Opinion
16-P-1141
07-20-2017
ADOPTION OF PATTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parents appeal from decrees issued by a judge of the Juvenile Court finding them unfit and terminating their parental rights to their son, Patton. The mother argues that the judge relied on stale and marginal facts in finding her unfit and in terminating her parental rights; she also contends that the Department of Children and Families (department) failed to make reasonable efforts to reunify the family. The father's sole argument is that he did not receive proper notice that his parental rights were in jeopardy; in his view, the department focused only on termination of the mother's parental rights. After consideration, we conclude that there was sufficient evidence to establish the parents' unfitness, and termination was in the child's best interests. As a result, we affirm.
The judge "maintain[ed] jurisdiction regarding post-termination and post-adoption visitation while the parties work together to develop open adoption agreements, with the goal of ensuring that Mother and Father have roughly equal access to [the child], at a minimum of two to four visits per year." Neither parent appeals from this part of the decision.
Background. The judge found the following facts. Patton was born in January, 2011. The department first became involved with this family in July, 2011, when the mother reported that the father had subjected her to serious domestic violence; the father was arrested, and Patton was removed from the parents' care. After the mother obtained a restraining order against the father and secured housing in a domestic violence shelter, Patton was placed back in her care. A condition of Patton's return was that the mother maintain the restraining order against the father. However, while she was in the shelter, the mother and father secretly resumed their relationship, passing messages to each other through a mutual friend, communicating through instant messaging, and traveling to New Hampshire to meet, to minimize their chance of being seen together. During this time, the parents continued to be violent with one another.
After living in the shelter for approximately eight months, the mother secured her own apartment; the father moved in with her, even though the restraining order remained in place. To maintain the secrecy of their continuing relationship, the mother had the father leave the apartment when Patton received his in-home early intervention services. During this time, the violence became even more serious; the father beat the mother to the point of unconsciousness on two occasions, and the mother attempted to stab the father, cutting him badly. The judge found that both parents minimize their own responsibility for the violence that occurred, and each accuses the other of using physical force with Patton during this period.
The department again became involved with the family on February 11, 2014, when the mother put a note in Patton's backpack on his first day of school, asking for someone to send police to help her. After Patton left for school, the mother told the father about the note and he threatened to tell the department that the mother was physically abusing Patton; the mother then hit him in the face, causing a cut on his cheek and a black eye. The police later arrived at the apartment, finding the mother alone and distraught; she also suffered a violent seizure, requiring medical attention, when she was leaving with the police. Patton was removed from the mother's care again and, after a short period, was placed with the paternal grandmother and her husband (the father's adoptive father), where he has remained through these proceedings. The department's proposed plan is for adoption by the paternal grandparents.
The judge found that the parents' eight year, on-and-off relationship, which began in 2005 or 2006, well before Patton's birth, was tumultuous and riddled with significant mutual domestic violence, instability in housing, and excessive substance abuse. The father's violence toward the mother escalated during their relationship: he beat her regularly (hundreds of times); he repeatedly punched her, strangled her, forced her to have sexual intercourse, pressured her to use drugs and alcohol, and threatened her. The mother would sometimes experience "blackouts" where she became enraged and physically attacked the father. She also attempted to sicken him by poisoning his food with soap and other household chemicals. At trial, each parent denied using violence against the other except in self-defense; the judge did not find these denials credible.
The father testified that the mother "had a tendency to flip furniture or throw things when she was angry."
During the course of their relationship, both the mother and the father abused alcohol and drugs. After the mother was hospitalized in 2007 for what she believed was a nervous breakdown, the father moved back to the paternal grandparents' home; a short time after her discharge from the hospital, the mother was evicted from her apartment, and then she also went to live with the father and the paternal grandparents.
After approximately nine months, the paternal grandmother asked the mother to move out, blaming her for the messy conditions and damage done to the basement where the mother and the father were living. Both parents moved out and began living in a tent in a friend's backyard, relying on the friend and the paternal grandparents for food. At some point, the parents acquired a camper from the maternal grandmother, which they parked and lived in at the same friend's yard. A few months later, the mother secured an apartment through housing assistance, into which the mother, and later the father, moved. The violence continued and escalated.
