Opinion
20-P-1088
12-10-2021
ADOPTION OF BERNADETTE (and two companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from decrees of a Juvenile Court judge finding the mother unfit and terminating her parental rights as to three of her children, Bernadette, Colleen, and David (collectively, the children). The mother argues primarily that the judge erred by (1) declaring the mother unfit when she had substantially complied with her action plan and had secured housing, (2) finding that Bernadette and Colleen would suffer significant trauma if separated from their foster family, and (3) declining to order sibling visitation with a fourth child of the mother, Kevin (a pseudonym). The mother also argues that the Department of Children and Families (DCF) did not make reasonable efforts to help rectify the mother's housing instability and reunify her with the children. Although we have concerns regarding some of the actions of DCF in this case, the judge's overall conclusions regarding unfitness and the children's best interests were not in error. We affirm.
Kevin is not a subject of this case.
Background. Bernadette, the oldest of the children at issue, was born in 2010 in Massachusetts. The mother and the father of Colleen and David (father) were dating at the time of Bernadette's birth, but the father is not Bernadette's biological father.
In 2011, DCF investigated two G. L. c. 119, § 51A, reports (51A report) concerning Bernadette but neither 51A report was substantiated. DCF's investigation into the first 51A report found that the report was unsubstantiated, and the second 51A report was closed in 2012 because DCF could not locate the family.
The mother, the father, and Bernadette moved to Indiana in 2011. While living there, the mother gave birth to Colleen in 2012 and David in 2014. While the mother was pregnant with David, the father began to physically abuse her. During their relationship, on multiple occasions the father strangled the mother, threw her against the wall, and punched her in the head. He also made many threats against the mother, including that he would "slice her throat."
The children witnessed the father abusing the mother, despite the mother's efforts to shield them by sending them outside or turning up the volume of the television. For instance, Bernadette once walked into the room while the father was strangling the mother. The mother did not believe that the father would similarly endanger the children, however, and the father would sometimes interact with the children within five minutes of abusing the mother.
While the family lived in Indiana, the mother worked several jobs to support the family financially while the father watched the children. The mother did not drive, so the father drove her to and from work; the father also took charge of the money from the mother's paycheck. During this period, while the father was watching the children, Bernadette was sexually assaulted by one of the father's relatives. When the mother discovered the abuse in 2015, she called the police, and the relative no longer had contact with Bernadette. However, thereafter the father continued to watch the children while the mother worked.
In March 2017, the mother left the father, escaped with the three children, and returned to Massachusetts where she obtained an abuse prevention order. On May 8, 2017, the mother became homeless in Massachusetts, and she no longer could feed the children. She went to a police station and to the Department of Transitional Assistance seeking help. Ultimately, she voluntarily requested that DCF take custody of the children. Her requests for assistance initiated three 51A reports of neglect.
DCF obtained temporary custody of the children on May 9, 2017. Bernadette and Colleen were placed with a foster mother requested by the mother, and David was placed in a different foster home. After leaving the mother's care, Bernadette reported that the father had beaten the children in Indiana, and that the father had sexually abused Bernadette and forced her to watch pornography.
After the children were placed in foster homes, DCF implemented action plans for the mother that, among other things, required the mother to find suitable housing, attend parenting class, engage in therapy, maintain employment, attend meetings with DCF, and visit the children. Initially, the mother lived with her boyfriend -- later, her fiancé -- in a tent in the woods, but eventually she moved into a trailer on her boyfriend's family's property. During this time, the mother was employed and began attending therapy. The mother initially struggled to arrive on time for her visits with the children, which caused DCF to cancel some of the visits. From August 2017 through March 2018, however, the mother consistently attended visits with the children.
DCF initially expected the mother to visit the children weekly, but changed her visits to biweekly in August 2017, and to monthly in November 2017.
On March 15, 2018, DCF changed the permanency plan for the children to adoption. The mother was notified of the goal change on March 23, 2018. In November 2018, DCF formally approved changing the children's permanency plan to adoption during a foster care review that the mother did not attend.
The judge made no findings regarding the timing or the reasoning for the initial permanency goal change for the children. The record does not contain any information regarding the reason for the goal change.
Also in March 2018, the mother ended her relationship with her fiancé and became homeless. During the next several months of 2018, the mother was employed full time but fluctuated between living in a motel and a campground depending on her finances. DCF referred the mother to a housing specialist in late March 2018 and to a parenting aide in June 2018. In mid-2018, DCF canceled visits with the children several times because the mother failed to confirm visits with DCF in advance. She also did not consistently attend therapy, and did not provide verification of her attendance at a domestic violence group. The mother did eventually complete a parenting class in June 2019, immediately before trial.
