Opinion
19-P-126
11-04-2019
ADOPTION OF JUNO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother, father, and child appeal from decrees entered in the Juvenile Court finding the parents unfit and terminating their parental rights to the child. They argue that the finding of unfitness was not supported by clear and convincing evidence and that termination of the parents' rights was not in the child's best interests. The father and child further argue that the Department of Children and Families (DCF) did not provide adequate services to enable the parents to reunify with the child. The child also contends that DCF's adoption plan was underdeveloped. We affirm.
Background. We summarize the judge's detailed findings of fact, which find ample support in the record. The mother and father met while the mother was living at Bridge Over Troubled Waters in the Brighton section of Boston. The father was homeless at the time and living in his car. After dating for three months, the mother became pregnant with the child. The mother left the father and moved to New York, where the child was born in October 2011. After the mother and child returned to Massachusetts, multiple G. L. c. 119, § 51A, reports (51A report) were filed, starting in August 2012, alleging neglect and abuse of the child by the mother and her various boyfriends. The reports included allegations that the child witnessed acts of domestic violence. DCF investigated the reports, and remained involved with the mother and child. In April 2016, two 51A reports were filed, alleging that the mother's boyfriend caused the mother to fall to the ground in the child's presence, and that the boyfriend physically abused the child. During the ensuing G. L. c. 119, § 51B, investigation, the mother admitted that the child had witnessed numerous incidents of the boyfriend's domestic violence. The mother also stated that the child's behavior was out of control and that she could not "handle [the child] anymore"; that she "felt unable to keep [the child] safe at times"; and that she needed "to get herself some help and seek inpatient psychiatric services." DCF took emergency custody of the child on April 21, 2016, and filed a care and protection petition on April 22, 2016.
The judge admitted G. L. c. 119, § 51A, reports "for the limited purpose of setting the stage for [DCF's] initiation of this care and protection petition," and G. L. c. 119, § 51B, investigation reports "for the primary fact information." See Custody of Michel, 28 Mass. App. Ct. 260, 266-267 (1990).
The father was not aware that he was the father of the child for the first year of her life. He first became involved with DCF in connection with the child in November 2013, when a 51A report was filed alleging that the father and mother had engaged in a verbal altercation in the child's presence, requiring police response, because the mother had asked the father to change the child's diaper. He stated during the subsequent 51B investigation that this was his first time meeting the child.
The father's paternity was established.
The child "has a history of significant behavioral issues," and has been diagnosed with numerous mental health issues, including posttraumatic stress disorder (PTSD) and attachment disorder. Following her removal from the mother, the child was placed in a foster home, but was asked to leave after a few hours because of her aggressive behavior. After an assessment by a mental health crisis team because of her unsafe behaviors, she was placed in a CBAT placement, and then in the STARR program in Dedham. In October 2016, the child was placed with the maternal grandmother, where she remained through the time of trial. The maternal grandmother provided the child with support and structure, which are crucial for her well-being. The child also receives a range of therapy and services. The child was gradually transitioned to full-time attendance at a public school with an individual education plan.
A CBAT placement is "a hospitalization program to stabilize a child who is experiencing emotional struggles."
When DCF changed the child's permanency goal to adoption in February 2017, the maternal grandmother declined to serve as the child's adoptive or permanent resource. The maternal grandmother cited her advanced age, and the fact that she had already adopted the child's two older half-brothers, both of whom have significant special needs. The maternal grandmother was "committed to providing care for [the child] while [DCF] seeks another permanent placement." One month before trial, the child required another assessment by a mental health crisis team after she threw chairs at school, hit one of her teachers, and threw a pair of scissors at her teacher. Although she was recommended for a CBAT placement, none was available, and in-home therapy was suggested instead. The child returned to school on a shortened-day basis while continuing to live with the maternal grandmother.
The mother's parental rights to all three of her older children were previously terminated. The father had twin older children with whom he had no contact.
Following a three-day trial in February and March 2018, the judge ordered the entry of decrees finding the parents unfit and terminating their parental rights. She approved the adoption plan proposed by DCF, and ordered posttermination and postadoption visitation between the parents and the child, as well as sibling visitation and visitation between the child and the maternal grandmother.
Discussion. "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 a least a fair preponderance of the 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 the judge's findings, which we do not disturb unless they are clearly erroneous. See id. at 606-607. The judge must consider "whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.’ " Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).
1. Unfitness. The mother, father, and child contend that DCF did not meets its burden to prove parental unfitness by clear and convincing evidence. We disagree. Here, the judge fully and properly considered the required factors set forth in G. L. c. 210, § 3 (c ), and found factors (ii), (iii), (iv), (vi), (viii), and (xii) applicable to her determination that the mother and father are unfit.
