Opinion
23-P-1169
07-08-2024
ADOPTION OF WALEED. [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 trial, a Juvenile Court judge found the mother unfit to parent the child, Waleed, terminated her parental rights, and approved the adoption plan of the Department of Children and Families (department). The judge also denied the mother's motion for postjudgment relief (motion). In this appeal from the decree and order denying the motion, the mother claims that the department failed to prove her unfitness by clear and convincing evidence, that the judge erred in approving the adoption plan, and that her due process rights were violated. We affirm.
The father stipulated to his unfitness and to the termination of his parental rights. He is not a party to this appeal, but he did testify at trial.
Background.
The mother and father have known one another since 2013 and began a relationship in 2015. Waleed was born in July 2016. The department first became involved with the mother prior to Waleed's birth when a report was filed pursuant to G. L. c. 119, § 51A (§ 51A report), involving the mother's older child.
The older child is in the custody of his biological father and is not a subject of this appeal.
In December 2015, a § 51A report was filed that alleged that the mother, who was eleven weeks pregnant with Waleed, was smoking cocaine. A § 51A report filed in March 2016 alleged that the mother was using crack and heroin while pregnant. After Waleed's birth, additional § 51A reports were filed related to the parents' substance use, concerns about Waleed's medical care, and domestic violence. In January 2018, a § 51A report was filed that alleged both parents were using heroin. Both parents were subject to random drug screens. In April 2018, a § 51A report was filed when police responded to the parents arguing over a crack pipe. In November 2018, additional § 51A reports were filed concerning bruises on the mother, substance use, and allegations that Waleed was left alone outside without any clothes on and that the electricity in the apartment was shut off. Another § 51A report was filed that alleged that the mother used her neighbor's urine for a drug test. Thereafter, the mother signed an emergency service plan which provided that the father could not stop by, visit, or live in the mother's apartment until the department deemed it safe for him to do so. In December 2018 and January 2019, three § 51A reports were filed that alleged that the mother continued to allow the father into her home and that she left Waleed in his care. The reports were screened out.
It was alleged that Waleed missed regular pediatrician appointments and was behind on immunizations.
In February 2019, the mother obtained an abuse prevention order (209A order) against the father, alleging physical abuse between 2015-2019. Specifically, the mother stated that, in 2015, the father choked her while she was pregnant with Waleed until she seized and had trouble breathing. She also stated that the father attacked her multiple times between May 2018 and February 2019, culminating in a February 2019 incident where the father threw her on the bed and strangled her.
The 209A order was extended and in effect until the mother voluntarily dismissed it in July 2019. Both the mother and the father testified at trial that the mother's affidavit filed in support of her complaint for a 209A order was false. They provided alternative explanations as to why the mother sought the 209A order, none of which the judge credited.
Two months later, a § 51A report was filed that alleged that the mother dropped Waleed off at a relative's home to care for him for five days while she had surgery. The reporter stated that Waleed was dropped off with dirty clothes, six diapers, and no wipes, and the mother only called once and her whereabouts were unknown. The § 51A report was supported. The department conducted an emergency removal of Waleed and subsequently filed a care and protection petition. After receiving temporary custody, the department placed Waleed in a kinship foster home. Among other things, the department created an action plan for the mother to reunify with Waleed.
Waleed had significant behavioral issues and as a result was moved to several foster homes before being placed in a comprehensive foster care home in November 2019. At the time of trial, Waleed had made "significant progress" in his comprehensive foster care placement.
As part of that plan, the mother completed a parenting course, additional courses on parenting and child development, domestic violence counselling, and worked with individual therapists on anger management. At trial, the mother testified that she was sober and last used cocaine in October 2020. Her drug tests were negative except for THC and methadone.
Shortly after Waleed's removal, the father was arrested for violation of the 209A order and larceny from the mother. He was incarcerated for 120 days for violating the 209A order. Around that time, the mother moved into a tent until she moved into a new apartment with the father in November 2019. The mother and the father had several disputes with their neighbors over money and the father's maintenance of the apartment building (the landlord allowed the father to do maintenance in lieu of rent). The pair presented as a couple through May 2021 when, at a foster care review, the department informed the mother that the father had a positive drug screen and that she must end her relationship with him in order to reunify with Waleed. The mother told the department that she broke up with the father and that he had moved out of the apartment in June 2021, though the two remained in contact.
In June 2020, the department had changed the goal from reunification to adoption based on, among other things, the mother's minimization of domestic violence, including listing the father as a support on her safety plan. The mother also refused to provide a full release to the department about the services she was receiving. A permanency planning conference was held in July 2021 to discuss changing the goal back to reunification given the mother's progress on her action plan tasks. The department informed the mother that given the father's ongoing substance use and noncompliance with his action plans, she would need to cease contact with him.
