Opinion
20-P-285
12-09-2020
ADOPTION OF DEIRDRE.
NOTICE: 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 mother appeals from a decree of the Juvenile Court terminating her parental rights to her daughter, Deirdre; approving a permanent adoption plan for Deirdre; and declining to order postadoption visitation. We conclude that there was clear and convincing evidence to support the trial judge's determination that the mother's unfitness was not reasonably likely to be temporary, and that termination of the mother's parental rights was in the best interests of Deirdre. Further concluding that the judge acted within his discretion in declining to order mandatory postadoption visitation, we affirm.
The father voluntarily relinquished his parental rights to Deirdre prior to the issuance of the decree.
Background. Deirdre was born in 2006, and was twelve years old when the decree of the Juvenile Court was issued. Throughout Deirdre's life, numerous reports had been filed with the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A (51A report), alleging that the mother neglected both Deirdre and Deirdre's younger brother, Jack, primarily due to the mother repeatedly leaving the children in the care of inappropriate babysitters.
A pseudonym. Jack is not the subject of this appeal. DCF was awarded temporary custody of Jack in January 2014, but Jack was ultimately reunified with the mother in April 2017.
In January 2012, a 51A report was filed alleging that the mother was allowing her stepfather, who was reported to have sexually assaulted the mother's sister, to babysit Deirdre and her bother unsupervised. DCF approached the mother about the report, and the mother agreed not to permit the stepfather to watch the children. Later, it was discovered by DCF that the mother continued to allow her stepfather to transport Deirdre home from school. At trial, the mother disagreed that allowing her stepfather to pick Deirdre up from school unsupervised violated her agreement with DCF that the stepfather not be allowed to babysit Deirdre.
In March 2012, another 51A report was filed as a result of Deirdre alleging sexual abuse by her male babysitter, Michael. After the allegation, the mother brought Deirdre to a Sexual Abuse Intervention Network (SAIN) interview. At trial, the mother could not recall how she met Michael, but indicated that she used him as a babysitter after knowing him a few months.
In September 2013, two 51A reports were filed because Deirdre alleged that her father touched her inappropriately. The father was a level three sex offender, and during DCF's investigation pursuant to G. L. c. 119, § 51B, the mother informed the DCF worker that the father babysat Deirdre. During an interview with the DCF worker, the mother stated that she did not believe Deirdre was sexually assaulted by the father because Deirdre was not exhibiting behaviors traditionally associated with child victims of sexual assault. The mother also stated that she was not sure whether Deirdre was telling the truth when she reported sexual abuse by Michael.
The mother indicated that she expected to see behaviors such as bed wetting from a child who had been sexually assaulted. She stated that she "would not believe [Deirdre] if she said she had been sexually abused but did not exhibit [those] behaviors."
Deirdre initially denied making any allegations of sexual assault against her father when interviewed by the DCF worker. This denial, however, was made in the presence of the mother, and the DCF worker witnessed the mother shaking her head back and forth seemingly coaching the child to say no. Several days later, Deirdre spoke to her school principal and a DCF worker and told them that the mother was angry with her for lying about her father touching her, and that the mother threatened that she (Deirdre) would be taken away by DCF if she continued to lie.
On January 24, 2014, DCF was awarded temporary custody of Deirdre and she was removed from the mother's care. After DCF took custody of Deirdre, several additional allegations of sexual abuse came to light. Later in January 2014, Deirdre reported being sexually abused by her male neighbor, Wade. During her report, she stated that she told her mother about the sexual abuse, and that her mother instructed her to keep it a secret. In February 2014, Deirdre again reported being sexually abused by Michael, this time including sexual abuse that was not previously reported. In March 2014, Deirdre alleged that she was sexually abused by another male, Peter, who the mother confirmed had previously babysat Deirdre.
Despite these accusations of sexual assault, the mother has continuously stated that she does not believe that Deirdre was sexually abused by anyone other than Michael, and has also expressed doubts about that allegation. When interviewed in 2014 by a court investigator about Deirdre's allegations against her father and the several babysitters, the mother stated, "Aren't they on to her . . . by now?" In 2016, the mother indicated to a court investigator that Deirdre had problems with lying.
As a result of Deirdre's exposure to sexual abuse, she suffers emotionally and psychologically, and has been diagnosed with chronic posttraumatic stress disorder and attention deficit hyperactivity disorder. Specifically, Deirdre has struggled with self-harm, inappropriate sexual behavior, outbursts and tantrums, issues with food and eating, and the need for constant attention from her foster parents. Deirdre would become dysregulated after visits with the mother, and during therapy cannot tolerate many questions about the mother or their visits. Deirdre has expressed to her clinical psychologist and trauma specialist that the mother does not care that she was sexually abused by the father. In therapy, Deirdre does not refer to the mother as "mom" or "mommy," but instead refers to her as "the mother," "the m word," or "the person."
