MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial in the Juvenile Court, a judge terminated the mothers parental rights to her then two year old son (child).
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The mother appeals, claiming that (1) because she demonstrated a reasonable likelihood of future fitness, the judge erred in finding her permanently unfit
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and (2) the judge erred in denying her motion to continue the trial. We affirm.
Background. The Department of Children and Families (department) filed this care and protection petition on July 29, 2019, based on concerns regarding the mothers long-term and ongoing substance abuse. On May 26, 2021, the first day of trial, the judge denied the mothers request that the trial be continued “for a minimum of [eight] months” to provide her with “meaningful access to remedial services and family time.”
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The trial testimony spanned two days, concluding on June 8, 2021; the judge terminated the mothers parental rights on June 9, 2021, and issued detailed findings on October 14, 2021, supporting his conclusion that the department had met its burden of demonstrating, by clear and convincing evidence, that the mother was unfit to parent the child, and was likely to remain so. See Adoption of Nancy, 443 Mass. 512, 515-516 (2005).
Discussion. 1. Permanent unfitness. The mother does not dispute that she is currently unfit to parent the child, but argues that there is a reasonable likelihood that she will become fit in the foreseeable future and that the judge erred in finding otherwise. We are not persuaded.
We review the judges decision to terminate parental rights for an abuse of discretion or clear error of law, according “substantial deference” to the judges conclusions. Adoption of Ilona, 459 Mass. 53, 59 (2011). The evidence presented at trial and credited by the judge supplied ample support for the conclusion that the mothers unfitness was likely to continue indefinitely. See id. at 60. The judge put particular emphasis on the mothers longstanding struggle with substance use, her inconsistent and unsuccessful efforts to seek treatment, and the impact of her substance use on her ability to care for her children, and more specifically, for the child.
We summarize the judges factual findings, which are, with exceptions noted below, undisputed; we also supplement the judges findings with undisputed facts from the record. The mother was thirty-six years old at the time of trial. Her issues with substance use began in her early twenties and continued with only relatively brief periods of sobriety until trial. The mothers three older children are in the permanent custody of their maternal grandmother, who “keeps the children away” from the mother because of her substance use.
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For the first four months of her pregnancy with the child, the mother used heroin. Upon learning that she was pregnant with the child, the mother visited Massachusetts General Hospital (MGH) for methadone treatment. She then entered a residential treatment program, but relapsed and left the program within a week. The mother returned to MGH approximately one month later for further methadone treatment. She was transferred to Entre Familia, a residential substance use treatment program for pregnant and postpartum women. According to a report from Entre Familia, the mother struggled to use the resources they offered.
When the child was born, the hospital notified the department that he was a substance exposed newborn. The mother returned to Entre Familia with the child, but, in May 2019, additional allegations of neglect were made based on the mother “co-sleeping” with the child and not waking up despite his screaming.
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The mother continued to struggle to avail herself of the programs resources and she discharged herself in July 2019. On July 26, 2019, the mother disclosed to her department social worker that she had relapsed on cocaine, that she and the childs putative father (father) had cared for the child while under the influence of cocaine, and that she took the child to the methadone clinic with her. Consequently, the department filed a care and protection petition, obtained temporary custody of the child, and ultimately placed him in foster care.
In August 2019, after appearing five hours late for a visit with the child, the mother admitted to using drugs earlier that day. At the end of September 2019, the mother entered the first of a series of programs in which she received substance use treatment until she was asked to leave a residential drug program in April 2020.
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The mother maintained little communication with her department social worker for the remainder of 2020, declining referrals to therapeutic or counseling services because she felt “programmed out.”
After leaving the residential program in April 2020, the mother failed to maintain stable housing. She briefly rented a room with the childs father, slept on friends’ couches, and reported being homeless at the time of the trial. As a result, despite the mother consistently attending in-person and video visits with the child during his time in foster care,
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home visits were not possible. The mother admitted that the childs father and the friends she stayed with also used drugs. She acknowledged using cocaine and heroin a few times per week between July and October of 2020, and almost every day during November and December of 2020.
