Opinion
22-P-484
12-23-2022
ADOPTION OF OLYMPIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is another poignant case in which a parent has tried repeatedly to extricate herself from the devastating cycle of substance abuse and relapse, and a child is caught in the vortex. After sometimes substantial efforts at treatment, the mother has relapsed repeatedly. In the months leading up to trial, the mother ceased treatment, and ultimately ceased visitation with Olympia. She did not appear for trial. On appeal, the mother claims that there was no current evidence of her lack of sobriety, or nexus between her sobriety and the care she gave Olympia, and that the trial judge abused his discretion in terminating parental rights and failing to order postadoption visitation. For the reasons that follow, we affirm.
The father did not appeal from the termination of his parental rights.
"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 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). On appeal, "[w]e give substantial deference to the judge's findings of fact and decision [that termination of a parent's rights is in the best interests of the child], and will 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 Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). See Adoption of Patty, 489 Mass. 630, 637 (2022).
1. Findings. The mother contends that the judge's findings regarding her current fitness and substance use are clearly erroneous because they were based on stale evidence of past substance abuse dating to 2018. We reject this contention for two reasons. First, the mother had an extensive history which the judge was permitted to consider. Second, the judge did have evidence of the mother's conduct since 2018. We explain.
Olympia was born in 2009; she was eleven years old at the time of trial in June of 2021. She was first placed in the custody of the Department of Children and Families (department) in 2013, when her father, with whom the mother and Olympia were living, was shot in their apartment from which he was dealing drugs. Drug paraphernalia as well as traces of cocaine were found in the apartment. In 2015, the parents stipulated to permanent custody of Olympia to the department with a goal of guardianship. Guardianship of Olympia was finalized in 2016, and the case was closed.
The guardianship was terminated in 2019 after the department received reports concerning the guardians’ household. The mother stipulated to unfitness and the department assumed permanent custody of Olympia in November of 2020. The department placed Olympia in a kinship placement with the maternal aunt and her family (preadoptive family), where she resided at the time of trial. Despite the department's efforts to accommodate the mother's schedule for visits with Olympia, the mother missed several visits in 2020 and early 2021. The goal of guardianship was changed to adoption in February of 2021, after the mother told the department not to contact her.
The mother has a long history of substance use. On several occasions between 2013 and 2018, she had periods of sobriety, only to terminate services and relapse. It was during this time that Olympia was placed in foster care and, ultimately, guardianship. Between 2018 and 2020 the mother attended treatment programs and enrolled in counselling. According to the court investigator's report relied upon by the judge, the mother tested positive for fentanyl and cocaine in 2017 and 2018 while she was pregnant with another child (Sara, a pseudonym). Sara tested positive for opiates at birth. The parents’ rights to Sara were terminated, and she was adopted. As of trial, the mother continued to reside with the father.
The mother told the social worker assigned to Olympia's case that she had a history of heroin use and had slipped up on occasion. As a child, the mother had also come to the attention of the department due to allegations that she was abused and neglected.
The mother remained involved with Olympia's father, who was also Sara's father. Sara is not involved in these proceedings.
From November 2019 to October 2020 the mother achieved some equilibrium. She provided urine screens that were positive for prescribed methadone and marijuana, but no other substances, and was involved in outpatient treatment. However, the mother ceased participation in counselling in June of 2020, and ceased participation in an intensive outpatient treatment program in December of 2020. In January of 2021 she cut off all communication with the department, ceased providing urine screens, did not sign releases to verify treatment or methadone maintenance, and, as we have noted, did not visit Olympia. She spoke to her attorney on the day of trial but declined, without apparent explanation, to appear for trial.
