Opinion
22-P-392
01-19-2023
CARE AND PROTECTION OF NICO.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a six-day trial that began before but spanned the onset of the COVID-19 pandemic, a judge of the Juvenile Court found that the mother was unfit to parent the child. He also found that the child was in need of care and protection with regard to the mother, and that it was in the child's best interests to be placed in the permanent custody of the father. See G. L. c. 119, § 24. On appeal, the mother argues (1) that she was deprived of effective assistance of counsel because the judge held several of the trial days by remote video conference during the pandemic, and (2) that there was insufficient evidence to find the mother unfit. We affirm.
Background.
We summarize the judge's findings of fact, supplemented by undisputed evidence from the record. The mother has a long history of involvement with the Department of Children and Families (department). The child at issue in this case, Nico, was born in July 2018. The department filed a care and protection petition for the child the following month, on August 16, 2018, one day after he was removed from the mother's custody. In his first thirteen months, custody of the child "bounced" at least six times between the mother, the father, and the department. In August 2019 the child was ordered into the custody of the father, where he remained through the time of trial.
The father did not believe that he was the child's father until he obtained the results of a paternity test. The father then had his name added to the child's birth certificate. The relationship between the mother and father had been short-lived.
The mother was arrested on August 15, 2018, on an outstanding warrant for failure to appear in court. The department also supported other concerns: the mother failed to keep scheduled doctor's appointments for the child, and she did not stay in contact with her probation officer.
The child was returned to the mother's custody on August 24, 2018, where he remained until January 2019, when she was hospitalized. The father had custody for seven days in February 2019, after which the child was returned to the mother. The department obtained emergency custody of the child on May 24, 2019, and the child was placed in the custody of the father in August 2 019.
Beginning in October 2018, the mother sent a series of text messages to the father threatening to injure him and damage his property, threatening to kill herself, and pretending to have left the child outside the father's house in the middle of the night. The mother justified sending the text messages because the father "did not give her child support and did not follow their childcare schedule." When questioned about the text messages, she denied that she would hurt herself or the child, and said that she "wanted to scare" the father and "make him feel bad." She did not understand that these kinds of messages "reflected poorly on her mental stability and ability to care for" the child.
The mother has a history of mental health issues that were described by the judge as "undertreated." She has been diagnosed with attention deficit hyperactivity disorder, adjustment disorder with anxiety and depression, bipolar and related disorder, alcohol use disorder, schizoaffective disorder (bipolar type), Adderall use disorder, and posttraumatic stress disorder. Although she has been prescribed various medications, she admitted that she did not take them, except for Adderall, because she thought it was the only medication that helped her.
The mother was hospitalized in a mental health center three times since the case began. In January of 2019, she was hospitalized for three weeks; she "presented as grandiose, hyperverbal and tangential with delusional thinking," and refused antipsychotic medicine. She was hospitalized again May 29, 2019, to June 17, 2019, at which time she was described as disorganized and delusional, and made statements about her older child, John (a pseudonym), being switched during a visit -- she claimed that the child at the visit sounded like John but looked different. In September 2020, one month before the resumption of trial (after a suspension in the proceedings due to the pandemic), the mother was again hospitalized "on a 72-hour hold" for delusional behavior and suicidal thoughts, stating that she had been "raped by someone at the courthouse," and that the court was "sexually trafficking her and her children" or attempting to do so. She refused all medication and wanted to take only Adderall, which the hospital did not provide.
John is not involved in these proceedings; he was in the custody of his father, and the mother had visitation rights. John and Nico have different fathers.
At trial, the mother testified that she was not sure if the child at the visit was John's twin or whether John had a twin because she was "put to sleep" when she gave birth to him. The judge found that she "truly seemed to believe that [John] was either switched with another child or that another child who was [John]'s twin was present that day."
The mother refused to extend her hospitalization voluntarily.
At trial, the mother refused to answer the judge's questions whether "she believed that the court system was trying to sex traffic her and her [children]," in spite of having testified extensively to that effect. The judge inferred from the mother's refusal to answer his questions that she still "harbors the delusional belief" about sex trafficking.