The mother's unfitness resulted from a "constellation of factors." Adoption of Greta, 431 Mass. 577, 588 (2000). As the mother acknowledges, the evidence supported the judge's finding that the mother exposed the child to domestic violence, which is a "distinctly grievous kind of harm." Custody of Vaughn, 422 Mass. 590, 595 (1996). The mother further acknowledges that she left the child with inappropriate caretakers, including a man who was more or less a stranger to the mother. In addition, the mother has a long history of mental health issues, and she felt that she could not get the treatment she needed while the child was in her care. It is undisputed, moreover, that the child has highly specialized needs. While the mother did make some efforts to obtain services for the child, including by asking for an individualized education plan, the mother was not able to ensure that the child consistently attended school, and she was overwhelmed by the child's behaviors. Overall, the evidence clearly and convincingly showed that the mother exposed the child to an unstable living environment and was unable to provide for her needs prior to her removal from the mother's care.
The mother has been diagnosed with bipolar disorder, depression, attention deficit hyperactivity disorder (ADHD), anxiety, affective disorder, and PTSD, and has had numerous psychiatric hospitalizations.
Furthermore, after the child's removal, the mother failed to fully comply with her service plan tasks, which the judge found "were reasonable and necessary." The mother failed to maintain consistent treatment for her long-standing mental health issues, and admitted that she did not participate in any services since November 2017. She has consistently missed or been late to scheduled visits with the child, even though the DCF social worker sent her notice of them by e-mail, United States postal service, and telephone in order to ensure that she had sufficient notice, and moved the visits to a location that was more convenient for her. During the visits that did occur, the child was "very comfortable in her mother's company," but "the mother continued to struggle with managing [the child's] behaviors." Her last visit with the child was in November 2017; she did not attend the next two scheduled visits prior to trial. The mother also missed several court dates, including the first day of trial. This evidence further supports the determination of unfitness, as it demonstrates the mother's lack of commitment to the child and to addressing the issues that led to the child's removal.
The mother argues that a number of the judge's findings were clearly erroneous or not based on "an even-handed assessment of the evidence." The mother's challenges to the findings are either based on "misinterpret[ations of] what the judge actually found," Adoption of Gregory, 434 Mass. 117, 128 n.6 (2001), or "amount to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). Even if some of the judge's findings are erroneous, "the judge's overall conclusion of parental unfitness is [nonetheless] fully supported by the record." Adoption of Helen, 429 Mass. 856, 860 (1999).
With regard to the father, the evidence clearly and convincingly demonstrated that he had no realistic plan for how he would address the child's extensive and specialized needs. See Adoption of Serge, 52 Mass. App. Ct. 1, 8-9 (2001). The father was never the child's primary caregiver and was only "marginally involved" in her life prior to her placement in foster care. He failed to provide DCF with a parenting plan, making it unclear how he would assume full-time care of the child. The father also failed to fully comply with his service plan tasks -- he stopped attending therapy sessions, which were to deal with his mental health issues, and he continued to use marijuana every day, even though his neuropsychological evaluation recommended that he stop because "it was impacting his daily functioning." He lived in a single room in a homeless shelter, he had applied for some low income apartments, and his plan was to move to a different shelter if he gained custody of the child. Although he was consistent in his scheduled visits with the child when she was placed in Dedham, his attendance at visits became sporadic when the visits were moved to DCF's office in Braintree. He blamed the lack of reliable transportation from the nearest train station to the office, even though the DCF social worker explained to him all the different ways he could get to the office. His last visit with the child occurred in November 2017; he did not attend the visits that were scheduled for January and February 2018, just prior to the beginning of the trial. The judge found that the child was "comfortable" with the father during the visits, but that "[t]he father did not routinely redirect [the child] or intervene during visits when her behavior became unsafe or she misbehaved."
The father has been diagnosed with ADHD, PTSD, depression, and cognitive delays.
There was clear and convincing evidence to support the findings of unfitness.
2. Adoption plan and best interests of child. Consistent with the neuropsychological and educational evaluation, the judge found that the child "requires clear expectations, [and] a high level of nurturing and consistency" "from her care giver due to her attachment issues." She also needs "predictability in her environments." Although the best permanency plan would be to have the child "remain in the permanent care and custody of" the maternal grandmother, in light of the maternal grandmother's unwillingness to serve as the child's permanent resource, DCF's plan was "to recruit a suitable adoptive family for [the child] that meets the child's best interest." DCF also planned "to explore other kinship options or recruitment," but "neither parent has proposed any family members as potential adoptive resources." DCF described the ideal adoptive family as a two-parent home where the child is the only child or is the youngest child. The judge found that the child had "an emotional attachment and relationship" with the mother and father.
