MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a six-day trial in 2018, a judge of the Juvenile Court found the mother permanently unfit to parent her son (child) and terminated the mothers parental rights. On appeal, the mother challenges the Juvenile Courts subject matter jurisdiction over the case, the judges determination of her unfitness, and the judges finding that termination of her parental rights would be in the childs best interests. We affirm.
Discussion. 1. Subject matter jurisdiction. On appeal, the mother challenges the Juvenile Courts jurisdiction over this case under the Massachusetts Child Custody Jurisdiction Act, G. L. c. 209B, § 2 (a) (MCCJA).
To put the mothers challenge in context, we briefly recite the relevant facts as the judge found them, supplementing as necessary from the record.
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At the time of her pregnancy with the child at issue in this case, the mother had two other children. Both were in the custody of the Department of Children and Families (department) and the case involving those children was open.
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The mother, who is a life-long resident of Massachusetts, left Massachusetts to give birth to this child in order to prevent the department from becoming involved with the newborn; she delivered the child in Rhode Island in February 2017. Alerted to the childs birth by the Rhode Island Department of Children, Youth and Families, the department took custody of the child on the day after his birth, and when he was discharged from the hospital in which he was born, brought him to Massachusetts. The department filed the instant case and obtained temporary custody of the child. He has remained in the departments custody since that time.
“A Massachusetts courts exercise of jurisdiction over custody determinations must be based solely on the [MCCJA], G. L. c. 209B.” Guardianship of Minor Children, 97 Mass. App. Ct. 316, 319 (2020), quoting MacDougall v. Acres, 427 Mass. 363, 366 (1998). The MCCJA confers jurisdiction over child custody matters to a competent Massachusetts court if, as relevant here, “(1) the commonwealth ․ is the home state of the child on the commencement of the custody proceeding, or ․ (4) (i) it appears that no other state would have jurisdiction under [this section] ․ and (ii) it is in the best interest of the child that a court of the commonwealth assume jurisdiction.” G. L. c. 209B, § 2 (a). Our review is de novo. See Adoption of Anisha, 89 Mass. App. Ct. 822, 828 (2016).
We conclude that the judge properly exercised jurisdiction pursuant to G. L. c. 209B, § 2 (a) (4). Here, as in Adoption of Anisha, 89 Mass. App. Ct. at 830, the child had no “home state” at the time this litigation began. See G. L. c. 209B, § 1 (defining “home state” to include “the state in which the child immediately preceding the date of commencement of the custody proceeding resided with ․ a parent, ․ and in the case of a child less than 6 months old the state in which the child lived from birth with [a parent]”). Solely as a result of the mothers efforts to remain out of the departments view and beyond its reach, the child had been born in Rhode Island and had remained there with the mother for the few days of his life preceding the departments removal of him to Massachusetts. We conclude that in the circumstances of this case, the child did not “live” in Rhode Island while waiting to be discharged from the hospital in which he was born, meaning that Rhode Island was not his “home state”; as no other portion of § 1 applied, the child had no “home state” at the time of his removal to Massachusetts.
We are also satisfied that it was in the childs best interests that the Juvenile Court in Massachusetts assume jurisdiction. See G. L. c. 209B, § 2 (a) (4). “The child and at least one parent must have a ‘significant connection’ with the Commonwealth, and ‘substantial evidence concerning the childs present or future care, protection, training, and personal relationships’ must be available here.” Adoption of Anisha, 89 Mass. App. Ct. at 830, quoting Redding v. Redding, 398 Mass. 102, 106 (1986). Here, both the mother and the putative father
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(father) were life-long residents of Massachusetts, had homes in the Commonwealth at the time of the childs birth, were educated here, and had family connections here. See Adoption of Anisha, supra at 831 (noting “parties’ significant connections to the Commonwealth”). As the childs mother was domiciled in Massachusetts when this case was initiated, and she had not yet been divested of custody of the child, the childs domicile was also here. See Adoption of Daphne, 484 Mass. 421, 426-427 (2020), quoting Gil v. Servizio, 375 Mass. 186, 189 (1978) (childs domicile “ ‘the same as the domicile of their parent who has lawful custody of them’ ․ Because the childs birth mother is domiciled in [a Massachusetts city], the childs domicile at birth was also [that same city]”). In our view, those facts established both the parents’ and the childs significant connections to the Commonwealth. See Adoption of Anisha, supra. Additionally, the evidence of the childs familys ongoing involvement with the department was located in Massachusetts, along with evidence relating to the mothers and the fathers fitness, including records of their education, involvement with the criminal justice system, medical and mental health concerns, and information about the mothers living arrangements. See id. at 831-832 (finding childs best interests served in jurisdiction where familys department and court records were located). The Massachusetts Juvenile Court properly exercised subject matter jurisdiction in this case.