The mother's criminal record included multiple charges for violation of motor vehicle operation laws, including operating under the influence of alcohol (third offense), and driving with a suspended license. The mother has also been arrested several times during the pendency of these care and protection proceedings, for violating abuse prevention orders obtained by John's father.
Discussion.
1. Due process.
The trial in this case began in the court house on February 3 and 5, 2020, and was then suspended due to the COVID-19 pandemic. After the trial was scheduled to resume by video conferencing (Zoom) in October 2020, the mother filed a motion for an "in-person trial," arguing that a Zoom proceeding would violate her due process rights. The judge denied the motion in writing, and the trial resumed on Zoom over four days.
The written order issued on October 30, 2020. The trial on Zoom started on October 21; before testimony began on that date, the judge orally denied the motion for an in-person hearing, over the objection of the mother's attorney. Without any further discussion of the motion, the proceedings on October 21 went forward with testimony from the mother for approximately one and one-half hours. The remaining three trial days postdated the written order.
On appeal, the mother argues that her right to effective assistance of counsel was violated because the judge did not provide adequate means for the mother to communicate with her lawyer during the Zoom proceedings. The Supreme Judicial Court has held that "[a] virtual bench trial, conducted in the midst of the COVID-19 pandemic, to determine whether [a parent is unfit], a civil proceeding, [does not present] a per se violation of a parent's rights to due process." Adoption of Patty, 489 Mass. 630, 638 (2022) . The mother accordingly does not challenge the use of videoconferencing itself, but rather claims that as a consequence of videoconferencing, she was deprived of the effective assistance of her counsel.
We do not agree. In his written order denying the motion for an in-person trial, the judge stated that "certain safeguards can be put in place to allow Mother to have meaningful contact with her attorney" during the Zoom proceedings,
"including additional breaks and access to private breakout rooms so that she may confer with counsel. While these breaks will not be unlimited in frequency or duration, the court is cognizant that there may be greater need for flexibility than there would be for an in-person hearing."
The judge further demonstrated his sensitivity to the issue elsewhere in the order: "Should counsel and the client need to confer during the pendency of trial, a break out room can be scheduled through Zoom. Alternately, the court will be more lenient in allowing additional breaks, both before counsel questions a witness and between witnesses, where Mother and counsel can confer either via a Zoom break out room or another method, such as phone call, text message, or email."
There is no indication that the mother's attorney was unaware of the terms of the judge's written order, or that she did not inform the mother of the safeguards available to her. The mother's attorney did not ask for clarification of the written order or lodge any objection to it. See Vazquez Diaz v. Commonwealth, 487 Mass. 336, 355 (2021) (no deprivation of effective assistance of counsel during virtual hearing). In addition, neither the mother's counsel nor the mother asked to take advantage of the methods mentioned by the judge in the order. And although the judge admonished the parties to tell him about "any technological issues during the Zoom," no such issues were raised. See Id. at 342 (Zoom hearing safeguards party's "right to be present by allowing him to listen to the evidence, adequately observe the witnesses who testify at the hearing, and privately consult with his attorney at any time during the Zoom hearing").
To be sure, the October 21 hearing went forward before the judge's written order explaining the videoconferencing procedures and protections. Nothing happened that day, however, except for a portion of the mother's testimony. Even had that testimony occurred in-person, the mother could not have communicated privately with her counsel without asking for a pause in the proceedings.
Indeed, at no time during the Zoom proceedings did the mother indicate that she wished to communicate privately with her lawyer or that she needed other accommodations (either before or after the judge issued his written order). To the extent that the mother had any difficulties with Zoom, she does not identify any specific prejudice that resulted, and we discern no due process violation.
2. Unfitness.
In a care and protection case, "the department bears the burden of proving, by clear and convincing evidence, that a parent is currently unfit to further the best interests of a child and, therefore, the child is in need of care and protection" (citation omitted). Care & Protection of Rashida, 489 Mass. 128, 131 (2022). We do not disturb the judge's findings unless they are shown to be clearly erroneous. See Care & Protection of Vieri, 92 Mass.App.Ct. 402, 405 (2017). "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass.App.Ct. 704, 706 (2016).
