Opinion
13-P-1664
11-07-2014
ADOPTION OF ZACH (and a companion case).
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
After a seventeen-day trial, a Juvenile Court judge found the mother unfit to parent her daughter and son, terminated her parental rights, and approved the Department of Children and Families' (DCF or department) adoption plans for both children. See G. L. c. 210, § 3. The mother and daughter both appeal. Neither contests the mother's unfitness. Instead, they argue that termination is not in the daughter's best interests and that the visitation order with regard to the daughter was an abuse of discretion. The mother also argues that visitation with the son should have been ordered. We affirm.
The children's fathers have not appealed from the termination of their parental rights.
1. Daughter's best interests. Although the mother was unfit at the time of trial, the mother and daughter argue that termination was nonetheless not in the eleven year old daughter's best interests because of her age, her unlikely adoption prospects, and her desire to return to her mother. "Where, as here, the judge determines that the mother currently is unfit to parent her child[], and where termination of parental rights is sought, the judge then '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 Elena, 446 Mass. 24, 31 (2006), quoting from Adoption of Nancy, 443 Mass. 512, 515 (2005). The determination must be based on "clear and convincing evidence." Adoption of Ilona, 459 Mass. 53, 59 (2011). The judge must "articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that she has given the evidence close attention." Adoption of Nancy, 443 Mass. at 514-515. "In determining whether the best interests of the children will be served by issuing a decree dispensing with the need for consent, a 'court shall also consider the ability, capacity, fitness and readiness of the child's parents and shall consider the plan proposed by the department or other agency initiating the petition.'" Id. at 515-516, quoting from G. L. c. 210, § 3(c) (ellipsis omitted).
a. Daughter's wishes. The mother and daughter contend that the judge ignored the eleven year old daughter's wish to be reunited with the mother. Although a judge should consider and weigh the wishes of an older child when making custodial determinations, the child's views "are neither decisive, nor outcome determinative." Id. at 518 (citation omitted).
Here, although the judge found that the daughter expressed a wish to live with her paternal grandparents, he did not make a specific finding as to the daughter's wishes concerning returning to her mother. In this case, the absence of a specific finding to that effect makes no difference. First, it is implicit in the judge's two hundred detailed findings of fact that he found that the mother and daughter cared for each other.
Second, in these circumstances, the daughter's wish to return to her mother -- however strong -- is not dispositive where it conflicted with her best interests. The mother concededly was not fit at the time of trial. We see no infirmity in the judge's conclusion that the mother's unfitness was not likely to end anytime soon in light of her cognitive limitations, untreated mental health issues, and inability to maintain a stable living or work situation. In addition, this particular child has unusual and significant special needs requiring specialized and intensive care. There was no real dispute that the mother was not equipped to handle the unique and complex issues presented by the daughter.
The mother's IQ is in the "borderline" range, and she may suffer from additional cognitive impairments.
There was also extensive evidence that the mother was incapable of protecting the daughter from sexual abuse. Expert testimony established that the mother's cognitive impairments undermined her ability to appreciate the danger posed by sexual predators. In addition to permitting the daughter to visit and spend weekends with her (the daughter's) father, who was accused and subsequently convicted of sexual abuse of a young girl, the mother permitted the maternal grandfather, also a convicted sex offender who offended against a young girl, to spend the night at her home while the daughter was present. The mother brought the daughter to visit the maternal grandfather while he was in prison for this offense and has participated in a certification process to become a host or chaperone for him after his release from prison.
The mother has at times stated that she did not believe that either the daughter's father or the maternal grandfather had committed the crimes of which they were convicted.
b. Claim that certain findings are clearly erroneous. "Subsidiary findings must be established by a fair preponderance of the evidence, and will not be disturbed unless clearly erroneous." Adoption of Elena, 446 Mass. at 30-31 (citation omitted). The mother and daughter argue that the judge's finding that the daughter's behavior improved after entering DCF custody was clearly erroneous. To the contrary, there was evidence -- which the judge was entitled to credit -- that the daughter's behavior improved while in DCF custody, including, for example, testimony from the clinician at the daughter's residential program. See id. at 31.
This argument relies in part on ignoring evidence that the daughter's behavior deteriorated in the years prior to being removed from the mother's care, corresponding with the time period during which the daughter was regularly in the presence of her father, a convicted sex offender.