2. Termination of parental rights. “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 childs best interests.” Adoption of Oren, 96 Mass. App. Ct. 842, 844 (2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). “In determining whether the best interests of a child are served by termination of parental rights, the judge ‘shall consider the ability, capacity, and readiness of the childs parents ․ to assume parental responsibility’ (emphasis omitted),” Adoption of Xarina, 93 Mass. App. Ct. 800, 802 (2018), quoting Adoption of Elena, 446 Mass. 24, 31 (2006), and must also take into account “the parents character, temperament, capacity and conduct in relation to the particular childs needs, age, affections and environment.” Adoption of Carlos, 413 Mass. 339, 348 (1992). In doing so, the judge considers the evidence as a whole; “no one factor is determinative.” Petitions of the Dept of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). We review the judges findings for clear error or abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 59 (2011). In the absence of clear error, we will not disturb the judges factual findings. See Adoption of Jacques, supra at 606-607.
a. Mothers unfitness.
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At trial, the department produced evidence of the mothers ongoing relationship with the childs father despite the fathers history of violent crime,
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abuse of the mother, gang membership, and drug involvement. Although the mothers family action plan tasked her with avoiding contact with the father, the judge found that the mother remained in a long-term and ongoing relationship with him as of the time of trial. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 707-708 (2016), quoting Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (“failure to maintain service plans ․ is relevant to the determination of unfitness”). Although some of the evidence of the relationship was distant in time, it was not impermissibly stale; rather, it demonstrated the ongoing nature of the relationship.
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See Adoption of Larry, 434 Mass. 456, 469 (2001) (past parental conduct relevant to parental fitness “where the evidence supported the continuing vitality of such conduct”).
In a similar vein, the judge found that the mother had been the victim of threats and abuse by the father, including physical abuse,
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but had failed to recognize the fathers conduct as a threat to the childs safety. While the department did not contend that the father harmed the child, or abused the mother in the childs presence, it is well-settled that a parents involvement with domestic violence is a relevant factor in determining whether a parent is fit.
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See Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996) (documented history of domestic violence is relevant factor in determining parental unfitness). The judge was not required “to wait for inevitable disaster to happen” before concluding that the mother was unfit. Adoption of Katharine, 42 Mass. App. Ct. 25, 32 (1997).
We discern no error in the judges determination that the mothers own inconsistently-treated mental health issues (conditions she failed to recognize at trial) and her abuse of marijuana adversely affected her ability to parent the child. The mother conceded her mental health diagnosis; it is undisputed that satisfactory completion of mental health treatment was a requirement of the mothers family action plan. Nonetheless, the mother testified that she sought mental health treatment only “when she was in the mood to do so.” The judge did not err in finding that the mother failed to comply with the family action plan despite her awareness that failure to follow it would be detrimental to her efforts to regain custody of the child. See Adoption of Elena, 446 Mass. at 32-33 (refusal of treatment relevant to determination of unfitness); Adoption of Rhona, 63 Mass. App. Ct. at 126 (same, failure to comply with department service plans).
Similarly, the judge credited the departments evidence that the mother was unable or unwilling to discontinue her daily use of marijuana, even where doing so was a condition of her probation on criminal charges for drug possession. As the judge found, this behavior put the mother at risk of incarceration for violation of her probation, and therefore at risk of becoming unavailable to the child.
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See Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) (“Physical unavailability of the parent to provide day to day care for the child, including for reasons of incarceration, was relevant evidence of unfitness”). Additionally, on one occasion, the mothers use of marijuana led to the cancellation of a scheduled visit with the child. See Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006) (“failure to follow service plan tasks and visitation schedules may be relevant to determining parental unfitness”); Adoption of Serge, supra.
The judges consideration of evidence of the mothers criminal activity was also proper. That the mother had been charged with crimes including breaking and entering, possession with intent to distribute cocaine, and conspiracy to distribute cocaine, but had not been convicted of the offenses, did not preclude the judge from taking into account evidence indicating that she had participated in them.
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See Care & Protection of Frank, 409 Mass. 492, 494-495 (1991) (parents criminal record properly considered when determining unfitness); Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002) (same).
Where the mother testified to her recognition that her housing at the time of trial was unsuitable for the child, the judge did not err in making that finding. This is particularly true given the mothers testimony that her brother, who was one of five other adults living in the home, was a gang member, involved in criminal activity, and a friend of the abusive father (and thus, a potential additional draw bringing the father into the childs life). Although the mother testified to the availability of resources to assist her in finding her own housing, there was no evidence that she had more than vague plans for finding alternative housing if she were reunited with the child. See Care & Protection of Three Minors, 392 Mass. 704, 712 (1984) (parents inability to maintain “a stable home environment” consideration in determining parents fitness).