After that conference, the social worker saw the father at the mother's apartment in October and November 2021. The father testified that he used the mother's address as pickup location for his methadone clinic appointments. Additionally, the father continued doing maintenance at the mother's apartment building until five weeks before trial and testified that he had been in the mother's apartment "a handful" of times since he moved out. The mother's neighbor testified that he and other neighbors heard the parents arguing in the apartment through January 2022. In sum, as the judge found, the mother was dishonest about her relationship with the father and was unwilling or unable to separate from him.
The mother's unfitness.
"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" (citation omitted). Adoption of Oren, 96 Mass.App.Ct. 842, 844 (2020). On appeal, "[w]e give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, 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).
"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). When determining parental unfitness, a judge's decision is not "a moral judgment or a determination that the mother and father do not love the child." Adoption of Bianca, 91 Mass.App.Ct. 428, 432 n.8 (2017). Rather, the judge must determine "whether the parents' deficiencies or limitations 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Id., quoting Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
The mother argues that the judge's finding of unfitness was not supported by clear and convincing evidence because she credited evidence from the mother's neighbor about the mother's ongoing contact with the father and failed to give proper consideration to evidence of the mother's sobriety and engagement with services. We are not persuaded.
The judge's findings, which find ample support in the record, reflect a lengthy history of violence between the parents beginning before Waleed's birth, culminating in the mother obtaining a 209A order against the father following an incident where he strangled her. While no single factor is determinative of parental unfitness, see Care & Protection of Yetta, 84 Mass.App.Ct. 691, 695 (2014), it is well settled "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), "and instances of such familial violence are compelling evidence for a finding of parental unfitness," Adoption of Talik, supra.
The mother argues that the department relied on stale evidence and was "unable to produce evidence of any incidents after 2019, save the vague and uncorroborated testimony of" the mother's neighbor. As discussed in detail infra, the judge did not err in crediting the neighbor's testimony about the mother and the father's relationship since 2021. Furthermore, a "past pattern of behavior is . . . not irrelevant; it has prognostic value." Adoption of Abigail, 23 Mass.App.Ct. 191, 196 (1986). The judge also found that the mother "did not understand the safety risk to her through her continued contact with Father" despite the mother's engagement with domestic violence programming as part of her action plan.
The mother contends that the judge should not have credited the neighbor's testimony due to the history of disputes between them. "We accord deference to a trial judge's assessment of the credibility of witnesses and the weight of the evidence" unless they are clearly erroneous. Adoption of Olivette, 79 Mass.App.Ct. 141, 157 (2011). The neighbor's account of the parents' ongoing contact and the judge's finding that the "Mother . . . is unable or unwilling to detach herself and sever the relationship with Father" find ample support in the record.Both the father and the mother also testified that they continued to stay in contact after informing the department that they had broken up. Additional evidence of the ongoing relationship included the judge's finding that the parents shared a food stamp debit card and exchanged it in person at the mother's home, most recently on the night before the mother's testimony.
The judge credited the testimony of the mother's neighbor that he saw the father in the mother's apartment as recently as January 2, 2022, and that he heard the parents using "profanity and screaming at each other" around 5:20 A.M. many days before the father was picked up by the van for the methadone clinic. The neighbor also testified that he heard the father return to the mother's apartment in the evenings and that he heard the father say "love you babe" on some occasions before leaving.
Records from a van company used for the father's transportation to and from a methadone clinic reflect that he was picked up and dropped off nearly every day at the mother's address between July 1, 2021, and December 26, 2021, which corroborated the neighbor's testimony.
The mother also argues that the judge failed to consider her progress on her action plan and her two years of sobriety. "A judge whose order will have the effect of irreversibly terminating the legal parent-child relationship must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child who is the subject of the petition." Adoption of Paula, 420 Mass. 716, 731 (1995). Here, the judge's findings demonstrate that she carefully considered evidence of the mother's sobriety, living situation, and substantial compliance with her action plan tasks. She found that the mother was able to "apply learned concepts [from anger management sessions] to hypothetical situations" and "was able to articulate some concepts that she learned in domestic violence counseling." Critically, however, the judge found that the mother did not consistently apply what she learned in her interactions with the department or in regard to the father. Despite her acknowledgement of past domestic violence and the father's continued substance use and noncompliance with the department, the mother maintained contact with the father, and she continued to express a desire to coparent with him going forward. A parent's failure to benefit from services is "relevant to the determination of unfitness" (citation omitted). Adoption of Ulrich, 94 Mass.App.Ct. 668, 677 (2019).
