In re Orion

100 Mass.App.Ct. 1103

172 N.E.3d 435 (Table)

ADOPTION OF ORION.¹

20-P-921

Appeals Court of Massachusetts.

Entered: July 26, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge found the mother and the father unfit to parent the child, entered decrees terminating their respective parental rights, and approved the plan of adoption put forward by the Department of Children and Families (department). Both the mother and the father appeal.³ The child was born in 2013 exposed to methadone and opiates, and was seven years old at the time of trial. While the mother periodically had custody of the child for several years (until 2018), the mother has struggled, among other things, with serious substance abuse issues. The father has been incarcerated for much of the child's life due to drug offenses, and was incarcerated at the time of trial. The mother argues that there was insufficient evidence to support her unfitness, and also that the judge erred when, in 2018, she declined to dismiss the care and protection petition despite a stipulation of dismissal signed by all parties. The father argues, among other things, that the termination of his parental rights impermissibly was based solely on his criminal history and current incarceration, and also that the judge abused her discretion in approving the department's permanency plan of recruitment. We affirm.

Background. We summarize the facts as found by the judge, which are amply supported by the evidence. The mother has a lengthy history of substance abuse including opiates, unprescribed methadone, and marijuana. She has been diagnosed with various mental health disorders including bipolar disorder, attention deficit hyperactivity disorder, panic disorder, agoraphobia, social anxiety disorder, and generalized anxiety disorder, for which she is prescribed certain medications.

As noted, the child was born in March of 2013; he remained in the hospital for approximately one week after his birth to receive treatment for withdrawal symptoms. The department accordingly became involved with the family at the time of his birth; that case was subsequently closed.⁴ The department again became involved with the family in April of 2015, when it learned of a police raid on the mother's apartment at which a significant amount of heroin and drug packaging materials were seized; the father was arrested as a result. After initially denying it, the mother eventually admitted that the child was present at the time of the police raid.

In May of 2017, a G. L. c. 119, § 51A report ( § 51A report) was filed against the mother after police were called to a U-Haul facility where the mother appeared to be under the influence; the child was with her at the time. The mother and the child were transported to the hospital by ambulance, but the mother left the hospital with the child before a toxicology screen was completed. The department assumed emergency custody of the child the next day at the paternal grandmother's house, where the mother had left him the night before "wearing a diaper only, with no clothing."

In September of 2017, the child was returned to the mother's temporary custody, with conditions.⁵ Nine months later, at a hearing on May 18, 2018, a stipulation of dismissal of the care and protection petition was presented to the judge, signed by all parties. The case was set for trial that day, and the department represented that "[a]t this point we do not believe we can meet our burden." The department assured the judge that if a new § 51A report was filed against the mother, it would refile the care and protection action. The child's attorney stated that he had "sign[ed] this agreement with mixed feelings." After reviewing the department's May 18, 2018 letter to the court, in which a "number of concerns [were] raised" about the mother's behavior and parenting, the judge declined to dismiss the case. The mother objected. Temporary custody remained with the mother, with the same conditions.

The child was again removed from the mother's custody shortly thereafter, on July 3, 2018, after the department learned that the mother had again tested positive for fentanyl on May 8 and June 26, 2018.⁶ The mother also tested positive for fentanyl in August and October 2018; indeed, since starting her methadone treatment in July 2017, the mother had tested positive for fentanyl eleven times, and had inconsistently tested for her prescribed medications.

In February of 2019, the department changed its goal for the child from reunification to adoption, due to the mother's continued failure to comply with her action plan tasks. In July of 2019, the mother ended her methadone treatment after failing to comply with the program requirements; neither the department nor her providers recommended that she end her treatment. In October of 2019, the mother was terminated from treatment by her prescribing physician after noncompliance with her prescription medication and a discrepancy in a pill count; she then attempted to obtain her medication from various hospital emergency rooms. The mother failed to participate in an out-patient drug treatment program after agreeing to do so, and between December 2019 and January 2020 she failed to provide any urine screens to the department.

During 2019 the mother missed nearly half of her scheduled weekly visits with the child. On at least two occasions she appeared for a visit while under the influence of substances, resulting in the visit being canceled. The mother was also consistently late for visits, and due to the mother's consistent tardiness, the department changed the visitation protocol by requiring her to arrive at the department offices one hour prior to her scheduled visit; she failed to do so. In February of 2020, the visits were reduced to every two weeks.

As to the father, the judge found that he had an extensive criminal record dating back to 1992, which had resulted in significant periods of incarceration. As noted, the father was arrested for distributing drugs out of the family home in 2015, for which he was serving a four- to six-year sentence at the time of trial; his anticipated release date was March of 2022. The father also was a drug user, and had been receiving methadone treatment at the time of his 2015 arrest. Because the father planned to reside in a halfway house if paroled early and had not developed a custody plan, he was unavailable at the time of trial and beyond to parent the child. The father proposed placement of the child with the paternal grandmother.

In finding the mother and the father unfit and terminating their respective parental rights, the judge discussed all the above facts. The judge specifically found the mother's trial testimony "largely not credible," and concluded that the mother was "unable, or unwilling, to take responsibility for her myriad parenting deficiencies." The mother also failed to understand how her substance abuse, and her inability to consistently take her prescribed medications, affected her ability to parent the child. In addition, the mother had not engaged in provided services consistently, and aside from the period between February and April of 2019, her attendance at visits with the child had been inconsistent.

The judge likewise found the father unfit. The judge cited not only the father's extensive criminal history and multiple terms of incarceration, but the judge also concluded that the father "ha[d] not demonstrated an ability to live a stable, crime-free life when not incarcerated." Even if paroled before 2022, the judge found that the father's intention to live in a halfway house was not an appropriate environment for the child. The father proposed only the paternal grandmother as an alternative placement option for the child, despite her already being denied by the department as a viable placement due to her own criminal history, which included drug charges.

Finally, the judge concluded that the mother's and the father's parental shortcomings were likely to continue undiminished into the future.^{7 ,8} This appeal followed.

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 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 subsidiary 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).

1. The mother. The mother argues that the department's evidence failed to show that her issues -- and in particular, her substance abuse -- had any significant impact on her parenting of the child, and accordingly that there was insufficient evidence to support termination of her parental rights. The mother also argues that the judge erred when she declined to dismiss the case in the face of a stipulation of dismissal signed by all the parties.

We first address the judge's decision not to dismiss the case in May of 2018, when presented with the signed stipulation of dismissal. There is considerable force to the argument that this was error, as all parties who had appeared in the action had stipulated to the dismissal, including the child. Contrast Care & Protection of Benjamin, 403...