Opinion
14-P-1506
05-12-2015
ADOPTION OF ERIC.
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 of a judge in the Juvenile Court that terminated her parental rights and approved the adoption plan advocated by the Department of Children and Families (DCF). She contends that the judge improperly failed to consider the best interests of her child, Eric, failed to consider and make explicit findings concerning her proposed placement plan, excluded relevant testimony, and erroneously believed that his discretion was curtailed by the Interstate Compact on the Placement of Children (ICPC), St. 1963, c. 452, §§ 1-8. She also argues that DCF violated her constitutional rights in various ways. We affirm.
"When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "The judge must find by clear and convincing evidence that a parent is presently unfit to provide for the welfare and best interests of the child in order to grant a petition that terminates a [biological] parent's legal rights." Adoption of Mary, 414 Mass. 705, 710 (1993). See Adoption of Rhona, 63 Mass. App. Ct. 117, 124 (2005).
"A decision to terminate parental rights involves a two-step analysis. First, a determination that the parent is currently unfit, and, second, a determination that termination is in the best interests of the child." Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008) (citations omitted). For a judge to take such an "'extreme step,' we require that the judge articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that [the judge] has given the evidence close attention." Adoption of Nancy, 443 Mass. 512, 514-515 (2005), quoting from Adoption of Frederick, 405 Mass. 1, 5 (1989). A judge's findings of fact will not be set aside unless clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996); Adoption of Greta, 431 Mass 577, 587 (2000).
A. Judge's rulings and findings. First, while the mother does not seriously contend that sufficient evidence showing an inability to parent was lacking, she generally challenges the judge's determination that termination of her parental rights was in Eric's best interests. However, this determination is fully supported by evidence that the mother failed to adequately care for her own physical and mental health (and denies her mental health issues despite diagnoses), was verbally and physically abusive to a family member as well as hospital staff, was homeless at the time of trial and for significant periods of her life despite opportunities to obtain housing, rejected information and advice concerning care for Eric, and did not have an ability to care for Eric in light of his medical and developmental needs.
In concluding that the mother was unfit to parent, the judge relied, inter alia, on the mother's history of illness, both physical and mental. See G. L. c. 210, § 3(c)(xii). Although mental illness by itself may not be sufficient to show unfitness, it may contribute to a finding of unfitness if there is a nexus between the parent's mental illness and the inability to provide minimally acceptable care for the child, and such a nexus exists here. See Adoption of Saul, 60 Mass. App. Ct. 546, 553-554 (2004). The mother's history of mental illness and failure to acknowledge such illness is especially relevant considering Eric's special medical needs. See Adoption of Frederick, 405 Mass. at 9 (1989) ("Mental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs"). Additionally, the judge's determination ensured that the care of Eric by adoptive parents, rather than as guardians, would provide necessary stability, especially considering his special needs. See Adoption of Willow, 433 Mass. 636, 647 (2001) ("Stability in the life of a child is important," especially where the child is "exceptionally vulnerable").
Eric's medical needs identified at birth (some of which have been resolved) included: apnea, immature retina, a soft cardiac murmur consistent with peripheral pulmonic stenosis, bradycardia, jaundice, episodes of oxygen desaturation, torticollis (muscular tightness which inhabits natural turning of the head), an inguinal hernia, respiratory issues, poor immune capacity, and feeding issues requiring a feeding tube.
In essence, the mother now "simply reflect[s] dissatisfaction with the judge's weighing of the evidence," but because his subsidiary findings are supported by a preponderance of the evidence and we discern no abuse of discretion in his ultimate determinations, we reject the mother's argument in this regard. Adoption of Hugo, 428 Mass. 219, 224 (1998) (quotations omitted). We likewise reject the mother's contention that the judge erred in relying largely on hearsay evidence rather than testimony adduced at trial because this is also essentially an argument that the judge did not weigh the evidence properly.
