Opinion
15-P-777
12-23-2015
ADOPTION OF KATHLEEN (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
A judge of the Juvenile Court entered decrees terminating the mother's parental rights to the children. G. L. c. 210, § 3. The judge also approved adoption plans for the children, and ordered posttermination and postadoption visitation between the children and between the children and their siblings in Montana.
At the time of trial, Kathleen was nine years old and Adam was seven years old. The children's father is deceased.
On appeal, the mother challenges the judge's approval of Kathleen's adoption plan and refusal to order postadoption visitation for her with both children. She also claims error in the judge's reliance on certain exhibits that either were not admitted in evidence or contain material that she contends should have been struck. We affirm.
The mother does not appeal from the decrees terminating her parental rights and dispensing with her need to consent to adoption.
1. Evidentiary issues. In advance of trial, the Department of Children and Families (DCF) filed a collection of documents with the clerk of the Juvenile Court. In an apparent oversight, these exhibits were never formally entered in evidence at trial. The mother contends that the judge's reliance on these exhibits, as well as his failure to rule on her motion to strike certain portions of a report filed by a court investigator, should deprive the judge's findings of the deference they are traditionally afforded.
We conclude that any reliance on exhibits that were inadvertently omitted from the evidence at trial was harmless where all underlying information appears to have an alternative basis in properly admitted evidence and the mother has not shown otherwise. See Adoption of Paula, 420 Mass. 716, 722 (1995); Adoption of Peggy, 436 Mass. 690, 703, cert. denied sub nom. S.T. v. Massachusetts Dept. of Social Servs., 537 U.S. 1020 (2002). The judge's findings and conclusions are amply supported by the trial testimony and court investigator's reports, the latter of which previously were made part of the record both by statute, see G. L. c. 119, § 24; Custody of Two Minors, 19 Mass. App. Ct. 552, 558-559 (1985), and by explicit orders entered on the Juvenile Court docket. Indeed, the mother admits as much in her brief.
However, the mother also challenges reliance on the investigator's reports because the judge did not alert the parties in advance of his intent to rely on these reports and because of his apparent failure to rule on her motion to strike portions of the oldest report. Neither contention is availing here.
It is clear that the mother expected the judge to rely on the reports as she moved to strike portions of one of them. The mother herself relies on these reports in her statement of facts, and cites them liberally where she believes that the factual material contained therein is favorable to her position. Thus, although we have recommended as a "sound practice" that trial judges give notice of their intention to consider these reports as evidence where they have not been introduced as such by the parties, it is clear that the mother's counsel was sufficiently on notice of their potential import for the adjudication and disposition of the matter as to make "a conscious decision as to whether to call the investigator to the stand." Custody of Two Minors, 19 Mass. App. Ct. at 559.
There is also no merit to the mother's claim that she was prejudiced by the judge's failure to act on her motion to strike portions of the March 7, 2011, investigator's report. Where the mother has not identified any specific aspects of that investigator's report (or of the unadmitted DCF exhibits for that matter) that are relevant to any issue she raises on appeal and that should not have been considered by the judge, she has failed to establish prejudice or any basis for reducing the deference we would ordinarily afford to the judge's findings. See Adoption of Paula, 420 Mass. at 727; Care & Protection of Amalie, 69 Mass. App. Ct. 813, 821 (2007).
2. Adoption plan for Kathleen. The judge approved DCF's plan for Kathleen to be adopted by her current foster parents instead of the mother's preference that Kathleen live with Kathleen's twenty-four year old half-sister (sister) in Montana, who currently cares for the mother's oldest son, a special needs child who was thirteen years old at the time of trial. This court may only review such a decision for abuse of discretion or clear error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "[O]ur attitude toward a trial judge's decision in a custody appeal is one of substantial deference. Particularly where, as here, close scrutiny of lay and expert witnesses was central to the judge's decision, our task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused his discretion or committed a clear error of law." Id. at 225 (citations omitted). We are satisfied that the judge did not abuse his discretion or commit clear error of law in determining that Kathleen should remain with her current foster family.
This child is not involved in these proceedings.