Contrary to the mother's argument, the evidence in this case was not "scant" and the burden was not shifted to her to prove that she was fit when the department relied only on her testimony. The judge's findings in this case were supported, clearly and convincingly, by the evidence. Even without the testimony of any department witnesses, the judge could rely on the court investigator's report as well as official records created by the department. See Adoption of Luc, 484 Mass. 139, 150-154 (2020) (no error in relying on court investigator report and official department records in care and protection proceedings). The judge could also base his finding of unfitness on the mother's testimony, during which she continually denied or minimized her mental health issues, and maintained her delusions that John had been switched during one of her visits and that the court was trying to sex traffic her and her children. See Adoption of Salvatore, 57 Mass.App.Ct. 929, 930 (2003) (department permitted to call parent as witness).
We are not persuaded by the mother's argument that some of the judge's findings are not supported by the evidence or are clearly erroneous because they were "embellished" to "bolster" the finding of unfitness. The mother's challenges are to minor aspects of the judge's findings or characterizations of the evidence. For example, the mother takes issue with (1) the judge's description of her behavior toward the fathers of John and Nico as "explosive"; (2) the judge's finding detailing the mother's testimony about her specific mental health diagnoses; and (3) the findings about the impact of the text messages sent by the mother to the father. If there are any inaccuracies in these findings, they in any event were not critical to the finding of unfitness. See Adoption of Helen, 429 Mass. 856, 860 (1999) ("although the judge's findings on these points may have been erroneous, the judge's over-all conclusion of parental unfitness is fully supported by the record").
With regard to the mother's claim that the department did not show a nexus between the mother's ability to care for the child and her mental health issues, we are not persuaded. The evidence showed that the mother is delusional, that she was frequently hospitalized for same, and that she was irrationally antagonistic to the child's father and the father of another of her children. The mother's characterization of her delusional thoughts as "lifestyle decisions" or "unconventional behavior" rings hollow, in light of the consistent and pervasive evidence that supports the judge's conclusion that "she lacks basic insight into the seriousness of her mental health struggles." While it is true that "[m]ental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs," Adoption of Luc, 484 Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9 (1989), we nevertheless must ask whether the child is at "serious risk of peril from abuse, neglect, or other activity harmful to the child" as a result of the mother's condition. Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). The judge's conclusion that the mother "does not have sufficient capacity to manage the care of the subject child" is well supported by the evidence.
The mother's claims that the judge ignored her "progress and gains in treatment" are based on reports of her treating therapist that she was consistently engaged in treatment and was "decreasing some of her stress and frustration." The therapist reported to the court investigator, however, that she could not comment on the effects of Adderall on the mother and had no opinion about the mother's ability to parent the child, because "it was not within the scope her work with" the mother. The judge understandably did not find the therapist's report "helpful."
The remaining arguments raised by the mother to counter the finding of unfitness are not convincing. Even if we give credence to the mother's argument that she successfully completed many of her action plan tasks (although the judge found to the contrary), "mere participation in the services" is not enough to establish fitness; the parent must have benefited from those services. Adoption of Ulrich, 94 Mass.App.Ct. 668, 677 (2019). The mother's claim that she is not unfit because she provided "more than adequate" care of the child when he was in her custody and during her supervised visits with him is belied by her involuntary hospitalization for delusional behavior and suicidal thoughts one month before the trial resumed, and her delusional presentation at trial. See Adoption of Querida, 94 Mass.App.Ct. 771, 775 (2019) ("the mother's lengthy history of untreated mental illness, in combination with her behavior throughout trial, bears a direct relationship to her ability to care for the [child]").
Finally, we are not convinced by the mother's claim that her interactions with the fathers of John and Nico do not render her unfit. There was uncontradicted evidence that the mother sent many messages threatening to harm the father and herself, as well as messages in which she lied about what she had done with the child, and that she had on numerous occasions violated the abuse prevention orders obtained by John's father. The judge found that the mother's actions proved that she could not coparent with the father "in a healthy and cooperative way at this time." See Adoption of Raissa, 93 Mass.App.Ct. 447, 457 (2018) (mother's animosity toward father precluded coparenting). In the circumstances before us, we see no error in the judge's finding that the mother is currently unfit.
Judgment affirmed.
Milkey, Ditkoff & Englander, JJ.
The panelists are listed in order of seniority.