The mother sought substance use treatment intermittently in December 2020, but declined any referrals for stabilization programs. She contends that she was dissatisfied with treatment options during the COVID-19 pandemic because less therapeutic work was available to her through the available treatment and there was more “sitting around” and “time ․ in your head.” Although the mother testified to attending detox and a stabilization program in February 2021, her social worker was unable to confirm this and was told by the mother that “she was still using [illegal drugs], that she and Father still use together.” The mother could not recall if she had used cocaine or heroin in February, March, or April of 2021, but testified to using cocaine and heroin the week before the trial. The foster mother noted that the mother did not reach out or schedule visits with the child in early 2021, as she had done previously.
In sum, the mother struggled with substance use problems for virtually her entire adult life. The mothers assertions that she was ready to engage meaningfully in treatment and that her progress toward sobriety was interrupted by the COVID-19 pandemic are belied by her history and her actions since the birth of the child. The mother failed to maintain stable housing, continued her relationship with the father and friends who were a detriment to her sobriety, failed to maintain consistent communication with her social worker, and failed to engage in, or benefit from, the available substance use treatment and parenting services. Predictions about the mothers future fitness must be “more than hypothetical,” and cannot be “based on a faint hope.” Adoption of Inez, 428 Mass. 717, 723 (1999). We discern neither abuse of discretion nor other error in the judges conclusion that the mother was indefinitely unfit.
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2. Motion to continue the trial. The mother argues that the judges failure to continue the trial constituted an abuse of discretion. Her motion to continue asserted that the COVID-19 pandemic had restricted her ability to access substance use treatment meaningfully and argued that more time to engage in those services was appropriate. “The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judges decision will be upheld absent an abuse of that discretion.” Adoption of Gillian, 63 Mass. App. Ct. 398, 409-410 (2005). “Under ordinary circumstances, a decision not to postpone a normally scheduled trial, including a trial in a care and protection case, would be relatively immune from appellate second-guessing.” Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).
At the time of trial, the child was two years old and had spent one and one-half years with his foster mother. The department had identified a preadoptive family for the child, and no competing plan for him was submitted to the judge. Both the department and the child objected to the continuance. The mother had not articulated a plan for long-term sobriety or stable housing. Her dissatisfaction with the changes to therapeutic resources during the COVID-19 pandemic was not the same as a lack of access to treatment. Accordingly, we discern no abuse of discretion in the judges decision to proceed with the trial as scheduled. See Adoption of Nancy, 443 Mass. at 517 (“it is only fair to the children to say, at some point, ‘enough’ ”); Care & Protection of Quinn, 54 Mass. App. Ct. at 122 (no abuse of discretion where “paramount interests of the children involved” argued against delay).
Decree affirmed.
FOOTNOTES
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. The putative fathers parental rights were also terminated; he did not appeal.
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. “Despite the moral overtones of the statutory term ‘unfit,’ the judges decision is not a moral judgment, nor is it a determination that the parent does not love the children. The question for the judge is ‘whether the parents deficiencies ‘place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren].’ ” Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018), quoting Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011).
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. The mother filed her written motion to continue trial on November 5, 2020; however it was not argued until the morning of trial.
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. The three older children are not involved in these proceedings.
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. Co-sleeping was a violation of Entre Familias policy.
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. The mother contends that she was asked to leave because of concerns of exposure to COVID-19, but the program disputes this statement. The department was unable to confirm the mothers participation in these programs or verify the reason for her departure because the mother provided it with only limited releases.
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. The visits were supervised by the childs foster mother, who reported that the child was happy to see the mother and would hug her.
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. The mother contends that the judges finding of fact no. 42 was clearly erroneous. That finding states that the mother “has not had treatment for substance abuse, aside from methadone, in 2021.” Based on the evidence in the record, the judge could discredit the mothers testimony that she obtained additional substance use treatment in 2021, particularly where she declined to sign releases enabling the department to confirm the treatment. The mother also challenges the judges conclusions of law nos. 3, 7, 18, 35 (ii, v, vi, xii), and 36. These conclusions focus on the mothers ongoing struggles with substance use and its collateral consequences, and on the judges determination that the mothers resulting unfitness was not temporary. We are satisfied that the judges conclusions were supported by the record evidence.