Opinion
19-P-314
04-14-2020
ADOPTION OF ELISE (and three companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from decrees entered by a judge of the Juvenile Court terminating the mother's parental rights and dispensing with the need for her consent to the adoption of her four oldest children, Elise, Adam, John, and Karen. See G. L. c. 210, § 3. The judge also declined to order any posttermination visitation or contact between the mother and the children, or any sibling visitation.
The judge also terminated the parental rights of the children's father. The father has not appealed and none of the children contest any of the judge's rulings insofar as the father is concerned.
The mother now appeals, arguing that 1) the judge erred in terminating her parental rights by failing to consider an expert's opinion at trial that the mother could parent the children with the assistance of services, 2) the judge's determination that the best interests of the children would be served by a termination of her parental rights was erroneous where the Department of Children and Families (DCF) had not submitted written adoption plans for the children, 3) the judge abused her discretion when she declined to enter an order for posttermination and postadoption visitation on the grounds such visitation would not serve the best interests of the children, and 4) the judge erred in failing to order sibling visitation. The oldest three children, Elise, Adam, and John, each appeal contending that the judge abused her discretion by failing to order posttermination and postadoption visitation with the mother.
All four children argue that the judge's decision to terminate the mother's and father's parental rights should remain undisturbed. Only Elise, Adam, and John seek an order of posttermination and postadoption visitation with the mother.
Background. The four subject children in this matter are Elise, born in 2007; Adam, born in 2009; John, born in 2010; and Karen, born in 2014. DCF first became involved with the family upon Adam's birth in 2009 when the father appeared intoxicated, aggressive, and threatening to nursing staff at the hospital. The case was closed in 2010 when DCF determined that the mother would fill the primary caretaking role in the children's lives. Reports of the father physically abusing the oldest child, Elise, caused DCF to become reinvolved with the family beginning in 2013. In January and February of 2014, DCF investigated allegations of the father's physical abuse of Elise and his physical abuse of the mother in front of the children and found them to be supported. The children reported witnessing their father physically abusing their mother.
On January 21, 2014, DCF filed a care and protection petition for Elise, Adam, and John, was granted emergency custody of the children, and placed them in foster care. In August of 2014, DCF filed a G. L. c. 119, § 51A, report (51A report) containing allegations that the father sexually abused Adam; upon further investigation, these allegations were found to be supported. The fourth child, Karen, was born in August 2014; DCF immediately added her to the ongoing care and protection action and Karen was placed in foster care following a custody hearing in September of 2014.
For at least three years following the removal of the children, the mother could not believe the children's accounts of their abuse at the father's hands. Despite her testimony to the contrary, the judge found that the mother continued not to believe that the father sexually abused Adam. The mother also struggled to believe that the children had witnessed the father's domestic violence. The mother acknowledged at trial that the father had emotionally abused her and had "raised his hand at [her]" at some points, but still could not accept that the children had seen the father physically abuse her.
The mother was also repeatedly warned that her relationship with the father posed a risk to the children and that he could not continue to play a role in their lives or her own. After the subject children were removed from her care, however, the father continued to be a presence in the mother's life. The judge noted that the mother did obtain a restraining order against the father in February of 2016, which was active at the time of trial. Even with this order in place however, the mother still had two more children with the father, born in 2016 and 2017. At trial, the mother testified that she had ended her relationship with the father and intended to prevent him from seeing the children in the future. The judge did not credit this testimony.
The mother testified at trial that she was unsure of the paternity of her fifth child but the mother's therapist testified that the mother had previously disclosed to her that her fifth and sixth children were both fathered by the father. The fifth and sixth children are not involved in these proceedings.
In the years since their initial removal from the mother's care, each child has lived in multiple foster homes. Adam lived in two foster homes before being placed with John. Elise moved between five different homes between January of 2014 and March 22, 2015. Karen, too, was removed from her first foster placement within a year. In 2015, the mother briefly regained custody of Karen and, due to a disruption in her foster placement, Elise. Yet the mother was quickly overwhelmed by the responsibilities of caring for these two children. The girls lived with the mother from February and March until July 2, 2015, at which point DCF removed both children due to concerns for their welfare. Since this attempt at reunification in 2015, none of the subject children have resided with the mother and she has instead had supervised visitation. During these visits too, the mother struggled to manage consistently all of the children, often relying on assistance from her mother, the older children, or social workers present at the visits.
