Opinion
19-P-803
04-21-2020
ADOPTION OF BENEDICT (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
The mother and the father appeal from decrees entered by a judge of the Juvenile Court finding them unfit, and terminating their parental rights to their two children. Notably, the judge's findings do not identify any instances of abuse or neglect by the mother, or any significant impacts on the children from her behavior. Rather, as to the mother the judge's decision rests upon two instances of domestic violence perpetrated by the father on the mother years before trial, concerns about the mother's mental stability, the mother's unwillingness to sever ties with the father, and her continuing denials that domestic violence occurred. There is no question that during the children's early years there was considerable instability in the family home, and several disturbing incidents originating with the father. As to the mother, however, the judge's findings do not identify clear and convincing evidence justifying the extraordinary remedy of terminating parental rights. We accordingly vacate the decrees as to the mother, and remand for the taking of further evidence and findings, while affirming the decrees as to the father.
Background. We summarize the judge's findings of fact, supplemented by uncontroverted evidence from the record.
The children were born in 2013 and 2014, and were five and almost four years old at the time of trial in the summer of 2018. The key factual events described by the judge took place in 2015 and 2016, two years or more before trial. At that time, the mother was regularly employed (she has worked throughout), and the father was not. The first domestic violence incident occurred on May 19, 2015; police were called to the family home. The mother and father had been quarreling about the father's drinking, and the mother told the father that she was leaving. The father then "pushed the mother's head into the door, closed the door on her head and slammed her head into the door a couple of times." The children were home at the time of the incident, but did not witness it as they were in a different room being bathed by a paternal aunt. When the police arrived, the mother "begged them to arrest her because she wanted to get out of the house and she considered being arrested was the only way she [could] get away." The police filed a G. L. c. 119, § 51A, report (51A report) following this incident, and the Department of Children and Families (department) began an investigation pursuant to G. L. c. 119, § 51B (51B investigation).
At the initial 51B investigation interview on May 21, 2015, the mother had a black eye and a swollen temple. According to the mother, she was at fault for the incident, and this was the first instance of violence between her and the father. The investigator determined that the children's room in the house was appropriately furnished, and the children were healthy and medically up-to-date. The mother had no history of substance abuse. She had been diagnosed with major depressive and anxiety disorders, for which she was being treated, her treating clinician reported that the mother was consistent in her appointments, had not mentioned domestic violence, and was "doing very well." As to the father, the father's doctor reported that she had prescribed a variety of drugs to treat the father's mental health issues, and that the father should be in therapy, but was not. As of May 2015, the department opened a case for the family to provide services for, among other things, domestic violence and anger management.
Four months later, in September 2015, another 51A report was filed alleging neglect of the children by the father during an incident at the South Shore Hospital, where the father had been transported by ambulance due to mental health issues. The mother and the children went to pick up the father, at which time the father "was irate and screaming," and making threatening statements toward the hospital staff.
The next day, September 23, 2015, department social workers went to the maternal grandparents' house, where the family was living. The social workers were met by the maternal aunt, and found the father asleep on the sofa with the younger child asleep next to him in a portable crib. The mother was out shopping with the older child. When the father woke up, he was slurring his words. As the father was explaining what happened the day before at the hospital, he got angry and began to yell. The social workers called the police for assistance; when the police came, the father was still screaming. The mother then came home with the older child, and the social workers removed the children on an emergency basis. The mother acknowledged that the father was "too unstable to care for the children."
On this occasion the younger child's feet had a strong odor, his clothes were dirty, and both he and his brother had a rash. There was no evidence as to the source of the rashes.
There is no indication that the maternal aunt, who was present with the father and the younger child when the social workers arrived at the house, was not a suitable caretaker for the younger child.
The department was awarded emergency temporary custody the following day. Thereafter the mother and father attended all of the scheduled visits with the children while the children were removed; the parents were described as appropriate during those visits. Both parents were also compliant with the majority of their service plan requirements. When the older child, then two and one-half years old, went to foster care, he was medically current and well behaved, but he had a speech delay and some issues with food. These issues improved during his foster placement. The younger child was placed in a separate foster home; he was "developmentally on target" and had good verbal and motor skills.
During the time the children were removed, the mother was arrested after an altercation with the father's brother on October 9, 2015. Those charges were later dismissed. In addition, the father was hospitalized for mental health issues for several days in October 2015, and ceased living with the mother for a few months.
