Opinion
21-P-220
04-14-2022
ADOPTION OF MAGGIE (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from decrees of the Juvenile Court terminating her parental rights under G. L. c. 119, § 26, and G. L. c. 210, § 3, to her daughter Maggie and son Andrew, approving the plans of the Department of Children and Families (DCF) for the children's adoption by separate foster families, and ordering four postadoption visits per year between the mother and Maggie, and one such visit between the mother and Andrew. Maggie also appeals from the decree terminating the mother's parental rights to her.
The mother raises three issues on appeal. First, she argues that the trial judge erred in finding her permanently unfit to parent the children by clear and convincing evidence, asserting that she complied with her service plans, adequately managed her mental health challenges, and visited successfully and consistently with the children. Second, she contends that this court should decline to give traditional deference to the trial judge's findings of fact and conclusions of law because they are insufficiently detailed and contain factual errors and misapply legal rules. Finally, she argues that the trial judge abused her discretion by ordering only infrequent contact between the children and the mother, because of their existing bond.
Maggie argues that the trial judge's findings of fact and conclusions of law lacked the necessary child-specific findings to support a determination that the mother is unfit to parent her.
We affirm the decree terminating the mother's parental rights to Andrew, but we vacate the decree terminating the mother's parental rights to Maggie, and remand the case for further proceedings consistent with this memorandum and order.
Background. 1. Factual history. The mother has suffered from a history of abuse, as well as cognitive impairment and mental illness, since childhood. She has been diagnosed with posttraumatic stress disorder, depression, severe mood disorder, and bipolar disorder. To manage these illnesses, she has been prescribed several medications but has inconsistently taken them. The mother became pregnant with Maggie at the age of nineteen and moved to Florida with Maggie's father, who physically abused her. As a result, the mother moved to a domestic violence shelter, and then back to Massachusetts before Maggie's birth.
Maggie's father is not a party to this appeal.
The mother was living with Susan (a pseudonym), her former foster mother, when she gave birth to Maggie on June 2, 2010.
The mother's involvement with DCF as an adult began in October of 2012, following the filing of a report filed pursuant to G. L. c. 119, § 51A (51A report), while she and Maggie were living in a motel room with the mother's sister, who was herself involved in a violent relationship. The reporter expressed concerns about the mother's history of bringing multiple men into Susan's home, her poor parenting skills, her mental health diagnoses, and her failure to take her psychiatric medication.
Susan denied the validity of these concerns when she testified at trial, but the judge did not credit her denials. DCF found minimal concern after investigation.
In June 2014, DCF received and investigated another 51A report alleging that the mother, then aged twenty-four, had engaged in a sexual relationship with a fifteen year old boy. During the subsequent investigation, the mother admitted to the relationship but stated that she had ended it for fear of losing custody of Maggie. She also told DCF that she was struggling to discipline Maggie, who exhibited aggressive behavior. She disclosed feeling depressed and suicidal and reported crying daily and suffering from a lack of sleep.
DCF found that allegations of neglect against the mother based on her struggles to discipline Maggie and her disclosed depression and suicidal ideation were supported and opened a case to provide services for the family.
In February 2015, the mother was in a relationship with Michael (a pseudonym), who physically assaulted her by grabbing her by the neck in the presence of Maggie. Nevertheless, the mother's relationship with Michael continued until at least June of 2015. In 2016, the mother was living with a new partner, Nelson (a pseudonym). In November and December 2016, the police responded to two calls about domestic disturbances arising from fights between the mother and Nelson, though the mother denied that the fights were physical. By June 2017, the mother was in a relationship with Paul (a pseudonym), Andrew's father. On June 30, 2017, police responded to an incident of mutual domestic violence between the mother and Paul in a Walmart store, which was witnessed by Maggie. Criminal complaints were issued against both parties. Three days after the incident, the mother was interviewed by DCF's emergency response workers and denied that Paul hit her. She also stated that that she was six months pregnant with Paul's child and that she had stopped taking her psychiatric medications. The mother declined to obtain an abuse prevention order at the time, maintaining that she did not feel threatened by Paul.
Paul is not a party to this appeal.
After numerous 51A reports relating to the aforementioned incidents of domestic violence between 2015 and 2017, DCF received a 51A report on July 5, 2017, alleging domestic violence, unsanitary home conditions, and substance abuse by Paul.
