Opinion
22-P-202
02-01-2023
ADOPTION OF POPPY (and four companion cases[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
The mother appeals from decrees issued by a Juvenile Court judge pursuant to G. L. c. 210, § 3, terminating her parental rights to the five children who are involved in these proceedings. The father appeals from decrees terminating his parental rights to the four eldest children. The mother raises three arguments on appeal. She first argues that the trial judge failed to find a substantial nexus between, on one hand, the mother's mental health diagnoses and substance use disorder, and on the other, her ability to care for her children. Second, she argues that the Department of Children and Families (DCF) failed to make reasonable efforts to reunify the family. Finally, she argues that the trial judge failed to provide her with adequate postadoption visitation with her children. The father raises two arguments. First, that the trial judge failed to make specific and detailed findings regarding his history of substance abuse and domestic violence. Second, that the trial judge failed to evaluate his parental capacity at the time of trial. As we describe below, each argument is without merit. We address these arguments in turn.
No father is listed on the youngest child's birth certificate.
"To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's 'best interests will be served by terminating the legal relation between parent and child.' Adoption of Ilona, 459 Mass. 53, 59 (2011). We give substantial deference to the judge's findings of fact and decision, and will 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 Luc, 484 Mass. 139, 144 (2020).
1. Mother.
The mother's first argument is that the nexus between the mother's mental health diagnoses and substance use disorder and her ability to care for her children was not sufficiently established.
As a preliminary matter, the mother's mental health challenges are "relevant only to the extent" that they affect her "capacity to assume parental responsibility." Adoption of Luc, 484 Mass. at 146. As the Supreme Judicial Court recognized in Adoption of Luc, "[c]ountless children have thrived while in the care of parents facing mental health challenges." Id. at 146 n.17. But here, as in Adoption of Luc, the concern for the children "is not that the mother has mental health challenges, but that those challenges remained largely unaddressed, and even unacknowledged," to the children's severe detriment. Id. The trial judge found that the mother was diagnosed with bipolar disorder, psychosis, posttraumatic stress disorder, depression, and anxiety, and that the mother's mental health challenges prevented her from being present in the lives of her children. The mother was hospitalized for mental health issues in March 2015, March 2016, November 2018, September 2020, March 2021, June 2021, and July 2021. Prior to the removal of the children, the mother's complex mental health issues often resulted in her sleeping and leaving the children unsupervised. The trial judge found that when the mother was awake at home, the mother's behavior was erratic and indicative of her mental health struggles. During a social worker's home visit in April 2018, the mother was observed to be "erratic, upset, and screaming." A mattress had been flipped over, the bedding had been ripped open, a couch had been flipped over, a window from the apartment to the outside had been barricaded with a stick, and the children were crying. The mother told the social worker that there was a teenager in the home that was hiding, but the trial judge found that no evidence was presented that someone was, in fact, hiding in the home. The mother also accused the social worker of sleeping with the father. The mother was subsequently taken to the hospital while a friend took the children.
In her discussion of the mother's mental health challenges, the trial judge also relied on the mother's poor engagement with mental health treatment. A parent's "unwillingness to adhere to DCF's service plan, which required [the parent] to obtain treatment for her mental health challenges and substance use disorder, is 'relevant to the determination of unfitness.'" Adoption of Luc, 484 Mass. at 147, quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). The trial judge found that the mother frequently denied the need for therapy. While at the time of the trial, the mother was taking medication and attending therapy for her mental health issues, the judge found that both her attendance at therapy and her use of medication were inconsistent. Indeed, prior to being hospitalized in March 2021, the mother had stopped taking her medications without any consultation with a medical professional. Based on the mother's failure to address her mental health challenges and their impact on the children, the trial judge did not err in concluding that there was a sufficient nexus established between the mother's mental health diagnoses and her ability to care for her children.
The mother's challenge to the nexus between her substance use disorder and her capacity to care for her children must also fail. The mother tested positive for drugs -- including cocaine, Percocet, fentanyl, and marijuana -- at the births of three of the subject children. She admitted that, while pregnant with her youngest child, she had smoked marijuana laced with cocaine and that she also used heroin. It was continuously recommended to her that she seek inpatient treatment, and she continuously refused. See Adoption of Luc, 484 Mass. at 147 ("the parent's willingness to engage in treatment is an important consideration in an unfitness determination where the substance dependence inhibits the parent's ability to provide minimally acceptable care of the child"). The trial judge found that during a home visit in August of 2018, the social worker observed the mother to be under the influence and slurring her words, unable or unwilling to answer the social worker's questions. In July of 2019, the mother missed a visit with her children because she overdosed on suboxone. Despite all this, the mother testified that she did not have any drug addiction issues. Based on this evidence, we cannot say that the trial judge erred in finding a substantial nexus between the mother's substance use disorder and her ability to care for her children. See Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008). Accordingly, it was not error for the trial judge to find the mother permanently unfit on the basis of her mental health challenges and substance use disorder.
Next, the mother argues that DCF failed to make reasonable efforts to reunify the family. She raises this argument for the first time on appeal. In Adoption of Yalena, 100 Mass.App.Ct. 542, 554 (2021), we held that such arguments "must be raised in a timely manner to provide the judge and [DCF] the opportunity to make accommodations while the case is pending." "[T]he mother did not raise this claim in the Juvenile Court, and therefore, it is waived." Id.
