Opinion
20-P-900
06-07-2021
ADOPTION OF EAMON.[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 father of Eamon appeals from a decree of a Juvenile Court judge finding that the permanency plan proposed by the Department of Children and Families (department), adoption by Eamon's foster mother, served Eamon's best interests. Eamon's paternal grandmother (grandmother) appeals from an order denying her petition for guardianship. We affirm.
The parental rights of the mother were terminated in October 2018 after she failed to appear for trial. She has not appealed.
Background.
The department sought emergency temporary custody of Eamon in October 2015, one day after he was born. See G. L. c. 119, § 24. A judge granted emergency temporary custody to the department that day. At the time of Eamon's birth, the father did not know whether he was Eamon's biological father. His paternity was established when Eamon was about sixteen months old.
At times, the trial judge referred to the date of the petition as September 14, 2015. The department filed a petition concerning Eamon's older half-brother on that date; Eamon was subsequently added to the petition.
Eamon was born prematurely and substance exposed. He had significant health complications as a result, including supraventricular tachycardia (SVT), a condition that causes an abnormally fast heart rate. He also experienced respiratory issues and for a time received early intervention services. After Eamon was born, he remained in neonatal intensive care for about two months. When he was discharged from the hospital, the department placed him in the home of the foster mother, a registered nurse with the skills to care for children with complex medical conditions. The foster mother had visited Eamon regularly while he was in the hospital and was fostering Eamon's older half-brother at the time. The father and grandmother tried to visit Eamon once while he was in the hospital, but he had been moved. Eamon remained in the foster mother's care throughout the pendency of the petition. At the time of trial, in addition to seeing his pediatrician, Eamon was seeing several specialists for his medical conditions, including a cardiologist for his SVT, a neurologist to monitor the effects of a brain bleed discovered at birth, and an orthopedist.
At the time of trial, an evaluation determined that Eamon "presented with average cognitive, receptive, and expressive language . . . [and] fell within the average range of occupational and physical development," so he did not qualify for special education services. The foster mother requested a reevaluation, which was scheduled to occur in the fall of 2019.
Eamon's older half-brother, born to Eamon's mother, was placed briefly in the foster mother's care but was in his father's custody at the time of trial. Eamon has two younger half-siblings, also born to Eamon's mother: a half-sister, who was living with her adoptive family at the time of trial, and a half-brother, who was being fostered by the half-sister's adoptive family. At the time of trial, the foster mother was facilitating regular visits between Eamon and his younger half-siblings .
The goal for Eamon changed from reunification to adoption in July 2016, to reunification with his mother and father in March 2017, and again to adoption in February 2018. The grandmother, who first met Eamon when he was about six months old, asked the department for information about how to become a foster parent and completed a family resource application. The department did not process the application, however, because the grandmother was permitting the father to live with her at the time, rendering her application "ineligible automatically." She applied to be an adoptive resource for Eamon in February 2018, and her application was approved in April 2018. The foster mother also expressed interest in adopting Eamon in February 2018, and she was approved as an adoptive resource in August 2018.
The record is unclear whether the grandmother's inquiry came before or after paternity testing. The judge found that the grandmother spoke to the department about becoming a foster parent only after paternity had been established, which neither the father nor the grandmother contests.
In July 2018, the department identified the grandmother as Eamon's preadoptive parent and informed the foster mother of its intent to remove him from her home. The foster mother appealed the department's decision by requesting a fair hearing. See 110 Code Mass. Regs. § 10.06(4) (2014) (permitting foster parent to appeal removal of child from foster home in certain circumstances). The fair hearing officer found that while the department's decision to place Eamon with the grandmother aligned with the department's policy goals of "plac[ing] highest priority on identifying a family resource from within the child's kinship or community circle," Department of Children and Families, Family Resource Policy #2006-01 (July 8, 2008), the department "failed to adequately consider [Eamon's] individual needs in conjunction with" its own regulations. See 110 Code Mass. Regs. § 7.101(1) (d) (2009).
