Opinion
20-P-1080
07-01-2021
ADOPTION OF JOSIE (and a companion case[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
Following a bench trial, a Juvenile Court judge concluded that Josie and Sarah (girls) were in need of care and protection, that the mother was unfit to parent them, and that termination of the mother's parental rights was in the girls' best interests. Decrees entered terminating the mother's parental rights and dispensing with the requirement that she consent to adoption. On appeal, the mother principally argues that (1) the judge erred in finding that the mother was unfit to parent the girls, (2) the Department of Children and Families (department) failed to make reasonable efforts to reunify the mother and the girls, and (3) the judge abused her discretion in failing to order posttermination visitation. A third sibling, Robert (a pseudonym), argues that the judge abused her discretion in ordering only two in-person sibling visits per year. We affirm.
An identical decree entered with respect to Josie's father, who did not appear for trial and has not filed an appeal. No decree entered with respect to Sarah's father because his case was bifurcated from the mother's during the trial.
Procedural background.
In June 2017, four years after the girls and their older brother Robert were removed from the custody of the mother, the department permitted the girls to move to North Carolina with their foster mother. Thereafter, the department filed a motion for review and redetermination, seeking to terminate the mother's parental rights as to the girls. See G. L. c. 119, § 26. The mother filed a motion requesting (1) a finding that the department had abused its discretion in allowing the girls to move, and (2) an order compelling their return to Massachusetts. After an evidentiary hearing, a Juvenile Court judge agreed that the department had abused its discretion in permitting the girls to move to North Carolina, reasoning that the move "did not conform to [the department's] permanency planning policy, placement policy, or its statutory imperative to use reasonable efforts to preserve biological ties between [the mother] and [the girls]." However, the judge declined to order the girls' return to Massachusetts, concluding that separating them from the foster mother with whom they had lived for four years was not in their best interests. The judge did enter a remedial order requiring, among other things, that the department (1) arrange at least one visit per month of at least two hours between the mother and the girls, (2) "seek a clinical consult" as to whether electronic communication with the mother served the girls' best interests, and (3) defer to the girls' therapists and clinicians regarding family therapy.
The department did not seek review and redetermination with respect to Robert.
The review and redetermination trial began in May of 2018 and ended in October 2019. In a comprehensive written decision, the judge found the mother unfit to parent the girls and that termination of the mother's parental rights was in the girls' best interests. The judge also approved the department's plan for adoption by the girls' foster mother. The judge declined to order posttermination visitation with the mother, leaving that decision to the discretion of the department and the foster mother. However, the judge did order biannual in-person visits and monthly telephone contact between the girls and Robert.
Factual background.
We summarize the judge's pertinent findings of fact, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). The mother suffers from posttraumatic stress disorder (PTSD), depression, and anxiety, due, in large part, to domestic violence she experienced during her relationships with the fathers of Robert, Josie, and Sarah. Panic attacks prevented her from using public transportation and flashbacks disturbed her sleep. She did not work and frequently slept during the day. Consequently, the mother missed numerous appointments with mental health clinicians and therapists.
In January 2013, the department filed a petition alleging that Robert, then seven years old, and the girls, who were two and five at the time, were children in need of care and protection. Aside from the children's ongoing exposure to Sarah's father's domestic violence, the department also cited evidence that the mother slept throughout the day and failed to supervise the children, the home was in a deplorable condition, and the mother was not providing for Robert's special emotional and behavioral needs. When department responders told the mother that they were going to remove the children, she responded, "take them, I'm sick of it." Subsequently, the mother stipulated to her unfitness, Robert was placed in a residential school for children with special needs, and the girls were placed together in the home of the foster mother, with whom they have continued to reside.
Robert and Josie previously were removed from the mother's custody in 2009, after Sarah's father assaulted four year old Robert and the mother (while she was pregnant with Sarah) in Josie's presence. The children were returned to the mother in 2010. The department became involved again in 2012 after Sarah's father was arrested for forcing his way into the home and assaulting the mother in front of all three children. At trial, the mother testified that Sarah's father threatened her with a knife in Josie's presence.
Following removal, the girls were enrolled in a special afterschool program to address their behavior problems. Josie hit other children with pencils, resisted staff, and frequently attempted to run away. These behaviors worsened following visits with the mother. Josie was diagnosed with PTSD and oppositional defiance disorder. Sarah exhibited tantrums during which she "threw chairs, flipped tables, threw papers, bit a teacher, and hit other children." She took medication for attention deficit hyperactivity disorder. Both girls had individualized education plans to accommodate their need for social and emotional support. While the girls' behavior improved after they moved to North Carolina with their foster mother, their need for structure and constant supervision continued.
