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Adoption of Kato

Appeals Court of Massachusetts

July 1, 2015

Adoption of Kato. [1]

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).


This is an appeal from a decree of a judge of the Juvenile Court terminating the mother's parental rights. The mother contests the judge's finding of parental unfitness.[2] For the reasons set forth below, we affirm.


" Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711, 610 N.E.2d 898 (1993). A finding of unfitness must be supported by clear and convincing evidence; subsidiary findings must be supported by a preponderance of the evidence. Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). Unless shown to be clearly erroneous, we will not disturb the judge's findings, which are entitled to substantial deference. Adoption of Elena, 446 Mass. 24, 31, 841 N.E.2d 252 (2006).

The mother contends that the trial judge's finding of unfitness was not based on clear and convincing evidence and constituted an abuse of discretion. Specifically, the mother contends that the evidence of unfitness was insufficient because the judge's criticism of the mother for her willingness to resume a relationship with the father was unwarranted and that the judge exaggerated the impact of the mother's history of incarceration on her availability to care for the children.[3] She also maintains that the judge abused her discretion by failing to adequately consider the benefits the mother had received from residential treatment since January, 2013, and by failing to address the failure of the Department of Children and Families (department) to attempt reunification of the mother and Kato.

Findings of unfitness.

The judge's findings provide a detailed history of domestic violence that had a serious and substantial impact on the six older children. The judge found that the mother stated during a break at trial that she would return to the father " in a heartbeat" if the department awarded him custody of the six older children. The mother contends that it was inconsistent and unfair of the judge to recognize the significant strides the father made in domestic violence counseling, such that award of custody of the six older children to the father was an option, but to draw an inference adverse to the mother for suggesting she would return to the father if he reformed his behavior to the department's satisfaction.

The mother's statement was introduced through the testimony of a department social worker who overheard the mother in the hallway during trial. The judge was therefore not able to fully assess the mother's demeanor or the context when the statement was made. We agree with the mother that this finding is problematic. However, reviewing the decision as a whole, it is very clear that the judge's decision was based on multiple factors, of which this one finding was a small part. Excluding this factual finding, the judge's finding of unfitness is supported by clear and convincing evidence.

The judge made detailed findings of the mother's long and unbroken history of substance use and abuse, which included the use of cocaine and heroin and addiction to prescription medications. The mother was involuntarily committed for substance abuse treatment due to her addiction to prescription medications, including Adderall, in October, 2009, three years before Kato was born. She tested positive for amphetamines at the time of Kato's birth in September, 2012. Kato was born with traces of amphetamines in his fetal meconium, and was placed in the custody of the department within days of his birth.

The judge also made detailed findings regarding the mother's lengthy criminal record, which included recurrent incidents of shoplifting, larceny, and receiving stolen property from 1994 to 2012. In two of the shoplifting incidents, the mother used a stroller occupied by some of the children to conceal stolen goods. The mother understood that shoplifting is wrong, but described it as a compulsion that gives her a " high" similar to drugs when she " gets away with it." The mother continued to engage in this or similar activity after the six older children were removed from her custody[4] and after the birth of Kato.

The mother contends that the judge exaggerated the mother's absences due to arrest, detention, parole violation, sentencing, and drug treatment.[5] The judge properly considered the mother's absences from the home due to substance abuse and incarceration in the context of her overall history of drug abuse and compulsive shoplifting. A sustained pattern of past parental conduct is relevant to the assessment of current and future parental fitness. Adoption of Larry, 434 Mass. 456, 469, 750 N.E.2d 475 (2001). This is especially true where the evidence supports a continuing pattern of the conduct which has led to the removal of other children. Ibid. The mother's substance abuse and recurrent criminal activity continued after Kato's birth, and were properly considered with respect to the likelihood of the mother's availability to parent Kato in the future. The judge's findings that the mother's history of addiction and arrest bespoke a current lack of fitness to parent Kato have ample support in the record and are not clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993).

Weight of the evidence.

The mother also contends that the judge abused her discretion by failing to adequately consider the benefits the mother received from residential treatment after Kato's birth. The judge acknowledged that the mother had made efforts for a time to comply with the service plan recommendations, engaged in domestic violence therapy and parenting classes, and attended anti-relapse groups, thus ...

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