Opinion
No. 16–P–423.
12-08-2016
ADOPTION OF NAZIR (and two companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from decrees issued by a judge of the Juvenile Court terminating her parental rights as to her sons Nazir, Theo, and Michael and dispensing with her rights to consent to their adoption. She claims that the judge erred (1) in terminating her parental rights and (2) in ordering that postadoption visitation be at the discretion of the children's adoptive parents. We affirm.
The mother does not appeal from the termination of her parental rights to her two daughters who were a part of this proceeding in the Juvenile Court. The father does not appeal from the termination of his parental rights to any of the children.
Background. We summarize the relevant facts and procedural history from the judge's comprehensive findings, reserving some details for discussion of the issues. Since 2007, the Department of Children and Families (department) has been extensively involved with the mother and her five youngest children, the three boys at issue here and two girls who were named in the underlying case but who are not a part of this appeal (see note 2, supra ). Since that time, approximately twenty G.L. c. 119, § 51A, reports of abuse and neglect have been filed.
The mother also has three older children of whom she does not have custody.
The record shows considerable evidence of neglect, physical abuse, and sexual abuse by the mother toward all five children. Additionally, the mother has been diagnosed with serious mental health issues as well as cognitive impairments. She has had multiple psychiatric hospitalizations and has been the subject of restraining orders and criminal charges stemming from volatile relationships with the father and other members of her family and the father's family. The children each exhibit serious mental, emotional, and behavioral issues. Due to their variety of special needs, the children require specialized attention and care.
After removal from the mother's care, all five children needed extensive dental work to fill and remove rotten teeth and "did not know how to shower or ensure basic hygiene." There was evidence that the mother hit several of the children with a belt and other objects. The judge also found that "at a minimum the children were exposed to inappropriate sexual behaviors while in the care of Mother ... and that this exposure amounted to sexual abuse."
The judge credited a doctor's diagnosis that the mother has borderline personality disorder which is "characterized by very intense inappropriate anger, affective instability, a pattern of unstable relationships including volatility with idolizing and devaluing people, frantic efforts to avoid abandonment, recurrent suicidal threats, impulsivity, an identity disturbance, and sometimes transient paranoia" which "interferes with her ability to prioritize a child's needs over her own, set a regular schedule where the needs of the children are put first, and consistently engage with services."
The father has lived with the mother and the children at times but is married to another woman.
The judge found that "[a]ll five children receive special educational services through Individual Education Programs. The four youngest children have each been diagnosed with PTSD and each has some sort of developmental delays or cognitive limitations.... The three boys have been diagnosed with ADHD. [The two girls and Nazir] have had multiple psychiatric hospitalizations, and [Theo] has required placement in acute care because of his declining mental health. In addition to these mental health and developmental issues, [Nazir] has a seizure disorder, and in the past required antipsychotic medications because he was experiencing hallucinations."
For years, the family has received department services, including in-home therapy clinicians as well as other specialized outside providers. The mother has also attended individual therapy to address her mental health issues. She has participated inconsistently in these services and has shown little improvement. The court clinician testified that the mother "is unlikely to be successful in treatment because she has a lower than average interest in treatment and because of her cognitive limitations." The mother has continually shown that she fails to understand the seriousness of her children's needs as well as their root causes. She has also had problems in storing and administering prescribed medications to the children, despite repeated instruction from providers.
In April of 2013, after both the mother and the father separately attempted suicide, the department filed a petition alleging that the children were in need of care and protection. Both parents waived their rights to a hearing and temporary custody was awarded to the department. After the mother's inappropriate and disruptive behavior during a supervised visit, the department suspended visitation.
In January of 2014, the department filed a notice of intent to terminate the parental rights of both parents, and the termination trial began in June of 2015. The department submitted proposed adoption plans at trial. Adoptive families were to be recruited for the three boys. Following the trial, the judge determined that both parents were unfit and that their unfitness was likely to a near certitude to continue indefinitely. The judge terminated their parental rights and determined that the department's adoption plans were in each child's best interests. The judge also ordered that any postadoption visitation would be at the discretion of the adoptive families.
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[ren] and that termination is in the child[ren]'s best interests." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). In determining whether the best interests of the children are served by a termination of parental rights, the court "shall consider the ability, capacity, and readiness of the child[ren]'s parents ... to assume parental responsibility." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G.L. c. 210, § 3(c). In doing so, "[w]e give substantial deference to a judge's decision ... 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).
The judge's detailed findings of fact and conclusions of law, for which there is ample record support, clearly and convincingly establish the mother's unfitness. The mother has a long history of subjecting the children to physical abuse, neglect, and other destructive behavior. The judge also found that the children had been exposed to sexual abuse. These factors have led to serious mental, emotional, and behavioral problems among the children.