The children were returned to the mother's care in December of 2015. The father returned to the family soon thereafter. A few months later, in April of 2016, there was a second incident of violence by the father against the mother. The police responded to a 911 call at the maternal grandparents' house, where the family was still living. There had been an argument between the mother and father about the father's substance abuse, during which the father "threw the mother across the room." The children were in the room during the incident. The mother did not want to file an application for an abuse prevention order, and told the police that the father had not done anything and that she should be arrested instead of him because she had pushed him. The next day, however, the father was committed to the Bridgewater State Hospital for evaluation, as a result of a petition by the mother.
After this second incident, the department initiated another investigation, during which it determined that the children could not remain in the family home if the father was present. The mother told the department that the argument had arisen when the mother realized that the father had been lying about his alcohol and drug use, and stealing from her. There were no issues noted with the children during the investigation. The mother stated that she "did not want to lose" the children, but she nevertheless asked the department if the father could come home. The department told the mother that they were concerned by the "pattern of her supporting the father at the risk of her children and that she needed to put her children first to have them remain in her care."
Thus, as of April 2016 the children were in the mother's care. The father was no longer living with the family, although he continued to be involved in the lives of the mother and the children. Nevertheless, the family's struggles continued. In July 2016, a 51A report was filed alleging neglect of the younger child by the mother. The mother had an altercation with the maternal aunt's boyfriend while the younger child was at home, and the police were called. The mother told the police she was upset by her living situation and the father not being around. She agreed to go to the hospital to be evaluated for mental health issues, but was released that evening.
In August of 2016 there was a trial of the department's petition for care and protection. Both parents appeared and stipulated to their unfitness at that time, after a detailed colloquy with the judge. The children were committed to the care and protection of the department. The children, however, were allowed to remain with the mother. Both parents were given service plans, and the department's goal at that time was stabilization of the children's placement with the mother. The children had been observed to be progressing appropriately. At a 51B investigation meeting shortly before the August 2016 trial, the children were clean and appropriately dressed. The children's Head Start program reported that the children had excellent attendance records and that they were well behaved. The children were medically current, and they were receiving or being evaluated for early intervention and speech therapy services. Even after the mother's incident in July 2016, the department "considered the mother to be making progress with her mental health issues and treatment ... [and] with understanding the dynamic of the father's struggles."
The family's struggles came to head several months later, in April 2017. Although the mother continued to care appropriately for the children, at a meeting with department personnel the mother reported feeling depressed and suicidal, and asked if the father could return home. The mother was told that the father could not return home because he had not been participating in required services for several months (indeed he had been terminated from several services for lack of attendance). On May 12, 2017, the department removed the children from the mother's care and placed them in a foster home, which is also the preadoptive home. The judge found that the children were removed after the mother "became incredibly overwhelmed with the care of the children, the ongoing stress and conflict in her household living situation, and her fragile state of mental health." The department explained to the mother that they were "concerned about the mother's level of insight into understanding the cycle of the father's mental health, substance abuse, domestic violence and how that was impacting the safety of the mother and the children ... and the mother's continuous minimization of all the incidents of domestic violence." On June 15, 2017, the department changed the goal for the children to adoption.
The foster father testified that when the children came into the foster parents' care, the children were up-to-date with their medical and dental appointments, they were clean and had appropriate clothes, and they got along well together.
The department thereafter sought termination of parental rights with a plan of adoption, and a trial was held in June 2018. At the time of trial, the mother was living in the maternal grandparents' house, apart from the father. The mother had a regular job, and helped take care of her father and her sister's children, who lived in the same house. She has an associate's degree and was also pursuing a bachelor's degree. She was no longer prescribed any psychiatric medication. The mother attended all of the visits with the children after they were removed in 2017, together with the father. The judge found that the mother "interact[ed] with her children in an extremely appropriate and loving manner."
As to the relationship between the mother and the father, as of trial they still considered themselves a couple, and spent time together frequently. There had been no reported instances of domestic violence since the father left the home in April of 2016. Although the mother was mostly compliant with the family action plans, she continued to deny the presence of domestic violence in her relationship with the father, and had discontinued her participation in DOVE services. Importantly, however, the mother testified at trial that if the children were returned to her, the father would not be living in her home, and the father would not be allowed to be alone with the children.
The mother testified at trial that she has not been a victim of domestic violence by the father, and that she attended DOVE sessions because it was required by the department. She also testified that she was "always the instigator" of the fights with the father and described herself as an "emotional support" for the father.
The judge found both parents unfit. As to the mother, the judge focused on the incidents of domestic violence, the mother's inability "to genuinely understand the impact of such violence on the children," and the fact that she "remain[ed] constant in her unwavering support of the father." The judge also adverted to the mother's mental health, describing it as "fragile." Given the ongoing "unhealthy," "dysfunctional" relationship with the father, the judge found that "[i]t is reasonable to predict with near certainty that the minor children would be endangered should they be returned to their mother's care."