After nine months, the mother and the father were evicted; the mother secured another apartment where they stayed until shortly after Patton's birth, when they were evicted. The parents then drove to Florida to stay with the maternal grandmother, but once there they found her house "deplorable" and drove back to Massachusetts the same day. The paternal grandmother then paid for a hotel room where the parents lived for a few months, until, with the help of the paternal grandmother, they secured a new apartment. The substance abuse continued, as did the escalating mutual violence; during this time the father kept the mother in the apartment to hide the bruising from his beatings.
The mother. At the time of trial, the mother was approximately thirty-two years old. She had been sexually abused as a child; when she was thirteen or fourteen years old, the department placed her in foster care for approximately nine months. As an adult, the mother continues to have a difficult relationship with the maternal grandmother; their arguments have escalated into physical violence, and the mother testified that she hit her mother on at least two occasions. The mother dropped out of high school at sixteen when she was pregnant with her first child; she later earned her general education diploma (GED). The mother has in the past (including during the pendency of this petition) suffered seizures, and has a lingering tremor; she denies any psychological diagnoses other than anxiety. She has received counselling and was under the care of a psychiatrist for at least two years. At the time of trial, the mother was living in a two-bedroom apartment; she has regular weekly income, and she states that she has been sober since ending her relationship with the father in February, 2014.
The mother has two older children who were permanently removed from her care in 2008. The father testified that, during the beginning of their relationship, while he was living with the mother and her older children, he observed the mother physically abuse the children; he witnessed the mother hit her older son on "thirty, forty" occasions, and she also had forced the child to stay in a closet overnight.
After filing this petition, the department referred the mother for substance abuse and psychological evaluations, as well as support groups for domestic violence and sexual assault. Despite the fact that she has not signed any of her department service plans, the mother has completed a parenting class, engaged in domestic violence services, and has consistently attended her weekly visit with Patton; she has attended meetings at Patton's school when she was invited. The judge was satisfied that the mother no longer drinks or uses marijuana, and this was confirmed with monthly toxicology screens. However, the department case worker has concerns about the mother's ability to implement certain techniques necessary to accommodate Patton's special needs. With help, the mother attempted to use the techniques, but the case worker is not certain that she has the ability to use the techniques or apply them in a less structured, real life setting.
Her most recent plan was in effect from December 3, 2015, to June 2, 2016.
The mother has never appeared to be under the influence of drugs or alcohol during visits with Patton or when meeting with the department. She insists that she does not need a relapse prevention plan because she only used drugs when the father coerced her to do so.
In addition, the mother is reluctant to provide information regarding her mental health, and refuses to sign releases, making it difficult to assess her engagement in services. She has provided the department with letters from some of her providers to verify attendance and participation in services. The mother has not provided employment verification, and also refuses to provide information regarding a male friend who sometimes spends the night at her apartment. The department has received no information from those individuals comprising the mother's stated support system, and this has prevented the department from determining whether the mother's home environment is safe for Patton. The mother refuses to meet with the department unless her attorney is present (which complicates scheduling), and although she does attend individual therapy, she has refused to participate in a psychological evaluation. At the February, 2016, foster care meeting, when she was not present, the mother was found in partial compliance with the department's service plan.
The father. At the time of trial, the father was approximately twenty-eight years old. When he was five or six years old, he was adopted by the paternal grandmother's husband; as a young boy the father was very involved with his church, participating in service work and social activities, until he lost interest in his teen years. The father dropped out of high school and later obtained his GED; he took classes toward an associates' degree but did not complete the program. He also partially completed a program relating to digital imaging at Boston University. At the time of trial, the father was living with a roommate and working at Dunkin' Donuts. He testified that he suffers from posttraumatic stress disorder as a result of "spousal abuse" stemming from his relationship with the mother; he suffers from anxiety and works with a therapist, but does not take any mental health medication.
When the father was fifteen years old, he had a psychiatric evaluation and attended a "partial program" at a psychiatric facility to treat his depression.
The father completed a parenting group and two online child development courses; he has been involved in individual and group therapy, and, at the time of trial, was regularly seeing a therapist. He participated in an intensive drug program and testified that he no longer uses marijuana; the father also testified that he drank only "two beers" in the last year. However, at the time of trial he had pending against him a charge of operating a motor vehicle while under the influence. The father regularly visits Patton at the paternal grandparents' home; he believes that Patton's developmental delays are the product of neglect (Patton's pediatrician disagrees) for which he takes some responsibility; he attends meetings with Patton's providers, but does not always keep up with his development, instead relying on the paternal grandparents to keep him informed. The father's most recent service plan was in effect from December 3, 2015, to June 3, 2016; at the February, 2016, foster care review, at which he was present, he was found to be in full compliance.
