Opinion
19-P-343
03-10-2020
ADOPTION OF CLARA (and two companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a fourteen-day trial in the Juvenile Court, the judge issued decrees finding that the father was unfit to assume parental responsibility of his three children, terminating his parental rights, and declining to order posttermination and postadoption visitation. The father appeals, contending that the Department of Children and Families (department) failed to accommodate his disability -- deafness -- and therefore prematurely terminated his rights. He also claims that it was error to fail to order visitation. We affirm.
In September 2015, and while the case was pending in the Juvenile Court, the mother died from a drug overdose. The children were born in 2010, 2012, and 2013.
1. Accommodations. The father is profoundly deaf in both ears and uses American Sign Language (ASL) as his primary language. And, because the department is a public entity, the father qualifies for protections under the Americans with Disabilities Act (ADA). 42 U.S.C. §§ 12131 - 12134 (2012). It was therefore the department's responsibility to provide the father with services that accommodated his needs. See Adoption of Ilona, 459 Mass. 53, 61 (2011) ; Adoption of Gregory, 434 Mass. 117, 121-122 (2001). See also 110 Code Mass. Regs. § 1.08 (2008) ("The Department shall make reasonable accommodations to ensure that its services, facilities, communications, and meetings are accessible to all handicapped persons").
The father claims the department's failure to accommodate his deafness hindered his ability to make progress towards the goal of reunification with the children. The children argue this issue is waived because the father did not properly raise it in the Juvenile Court. The department agrees with this position but, at oral argument, indicated it was not pressing the issue of waiver on appeal. Accordingly, we assume, without deciding, that the father preserved the issue.
The father's claim that the department failed to provide him with the necessary and appropriate services to address his parenting deficiencies in a timely manner is belied by the record. The department filed this care and protection petition on December 11, 2014. When the children were first placed in the department's care, the mother was alive, and the goal was to reunify them with her. The father explicitly chose to not participate in any services at that time. Notwithstanding, the department referred him to a deaf psychiatrist in January 2015 as well as wrap-around and other services. In February 2015, the father's relationship with the department deteriorated. He refused to discuss issues of domestic violence, substance use, and mental health. It was only after the mother's death, in September 2015, that the father began to meet with the department.
When asked, the father initially informed the department that he would like to communicate through his mother or by text message. He did not indicate that he had any issues understanding written communication. He also used e-mail. The father acknowledged that he had approved these methods of communication, but wanted to limit their use to scheduling. The record supports the judge's conclusion that these forms of communication were primarily used for informal communications.
For more formal communications, the department made referrals for ASL interpreters, but they were not always available. As an additional accommodation, the department arranged for a case manager for the father from the Massachusetts Commission for the Deaf and Hard of Hearing. The department consulted with the case manager, who also participated in department meetings. As the judge noted, there were occasions where the social worker did not schedule an interpreter, however those omissions were not the cause of the father's failure to complete his tasks and undergo services.
These included department meetings, visitation, and foster care reviews.
Department records show consistent monthly requests for an ASL interpreter from December 2015 to March 2017.
The judge did not credit the father's testimony that he experienced problems communicating with the department, which he claimed even occurred with the use of ASL interpreters. See Petition of Dep't of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986) (judge's assessment of weight of evidence and credibility of witnesses entitled to deference). In addition, the father said that he had "no problem" dealing with the hearing community, and it was easier to communicate with his friends because he was more interested in those conversations, and he was more reluctant to talk about his parental rights. While ASL interpreters were not always available, the father told the department that it was not necessary to have interpreters for each visit with the children. Indeed, the eldest child had some ASL fluency.
The department provided the father with the necessary and appropriate services to address his parenting deficiencies in a timely manner. It was the father's inconsistent compliance with service plan tasks, his failure to benefit from the tasks he completed, and his violent nature, including exposing the children to violence, that were the underpinnings of the judge's findings that the father was unfit and that the unfitness was not temporary. The department's obligation to make reasonable efforts to accommodate the father's disability was ultimately contingent upon the father's fulfillment of his responsibilities, including service plan compliance. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). Moreover, children of parents with special needs are entitled to the same protections and minimum level of care as children of parents without disabilities. Adoption of Gregory, 434 Mass. at 121. The department was not responsible for the father's delay in engaging with the department or the obstacles that the father created to receiving services. See Adoption of Mario, supra. The department met its obligations to the father under the ADA and made reasonable efforts to reunify him with the children. Care & Protection of Walt, 478 Mass. 212, 221 (2017).