The father stipulated to the termination of his parental rights, waiving his right to a trial and to appeal from the termination, but reserving his right to participate in the trial and any appeal concerning Eamon's placement. The department informed the trial judge of the fair hearing officer's decision on the first day of trial and presented the foster mother as the department's proposed adoptive resource. The grandmother and the foster mother both filed petitions for guardianship, which were consolidated with the care and protection petition. See, e.g., Care & Protection of Thomasina, 75 Mass.App.Ct. 563, 574 & n.19 (2009). Trial proceeded as to Eamon's placement only. The father advocated for the grandmother's custody. The judge ultimately concluded that adoption by the foster mother was in Eamon's best interests.
The trial judge conducted a colloquy with the father and accepted his stipulation and waiver. See Adoption of Douglas, 473 Mass. 1024, 1025 n.6 (2016) (judge required to "determine that the stipulation was knowing and voluntary, that the parent is currently unfit, and that termination is in the child's best interests"). Because the decree terminating the father's parental rights had not entered when hearings on the "dispositional phase" began, he retained the right to participate. See Id. at 1025-1026.
The decision was issued the day before trial began and was not yet an official decision of the agency. See 110 Code Mass. Regs. 10.29(3) (2014). Under the department's regulations, the commissioner of the department had twenty-one days either to accept or overturn the decision of the fair hearing officer; if the commissioner did neither, the decision would become the final decision of the department. See Id. The commissioner did not act within twenty-one days, so the decision became final.
Eamon's position at trial was in favor of adoption by the foster mother, which is also his position on appeal.
Discussion.
When a judge makes a custody determination after finding a parent unfit, the "driving factor" is the best interests of the child. Adoption of Irene, 54 Mass.App.Ct. 613, 617 (2002). See G. L. c. 210, § 3 (c) . The judge is obligated to consider the plan proposed by the department and any placement proposed by a parent. See Guardianship of Tara, 97 Mass.App.Ct. 11, 13 (2020), citing Adoption of Cadence, 81 Mass.App.Ct. 162, 167 (2012); Adoption of Dora, 52 Mass.App.Ct. 472, 474-475 (2001). Where the parties propose competing permanency plans, "[t]he judge must perform a careful evaluation of the suitability of the plants] and must meaningfully . . . evaluate what is proposed to be done for the child" (quotations and citation omitted). Adoption of Helga, 97 Mass.App.Ct. 521, 528 (2020). See Adoption of Varik, 95 Mass.App.Ct. 762, 770 (2019). This requires "a 'careful evaluation of the suitability' of the plants]." Adoption of Dora, supra at 475, quoting Adoption of Lars, 46 Mass.App.Ct. 30, 31 (1998), S.C., 431 Mass. 1151 (2000).
To dispense with parental consent to adoption, a judge usually must conduct a "two-part analysis." Adoption of Varik, 95 Mass.App.Ct. 762, 766 (2019), quoting Adoption of Nancy, 443 Mass. 512, 515 (2005). The judge must first find a parent currently unfit, and then determine "that the child's best interests would be served by ending all legal relations between parent and child." Adoption of Varik, supra at 767. Here, because the father stipulated to the termination of his parental rights, the judge did not need to make "detailed written findings" regarding the father's fitness before making a determination as to the child's best interests. See Adoption of Douglas, 473 Mass. at 1025 n.6.
"A judge should provide an even handed assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan" (quotation and citation omitted). Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). This assessment requires a "decision based on all of the relevant facts. Troublesome facts, pointing to a conclusion contrary to that reached by the department or the judge, are to be faced rather than ignored." Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). See Adoption of Imelda, 72 Mass.App.Ct. 354, 365 (2008). Because "[t]he trial judge is ordinarily in the best position to consider and choose among the conflicting elements, . . . we do not disturb [the judge's] findings unless they are clearly erroneous." Adoption of Irene, 54 Mass.App.Ct. at 617. "We give deference to the judge's determination of the child's best interests, and we 'reverse only when there is a clear error of law or abuse of discretion.'" Adoption of Varik, 95 Mass.App.Ct. at 767, quoting Adoption of Cadence, 81 Mass.App.Ct. at 166.