When considering the best interests of a child in a termination of parental rights proceeding, the judge must consider the adoption plan proposed by DCF. See G. L. c. 210, § 3 (c ). "The adoption plan need not be fully developed to support a termination order," Adoption of Willow, 433 Mass. 636, 652 (2001), but it must be "sufficiently detailed to permit the judge to evaluate the type of adoptive parents and home environment proposed" and whether the plan will "meet the specific needs of the child." Adoption of Varik, 95 Mass. App. Ct. 762, 771 (2019). We do not agree with the mother and child that the adoption plan was underdeveloped. It "convey[ed] enough information for the judge to assess the various options that [DCF] was actively considering." Id. The fact that the child was not in a preadoptive home is not dispositive. See Care & Protection of Valerie, 403 Mass. 317, 319 (1988) (DCF is not required to identify specific adoptive family).
The mother and child argue that termination was not in the child's best interests because the child was bonded to the parents. Such a finding does not preclude termination. See Adoption of Ilona, 459 Mass. 53, 63-64 (2011). Here, the judge recognized that a bond existed and ordered posttermination and postadoption visits between the child and the parents.
The mother and child also argue that the child's best interests were not served by termination because even though the child "has special needs, it also cannot be disputed that no one else could manage her needs either." However, "termination is appropriate when the eventual goal for the child is adoption, but that due to a disability or other factors, the child is not presently a candidate for adoption." Adoption of Nancy, 443 Mass. 512, 518 n.7 (2005). The judge found that the child "will require the diligent attention, advocacy, and nurturing of a committed and able caretaker," and that "there is no reasonable likelihood that the [parents] will be able to meet the child's needs and interests in the future." There was no abuse of discretion. Contrast Adoption of Chad, 94 Mass. App. Ct. 828, 836-840, 843 (2019) (termination of parental rights decrees vacated where mother's contact with children was "like clockwork," mother completed all required therapy and parenting classes, and there was insufficient proof that mother's issues "affect[ed] her ability to serve the children's best interests").
If she regained custody of the child, the mother's plan was to consult DCF about the child's counsellors and school, and "do all the right things." The father's plan was to "register her to a local school, a local clinic, ... find a therapist for her right away. Get her involved with her psychologist.... I will go right into a shelter with her. I will register her into a team if she likes sports."
3. Adequate services. "Before seeking to terminate parental rights, the department must make ‘reasonable efforts’ aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). The father argues that DCF did not provide him assistance in obtaining suitable housing, "impeded Father's ability to visit with Child" by moving the visits to a location that was difficult for him to reach by public transportation, and failed to accommodate his cognitive deficits. The child argues that if DCF had "assisted [the parents] appropriately and offered them support resources," the parents "could have managed [the child's] special needs." These issue were not raised during the Juvenile Court proceedings, and we need not review them. See Adoption of Gregory, 434 Mass. 117, 124-125 (2001). Moreover, "throughout the entire case, the [parties were] represented by counsel, who could have raised [these] issue[s] at an earlier point in time." Id. at 124.
Even were we to consider these issues, we would not be persuaded. The judge found that one of the father's service plan tasks was to participate in therapy, which "focused on assisting the father in completing his GED, [and] obtaining housing." In addition, DCF assisted the father with his transportation issues by providing a shuttle bus or taxi from the train station to the DCF office, informing him of alternative public transportation methods that would allow him to walk to the office, and allowing the visits to occur even though the father was frequently late. Despite these accommodations, the father requested that the visits occur less frequently. The child's argument that if DCF had offered a parent aide, the parents could have cared for the child, is speculative.
4. Stale evidence. The mother and child contend that the judge relied on the court investigator's report, which, among other things, reviewed the mother's and father's history of mental health issues and their criminal history, and highlighted the mother's past relationships involving domestic violence and the termination of her parental rights to her older children. They argue that the court investigator's report was dated twenty months before the trial began, and therefore did not contain current information about the parents' unfitness. While stale evidence cannot be the basis for finding current unfitness, "[p]rior history ... has prognostic value." Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). The judge properly considered the parents' past conduct as it relates to their current unfitness, as well as their testimony and the testimony of DCF's witnesses about their current status. See Adoption of Larry, 434 Mass. 456, 469 (2001). The argument is unavailing.
Conclusion. Based on our review of the record and the judge's detailed and comprehensive findings, we conclude that the termination decision "reflect[s] an even-handed assessment of all the relevant facts," Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 261 (1978), and that the judge did not abuse her discretion in entering the decrees terminating the parental rights of the mother and father.
To the extent that we have not addressed every argument raised by the parents and the child, we have concluded that they are without merit and warrant no discussion. Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563, 577 (2000).
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Decrees affirmed.