Robert was reunified with the mother in December 2016. Shortly thereafter, the mother complained that her available income was being "eaten up" by Robert and that the department had "dumped" Robert on her. The mother continued to demonstrate difficulty supervising Robert and administering his medication because she frequently did not get out of bed. At about the same time, the mother slept through a foster care review meeting for the girls. In April 2017, a social worker awakened the mother when she arrived at noon for a scheduled visit. The sink was full of dirty dishes, the trash was overflowing, and there was no food in the refrigerator. The mother denied the worker access to Robert's bedroom.
In April 2018, the mother blamed Robert for her eviction. She told the department to "remove Robert," because she could not afford to keep him in the home or "do this anymore." Robert thanked the social worker who arrived to remove him. He stated that the mother had threatened to cut his hand or burn him when he misbehaved, and that the mother kicked him and hit him with a broom. Robert also disclosed that the mother rented his bedroom to strangers and made him sleep on the couch.
The presence of other people who appeared to be living in the mother's apartment had been an ongoing concern for the department.
Discussion.
1. The mother's appeal.
a. Unfitness.
The central question in a case to terminate parental rights is whether the parent is unfit to parent such that termination is in the best interests of the children. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Such findings must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). See Adoption of Mary, 414 Mass. 705, 710-711 (1993). "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" (quotation and citation omitted). Adoption of Rhona, 63 Mass.App.Ct. 117, 125 (2005). "We give substantial deference to [the] 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, supra.
Citing "a six-year pattern of [the mother's] inability to care for her children" or herself, the judge found by clear and convincing evidence that the mother was unfit to parent the girls and that her unfitness was likely to continue. There was ample evidence supporting that conclusion. The mother "has suffered significantly" from depression, PTSD, and anxiety. As a result, she frequently was unable to get out of bed and leave her room. She has demonstrated an inability to supervise her children, each of whom has special needs. The mother lacked understanding of the girls' special needs and had no realistic plan for managing their behavioral problems. See Adoption of Paula, 420 Mass. 716, 730 (1995); Adoption of Oliver, 28 Mass.App.Ct. 620, 625-626 (1990) (unfitness established where child has substantial needs and parent lacks understanding and ability to care for those needs). Instead, the mother continued to be "overwhelmed with her own problems." Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 134 (1990). In these circumstances, we discern no error of law or abuse of discretion in the judge's conclusion that the mother's shortcomings, including her "ongoing mental health concerns, her inability to care for herself, and her demonstrated inability to care for even one of her children at a time . . . would impair her ability to care for the girls if they were returned to her custody."
We are not persuaded by the mother's argument that the judge's findings were stale because many of them related to conduct that predated the seventeen-month trial. While the length of the trial gives us pause, we are satisfied that the judge's conclusion that the evidence "demonstrate[d] a six-year pattern of [the mother's] inability to care for her children . . . and that [the mother's] shortcomings will continue undiminished in the future with an attendant harmful effect on the children" was well supported by the evidence.
b. Reasonable efforts at reunification.
The department is required to make reasonable efforts to strengthen the family unit before seeking to terminate parental rights. Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002). "A judge may consider the department's failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary." Adoption of Ilona, 459 Mass. at 61. The mother's principal argument on this issue is that the judge erred in failing to consider her earlier finding that the department abused its discretion when it allowed the girls to move to North Carolina with the foster mother, and failed to consider the department's noncompliance with the remedial order. The department argues that it substantially complied with the remedial order. We need not resolve the dispute regarding compliance with the remedial order because the issue was not raised in the Juvenile Court. See Adoption of Leland, 65 Mass.App.Ct. 580, 588 (2006) (appellate court need not address issues not properly raised in trial court). Similarly, the mother's argument that the department did not make reasonable efforts at reunification is raised for the first time on appeal and we need not address it. See Adoption of Gregory, 434 Mass. 117, 124-125 (2001) (claim of inadequate services must be timely raised).
Even if the mother's reasonable efforts argument had been properly preserved, there was ample evidence supporting the judge's conclusion that the department made reasonable efforts to reunify the family. In the five years preceding trial, and while the trial was ongoing, the department referred the mother to multiple service providers aimed at improving her parenting abilities and mental health, including domestic violence courses, therapy, psychiatric services, monthly meetings with a social worker, visitation with the children, parenting courses for children with special needs, and a parenting evaluation. While the mother did show a willingness to engage in mental health services, the evidence supported the judge's conclusion that she failed to engage in those services consistently and did not meaningfully improve her parenting skills. Sadly, the mother's mental health issues rendered her unable to successfully engage in the services provided, and unable to care for the girls. For this reason, even were we to assume that the department could have provided additional services, there was clear and convincing evidence that termination was in the girls' best interests. See Adoption of Ilona, 459 Mass. at 61 (parents' rights are secondary to child's best interests).