2. The father's unfitness. "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). The judge "must also find that the current parental unfitness is not a temporary condition." Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). As it is within the purview of the judge to weigh the evidence, assess the credibility of witnesses and, accordingly, make findings of fact, the judge's subsidiary findings will remain undisturbed unless shown to be clearly erroneous. See Adoption of Jacques, supra at 606-607. Here, there was an abundance of evidence that supported the judge's finding that the father was unfit to parent the children and that the unfitness was not temporary.
The father has struggled with mental health issues for many years. He was diagnosed with a myriad of mental health issues and hospitalized numerous times. Despite reporting that medication was helpful, the father never remained medication-compliant. But, mental illness alone cannot be the sole basis for a finding of parental unfitness. Adoption of Frederick, 405 Mass. 1, 9 (1989). There must be a nexus between that illness and the father's inability to provide minimally acceptable care for the children. See Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 763-764 (1998). Here, the father's inconsistent participation in mental health treatment and his failure to address these issues during the pendency of the case supported the judge's finding that the children are at substantial risk of harm as a result of the father's untreated mental health issues.
The father's mental health issues were further compounded by his substance use, which began in his early years and has been a trigger for his violence. "Evidence of alcohol or drug abuse is ... relevant to a parent's willingness, competence, and availability to provide care." Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). Furthermore, " ‘[a] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction ... [that] makes the parent ... unlikely to provide minimally acceptable care of the child’ is not a temporary condition." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c ) (xii). The father continued to use cocaine and marijuana throughout the pendency of this case. He admitted that cocaine makes him aggressive, angry, and a "terrible person." However, the father did not stop using cocaine, which impeded his ability to care for the children, and this use was likely to continue.
The father also has a violent history marked by explosive behavior directed at the children's mother, family members, and unrelated parties. "[P]hysical force within the family is both intolerable and too readily tolerated, and ... 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). The record is replete with the children's reports of witnessing violence in the home. Perhaps the most egregious example occurred in December 2014, which led to the children's removal. The father kicked and punched the mother in the stomach; she suffered intra-abdominal bleeding and a spleen laceration that required emergency surgery. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 139 (2004) (domestic violence is relevant to parental unfitness). Moreover, the father told his therapist that he only participated in services to please the court, and not to address his history of domestic violence, demonstrating a lack of rehabilitation.
The father has a significant criminal record including crimes of violence.
Finally, the father is unable to make decisions that are in the best interests of the children. For example, after the mother's death, he improperly applied for and received the Social Security death benefits that the children were entitled to receive. He collected approximately $30,000 by claiming the children resided with him despite the fact that they were in the custody of the department and living in a foster home. This pattern of neglect and misconduct further supports the judge's finding of unfitness. See Adoption of Diane, 400 Mass. 196, 204 (1987).
3. Failure to comply with and benefit from services. While the father claimed he was in substantial compliance with his service plan and therefore termination was premature, the record supports the judge's conclusion to the contrary. She found that his efforts were "superficial act[s] to try and regain custody of [the] children." Indeed, the father testified that he does not need to be involved in any services. Among other things, he attended therapy sporadically, did not take his prescribed medication, and continued to minimize his behavior. He denied he was an abuser, although he completed a domestic violence program. Furthermore, despite completing a substance abuse evaluation, the father continued to use cocaine and marijuana. "Evidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness." Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). The father's contentions that the judge's findings were erroneous are nothing more than a disagreement with how she weighed the evidence.
The father does not challenge the judge's ultimate conclusions that he is unfit and that the children are in need of care and protection.
4. Visitation. During the case, the children visited with the father, but, as the judge found, they are bonded to their preadoptive family and there was no evidence that contact with the father is in the children's best interests. This is particularly true where the children are in a kinship placement with a family member to whom the father had been violent. Despite this, the preadoptive mother said that she is willing to continue visitation at a supervised center. Adoptive parents are presumed to act in the child's best interests. Adoption of Ilona, 459 Mass. at 64-65. There was no error.
The children are not opposed to visitation, but their primary concern is permanency.
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Decrees affirmed.