Opinion
21-P-576
03-08-2022
ADOPTION OF ELLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered in the Juvenile Court finding her unfit to parent her child, Ella, and terminating her parental rights as to Ella. The child cross appeals, arguing that the judge erred by ordering annual visitation with the mother and the father. We affirm the termination of parental rights and vacate and remand the visitation order for further consideration and clarification.
The father did not appeal from the decree terminating his parental rights.
Background. We summarize the judge's findings of fact where we find sufficient support in the record. Ella was born in September of 2012. By that time, the mother and father (jointly, the parents) had already had extensive involvement with the Department of Children and Families (DCF). Specifically, in 2008, a G. L. c. 119, § 51A, report (51A report) was filed alleging neglect of the parents’ two older children. The parents had a third child in December of 2008. Following a series of 51A reports and DCF investigations, the parents’ three children were removed by DCF and, in 2011, the parents signed an open adoption agreement terminating their rights to those children. After the adoption of the parents’ first three children, Ella was born.
In assessing the sufficiency of the record evidence, we draw certain factual information from G. L. c. 119, § 51B, reports. See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). We consider G. L. c. 119, § 51A, reports for the limited purpose of setting the stage for the initiation of the care and protection petition. See id.
DCF opened a new case in 2015 after a 51A report was filed alleging neglect of Ella. Another series of 51A reports followed. The ensuing G. L. c. 119, § 51B, investigations (51B investigation) found that the allegations of neglect were supported due to, inter alia, failure to provide Ella with minimally adequate medical care, exposure to the father's illicit drug use, and the father's physical and verbal abuse of the mother. In June of 2018, the parents and Ella were injured in a car accident. During an ensuing 51B investigation, the mother stated that she was driving when the father, who was intoxicated at the time, grabbed the steering wheel during an argument and crashed the car into a tree. Following this incident, Ella's maternal grandfather refused to allow the father back in the home, and thus the mother and father stopped living together.
The father reported that he grabbed the wheel to avoid an animal in the road.
In October 2019, a 51A report was filed alleging that Ella had been exposed to domestic abuse of the mother by the mother's new boyfriend (boyfriend). During the ensuing 51B investigation, the mother denied the abuse and denied having a boyfriend. However, Ella, who was seven years old at the time, told the mother to "tell the truth and stop lying" and stated, "mom you have a boyfriend ... and I am scared of him." Ella reported that she was scared of the boyfriend because "he's not nice to mommy," he "punched momma in the lip," and he was frequently intoxicated. As a result, DCF removed Ella on an emergency basis and filed a care and protection petition.
The 51A report stemmed from a report the child made at her school.
Subsequent investigation revealed that the boyfriend was a registered level two sex offender.
Following removal, DCF developed action plans for the parents. The parents did not consistently engage in services or comply with the DCF action plans. The mother missed or canceled several meetings with DCF, was not forthcoming about her relationship with her boyfriend, did not participate in parenting programing, cut off contact with her therapist, and abruptly moved out of State without informing DCF or Ella -- all in violation of her action plan. The father neither engaged with DCF, nor had any contact with Ella, despite DCF's repeated attempts to contact him.
DCF issued initial action plans effective November 14, 2019, and updated the action plans effective May 12, 2020.
Following removal, the mother had weekly supervised visits with Ella. While these visits generally went "okay," the visits caused Ella to worry about the mother's involvement with the boyfriend. After the mother moved out of State, she refused to answer questions from Ella about why she had moved. This eventually led Ella to end visitation calls "because it made her mad that [the mother] did not tell [her] why she moved."
Due to the COVID-19 pandemic, in-person visits were changed to phone calls via Webex.
Among other incidents, the mother refused to answer Ella's questions about her relationship with the boyfriend, showed up to a visit with a black eye that she refused to explain, showed Ella a picture of the mother and the boyfriend kissing, and gave Ella a Christmas gift from the boyfriend. Meanwhile, the mother continued to deny having a boyfriend when communicating with DCF.
