Opinion
20-P-806
07-13-2021
ADOPTION OF LYNN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court finding him unfit and dispensing with the need for his consent to the adoption of his daughter, Lynn. He contends that the judge erred by finding that (1) the Department of Children and Families (department) made reasonable efforts at reunification, and (2) that it was in the best interests of the child to terminate his parental rights and approve the department's plan of adoption. We affirm.
The judge also found the mother unfit and terminated her parental rights. The mother died subsequent to trial and is not a party to this appeal.
Lynn's position, at trial and on appeal, is that termination of the father's parental rights and adoption by the paternal aunt is in her best interests.
Background. In July 2015, when the mother was thirty-two weeks pregnant with Lynn, she was admitted to the hospital for complications related to diabetes. When the mother's condition worsened, Lynn was delivered by emergency cesarean section. At the time Lynn was born, both the mother and the father were homeless. They were staying in shelters that did not allow children and had not made the appropriate preparations for the birth of the child. The mother had an intellectual disability that qualified her for services with the Department of Developmental Services. She also had a medical guardian.
A few days after Lynn's birth, a mandated reporter, concerned that the mother's physical health and cognitive limitations made the mother incapable of making medical decisions for Lynn, filed a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect. The department filed a petition alleging that Lynn was in need of care and protection and was granted emergency custody, although Lynn remained in the hospital until she was three weeks old. She was then placed in the care of her paternal aunt and has remained in that home throughout the duration of these proceedings.
Although the 51A report did not allege neglect of Lynn by the father, the department did not attempt to place Lynn in his care.
The department developed service plans for both the mother and the father. Based on reports that the father was controlling toward the mother and had been the subject of abuse prevention orders during a previous relationship, he was tasked with engaging in a domestic violence treatment program. He was also directed to seek individual therapy, participate in parenting classes, and cooperate with the department. The father was not receptive to the service plan or to discussing it with the department, at one point declaring to social workers that they were "crazy if [they thought he] was going to do this," and that "[he was] not doing anything." The father also attempted to prevent the mother from meeting with social workers. The father's relationship with the department was marked by more than passive recalcitrance; he often became "irate" at social workers, raising his voice and "abruptly walk[ing] out of the meeting[s]."
At a hearing in March 2016, the department's concerns as to the father were his "untreated mental health, [his] control of mother, [his] lack of engagement with [the department], and [his] unwillingness to listen to an explanation of [the department's] basis for petitioner being petitioner in this case." The department requested, and the judge ordered, that the parents be evaluated by the court clinician. However, in April 2016, based on the parents’ failure to engage in their service plans or to demonstrate an ability to parent Lynn independently, the department changed the goal for Lynn to permanency through adoption. A trial on the merits was held over twelve days, beginning on May 22, 2018 and ending on July 18, 2019.
The clinician's report was filed with the court in January 2017 and included test results indicating that the father had a "moderate intellectual disability." The clinician attributed the father's behavior to this diagnosis and opined that his "resistance [to services] is primarily due to his struggle to understand the complexities of the multiple systems involved in [the parents’] lives." As a result of this evaluation, the department held an accommodations meeting, and the language of the service plan was "modified in order to adhere to the Federal Americans with Disabilities Act."
Discussion. 1. Reasonable efforts. The father first claims that the department failed to make reasonable efforts at reunification as required by G. L. c. 119, § 29C, and in particular failed to offer services tailored to accommodate his intellectual disability. "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. 53, 60 (2011). "Where a parent, as here, has cognitive or other limitations that affect the receipt of services, the department's duty to make reasonable efforts to preserve the natural family includes a requirement that the department provide services that accommodate the special needs of a parent." Id. at 61. Nevertheless, "even where the department has failed to meet this obligation, a trial judge must still rule in the child's best interest." Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), quoting Adoption of Ilona, supra.
The father's argument is unpersuasive for two reasons. First, a claim of inadequate services must be raised at a juncture in the proceeding when remedy is possible, "either when the parenting plan is adopted, when he receives those services, or shortly thereafter." Adoption of Gregory, 434 Mass. 117, 124 (2001). See Adoption of West, 97 Mass. App. Ct. at 242-243 (citing examples of redress procedures). The father does not argue, and the record does not indicate, that he voiced his objection to the department's proposed service plan by filing an administrative grievance or an abuse of discretion motion. See Adoption of Gregory, supra (claims of inadequate services made for first time on appeal may be deemed waived).
