Opinion
No. 12–P–248.
2013-07-3
ADOPTION OF BJORN (and a companion case ).
By the Court (MEADE, SIKORA & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother and the father appeal from decrees by a judge of the Juvenile Court terminating their parental rights of custody and consent to adoption of their two children, Bjorn and Jane. Both parents challenge the trial judge's determination of unfitness. They appeal also from the omission of any entitlement to posttermination and postadoption contact. Individually, the mother contends that the judge violated her right to counsel by permitting her to proceed pro se without a valid waiver. For the following reasons, we affirm.
Background. The evidence permitted the trial judge to find the following facts. Since the 1990's, the mother and father have maintained an intermittent relationship, but have not married. Bjorn and Jane were born in April, 2006, and September, 2008, respectively. According to the mother, she worked at the Boston Medical Center (BMC) for seven years as a pharmacy technician. She stopped working after becoming sick, undergoing multiple surgeries, and suffering injuries in a car accident.
After becoming pregnant with her first child, the mother underwent periods of homelessness. She has lived in shelters and with her aunt. By the time of trial, she had found a two-bedroom apartment through a shelter program. On November 4, 2009, an observer filed a mandated G.L. c. 119, § 51A, report. The report alleged that the children had appeared at a daycare center with inadequate food, and that the mother had forbidden daycare staff to touch their food. The Department of Children and Families (DCF) appointed an investigator. The mother refused to speak with the investigator; she did not provide the investigator access to her children. She also began to complain that the children had illnesses attributable to the daycare facility. DCF began to monitor the mother and the children. The mother generally resisted DCF's intervention. Over the course of the next several months, the mother continued to complain that the children were becoming sick, often as the result of alleged nefarious actions of daycare workers. During this time, the mother refused to use the intervention services offered by her daycare center, including the advice of a nutritionist and available play therapy for Bjorn.
The mother received a settlement from Metropolitan Life Insurance Company.
On May 12, 2010, Jane's pediatrician diagnosed her with “failure to thrive.” The mother disagreed with the diagnosis. On June 2, 2010, the mother took Jane to the BMC Grow Clinic for Children (Grow Clinic), where Dr. Deborah Frank also diagnosed her with failure to thrive. Dr. Frank recommended emergency hospitalization to address Jane's severe malnutrition. The mother resisted, and she claimed that Jane may have been “a little dehydrated.” The hospital requested assistance from DCF and DCF received temporary custody of Jane.
Jane's hospitalization prompted DCF to review Bjorn's medical records. DCF discovered that Bjorn had a previous referral to the Grow Clinic, but that the mother had neither presented for an appointment nor responded to numerous letters from the clinic. On June 8, 2010, DCF gained temporary custody of Bjorn.
Toward the end of June, the hospital released the children and the court granted temporary custody to their maternal aunt. She maintained custody for approximately three months. The children showed some improvement during this time. However, DCF learned that the father had taken the children for several unsupervised visits with the mother. DCF regained temporary custody of the children in order to supervise visitation. In March, 2001, both children entered the Bridge Home where they received medical attention at the Grow Clinic. In particular, Dr. Frank attended to Jane's medical issues. Both children later moved together to an intensive care foster home. Eventually, DCF separated Bjorn from his sister because of aggressive behavior. His behavior was disturbing enough to require his hospitalization at St. Vincent's acute treatment program on May 26, 2011.
The children remained in these positions until the time of trial. Both parents spoke with the court investigator. The mother has asserted that she does not want to participate in DCF's services. She claims that her own training permits her to conclude that the doctors' diagnoses are inaccurate. The father has stated that he does not want custody of his children, and that he is unable to care for them.
After a three-day trial, the judge announced the terms of her decrees. On October 18, 2011, she issued her subsidiary findings of fact and conclusions of law. She ordered the termination of the parental rights of both parents, approved the adoption plan by DCF, and ordered the commitment of the children to DCF custody. The judge omitted any orders addressing parental contact with the children.
