Opinion
20-P-704
05-17-2021
ADOPTION OF CARINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a Juvenile Court judge terminating her parental rights to her child. We conclude that the trial judge properly found clear and convincing evidence of parental unfitness caused by the mother's inadequately treated mental health issues, which have directly impacted her ability to provide an appropriate and stable home for the child. Further concluding that the judge did not rely on the inadmissible expert opinion that was contained within a Department of Children and Families (DCF) parenting assessment report, that DCF made reasonable efforts to reunify the child with the mother, and that the judge's denial of the mother's motions for a continuance did not amount to a denial of due process, we affirm.
1. Background. The mother has a long history with DCF. Although we largely limit our discussion to the events since the birth of the child in November 2015, it is important to understand that the mother suffered significant trauma as a child. In October 2016, a G. L. c. 119, § 51A, report was filed alleging neglect, after a police officer witnessed a drug transaction between the father and another man while the mother and the child waited for him. Seventeen bags of crack cocaine were recovered from the father, and he was found guilty of various drug crimes. The child remained in the custody of the mother.
The father's parental rights were terminated. He is not a party to this appeal.
In April 2017, a social worker arrived at a family shelter where the mother was living for a scheduled home visit. When she arrived, she found the mother holding the child and yelling that she was being terminated from the shelter, and was informed by the mother's case workers that the mother received multiple infractions for smoking and burning incense in her bedroom, failing to complete her chores, not keeping her room clean, and leaving diapers on the floor. The mother made statements that she hoped the shelter burned down, that she was leaving the shelter never to return, that she would give temporary custody of the child to someone, and that she needed to admit herself into a psychiatric ward. The mother ripped up the infraction she received, yelling and swearing at the housing case worker. This incident resulted in the mother's being terminated from the shelter, and DCF's taking emergency custody of the child. One day later, the mother underwent a psychiatric examination at Tufts Medical Center. She was cleared and advised to follow up with her therapist. Following her outburst, the mother was banned from family shelters for one year. A DCF housing specialist referred the mother to an individual shelter, but she rejected the suggestion, stating that it would "trigger" her to live in a congregate setting.
At trial, the mother testified that she was not following the rules at the shelter because she "[does not] clean up after grown people." The mother specified that she "did not say [she] was going to burn down the shelter. [She] said, ‘I hoped it burned down.’ " She blamed her subsequent homelessness on DCF.
At trial, the mother testified that the child was taken because of "a bull crap lie."
The mother described this incident as a "PTSD moment." In that regard, the mother has been diagnosed with posttraumatic stress disorder (PTSD), generalized anxiety disorder, major depressive disorder, and attention deficit hyperactivity disorder (ADHD).
Following the child's removal, the mother had weekly supervised hour-long visits, for which she consistently came prepared. In the summer of 2017, parent-child visits transitioned to two-hour unsupervised weekly visits in the community, which progressed to three, four, and eventually five hours per week. From August 30 through September 13, 2017, the mother completed a partial hospitalization program, which recommended that the mother engage in individual therapy. The mother stopped attending individual services with her therapist in October 2017 when she moved to Lowell. That same month, the mother failed to attend a foster care review.
After the longer unsupervised visits, the child would be "nonverbal, shut[ ] down, confused, and robotic during transitions before and after visits."
In January 2018, the mother moved in with the maternal grandmother in New Hampshire, which DCF considered to be safe and stable housing. That month, DCF initiated an Interstate Compact for the Placement of Children (ICPC) study in the hopes that the mother could have visitation in New Hampshire, but the New Hampshire equivalent of DCF denied approval in February as a result of the mother's lack of cooperation. DCF initiated a second ICPC study for the mother shortly thereafter, with which the mother cooperated, but approval was denied because of concerns about the maternal grandmother's home and the mother's inability to manage her anger.
The letter that the mother received from the New Hampshire Division for Children, Youth and Families stated that, during an initial conversation with the mother, she "presented as agitated and verbally aggressive" when hearing an explanation of the expectations for completing the home study. After the mother received the necessary paperwork she expressed, in a "volatile and disrespectful" manner, that she "would not be cooperative and would not comply with all aspects of the home study process."