As to the father, it is undisputed that, as the judge found, he was not consistently compliant with the family action plan. At the time of trial, the father was not engaged in any mental health services, which the judge found "he clearly needs," and did not intend to pursue treatment for substance abuse or anger management issues.
Discussion. A decision to terminate parental rights is indeed a weighty one. "Removal of children irrevocably from their biological parents is an exceptionally far reaching exercise of State power." Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997). The department accordingly must meet a very high bar: "Parental unfitness, as developed in the case law, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual lifestyle, or inability to do as good a job as the child's foster parents. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard. Endangerment of the child from abuse, neglect, or other activity harmful to the children must be in the picture." (Footnotes, quotations, and citation omitted.) Id. at 28. Importantly, the department must show not only current unfitness, but unfitness that is reasonably likely to continue indefinitely. See Adoption of Bianca, 91 Mass. App. Ct. 428, 431 (2017).
The department must show that termination is necessary by clear and convincing evidence. Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). In addition, "[t]he judge is required to articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [the judge] has given the evidence close attention" (quotation omitted). Adoption of Gillian, 63 Mass. App. Ct. 398, 403 (2005). Subsidiary findings, however, need only be supported by a preponderance of the evidence. Id. We review the termination decision for whether there has been an error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011).
The decision in Adoption of Katharine, while not directly on point, is instructive here. Adoption of Katharine dealt with an allegation that the parents were unfit because both of them were acknowledged cocaine users, and neither parent was willing to take steps to overcome their habit. The trial judge found the parents unfit, predicting "that if the parents had to choose between future drug use and the well being of their children, the children would suffer." Adoption of Katharine, 42 Mass. App. Ct. at 26.
This court concluded that the record in Adoption of Katharine was inadequate to terminate parental rights. The key factor for the court was the lack of evidence that the parents' behavior had led to mistreatment of the child. "What is singular about the case is that the record and the judge's findings do not reflect a history of negligent or abusive care of the daughter Katharine .... The observations about ... Katharine ... are almost entirely of a cheerful child whose parents have adequately fed and clothed her, provided for her medical care, supervised her, and loved her." Adoption of Katharine, 42 Mass. App. Ct. at 26. This court accordingly remanded the matter for further evidence and findings.
1. Mother. Applying the above legal principles to the facts of this case, we find ourselves, as to the mother, in a position very similar to the court in Adoption of Katharine. There is no history of abuse by the mother, nor is there evidence of neglect in her care. She treated the children lovingly and appropriately, and they loved her. The mother was employed, had no record of substance abuse, and was functioning at a reasonable level, at least as to the children. The children were progressing appropriately for their age, were medically up-to-date, were engaged in appropriate activities, and appeared reasonably well adjusted. There were some issues reported by the foster parents -- shyness and speech delay -- but these were the bumps of everyday life, and raised no unusual alarms.
While there was a report in September of 2015 that one child was dirty, and that both children had rashes, there is no similar report elsewhere in the record.
It is fair to say that the critical issues the judge found with the mother related, primarily, to her relationship with the father. The father had serious substance abuse problems, which caused him on one documented occasion to neglect a child. More importantly, the father was prone to extreme rage, including two acts of domestic violence on the mother (one witnessed by the children), and several other instances of out of control, abusive conduct toward others. What greatly troubled the judge and the department was that throughout the department's involvement and right up to trial, the mother continued to support the father despite his behaviors, insisted on remaining in a relationship with him, and denied any acts of domestic violence (or that she was a victim). It was this posture toward the father, coupled with the mother's mental health issues, that animated the judge's decision.
The question here, accordingly, is whether the mother's continuing relationship with the father, on the facts found by the judge, was sufficient to meet the high bar required for termination of her parental rights. We conclude it was not. We do not mean to minimize the importance that incidents of domestic violence can have with respect to the question of parental fitness and child custody. We reiterate "that physical force within the family is both intolerable and too readily tolerated, and that a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, 422 Mass. 590, 595 (1996). None of our cases, however, have involved termination of a parent's rights on a record comparable to this one.
Here there were two instances of domestic violence, the last of which was more than two years before trial. More importantly, the mother's and the father's circumstances had changed since the domestic violence incidents; the father was no longer living with the mother, and the mother testified that she would not allow him with the children unsupervised (which testimony the judge did not address). The past incidents of domestic violence had occurred when the father was still living in the family home. What is lacking in the judge's findings is the link between that past history and the judge's prediction "with near certainty" that, despite these changes, neglect of the children would occur if the mother regained custody. See Adoption of Katharine, 42 Mass. App. Ct. at 32-34. Compare Adoption of Bianca, 91 Mass. App. Ct. at 433 (child was exposed to numerous incidents of violence between parents, even after imposition of specific department conditions); Adoption of Gillian, 63 Mass. App. Ct. at 400 ("several" instances of violence against children, as well as mother).
