In re Augustin

Docket Number22-P-949
Decision Date26 May 2023
PartiesADOPTION OF AUGUSTIN.[1]
CourtAppeals Court of Massachusetts

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Augustin appeals from a decree entered in the Juvenile Court terminating her parental rights. She contends that the judge's decision was based on stale evidence, an inadmissible affidavit, and an error of fact, and that the judge abused her discretion by declining to order postadoption visitation. We affirm.

Background.

Augustin was born in September 2007, the second of the mother's three children.[2] The identity of Augustin's father was never established. The mother's third child Sarah (a pseudonym), with a different father, was born in December 2011. The Department of Children and Families (department) received a number of reports submitted pursuant to G. L. c. 119, § 51A, alleging abuse and neglect of Augustin and Sarah in 2015 and 2016.

The department commenced these proceedings on April 19, 2016, after receiving a report that Augustin witnessed his mother being stabbed by a boyfriend. According to the affidavit attached to the petition, an investigator and social worker from the department went to Augustin's school to interview him about the incident. Augustin said that he was present when his mother and the boyfriend, Adam (a pseudonym), got into a fight; although his mother lied to him about being stabbed, he remembered seeing a knife, and going outside to look for help because his mother screamed to call for the police. His mother told him that "if [Adam] gets his 'boys' they will try to shoot her, and if they do, Augustin needs to run for his life." During the interview Augustin also disclosed that his maternal grandmother had sexually abused him in the past. Augustin and Sarah were removed from the mother's custody and placed in the custody of the department.

The department provided the mother with an action plan that recommended that she refrain from substance use, engage in mental health treatment and domestic violence services, and meet with the department monthly. The mother made no appreciable progress during the next two years. She was resistant to mental health and substance use treatment, refused urine screens, and failed to address the presence of domestic violence in her life, and she was uncooperative, disruptive, and deceptive in her dealings with the department. She was manipulative in her interactions with Augustin as well. In October 2016, Augustin ran away from his foster home, and the department could not locate him; the mother did not answer the department's numerous phone calls or answer the door when police officers visited her home looking for Augustin. Augustin appeared at school the next day and explained that he had used public transportation to go to his mother's home and that they were home when the police rang the doorbell. The mother denied seeing Augustin, claiming she had been in the hospital and unable to receive the department's messages.[3]

In September 2017, during a family therapy session, Augustin told his mother that he was going to a preadoptive home; she yelled at him and told him that he needed to write a letter to his lawyer and whispered in his ear what to write. Augustin did not want to write the letter and felt that he needed to tell lies to make his mother happy. Family therapy was terminated shortly thereafter due to the mother's inconsistency in attending the meetings and inappropriate behavior. Augustin was placed in a preadoptive home in November 2017, where he has remained ever since. On May 11, 2018, the mother stipulated to her unfitness and the department was granted custody of Augustin "until becoming an adult or until, in the opinion of the department, the object of the commitment has been accomplished, whichever occurs first."[4]

After the mother stipulated to unfitness, there were recurring incidents in which she engaged in or was the victim of violence. In January 2019 the police were called to the mother's address based on a report that she had assaulted her brother's girlfriend. In July 2019 the police responded to her home when the mother reported that Adam had slapped her in the face; he was charged with assault and battery on a household or family member. In September 2019, the mother was arrested for assaulting Sarah's father.

Mental health issues also plagued the mother. In March 2020, the police responded to the mother's apartment, where she was screaming loudly. She told the officers that she wanted to hurt herself and others because her boyfriend cheated on her; the police found a butcher knife and scissors near the mother. In October 2020, the mother's therapist reported that the mother was depressed with suicidal ideations. Police and emergency medical personnel responded and found the mother walking outside with a boxcutter in her back pocket. She was transported to the hospital to be evaluated. After that incident, the mother failed to communicate with the department or respond to the department's phone calls; the department made two unannounced home visits, but no one answered the door. She continued to decline to participate in substance abuse evaluations.

The mother's last in-person visit with Augustin took place in May 2019. She overslept and missed a visit in October 2019. In February 2020 Augustin, then twelve years old, expressed that he no longer wanted visits with his mother.[5] He agreed to see his mother if his sister was also present, but he preferred to see his sister alone.

At trial in January 2022, the mother testified that she refused urine screens because Augustin was not removed because of her substance use disorder; she claimed to be six months sober from crack cocaine. She later changed her testimony and reported being sober for ten years, notwithstanding testing positive for cocaine about five years earlier. The mother did not know why her children were removed from her care. She recalled that the case started because of domestic violence, but claimed that she had never experienced domestic violence.

The judge found that the department had demonstrated, by clear and convincing evidence, that the mother remained unfit to parent Augustin, that her unfitness was likely to continue into the indefinite future, and that Augustin's best interests would be served by termination of the mother's parental rights.[6] The judge declined to order postadoption visits. The mother appeals.

Discussion.

1. Termination of parental rights.

In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if so, whether the child's best interests will be served by terminating the legal relation between parent and child. See Adoption of Nancy, 443 Mass. 512, 515 (2005). Because the mother stipulated to unfitness, the sole issue at trial was whether the termination of the mother's parental rights was in Augustin's best interests, and the critical question in that regard was whether the department produced clear and convincing evidence that the mother would likely remain unfit in the future. See Adoption of Ilona, 459 Mass. 53, 59-60 (2011). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id. at 59.

The mother argues that the judge abused her discretion in terminating the mother's parental rights because the judge relied primarily on stale, prestipulation evidence. While it is true that the judge "must focus on present circumstances of the parent and the child," Adoption of Paula, 420 Mass. 716, 731 (1995), evidence of past unfitness is relevant to current unfitness. "A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006). See Custody of Two Minors, 396 Mass. 610, 621 (1986) ("The court is permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child"); Adoption of Katharine, 42 Mass.App.Ct. 25, 32-33 (1997) (judge "may consider past conduct to predict future ability and performance").

Here the evidence supporting unfitness, to which the mother stipulated, included domestic violence, see Adoption of Talik, 92 Mass.App.Ct. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996) ("It is well established that exposure to domestic violence works a 'distinctly grievous kind of harm' on children"); substance use disorder, see Adoption of Helen, 429 Mass. 856, 860 (1999) ("unsuccessful attempts to address substance abuse" issues properly considered in termination proceedings);[7] and failure to cooperate with the department, see Adoption of Luc, 484 Mass. 139, 146-147 (2020) (failure to recognize need for or to engage...

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