In March 2018, the mother began seeing a therapist in New Hampshire biweekly. The therapist closed her case in June 2018 because of missed appointments. From the end of June through the middle of July, the mother did not attend visits because the maternal grandmother's car, which she was using to drive from New Hampshire to Massachusetts, broke down. DCF provided the mother with four round-trip bus tickets so that she could visit with the child.
In November 2018, the mother and the maternal grandmother got into an altercation in which the mother was arrested and charged with criminal threatening. Three children were present, including the mother's older daughter. As she was being arrested, the mother threatened to kill herself and stated that she was having a panic attack. Subsequently, the mother reported to her DCF social worker that the maternal grandmother kicked her out of the house and that she was homeless. In November 2018, the mother's visit schedule changed to biweekly two-hour partially supervised visits in the community.
In January 2019, the mother pleaded "no-contest to a violation-level non-criminal offense of disorderly conduct."
The older daughter is not involved in these proceedings.
At trial, the mother stated that she was "[h]ouse surfing," and had been living with a family friend since November 2018, but that she would not provide the address. If the child were to return to live with the mother, she testified both that she could ask her sister if they could live with her, and, on cross-examination, that her plan for housing would be to go back into a family shelter.
The mother testified that she is aware of her "PTSD triggers" and that they consist of DCF, "[p]laces that remind [her] of group homes, battered women," and the maternal grandmother. The mother's expert, licensed social worker Jenese Brownhill, testified that a shelter is a "triggering" environment for the mother. The mother testified that she was not currently in mental health treatment because of an insurance issue, but that she was on a waiting list for therapy. She stated that "[t]herapy doesn't fix everything," and that she did not think that therapy is helpful for her. The mother testified, "Therapy, they want me to talk about my past. I don't.... I moved on from my past, and I think a lot of people should do that, and focus on the now and the future.... But do I do the therapy? Yeah. Why? Because I'm expected to." Social worker Brownhill testified that therapy will continue to help the mother, specifically "looking at past trauma, how it affects her currently, how it shows up." She also testified that therapy is not effective unless there is a "buy-in" from the patient, and that the mother needs therapy currently to be an effective parent.
On May 24, 2019, the judge found the mother unfit and terminated her parental rights to the child. This appeal followed.
2. Standard of review. "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 child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Because termination of a parent's rights is an ‘extreme step,’ ... a judge must decide both whether the parent is currently unfit and whether, ‘on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may only be temporary.’ " Adoption of Ilona, 459 Mass. 53, 59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). "In making this determination, a judge must consider ‘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 Garret, 92 Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414 Mass. 705, 711 (1993). General Laws c. 210, § 3 (c ), provides a nonexhaustive list of factors to be weighed in determining the fitness of a parent.
On review of a judge's decision to terminate parental rights, we give substantial deference to the trial judge's decision, "and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59. "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.’ " Adoption of Larry, 434 Mass. 456, 462 (2001), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse of discretion exists where the decision "amounts to a ‘clear error of judgment’ that falls ‘outside the range of reasonable alternatives.’ " Adoption of Talik, 92 Mass. App. Ct. 367, 375 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
3. Evidence of unfitness. "Mental disorder is relevant only to the extent that it affects the parents’ capacity to assume parental responsibility, and ability to deal with a child's special needs." Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). Here, the mother's mental health issues directly impacted her ability to obtain stable housing for herself, and consequentially, for the child. The child was initially removed because the mother had an angry outburst at the family shelter where she was residing with the child. As she was holding the child, the mother was yelling at her housing case specialist and stated that she hoped the shelter burned down and that she needed to sign temporary custody of the child over to someone so that she could be admitted for psychiatric treatment. The mother described this incident at trial as a "PTSD moment." As a result of this altercation, the mother was banned from family shelters for one year. In other instances, the mother lost her housing because of issues related to her anger. Before the child was born, when the mother was residing with a roommate in Lowell, she lost her housing, according to the mother, after the roommate "pushed into [the mother's] bedroom ... [and] swung [at the mother] first, so [the mother] beat her up." An ICPC study for the child to visit the mother overnight in the maternal grandmother's home by New Hampshire authorities resulted in a denial because of the mother's inability to manage her anger and concerns about the maternal grandmother's home. In November 2018, she was kicked out of the maternal grandmother's home as a result of an altercation at which her older daughter was present, and which led to her arrest. When the mother was asked at trial where she would reside were she to be reunified with the child, the mother responded that she would live with a sister, but on cross-examination, she stated that she would seek a family shelter, which she admitted is one of her triggers. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) ("The mother's inability to secure ‘adequate stable housing’ was ... properly considered in determining her unfitness").