"[T]he parent's willingness to engage in treatment is an important consideration in an unfitness determination where the substance dependence inhibits the parent's ability to provide minimally acceptable care of the child." Adoption of Luc, 484 Mass. at 146-147. The evidence before the judge was not stale. At the time the mother cut off communication with the department she had a seven-year documented history of substance abuse, treatment, and relapse, from which the judge was permitted to draw the inference that the mother had relapsed again. "Prior history ... has prognostic value." Id. at 145, quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). Furthermore, the judge was permitted to, and did, draw an inference that the mother was unable to care for Olympia from her decision not to appear for trial. This inference was fair and reasonable in the circumstances. See Adoption of Helga, 97 Mass. App. Ct. 521, 526 (2020). Finally, the judge heard evidence that a department social worker contacted the mother every month between January 2021 and trial, and was told by the mother not to contact her. The mother also told the visitation center not to contact her. See note 6, infra. The failure to appear for trial, the failure to communicate with the department, and the decision to stop seeing Olympia, coupled with the mother's ongoing relationship with the father (who also had a history of substance use disorder), provided current evidence from which the judge was permitted to infer that the mother had relapsed.
We agree with the mother's implicit argument that "evidence of alcohol or drug use is relevant to, but not dispositive of, ‘a parent's willingness, competence, and availability to provide care.’ " Adoption of Luc, 484 Mass. at 147, quoting Care & Protection of Frank, 409 Mass. 492, 494 (1991). "Treatment ‘does not always work the first or even the second time, [and] relapse should not be cause for giving up on’ an individual experiencing substance use disorder (citation omitted). Commonwealth v. Eldred, 480 Mass. 90, 99 (2018). Just as we should not criminalize addiction, see id., parental rights should not be terminated only because the parent has a substance use disorder." Adoption of Luc, supra. However, in this case, the mother was given multiple opportunities for treatment over a period of years, and at this juncture the best interests of the child is paramount.
2. Nexus. The mother claims that there is no showing that there is any nexus between her history of substance abuse and her ability to care for Olympia, stating that "[t]he department did not offer any concrete examples of how Olympia would be harmed by Mother if she were allowed to remain in Olympia's life." For the reasons stated above, the judge did not abuse his discretion by concluding that the pattern of drug use, treatment, and relapse did not provide a stable environment for the child. Nor did the judge abuse his discretion by concluding that the mother's failure to appear for trial indicated a lack of ability to care for Olympia or act in her best interests. See Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017). See also Adoption of Patty, 489 Mass. at 643. By way of concrete example, the mother continues to reside in the same home as the father, who has his own history of substance abuse, and whose parental rights to Olympia have been terminated. As previously noted, the department social worker, whose testimony the judge credited in full, called the mother each month between January of 2021 and trial to arrange visitation. The mother declined each time, telling the social worker and the visitation center not to contact her. The mother, by both word and deed, communicated unequivocally that she recognized that she was not able to care for Olympia. This evidence was "relevant to the determination of unfitness," and the judge's findings were explicit and supported by the record. See Adoption of Luc, 484 Mass. at 147. In these circumstances, the judge could permissibly find that there was clear and convincing evidence that the mother's parental rights should be terminated.
3. Termination vs. guardianship. The mother further contends that termination of parental rights, as opposed to continued guardianship by the kinship placement, was not in the child's best interests, where the mother had periods of sobriety, and Olympia had lived with the preadoptive family (maternal aunt, aunt's partner, and her cousins) for only eight months before trial. Olympia had lived with the mother during the first three years of her life, but not since. The judge found that the child had developed a close bond with her preadoptive family, and that she was fully integrated into the family. Olympia has asked to be adopted by the family. See Adoption of Arthur, 34 Mass. App. Ct. 914, 915 (1993) (not error for judge to giv[e] weight to [child's] expressed desire to be adopted"). The judge also concluded that the child was entitled to a measure of permanence in her life. The case spanned eight years. Olympia was in department custody for six of those years and had already experienced three foster care placements and a rescinded guardianship. We give substantial deference to the trial judge's decision, which fell well within the range of reasonable alternatives. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034 (1999). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
4. Visitation. "In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Ilona, 459 Mass. at 63. See Adoption of Vito, 431 Mass. 550, 562 (2000) ("Adoptive parents have the same legal rights toward their children that biological parents do").
