Opinion
No. 12–P–1630.
2013-06-27
ADOPTION OF ZADOR.
By the Court (KAFKER, GREEN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Juvenile Court judge found the mother unfit to parent Zador, terminated her parental rights, and approved the plan of the Department of Children and Families (DCF) to recruit adoptive parents. See G.L. c. 210, § 3. The judge later denied the mother's motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). On appeal, the mother argues that (1) the judge's findings of fact do not support the conclusion that she is unfit, (2) the judge erred by failing to examine competing adoption plans and determine which one served the child's best interests, and (3) the judge abused his discretion by denying her rule 60(b)(6) motion without issuing findings of fact. We affirm.
Discussion. “When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law. Subsidiary findings must be established by a fair preponderance of the evidence, and will not be disturbed unless clearly erroneous. In this field it is neither possible nor desirable to make decisions with precision, and much must be left to the trial judge's experience and judgment; therefore, the judge's assessment of the credibility of the witnesses and the weight of the evidence is entitled to deference. 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, 30–31 (2006) (internal quotations and citations omitted). We review a judge's approval of an adoption plan under the same framework and standards. Adoption of Hugo, 428 Mass. 219, 225 (1998). Similarly, we only disturb a trial judge's disposition of a rule 60(b)(6) motion if there has been a clear abuse of discretion. Adoption of Marc, 49 Mass.App.Ct. 798, 801 (2000). 1. Determination of unfitness and termination of parental rights. There must clear and convincing evidence of parental unfitness in order to terminate parental rights, Adoption of Stuart, 39 Mass.App.Ct. 380, 381 (1995), and the decision to terminate parental rights must be supported by specific and detailed findings. Adoption of Nancy, 443 Mass. 512, 514–515 (2005). We review those findings with substantial deference, given the trial judge's particular ability to assess witness credibility and weigh evidence. Id. at 515.
The mother does not seriously dispute that, because of her own physical disabilities and medical condition, she is unable safely to parent the child alone. When the mother and child were initially discharged from the hospital after the birth, it was on the condition that they would live with the mother's sister, and that the mother would never be left alone with the child because of her seizure disorder. That plan unravelled after only a few days when the corps of volunteer caretakers assembled by the aunt was unable to provide full coverage. The child went into DCF custody as a result, and has remained in DCF custody since.
The mother's rights were not, however, terminated because of her disabilities. Instead, the judge found that the mother was unfit to parent the child because of a “lack of willingness and effort”
to do what was necessary to meet the special needs of the child. On appeal, the mother argues that the judge's findings, taken together, do not establish her unfitness.
The mother acknowledged as much when, at the hearing on her rule 60(b)(6) motion, she told the judge, “You taking my son from me was a wake-up call to me, because it helped me to see that this was no joke. This was something that was serious.”
We disagree. In concluding that the mother is unfit, the judge found that she had forfeited many opportunities to visit the child,
The mother only challenges one finding of fact (regarding her smoking marijuana) as clearly erroneous. But even if we agreed with her interpretation of that finding, any error was harmless because the trial judge did not rest his conclusion of unfitness upon it. See Care & Protection of Frank, 409 Mass. 492, 499 (1991).
did not learn to meet his special needs,
For example, although the mother was offered approximately 250 days of visitation with the child at the foster home, she only visited him twenty-one times.
and failed to stabilize her own living situation and to take advantage of support services.
Among other things, the mother only attended two of the child's physical therapy sessions, she was late to early intervention appointments, she was often on the telephone during visits with the child, she repeatedly attempted to wash him in an unhygienic manner, she resisted suggestions for adapting to compensate for her disability, and she seemed bored and unengaged during visits.
The judge also found that the child “is significantly delayed and requires a caretaker to anticipate his needs.”
Not only did the mother move several times over the course of the year, she also failed to complete anger management or parenting classes, and she failed to appear for a neuropsychological evaluation.
Taken together, these findings clearly and convincingly support the conclusion that the mother is unfit to care for the child. See Adoption of Oliver, 28 Mass.App.Ct. 620, 626 (1990) (finding of parental unfitness may be “grounded less in continuing incidents of neglect and more in the inability of the parent, however well intentioned, to provide for the child's special needs”); Adoption of Dora, 52 Mass.App.Ct. 472, 478–479 (2001) (parental unfitness shown by evidence that parents “were overwhelmed by the normal responsibilities of raising and caring for a young child” and failed to “improve their parenting skills sufficiently to alleviate well-founded concerns by service providers about [the child's] safety and well-being”).