Analysis. 1. Evidence of unfitness. A decision to terminate parental rights calls for a two-step analysis. See G.L. c. 210, § 3; Adoption of Nancy, 443 Mass. 512, 515 (2005). First, the judge must find, by clear and convincing evidence, that the parent is unfit. Adoption of Nancy, supra at 514–515. Second, a judge must determine whether the termination of parental rights serves the best interests of the child. Ibid. The judge's findings must be left undisturbed unless they are clearly erroneous. Id. at 515. Our review of the record supports the judge's determination to terminate both the mother's and father's parental rights.
a. Mother. The mother's inability to parent emerged from her children's malnutrition. At the time of Jane's hospitalization in June of 2010, when she was nearly two years old, she weighed only 16 .8 pounds. That weight is normal for a seven month old child. Similarly, Bjorn at age four weighed the same as an average two and one-half year old child. Both children had received diagnoses of failure to thrive. Dr. Frank testified that Bjorn was under the growth curve, was nutritionally wasted, and that he had stopped growing. Dr. Frank's reports found Jane to be “stunted” and “wasted”; upon her admission to the hospital, she was on the “borderline of mortality.” Despite this danger, the mother claimed that Jane merely suffered from dehydration.
The mother also missed doctor's appointments with her children.
The mother's mental health problems also weighed in favor of the judge's conclusion of unfitness. For example, the mother had accused numerous individuals of poisoning her children. These delusions negatively impacted her children's diets and undermined their overall health. There was also evidence that the mother suffered from depression.
The judge appropriately considered her mental health within the overall evaluation of her unfitness to parent. See Care & Protection of Stephen, 401 Mass. 144, 151 (1987) (mental illness supports determination of unfitness). Even after removal by DCF, the mother during a visit convinced Bjorn that his aunt was poisoning him. That communication caused Bjorn to induce vomiting. Bjorn also began to display severe emotional instability. The evidence showed that the mother's delusions affected her ability to meet the medical needs of both children. See Adoption of Quentin, 424 Mass. 882, 888 (1997) (“[I]t is not enough to state that a parent is mentally impaired, rather there must be a showing that the condition affects the parent's ability to care for the child”).
The judge concluded that “[t]hough Mother has no formal diagnosis of a mental disorder, her mental instability has become evident to the Court and has played a significant role in negatively affecting the children. Mother's mental health has also prevented her from demonstrating that she can properly handle the special needs of her children.”
Further evidence of the mother's unfitness appears in her failure to utilize DCF services. The judge acknowledged that the mother had exhibited some initial cooperation with providers and with DCF. However, the judge weighed heavily the mother's refusal (1) to acknowledge her own mental deficiencies and (2) to accept doctors' services and recommendations for her children's health and diets. In short, the mother's delusions overwhelmed any ability to accept DCF's or the doctors' services.
See Adoption of Paula, 420 Mass. 716, 730 (1995) (termination proper after DCF offered services but parent showed no understanding of children's complex needs); Adoption of Mario, 43 Mass.App.Ct. 767, 774 (1997) (parent's refusal to cooperate with DCF is evidence of unfitness). Even at the time of trial, the mother refused to participate in DCF services.
The mother appeared to be unaware of the seriousness of her shortcomings and of her emotional deficits; she remained in denial throughout the months before trial. During the trial, the fact that she challenged the doctors' diagnoses and the causes of her children's illnesses indicated the continuing strength and danger of her delusions.
Finally, the children showed signs of improvement after removal, while postremoval visits resulted in apparent regressive behavior. The most obvious improvement for both children was consistent weight gain. However, Dr. Frank testified that, after a visit with the mother, Jane developed disordered eating habits and regressed in her toilet training. At the same time, Bjorn's behavior became aggressive and sexualized.
In sum, the malnourishment of the children, the mother's neglect of medical attention and assistance, her refusal of DCF services, and the children's regression from occasions of contact with her combine in strong support of the judge's determination of unfitness. The aggregate evidence of unfitness was clear and convincing.
b. Father. The principal shortcoming of the father's appellate position is that he has admitted that he does not want custody of the children. He merely wants visitation. However, he clearly has shown no interest in meaningful fatherhood. The judge concluded that the father has (i) inconsistently appeared for court dates; (ii) failed to make himself available to DCF; (iii) never lived with the children; and (iv) never signed a service plan or committed to any steps toward improvement as a parent.