The father testified that he was "okay either way" if he obtained custody of Patton (because the father would move back in with the paternal grandparents), or if the paternal grandparents were allowed to adopt Patton. He believes that Patton "requires a team of people that are willing to work together for his disabilities and needs."
Patton. At the time of trial, Patton was five years old; he is a very friendly, outgoing, and happy boy. He has developmental delays and a language disorder for which he requires specialized care and educational services. Patton needs constant supervision, due to his limitations in communication, thinking, and problem-solving. It is important for Patton to have follow-through at home on the tasks he learns in school so that he can master those skills. Also, Patton has loose ligaments and requires gentle handling so as to avoid dislocation of his joints.
When Patton was first placed in the department's care, he had very limited communication skills, made only fleeting eye contact, and could not use words; he did not respond to the early intervention services he received for approximately two years while in the mother's care. Since his placement with the paternal grandparents, combined with his specialized preschool education, he has made great progress. Although Patton does not speak in sentences, his vocabulary has increased significantly; he also communicates using a picture exchange communication system (PECS). Patton's teachers (and the paternal grandparents) can communicate with him by speaking to him like an adult, then allowing seven or eight seconds for him to filter what he is being asked and respond. Patton responds well to direction, and predictability is a key component to his progress. Patton sees a physical therapist regularly to help with his balance and walking. The department's proposed plan for Patton is for the paternal grandparents to adopt him.
After a six-day trial beginning in January, 2016, the judge found both the mother and the father currently unfit, and entered decrees terminating their parental rights. Each timely appealed.
Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). In determining whether the best interests of the child are served by a termination of parental rights, the judge "shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G. L. c. 210, § 3(c ). "We give substantial deference to a judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). We see no error here.
a. The mother. The judge properly found the mother unfit based on her failure to address her mental health issues fully, and to corroborate what efforts and progress she has made, either by signing releases for information or by undergoing a psychological evaluation. In addition, we consider her lack of a relapse plan to maintain her sobriety, and her difficulty in addressing Patton's special needs, combined with the lengthy history of severe domestic violence to which Patton was exposed. Also significant is the presence of an unidentified male friend who stays in her apartment on occasion. Although the mother contends that certain of the judge's factual findings were clearly erroneous, the "findings" that she challenges here are in fact certain of the judge's conclusions of law, specifically, those numbered 8, 10, 13, 14, 15 and 17. However, her dissatisfaction with the weight the judge gave to the evidence does not establish that the subsidiary findings are clearly erroneous. Substantial deference is given to the fact finder, "recognizing her discretion to evaluate [the] witness[es]' credibility and to weigh the evidence." Adoption of Gillian, 63 Mass. App. Ct. 398, 403 (2005) (quotation omitted).
The long history of domestic violence in this case, which the mother does not dispute, was properly considered in determining the mother's unfitness. The parents' individual testimony is replete with incidents of mutual domestic violence and violent outbursts in Patton's presence, as well as physical violence toward him. It was reasonable for the judge to consider the mother's lack of insight and accountability for this violence in her ability to protect Patton from similar violence in the future. " ‘It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children.’ Custody of Vaughn, 433 Mass. 590, 599 (1996). ‘[A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm.’ Id. at 595." Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015).
The mother's contention that the judge should have focused only on her circumstances since the time she ended her relationship with the father in 2014 is misguided. The mother's recent improvements were, in fact, noted in the judge's findings; however, the judge "properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness." Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006) (quotation omitted).
The judge's conclusions that the mother had failed to take steps to gain insight into her mental health issues and to focus on a long-term plan to maintain her achieved sobriety were also supported by this record. By failing to fully cooperate with the department, to sign releases for her mental health providers, or to engage in a psychological evaluation, the department has been forestalled from determining accurately whether the mother is properly treating her mental health issues. The judge also was rightfully concerned that the mother is putting her sobriety at risk by refusing to devise a substance abuse relapse plan. The mother's mental health and previous substance abuse problems have had a direct effect on her ability to parent, and evidence demonstrating her unwillingness to address these issues fully supports a finding of unfitness that is likely to continue indefinitely. See Adoption of Ilona, supra at 60. The mother's refusal to provide information necessary for the department to assess Patton's safety while in her care likewise supports the likelihood of her future unfitness.
