Opinion
No. 13–P–148.
2013-11-1
ADOPTION OF SALVIO.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals the Juvenile Court judge's decree terminating her parental rights and denying her posttermination and postadoption visitation order request. We affirm.
The father stipulated to the termination of his parental rights and is not involved in this appeal.
Discussion. Termination of parental rights. The mother argues that the judge erred by finding her unfit without clear and convincing evidence. A two-step analysis is conducted prior to terminating parental rights: (1) whether there is clear and convincing evidence that the parent is currently unfit, and (2) whether termination is in the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 59 (2011). On appeal, the judge's findings are reviewed for clear error. See Adoption of Greta, 431 Mass. 577, 587 (2000).
Here, the judge's conclusion that the mother was unfit was supported by clear and convincing evidence. The judge properly considered evidence of past parental behavior, failure to address issues with alcohol abuse and dysfunctional relationships, and the child's need for consistency and stability to support the conclusion that the mother is currently unfit to parent the child. See Adoption of Paula, 420 Mass. 716, 729 (1995) (“judge ... may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness”). The mother further argues that the judge's findings were erroneous because he failed to accept her assertion that she benefited from domestic violence education and ended her relationship with the child's father, who was abusive. This argument is unavailing. The judge found that the mother had three different relationships with abusive partners. There was evidence that a social worker working with the mother saw “no indication that Mother was educated in domestic violence and its impact on children.” Further, despite her assertion that she had ended the relationship with the father, on March 20, 2012, the mother told a police officer that she had been calling the father and that he was not returning her telephone calls. It was not error to conclude that the mother has “not shown an ability to protect her children from witnessing domestic violence .”
The mother also contends the judge failed to account for the fact that she has occasionally cared for her other son, who is not involved in these proceedings, without an incident. This argument lacks merit. See Adoption of Cesar, 67 Mass.App.Ct. 708, 712 (2006) (mother may be fit to parent one child and unfit to parent another).
The judge acknowledged that the father is currently incarcerated for a serious crime and that the mother asked him to leave her home on December 14, 2011. However, those facts do not require the judge to find that the child would no longer be at risk of being exposed to domestic violence.
Additionally, despite the mother's argument to the contrary, the evidence of substance abuse was not stale and there was a sufficient nexus between the substance abuse and the mother's ability to care for the child. There was evidence that the mother had been drinking as recently as March 20, 2012, and she could not provide Alcoholics Anonymous logs to the social worker. Compare Adoption of Rhona, 57 Mass.App.Ct. 479, 485–486 (2003) (it is inappropriate to use past drug abuse to predict future behavior when parent is currently four years sober). Further, there was evidence that the mother's substance abuse had previously affected her ability to care for her children. See Adoption of Mario, 43 Mass.App.Ct. 767, 772 (1997) (current unfitness supported by evidence of past neglect “due in part to her drug abuse” and her continued failure to address her drug abuse problem). Compare Adoption of Katharine, 42 Mass.App.Ct. 25, 31 (1997) (noting there was no “history of unacceptable care” due to substance abuse).
The mother has two other children; the oldest is over the age of eighteen, and the other child is not involved in these proceedings. See note 3, supra. Salvio was removed from the mother's care after police responded to a domestic dispute and found the mother intoxicated and the apartment smelling of trash and alcohol. In the past, the mother has been intoxicated in her other children's presence on several occasions and sometimes left them with inappropriate caregivers or alone to use substances or to get treatment.
Posttermination and postadoption visitation. The mother argues that the judge abused his discretion by failing to order visitation between the mother and the child even though he found continued contact was in the best interests of the child. Once a judge decides that visitation is in the best interests of the child, he “must then decide whether an order of visitation is warranted.” Adoption of Ilona, 459 Mass. at 64 (visitation order was not warranted where preadoptive family supported visitation; adoptive parents “will be in best position to gauge whether such visits continue to serve [the child's] best interest”).
Here, the child is bonded to the preadoptive family he has been with for over two years and the judge stated that he “has confidence in the informed decision making and good judgment of the adoptive parents” concerning future visitation. Further, the mother's contention that the preadoptive mother is unsupportive of visitation is overstated. The judge found that the preadoptive mother “wants to do what is best for [the child] regarding future contact with Mother.” There was no abuse of discretion in declining to enter an order of visitation.
A presumption exists that adoptive parents will act in a child's best interests. See Adoption of Ilona, supra at 64. Here, the judge took the prudent further step of assessing the preadoptive mother's feelings concerning visitation before declining to enter an order of visitation.
Decree affirmed.