In the past, Deirdre has used unhealthy coping mechanisms to alleviate her anxiety and distress, including harmful masturbation, skin picking, and eating feces.
In order to improve the relationship and communication between the mother and Deirdre, DCF referred them to family therapy with an outpatient clinician. That clinician interviewed the mother and Deirdre separately and determined that family therapy was not in Deirdre's best interest. During her meeting with the clinician, the mother disclosed that Deirdre was not sexually abused, and that she was lying because she was jealous of her brother. The mother expressed her desire to engage in family therapy so that she could explain to Deirdre what "really happened." When the clinician met with Deirdre, Deirdre disclosed that she did not want the mother to learn her private information, and that she was uncomfortable engaging in therapy with the mother without her foster mother present. After her two meetings with the clinician, Deirdre became increasingly dysregulated, and she began acting out in her foster home and at school. Family therapy, therefore, did not take place at that time.
A number of health care professionals testified at trial that Deirdre needs to be validated and believed. Deirdre's long-time clinical psychologist described validation "as everything in [Deirdre's] life." The physician who conducted a trauma and bonding evaluation of Deirdre submitted a report that stated, "[T]he single most important factor in the recovery and reduction of later mental health issues related to [childhood sexual abuse] is parental support and belief regarding the abuse." The mother's own expert witness also agreed that the mother needed to validate Deirdre's experiences and recognize her role in Deirdre's abuse in order for Deirdre to heal therapeutically. Nonetheless, the mother maintained at trial that she did not and could not know whether Deirdre was sexually abused. The mother was repeatedly asked whether she believed that Deirdre was lying, and would not give a direct answer. The mother further indicated during her testimony that "the past is the past," and that she and Deirdre "need to move forward and focus on the future."
While Deirdre has been placed in several foster homes since her initial removal, she has been with her current foster family since April 2016. Deirdre has identified her foster parents as people who make her feel safe. As a result of the stable and consistent environment provided by her current foster family, Deirdre has improved in coping with her distress and regulating her emotions. Deirdre has expressed a strong desire to be adopted by her current foster family. Although Deirdre believes that the mother loves her, she testified that she would not feel safe being returned to the mother's care.
Jack was also placed with the same foster family until his reunification with the mother in 2017.
Discussion. 1. Termination of parental rights. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, 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, 459 Mass. 53, 59 (2011).
a. Parental unfitness. "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." Adoption of Mary, 414 Mass. 705, 711 (1993). The mother conceded at trial that she was not presently fit to care for Deirdre. She argues on appeal that there was not clear and convincing evidence to support the conclusion that her unfitness to care for Deirdre was not merely temporary.
"Because termination of a parent's rights is an 'extreme step,' a judge must decide both whether the parent is currently unfit and whether, 'on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary'" (citation omitted). Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). In determining whether parental unfitness is temporary, "[a] judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests," Adoption of Carlos, supra, but a judge may not make this determination based on a "faint hope" that the parent may become fit in the future. Adoption of Inez, 428 Mass. 717, 723 (1999).
The mother first argues that the trial judge erred in failing to find that her unfitness was temporary because she sufficiently complied with her DCF service plan. While the judge found, and DCF acknowledged, that the mother completed her service plan tasks, such compliance will not necessarily render a parent fit, or merely temporarily unfit, when the tasks assigned do not ultimately serve their intended purpose. See Adoption of Garret, 92 Mass. App. Ct. 664, 674 (2018); Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999). The judge found that the mother saw her therapist regularly, completed a training on how to channel her anger, and took courses addressing child care and sexual abuse. However, despite her participation in and completion of these service plan tasks, the mother continued to express doubts about Deirdre's allegations, and the judge concluded that it was uncertain whether the mother actually internalized what she has learned in order to parent Deirdre. "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60. We do not believe the judge clearly erred in his determination that the mother's unfitness was not reasonably likely to be temporary based on the completion of her service plan tasks.
The mother also contends that the judge improperly considered her skepticism of Deirdre's allegations as evidence of unfitness. She argues that the judge erroneously found that she did not believe Deirdre's allegations when the evidence showed that she was only "uncertain" about the specifics of the allegations. She also contends that the judge clearly erred when he characterized Deirdre's allegations as "steadfast." We disagree that the judge clearly erred in making these findings.
"A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). There was sufficient evidence to support the conclusion that the mother did not believe Deirdre's allegations. The mother informed multiple people that she believed that Deirdre was lying about the allegations, and at trial, the mother did not indicate a change in her position. Further, the judge's finding that Deirdre's allegations were steadfastly reported was supported by evidence that Deirdre made consistent reports of sexual assault by five men to DCF workers, her therapist, and the SAIN interviewers, and essentially did not recant these reports.
The judge found that Deirdre was a victim of sexual assault by the five named men. He did not credit another instance of reported sexual abuse, where Deirdre wrote on a tablet that she had sex with a man named "PJ" while she was placed in an intensive foster home, because Deirdre immediately stated that she was joking and denied that the encounter ever occurred.
