MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an evidentiary hearing in January 2018 on the petition of the Department of Children and Families (department) for care and protection of Marissa, a Juvenile Court judge found that the mother was unfit to parent the child and awarded permanent custody to the department, but did not terminate the mothers parental rights. Thereafter, the mother filed her first motion for review and redetermination, and a hearing was held in December 2018 and January 2019. See G. L. c. 119, § 26. Again, the judge found that the mother was unfit to parent the child but declined to terminate the mothers parental rights. In July 2019, the mother filed her second motion for review and redetermination, and a hearing was held in September and October 2019. The mother now appeals from the resulting decree which found the mother unfit to parent the child, terminated her parental rights, and approved the permanency plan proposed by the department. On appeal, the mother contends that the department did not present clear and convincing evidence that she was unfit, and that the judge abused his discretion in concluding that termination of the mothers parental rights was in the childs best interests. We affirm.
“A persons right to parent her child can be terminated only if a judge determines that she is unfit and that termination is in the best interests of the child. ․ [P]arental unfitness must be proved by clear and convincing evidence, and we review the judges determination of the childs best interests for an abuse of discretion. Subsidiary findings must be supported by a preponderance of the evidence, and none of the findings will be disturbed unless clearly erroneous.[
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] We review the judges findings with substantial deference, recognizing [his] discretion to evaluate a witnesss credibility and to weigh the evidence.” (Quotations and citations omitted.) Adoption of Ulrich, 94 Mass. App. Ct. 668, 675-676 (2019).
There was clear and convincing evidence to support the judges determination that the mother was unfit to parent the child.
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Since the department became involved with the child, the mother has had a long history of struggling with substance use, and the judge properly considered and built upon findings from earlier stages of the proceedings in finding that these issues persisted. See Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). The child, as a newborn, tested positive for marijuana, and the mother admitted to using marijuana and other substances during her pregnancy. Furthermore, the mother neglected the child on multiple occasions and in each instance, there was evidence that she was intoxicated. For example, the mother left the child at the putative fathers house without providing supplies necessary to care for her, and the father witnessed the mother stagger away. The father believed the mother was heavily intoxicated, and she had driven to the fathers house with the child in the vehicle.
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As a result of this incident, the department assumed emergency custody of the child and she was transported to a hospital emergency room to be medically cleared, where doctors discovered that she was malnourished. At another time, when the department conducted an unannounced home visit, the mother was seen fleeing the residence and the child was left in the care of the mothers purported boyfriend, who was intoxicated. The department believed the mother was also intoxicated and when the department offered the mother the opportunity to submit to a sobriety test, she refused it. Though the mother was able to make some strides in curbing her substance use and occasionally regained conditional custody of the child, these incidents demonstrate a pattern of continued use that has repeatedly resulted in the neglect of the child and revocation of that custody. The judge was certainly permitted to consider this evidence of the mothers substance use in finding her unfit. “Evidence of alcohol or drug abuse is also relevant to a parents willingness, competence, and availability to provide care.” Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). A drug habit, on its own, does not make parents unfit if they otherwise are able to attend effectively to the care of their child. See Adoption of Katharine, 42 Mass. App. Ct. 25, 33-34 (1997). “ ‘[A] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction ․ [that] makes the parent ․ unlikely to provide minimally acceptable care of the child’ is not a temporary condition.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c) (xii).
Furthermore, the mothers continuing issues with substance use make clear that her condition, which has caused her to neglect the child in the past, is “reasonably likely to continue for a prolonged indeterminate period ․ [and] makes the parent ․ unlikely to provide minimally acceptable care.” G. L. c. 210, § 3 (c) (xii). See Care & Protection of Vick, 89 Mass. App. Ct. 704, 709 (2016) (“[T]he judge did not need to wait for inevitable disaster to happen before acting in the childs best interests” [quotation omitted]). The mother has relapsed multiple times and has failed to meaningfully follow her relapse prevention plan or otherwise engage in treatment. See Adoption of Elena, 446 Mass. at 33-34. Additionally, the mother has been found in violation of the terms of her probation, stemming from her most recent conviction for operating under the influence of intoxicating liquor (second offense), due to her repeated substance use. Finally, the mother, throughout the course of the proceedings, has been unwilling to acknowledge that she suffers from these issues, only fully admitting her problem for the first time during the second review and redetermination hearing. Quite apart from the mothers contention that the department failed to establish a nexus between her substance use and fitness to care for the child, the evidence clearly and convincingly demonstrates that the child is endangered because of a “previous pattern of abuse or neglect” stemming from the mothers substance use issues.
