Opinion
14-P-288
11-25-2014
ADOPTION OF ELLERY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the mother's appeal from a Juvenile Court decree terminating her parental rights to her son, Ellery. She contends that the judge's findings were not supported by clear and convincing evidence, and that the judge erred in determining that she was unfit, placed too much weight on documents that contained unreliable hearsay, failed to make sufficient findings as to the child's best interests, credited the Department of Children and Families' (department) adoption plan despite the fact that an adoptive home had not yet been designated, and abused her discretion in ordering only infrequent posttermination and postadoption visits. After consideration of the record, arguments, and authorities cited by the parties, we affirm.
The father is unknown.
A decision to terminate parental rights involves a two-step analysis. See Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge must first find that the parent is currently unfit, and second, that termination of parental rights is in the best interests of the child. See Adoption of Mary, 414 Mass. 705, 710 (1993). "Parental unfitness must be determined by taking into consideration 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." Id. at 711. The finding of parental unfitness, by clear and convincing evidence, is the "critical inquiry." Adoption of Peggy, 436 Mass. 690, 701 (2002) (quotation omitted).
For a judge to take such an "'extreme step,' we require that the judge articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [the judge] has given the evidence close attention." Adoption of Nancy, supra at 514-515, quoting from Adoption of Frederick, 405 Mass. 1, 5 (1989). A judge's findings of fact will not be set aside unless clearly erroneous. See Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974); Adoption of Greta, 431 Mass. 577, 587 (2000). The sufficiency of the evidence, however, is a question of law subject to review by this court. Howard v. Burlington, 399 Mass. 585, 588 (1987). "On appellate review, 'we must determine whether the trial judge abused [her] discretion or committed a clear error of law.'" Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008), quoting from Adoption of Elena, 446 Mass. 24, 30 (2006).
Sufficiency of the evidence. To the extent that the mother generally argues that the overall finding of her parental unfitness was not adequately supported by clear and convincing evidence, her argument is unavailing. First, the record clearly shows that the mother has not adequately cared for Ellery (born in 2007), who has extensive special needs. Second, the mother has been unwilling to maintain basic housing despite opportunities to do so. She has also failed to adequately seek treatment for her own health issues, such as depression, even though she has admitted that her depression prevented her from keeping appointments with and for the child. Although mental illness by itself may not be sufficient to show unfitness, it may contribute to a finding of unfitness if there is a connection between such illness and the parent's lack of ability to care for a child. Adoption of Quentin, 424 Mass. 882, 888 (1997). Here, there is ample evidence of a nexus between the mother's mental health issues and a negative impact on the child's welfare. Moreover, although there is some indication of improvement by the mother with regard to treatment of her mental health issues in the months leading up to trial, the judge was rightly suspicious of the fact that the mother chose to restart therapy only months before the ultimate trial date.
In addition, after the child was removed from her care in 2011, the mother was inconsistent, at best, in her visits with him. The overriding theme of this case is the mother's lack of consistency and responsibility in parenting; therefore, small improvements that she made over the course of two months immediately prior to trial do not assuage concerns about her consistency raised over the course of the previous years. Therefore, the judge was rightly concerned about her demonstrated inability to care for Ellery. In sum, evidence in the record shows that the mother failed to provide a stable, consistent home for the child or consistently care for his extensive and serious medical needs, which contributed to serious concerns about her ability to parent, and the resulting impact on the child.
In connection with her claim of insufficient evidence, the mother specifically raises three sub-issues, none of which have merit. First, she argues that the judge's decision improperly relied on allegations contained in G. L. c. 119, § 51A, reports and other unreliable documents, and improperly considered the § 51A reports as substantive evidence, where the allegations contained therein amounted to hearsay and rumors. Additionally, she notes that no expert witness testified regarding Ellery's medical history or condition. Further, the mother alleges that there was no evidence of harm to the child resulting from the mother's purported neglect of his medical needs, or her propensity to leave him with her friends for long stretches of time. Finally, the mother argues that the judge ignored facts in her favor.
The mother does not appear to challenge the admission or consideration of the § 51A reports and other allegedly unreliable documents (such as reports submitted to the court by a department social worker), because the mother's counsel below did not object to such. She only seeks to challenge the weight that the judge assigned to the reports in finding her unfit. The mother specifically asserts that the judge's finding that she left the child with inappropriate caretakers for long stretches of time was based on unreliable hearsay contained in these documents.
The judge's decision neither relies on a series of § 51A reports nor adopts as true the allegations contained in them; instead, the judge properly considered the department's G. L. c. 119, § 51B, report, which summarized the § 51A reports. While the judge did list some of those allegations in her findings of fact, none of the actual § 51A reports were part of the record, and the judge also explicitly noted that she was not relying on those allegations for any reason other than to "set the stage." The mention of the allegations was clearly for context, and was not meant as substantive evidence.
We note that no objection was lodged below.
Moreover, none of the judge's conclusions of law depended on allegations contained in the § 51A reports; the conclusions were based on trial evidence, including testimony of the witnesses, an assessment made by a licensed social worker at the Bridge Home, and the child's medical records. In addition, the judge was entitled to rely on statements made in the § 51B report because such reports are admissible at trial as official records and, thus, may be considered for statements of fact. See Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990) ("It may be added that the § 51B report is a required government report and may be considered for statements of fact, e.g., that there was screaming or beating or no food or clean diapers in the house, although not for purposes of diagnosis, prognosis, and evaluation"); Adoption of Irene, 54 Mass. App. Ct. 613, 620 n.8 (2002).