"[O]nce a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation ... with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass. at 64-65. Although the mother asserts on appeal that the judge made no findings concerning the adoptive parents’ ability or willingness to make a reasoned and sensitive decision regarding postadoption visitation, the judge ruled that contact between Olympia and the mother "is most fittingly and properly entrusted to the child's adoptive parents, who will be in the best position throughout the child's minority to determine whether contact and/or visitation will benefit the child in the future and, if so, the manner and nature of any such future contact and/or visitation." Given the distress these visits caused Olympia, and the mother's decision to stop the visits, the judge did not abuse his discretion in declining to issue a postadoption visitation order and leaving the timing of future visits to the adoptive parents, who will be able to assess both the mother's path to recovery and Olympia's needs.
During the period that the mother did visit Olympia, there were difficulties. On one occasion, she appeared smelling of marijuana, upsetting Olympia. During one video call in January of 2020, the mother appeared to be falling asleep. Olympia said she did not want to continue the visits. Visits did resume, however. In May of 2020 the mother mailed Olympia, then ten years old, a shank and pepper spray. The department set up a communication plan, which the mother violated. After the department changed the goal from guardianship to adoption, they instructed the mother not to tell Olympia until they had explained it to her. Disregarding the department's instructions, the mother informed Olympia immediately about the changed goal, after which Olympia did not want to see the mother. The department still tried to arrange visits through a visitation center to accommodate what the mother stated was her new work schedule. She was unable to or did not attend any visits after January 2021. In April of 2021 she told the visitation center that she "was not putting her child through this" and asked the center not to contact her anymore.
5. Constructive denial of counsel. Citing United States v. Cronic, 466 U.S. 648 (1984), and United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the mother argued for the first time at oral argument that her trial counsel's performance was so deficient as to amount to the constructive denial of counsel. "We decline to consider the [mother's] arguments on these points, as they were not raised in [her] brief." T.E. v. A.O., 82 Mass. App. Ct. 586, 599 n.22 (2012). See Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 700 n.14 (2016) (argument raised for first time at oral argument not considered); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Although the mother's brief on appeal challenged what she characterized as a "swift, one-sided" trial, a failure by her counsel to offer or cross-examine witnesses, and deficient fact finding, she made no claim of constructive denial of counsel, and cited no authority for that proposition.
Even if we were to reach the issue, whether in an abundance of caution, as a matter of child welfare, or as an extension of the argument that was made in her brief, the fact remains that the mother had counsel, who appeared at trial. The mother did not appear, thus hampering any effort her lawyer may have otherwise made. This case is therefore unlike those in which there was an actual or constructive denial of counsel. Cf. Cronic, 466 U.S. at 658-659 (dicta regarding denial of counsel at critical stage of trial); Commonwealth v. Valentin, 470 Mass. 186, 197-198 (2014) ("constructive denials of counsel ... occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system").
The mother's true claim is that her counsel was ineffective. See Adoption of Valentina, 97 Mass. App. Ct. 130, 137 (2020). Because the adequacy of representation is raised for the first time on appeal, we have no record on which to evaluate the strategic choices made by counsel, whose client spoke to him on the morning of trial. "Absent exceptional circumstances, we do not review claims of ineffective assistance of counsel for the first time on appeal." Care & Protection of Stephen, 401 Mass. 144, 150 (1987). Cf. Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) ("ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions" [citation omitted]). Moreover, to obtain relief, the mother must show not only that counsel's performance fell below that of ordinary fallible counsel, but that she was prejudiced by counsel's deficient performance. See Adoption of Raissa, 93 Mass. App. Ct. 447, 455-456 (2018). No such showing has been made here.
6. Conclusion. One additional observation is in order. The mother undoubtedly cares for Olympia, and may have terminated contact for that very reason. See note 6, supra. None of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment. A judge may find that a mother loves her child to the best of her ability, but nonetheless reach the conclusion that the best interests of the child warrant termination of parental rights. This is the case here.
Decree affirmed.