Opinion
14-P-1651
06-01-2015
ADOPTION OF NELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother, who suffers from intellectual disability, anxiety, and posttraumatic stress disorder, among other things, concedes to the finding of her unfitness to parent the child, but appeals from the decree severing her parental rights on the basis that termination did not favor the child's best interests. The mother faults the judge for finding that the Department of Children and Families' (department) proposal to recruit a preadoptive home for the child necessitated termination. She contends that placement with a viable "single caretaker" who could attend to the needs of both the mother and child favored the child's best interests because of the strong bond between the mother and child.
At trial, the mother proposed placement of the mother and child in the home of Ann Smith, who could serve as a guardian to the child and attend to both their needs. The department argued for termination, and proposed recruitment of a preadoptive home that would attend to the child's special needs. The judge considered both plans, but, finding that Smith was not a suitable caretaker for the child -- a determination that the mother does not refute -- the judge adopted the department's plan to recruit a preadoptive home for the child, and terminated the mother's parental rights. The judge also determined that two to three posttermination visits per year between the mother and child would serve the child's best interests. We affirm.
A pseudonym.
Smith and her husband were pastors at the church the mother attended. At some point, the mother moved in with Smith's family and Smith became the payee for the mother's disability payments.
The child is developmentally delayed. At age eight she was still using gestures to communicate and experiencing great difficulty performing everyday skills. She also exhibits significant behavioral issues, including aggressive behavior. She is diagnosed with attention deficit hypertensive disorder and requires a strong support system to meet her special needs.
"After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Adoption of Nancy, 443 Mass. 512, 515 (2005). "In determining whether the best interests of the child[] will be served by issuing a decree dispensing with the need for consent [to adoption], a 'court shall consider the ability, capacity, fitness and readiness of the child's parents . . . and shall also consider the plan proposed by the department or other agency initiating the petition.' G. L. c. 210, § 3(c)." Ibid.
The mother first argues that the judge did not adequately address why terminating her parental rights was necessary to effectuate the department's recruitment plan. We disagree. The judge found that the mother had a "history of instability from frequent moves, [and an] inability to maintain the house in a safe and clean manner due to psychiatric hospitalizations." The judge considered that the "[m]other has not been able to maintain a stable and safe environment for the child to live in." He also found "[t]he plan of the Department to seek [a] strong advocate for the child that will have the ability to assist the child in her schooling and work on her issues of impulse control and frustration [and] to seek a family or strong single parent with attention to the child's culture and heritage is the most appropriate plan and serves the best needs of this child." The judge found that although the mother has a bond with the child, the mother is also a source of substantial instability such that placement with a new family was appropriate. We perceive no abuse of discretion. See, e.g., Adoption of Nancy, supra at 517-518 ("We agree with the judge that these children deserve permanence and stability, which will be eased by termination of their father's rights").
The mother further contends that the judge should have more closely considered her proposal of a joint placement of the mother and child in the household of a single caretaker. At trial, the mother proposed Smith as the caretaker; after due consideration, the judge deemed Smith incapable of addressing the child's needs. The mother does not quarrel with this finding. She argues, instead, that the judge failed to consider a plan to recruit an alternative caretaker for both the mother and child. However, this option was never placed squarely before the judge. "Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances." Adoption of Mary, 414 Mass. 705, 712 (1993). While a judge may fashion a plan different from that proposed by the parties, see Adoption of Cadence, 81 Mass. App. Ct. 162, 171-172 (2012), he is not (contrary to the mother's position on appeal) required to discern and address every conceivable arrangement for the child. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001) ("In cases where the parents have offered a competing plan [to the department's plan], the judge must assess the alternatives and, if both pass muster, choose which plan is in the child's best interests"). There was no error.
Decree affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.