Lastly, the mothers challenge to the judges finding that the child would suffer harm if removed from his preadoptive home is unpersuasive. The child has lived with his preadoptive parents since he was one month old; it is the only home he has ever known. There was evidence that the child was bonded to his preadoptive parents and sibling, and they to him. On this evidence, there was no error. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003) (“If there has been bonding, separation cannot be without some impact”).
b. Best interests analysis. We are satisfied that the judge properly considered the relevant factors in determining that termination of the mothers parental rights was in the best interests of the child. See G. L. c. 210, § 3 (c) (in determining best interests, “the court shall consider the ability, capacity, fitness and readiness of the childs parents ․ to assume parental responsibility[,]” with childs health and safety as “paramount ․ concern”); Adoption of Nancy, 443 Mass. at 514-515. The evidence of the mothers longstanding pattern of denying her ongoing relationship with the father, failing to maintain consistent treatment for her mental health issues and marijuana use, and inability to transition to suitable housing support the judges determination that her unfitness was not temporary. See Adoption of Luc, 484 Mass. 139, 147 (2020) (“the mothers unwillingness to adhere to [the] service plan, which required her to obtain treatment for her mental health challenges and substance use disorder, is ‘relevant to the determination of unfitness’ ” [citation omitted]). See also Adoption of Ilona, 459 Mass. at 60 (parental unfitness “not temporary if it is reasonably likely to continue for a prolonged or indeterminate period”); Adoption of Elena, 446 Mass. at 31 (substance abuse not temporary condition); Care & Protection of Three Minors, 392 Mass. at 712 (“stable home environment” consideration in determining parental fitness).
Although, as the mother contends, there was evidence that she had participated in some of the services offered to her, including a domestic violence group and parenting classes, the record supported the judges thoughtful and detailed findings that on the whole, the mother either failed to take advantage of such programming or failed to benefit from it. See Adoption of Ilona, 459 Mass. at 63. We discern no abuse of discretion or other error in the judges determination that the mothers unfitness was not temporary, and that the child was entitled to the degree of certainty and stability that termination of the mothers rights, and the childs subsequent adoption, would provide. See Adoption of Nancy, 443 Mass. at 519 (termination protects child from uncertainty of repeated litigation and destructive parental behavior); Adoption of Willow, 433 Mass. 636, 647 (2001) (recognizing importance of stability in childs life, and that termination of parental rights may “[ease] [childs] path to a stable placement”).
Decree affirmed.
FOOTNOTES
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. The mother does not challenge any of these jurisdictional facts as erroneous.
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. The case involving the older children has been resolved and they are not involved in these proceedings.
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. The putative father did not appear or participate in the trial, and is not part of this appeal. His paternity was never established. The judge terminated the parental rights of the childs father, name unknown.
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. As part of her challenge to the sufficiency of the departments evidence of her unfitness, the mother argues for the first time that the department failed to comply with certain procedures and time limits set forth in G. L. c. 119, § 51B. Because the argument was not raised before the judge, it is waived. See Adoption of Larry, 434 Mass. 456, 470 (2001).
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. Although she did not raise the issue in the trial court, on appeal, the mother argues that the judge erred in considering the fathers lengthy and disturbing history of violence, which began while the father was a juvenile, and included charges of indecent assault and battery on his three year old sister and sodomizing a homeless man with a broom handle. Even if the issue were not waived, as we conclude that it was, see Adoption of Larry, 434 Mass. 456, 470 (2001), the mothers argument that G. L. c. 119, § 60, precluded the judge from admitting or considering information about the fathers juvenile criminal history would be unavailing. The evidence was not “received in evidence or used against [the father]” who, as we note, was not a party to the case. G. L. c. 119, § 60. Rather, the judge properly considered those facts as evidence of the mothers failure to appreciate the risk that the father posed to the safety of the child.
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. Additionally, we note that the mother does not challenge the judges finding that the mother admitted to having had contact with the father as recently as four months before the trial date.
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. The father was charged with assault and battery on the mother by way of a dangerous weapon, his car.
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. Although the judge found that the mother had completed a domestic violence group, the mother admitted afterward that she was still seeing the father; the judges findings show that he concluded that the mother had not benefited from those services. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019) (parents failure to benefit from services relevant to determination of unfitness).
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. The risk was not theoretical; as the mother admitted and the judge found, the mother was terminated from a court-ordered program for her refusal to comply with the abstinence directive.
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. We note that the mother admitted to sufficient facts for a finding of guilty of the offenses listed here.