Despite recognizing her triggers, the mother was not able to provide concrete examples of how she would deescalate her anger to keep the child safe.
It is possible that these issues could be resolved with effective therapy. The mother's position, however, is that therapy is not helpful for her. From July 2016 through October 2017, the mother engaged in individual therapy. After the mother moved to New Hampshire, in March 2018, she began seeing a therapist, but her therapist closed her case in June 2018 because she missed appointments. At the time of trial, she was on a waiting list for therapy in Lowell. Although she was on a waiting list, the mother stated at trial that she partakes in therapy only because it is required by DCF. The mother's own expert testified that therapy is not effective if a person is engaging only because it is required. Additionally, the mother testified that she is not willing to discuss her past traumatic experiences, which presumably led to her mental health diagnoses, and that her past does not affect her situation in the present. Conversely, the mother's expert testified that it was "important for future planning" for the mother to participate in therapy, "looking at past trauma [and] how it affects her currently." Contrary to the mother's assertion that there was no expert testimony connecting the mother's mental health to her fitness to parent the child, her own expert admitted on cross-examination that the mother needed therapy to be an effective parent. The mother's strong aversion to therapy, which was deemed necessary by her own expert to address her PTSD, suggests that the mother's mental health issues will continue into the foreseeable future, perpetuating indefinitely her inability to maintain a stable home for herself and her child. See Adoption of Luc, 484 Mass. at 146-147 (mother's repeated denial of need for therapy and medication and failure to consistently engage in treatment relevant to determination of unfitness). The judge properly found the mother unfit to parent the child.
For example, the mother "refuse[d] to answer" questions about her past, because "[i]t's my past. I don't want to think about it. I blocked out a lot of the stuff from my past. I don't want to really remember my past." In explaining her conflict with the New Hampshire authorities, she stated, "I understand I have issues with my past.... I stay away from it, because I don't need those problems in my life.... I don't need to continue to see somebody because of it." She stated that, for this reason, she "told the lady that there were some questions she wasn't going to be able to ask me, and I said it nicely about three times. And, she still wouldn't get that, so I got angry."
The mother did not think trauma-focused therapy was a real practice, and stated that if she had to communicate with the maternal grandmother, one of her self-identified triggers, so that the child could visit with the mother's older daughter in the maternal grandmother's custody, she would get a mediator.
The mother takes issue in passing with the judge's reliance on DCF's exhibit no. 24 in finding that the mother suffered from PTSD, generalized anxiety disorder, major depressive disorder, and ADHD. This exhibit, so far as it identified the mother's diagnoses, is cumulative of other evidence, including the mother's own reports. Furthermore, we agree that the judge's statement in conclusion of law no. 10 is clearly erroneous, but it is "not central to the ultimate conclusion of unfitness," and does not affect our analysis. Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
4. Dr. Velez-Echevarria's report. "The admission of expert testimony is ‘largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.’ " Adoption of Hugo, 428 Mass. 219, 232 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). " ‘The crucial issue,’ in determining whether a witness is qualified to give an expert opinion, ‘is whether the witness has sufficient "education, training, experience and familiarity" with the subject matter of the testimony.’ " Adoption of Hugo, supra, quoting Commonwealth v. Richardson, 423 Mass. 180, 183 (1996).
There were two parenting evaluators who assessed the mother throughout this case: the mother's expert, social worker Brownhill, who was referred to as an expert in the judge's factual findings, and Dr. Velez-Echevarria, whom the judge referred to as an "evaluator." In October 2018, Dr. Velez-Echevarria completed a parenting assessment of the mother. Dr. Velez-Echevarria reiterated the mother's diagnoses of PTSD and related disorders, and opined that, when the mother's trauma symptoms are mitigated, she displays average parenting capacities, but that when she is "triggered," she has self-described "blackouts" and becomes unable to work with others. Dr. Velez-Echevarria's clinical recommendation was that the mother "require[d] 04 to 05 years of specialized trauma treatment before any consideration can be made regarding reunification."