In addition, because the mother has failed to appreciate the extent of Patton's special needs and the necessity of his caretaker being willing and able to employ specific techniques in caring for him, the judge's concern that the mother struggles with implementing these special practices in a less structured setting is valid. The judge's findings regarding the mother's failings as to Patton's care "have ample support in the record and are not clearly erroneous." Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009).
The judge's detailed factual findings demonstrate that she paid close attention to the evidence presented at trial, and that the mother's "character, temperament, conduct, and capacity to provide for [Patton] in the same context with [his] particular needs, affections, and age" were sufficiently considered. Care & Protection of Laurent, 87 Mass. App. Ct. 1, 6 (2015), quoting from Adoption of Mary, 414 Mass. 705, 711 (1993). In addition, we conclude that each of the judge's conclusions of law was sufficiently supported by her subsidiary findings of fact. Adoption of Cesar, supra. As a result, the department met its burden of proving the mother's unfitness by clear and convincing evidence, see Adoption of Jacques, 82 Mass. App. Ct. at 606, and the judge did not abuse her discretion in determining that it is in Patton's best interests to terminate the mother's parental rights. Adoption of Ilona, 459 Mass. at 60.
The mother raises a "reasonable efforts" claim for the first time on appeal. To the extent the mother found the department's service plans insufficient, she should have raised her concerns with the department at that time. See Adoption of Eduardo, 57 Mass. App. Ct. 278, 281-282 (2003). When a parent believes the services offered by the department are inadequate, a claim must be raised "in a timely manner so that reasonable accommodations may be made." Adoption of Gregory, 434 Mass. 117, 124 (2001). There is no indication in this record that the mother did so. Ultimately, even if the efforts of the department fell short, it is the child's well-being that is of paramount concern. See Adoption of Ilona, 459 Mass. at 61 ("[E]ven where the department has failed to meet [its] obligation [to make reasonable efforts toward reunification], a trial judge must still rule in the child's best interest").
b. The father. The father does not challenge any of the judge's factual findings or conclusions of law, or the finding of his unfitness, or that the child is in need of care and protection. He also agrees with the department's recommendation of adoption by the paternal grandparents. His sole argument on appeal is that he was deprived of due process and the opportunity to defend against the termination of his parental rights, after he was informed by the department that the main focus of the trial would be the termination of only the mother's parental rights.
We disagree. First, the care and protection summons personally served on the father on February 19, 2014, includes language notifying him of the potential for the termination of his parental rights during the pendency of the care and protection proceedings, a live issue at the time of trial. See G. L. c. 210, § 3(b ). At trial, where he was represented by counsel, the father appeared and testified at length. This prior notice and the father's "opportunity to be heard at a meaningful time and in a meaningful manner" comported with his due process rights. Adoption of Zev, 73 Mass. App. Ct. 905, 905 (2009).
The language cited provides: "You are hereby notified that the court may dispense with your rights to receive notice of or consent to any legal proceedings affecting the adoption, custody or guardianship or any other disposition of the child(ren) named in the attached petition if the court finds that the child(ren) is/are in need of care and protection and that the best interests of the child(ren) would be served by terminating your rights to receive notice of or consent to any legal proceedings affecting the custody, guardianship, adoption or other disposition of the child(ren)." See G. L. c. 119, § 24.
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Second, prior to trial, the father indicated that it would be in Patton's best interests to "preserve the status quo" and remain in the care of the paternal grandparents, and that entering into an open adoption agreement with the paternal grandparents "is not off the table." The mother's counsel also reiterated that the proceeding was "a termination case whether or not [the father] has managed to align himself with the Department" and that the father's rights should be terminated if the judge found him unfit after all evidence was presented. These discussions, made in his attorney's presence, put the father on notice that "[a] trial on the merits can result in the termination of parental rights." Care & Protection of Orazio, 68 Mass. App. Ct. 213, 218 (2007). See G. L. c. 119, § 26 ; G. L. c. 210, § 3(c ).
Finally, it is a judge's duty, after a finding of unfitness, to enter a decree terminating the parental rights of a parent upon determining that the child is in need of care and protection and termination is in the best interests of the child. See G. L. c. 210, § 3(b ). Here, at the conclusion of the trial, the judge made exactly this determination. We see no error.
Decrees affirmed.