It was proper for the judge to consider the mother's expressions of disbelief regarding Deirdre's allegations as evidence of her unfitness, and whether that unfitness was temporary. "A determination of parental unfitness must be child-specific," Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004), and consideration of a parent's future fitness "should never be made at the expense of the child, whose interest is paramount." Adoption of Inez, 428 Mass. at 723. It is crucial for Deirdre's emotional and psychological well-being that her caretaker accept her allegations of sexual abuse and validate her trauma. If the mother cannot do this, which she has shown that she cannot or will not, she cannot provide the support that Deirdre requires. It was thus proper for the judge to consider the mother's failure to acknowledge Deirdre's abuse as evidence of the mother's current and future unfitness.
Finally, the mother argues that DCF failed to make reasonable efforts to facilitate family therapy. "Before seeking to terminate parental rights, [DCF] must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. at 60. "A judge may consider [DCF's] failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary." Id. at 61.
Contrary to the mother's contention, DCF made reasonable efforts to assist the mother and Deirdre with family therapy. The attempt at family therapy was unsuccessful, however, because the mother used the opportunity to inform the clinician that Deirdre was lying about the allegations, and planned to explain to Deirdre "what had really happened." The mother argues that the judge should have required a second attempt at family therapy because, if given the chance, she would apologize to Deirdre and acknowledge her emotions. The judge was not required to do so, especially where the evidence suggested that another attempt at family therapy would be harmful to Deirdre and Deirdre testified that she did not wish to participate in family therapy with the mother. See Adoption of Varik, 95 Mass. App. Ct. 762, 669 (2019) (DCF's obligation to engage in reasonable efforts aimed at restoring child to parent's care is subject to its "competing duty 'to insure that the child is protected from the absence, inability, inadequacy or destructive behavior of the parent'" [citation omitted]). The judge did not err in finding that DCF made reasonable efforts in encouraging reunification despite not making a second attempt at family therapy.
b. Best interests of the child. "Once a parent is deemed unfit, the judge must then determine whether it is in the best interests of the child to end all legal relations between the child and the parent, taking into consideration 'the ability, capacity, fitness and readiness of the child's parent[]' as well as 'the plan proposed by [DCF].'" Adoption of Garret, 92 Mass. App. Ct. at 675, quoting Adoption of Nancy, 443 Mass. 512, 515-516 (2005). This determination is discretionary, based on a judge's experience and judgment, and "will not be overturned unless it amounts to an abuse of discretion or a clear error of law." Adoption of Garret, supra.
While the mother contends that termination of her parental rights without a second attempt at family therapy does not serve Deirdre's best interests, it was not an abuse of discretion or clear error of law for the judge to conclude otherwise. There is no dispute that the mother and Deirdre share a bond, and that Deirdre would benefit from the mother acknowledging Deirdre's abuse. However, it was well within the judge's discretion to conclude that a second attempt at family therapy would not in fact serve Deirdre's best interests, but instead would likely cause her harm, specifically where the mother used the last opportunity of family therapy to deny Deirdre's allegations.
Despite efforts for reunification of the mother and Deirdre, the mother has continued to deny Deirdre's allegations of sexual abuse, and to engage in behavior that would be harmful to Deirdre if she were returned to the mother's care. For example, after Jack was returned to her care, the mother introduced Jack to a man that she met on the Internet, and allowed a man she barely knew to come to her home while Jack was present. The mother also discontinued several of Jack's services, including his in-home therapy, because she believed that his therapist lied about something the mother had said. While the mother's ability to provide the necessary support for Deirdre remains a concern, Deirdre's current foster parents make her feel safe. In their care, Deirdre's ability to cope with her distress and regulate her emotions has improved significantly. Deirdre has expressed a strong wish to remain with her foster parents and to be adopted by them. Because removing Deirdre from her current placement and returning her to the mother's care would likely cause her "serious psychological harm," we conclude that the judge did not abuse his discretion in finding that termination of the mother's parental rights was in the best interests of Deirdre.
2. Postadoption visitation. A trial judge's decision whether to order visitation between a child and a parent whose parental rights have been terminated is reviewed for an abuse of discretion. See Adoption of Ilona, 459 Mass. at 66. "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?" Id. at 63.
The mother argues that the judge abused his discretion in failing to order postadoption visitation. We disagree. The judge recognized that Deirdre has an irreplaceable bond with the mother, and that Deirdre wished to have continued contact with her. The judge also found that Deirdre's foster parents, the future adoptive parents, believe that it would be essential for Deirdre to maintain a relationship with the mother and her brother. As such, the judge did not abuse his discretion in finding it unnecessary to order visitation to protect the best interests of Deirdre. It was well within his discretion to place the decision regarding postadoption visitation in the sole discretion of Deirdre's legal custodian.
Decree affirmed.
By the Court (Green, C.J., Desmond & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 9, 2020.