Opinion
No. 15–P–1474.
10-05-2016
ADOPTION OF HESTER (and five companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from decrees of a Juvenile Court judge terminating her parental rights. See G.L. c. 119, § 26 ; G.L. c. 210, § 3. She claims (1) that the judge's failure to continue the trial pending a determination as to whether the children were covered by the Federal Indian Child Welfare Act (ICWA) was an abuse of discretion; (2) that termination of her parental rights was not supported by the evidence; and (3) that the Department of Children and Families (DCF) failed to provide her with adequate support. We affirm.
Background. The mother came to the attention of DCF in 2005 when she moved to Massachusetts from Ohio with the three oldest children before the three younger children were born. Over the next eight years, more than thirty G.L. c. 119, § 51A (51A), reports were filed alleging abuse or neglect of one or more of the children, and eight G.L. c. 119, § 51B (51B), reports investigated by DCF were supported. The judge found that the two oldest children were exposed to domestic violence between their mother and their father, as well as physical abuse by the father of the two middle children. In 2006, a 51B report noted that both of the oldest children had burn marks and scars and the oldest child, four years old at the time, lacked communication skills and acted like a cat while at school. After another investigation in 2008, DCF remained concerned about neglect of the children. In 2011, while pregnant with the youngest child, the mother did not follow through on her prenatal care and tested positive for opiates and “Benzoids.”
In April, 2012, the children were first removed from the mother's care, and care and protection petitions were filed on April 13, 2012. DCF was granted temporary custody of the children, but after a hearing on May 14, 2012, the four older children were returned to the mother's care. The return was short lived due to concerns about medical neglect, hygiene, and eviction. In early June, 2012, one of the children broke his arm. He received a temporary cast, but the mother failed to take him to the emergency room for follow-up treatment. The mother told DCF that her housing was secure, but she was physically evicted from her apartment the following day, leaving the children homeless. On June 21, 2012, DCF again took custody of the children and placed them in foster care, and on June 25, 2012, DCF's emergency motion for custody was allowed.
In February and March, 2013, the two oldest children were temporarily returned to the mother's custody for a second time. DCF's goal was to gradually return all of the children to her care. However, in July, 2013, when one child stayed out all night and was dressed in the same clothes for multiple days, and the other child's double ear infection went untreated, the children were removed.
A three-day trial was held between March and July, 2014. The judge concluded that the children's four fathers were unfit and that it was in the best interests of each child to terminate their parental rights. The judge also concluded that the mother was “unfit to assume parental responsibility,” that “said unfitness [was] likely to continue into the indefinite future to a near certitude,” and that terminating her parental rights was in the children's best interests.
Neither the father of the two eldest children nor the father of the two middle children participated in the proceedings. The father of the youngest child filed a surrender of parental rights on the second day of trial. The father of the remaining child is unknown.
Discussion. 1. ICWA. On the first day of trial, counsel for three of the children requested a continuance until it was determined whether the children were “Indian children” as defined by the ICWA . See 25 U.S.C § 1903 (2012). No ruling was made and the trial proceeded without objection. For the first time on appeal, the mother argues that it was an abuse of discretion to proceed with the trial without an ICWA eligibility determination.
The ICWA, passed in 1978, establishes minimum Federal standards for the removal of Indian children from their families. See 25 U.S.C. §§ 1901 et seq. (2012). At the latest, DCF became aware of the possibility of the mother's Native American ancestry in May, 2013, when the issue was raised in a foster care review report.
The issue is moot. After the trial, DCF acknowledged that it had not properly made inquiry of the relevant Indian tribes regarding potential applicability of the ICWA. DCF sought and was granted a stay of the appellate proceedings to complete the inquiries. Thereafter, DCF received responses from three tribes indicating that the children were neither registered nor eligible to register. Accordingly, the stay was lifted and the appeal continued.
DCF received negative responses from the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma. A fourth tribe, the Crow Tribe of the Crow Reservation of Montana, did not respond despite receiving notice. See 25 U.S.C. § 1912(a) (2012).
“Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome.” Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). As it is now clear that the children are not covered by the ICWA and the mother is not entitled to the protections it affords, we need not address this issue. See Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533 (2003) (“[I]t is well established that courts only decide actual controversies”).
The mother claims that we should address the issue because it is “capable of repetition, yet evading review.” We are not persuaded. If a child or parent who is entitled to the heightened protections of the ICWA is denied them at trial, that can be remedied on appeal. See Pentlarge v. Commonwealth, 445 Mass. 1012, 1012 (2005).
2. The mother's unfitness. The mother challenges the judge's findings that she suffers from mental health and substance abuse issues that are likely to continue for the foreseeable future. On review, “[w]e 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). In 2011, while pregnant with the youngest child, the mother tested positive for opioids. The father of the youngest child, with whom the mother lived until April, 2014, testified that he had seen the mother using cocaine while the children were present. Moreover, the mother failed to provide records of clean drug screens, as required by her service plans, foreclosing any more recent information. Likewise, the mother stopped attending therapy in May, 2013. Therefore, the judge's findings regarding the mother's drug abuse and mental health were not clearly erroneous.
In addition, even apart from the mother's substance abuse and mental health problems, there was clear and convincing evidence that she was unfit as a parent and likely to remain so. See Adoption of Paula, 420 Mass. 716, 729 (1995) ; Care & Protection of Vick, 89 Mass.App.Ct. 704, 709 (2016). There was ample evidence of a longstanding pattern of abuse and neglect. The mother frequently slept during the day, leaving the children unsupervised; she failed to appropriately clothe the children; her attention to their medical and educational needs was inconsistent; and she inconsistently visited the children. Finally, the mother's unwillingness to change supports the conclusion that she is likely to remain unfit. See Adoption of Willow, 433 Mass. 636, 641 (2001). We discern no clear error of law or abuse of discretion.
3. DCF's support. The mother claims that DCF failed to provide the services needed to reunite the family. “It is well-established that a parent must raise a claim of inadequate services in a timely manner.” Adoption of Daisy, 77 Mass.App.Ct. 768, 781 (2010). Here there was no timely objection to DCF's reunification efforts. See Adoption of Gregory, 434 Mass. 117, 124 (2001). Even if the mother had objected, her argument is not supported by the record.
DCF must “make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties, ... but its obligation to work with the mother was contingent upon her own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services.” Daisy, supra at 782 (quotations omitted). See Paula, supra at 730. The judge found that the “[m]other has not productively utilized the services provided for her, which could correct and improve the circumstances. She has consistently failed to follow a service plan or maintain contact with the children or DCF.” The evidence shows that the mother frequently missed appointments with DCF and with service providers. She also missed visitation appointments with the children. In addition, the mother failed to comply with her service plan by not seeking physical therapy, not regularly working with an individual therapist, not providing DCF with access to drug screening records, and not obtaining a pain management assessment. See Adoption of Mario, 43 Mass.App.Ct. 767, 772 (1997). Accordingly, the judge's implicit finding that DCF's efforts were reasonable is clearly supported by the evidence. Ilona, 459 Mass. at 59. Decrees affirmed.