When Ella was first placed with the current foster mother (foster mother or preadoptive mother), "she had a mouthful of ... black teeth, was walking into walls because she" could not see, and had an unhealthy diet. Since the placement, Ella underwent dental surgery, has received regular vision care, and has improved her diet. The foster mother successfully advocated for Ella to be placed on an individualized education plan and has sought out services to address Ella's special needs. In May of 2020, Ella was diagnosed with a serious heart condition that required emergency surgery. Following surgery and ongoing medication, Ella's condition has improved.
Ella now attends weekly therapy, where she has been diagnosed with posttraumatic stress disorder resulting from her "hyper vigilant" state. Ella also attended occupational therapy and physical therapy.
Ella was diagnosed with supraventricular tachycardia, an abnormally fast heartbeat.
After DCF informed the mother of Ella's heart condition and surgery, the mother denied that Ella had a heart condition and stated that Ella did not need medication.
In July 2020, DCF changed Ella's permanency goal to adoption and the foster mother committed to adopting Ella. Following a trial in February 2021 -- at which the mother and father failed to appear -- the judge ordered the entry of decrees finding the parents unfit and terminating their parental rights. The judge also ordered posttermination visitation between the parents and the child. The mother appealed from the decree terminating her parental rights and the child cross appealed challenging the issuance of the visitation order.
The foster mother and Ella have formed a strong bond. Nonetheless, Ella maintained a connection with her biological mother, and has expressed reservations about the permanency of adoption, stating that she wants to return to live with the mother "when it is safe."
At trial, the mother's counsel moved for a continuance of trial to a new date because the mother could not attend due to "family issues." The motion was denied.
We note that the judge's initial memorandum of decision, issued February 4, 2021, did not include the father in the visitation order. However, the final order issued May 13, 2021, departs from the initial memorandum of decision with regard to visitation by, inter alia, including the father in the visitation order.
Discussion. 1. Termination of parental rights. The mother contends that some of the judge's findings of fact were erroneous, and that absent those findings DCF did not meet its burden to prove parental unfitness by clear and convincing evidence. We disagree. Even assuming that the challenged findings were error, the remaining evidence of unfitness was overwhelming.
Specifically, the mother argues that the record did not support the judge's findings that (1) she maintained a relationship with the boyfriend at the time of trial, (2) she suffered from untreated mental illness, and (3) she abused substances before and during the proceeding.
To the extent the judge found that the mother had an ongoing relationship with the boyfriend at the time of trial, that she suffered from untreated mental illness, and that she abused substances before or during the proceedings, we assume arguendo that those findings were error. We do so notwithstanding that there was some evidence in the record to support a finding of the mother's substance abuse. However, to the extent the judge found that the mother had continued contact with the boyfriend after Ella's removal, we find ample support in the record for that finding. See, e.g., note 9, supra.
"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). "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). We give substantial deference to the judge's findings, which we do not disturb unless they are clearly erroneous. See Adoption of Jacques, supra.
The parents’ unfitness resulted from a "constellation of factors." Adoption of Greta, 431 Mass. 577, 588 (2000). The evidence supported the judge's findings that, inter alia, the parents exposed the child to domestic violence, and the mother repeatedly failed to acknowledge or recognize the harm that this exposure caused the child; the mother failed to provide adequate medical care and failed to acknowledge the child's serious heart condition; and the parents have failed to meaningfully engage in services to address their parental deficits. See Adoption of Ramon, 41 Mass. App. Ct. 709, 717-718 (1996).
In addition, the judge evaluated the provisions of G. L. c. 210, § 3 (c ), and found factors (i), (ii), (iii), (iv), (vi), (vii), (viii), (x), and (xii) to be applicable. The record evidence amply supports the judge's findings and determination that the parents are unfit and that termination of their parental rights was in the child's best interests.
2. Visitation order. In her cross appeal, the child argues that the court-ordered visitation was an abuse of discretion. We agree that, in its current form, the visitation order was an abuse of discretion.
"[A] judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009).