Even if it were preserved, the argument is ultimately meritless. DCF sought permanency through reunification for the four older children from August 2018 until February 2019, and for the youngest child from May 2019 until September 2019. During this time, DCF provided the mother with a detailed action plan that included eleven distinct tasks. The trial judge correctly noted that "[DCF]'s obligation to use reasonable efforts towards reunification is contingent on Mother's and Father's responsibility to seek and engage in services." See Adoption of Yalena, 100 Mass.App.Ct. at 554 ("The department's obligation to make reasonable efforts to reunify the child with the mother is contingent upon her obligation to substantially fulfill her parental responsibilities [including seeking and using appropriate services]"). The trial judge found that the mother was noncompliant with her action plan. She attended therapy only sporadically, regularly told her social worker she did not need therapy, and repeatedly rejected DCF's recommendation that she utilize inpatient treatment. She continued to deny that she struggled with a substance use disorder and responded only infrequently to DCF's consistent outreach regarding service referrals. The mother notes that DCF was slow to modify her action plan to reflect the removal of the children. While we do not approve this, prior to the action plan's modification the mother remained noncompliant with important requirements of her extant plan that were unaffected by the children's removal, including consistent attendance at therapy, undergoing a neuropsychological evaluation, and providing DCF with documentation confirming her treatment by care providers. We also are concerned that by her own admission, the mother's DCF social worker was not aware of the availability of homemaking services that might assist her clients. The important role DCF plays with respect to children in this Commonwealth, and the courts' continued deference to that agency, require evidence of the proper training and supervision of its personnel. Nonetheless, we find that the trial judge did not err in concluding that in this case DCF made reasonable efforts to reunify the family.
Finally, the mother argues that the trial judge failed to provide adequate postadoption visitation. We disagree. The trial judge ordered two postadoption visits per year between the mother and each of the four eldest children, and that postadoption contact "may be expanded at the discretion of the adoptive parent/s." The judge left "post-termination and postadoption contact for [the youngest child] with Mother . . . to the discretion of [DCF] and any adoptive parent, based on his best interests at the time." The mother insists that monthly visits would strike a better balance between supporting the mother's bond with the children and the adoptive parents' ability to act in the children's best interests.
However, the focus of postadoption visitation orders "is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 564-565 (2000). And the trial judge must bear in mind the "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.
Here, there was no opportunity for a significant bond to develop between the mother and the youngest child. The judge noted that at several supervised visits that occurred between the mother and the youngest child, the child cried and asked for his foster parents. Accordingly, it was within the trial judge's discretion to refrain from ordering postadoption visitation between the mother and the youngest child. See Adoption of Rico, 453 Mass. 749, 756 (2009). With regard to the four older children, having concluded that postadoption visitation with the mother would be in their best interests, the judge did not abuse her discretion in failing to order monthly visits. The mother provides no concrete reason as to why monthly visits are more appropriate, beyond the fact that there would simply be more of them, and we discern no valid reason to invade the trial judge's broad discretion in these matters. See id. ("Nor is there dispute that a judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter").
2. Father.
The father argues that the trial judge failed to make specific findings as to his history of substance abuse and domestic violence and that these issues had abated by the time of trial. We disagree.
The trial judge properly relied on the father's substance use disorder in determining that he was permanently unfit.
Between June 2019 and December 2020, the father was absent from the lives of the children and failed to communicate with DCF at all. The trial judge found that when the father finally returned DCF's call in December of 2020, he admitted that he had turned to using substances, was using drugs, and was living on the streets after being evicted from the family home. The trial judge further found that the father failed to follow his action plan and cooperate with DCF regarding treatment. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). The father did not provide any information to DCF demonstrating his participation in therapy, his sobriety, or the performance of a neuropsychological evaluation, as was required by his action plan. Additionally, the father did not attend trial. The trial judge drew a negative inference from his absence, finding that the father "would be unable to rebut the adverse evidence introduced by [DCF] and the children with his own testimony." See Custody of Two Minors, 396 Mass. 610, 616 (1986). The father argues on appeal that he was twenty months sober at the time of trial, but nothing in the record supports this assertion. We conclude that the trial judge did not err in her consideration of the father's substance abuse.
The trial judge also relied on the father's history of domestic violence in her unfitness determination. She found that in June of 2018, a police officer observed the father repeatedly striking one of his children. The child began crying after four or five strikes. The father was arrested and held on a charge of assault and battery on a family member. He pleaded guilty and was given an eighteen-month suspended sentence. The father violated parole and had an active warrant for his arrest at the time of trial. The father appears to argue that because the domestic violence was directed "to a child, not Mother or another partner," the violence is somehow of less relevance. We disagree. This was violence against a child that is a subject of this petition. The trial judge did not err in her consideration of this evidence. See Guardianship of a Minor, 19 Mass.App.Ct. 333, 336 (1985) ("Incompetence as a parent, expressed by neglect, abuse, violence, indifference, or absence of feeling toward the child, is certainly a form of unfitness").
Finally, the father's argument that the trial judge's ruling did not reflect his situation at the time of trial is without merit. In addition to his claim that he was sober for twenty months, the father claimed that he had completed sobriety treatment and separated from the mother. But the father's claims lack record support. And while the father asks that we "infer" facts beneficial to his argument, such as the date he completely separated from the mother, this would contradict the trial judge's decision to instead draw a negative inference from the father's absence at trial. We see no reason to depart from that inference and accordingly, find no error in the trial judge's conclusion as to the father's permanent unfitness.
Decrees affirmed.
Rubin, Massing & D'Angelo, JJ.
The panelists are listed in order of seniority.