MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree of the Juvenile Court finding her unfit to parent her child, terminating her parental rights, and awarding permanent custody of the child to the Department of Children and Families (DCF). On appeal, the mother argues that the judge's findings were clearly erroneous and that there was insufficient evidence to support the finding of parental unfitness. We conclude that the judge's findings of fact are supported by the record and that those findings, when taken together, are sufficient to prove the mother unfit. We discern no abuse of discretion in the judge's conclusion that it is in the best interests of the child to terminate the mother's parental rights.
The child's birth certificate does not identify her father and no one has been adjudicated as the child's father. The parental rights of the unknown father were also terminated.
The trial judge's subsidiary findings in a parental unfitness proceeding must be “specific and detailed” and will be left undisturbed unless they are clearly erroneous. Adoption of Quentin, 424 Mass. 882, 886 (1997). “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ “ Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Taken together, the findings must prove parental unfitness clearly and convincingly. Custody of Eleanor, supra at 800.
After a five-day trial, the judge made specific and detailed findings regarding the mother's history of mental illness and instability during the two-year period beginning when the child was born and lasting until the time of the trial. The judge noted in particular the mother's history of unstable housing, her failure to engage in mental health services and treatment, her inability to understand the developmental needs of the child, and her unwillingness to avail herself of services to gain the necessary parenting skills.
On June 17, 2016, while this appeal was pending (and after the mother had filed her brief), the judge entered supplemental findings directed to the topic of posttermination and postadoption visitation of the child by the mother (a topic the judge had addressed in her decision dated September 23, 2015). Ordinarily, the entry of an appeal in this court divests the trial court of jurisdiction over the matter. See Commonwealth v. Cronk, 396 Mass. 194, 197 (1985) ; Springfield Redev. Authy. v. Garcia, 44 Mass.App.Ct. 432, 434–435 (1998). Among the reasons why the trial court may not act to modify a decree while it is pending on appeal is the possibility that such modification could affect the issues before the appellate court, or even render the appeal moot. See Springfield Redev. Authy. v. Garcia, supra at 435. We note that neither party has raised a question concerning the authority of the judge to enter her supplemental findings, or challenged her orders on visitation. Accordingly, to the extent there was a jurisdictional defect at the time the judge entered her supplemental findings, we hereby grant leave to the trial court, nunc pro tunc, authorizing the judge to have entered the findings.
The child was born in August, 2013, while the mother was residing at the Clinton Health Family Shelter (shelter). The mother stayed at the shelter with the child until June, 2014. While there, the mother attempted to work with her case manager and her DCF social worker to address her parenting struggles and emotional issues. In April, 2014, her behavior began to deteriorate, she failed to comply with shelter rules, and she stopped taking her medications. In June, 2014, the mother left the shelter, leaving the child in DCF's temporary custody. Since June, 2014, until the date of the trial, the mother was unable to obtain stable housing, was not compliant with her DCF service plan, and was inconsistent in her visits with the child.
Contrary to the mother's contention, the judge's findings of fact are not clearly erroneous. The mother's challenges to the findings are largely based on the judge's failure to apply evidence offered by the mother in mitigation of her various shortcomings to reduce or negate their force in establishing her unfitness. As such, her challenges go to the weight of the evidence and not to its sufficiency in support of the judge's findings. The judge's assessment of the credibility of the witnesses and the weight given to the evidence should be accorded substantial deference. Adoption of Peggy, 436 Mass. 690, 702 (2002).
In issuing her findings, the judge relied on the mother's history of mental illness and reluctance to engage in treatment and services. The mother has a history of mental health issues and her previous diagnoses include posttraumatic stress disorder, intermittent explosive disorder, bipolar mood disorder, attention deficit hyperactivity disorder, anxiety disorder, dyssomnia, and depression. The case manager at the shelter testified that the mother was explosive at the shelter and was inconsistent with her therapy and medication. The DCF social worker testified that the mother felt overwhelmed caring for the child and was inconsistent in visiting the child. Mental illness is relevant to the unfitness determination “once a nexus has been established between the illness and diminished parenting ability.” Adoption of Saul, 60 Mass.App.Ct. 546, 554 n. 11 (2004). Here, the mother's mental illness interfered with her ability to participate and comply with her service and treatment plans, provide the child with a consistent, stable, and nurturing home, and provide minimally acceptable care of the child. The mother's mental health and her inability to follow through with recommended treatment, services, and medication were relevant factors in supporting the judge's ultimate finding of unfitness.
The case manager defined “explosive” as swearing, yelling, and screaming at the residents of the shelter.
The DCF social worker also testified that the mother admitted to needing help with parenting the child, was unable to understand the developmental needs of the child, and was unwilling to participate in services and education programs to help her gain the necessary parenting skills.
The judge also relied on the mother's history of unstable housing when issuing the findings. While a finding of unfitness cannot be based solely on homelessness, see Adoption of Linus, 73 Mass.App.Ct. 815, 821 (2009), or a parent's financial condition, see Custody of a Minor, 389 Mass. 755, 766 (1983), “the ability to maintain some financial stability may be relevant.” Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 n. 19 (1987). “It is in the best interests of [the child] to have ‘parents' who can and who will, on a consistent, long-term basis, assume all parental responsibilities and who can provide [the child] with the stable and continuous care and nurturing she needs and will continue to need as a child.” Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 136 (1990). Here, the DCF social worker testified to several housing referrals that the mother did not pursue. The judge properly considered that the mother's housing history reflects an ongoing inability to obtain and maintain stable housing despite the referrals of service providers. While determinations of unfitness must be based on current evidence, see Adoption of Ramona, 61 Mass.App.Ct. 260, 264 (2004), past parental conduct is relevant when the conduct is not too remote and “where the evidence support[s] the continuing vitality of such conduct.” Adoption of Larry, 434 Mass. 456, 469 (2001). The judge did not err in concluding that the mother's inability to maintain stable housing affects her fitness as a parent.
“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 (1993). The judge's subsidiary findings are supported by a fair preponderance of the evidence in the record and, taken together, they furnish clear and convincing evidence to support the judge's conclusion of parental unfitness. Care & Protection of Laura, 414 Mass. 788, 793 (1993). In light of all the evidence and the judge's specific findings, the judge did not err in concluding that the mother's inability to provide for her child's needs rendered her unfit, that this unfitness would continue into the foreseeable future, and that the best interests of the child would be served by termination of parental rights.
Decree affirmed.