Next, the mother's contention that the judge failed to consider her preference that Eric's maternal grandfather and step-grandmother (grandparents) be given only permanent custody of Eric is without merit. The judge explicitly and repeatedly acknowledged that this was the mother's preference, but he ultimately determined that it was not in Eric's best interests. To the extent that the mother argues that the judge was required in his written findings and conclusions to explicitly address her preference for permanent custody rather than adoption, the case law does not support such a proposition, but requires only that the judge "make specific and detailed findings demonstrating that close attention has been given to the evidence," a requirement with which the judge here complied. Adoption of Hugo, supra. It is clear from the record that the judge understood the mother's position and considered it.
We note also that the mother did not file a cross petition proposing permanent custody to the grandparents, but only opposed DCF's plan for adoption. Thus, the judge only had one plan before him.
We also reject the mother's argument that the judge improperly limited putative testimony from Eric's maternal step-grandmother and his foster mother. The mother sought to introduce testimony that adoption of Eric by the grandparents could create a confusing family dynamic in the grandparents' home because they have permanent custody but not adoptive rights as to the mother's older son. However, the maternal grandfather had already testified on this point, so further testimony would have been cumulative. Moreover, the testimony was largely irrelevant in light of the fact that the grandparents testified that they had no preference for either permanent custody or adoption of Eric, despite any confusion that would result if they adopted Eric but retained only permanent custody of the mother's older son.
Finally, the mother argues that the judge improperly considered evidence of her mental health diagnoses. However, the judge properly relied on an identified source in the court investigator's report, and a portion of the mother's certified medical records, admitted pursuant to G. L. c. 233, § 79, in finding that the mother had been diagnosed with two different mental health disorders. See Bouchie v. Murray, 376 Mass. 524, 528 (1978) (judge may consider properly certified medical records); Custody of Michel, 28 Mass. App. Ct. 260, 265-266 (1990) (hearsay from identified source within court investigator's report may be relied on by judge, and parent retains the right to cross-examine investigator and investigator's sources).
The court investigator's report cited a particular center in New Hampshire as the source of one diagnosis, and the mother acknowledged at trial that she had been treated there.
The mother also claims that one of the diagnoses should have been excluded because it did not derive from an "expert diagnostic opinion." The record belies her assertion.
B. ICPC. The mother next argues that the judge may have believed that he did not have authority to order permanent custody, rather than adoption, because of limitations imposed by the ICPC. Because the grandparents, who were DCF's preferred adoptive home, lived in New Hampshire, the ICPC and New Hampshire's policies required that there be a current approved home study of their home before Eric was placed there. The mother's argument is that the judge believed that New Hampshire would not conduct a home study unless and until the mother's parental rights were terminated and adoption was ordered, thereby eliminating permanent custody as an option.
The mother mischaracterizes the record. Testimony at trial made clear that New Hampshire would not conduct an adoptive home study unless and until the mother's parental rights were terminated; there were no such limitations placed on home studies otherwise, and, in fact, New Hampshire had already approved the grandparents' home prior to trial (but such approval had expired). The judge consistently expressed his understanding that he retained the authority to do less than terminate the mother's parental rights. The record is clear that the ICPC, and New Hampshire's policies under the ICPC, did not inhibit in any way the judge's power to order permanent custody rather than termination of the mother's rights, nor did the judge believe that it so inhibited his authority.
The mother's argument is also beside the point. Because the mother herself urged that Eric be placed with the grandparents because he would be safe and secure there, the home study was essentially a formality because neither party doubted the fitness of the grandparents to care for Eric.
C. Other contentions against DCF. Finally, the mother argues that DCF violated her constitutional rights by identifying adoption as the goal rather than reunification of the family, failing to make a request for an expedited home study under the ICPC, excluding her from Eric's medical appointments, and failing to place Eric in the maternal grandparents' home sooner. We are unpersuaded that any of these contentions have merit, and discern no support for them in the record.
D. Conclusion. Consequently, as discussed above, and for reasons stated by the trial judge in his comprehensive findings of fact and conclusions of law, the ultimate determinations as to the mother's unfitness and termination of her parental rights were well founded and appropriate.
Other arguments advanced by mother have not been overlooked. We have considered them and find them without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Decree affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 12, 2015.