The judge also found that the mother's ongoing mental health needs and continued contact with the father would affect her ability to parent Waleed, who had "significant behavioral issues" including displaying aggression towards himself and others. Although separate inquiries, "the parental unfitness test and the best interests of the child test are not mutually exclusive, but rather reflect different degrees of emphasis on the same factors." Adoption of Lisette, 93 Mass.App.Ct. 284, 293 (2018). A finding of unfitness "requires careful consideration, reflecting the unique facts present in each case, of the capacity of the parents to care for the child." Id. Here, the judge found that the mother's "own emotional regulation difficulties . . . have not been adequately addressed" and that the mother is "not prepared to support [Waleed] through a transition back to her home" in light of his particular needs. See Adoption of Oliver, 28 Mass.App.Ct. 620, 626 (1990) (ability of parent to meet child's specialized needs is part of fitness analysis). Although we recognize, as did the trial judge, the mother's progress on her sobriety and mental health since Waleed's birth, the judge's ultimate finding of unfitness was supported by clear and convincing evidence.
Adoption plan.
The mother next claims that the judge erred in terminating her parental rights because the department did not present an adoption plan for Waleed. "In determining the best interests of the child, the judge must consider, among other things, 'the plan proposed by the department.'" Adoption of Varik, 95 Mass.App.Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c). "The law does not require that the adoption plan be fully developed in order to support a termination order, but it must provide sufficient information about the prospective adoptive placement so that the judge may properly evaluate the suitability of the department's proposal" (quotation and citation omitted). Adoption of Varik, supra.
The social worker testified that "the plan for [Waleed] is adoption," and that his foster parents had identified themselves as a preadoptive home. She further detailed that, as a comprehensive foster home, Waleed's foster parents had "special training in dealing with children with more difficult needs." Based on this evidence, the judge found that Waleed had "made significant progress in his current placement," and that his foster parents provided "a structured home life."
The mother argues that because the department was also considering the mother's brother as a potential adoptive resource, the judge could not have evaluated whether the department's proposed placement was in Waleed's best interests."A fully developed adoption plan, while preferable, is not an essential element of proof" in a care and protection case brought by the department (citation omitted). Adoption of Xarissa, 99 Mass.App.Ct. 610, 623 (2021). Rather, the department must "specify the type of adoptive parents and the characteristics of the home environment best suited to meet [the child's] specific needs." Adoption of Varik, 95 Mass.App.Ct. at 771. Here, there was substantial evidence about Waleed's behavioral needs and diagnoses, his difficulties with transitions and instability, and the progress he had made in his current foster home. Based on Waleed's progress in his current placement, the judge found that he had "substantial needs that require extraordinary attentiveness on the part of his caregiver(s)." This finding, viewed together with the judge's decision on the motion that "the plan was for adoption with the foster parents," permits the conclusion that the department's plan more then met the requirements of G. L. c. 210, § 3 (c). See Adoption of Xarissa, 99 Mass.App.Ct. at 623 (adoption plan was sufficient where department detailed child's diagnoses and treatment and specified postadoptive resources needed to satisfy child's best interests). Contrast Adoption of Dora, 52 Mass.App.Ct. 472, 474-475 (2001) (plan insufficient where two "excellent" plans were presented, and judge left choice of plan to department). While a clearer articulation of the department's plan at trial would have been preferable, there was sufficient evidence regarding Waleed's needs for his future adoptive placement for the judge to find the department's plan was in his best interests.
An Interstate Compact on the Placement of Children home study of the mother's brother was pending at the time of trial. He indicated his willingness to serve as an adoptive resource should Waleed not be returned to the mother. Although the mother expressed a preference that Waleed be placed with her brother should her rights be terminated, she does not contend that this was a competing plan. Compare Adoption of Dora, 52 Mass.App.Ct. 472, 475 (2001).
Waleed has a significant speech delay for which he receives therapy, is diagnosed with attention deficit hyperactivity disorder, and is on an individualized education plan.
Due process.
Finally, the mother argues that her due process rights were violated because there was no valid adoption plan presented during trial, and therefore, she was denied the right to participate in placement decisions prior to termination. "Until parental rights have been terminated . . . parents have the right to participate in proceedings to determine issues such as placement and visitation arrangements concerning their children." Adoption of Douglas, 473 Mass. 1024, 1025 (2016). As discussed supra, the department presented sufficient evidence of "the type of adoptive parents and the characteristics of the home environment best suited to meet [Waleed's] specific needs" and the abilities of the foster parents to meet those needs. Adoption of Varik, 95 Mass.App.Ct. at 771. The mother fully participated in the trial and expressed her preference that Waleed be placed with her brother if her parental rights were terminated. Where the mother had "notice and an opportunity to be heard" (citation omitted), Adoption of Yvonne, 99 Mass.App.Ct. 574, 584 (2021), her due process rights were satisfied.
Conclusion.
We affirm the decree terminating the mother's parental rights and the order denying the motion for relief from judgment.
So ordered.
The panelists are listed in order of seniority.