Opinion
14-P-374
12-08-2015
ADOPTION OF DANIELLE (and a companion case).
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The mother appeals from a decree terminating her parental rights to her younger daughter, Elizabeth, and from the portions of the Juvenile Court judge's related orders that she receive a minimum of four supervised visits per year with Elizabeth, and that she receive a minimum of four supervised visits per year with her older daughter, Danielle. The mother also appeals from an order by a single justice of this court denying her motion to continue stay of appeal and for leave to file a rule 60(b) motion. See Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974); Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011). These appeals have been consolidated here.
The decrees also terminated the mother's parental rights as to Danielle, but the mother did not appeal from that portion of the order. In addition, although the mother's notice of appeal also challenged the rejection of the mother's alternative placement plan, the mother did not pursue that argument on appeal. Finally, the order also terminated the parental rights of the fathers of the two children. Neither father appealed.
1. Procedural background. The Department of Children and Families (the department) filed the underlying care and protection petition on March 18, 2010. The proceeding was brought after the department received a number of G. L. c. 119, § 51A, reports (51A reports) alleging neglect of the children by the mother. The first such 51A report was filed on February 18, 2005. The first supported 51A report was filed on April 26, 2006. Between 2006 and 2010, the department received numerous 51A reports alleging neglect of the children.
The department received custody of the children on May 5, 2010. At the time of trial, Danielle had been living with her foster family (Family A) since July, 2010. Elizabeth had been living with a different foster family (Family B) since May, 2010.
After a thirteen-day trial during November and December, 2012, and May and June, 2013, the trial judge issued her findings of facts, conclusions of law, and orders in a detailed memorandum. These findings and conclusions are summarized in section 2, infra.
On the basis of these factual findings, the judge concluded that the mother was unfit, that her unfitness was likely to continue into the indefinite future, and that termination of the mother's parental rights would be in the best interests of Danielle and Elizabeth. The judge therefore ordered that the mother's parental rights be terminated, and decrees entered accordingly.
The judge also concluded that there was a significant relationship between the mother and her two children. The judge therefore ordered that the mother receive a minimum of four supervised visits with each child per year posttermination and postadoption.
During the trial, the parties agreed that Danielle should remain with Family A. There was significant disagreement, however, about Elizabeth's placement. Both the department and Elizabeth wanted her to remain with Family B. Danielle and the mother wanted Elizabeth to be transferred to live with Danielle in Family A. Danielle was willing to accept termination of the mother's parental rights, but only if it meant that both she and Elizabeth would be adopted by Family A.
The judge found a significant relationship between Danielle and Elizabeth and concluded that it would be in their best interests for them to be adopted together by Family A. The judge ordered the department to draft a transition plan to place Elizabeth with Family A.
The mother appealed, challenging the termination of her parental rights, the visitation order, and the permanency plan.
Elizabeth appealed from the determination that it was in her best interests to be placed with Family A, and she filed a motion for stay pending appeal. This motion was allowed by a different Juvenile Court judge on August 16, 2013, effectively allowing Elizabeth to remain with Family B. The mother and Danielle subsequently appealed from the order allowing this stay.
The appeal from the stay became moot on May 26, 2014, when Danielle's relationship with Family A deteriorated to the point that she was removed from Family A's home, and neither Danielle nor Family A wanted to mend the relationship (in the parlance of the department, she "disrupted from" her placement). Family A subsequently concluded that it was no longer willing to adopt either Danielle or Elizabeth. In response, Elizabeth filed a motion for review and redetermination in the Juvenile Court on May 22, 2014, seeking approval of her original plan for adoption by Family B. See G. L. c. 119, § 26. This court stayed the appeal during the pendency of the review and redetermination motion.
Elizabeth's motion was allowed. On January 8, 2015, as amended on January 15, 2015, the trial judge issued amended findings of fact and an order (i) revoking approval of the plan for both children to be adopted by Family A, (ii) approving the plan for Elizabeth to be adopted by Family B, and (iii) reaffirming the original visitation order. None of the parties appealed from the amended findings and order, and the mother did not challenge the new placement plan for Elizabeth.
The department filed a permanency report on December 16, 2014, in anticipation of permanency hearings for both Danielle and Elizabeth on January 30, 2015. The department's goal for Elizabeth remained permanency through adoption by Family B. The department's goal for Danielle had changed to "permanency through care with kin," although the department did not identify any kin who would be willing and able to provide care. The trial judge held permanency hearings for Danielle and Elizabeth on January 30, 2015, at which she approved the department's plans. The mother attempted to appeal from the approval of Elizabeth's plan, but this appeal was dismissed for lack of standing. The mother did not appeal from that dismissal.
On March 9, 2015, Elizabeth and the department moved to vacate the stay of the appeal, which had been instituted to allow Elizabeth to pursue her motion for review and redetermination.
