In re Tonya
| Decision Date | 07 October 2021 |
| Docket Number | 21-P-192 |
| Citation | 175 N.E.3d 1240 (Table) |
| Parties | ADOPTION OF TONYA. |
| Court | Appeals Court of Massachusetts |
The mother appeals from a decree terminating her parental rights as to her youngest child, Tonya (child).3 ,4 The mother contends that the Juvenile Court judge relied on stale information and hearsay and that the evidence did not establish clearly and convincingly her unfitness to parent the child. We affirm.
Legal standard. Parents have a "fundamental liberty interest ... in the care, custody, and management of their child[ren]." Santosky v. Kramer, 455 U.S. 745, 753 (1982). See Commonwealth v. Dorvil, 472 Mass. 1, 8-9 (2015). "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). See Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017) (same). Additionally, the judge must find that the current unfitness "is not a temporary condition." Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). In making this determination, the judge must take into account the parent's abilities to provide for the child's particular needs, see Adoption of Mary, 414 Mass. 705, 711 (1993), and "may consider past conduct to predict future ability and performance." Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021), quoting Adoption of Katharine, 42 Mass. app. Ct. 25, 32-33 (1997).
On appeal, we defer to the judge's assessments of the weight and credibility of the evidence, Adoption of Elena, 446 Mass. 24, 31 (2006), disturbing the judge's findings only where they are clearly erroneous. Adoption of Zak, 87 Mass. App. Ct. 540, 542 (2015). We review the judge's application of the law to the facts for clear error or other abuse of discretion. Adoption of Elena, supra at 30.
Discussion. The judge made 214 findings of fact that demonstrate "close attention has been given the evidence" and that amply satisfy the requirement that the findings supporting his decision be "specific and detailed." Adoption of Gregory, 434 Mass. 117, 126 (2001). We accept the uncontested majority of those findings as true. See Custody of Eleanor, 414 Mass. 795, 799 (1993). The mother disputes only the judge's findings related to her substance abuse and its impact on the children.
1. Evidence of mother's history with department. On appeal, the mother contends that the judge erred by relying on evidence consisting of or incorporating information taken from records of the mother's entire history with the Department of Children and Families (department). In doing so, she argues that the department's evidence included "stale" information about her long-term struggles with domestic violence, concerns about substance abuse in her home, and the judge's consideration of her inability to empathize with the child and one of the child's older siblings. Additionally, the mother challenges the testimony of the department's experts concerning the mother's substance abuse and history of domestic violence on the grounds that the testimony was based on unreliable hearsay, and she argues that the evidence failed to support the judge's conclusion that the mother was unfit.
a. Hearsay. Assuming that this minimally-supported challenge rises to the level of appellate argument, see Adoption of Zak, 87 Mass. App. Ct. at 545 n.8, we reject it. "[F]irst-and second-level hearsay contained within [department] reports and official [department] records is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination, should the party challenging the evidence request to do so" (footnotes omitted). Adoption of Luc, 484 Mass. 139, 153 (2020). To the extent that the records at issue reported hearsay accounts of the mother's experiences with domestic violence, drug use, and her responses to the risks facing her children from those sources and their own behaviors, they adequately identified the sources of that information. The mother does not argue that she was not permitted to cross-examine those sources; rather, her challenges are to the judge's assessment of the weight and credibility of those accounts. As we have noted, those assessments are within the judge's discretion. See Adoption of Elena, 446 Mass. at 30-31.
b. Staleness. We are likewise unpersuaded that the judge's consideration of the department's evidence extending, in some cases, back to the years before the child was born was improper; the judge was entitled to rely on those records of the mother's past conduct as predictors of the mother's future ability to parent the child. See Adoption of Yvonne, 99 Mass. App. Ct. 574, 579 (2021), quoting Adoption of Katharine, 42 Mass. App. Ct. at 33 (). We consider the areas of concern that the mother highlights on appeal.
i. Domestic violence. The mother does not dispute that she witnessed physical abuse in her home as a child, and later, as an adult, became the victim of abuse at the hands of a series of men, including three of the four fathers of her children. She likewise does not claim that the judge erred in finding that her children were present at times when she was abused -- including, notably, when the child's father broke the mother's jaw -- or that the children themselves were victims of that violence, as when one of the mother's partners broke the arm of one of her older children. During the pendency of the care and protection proceedings relating to the child, the mother continued to suffer from inadequately-explained injuries that the judge attributed to traumatic assaults. See Adoption of Larry, 434 Mass. 456, 469 (2001) (). This "long-standing pattern" of domestic violence was "admissible as prognostic evidence of future unfitness and was within the purview of the judge to consider." Adoption of Jacques, 82 Mass. App. Ct. at 607-608. See Custody of Vaughan, 422 Mass. 590, 599 (1996) (). That evidence, and evidence that the mother acknowledged only some of the instances of violence in which she and her children were involved, was likewise admissible to show that despite her participation in some of the domestic violence services offered to her, the mother was unable to appreciate the risks posed to her children by her own involvement with abusive partners. See Adoption of Mary, 414 Mass. at 711. In short, the evidence was not limited to "[i]solated problems in the past or stale information," Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003), S.C. 63 Mass. App. Ct. 117 (2005), quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 126 (1984), and the judge was within his discretion to consider "the mother's continued failure to address how domestic violence affected her parenting." Adoption of Yvonne, 99 Mass. App. Ct. at 579-580.
ii. Substance abuse. While there was conflicting evidence on the question whether mother abused alcohol or other substances in a way that interfered with her ability to care for the child, the judge's findings that she did so were supported by the evidence as the judge, acting within his discretion, credited it.5 In addition to the testimony of court clinician Paul Hodlin, the department's records reflected ongoing concerns about the mother's substance use, particularly her use of alcohol, and it is undisputed that the mother had allowed drug use and even drug sales in the home before the child's birth.
We agree with the mother that in light of the department's concession at trial that the mother's service plans never included substance abuse treatment, the evidence did not support the judge's conclusion that the department made reasonable efforts to address this facet of the mother's needs.6 See Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002) (). Nonetheless, however, we conclude that that error does not require reversal.
Even were we to assume that the mother would have taken advantage of the services -- a conclusion we view as speculative, given the mother's inconsistent track record of compliance with the department's efforts -- the strong evidence of the mother's inability to eliminate violence from her life and her lack of appreciation for its impact on her children leads us to conclude that the judge would have been within his discretion to conclude that termination of the mother's parental rights was in the child's best interests, regardless of the department's failure to use reasonable efforts to address the mother's alcohol use.7 See Adoption of Ilona, 459 Mass. at 61 (). See Care & Protection of Walt, 478 Mass. 212, 220 (2017), citing G. L. c. 119, § 29C.
iii. Lack of empathy. To the extent that the judge's ultimate decisions rested on his findings about the mother's "lack of empathy" toward her children based on the child's older sibling's "acting out," it is plain from the judge's conclusions of law that he considered this as evidence that the mother "lacked insight regarding the effect domestic violence had on the children."8 The judge's findings and conclusions about the mother's...
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