In November 2018, the mother requested a letter from DCF stating that DCF would reunify the mother and the children, which the mother intended to use to seek shelter placements. DCF refused to provide the letter because housing was not the only barrier to reunification and because the children's permanency goal had already changed to adoption.
The period beginning in November 2018 was marked by rising tensions between the mother and DCF. The mother consistently attended visits with the children at the time, for a period of approximately one year. However, in November 2018, the mother e-mailed DCF and alleged that a DCF employee had threatened Bernadette and told Bernadette that the mother must stop fighting the children's adoption. The DCF employee denied making such statements to Bernadette. Thereafter, the mother made several threatening statements to her DCF social worker, including that the social worker "was going to become a paraplegic." In November 2018, the mother also began a new relationship with a man who would ultimately become her husband (husband), and the mother and DCF also clashed over whether the mother could bring the husband to the visits with the children.
In June 2019, DCF learned that the mother had married the husband and that she was pregnant with another child, Kevin. One month later, the mother informed DCF that Kevin would be born with tetrahydrocannabinol (THC) in his system. Around August 2019, the mother and the husband moved into a one-room apartment in a boarding house in Worcester that provided temporary housing. The mother and the husband have conditional custody of Kevin, who was born in September 2019.
Meanwhile, trial regarding the termination of the mother's parental rights to Bernadette, Colleen, and David began in July 2019, although it extended for several dates over a period of several months, and did not conclude until February 2020. Nine witnesses testified, including the mother, who testified at length; three DCF employees; the foster mother of Bernadette and Colleen; and the foster mother of David.
The father stipulated to the termination of his parental rights to Colleen and David.
Trial delays were due to scheduling conflicts, the mother's transportation issues, and the mother's health issues.
At trial, DCF based its unfitness arguments primarily on the mother's lack of suitable housing and unstable lifestyle for the children, the mother's noncompliance with services, and the mother's strained relationship with DCF. In response, the mother argued that DCF had not made reasonable efforts to reunify her family, and that she was fit to parent her children because she was largely in compliance with her action plans, she was now married, she had a home, and she was successfully parenting Kevin. The children argued at trial that they should remain in their respective foster homes.
Counsel for the children initially argued that David should remain in his foster home, but after David's foster mother was not approved for adoption, children's counsel filed a plan for David's foster mother to become David's guardian.
On March 31, 2020, the judge issued decrees terminating the mother's parental rights to the children. On June 23, 2020, the judge issued detailed findings of fact and conclusions of law. The judge concluded that the mother was unfit because, among other things, she had not obtained housing appropriate for the children at any point during the three years they were in DCF's care, had failed to engage with service providers to comply with her action plans, and was unable to ensure that the children received the services needed to address their special needs. Although the judge acknowledged that the mother was "largely in compliance with her [action] plan" at the time of trial, she concluded that the "[m]other's inconsistent attendance to and engagement in services demonstrates her incapacity to appreciate and perform the parental obligations of four children under the age of ten." The judge also found that DCF had made reasonable efforts to provide services to the family.
In reaching her conclusions regarding the mother's unfitness, the judge also issued numerous findings regarding the specific needs of each child. Bernadette, who was nine at the time of trial, attended therapy on a weekly basis due to the sexual abuse she experienced and the sexualized behaviors she demonstrated at the time of removal. The judge credited Bernadette's testimony at trial that she wanted to remain in her foster home and was afraid to return to the mother's care. As to Colleen, the judge found that she was diagnosed with attention deficit hyperactivity disorder (ADHD) and had a possible diagnosis of autism, needed constant supervision due to destructive behavior, and required psychiatric services and prescription medications. The judge further found that Bernadette and Colleen benefited from the stability provided by their foster family, and that they would suffer "traumatic loss if forced to leave."
The judge found that David had been diagnosed with ADHD, had behavioral difficulties, and received prescription medication. David also had displayed aggression toward the mother during their visits. David received care from a psychiatrist and was subject to an individualized education plan (IEP) at school. The judge found that David's foster mother was not able to meet David's long-term needs due to her advanced age and memory lapses, and approved DCF's plan to recruit a family to adopt him.
Considering the children's special needs, the judge concluded that they "will likely require future services to ensure they reach their full potential; thus, they will require parents who can seek out those services and work cooperatively with service providers in a timely and consistent way." The judge concluded that the mother would not be able to accomplish this, and accordingly that termination of the mother's parental rights was in the best interests of the children.