Another 51A report, filed on July 14, 2017 by a mandated reporter, alleged that seven year old Maggie would play by herself outside of the apartment while the mother was asleep. The mother had been on bedrest due to her pregnancy and was unaware that Maggie was outside. This report was screened out. Subsequent 51A reports also alleged lack of supervision of Maggie. On July 17, 2017, another 51A report alleged that Maggie went to a neighbor's house and asked the neighbor to babysit her, explaining that her the mother was in court that morning and there was no one to watch her. This report was screened out. A 51A report filed on September 8, 2017 alleged that Maggie was left home alone without supervision. The mother stated that she had asked a family friend to supervise Maggie so that the mother could remain in the hospital with newborn Andrew, who had been born premature and suffered health complications.
Another 51A report was filed on September 7,2017, two days after Andrew's birth, alleging that the mother had tested positive for marijuana at the birth. During the investigation, the mother revealed that she self-medicated for depression by using marijuana. At the time the mother had been prescribed various medications for her mental health issues but was not consistently taking them.
On September 12, 2017, DCF filed a care and protection petition pursuant to G. L. c. 119, § 24, and received temporary custody of the children. At the time, DCF allowed the children to remain in the home with the mother. A temporary custody hearing was held on September 22, 2017. The mother was not present but was granted temporary custody of the children with conditions.
Three days later, on September 25, 2017, DCF received another 51A report from a mandated reporter alleging neglect, as the mother reported feeling depressed and overwhelmed and indicated she wanted to be hospitalized for psychiatric issues. DCF filed an emergency motion for custody of the children, receiving temporary custody that same day. The mother waived her right to a new temporary custody hearing. DCF immediately placed the children in foster care.
In August of 2018, pursuant to the mother's motion to transfer custody of the children to Susan, her former foster mother, the probation department was ordered to complete a home study of Susan, but only after DCF completed its own home study. The children's motion requesting to be placed in Susan's custody was subsequently denied.
On May 24, 2019, the mother was found unfit pursuant to her written stipulation and colloquy. The children were placed in the permanent custody of DCF. Neither the mother nor the children appealed that decision.
Andrew has been placed in his current preadoptive home with his foster mother since January 3, 2019, prior to which he resided in a foster home. Maggie has been in her current foster home since May 19, 2019. It is a child specific placement, and her foster mother is a relative of her previous foster family. DCF designated this family as an adoptive resource for Maggie on December 16, 2019.
On December 19, 2019, a review and redetermination trial was held pursuant to G. L. c. 119, § 26 (c ). The judge considered forty-two exhibits submitted by DCF and four exhibits submitted by the mother. The judge also heard testimony from four witnesses, including the mother. On April 30, 2020, the trial judge issued termination decrees as to both children, together with findings of fact and conclusions of law.
2. Compliance with service plans. Beginning in 2014, DCF has created and updated numerous service plans for the mother to help her address her parental deficiencies, including her failure to address her mental health issues, her struggles to establish structure and routine for the children, and her exposure of Maggie to incidents of physical abuse and domestic violence. These service plans included the following tasks: engage in therapeutic services; participate in domestic violence services; complete a parent education program; meet with her social worker monthly; and, since 2018, secure stable housing and participate in parenting and psychological evaluations while following through with all recommendations made in those evaluations. Though the mother has successfully completed some service plan tasks such as participating in parenting classes, completing a psychological evaluation in 2018, completing domestic violence classes, and securing employment, she did not complete all of the tasks to DCF's or the trial judge's satisfaction.
As described, the mother has inconsistently taken her prescribed psychiatric medication, and her engagement in therapy has been somewhat inconsistent. The mother did find a therapist with whom she was scheduled to meet weekly, as required by the service plan, but attended only about seventy-five percent of these appointments in the six months leading up to trial. The mother's last appointment with her therapist before the December 2019 trial was in November 2019. She missed her appointment that was scheduled for the first week of December and did not have any further appointments scheduled after that. The trial judge concluded that this rate of attendance was insufficient to address the mother's mental health issues and found that she had not made sufficient clinical progress to alleviate concerns about her parenting ability. The mother also failed to meet monthly with her social worker as required by the service plan, attending only six of twelve scheduled meetings in 2019. The mother provided a variety of excuses for her lack of attendance. The mother has also been unable to secure stable housing since she lost her shelter-provided housing in 2017 after DCF removed the children from her custody and testified to "couch surfing," although the trial judge found that she did not "live anywhere but with" Susan.