On March 18, 2015, the mother filed a motion to continue the stay of appeal and for leave to file a rule 60(b) motion. The mother argued that she had only decided not to appeal the termination of her parental rights as to Danielle because she supported Danielle's placement with Family A and had a good relationship with Family A. Thus, with the change in circumstances, she sought an opportunity to file a rule 60(b) motion as to Danielle only. Elizabeth opposed this motion, arguing that any stay in the appellate proceedings would harm her by causing delay and further postponing her adoption by Family B. A single justice of this court denied the mother's motion and vacated the stay of the appeal. The mother appealed that denial.
The mother had expressly waived her appeal from the termination of her parental rights regarding Danielle in her initial brief filed with this court.
2. Factual background. We summarize the key factual findings of the trial judge. Additional findings are mentioned as they become relevant in subsequent sections.
The judge found that between April, 2006, and May, 2010, the mother's mental illness and misuse of prescription medications had caused her repeatedly to neglect her children. In addition, the apartment in which she lived with her children was cluttered, dirty, and lacking in furniture.
During that same time, Danielle, who was born in 1999, was repeatedly tardy and absent from school, to the point where there was a chance she would have to be held back. Danielle had to feed herself and prepare herself for school because she could not wake her mother in the morning. When she did go to school, both she and her clothes were dirty.
Elizabeth, who was born in 2004, stopped attending day care in 2007. She slept in her mother's bed because she did not have one of her own. There was evidence that the mother left her in the care of Danielle for significant periods of time.
The mother repeatedly failed to take advantage of offered services. She did not send Danielle to recommended counselling and summer camp or a recommended summer reading program. She refused to contact Danielle's school to explain her absences. She withdrew Elizabeth from day care and did not complete the screening for kindergarten. She failed to attend therapy regularly. She repeatedly missed or avoided meetings with social workers.
After Danielle and Elizabeth were removed from the mother's custody in May, 2010, they changed dramatically. When Elizabeth arrived in her foster home with Family B, she was withdrawn, selectively nonverbal, had poor hygiene, was unable to dress herself, and was not toilet trained. By October, 2010, she had dramatically improved. Danielle also made huge strides in foster care. By April, 2011, she was on the honor roll at school and had noticeably improved hygiene.
The judge concluded that the mother had neglected her daughters since 2005, that she misused her drug prescriptions and suffered from a mental illness that impaired her ability to provide minimally acceptable care to her children, that she was unable effectively to utilize services, and that there was no expectation that she would be able to provide minimally acceptable care for either child in the foreseeable future. The judge also found that both daughters had thrived since their placements in foster care. None of the judge's findings of fact are contested on appeal.
3. Termination of parental rights with respect to Elizabeth. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether 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 will only reverse the termination of parental rights where "the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Ibid.
The mother did not contest the judge's finding that the mother was unfit at the time of trial. Based on the judge's uncontested findings of fact, there was clear and convincing evidence that the mother's unfitness was not temporary.
Unfitness alone does not mandate a decree of termination. See Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). The judge must also determine that the child's best interests will be served by terminating parental rights. Ibid.
The mother's arguments that termination was not in Elizabeth's best interests are unavailing. First, she argues that she and Elizabeth have a significant bond. While this fact is relevant to the best interests determination, the judge noted this bond and nevertheless concluded that termination was in Elizabeth's best interests. Compare Adoption of Flora, 60 Mass. App. Ct. 334, 340 (2004). Second, the mother argues that her unfitness was not continuous and unceasing. This claim is undermined by the record. Although there was a short period in 2007 when the mother adhered to the conditions placed on her retaining custody of the children, she neglected her children for the vast majority of the four-year period from 2006 to 2010. The mother's remaining arguments rely on factual predicates that posttrial events have rendered false.
The mother's relationship with Family A is no longer relevant. Whether or not Elizabeth understood the concept of adoption at the time of trial is no longer relevant, given that she is now ten years old and continues to press for adoption by Family B. Adoption of Nancy, 443 Mass. 512, 518 (2005), quoting from Care & Protection of Georgette, 439 Mass. 28, 36 (2003) (wishes of ten year old "are entitled to weight" in custody proceedings).
Thus, the trial judge did not abuse her discretion or otherwise err by concluding that there was clear and convincing evidence that it was in Elizabeth's best interests for the mother's parental rights to be terminated. Accordingly, we will affirm the portion of the trial judge's order terminating the mother's parental rights as to Elizabeth.
4. Placement of Elizabeth. As mentioned in note 2, supra, the mother's notice of appeal challenged the rejection of the mother's alternative placement plan. However, the disruption in Danielle's placement rendered the mother's alternative plan infeasible. The mother has not subsequently challenged Elizabeth's placement with Family B, and she did not appeal from the dismissal of her appeal from the permanency hearing. Thus, none of the parties before the court has challenged Elizabeth's placement with Family B.
Accordingly, the judge did not err in approving the plan that Elizabeth be adopted by Family B, and that portion of the decree, too, will be affirmed.