Discussion. 1. Termination of the mother's parental rights. The mother argues that the judge's unfitness determination was erroneous because the mother was substantially in compliance with her action plan and had stabilized her life at the time of trial. We review the termination of the mother's parental rights for abuse of discretion or clear error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034 (1999). To terminate parental rights, the judge must make the determination, based on clear and convincing evidence, that the parent is unfit to parent the child and that the parent's unfitness is not temporary. Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). "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." Adoption of Mary, 414 Mass. 705, 711 (1993).
a. Unfitness determination. We discern no abuse of discretion or error of law in the judge's conclusion that the mother is unfit. The judge issued detailed and lengthy findings of fact, to which we must defer unless clearly erroneous. Adoption of Ilona, 459 Mass. 53, 59 (2011). Here, the judge concluded, among other things, that the mother (1) had not obtained housing appropriate for the three children at any point during the three years they were in DCF's care, (2) had failed to engage with service providers to comply with her action plans, (3) had a generally unstable lifestyle that was not conducive to raising four children, (4) was unable to ensure that the children received the services needed to address their special needs, and (5) demonstrated a lack of insight regarding the impact these deficiencies would have on her children.
Although the mother has demonstrated some improvement in her housing situation and some compliance with her action plans, "we rely on the judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary" even "where a parent has participated in programs and services and demonstrated some improvement." Adoption of Ilona, 459 Mass. at 59-60. Despite the improvement demonstrated by the mother, the judge's factual findings as set forth supra are not clearly erroneous. Of particular significance, as the judge noted, all three children have special needs that require assistance from service providers, and the mother's inconsistency with her own service providers indicates that she will not be able to ensure her children receive the various services that they need. The judge's findings regarding the mother's housing instability and inconsistent engagement with service providers are therefore sufficient to sustain the unfitness determination. Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581 (2021) (failure to maintain housing, volatile temper, and failure to engage in domestic violence services sufficient to show unfitness); Adoption of Virgil, 93 Mass. App. Ct. at 303 (unfitness determination based in part on failure to engage in services and housing instability).
The mother argues that because she has conditional custody of Kevin, she cannot be an unfit parent. The mother's capacity to parent Kevin, however, does not necessarily mean that she was capable of also parenting her three older children with special needs. See Adoption of Frederick, 405 Mass. 1, 9 (1989).
We note that the mother has made significant efforts to support and protect the children. The determination of unfitness is not a moral judgment or an indication that she does not love the children. Adoption of Garret, 92 Mass. App. Ct. 664, 665 n.3 (2018).
The mother's argument that the judge erred by failing to individually analyze her fitness to parent each child also fails. As noted, the judge made many findings regarding the special needs of each individual child, and that the mother's history indicated that she would not be able to meet those needs. We discern no error in the judge's analysis.
b. Reasonable efforts. The mother also argues that DCF failed to make reasonable efforts to reunify the family. Again, we perceive no error that would require us to overturn the judge's decision. The judge specifically found that "the services offered throughout the pendency of the case were reasonable and that DCF made reasonable efforts." See Adoption of Ilona, 459 Mass. at 59. The tasks that DCF assigned to the mother included, among other things, finding suitable housing, attending parenting class, engaging in therapy, participating in domestic violence classes, maintaining employment, attending meetings with DCF, and visiting the children. The mother complied with some of these tasks, but did not complete several others. For example, the mother did not consistently attend therapy, took two years to complete the parenting class, and did not provide verification of her attendance at domestic violence services. She also missed some visits with the children.
Under the terms of the action plans, DCF was required to make all necessary referrals to assist the mother in accomplishing these goals. During the pendency of this case, DCF referred the mother to a parenting class, to a parenting aide, to services for parents whose children were sexually abused, and to a housing specialist. In September 2018, DCF also told the mother that if she secured an apartment, DCF would help her pay first and last months’ rent and security deposit.
Having said this, however, we have some concerns regarding DCF's conduct in this case. DCF changed the children's goal to adoption a mere ten months after the children entered DCF's care, yet there was a dearth of evidence in the record as to why the goal was changed. Indeed, the mother had been displaying consistency in complying with her action plan for a period of several months prior to the goal change. Furthermore, DCF did not provide the mother with assistance in attempting to rectify her housing instability -- the central issue that led to the children's removal -- until after the children's permanency goal had changed to adoption. Accordingly, while the judge's findings and conclusions were supported by the record overall -- that is, by the three years of experience with the mother and the children -- there are aspects of the history of this case that are unexplained, and as such, not consistent with DCF's obligations.
We note that even if the judge had found that DCF did not make reasonable efforts, that would not have precluded the judge "from making any appropriate order conducive to the child[ren's] best interest." G. L. c. 119, § 29C.
c. Domestic violence. The judge also drew several negative inferences regarding the mother's parenting due to the abuse the father inflicted on the mother during their relationship -- specifically, the judge raised questions about the mother's judgment in allowing the children to witness the father abusing her, allowing the father to be the primary caretaker of the children, and allowing the father to be around the children directly after he abused the mother. We are troubled by certain of these findings, given the challenges that domestic violence victims face in attempting to escape abuse.