The mother retained another expert, Dr. Jeremy Clyman, to perform a "professional critique" of Dr. Velez-Echevarria's parenting evaluation. Among other criticisms, Dr. Clyman stressed that Dr. Velez-Echevarria had insufficient clinical information to verify the mother's diagnoses and did not gather enough information from collateral sources around the child's well-being, and that the recommendation that the mother required four to five years of treatment was "inappropriate" and that "[t]here[ ] [are] no treatments that exist ... in the literature that say you need to engage in them for four or five years before you're reasonably treated or have shown sufficient progress."
Dr. Velez-Echevarria was not qualified as an expert, and, accordingly, her report could not have been properly considered for any expert opinion within it. Although the judge described Dr. Velez-Echevarria's report (as well as the testimony of Dr. Clyman and social worker Brownhill), her conclusion was that "it is not in dispute that Mother would benefit from engaging in regular individual therapy" and that "Mother has displayed significant trouble regulating her emotions, and tends to become escalated when she is ‘triggered’ by people or events." These conclusions, in fact, were agreed to by the mother's expert and supported by the testimony of social worker Brownhill and the mother's own testimony. As there is no indication that the judge relied upon the expert opinion in Dr. Velez-Echevarria's report or, for that matter, on anything in Dr. Velez-Echevarria's report that was not cumulative of evidence introduced by the mother, the mother was not prejudiced by any consideration of the report. Contrast Commonwealth v. Frangipane, 433 Mass. 527, 537 (2001) (expert testimony from witness not qualified to testify about how trauma victim stores and retrieves, or dissociates, traumatic memory prejudicial where witness's improperly admitted testimony served to bolster complainant's credibility, which was pivotal to Commonwealth's case, and was stressed by prosecutor in closing argument).
5. Reasonable efforts. DCF is "required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties." Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). "When committing a child to the custody of [DCF] or terminating parental rights, a judge must determine whether [DCF] has complied with its duty to make ‘reasonable efforts ... to prevent or eliminate the need for removal from the home.’ " Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. "The court shall make the certification and determinations required under this section in written form, which shall include the basis for the certification and determinations." G. L. c. 119, § 29C. Despite this requirement, "even where [DCF] has failed to meet this obligation, a trial judge must still rule in the child's best interest." Adoption of West, supra at 242, quoting Adoption of Ilona, supra.
Here, the judge did not make an explicit finding of fact or conclusion of law stating that DCF made reasonable efforts to reunify the mother and the child. Nonetheless, the record, and the judge's findings in the aggregate, demonstrate that DCF did make such reasonable efforts. DCF sought an ICPC study for the mother to have overnight visits with the child in New Hampshire, the first of which was denied because the mother was not cooperative. Despite the mother's lack of cooperation, DCF submitted a second request for an ICPC study soon thereafter, notwithstanding New Hampshire's denial. When the maternal grandmother's car broke down, which the mother was using to travel from New Hampshire to Massachusetts for visits, DCF provided the mother with four round-trip bus tickets so that she could visit the child. When the mother lost her housing at the family shelter due to the incident resulting in removal of the child, a DCF housing specialist referred the mother to an individual shelter, which the mother rejected. At one point, DCF provided the mother with five-hour unsupervised weekly visits. After the New Hampshire ICPC studies failed, DCF arranged for a parenting assessment for the mother.
The judge checked off a box on a form in May 2018 finding that DCF "made reasonable efforts to make it possible for the child to return safely to his/her parent or guardian," but she did not reiterate this finding when issuing her factual findings and conclusions of law in September 2019. Because of the analysis infra, we do not reach the mother's argument that this form alone is insufficient for a finding of reasonable efforts.
Furthermore, the mother cannot raise this issue for the first time on appeal. "It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of West, 97 Mass. App. Ct. at 242, quoting Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). This principle is especially apt where, as here, the record facially provides no reason to doubt DCF's efforts. "The parent should assert the claim ‘either when the parenting plan is adopted, when [s]he receives those services, or shortly thereafter.’ " Adoption of West, supra, quoting Adoption of Gregory, 434 Mass. 117, 124 (2001). The mother did not raise this issue below, so it is unsurprising that the judge did not explicitly mention it in her factual findings and conclusions of law. Adoption of West, supra ("A parent cannot raise a claim of inadequate services for the first time on appeal, as [DCF] would not have had the opportunity to address it").
