minimally acceptable care." G. L. c. 210, § 3 (c ) (xii). See Care & Protection of Vick, 89 Mass. App. Ct. 704, 709 (2016) ("[T]he judge did not need to wait for inevitable disaster to happen before acting in the child's best interests" [quotation omitted]). The mother has relapsed multiple times and has failed to meaningfully follow her relapse prevention plan or otherwise engage in treatment. See Adoption of Elena, 446 Mass. at 33-34. Additionally, the mother has been found in violation of the terms of her probation, stemming from her most recent conviction for operating under the influence of intoxicating liquor (second offense), due to her repeated substance use. Finally, the mother, throughout the course of the proceedings, has been unwilling to acknowledge that she suffers from these issues, only fully admitting her problem for the first time during the second review and redetermination hearing. Quite apart from the mother's contention that the department failed to establish a nexus between her substance use and fitness to care for the child, the evidence clearly and convincingly demonstrates that the child is endangered because of a "previous pattern of abuse or neglect" stemming from the mother's substance use issues.⁶ Adoption of Katharine, 42 Mass. App. Ct. at 33.

Likewise, the same factors the judge relied on in finding the mother unfit to parent the child also demonstrate that the judge did not abuse his discretion in concluding that termination of the mother's parental rights was in the best interests of the child. See Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013), quoting ...