There is no merit to the mother's contention that the judge's assessment of the two competing placement options was not "even handed." Id. at 226 n.8. Rather, "the judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence." Adoption of Nancy, 443 Mass. 512, 516 (2005). The judge acknowledged that the sister's home study yielded "positive results" and that she could provide a "great home" for Kathleen, showing that he considered this option and its advantages. It does not reflect an uneven or selective consideration of the evidence for the judge to have concluded that, despite another "good" or even "great" option with a biological relative (i.e., the sister), Kathleen's need for "current stability" to support her development means that her best interests will be served by remaining in a placement where she "has made significant gains" and "appears to be thriving." See Adoption of Irene, 54 Mass. App. Ct. 613, 622-623 (2002). The judge specifically found that Kathleen "has made much progress since she has lived with her foster family," that "[t]he foster parents have a consistent routine and work daily to help [Kathleen] adjust to taking care of herself, taking more responsibility for her hygiene, being comfortable alone and being more active and engaging with the world around her," and that "the foster parents have provided consistency, stability and compassion for [Kathleen], which have had a positive [e]ffect on the child."
The judge's findings and conclusion are amply supported by record evidence showing that Kathleen's emotional, physical, and social health improved while living with her foster parents. Kathleen suffers from posttraumatic stress disorder. Dr. Robert Storey, a psychologist, testified that Kathleen "needs to live in an environment that is consistent, stable, loving, and without drama to where she can have an opportunity to thrive psychologically, feel comfortable, feel safe, and grow as a healthy child."
The evidence at trial demonstrated that the foster placement provided this kind of environment. Dr. Francis Kelly, a psychologist, testified that Kathleen had made a "good adjustment" to this placement, which offered the benefits of a structured routine with realistic expectations where Kathleen and the foster parents were "very at ease" and "comfortable." The foster mother, who had been Kathleen's first grade teacher, provided even more specific detail about Kathleen's progress in her home. Though problem areas remain, Kathleen, who was roughly seven and one-half years old at the time she came to live with the foster mother, learned how to eat with a fork instead of her hands, stopped sleeping in her school uniform and began changing into pajamas, and finally began to bathe herself, progressing from baths to showers. The foster mother has attempted to integrate bathroom use in Kathleen's morning routine despite Kathleen's unexplained aversion to bathrooms. Kathleen has also become more comfortable doing certain activities on her own in the foster home, including dressing and bathing herself; she previously needed constant reassurance of the foster parents' presence. There was also evidence that Kathleen was thriving academically (consistent with findings that she is highly intelligent), has increased physical endurance, and has become more socially outgoing.
The mother's contention that the judge paid inadequate attention to Kathleen's desires is unavailing. Although some of the reports in the record indicate that at one point Kathleen may have expressed a preference to live with the sister in Montana, her then-current therapist, who discussed the matter with Kathleen in anticipation of trial after a guardian ad litem waived the therapeutic privilege, testified that Kathleen had indicated in no uncertain terms that she was not going to state what she wanted in terms of adoption plans and that she did not want her opinion to have any influence on the trial because she did not want to hurt anyone and did not want to make the wrong decision. Kathleen's counsel represented that Kathleen's position was that she wanted the judge to decide. It is also worth noting that, at the time of trial, Kathleen was not yet at an age where her consent to adoption was required. See G. L. c. 210, § 2. Moreover, Kathleen's opinion, if she had been willing to share it, would not have been "decisive" or "outcome determinative." Adoption of Nancy, 443 Mass. at 518.
"[I]n this field it is neither possible nor desirable to make decisions with precision, and . . . much must be left to the trial judge's experience and judgment." Adoption of Hugo, 428 Mass. at 225 (quotation omitted). Drawing on his experience and judgment, and exercising his discretion, the judge here arrived at a reasonable conclusion based on the evidence. See id. at 229 n.17. In sum, the judge reasonably determined that the weight of the evidence indicated that Kathleen should remain in the home of her current substitute caretaker. It was reasonable for the judge to conclude that the stability of maintaining Kathleen's current salutary caregiving relationship outweighed the benefits of an otherwise acceptable, even great, placement in Montana. The judge's decision does not imply that a placement with the sister would not also have had its benefits in terms of a loving and stable home but only that Kathleen's best interests were served by maintaining her current placement. That the mother disagrees with the judge's conclusion does not mean that he failed to fairly assess the evidence. See Adoption of Irene, 54 Mass. App. Ct. at 617. There was no abuse of discretion.