5. Visitation order with respect to Elizabeth. The trial judge has broad discretion in crafting visitation orders in cases where a child is going to be adopted. Adoption of Lenore, 55 Mass. App. Ct. 275, 283 (2002). However, this discretion is not unfettered. Parents do have standing to challenge visitation in a direct appeal from a termination decree. See Adoption of Rico, 453 Mass. 749, 757 n.16 (2009).
"In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Ilona, 459 Mass. at 63.
In determining whether visitation is in the child's best interests, the judge may consider, among other things: (1) whether the child has "a significant, existing bond with the biological parent," ibid., quoting from Adoption of Vito, 431 Mass. 550, 563 (2000); (2) whether the child "has formed strong, nurturing bonds" with the preadoptive family, ibid.; and (3) posttrial developments, Adoption of Edgar, 67 Mass. App. Ct. 368, 373 (2006).
In determining whether a visitation order is necessary, "the best interest of the child does not by itself answer the question whether an order of visitation should enter." Adoption of Ilona, supra at 64. Of particular relevance here, "a judge must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with a biological parent, with 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." Id. at 64-65.
In this case, the judge had to balance competing testimony in determining the proper amount of visitation. Supporting more visitation, several witnesses testified to the existence of a strong bond between Elizabeth and the mother and to the importance of maintaining this bond. Supporting less visitation, several witnesses also testified that the mother had behaved inappropriately or passively at several visits and that excessive visitation could impair Elizabeth's ability to form a healthy attachment to her preadoptive family.
The initial order for a minimum of four visits also placed Elizabeth with Family A. The mother had a good relationship with Family A, and the judge and the parties likely expected that the mother would in fact visit Elizabeth more than four times per year. However, Elizabeth had no bonds whatsoever with Family A, as she had not lived with them previously. Thus, the best interests factors listed in Ilona, supra, pointed toward a larger number of visits.
The amended order affirmed the original visitation plan without discussion, while also approving the plan for Elizabeth's adoption by Family B. At the time of trial, there was testimony that Family B was resistant to Elizabeth having any visits with members of her biological family. There was also testimony that a strong, nurturing bond had developed between Elizabeth and Family B. The affidavit of the social worker attached to Elizabeth's motion for review and redetermination provided additional, reliable evidence that Elizabeth has grown more and more attached to Family B, and that Family B has become increasingly open to arranging visits with Elizabeth's biological family members.
We consider the affidavit, even though it was submitted to the trial judge together with a motion that seeks to modify the appealed-from order, because the trial judge's decision to allow that motion indicates that the affidavit was credited and because the affiant is a "neutral" with respect to the litigation.
Thus, the best interests factors listed in Ilona, supra at 64-65, point in different directions. The bond between Elizabeth and her mother, combined with Family B's reluctance to arrange visits, points in favor of increasing the minimum number of visits. However, the strong bond between Elizabeth and Family B, combined with the posttrial evidence that Elizabeth has grown ever more attached to Family B while Family B's resistance to visits has softened, points in favor of decreasing the minimum number of visits. It was reasonable, and certainly no abuse of discretion, for the judge to respond to this by affirming the initial visitation order, especially in light of the intrusion that an order imposes on the rights of the adoptive family.
Accordingly, we will also affirm the visitation order, granting the mother a minimum of four supervised visits per year with Elizabeth.
6. Motion for leave to file rule 60(b) motion. The mother also appeals from the single justice's denial of her motion for stay and for leave to file rule 60(b) motion. We review decisions of a single justice for abuse of discretion. Matter of the Enforcement of a Subpoena, 436 Mass. 784, 786 (2002).
We conclude that the single justice did not abuse her discretion in denying the mother's motion, given that granting another stay in this case would delay Elizabeth's adoption even further. However, since our decision affirms every portion of the Juvenile Court judge's order concerning Elizabeth, and since the proposed rule 60(b) motion concerns Danielle only, there is no longer any risk that the mother's motion will delay Elizabeth's adoption.
Therefore, in light of the fact that Danielle's placement has disrupted, that she no longer wishes to be adopted, and that, at sixteen and one-half years old, she has the right to veto any proposed adoptive placement under G. L. c. 210, § 2, we stay that portion of the appeal relating to Danielle and grant the mother leave to file her rule 60(b) motion within ten days following the issuance of this decision. We express no opinion on the merits of this motion, but in light of our disposition of this case with respect to Elizabeth, the Juvenile Court shall have jurisdiction over the motion only to the extent it contains claims relating to Danielle. We further order that the Juvenile Court act on this motion within forty-five days after it is filed. We retain jurisdiction over the appeal, and order the mother, Danielle, and the department to file a status report concerning the outcome of the rule 60(b) motion once the Juvenile Court acts on it.
The decree as to Elizabeth is affirmed in all respects. The order of the single justice as it applies to the appeal of Danielle is reversed, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Katzmann, Rubin & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: December 8, 2015.