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Adoption of Katharine, 42 Mass. App. Ct. at 33.
Likewise, the same factors the judge relied on in finding the mother unfit to parent the child also demonstrate that the judge did not abuse his discretion in concluding that termination of the mothers parental rights was in the best interests of the child. See Adoption of Malik, 84 Mass. App. Ct. 436, 438 (2013), quoting Adoption of Cesar, 67 Mass. App. Ct. 708, 712-713 (2006) (“These twin determinations are not separate and distinct but, instead, are ‘cognate and connected steps’ that ‘reflect different degrees of emphasis on the same factors’ ”). The mothers persistent substance use, lack of consistent treatment, and inability to cooperate with the department clearly endangered the child and it was, therefore, in the childs best interests to terminate the mothers parental rights. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (“In these circumstances where [the mother] has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to the [child] to say, at some point, ‘enough’ ”). Furthermore, and contrary to the mothers contention, the judge did not abuse his discretion by assessing the childs bond with her preadoptive family in determining that the childs best interests would be served through termination of the mothers parental rights.
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The judges conclusion that the mother was unfit to parent the child because of her substance use issues and inability to take steps to obtain treatment, was amply supported by clear and convincing evidence and the judge did not abuse his discretion in determining that it was in the best interests of the child for the mothers parental rights to be terminated. See Adoption of Nancy, supra at 516.
Decree affirmed.
FOOTNOTES
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. The mother contends that because the judges factual findings and legal conclusions were based, in part, on documentary evidence, this court should conduct a de novo review of all the evidence. The contention is without merit. As our case law makes clear, we review the judges findings with substantial deference and “[a]ppellate review in custody appeals is not done to assess the evidence de novo, but rather to determine whether the judges findings were clearly erroneous.” Custody of Eleanor, 414 Mass. 795, 802 (1993). It is true that an “appellate court may independently review documentary evidence,” but this “does not give appellate courts carte blanche with respect to fact finding,” and “findings drawn partly or wholly from testimonial evidence are accorded deference, and are not set aside unless clearly erroneous.” Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
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. In addition to challenging whether there was clear and convincing evidence of her unfitness, the mother challenges certain subsidiary findings as clearly erroneous. In particular, the mother contends that judge erred in finding that the mother had a criminal history, the child had difficulty following visits with the mother, the child struggled to gain weight while in the care of the mother, the child had specialized needs that the mother would not be able to meet, and that the mother failed to engage in services offered by the department. When reviewed with the deference owed to the judge, see note 2, supra, none of these findings were clearly erroneous. See Adoption of Quentin, 424 Mass. 882, 886 (1997). Moreover, we note that even if the findings challenged by the mother were made in error, any error would be harmless as those findings were “not central to the ultimate conclusion of unfitness.” Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
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. At the time, the paternity of the child had not been established. The father was only later adjudicated to be the biological father of the child. He supports the departments permanency plan.
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. Furthermore, the finding of unfitness was not solely based on the mothers substance use, but, as the evidence makes clear, was established by a “constellation of factors.” Adoption of Greta, 431 Mass. 577, 588 (2000). The mother has been combative and uncooperative with the department, refused to sign releases for the department to obtain relevant information, and has consistently minimized her substance use issues and the effect those issues had on the child. None of these findings were clearly erroneous, and they provided clear and convincing evidence of the mothers unfitness.
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. The mother largely contends that the judge erred by failing to specifically make findings on the bond between the child and her preadoptive parents, but we note that “specificity is not required.” Adoption of Nancy, 443 Mass. at 516.