Elise was initially placed with her younger brother for a matter of days before being moved to a second foster placement on February 6, 2014. She was moved to yet another home in March of 2014, where she remained until March of 2015 when her foster mother demanded her removal following a nightmare. Elise was placed in another foster home for five days before being temporarily reunified with the mother for approximately three months. Elise was removed from her mother's care and placed with a foster mother who was also a witness at trial. Elise was then moved yet again, to a preadoptive home, where she resided at the time of trial. Karen was also placed in that home.
Following two permanency planning conferences after the 2015 attempted reunification with Elise and Karen, DCF changed the children's goal from reunification with the mother to adoption, due to ongoing concerns about the mother's ability to ensure the children's safety, the mother's inability to believe that the father had abused the children and to accept the enormous impact of that abuse on them, and her inability to manage the children both during visits and during her brief period of custody of the girls in 2015. DCF did not submit a written adoption plan for any of the four children at trial but presented testimony as to those plans from the children's adoption social worker. Elise was placed in a preadoptive home in April of 2016 and Karen was placed in the same home months later. Both girls remained in this placement at the time of trial and DCF planned for the girls to be adopted by this family at the time of trial. While Adam and John had remained in the same intensive foster care placement for several years, their foster parent indicated that she did not want to be considered an adoptive resource for the boys. At trial, the boys' adoption social worker testified to a plan to recruit a two-parent family with experience raising children with significant medical needs and advocating for services for children with developmental delays.
At trial the mother presented evidence that demonstrated that, while she has struggled to escape the cycle of domestic violence, she has made significant efforts to engage in services offered by DCF to aid her in developing parenting skills and coming to terms with the abuse that she and her children suffered. A family therapist and expert in child welfare, permanency planning, and bonding and attachment (expert), testified at trial. Based on his observations of the mother over the four years he consulted with DCF on her case, he concluded that the mother was capable of parenting all of her children with assistance from appropriate services from DCF.
The mother had engaged in therapy sessions and classes to learn stress management skills, build coping mechanisms, learn the impact of domestic violence on her and her children, and develop parenting skills. She took numerous health and hygiene classes, parenting classes, anger management classes, and domestic violence courses, and attended group and individual domestic violence related counselling. Some classes the mother voluntarily took more than once.
After reviewing the evidence presented at trial, however, the judge found the mother to be unfit to parent the children. At the time of trial, the oldest three children still had medical and counselling needs as a result of trauma and abuse. The mother did not demonstrate an understanding of these needs or provide a plan for how she would support the children, particularly given their medical and trauma-related needs. The judge also considered the years it had taken the mother to accept the children's accounts of their father's abuse and did not credit the mother's testimony that she believed the allegations of sexual abuse. The judge additionally weighed the risk that the mother's relationship with the father posed to the children, finding that the mother did not demonstrate the capacity to keep her children safe and away from the father in the future. The judge concluded that the best interests of the children required that she terminate the mother's parental rights and approve DCF's adoption plans for the children.
Discussion. 1. Termination of parental rights. We review a judge's decision that termination of a parent's rights is in the best interests of the child with "substantial deference" and reverse an order of termination "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). The mother advances two arguments in support of her contention that the judge erred in terminating her parental rights. She argues that the judge's finding as to her unfitness was unsupported by clear and convincing evidence because the judge ignored the expert's testimony that she was capable of parenting the children. She then contends that, in the absence of detailed, written adoption plans, the judge could not terminate her parental rights. For the following reasons, we conclude that the judge committed no error in terminating the mother's parental rights.
The mother first argues that the judge's decision cannot stand because she did not discuss the expert's testimony in her extensive findings. We disagree. The judge, as the factfinder, was not bound to adopt the expert's opinion as to the mother's ability to care for the children. See L.L. v. Commonwealth, 470 Mass. 169, 183 (2014), quoting Commonwealth v. O'Brien, 423 Mass. 841, 854 (1996) ("[E]xperts' opinions are not binding on the trier of fact, who may accept or reject them in whole or in part"). Here, the expert's opinion that the mother could safely parent the children was contradicted by extensive evidence presented at trial, evidence that supports the judge's ultimate finding by clear and convincing evidence.
To begin with, the expert himself testified that he had concerns about the mother's relationship with the father and stated that if the relationship continued, it would not be safe or appropriate for the children. The judge found that the mother's repeated contact with the father over the four years since the children's removal demonstrated her inability to prevent future contact between the father and the children.