We are cognizant that the mother's intellectual disabilities were a concern from the start of this proceeding. Both the docket and the transcript indicate that the father filed an abuse of discretion motion on the grounds that the father believed that the department was not providing developmentally appropriate services to the mother. However, and even assuming that the father had standing to file such a motion, the record shows that the judge, per the father's request, took "no action on [the motion]." The father never filed a motion or otherwise asserted that the department was not providing appropriate services to him.
The second and more substantive reason stems from the first. The department cannot provide accommodations for a disability of which it is unaware. Contrast Adoption of Chad, 94 Mass. App. Ct. 828, 839 n.20 (2019) ("the extent to which available supports could have compensated for the mother's cognitive deficiencies was a theme that ran through the life of the case"). Here, the father was not diagnosed with an intellectual disability until the court clinician referred him for psychological testing, and the department did not learn of the results until the court clinician filed her completed report in January 2017. By that time, the care and protection case had been open for nineteen months. The father had remained homeless and was living in his vehicle. He had not yet completed a parenting class, nor any of the other tasks on his service plan, and consistently failed to attend meetings with the department. This lack of progress convinced the department, in April 2016, to change the goal for Lynn to permanency through adoption. Although the department continued to offer supportive services to the father through his service plan, his failure to utilize these services excused the department from making additional, futile efforts on his behalf. See Adoption of Varik, 95 Mass. App. Ct. 762, 769 (2019) (department's "obligation is ‘contingent upon [the father's] fulfillment of [his] own parental responsibilities [citation omitted]’ ").
The benefit of hindsight suggests that it would have been preferable to request a clinical evaluation of the parents earlier in the proceeding. But see Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002) ("heroic or extraordinary measures, however desirable they may at least abstractly be, are not required").
2. Termination of parental rights. The father next contends that the judge erred in terminating his parental rights and approving the department's permanency plan for Lynn of adoption by the paternal aunt. He concedes that he is currently unfit to parent Lynn but argues that "there is a reasonable likelihood that his unfitness would be temporary" had the department "made the appropriate accommodations to the services they had offered him." He claims that his proposed placement plan, giving the paternal aunt permanent guardianship of Lynn, did not require the termination of his parental rights.
Although parental unfitness alone does not require a termination of parental rights, termination is appropriate where, as here, it is in the child's best interests. See Adoption of Nancy, 443 Mass. 512, 515 (2005). The standard for determining the best interests of the child is similar to that of parental fitness and "reflect[s] different degrees of emphasis on the same factors." Id., quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). Here, the judge found that the father's "lack of progress in participating in services ... including obtaining stable housing, and [his] inability to learn or apply parenting skills ... is a strong indicator that [his] shortcomings will continue undiminished in the future." See Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997) (judge "may consider past conduct to predict future ability and performance"). We cannot say this finding is clearly erroneous where, by the time of trial, nearly four years had passed and the father had not taken significant, proactive steps to correct the shortcomings that affected his ability to safely parent Lynn.
Nor can we agree with the father's contention that there was a reasonable likelihood this his unfitness would be temporary had the department provided services with appropriate accommodations. For the reasons stated herein, the judge did not abuse her discretion in finding that the department had fulfilled its statutory duty to make reasonable efforts. Moreover, once the father was diagnosed with an intellectual disability, the department did make modifications to the father's service plan. The father did not increase his participation or demonstrate an improved ability to parent as a result of the modifications.
The judge also considered Lynn's needs. The judge found that Lynn had "special needs arising from a developmental delay ... [and] at the time of trial exhibited little to no functional speech." Additionally, the record indicates that Lynn was evaluated for early intervention services and found to qualify based on her scores in the "cognition" and "communication" areas of the test. Although the judge recognized that the father, at least theoretically, "possess[ed] the best intentions as it pertains to Lynn's long term well-being," she also found that the father's "mental deficits have prevented him from acquiring any knowledge or insight into the rigors or responsibilities" of the type of care that Lynn's special needs would require. The paternal aunt, by contrast, has cared for Lynn since birth and demonstrated that she has an understanding of, and is attentive to, Lynn's special needs. The father's contention that termination was unnecessary because his proposed plan for guardianship was functionally the same as the department's plan for adoption is unavailing, because it ignores the importance of stability and permanence in a child's life. See Adoption of Hugo, 428 Mass. 219, 228-229 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See also Adoption of Bianca, 91 Mass. App. Ct. 428, 434 (2017) (affirming judge's decision to approve adoption plan over parent's proposal for guardianship).
Decree affirmed.