The father demonstrated his indifference by taking no action to protect the children from the mother. He was present at the hospital when the mother initially refused to admit Jane for malnourishment. Additionally, during a visit in May, 2010, the mother claimed that she had permission to take Jane home because DCF no longer had custody. The father, who was present at the visit, failed to stop the mother from taking this action. See Adoption of Larry, 434 Mass 456, 467–468 (2001) (parent's failure to act and to protect child against actions of other parent is evidence of unfitness).
As to both parents, nothing in the record suggests that we should disturb the judge's findings of fact or conclusions of law. See Adoption of Greta, 431 Mass. 577, 587 (2000). The evidence supports the judge's determination that the parents' unfitness was continuous and indefinite.
The mother's argument that DCF failed to make reasonable efforts to reunify the family is without merit. As we have discussed, the mother's mental health issues and unwillingness to engage in DCF services, in addition to the father's static indifference, obstructed the effectiveness of DCF-offered services.
2. Posttermination and postadoption contact. A judge has discretion under G.L. c. 210, § 3, to formulate posttermination contact between parents and children. In this case, the judge did not issue an order permitting posttermination or postadoption visitation. There was no error with respect to either the mother or father.
The mother's delusions persisted during the visits. For example, during the visits she still claimed that her children were ill, and at one point, as previously noted, refused to release Jane to the social worker. As we described above, visits with the mother appeared to result in regressive behavior by both children. The same evidence of unfitness supported the judge's effort to meet the best interests of the children posttermination.
As to the father, there was evidence of some bond with the children, since they appeared to enjoy the visits. However, the father also exercised poor judgment by failing to protect Jane from the mother. In September, 2012, after Bjorn displayed “extreme volatility and deterioration,” his psychiatrist recommended that Bjorn cease visits with both parents.
The judge considered evidence that DCF's failure of timely response to the parents caused delay of some of the visits. However, she noted also that DCF decreased the frequency of visitation after Bjorn's therapist recommended that the visits were becoming too disruptive for the children.
In these circumstances, we cannot say that the judge's omission of an order for posttermination contact by either parent amounted to an abuse of discretion. See Adoption of Helen, 429 Mass. 856, 863 (1999) (“While posttermination visitation may be allowed, the proper focus is on the best interests of the child”). See also Adoption of Vito, 431 Mass. 550, 560–562 (2000) (outlining judge's equitable power to determine postadoption contact).
3. Mother's right to counsel. Parents have a fundamental interest in the relationship with their children. Adoption of Meaghan, 461 Mass. 1006, 1007 (2012). As a result, they retain also a constitutional protection of their right to counsel, analogous to a criminal defendant's entitlement under the Sixth Amendment to the United States Constitution. Adoption of William, 38 Mass.App.Ct. 661, 663 (1995). In proceedings threatening the loss of parental rights, a waiver of counsel must be “voluntary, unequivocal, knowing and intelligent.” Id. at 663–664. The validity of the waiver is a circumstantial determination. Id. at 664.
The mother emphasizes that no colloquy appears on the record memorializing the waiver of her right to counsel. A colloquy is certainly the preferable course of action. However, multiple indicia independently support the mother's knowing and voluntary waiver. Most significantly, the mother ceased her relationships with four attorneys, three of whom the court had appointed. The fourth attorney, who had represented her in the months approaching trial, remained as standby counsel during the trial. This attorney had informed the judge by affidavit that the mother had instructed her to withdraw from the case.
Those circumstances evidenced a knowing and voluntary waiver. Ibid.
The docket also notes the four attorneys' motions for withdrawal.
Further, the mother had the opportunity to present her case. Standby counsel (familiar with the case from substantial pretrial preparation) performed competent direct examination of the mother. The mother cross-examined two of the three witnesses whom she wished to call; she cross-examined all of the witnesses about the illnesses of her children. She gave a closing argument. Overall, the mother submitted her theory of the case: chiefly a challenge to the doctors' diagnoses of the nature and causes of the children's illnesses. No medical evidence appeared available to contradict the doctors' views of the malnourishment and endangerment of the children. The evidence of unfitness was compelling. Formal representation would not have achieved a different result.
Decrees affirmed.