For example, the child had consistent feeding issues, limited mobility, and autism.
2. Adoption plan. Before dispensing with parental consent to adoption, the judge “must consider the adoption plan proposed by [DCF]” and “also must consider parental nominations of caretakers.” Adoption of Dora, supra at 474–475. When presented with more than one potential adoption plan, a judge's central responsibility is to choose the plan that serves the best interests of the child, Adoption of Hugo, 428 Mass. at 225, 226 n. 9, by meaningfully evaluating what each plan offers the child. Adoption of Dora, supra at 475. DCF's plan need not be “fully developed,” Adoption of Paula, 420 Mass. 716, 722 n. 7 (1995), but it must lend itself to substantive consideration. See Adoption of Stuart, 39 Mass.App.Ct. at 393;Adoption of Lars, 46 Mass.App.Ct. 30, 32 (1998) (plan sufficiently substantive where it recommended recruitment of a “one or two-parent family who are trained or have knowledge in special needs and are specifically capable of dealing with children who have neurological and developmental delays, along with Attention Deficit Disorder and Post Traumatic Stress Disorder”).
The trial judge here was presented with two plans. DCF's plan, as expressed in writing and through trial witnesses, was to recruit a family that would be familiar with the child's special developmental needs and could work with medical and other providers to ensure consistent, appropriate care for him. According to DCF, “[t]he ideal environment for [the child] will be one in which there is consistency, follow through and maximum support.” As an alternative to DCF's recruitment plan, at trial the aunt (contrary to her earlier position) stated her willingness to adopt or act as a guardian for the child.
Another alternative plan, presented through the mother's witnesses at trial, was for the child and the mother to be reunited and live in the maternal aunt's home with a service provider available full-time to support the mother while the maternal aunt was working. However, on appeal the mother only focuses on the plan for the maternal aunt to adopt the child.
Not only did the judge make findings
that “reflect[ ] careful evaluation” of the competing plans, Adoption of Lars, supra at 31, it is also clear from his questioning of the aunt at trial that he meaningfully evaluated her as a potential adoptive parent.
With regard to DCF's plan, the judge found that “[the child] now exhibits significant special needs” and that DCF “is seeking a family that is well-versed in his needs, that can meet them and provide him with consistency, who will take him to specialist appointments, and who can accept his likely future limitations.” With regard to the maternal aunt's plan, the judge found that the maternal aunt had previously “shut down” when caring for the child was stressful, and that she failed to follow through when DCF offered to conduct a home study. He also found that the maternal aunt and the mother do not always get along.
Cf. Adoption of Stuart, supra at 392 (reversing judgment where “[t]he trial judge made no finding in this case with respect to DSS adoption plans ... and we have no basis for concluding that any such plans were ever considered by the trial court”). When the child was discharged from the hospital shortly after his medically complicated birth, he and his mother initially lived with the aunt, but within five days a breakdown in that arrangement triggered DCF's involvement with the family. Thereafter, the aunt failed several times to follow through on DCF's offers to conduct a home study, and she only visited the child three times while he was in foster care. In addition, her relationship with the mother was volatile. In these circumstances, it was not an abuse of discretion for the judge to choose and approve DCF's plan.
The judge asked the maternal aunt several questions regarding her efforts to visit the child in foster care, the adequacy of her living quarters, and any steps she had taken to prepare to care for the child.
Citing the aunt's trial testimony, the judge found that “as of trial, [the maternal aunt] was again being considered.” Taken together with the trial transcript, we do not read this as a finding that DCF was actively considering the aunt as an alternative adoptive placement, but rather that, at the trial itself, the judge considered and evaluated the aunt's offer to adopt the child.
3. Rule 60(b)(6) motion. We agree with the judge below that the mother did not demonstrate “extraordinary circumstances” (in the nature of changed circumstances) warranting relief under rule 60(b)(6). See Adoption of Nicole, 40 Mass.App.Ct. 259, 264 (1996) (affirming denial of postjudgment motion where there was a sufficient basis, even without an evidentiary hearing, for motion judge to conclude that father's circumstances had not changed significantly since trial). See also Care & Protection of Georgette, 54 Mass.App.Ct. 778, 789 (2002), S.C., 439 Mass. 28 (2003). The judge was not required to make written findings before denying the motion, and we perceive no abuse of discretion.
Decree affirmed.
Order denying motion for relief from judgment affirmed.