3. Postadoption visitation. The evidence does not support a conclusion that the judge abused his discretion in not ordering postadoption visitation between the mother and the children. See Adoption of Saul, 60 Mass. App. Ct. 546, 555 (2004). The judge's determination in this regard must be "grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent nor the legal consequences of their natural relation." Adoption of Vito, 431 Mass. 550, 562 (2000).
Here, the judge did not abuse his discretion in finding that the mother does not have a substantial relationship constituting a healthy bond with either child and that therefore, any visitation should be supervised, and arranged at the discretion of the children's legal custodians. The mother's contention that her visits with the children were positive does not undermine the judge's conclusion, amply supported by the record, that the mother did not maintain significant or meaningful contact with either child in the months leading up to trial. The evidence of occasional positive visits, which in the case of Adam was threadbare, cannot change the fact that the mother's visits were intermittent and inconsistent despite the efforts of DCF to facilitate them. The mother often cancelled visits or did not show up at all. Visits that did take place often had to be rescheduled multiple times. Kathleen's foster mother no longer tells her in advance about planned visits to avoid disappointment should the visit fall through.
The mother also often failed to comply with DCF's requests for visits (which were conducted at DCF's office because of the mother's housing situation) between the ongoing social worker and the mother, which visits are used to determine the extent to which the mother is engaging in services and the propriety of parent-child visits. The mother appeared at only three of the monthly office visits from May, 2013, until the beginning of trial in December, 2013. She also failed to engage in services and maintain contact with DCF.
Moreover, even a finding that a significant attachment existed between Kathleen and the mother and that continued contact between them was in Kathleen's best interests would not necessarily be dispositive on the question of ordering visitation. See Adoption of Ilona, 459 Mass. 53, 54, 65 (2011). "Generally, the exercise of a judge's equitable power to require postadoption contact is likely to occur 'where no preadoptive family has yet been identified, and where a principal, if not the only, parent-child relationship in the child's life remains with the biological parent.'" Care & Protection of Amalie, 69 Mass. App. Ct. at 822, quoting from Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003). In Kathleen's case, a preadoptive family has been identified and her relationship with the mother is not the only parent-child relationship in her life.
Given the foster parents' stated commitment to facilitating visitation and the mother's poor track record, the judge could have reasonably determined that Kathleen's foster parents would facilitate an appropriate level of visitation and that a rigid "visitation schedule could interfere with the relationship between the adoptive parents and the [child]." See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013).
With respect to Adam, who has been diagnosed with cerebral palsy and autism, and has limited verbal skills, the evidence suggested that his visits with the mother did not go smoothly. There was testimony that at one visit Adam was left unattended and began to try to eat crayons and that at another visit he was allowed to eat in excess of a dozen cookies and promptly began vomiting. At one of the few visits she had with Adam in the year before trial, the mother commented that taking care of him (presumably even for the fleeting duration of a monthly visit) was a lot of work, and that she was tired of it.
The evidence concerning Adam's appreciation of visits with the mother was also inconsistent. A court investigator's report relayed an observation by Adam's foster father's partner that Adam obviously loves the mother and likes to see her and is sometimes quiet and sad after visits. Other evidence, however, calls into question whether Adam, given his developmental delays, was even aware of the significance of the visits. Although a preadoptive parent has not yet been identified for Adam, the mother is still not the only or even "principal" parent-child relationship in Adam's life, Adoption of Vito, 431 Mass. at 563-564, as he had been living with his current foster parent for two years at the time of trial and was to remain there until DCF could recruit an appropriate preadoptive parent. Thus posttermination contact with the mother was not necessary for Adam as "[t]he purpose of such contact 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." Id. at 564-565.
Decrees affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 23, 2015.