Beyond the domestic violence, the remaining concerns cited by the department and the judge are akin to the concerns raised by the department in Adoption of Katharine, in this respect: the department relies heavily on the mother's refusal to jettison her relationship with the father, but once the father left the family home in 2016, the mother's continuation of her relationship with the father was not shown to impact the children. Notably, the mother continued to care for the children without the father, and without incident, for over a year from April 2016 until the children were removed in May 2017 due to the mother's becoming overwhelmed. The judge predicted, based upon past history, that the children would be "endangered" if returned to the sole care of the mother, but that is an ultimate conclusion, as to which we do not see a clear and convincing basis in her subsidiary findings. Cf. Care & Protection of Isabelle, 33 Mass. App. Ct. 548, 552 (1992) (where child was in mother's custody on condition that father not have access to child, evidence that father gained access was not sufficient to conclude that mother would not adequately protect child from father or would reunite with him).
In finding the mother unfit, the judge considered the required factors set out in G. L. c. 210, § 3 (c ). Although she found certain factors applicable, she did not make additional findings but instead referred back to her detailed findings, discussed above. The judge also did not specify which factors applied to the mother as opposed to the father.
The judge also relied in part on the mother's mental health, which the judge found "remains fragile and the soundness of her choices about psychiatric care and treatment at the time of trial appear[ed] extremely questionable." A trial judge is permitted to use "past conduct, medical history, and present events to predict future ability and performance as a parent." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). Here, however, even while the mother's mental health was "fragile" and she made some questionable treatment decisions, there was no evidence that the children were abused or neglected because of her mental health issues. "[A] finding of unfitness cannot be based solely on the conclusion that the mother suffers from a mental illness. ‘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 Saul, 60 Mass. App. Ct. 546, 553-554 (2004), quoting Adoption of Frederick, 405 Mass. 1, 9 (1980). See Adoption of Luc, 484 Mass. 139, 146 (2020).
Accordingly, as in Adoption of Katharine, we remand this matter for the taking of further evidence, and for findings, as to the fitness of the mother. We note in particular that the mother testified that if the children were returned to her the father would not be allowed to live with the family, or to be with the children unsupervised. She also testified that she would not "co-parent" with the father except to allow him to visit the children and attend school functions. The judge made no finding regarding this aspect of the mother's testimony. We recognize, of course, that "the judge was not obliged to believe the mother's testimony or that of any other witness," but where the judge did not address the mother's testimony or credibility we do not find sufficient support for "the judge's critical findings that the mother will never adequately protect the [children] from the father." Care & Protection of Isabelle, 33 Mass. App. Ct. at 552.
We recognize the judge's concern that the mother continued to deny the father's violent acts. Such denials are indeed troubling. As with the cocaine use in Adoption of Katharine, 42 Mass. App. Ct. at 28, however, there must be findings demonstrating a sufficient link between this behavior and "abuse, neglect, or other activity harmful to" the children.
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Finally, we note that the trial ended over eighteen months ago, and that the circumstances of the mother, the father, and the children may well have changed; the judge should consider current circumstances on remand. All we determine here is that the judge's findings did not justify the extreme step of terminating the mother's rights.
2. Father. As to the father, we reach a different conclusion. The father does not contest the finding of his current unfitness. He stated at trial that he was not seeking custody of the children, and that he needed at least three more years to establish sobriety. On appeal, he argues only that the mother should have custody of the children, and that his parental rights should not have been terminated. "After a parent is determined to be unfit, the judge must consider whether termination is in the best interests of the child." Adoption of Bianca, 91 Mass. App. Ct. at 432. The judge may consider evidence that the parent's unfitness is temporary and will be corrected. See Adoption of Ilona, 459 Mass. at 59-60. Such evidence of temporariness was lacking as to the father in this case. The father had serious issues, and he failed to use the services necessary to help him with those issues. Having the children and the family wait three years "in the hopes that their father might eventually engage in a meaningful way in [substance] abuse treatment" is not in their best interests. Adoption of Nancy, 443 Mass. 512, 517 (2005). We see no error in the termination of the father's parental rights.
Conclusion. The decrees are affirmed as to the father. As to the mother, the decrees are vacated and the case remanded for further proceedings consistent with this memorandum and order. See Adoption of Iris, 43 Mass. App. Ct. 95, 106 (1997).
So ordered.
Affirmed in part; vacated in part and remanded.