The judge concluded:
"Despite recognizing the significant domestic violence she experienced at the hands of [the f]ather, [the m]other continued to allow him to serve as the primary caretaker for the children. She also permitted him to spend time with the children shortly after he abused her -- sometimes within five minutes of an assault.... [The m]other testified that she considered leaving [the f]ather as early as late 2013, during her pregnancy with [David], yet she did not leave the home with her children until March 2017, nearly four years later."
"It is well established that exposure to domestic violence works a ‘distinctly grievous kind of harm’ on children." Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). Here, however, the mother was the victim of horrific domestic violence, not the perpetrator. Further, the mother ultimately protected her children from abuse by taking her children and fleeing hundreds of miles -- a commendable feat. Cf. Adoption of Yvonne, 99 Mass. App. Ct. at 579 (commenting on mother's multiple abusive relationships); Adoption of Jacob, 99 Mass. App. Ct. 258, 265 (2021) (noting mother's inability to end abusive relationship). The inference from the judge's conclusions of law, however, is that the mother showed poor judgment by failing to flee sooner.
It is true that while they remained with the father, the children were exposed to potential harm, and the mother knew of at least some of those harmful circumstances. However, the judge's findings as to the mother's decision-making in this regard do not fully address what can be a far more nuanced situation. The decision facing the mother was an all-too-common situation that many parents who are indigent and victims of domestic violence face: to stay in the abusive relationship and expose their children to abuse, or to leave the relationship and expose their children to poverty and homelessness. See Beller, When in Doubt, Take Them Out: Removal of Children from Victims of Domestic Violence Ten Years After Nicholson v. Williams, 22 Duke J. of Gender L. & Pol. 205, 209 (2015). The judge made no findings regarding reasonable alternatives available to the mother -- such as earlier opportunities to escape -- that the mother did not take. Indeed, the judge's own findings indicate that the father exercised a substantial degree of control over the mother -- driving her to and from work and taking control of the money she earned -- which likely hindered the mother's ability to escape with the children. Therefore, to the extent that the judge's findings suggest that the mother's failings as a parent arose from her delay in escaping from the father, rather than her nonengagement with services (including domestic violence services) following the children's removal, we do not rely on those findings under the circumstances here.
In particular, "[t]here is a shortage of shelters specifically for women and children fleeing an abuser, and they are often forced to stay in homeless shelters. Rather than subjecting her children to such a dangerous environment, a woman may decide to remain with her abuser. A woman may also stay in a violent relationship because she believes that leaving would place her and her children at an even greater risk of harm." Beller, supra.
2. Finding of trauma if removed. The mother also argues that the judge erroneously concluded that Bernadette and Colleen would suffer trauma if they were removed from their foster family. "Avoiding the likely trauma of separation ... should not be the "determining factor for the judge." Adoption of Rhona, 57 Mass. App. Ct. 479, 492 (2003). It can, however, be a relevant factor. See id. See also G. L. c. 210, 3 (c ) (vii). Reading the findings and conclusions as a whole, the judge's finding regarding trauma was not the determining factor in her decision regarding the children's best interests.
The judge was required by statute to consider whether "the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child's life, [and] the forced removal of the child from the caretaker would likely cause serious psychological harm to the child." G. L. c. 210, 3 (c ) (vii). The judge's findings regarding trauma were supported by the record as to Bernadette. Bernadette testified at trial that she wanted to live with her foster mother because "I'm really safe with her, and everyone won't be scary." She also testified that if she returned to her mother's care she was "scared [she's] going to get hurt again." Although there is less record evidence as to Colleen, DCF assessments established that Colleen had bonded with her foster mother.
Finally, even if the finding regarding trauma was erroneous, it would not negate the critical findings discussed supra, including that the mother was unable to meet the special needs of her children. Therefore, "the judge's over-all conclusion" that it was in Bernadette and Colleen's best interests to terminate the mother's parental rights "is fully supported by the record." Adoption of Helen, 429 Mass. 856, 860 (1999).
3. Sibling visitation. The judge ordered four postadoption visits per year between the mother and the children, and also ordered that Bernadette, Colleen, and David attend three visits per year with one another if their visits with the mother did not occur. The mother argues, however, that the judge erred by not ordering sibling visitation between the children and Kevin. No request for sibling visitation with Kevin was raised below, however, and therefore the issue is waived. Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). Furthermore, the children and Kevin have the ability to seek visitation with one another if they desire it in the future. G. L. c. 119, § 26B (b).
Decrees affirmed.