The father and grandmother argue that the judge abused her discretion in concluding that adoption by the foster mother was in Eamon's best interests. Furthermore, the father contends that we owe no deference to the judge's findings. According to the father, the judge "ignored, overlooked or minimized" material evidence; failed to face "troublesome facts" about the foster mother; made "unfair, unreasonable and arbitrary" inferences that were not based on the evidence; failed to consider the impact of the fair hearing officer's decision, which determined the department's position at trial; and approved the plan of adoption by the foster mother without n adequate evidence that the plan was in Eamon's best interests. The grandmother makes similar claims, asserting that the judge did not conduct an even-handed assessment of the competing plans, did not pay close attention to the evidence, failed to consider the benefit of a kinship placement for Eamon, and gave undue weight to the fair hearing decision.
1. Findings of fact.
The father contends that the judge did not adequately address facts related to the foster mother's 2005 application to become a foster parent. The judge in fact did discuss this history, noting that the department had "some concerns" about the foster mother's first application, but also noting that the second time the foster mother applied "[s]he felt she was in a good place . . . and was more established in Massachusetts." The judge reasonably did not dwell on the department's reasons for denying the foster mother's nearly fifteen year old application, which was stale evidence of minimal relevance, superseded by ample evidence concerning the foster mother's present ability to care for Eamon. Cf. Adoption of Rhona, 57 Mass.App.Ct. 479, 485 (2003) (in finding mother unfit, judge improperly "relied on stale evidence [of drug use] to predict the mother's future behavior, while ignoring the more recent evidence of her sobriety").
The department denied the foster mother's first application to become a foster parent in 2005. She applied again almost a decade later, and in 2015 the department approved her application. The foster mother cared for dozens of children after being approved as a foster parent.
The father further faults the judge for failing to "express[] any skepticism" about the foster mother's inconsistent statements concerning the first application. To the extent these statements were relevant at all, they went to the foster mother's credibility, and it is well settled that "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993).
The father also contends that the judge's finding that the foster mother visited Eamon in the hospital fifteen times showed an inattention to the evidence, where the judge failed to reconcile the inconsistencies between the decision of the fair hearing officer and the testimony at trial about the frequency of the foster mother's visits. The evidence established that the foster mother made frequent visits to Eamon in the hospital, whatever the exact number. Even assuming that the judge's finding of fifteen visits was erroneous, this finding was "not central to the ultimate conclusion" concerning Eamon's best interests. Care & Protection of Olga, 57 Mass.App.Ct. 821, 825 (2003) .
The father and grandmother both challenge the judge's findings about the foster mother's ability to care for Eamon. To be sure, the foster mother was not perfect, as the judge recognized. The judge made detailed findings regarding the foster mother's response to two SVT episodes that occurred while Eamon was being weaned off the medication to treat the condition. This evidence did not render clearly erroneous the judge's finding that the foster mother "understands the signs and symptoms of an SVT episode and what to do if one occurs." Likewise, although a department social worker observed in April 2017 that the foster mother appeared "overwhelmed," the record supports the judge's finding that at the time of trial the department had "no concerns about [the foster mother's] ability to care for Eamon." In addition, the judge found that two G. L. c. 119, § 51A, reports had previously been filed against the foster mother, one of which was "screened out" and the other which was investigated and unsupported, further demonstrating that the judge did not ignore "troublesome facts." All things considered, abundant evidence supported the judge's determination that the foster mother, a pediatric nurse, had "attended to all of Eamon's needs and has kept him medically up to date despite the complexity of his medical and developmental struggles."
The judge acted well within her broad discretion to credit the opinion of the department's social worker, who had worked with the family for a relatively short time, concerning the foster mother's ability to care for Eamon. See Custody of Eleanor, 414 Mass. at 799.