Any error in the judge's finding that the mother did not participate in services was harmless. Mere participation in services does not render a parent fit without evidence of appreciable improvement in her ability to meet the needs of the children. Adoption of Ulrich, 94 Mass.App.Ct. 668, 677 (2019).
c. Visitation.
The purpose of posttermination or postadoption visitation "is not to strengthen the bonds between the child and h[er] biological mother or father, but to assist the child as [s]he negotiates . . . the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 564-565 (2000). A judge has broad discretion whether to order visitation. See Adoption of Ilona, 459 Mass. at 63. The decision whether to order visitation follows a two-step analysis. The judge first determines whether there is a significant bond between the child and parent that warrants preservation. See id. at 63-64. If there is such a bond, the judge then considers whether posttermination or postadoption visitation may be left to the department and the adoptive family without harm to the child's interest in maintaining a relationship with the biological parent. See Id. at 64. "The judge may properly decline to order visitation when the adoptive parent's discretion to make decisions regarding contact will adequately serve the child's best interests." Adoption of Cadence, 81 Mass.App.Ct. 162, 168 (2012).
Here, the mother did not visit the girls from 2013 until 2016 and missed numerous visits between January and May 2017. There was little meaningful interaction between the mother and the girls when the visits occurred. The mother asked inappropriate questions of the girls and had to be redirected by the supervising social worker. The girls had emotional outbursts following visits with the mother. Josie "shut down" and wanted to be alone for days. Sarah became confused and did not recover for several days.
By contrast, the evidence showed that the girls, who have lived with the preadoptive mother for six years, have a strong emotional attachment to her. The girls are doing well in her care and have been assimilated into the preadoptive mother's extended family. Considering all of this evidence, we see no abuse of discretion in the judge's conclusion that "there exists no meaningful bond between the [the girls] and their mother," and that "it is not in the best interests of [the girls] to order post-termination or post-adoption contact."
We assume that Robert's appeal is properly before us. While he was not a party to the proceeding for review and redetermination, he participated in the proceeding through counsel, and filed a timely notice of appeal from the visitation order. The judge allowed his motion for appointment of appellate counsel. No other party has challenged Robert's standing. But see Adoption of Pierce, 58 Mass.App.Ct. 342, 345-346 (2003) .
"If siblings are separated through adoption, a judge 'shall, whenever reasonable and practical and based upon the best interests of the child, ensure that children . . . shall have access to and visitation with siblings.'" Adoption of Zander, 83 Mass.App.Ct. 363, 367 (2013), quoting G. L. c. 119, § 26B (b). The judge must decide "not only whether sibling visitation is to occur, but also the schedule and conditions of visitation." Adoption of Rico, 72 Mass.App.Ct. 214, 221 (2008), §.C., 453 Mass. 749 (2009).
After finding a significant bond between the girls and Robert, the judge determined it was in the girls' best interests to order "post-termination and post-adoption visitation between the [girls] and [Robert]." The judge ordered two in-person visits per year and remote contact "at least once per month," with any additional contact "left to the sole discretion of the [girls]' custodian." We review this decision regarding sibling visitation with substantial deference to the trial judge and do not disturb her findings absent a clear error of law or abuse of discretion. See Care & Protection of Jamison, 467 Mass. 269, 280 (2014) .
Robert argues that the judge abused her discretion by failing to order more frequent visitation -- first during the posttermination period when the department retained custody, and then during the postadoption period. While we have no doubt that the children would benefit from increased visitation with each other, the judge was faced with the reality that Robert was living in Massachusetts and the girls were living in North Carolina, a situation that she had already determined to be in the girls' best interests. Because sibling visitation is an "individualized inquiry[, ] . . . fact-dependent and circumstance-specific," Care & Protection of Jamison, 467 Mass. at 285, the judge was in the best position to balance the siblings' interests in continued visitation with the complications of regular in-person visits between siblings who live over 700 miles apart. Bearing in mind these difficult circumstances, we cannot reasonably conclude that an order of at least two in-person sibling visits per year, with at least monthly electronic visits, was an abuse of discretion. Finally, we note that an order of visitation is a "provisional order" based on an assessment of a child's best interests at the time. Adoption of Rico, 453 Mass. 749, 758 (2009). Nothing prohibits Robert from petitioning for a modification of sibling visitation pursuant to G. L. c. 119, § 26B.
Decrees affirmed.
The panelists are listed in order of seniority.