The mother and daughter also contend that the judge's finding by a preponderance of the evidence that the daughter was sexually abused by her father was clearly erroneous. There was extensive circumstantial evidence that the daughter had been sexually abused. The daughter exhibits severe behavioral symptoms (such as enuresis and encopresis), displayed sexualized behaviors, and suffers from mental health conditions (such as posttraumatic stress disorder), that are consistent with sexual abuse. The mother admitted at trial that she regularly permitted the daughter to spend weekends with her (the daughter's) father even after the department supported allegations against him based on his alleged sexual abuse of a thirteen year old girl. The mother also admitted that she increased such visits during the time period leading up to his incarceration for this same offense. Cf. Adoption of Stuart, 39 Mass. App. Ct. 380, 389 (1995) (although trial judge based finding of mother's unfitness on her response to alleged sexual abuse, judge did not make a finding that such abuse actually occurred, nor was it "at all clear that the evidence would have supported such a finding").
c. Services. The mother and daughter argue that DCF did not provide services that were appropriately tailored to the mother's cognitive limitations. "Where a parent, as here, has cognitive or other limitations that affect the receipt of services, the department's duty to make reasonable efforts to preserve the natural family includes a requirement that the department provide services that accommodate the special needs of a parent." Adoption of Ilona, 459 Mass. at 61. Thus, when terminating parental rights, a judge must determine whether the department complied with this obligation. Ibid. Even if the department has failed to do so, however, "the judge must still rule in the child's best interest." Ibid.
Here, the department offered the mother a wide variety of services for years. The judge determined that the mother did not comply with her service requirements despite ample opportunity to do so. The judge also determined that the mother's cognitive limitations were unlikely to improve in the foreseeable future, if at all. The daughter argues that services better suited to the mother's cognitive limitations could have helped the mother resolve her "parental shortcomings." The daughter suggests that the mother could have had services to help her "organize appointments" and "understand the concerns raised by social workers." The daughter does not explain how such services would differ from the extensive services already provided to the mother. Nor does the daughter explain how these services would enable the mother to overcome her shortcomings, particularly in terms of protecting the daughter from sexual abusers in the future. See Adoption of Elena, 446 Mass. at 34 n.6, quoting from Adoption of Nancy, 443 Mass. at 517 ("A judge may say 'enough' when faced with an indeterminate period of time required for parental recovery, if recovery is a viable possibility").
The daughter points to no evidence that the mother is capable of such improvement, apart from portions of the testimony of Dr. Rutherford, to which the judge specifically gave less weight given Dr. Rutherford's limited knowledge of the specifics of the mother's situation.
d. Daughter as legal orphan. Finally, the mother argues that termination was not in the daughter's best interests because the daughter has no adoption prospects and will become a "legal orphan." While we fully acknowledge that becoming a legal orphan is an undesirable outcome for any child, permanence and stability may be "eased" by the termination of parental rights, even where the child will become a legal orphan. Adoption of Nancy, 443 Mass. at 517. See Adoption of Paula, 420 Mass. 716, 722 n.7 (1995) ("A fully developed adoption plan, while preferable, is not an essential element of proof in a petition brought by the department under G. L. c. 210, § 3"). Here, a continuing legal tie to the mother, whose fitness could not reasonably be foreseen, would be at odds with the goal of stability for the daughter.
The mother also contends that it was error to terminate parental rights without expert opinion on the effect it would have on the daughter, citing Care & Protection of Jamison, 467 Mass. 269 (2014). Here, unlike Jamison, there was sufficient evidence to make a determination as to the daughter's best interests. There was no need for expert testimony. Cf. id. at 285-289.
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2. Whether the visitation order was an abuse of discretion. The decision to issue a posttermination visitation order is left to the sound discretion of the trial judge. Adoption of Zander, 83 Mass. App. Ct. 363, 365 (2013). "The judge must determine what is 'in the over-all best interest of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and biological parent.'" Ibid., quoting from Adoption of Vito, 431 Mass. 550, 562 (2000). The judge found that the daughter has a "significant relationship" with the mother and ordered visitation "at least two times annually" in addition to permitting cards, letters, and gifts, subject to the discretion of the daughter's legal custodian. This order was consistent with the judge's broad equitable power, see Adoption of Rico, 453 Mass. 749, 754 (2009), and we discern no abuse of discretion in not ordering six visits per year, as requested by the mother.
3. Visitation with the son. The son's situation was different from the daughter's. The son has spent most of his young life in a preadoptive placement. "[A]n order requiring postadoption contact would be 'unwarranted,' where[, as here,] 'the child has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with the biological parent.'" Ibid., quoting from Adoption of Vito, 431 Mass. at 563. The judge found that the son had a strong bond with his preadoptive mother and no bond with the mother. In these circumstances, the judge appropriately left the question of visitation to the "sound discretion" of the son's preadoptive mother.
Decrees affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 7, 2014.