The judge did not err in finding and taking into account that the grandmother had limited involvement in Eamon's life before the father was determined to be Eamon's biological father. The grandmother did not become a consistent presence in Eamon's life until he was over one year old, when regular visitation began. She did not apply to become an adoptive resource until February 2018, when Eamon was almost two and one-half years old, after the father's paternity had been established and Eamon's goal had again changed to adoption.
The father and grandmother further challenge the judge's findings concerning the grandmother's "ability to set boundaries" between the father and Eamon, especially findings that the grandmother permitted unauthorized visits between them. According to the father, the judge "glosse[d] over the fact that the only 'evidence' that Father saw [Eamon] during [the grandmother's] visits with the child were representations by [the foster mother] that the child told her so." The record, however, supports the judge's findings. Eamon's adoption social worker testified that while Eamon never told her that he saw his father at the visits, and while she saw no evidence during home visits that the father was living with the grandmother, she nonetheless had concerns about unauthorized visits. The grandmother claimed that Eamon confused his father with his uncle, the grandmother's other son, even though the uncle's "buzz-cut" hairstyle was different from the father's; the judge specifically did not credit this explanation. Given "the trial judge's superior position to evaluate witness credibility and weigh the evidence," Adoption of Cadence, 81 Mass.App.Ct. at 166, we defer to the judge's assessment of the evidence concerning the allegations of unauthorized visits. The findings were not clearly erroneous.
In addition, the father used the grandmother's address as his permanent address.
Furthermore, the record included other evidence that the grandmother exercised poor judgment with respect to the father. The day the father was released from the house of correction, before picking him up from the facility, the grandmother retrieved a pillbox containing what she believed were his prescription medications, placed the pillbox in a bag with his other belongings, and put the bag in her car. She and the father stopped for lunch before going to the probation office. The father tested positive for substances (suboxone) and was reincarcerated. The adoption social worker also testified about the department's previous concerns about the grandmother's ability to set boundaries, although she conceded that those concerns had dissipated by the time the grandmother was identified as a preadoptive resource.
The judge did not overlook evidence of the grandmother's training and experience as a foster parent. To the contrary, the judge found that the grandmother was serving as a foster parent, at the time of trial, to a child with complex medical conditions.
On the whole, the father's and grandmother's arguments "amount to no more than a disagreement with the judge's weighing of the evidence." Adoption of Don, 435 Mass. 158, 166 (2001). See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997) (rejecting arguments that "amount[ed] to no more than dissatisfaction with the judge's weighing of the evidence and his credibility determinations"). "We do not sit as a trial court to review de novo the evidence presented by the parties." Adoption of Don, supra, quoting Adoption of Paula, 420 Mass. 716, 730 (1995). Nothing in the judge's findings, which "display satisfactorily the degree of close and careful attention to the evidence that is demanded in cases of this nature," Adoption of Iris, 43 Mass.App.Ct. 95, 101 (1997), £3.C., 427 Mass. 582 (1998), suggests that the judge failed to review any of the documentary evidence or testimony before her, or that she did not conduct an even-handed assessment of the competing permanency plans. We will not disturb the judge's findings merely because her view of the evidence did not align with that of the father or the grandmother.
2. Fair hearing decision.
The father and grandmother both challenge the judge's treatment of the decision of the fair hearing officer, which precipitated the department's decision to present the foster mother as Eamon's preadoptive parent. The grandmother contends that the judge gave undue weight to the decision of the fair hearing officer, who concluded that the department's identification of the grandmother as Eamon's preadoptive parent and decision to remove him from the foster mother's home did not comply with its regulations. Nothing in the judge's findings suggests that she gave any weight to the decision. Indeed, the only finding about the fair hearing officer's decision was a factual explanation of the department's change in position.
Conversely, the father contends that the judge failed to consider the influence that the fair hearing decision had on the department's decision to support adoption by the foster mother rather than the grandmother. We discern no error. The judge was required to conduct an even-handed assessment of the department's plan, the plan proposed by the father, and the two guardianship petitions -- none of which was entitled to "any special weight," Adoption of Hugo, 428 Mass. at 226 n.8 -- and then to make a custody determination based on the child's best interests. See Adoption of Helga, 97 Mass.App.Ct. at 528. The judge was correct not to inquire into the department's motives. "Other agendas or influences, to the extent that they do not bear on the child's best interests, have no place in the calculus." Adoption of Irene, 54 Mass.App.Ct. at 617.
