In re Adoption of Elena

• Decision Date: 31 January 2006
• Citation: 446 Mass. 24,841 N.E.2d 252
• Parties: ADOPTION OF ELENA (and two companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 252

841 N.E.2d 252

446 Mass. 24

ADOPTION OF ELENA (and two companion cases¹).

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued December 8, 2005.

Decided January 31, 2006.

Brian Pariser for Department of Social Services.

Garry M. O'Brien, Boston, for the children.

Robert J. McCarthy, Jr., for the mother.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

SPINA, J.

In an unpublished opinion pursuant to its rule 1:28, the Appeals Court vacated the orders of a judge in the Juvenile Court terminating the mother's parental rights to three of her five children.² The Appeals Court affirmed so much of the orders as determined that the mother was unfit to assume parental responsibilities as of the time of trial, but it concluded that the trial judge failed to consider properly whether the mother's unfitness at the time of trial was temporary, based on recent progress she had made at a drug rehabilitation program. The court remanded the matter for further proceedings concerning the status of the mother's recovery efforts and her current relationship with her three youngest children. See Adoption of Elena, 63 Mass.App.Ct. 1103, 823 N.E.2d 434, 2005 WL 444475 (2005). We granted the application of the Department of Social Services (department), joined by the children, for further appellate review. We conclude that the judge did consider whether the mother's unfitness was temporary, and that his decision to terminate the mother's parental rights was based on an appropriate assessment of the evidence and was not an abuse of discretion. We therefore affirm the judgments.

1. We summarize the facts found by the judge. The mother was born in 1967 and graduated from high school in 1985. She met her first husband while attending college. They married and had their first child during the summer of 1986. The couple separated in 1987 due to the husband's abuse of heroin and his emotional abuse of the mother.

The mother began a relationship with another man in 1987. He became the father of her second child, born in 1990. The couple used drugs during their relationship, and eventually separated due to his physical and emotional abuse of the mother and her two children.

The mother became involved with a third man who, like the others, was physically abusive to her and her children. Elena was born to this couple, in 1997. The mother and Elena's father were heavy drug users during their relationship. Following their separation, the mother returned to the father of her second child. They had two more children — Fred, born in 1999, and Alan, born in 2001 — and they married in 1999 after the birth of Fred. After Alan was born, they separated again due to the husband's physical and emotional abuse.

The children first became involved with the department in October, 1997, because of concerns of neglect, drug abuse by the mother, and physical abuse of the mother and her two oldest children by Elena's father. The case was closed within one week because the mother obtained a protective order and actively was pursuing services. In addition, although she admitted past use of drugs, she denied current use, and a random drug screen of the mother was negative. A second case was opened in November, 1998, involving concerns of neglect, as well as physical abuse of the children by the man who would become the mother's second husband. The case was closed in March, 2000, after the department determined that the needs of the children were being met by their mother and the man who by then had become her second husband, and the family had cooperated with the services provided.

The family again became involved with the department in February, 2001, initially over concerns of neglect and physical abuse of the children by the mother's second husband. After investigation, the allegation of neglect was supported. Subsequent allegations of neglect by the mother were supported after investigations in June and September, 2001. On September 7, 2001, the mother tested positive for cocaine despite her denial of substance abuse. She did not submit follow-up screens requested during the assessment period.

On September 25, 2001, the oldest child telephoned her paternal grandmother to report that the mother had been arrested and that the mother's boy friend of two weeks was in charge of the children. She reported that there was no food in the house and that the younger children were without diapers. The grandmother telephoned the department.

When social workers arrived, the boy friend was lying on the couch. The five children were present. The apartment was filled with trash, dirty clothing, empty food containers, and dirty dishes. The stench of garbage and urine permeated the apartment. Broken dishes and glass littered the floors. The exits were blocked by mounds of trash and debris. Seven month old Alan was lying on a dirty mattress. His diaper disintegrated when a social worker picked him up. Fred's diaper, his only clothing, was "full." He was covered with dried food, and he had a rash. Elena was naked and no clean clothing could be found for her. The oldest child reported that she had tried to care for the other children but was overwhelmed. The children were removed from the home.

After the children were removed it was discovered that the mother essentially had "abdicated her role as parent to her [oldest child, who was then fifteen years of age], and to a lesser extent [her twelve year old son]. [The mother's] life centered on her own drug abuse and open sexual excess with a parade of abusive drug involved men." The eldest child has been diagnosed with anxiety and posttraumatic stress disorder. The two oldest children expressed a desire never to return to their mother's care.

The mother's partners physically and emotionally abused the children. The mother's response to the abuse of her children was ineffectual. There was occasional weak intervention and sometimes none at all. On one occasion, her response to the children's complaints was to tell them to stop exaggerating. On another occasion, she joined her partner in inflicting emotional abuse.

The mother frequently had sexual relations in the presence of her children. She would have sex with men in exchange for cocaine. Drug abuse has been a major factor in the mother's life over the years. It not only disabled her ability to parent but also exposed the children to drugs, drug paraphernalia, and other drug users. She facilitated drug deals, and often left her children in the care of drug users who came to the apartment while she went out to get drugs for them. Her oldest child's exposure to the drug trade was so extensive that she could describe drug paraphernalia in minute detail, as well as various methods used to ingest controlled substances.

After the children were removed from the home in September, 2001, the mother waived a custody hearing, and on October 1, 2001, the children were placed in the custody of the department. A service plan was devised with a goal of family reunification. One component of the plan required the mother to participate in an inpatient drug rehabilitation program. She was given the names of four programs, but made no meaningful effort to avail herself of the services. She submitted to only three of more than fifteen drug screens requested from October 1, 2001, through April, 2002. She also failed to appear for any of the scheduled weekly visits with the children between September 25, 2001, and December 10, 2001. In January, 2002, as a result of the mother's failure to participate in services and her failure to maintain contact with the children the department changed the goal of the service plan from reunification to adoption. A pretrial conference was held on February 6, 2002, at which time the case was scheduled for trial on June 11, 2002. The mother was present for the pretrial conference.

As a result of the change in the goal of the service plan, the mother was offered monthly, rather than weekly, visits. The mother's first visit with the children after the department was granted custody took place on February 11, 2002. During that visit she virtually ignored the two oldest children. A second visit occurred on March 21, 2002, and the mother appeared to be under the influence of some drug. She had used cocaine almost daily from late September, 2001, through late April, 2002. The mother did not visit with the children in April, 2002, because she failed to maintain contact with her social worker.

Although services continued to be offered to the mother during this time, she resisted. She would not accept domestic violence group counseling that had been offered. She would not enroll in an inpatient drug treatment program. Although she did enroll in an individual counseling program, she dropped out after one month.

On April 28, 2002, approximately six weeks before the scheduled trial date, the mother enrolled in a detoxification program. On May 3, 2002, she entered a four- to six-month inpatient drug treatment program.

The trial of this matter took place over five days from June 11, 2002, to June 14, 2002, and July 1, 2002. At the conclusion of the trial, the judge adjudicated all five children in need of care and protection and placed them in the permanent custody of the department. He ordered decrees to issue forthwith terminating the mother's parental rights to her two oldest children. He took under advisement the question of termination of the mother's parental rights to Elena, Fred, and Alan. While the case was under advisement, the mother filed a motion to reopen the trial based on newly discovered evidence. The motion was allowed.³

The trial was reopened on October 8, 2002, and the mother presented evidence that she had participated successfully in the drug rehabilitation program, graduating from the residential component of the program in mid September, 2002. She appeared to respond well to therapy, participated in...