6. Due process. "The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected." Guardianship of V.V., 470 Mass. 590, 592 (2015), quoting Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979) (J.K.B.). "Due process requirements must therefore be met before a parent is deprived of his or her parental rights." Guardianship of K.N., 476 Mass. 762, 764 (2017), quoting Guardianship of V.V., supra. "Due process includes ‘the right to be heard "at a meaningful time and in a meaningful manner." ’ " Guardianship of V.V., supra, quoting J.K.B., supra at 4. The party alleging a failure to comport with due process must show prejudice resulting from the alleged violation. See Adoption of Don, 435 Mass. 158, 170 (2001).
The mother asserts that the judge's denial of her motions to continue, both on the November 2018 date and the February 2019 date, violated her due process rights. "The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's decision will be upheld absent an abuse of that discretion." Adoption of Imelda, 72 Mass. App. Ct. 354, 366 (2008), quoting Adoption of Gillian, 63 Mass. App. Ct. 398, 409-410 (2005). "Speedy resolution of cases involving issues of custody or adoption is desirable." Care & Protection of Quinn, 54 Mass. App. Ct. 117, 122 (2002), quoting Adoption of Emily, 25 Mass. App. Ct. 579, 581 (1988). "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, supra at 120. The judge must consider the interests of the child or children involved, which are "paramount," and "argue[ ] against delay." Id. at 122.
On November 15, 2018, DCF changed its goal to adoption. On that date, the mother's counsel asked for "a little more time before trial," stating that the change in DCF's goal would "require some additional efforts on [his] end to present the best case possible, on behalf of [the mother], and to demonstrate ... her fitness." He asked for a four-month trial date, noting that he was not sure if "any experts that [he] might go and see can complete everything in this short timetable." The judge set a trial date of February 26, 2019, almost three and one-half months later. As the mother has not demonstrated any prejudice resulting from this scheduling, she has not shown a deprivation of her due process rights. See Adoption of Don, 435 Mass. at 170 ("While the protracted nature of the proceedings in this case was regrettable, ... the parents have failed to demonstrate that the delay was prejudicial to them such that it raises due process concerns.... [T]he parents have not shown that the outcome of this case would have been different had the proceedings occurred more expeditiously").
The mother further argues that the delayed disclosure of trial exhibits and the witness and exhibit list, combined with the judge's denial of her motion to continue, deprived her of due process. Again, the mother has not demonstrated that she was prejudiced. The mother's trial counsel stated that he had not seen "[t]he information on the respite foster parents" and "[t]he allegations against the foster father," some of which was redacted, before they were late-disclosed to him. The mother has not demonstrated how the information on the foster father and respite foster parents prejudiced her in defending against a determination of her unfitness, and we see no reason why this information would have prejudiced her.
Similarly, the mother has not demonstrated prejudice from the provision of three exhibits on the first day of trial. These exhibits consisted of the adoption plan, DCF's child permanency assessment and adoption information disclosure form, and a DCF report with the date of the first day of trial. The judge relied on these exhibits to make findings about the father's and the child's background, the mother's background and housing, her diagnoses, her temporary participation in therapy in New Hampshire, and her disbelief that trauma-based therapy existed; and to acknowledge the social worker who was assigned to the family in January 2018, the visitation schedule, and the child's foster placement. The factual findings described above, as they related to the mother and her fitness to parent the child, were cumulative of other evidence in the record. The judge relied on the adoption plan exhibit for the factual finding describing the event resulting in the child's removal, but she also noted her reliance on the affidavit of the DCF worker directly describing the incident. The judge relied on the DCF report in describing the child's demeanor before and after the longer unsupervised visits, but this was also supported by the testimony of the social worker, upon which the judge relied.
The mother filed a motion in limine to strike certain portions of those exhibits, some of which were stricken by the judge.
Finally, the mother's counsel, prior to trial, moved for two letters rogatory for witnesses from New Hampshire related to the ICPC denial and the mother's criminal case out of New Hampshire, and the judge allowed both motions. Despite acknowledging towards the end of trial that he was unable to secure the New Hampshire witnesses, the mother's counsel never requested a continuance to make further efforts to reach them. Because the mother made no showing that more time would have helped to secure the presence of the New Hampshire witnesses, and the mother's counsel made no further request for a continuance when they did not appear, the mother has not demonstrated prejudice amounting to a deprivation of due process.
Decree affirmed.