Finally, the mother has maintained relatively consistent visitation with the children since 2018, but the DCF social worker expressed concerns about these visits as well. Although the family's interactions during the visits were loving and appropriate, the mother has struggled to supervise Andrew since October of 2019. By that time, Andrew had been diagnosed with autism and required more hands-on supervision, which led to the social worker intervening during visits to prevent Andrew from running off or being unsafe. The social worker stated that the mother was either distracted by Maggie or spent too much time trying to redirect Andrew verbally before doing so physically. As a result, the social worker began holding these visits within a closed area for Andrew's safety, and the trial judge found that the mother required constant reminders and directions in order to keep him safe. The mother acknowledged that she struggles with supervising Andrew.
On May 24, 2019, six months before trial, the mother stipulated that she was unfit to parent the children and the trial judge approved the stipulation. At the time, the mother had completed a parenting group in May 2018 and an eight-week domestic violence program in October 2018. She also completed a psychological evaluation in September 2018, which the judge did not credit.
Discussion. 1. Deference to the trial judge's findings. The mother argues that the trial judge's findings are not entitled to the traditional deference afforded to such findings because of perceived errors of law, such as applying the incorrect standard of proof and inconsistencies or errors in the factual findings. We disagree.
First, we find that the judge applied the correct legal standard of clear and convincing evidence, despite the inclusion of "fair preponderance of evidence" in conclusion of law no. 2 of the judgment. In particular, the trial judge stated:
"In a care and protection proceeding, subsidiary factual findings need only be proved by a fair preponderance of the evidence, rather than by clear and convincing evidence. ‘Taken together, these facts must then prove parental unfitness, since it is the "critical inquiry," by clear and convincing evidence.’ Care [&] Protection of Laura, 414 Mass. 788, 793 (1993). It has been proven by at least a fair preponderance of evidence that Mother is unfit to care for the children and that her unfitness is extremely likely to continue into the indefinite future. Amongst other shortcomings, Mother had failed to be consistent in treating her severe mental health conditions, including but not limited to failing to engage in consistent medication management -- including antipsychotics. Mother's only current treatment is moderate attendance to psychotherapy."
Although it perhaps lacks clarity, we read this conclusion as finding that the subsidiary factual findings were proven by a fair preponderance of evidence, which allowed the judge to conclude that there was clear and convincing evidence of unfitness, as required by Care & Protection of Laura, 414 Mass. at 793. Indeed, the judge correctly stated the clear and convincing evidence standard elsewhere in her decision, specifically in conclusions of law nos. 3 and 29. Taking the conclusions of law as whole, it is apparent that the judge found by clear and convincing evidence that the mother is unfit and termination is in Andrew's best interests.
In conclusion of law no. 33, the judge went through the factors that must be considered under G. L. c. 210, § 3, stating either, "The court applied this principle in making the foregoing findings of fact," or, "The court did not apply this principle in making the foregoing findings of fact." The mother correctly observes that conclusion of law no. 33(i) states with respect to the "abandonment" factor, "The court applied this principle in making the foregoing findings of fact," although there was no evidence that the mother abandoned either of the children. Abandonment, however, is not discussed anywhere else in the decision, and it appears the judge did not actually consider this factor in the determination of unfitness.
Further, the mother alleges that the trial judge made various minor factual errors. For example, the judge misstated the dates of the mother's psychiatric hospitalization, finding that it occurred in 2015 as opposed to 2017. But the judge's decision does not depend on the year of the mother's hospitalization to support any conclusions of law, and in fact a more recent hospitalization may weigh more heavily in favor of finding unfitness.
The mother also asserts that the judge was mistaken in finding that she had sexual relations with a fifteen year old boy, and alleges the minor was at least sixteen. But it is undisputed that the mother had a sexual relationship with a minor, and record support for the minor's age being fifteen at the start of the relationship is found in the June 2014, 51A report filed against the mother on the basis of that relationship. Even if his stated age was in error, it does not appear that the judge relied on his age being fifteen as opposed to sixteen.
2. The trial judge's finding of unfitness and termination of parental rights. Turning to the merits, the mother first argues that there is insufficient support for the judge's finding that she is currently unfit to parent the children. At least as to Andrew, we disagree.