Further, the mother had shown herself to be unable to care for even two of the four subject children when, in 2015, Karen and Elise were removed from her care after only a matter of months. The mother also struggled to manage all of the children during confined, supervised visitation, as evidenced by case reports from DCF social workers and trial testimony from the adoption social worker that the mother's visits were "really challenging" and that it was often "difficult for mom to redirect the children" and prevent them from defying her instructions and running out of the room. In light of this evidence, we cannot conclude that the judge abused her discretion in failing to adopt or explicitly weigh the expert's opinions regarding the mother's parenting capabilities.
Though the mother testified the children were removed due to DCF's failure to provide her with sufficient services, the judge did not credit this testimony. A DCF social worker testified that the mother, feeling overwhelmed, had barred DCF from her home and DCF had removed the children based on concerns that the mother was not ensuring adequate medical care for Elise and that the mother's home was no longer clean enough to be habitable.
Clear and convincing evidence supports the judge's determination that the mother demonstrated "grievous shortcomings ... that put the child[ren]'s welfare much at hazard" (quotation omitted). Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009). Especially in light of the abuse that the oldest three children suffered, the mother's longstanding inability to acknowledge the full extent of that abuse, and the father's lingering presence in the mother's life, we see no error in the judge's ultimate conclusion that the best interests of the children required termination of the mother's parental rights.
The mother next contends that the adoption plans submitted by DCF at trial were insufficiently finalized to allow the judge to terminate her parental rights. We disagree. The adoption plans submitted by DCF were detailed enough to enable the judge to approve the proposed plans and terminate the mother's parental rights.
As an initial matter, "the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights." Adoption of Jacques, 82 Mass. App. Ct. 601, 610 (2012). See Adoption of Vito, 431 Mass. 550, 568 (2000). It is true that G. L. c. 210, § 3, mandates that the judge review and consider the adoption plan proposed by DCF, Adoption of Hugo, 428 Mass. 219, 226 (1998), but "[t]he adoption plan need not be fully developed to support a termination order." Adoption of Willow, 433 Mass. 636, 652 (2001). See Adoption of Vito, supra. Instead we review to determine whether the adoption plans "provide[d] sufficient information about the prospective adoptive placement ‘so that the judge may properly evaluate the suitability of the department's proposal.’ " Adoption of Willow, supra, quoting Adoption of Vito, supra at 568 n.28.
Here, the children's adoption social worker testified at trial that DCF planned for Elise and Karen to be adopted by their current foster family, which had been serving as a preadoptive resource for both girls for over a year. Several reports from the girls' guardian ad litem, as well as their adoption social worker, indicated that the foster family had expressed an intent to adopt the girls. The girls' foster mother also testified at trial. The judge had sufficient information about Elise's and Karen's preadoptive placement to approve DCF's adoption plan for them.
By the time of trial, DCF had not identified an adoptive placement for Adam and John. However, their adoption social worker testified both to DCF's intent to keep the brothers together and to the specific characteristics, experience, and qualifications that DCF sought in any prospective preadoptive family. In this case, the judge had sufficient information to approve these adoption plans and terminate the mother's parental rights.
We therefore affirm the judge's decision to terminate the mother's parental rights as to all four children.
2. Visitation order. Turning now to the mother's, Elise's, Adam's, and John's appeal from the judge's decision not to order posttermination visits with the mother, we conclude that the judge erred in declining to order visitation without first addressing the evidence presented at trial of close bonds between the mother and Elise, Adam, and John.
Karen does not appeal from the judge's decision not to order posttermination visitation and argues that the judge correctly determined that visitation with the mother does not serve Karen's best interests. We agree. Karen was removed from the mother's care within days of her birth and was only returned to the mother's custody for a period of five months before age one before being removed again. The adoption social worker testified that Karen had a "very close relationship" with her foster family, with whom Karen had lived for over one and one-half years before trial. While the judge made no explicit finding to this effect, the evidence presented at trial clearly indicated that Karen did not share a close bond with the mother and her best interests would not be served with court-ordered visitation.