3. Best interests.
Finally, the father and grandmother challenge the judge's ultimate determination that adoption by the foster mother was in Eamon's best interests. This determination, of course, is a "classic example of a discretionary decision" to which an appellate court accords "substantial deference" (quotation and citation omitted). Adoption of Hugo, 428 Mass. at 225.
The father and grandmother contend that the judge failed to consider the grandmother's bond with Eamon or the benefit to Eamon of a kinship placement. In fact, the judge acknowledged many of the positive aspects of the grandmother's relationship with Eamon, finding that the grandmother regularly visited with him, that she engaged in appropriate activities with him during visits, that the frequency and duration of the visits increased over time, that he appeared comfortable in her home and referred to her as "Nana," that he ran to her at the start of visits, and that he had trouble separating at the end of visits.
In determining that adoption by the foster mother was in Eamon's best interests, however, the judge also properly considered the evidence of Eamon's "secure attachment" and "bond" to the foster mother, as well as evidence that separation would be "traumatic for him and potentially detrimental to his ability to learn and develop." Evidence of a positive bond with a substitute care giver, and the harms that would flow from severance of those bonds, are important considerations. See G. L. c. 210, § 3 (c0 (vii); Adoption of Katharine, 42 Mass.App.Ct. 25, 29-31 (1997); Adoption of Nicole, 40 Mass.App.Ct. 259, 262-263 (1996). In assessing parental fitness, where parents' fundamental and constitutionally protected rights to retain custody of their children is at risk, judges must exercise caution in emphasizing bonding with substitute caregivers. See Adoption of Katharine, supra at 30-31. In such cases, "[a] comparison of the advantage the prospective custodian may offer to the child with those that may be offered by the [biological] parents is inappropriate." Custody of a Minor, 389 Mass. 755, 765 (1983). Here, where the father had stipulated to termination of his parental rights, the only task before the judge was to assess the comparative advantages and disadvantages of the placement options in consideration of Eamon's best interests.
It was within the judge's decision to credit the testimony of the foster mother's expert witness, a child psychologist, who testified about Eamon's attachment to the foster mother. While it is true that the child psychologist had never observed Eamon interact with the grandmother and did not know the extent of their attachment to one another, these facts go to the weight and credibility of the expert's testimony, subjects reserved for the trial judge. See Custody of Eleanor, 414 Mass. at 799.
The father and grandmother also challenge the judge's conclusion that a transition out of the foster mother's home would be traumatic to Eamon because of his special needs. Although an evaluation prior to trial determined that Eamon had "average cognitive, receptive, and expressive language," and that he did not qualify for special education services, see note 4, supra, the record nonetheless shows that his needs were highly particular. The judge properly considered these needs in determining whether the foster mother's continued custody of Eamon was in his best interests.
Although the department's policies and regulations prioritize maintaining a child's relationship with kin, none creates "an absolute priority for biological relatives." Adoption of Irene, 54 Mass.App.Ct. at 617. "A biological and/or a cultural match between child and caretaker is a desirable aim; but it is a single factor among many. It cannot be permitted to generate a placement decision that is not otherwise in the child's best interests." Adoption of Zak, 87 Mass.App.Ct. 540, 545 (2015), quoting Adoption of Irene, 54 Mass.App.Ct. at 622-623.
In consideration of all the evidence, the judge concluded that adoption by the foster mother, rather than guardianship by the grandmother, served Eamon's best interests. We discern no reversible error or abuse of discretion. See Adoption of Oren, 96 Mass.App.Ct. 842, 847-848 (2020) .
Conclusion.
The decree finding that the department's plan of adoption of Eamon by the foster mother was in Eamon's best interests, and the order denying the guardianship petition of the grandmother, are affirmed.
So ordered.
The panelists are listed in order of seniority.