"Parental unfitness ... means grievous shortcomings or handicaps that put the child's welfare much at hazard" (quotations and citations omitted). Adoption of Greta, 431 Mass. 577, 587 (2000). To be sustained on appeal, the adjudication that children are in need of care and protection must be supported by findings that, taken together, prove clearly and convincingly that the mother was unfit as of trial to parent them. See Custody of Eleanor, 414 Mass. 795, 799 (1993). Clear and convincing evidence is proof that is "strong, positive and free from doubt," and "full, clear and decisive" (quotations and citations omitted). Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975). Further, even if a parent is unfit, DCF must prove by clear and convincing evidence that the child's best interests are served by the termination of parental rights. Adoption of Luc, 484 Mass. 139, 144 (2020).
The mother argues that the record does not evince clear and convincing evidence of her unfitness at the time of trial. In particular, she asserts that since DCF removed the children, she had not been involved in any violent relationships in the ensuing two years, had cooperated with DCF and largely complied with her service plans, has recognized and sufficiently managed her mental health challenges, and has visited consistently and successfully with her children. She argues that issues such as her current homelessness and need for a steady income were far from intractable and therefore do not "demand" the severing of parental rights in the interests of the children. See Adoption of Ramona, 61 Mass. App. Ct. 260, 266 (2004) ("Severing of parental rights must not take place unless the child's present or future welfare demands it" [quotation and citation omitted]). In this regard, we do note that her eligibility for housing ended because the children were removed from her custody, and her housing situation might be easier for her to address if she had custody of one or both of her children.
However, the judge's factual findings do support by clear and convincing evidence the mother's present unfitness to parent Andrew, who has been diagnosed with autism and has spent almost his entire life outside of the mother's custody.
The mother initially stipulated to her unfitness on the basis of the reports of court investigators made part of the record on March 28, 2018, and February 25, 2019.
"[I]n a petition for review and redetermination, the department bears the ultimate burden to prove that the child is still in need of care and protection. This necessarily involves showing that the parent is still unfit and the child's best interests are served by remaining removed from parental custody. Furthermore, as in a proceeding initially to determine that a child is in need of care and protection, the department must meet this burden by clear and convincing evidence." (Citation omitted.)
Care & Protection of Erin, 443 Mass. 567, 572 (2005). With respect to Andrew, we think it has done so here.
During the time the children were in DCF custody, the mother demonstrated insufficient compliance with several items on her service plan, including, crucially, her failure to meet with DCF social workers, to address her mental health issues, to consistently engage in therapy, or to adhere to her prescribed regimen of medications to manage her mental illness. Second, the record establishes a sufficient nexus between the mother's inability to manage her mental illness and her unfitness to parent Andrew. She acknowledged feeling depressed, overwhelmed, and feeling that she needed to be psychiatrically hospitalized after Andrew's birth, and since that time the consequences of her inability to manage her mental illness have included missed visitation with the children in 2018 and her inability to secure adequate housing or employment. An inability to supervise a then-young child was a critical part of what led to the intervention of DCF and the mother's loss of custody in the first instance. In addition, her inability to adequately supervise Andrew to ensure his safety during visitation, even though only for the few months leading up to trial, supports a finding of unfitness to parent this child, particularly given the mother's history of failure to supervise Maggie when she was younger. Third, we may properly consider the specialized needs of a child such as Andrew, who has been diagnosed with autism, in conjunction with the parent's demonstrated inability to manage him. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800 (1983). The mother herself acknowledged that Andrew was a "handful" and told the social worker she was very concerned about her ability to care for him and keep him safe due to his diagnosed autism. Finally, a judge may properly consider a "lengthy separation between parent and child, the growth of emotional ties between the child and a different custodian, and the effect of a forced return of the child to the biological parents." Adoption of Frederick, 405 Mass. 1, 7 (1989). See Adoption of Melvin, 71 Mass. App. Ct. 706, 712-714 (2008). The trial judge noted that "[b]oth children have formed strong attachments and are thriving in their current preadoptive placements." Further, Andrew was removed from the mother's care when he was twenty days old. By contrast, he has lived with his current foster mother and preadoptive placement for over three years and is strongly bonded with her.