Once the judge terminates parental rights, she may exercise her authority to order visitation in her discretion. Adoption of Ilona, 459 Mass. at 63. That discretion is not limitless. As an initial matter, the judge must determine whether an order of visitation is in the best interests of each child. Id. To make this determination, the judge must consider "emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent." Adoption of Vito, 431 Mass. at 562. While the trial judge need not make extensive findings regarding the children's best interests again, if she has already made such specific and detailed findings in her determination of parental unfitness, Adoption of John, 53 Mass. App. Ct. 431, 439 (2001), she must at least consider and weigh evidence of an emotional bond in deciding whether court-ordered visitation would serve the children's best interests. Adoption of Vito, supra.
The judge found that an order of posttermination and postadoption visitation would not serve the children's best interests based on reports that the children, collectively, have experienced dysregulation and negative reactions in response to visits with the mother. However, the mother and appealing children argue, and we agree, that the judge failed to make clear findings regarding Elise's, Adam's, and John's individual bonds to their mother in her collective analysis, despite the evidence at trial that such bonds existed.
According to the adoption social worker, Elise, for example, had "a very close relationship with her mother," enjoyed spending time with the mother, and did well during visits with the mother. Elise had repeatedly expressed to the adoption social worker that she loved her mother and wished to live with her mother. Based on the visits that he observed between the mother and Elise, the expert, too, testified to the attachment he saw between Elise and the mother and indicated that he saw evidence of a reciprocal bond between them. The expert also testified that he saw such evidence of bonding and attachment between Adam and John and the mother as well. Adam and John consistently maintained the position at trial that visits with the mother should continue posttermination and, should they be adopted, postadoption.
While the expert did not conduct a full bonding assessment in this case and could not testify to a full expert opinion regarding bonding, he repeatedly testified to seeing evidence of a bond and an attachment between the mother and the children.
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While the judge found that all the children experienced dysregulation in response to supervised visits with the mother, this fact does not erase the evidence that these children are bonded to their mother, and, although we express no opinion on the matter, at least might be explained instead by the existence of strong emotional bonds. As Adam and John argue on appeal, the dysregulation and distress observed in the children by social workers and foster parents may, in fact, be caused not by the visits but by the situation in which the children receive only limited time with their mother, with whom they share an important emotional connection. Elise, too, experienced distress at being unable to see her mother: as her foster mother testified and numerous reports from Elise's social workers indicated, Elise would become anxious and upset at the uncertainty of her situation and the thought of being away from her mother.
In circumstances such as these, where the children have not yet been adopted and evidence suggests that they are closely bonded to the mother, the trial judge must make a clear finding as to the bond between the parent and each child before finding that an order of posttermination and postadoption visitation does not serve the child's best interests. See Adoption of Rico, 453 Mass. 749, 757 (2009). Although we express no opinion in the matter, and do not intend to signal the correct disposition of the case with respect to visitation, an order providing for certain posttermination visitation may be particularly necessary for children who have been often moved from foster placement to foster placement: "it provides clarity, and, perhaps more importantly, gives the child[ren] a present sense of security about [their] ability to maintain contact and a relationship with a person who has been shown to be critical to [them]." Id. A remand is necessary to determine whether posttermination and postadoption visitation will indeed provide this clarity and sense of security for these children, and whether a court order is necessary to serve their best interests.
We affirm the judge's decision not to order posttermination or postadoption visitation between the mother and Karen, in the clear absence of an emotional bond between them. See note 8, supra. However, in light of evidence of a bond between the mother and Elise, Adam, and John, we vacate the judge's order with regard to posttermination and postadoption visitation between the mother and Elise, Adam, and John, and remand for the judge to individually determine, taking into express consideration the testimony of the expert and the adoption social worker regarding the evidence of each child's bond with the mother, whether an order of posttermination and postadoption visitation would be in the best interests of each child. Should the parties seek to introduce new evidence as to evolving factual circumstances surrounding the children's current foster placement, the judge may also consider such evidence in reaching her determination as to visitation on remand.
3. Sibling visitation. Finally, the mother alone appeals from the judge's decision not to order sibling visitation between the children. As the mother concedes in her brief, she has no standing to raise such a claim and none of the subject children have appealed from the judge's ruling. See Adoption of Zander, 83 Mass. App. Ct. 363, 367 n.6 (2013). As such we do not consider this argument here. The judge may, of course, consider whether sibling visitation should be ordered pursuant to G. L. c. 119, § 26B (b ), in light of any new evidence that she may find it appropriate to consider on remand.
So ordered.
Affirmed in part; vacated in part and remanded