With respect to the mother's claim that evidence was insufficient because of the absence of an expert medical witness, she fails to explain why such testimony would have been necessary, especially considering that the child's medical history and serious health concerns, as evidenced from medical records admitted at trial, were not in dispute. Moreover, staff members at the Bridge Home were qualified to comment on certain aspects of Ellery's developmental improvement once removed from the mother's care, such as improvement in his communication skills.
Additionally, while the judge was not required to find, contrary to the mother's claim, a likelihood of harm to the child in order to terminate the mother's rights, there is ample evidence of harm that belies the mother's argument that the child suffered no harm due to her actions. Bridge Home staff noted that the child's development suffered as a result of the conditions he was subjected to while in the mother's care, and that he has improved significantly since being removed from her care.
Finally, the judge did consider evidence favorable to the mother. At one point, the judge credited the mother's testimony that she "inten[ded] to continue with therapy and medication," but noted that "her history has shown a lack of follow through for both [the child] and herself." Although the judge noted that the mother had reentered therapy, the judge also expressed suspicion concerning the proximity of the trial date to the mother's efforts in this regard. The judge also explicitly considered and rejected the mother's testimony that she had placed the child in daycare, noting that his medical records did not show that he was ever enrolled. Therefore, the judge did not ignore evidence advanced by the mother, but rather properly exercised her discretion in deciding not to place great weight on such evidence.
Best interests analysis. The mother argues that the judge's best interests analysis was deficient because the judge "failed to give due consideration to the likelihood of future improvement in [her] parenting abilities." Moreover, the mother argues, the judge did not make extensive findings on this point, and did not meaningfully evaluate or consider the department's adoption plan. The mother also argues that the lack of a clear adoption plan for the child meant that the judge should not have terminated her rights.
The judge did take into consideration recent "improvements" in the mother's compliance with service tasks but weighed them less than the mother would prefer, agreeing with the department that the mother showed only a "faint hope" of future improvement. "A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. at 33. See Adoption of Kimberly, 414 Mass. 526, 529 (1993). We discern no abuse of discretion or other error of law by the judge when she was unpersuaded by minimal evidence of improvement in the face of ample evidence of the mother's past unfitness. See Adoption of Paula, 420 Mass. 716, 729 (1995) ("When a parent's living situation has changed, a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness").
Additionally, the mother complains that the judge failed to make specific, detailed findings with respect to analysis of the child's best interests. The judge stated: "It is in the best interests of Ellery to end all legal relations between he and Mother. [He] needs and deserves permanency, safety, and security, which Mother cannot provide." Although the judge undoubtedly could have included more detail in this section of the decision, the mother's argument ignores both the previous discussion in the judge's decision and the observation in Adoption of Nancy, 443 Mass. at 516, in which the Supreme Judicial Court made clear that a judge's best interests analysis is not rendered clearly erroneous solely on account of the judge's brevity in that analysis: "[a]lthough it would be better practice specifically to state the reasons that termination is in the child's best interest, such specificity is not required. The judge had discretion to conclude that termination was appropriate."
Moreover, the analysis by the judge of the best interests of the child was clearly informed by her earlier recitation of the facts and her conclusions of law. Specifically, the judge repeatedly expressed great concern over the mother's failure to adequately care for the child's medical needs, and noted that those medical needs required permanency and stability, something the mother could not provide. The judge addressed all of the factors relating to parental fitness set forth in G. L. c. 210, § 3(c), and found that nine of fourteen applied to the mother. Therefore, although she did not provide extensive analysis in evaluating the best interests of the child, her earlier concerns clearly carried over to that evaluation. The judge provided an extensive and comprehensive decision, which amply explained and supported her ultimate determinations of the mother's unfitness and the best interests of the child.
As to the mother's argument concerning the department's adoption plan, the department's plan was sufficiently clear and specific despite the fact that it had not designated an adoptive home. Consequently, the judge did not err in terminating the mother's rights even in the absence of a specific adoptive home. The Supreme Judicial Court has repeatedly held that an "adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement so that the judge may properly evaluate the suitability of the department's proposal." Adoption of Willow, 433 Mass. 636, 652 (2001) (quotation omitted). Here, the mother does not challenge the specificity of the adoption plan, only the absence of a final, adoptive choice before termination of her rights. Her argument is meritless.
Posttermination and postadoption visitation. The mother argues that the judge abused her discretion by not ordering more frequent posttermination and postadoption visits. The department responds that "[p]articularly where Ellery does not challenge the visitation order," it should not be disturbed. Ellery argues that the judge's visitation order was not an abuse of discretion in light of the mother's failure to consistently attend meetings with him following his removal from her care in 2011.
The mother has not convincingly argued that the judge erred in ordering posttermination visits of at least once a month, and postadoption visits of at least twice per year. Because the judge found that visitation was in the best interests of Ellery, and because the order was within the judge's equitable authority, the mother has not shown good reason to disturb it. See Adoption of Vito, 431 Mass. 550, 562 (2000). This is especially so where the mother failed to attend scheduled visits and meetings with Ellery after he was removed from her care.
Conclusion. Consequently, we discern no abuse of discretion nor other error of law in connection with the judge's decision to terminate the mother's parental rights.
Decree affirmed.
By the Court (Cypher, Fecteau, Massing JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 25, 2014.