The finding of unfitness to parent Andrew was supported by clear and convincing evidence, as was the conclusion based on the length of time that the mother's unfitness has persisted that it was likely to continue indefinitely into the future. See Adoption of Xarissa, 99 Mass. App. Ct. 610, 618 (2021) (mother's failure to address her mental health issues substantially supported trial judge's conclusion that her unfitness was likely to continue indefinitely). Given this, the trial judge's finding that Andrew is thriving in his preadoptive placement, and his need for permanence and stability, the judge's conclusion that the termination of parental rights was in Andrew's best interests is also supported by clear and convincing evidence. See Adoption of Nancy, 443 Mass. 512, 515 (2005).
3. Trial judge's failure to make specific findings as to the mother's ability to parent Maggie. Maggie argues on appeal that the trial judge made insufficiently specific findings to conclude that the mother was unfit to parent her, independent of the mother's fitness to parent Andrew, and to conclude that the termination of parental rights was in Maggie's best interests. We agree.
It is settled that a "determination of parental unfitness must be child specific; ‘the issue is the current fitness of the biological parents to further the welfare and the best interests of the particular child.’ " Adoption of Ramona, 61 Mass. App. Ct. at 263, quoting Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985). After all, "a parent may be fit to raise one child and unfit to raise another [particularly if] one child is in need of particular parental skills and stability that the mother was unable to provide" (quotation and citation omitted). Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003).
Unlike Andrew, who was removed from the mother's custody as an infant, Maggie lived with the mother until DCF removed her at the age of seven in 2017. Prior to her removal, in 2014, Maggie was up to date medically, verbal, working with service providers in the community, and bonded with the mother. As of 2017, she was enrolled in the Head Start Program and doing well in school, with good attendance and no behavioral issues. Since then, the mother has continued to visit her consistently and successfully, in contrast to her difficulties managing Andrew during those same visits. Maggie is much older than Andrew and has not been diagnosed with autism. Therefore, the mother may not require the same particularized caretaking skills to meet her needs.
The trial judge in her findings essentially treated Maggie and Andrew as a unit, without particularized findings as to the mother's ability to meet Maggie's individual needs in a context in which she would not also have to care for Andrew.
Accordingly, the decree terminating the mother's parental rights as to Maggie is vacated, and the matter is remanded for further findings consistent with this memorandum and order.
4. Posttermination and postadoption contact. The mother argues that the trial judge's order for posttermination and postadoption contact between her and Andrew was an abuse of discretion because ordering only one visit per year was outside the range of reasonable alternatives. We disagree.
The power to order posttermination contact rests within the discretion of the trial judge, who may determine the extent to which decisions regarding visitation are left to the judgment of the adoptive family. See Adoption of Rico, 453 Mass. 749, 754 (2009). See also Adoption of Ilona, 459 Mass. 53, 63 (2011). A trial judge abuses her discretion when she makes a "clear error of judgment in weighing the factors relevant to [her decision] ... such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). An order of postadoption contact should be "carefully and narrowly crafted to address the circumstances giving rise to the best interests of the child." Adoption of Vito, 431 Mass. 550, 564 (2000). A postadoption visitation order must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent [or] the legal consequences of their natural relation" (citation omitted). Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003). The judge must also weigh any "intrusion that an order imposes on the rights of the adoptive parents, who are entitled to the presumption that they will act in their child's best interest." Adoption of Ilona, 459 Mass at 64-65. In light of these relevant factors, we find that the trial judge did not abuse her discretion in ordering visitation with Andrew only once per year.
While we do not discount the likelihood that Andrew has formed some attachment to the mother during over two years of visitation since his removal, the fact remains that he was removed from the mother's custody as an infant and had no preexisting bond with her. Given that the trial judge found that Andrew has thrived in his preadoptive placement and has for all intents and purposes been raised by his preadoptive family since infancy, we are unable to conclude that the trial judge abused her discretion in finding that such infrequent mandatory visitation was in the child's best interests.
3. Conclusion. The decree terminating the mother's parental rights to Maggie is vacated, and the case is remanded for further proceedings, including consideration of current evidence of the mother's current parental fitness and Maggie's current best interests, so that a new determination can be made with respect to those matters that includes more child-specific findings as to the mother's fitness to parent Maggie. The decree terminating the mother's parental rights to Andrew is affirmed.
So ordered.
vacated in part and remanded; affirmed in part