"[O]nce a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with a biological parent, with the intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest. A judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child's best interest." (Citation omitted.)
Adoption of Ilona, 459 Mass. 53, 64-65 (2011). Even when visitation is found to be in the best interests of the child, a judge may leave the visitation arrangements between the child and the mother "to the sound discretion of [the child's] caretakers based on the child's ‘desire to see her mother balanced against their view as to her safety and best interests as observed by their daily interaction with the child’ " (citation omitted). Adoption of Mary, 414 Mass. 705, 712 (1993). Further, in cases where the child has been exposed to domestic violence, the judge is required to make written findings regarding "whether, in light of the history of domestic violence witnessed by the children, in addition to all other relevant factors, posttermination and postadoption visits are in the children's best interests." Adoption of Zak, 87 Mass. App. Ct. 540, 547 (2015).
Here, the judge ordered "[o]ne letter and picture from foster/adoptive parent each year to Mother and Father outlining the child's progress and development and one supervised visit per year in the month of December at a time and place of the foster/adoptive parent's choosing with Mother and Father." This order was error where it did not expressly consider the history of domestic violence, it lacked adequate specificity, and it unjustifiably included the father.
First, the visitation order lacked the requisite explicit consideration of domestic violence required under Adoption of Zak, 87 Mass. App. Ct. at 546. While the judge made extensive factual findings regarding the history of domestic violence, the judge did not explicitly consider that history in the context of the visitation order. As in Zak,
"the judge made explicit findings that the child[ ] had been exposed to a pattern of domestic violence that had affected [her] adversely .... However, when ordering posttermination visits, [the judge] made no mention of the history of domestic violence in the family, its impact on the child[ ], or whether, notwithstanding that history, it was in the best interests of [the child] to have postadoption visitation with [her] biological parents."
Id.
Second, the judge did not adequately consider and balance the intrusion on the preadoptive mother's rights where the visitation order appears to place the burden of locating and contacting the parents on the preadoptive mother. See Adoption of Ilona, 459 Mass. at 64-65 ; Adoption of Mary, 414 Mass. at 712. Finally, inclusion of the father in the visitation order was an abuse of discretion where the father was no longer in a relationship with the mother, had no contact with Ella since 2019, did not engage with DCF whatsoever, did not appear at trial, and did not request visitation. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" [citation and quotation omitted]).
We note that the order also does not specify whether the mother and father are to attend the visits together notwithstanding their separation and the history of domestic abuse. Further, the order does not address whether the mother is to attend alone or could be accompanied by someone else, such as the boyfriend.
The child argues that it was error to order any posttermination visitation where the preadoptive mother wants the child "to have a relationship with her mom, but [does not] want it to get in the way of her mental health." She contends that there is no "compelling reason" to overcome the "presumption that [the] preadoptive parent[ ] will act in [the child's] best interest in evaluating -- now and in the future -- whether continued contact with her mother is in" the child's best interests. Adoption of Ilona, 459 Mass. at 66. We find this argument unavailing. "[E]ven where the child's custodian is supportive of visitation with the terminated parent, an order of visitation provides clarity and security to a child who may be worried about the loss of a relationship with the biological parent." Id. at 64, citing Adoption of Rico, 453 Mass. at 756-757. Here -- where the child had a strong bond with the mother and expressed concern about the prospects of adoption, see note 13, supra -- we decline to say that it was beyond the judge's discretion to order some form of visitation.
In light of the foregoing, the portion of the judge's decree related to posttermination visitation is vacated, and the matter is remanded for (1) express findings as to whether visitation is in the best interests of the child when considering, among other relevant factors, the history of domestic violence; (2) if visitation is still deemed to be in the best interests of the child, clarification as to the burdens the visitation order places on the preadoptive mother; and (3) clarification as to the inclusion of the father in the visitation order. In all other respects, the judge's decree terminating the mother's parental rights is affirmed. See Adoption of Franklin, 99 Mass. App. Ct. 787, 808 (2021) (vacating and remanding portions of order related to visitation).
So ordered.
vacated and remanded