The mother does not dispute that she is unfit to care for her children. However, a finding of current parental unfitness does not, standing alone, justify termination of parental rights. Adoption of Nancy, 443 Mass. 512, 515 (2005). "After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child." Ibid. This includes consideration of the adoption plan propounded by the department. Id. at 515–516, citing G.L. c. 210, § 3(c). The mother contends that, despite her unfitness, the termination of her parental rights as to the three boys is reversible error because of the department's unrealistic and insufficiently detailed adoption plans.
Based on the judge's findings, it would be harmful for the children to return to the mother in any circumstances. In Adoption of Nancy, supra at 517, although a permanent adoptive family had yet to be found for the children, the Supreme Judicial Court recognized the value and necessity of severing the parental relationship. In the current case, the mother has at times accepted help from the department, however, she has failed to make improvements in her ability to parent. As in Adoption of Nancy, supra, a parent's consistent refusal and inability to achieve fitness has led to a situation in which "it is only fair to the children to say, at some point, ‘enough.’ " Additionally, there was clear and convincing evidence to support the judge's determination that the mother's unfitness is likely to continue into the indefinite future to a near certitude. See Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998) (judge could use "past conduct, medical history, and present events to predict future ability and performance as a parent").
Moreover, the department's plan of adoption through recruitment for the three boys is not inadequate. There is nothing in the statutory or decisional law to suggest that an adoption plan need be fully developed. See, e.g., Adoption of Stuart, 39 Mass.App.Ct. 380, 393 (1995). It is enough that the plan "have content and substance enough to permit the court meaningfully to evaluate and consider ... what [the department] proposes to do for the child by way of adoption." Ibid. See Adoption of Dora, 52 Mass.App.Ct. 472, 477 (2001) (plan must provide sufficiently specific information so that the judge may properly evaluate proposal). Further, "[a] judge considering an adoption plan must make specific findings reflecting careful evaluation of the suitability of [the department's] proposal." Adoption of Lars, 46 Mass.App.Ct. 30, 31 (1998).
Here, the department's proposed adoption plans were sufficient enough to allow the judge to make specific findings as to each child's proposed plan. The department's plans for the three boys involved registering them with the Massachusetts Adoption Resource Exchange and participating in adoption parties, matching events, and networking. The judge found that given each child's history both before removal and while in the custody of the department, as well as their specific needs, adoption through recruitment was in their best interests. He also agreed with the department that maintaining sibling visitation should be a priority in placing the children, as well as possibly placing the two younger boys in a home together. While it is true that permanent placement may be difficult, especially for Nazir, considering his severe psychiatric issues, the judge carefully considered and determined that adoption through recruitment was the best route for these children.
Initially, the department's plan was to place the two younger boys together. However, following an incident between the two at a foster home, the department was considering separate placements. The ultimate determination would depend on the outcome of one of their "ASAP" evaluations, which had not yet been completed at the time of trial.
Furthermore, the mother's plan if she were granted custody of the children is insufficient as she "is currently living in an apartment ... that is not large enough to accommodate the children. Her plan if custody is returned to her is to move them into a shelter. She would plan to get services back in place for them and add family therapy...."
The plans submitted by the department, in combination with the overwhelming evidence presented at trial concerning the mother's unfitness and the children's best interests, were "sufficiently specific and detailed" to support the termination of the mother's parental rights. Care & Protection of Three Minors, 392 Mass. 704, 717 (1984).
2. Postadoption visitation. The mother claims that the judge abused his discretion in determining that posttermination visitation was against the three boys' best interests. We disagree. While the judge declined to order any posttermination visitation following the trial, he stated that postadoption contact will be at the "discretion of the adoptive parents in consideration of the best interests of the children at the time."
Once it is established that a parent is unfit, any visitation plan is left to the discretion of the trial judge. Adoption of Ilona, 459 Mass. at 65–66. The judge should base this decision on the child's best interests. Adoption of Vito, 431 Mass. 550, 553 (2000). Moreover, the judge may order that visitation be at the discretion of the adoptive parent. Adoption of Ilona, supra at 66.
Here, the judge properly determined that it was not currently in the children's best interests to reinstate visitation with their mother, which had been suspended by the department after the mother's disruptive behavior at a previous visit. The judge credited the testimony of one of the department's providers as well as the court clinician's expert opinion that the risks of continued visitation outweigh any potential benefits. The judge concluded that while the children do have some bond with their mother, prior to their suspension, the visits were causing negative reactions in the children, all of whom continue to have fragile mental health states. The mother offered no contrary expert opinion and instead, on appeal, unpersuasively attacks the court clinician's underlying report.
The mother also relies on isolated statements from some of the children in her assertion that visitation should be reinstated now. While a child's expressed preference for posttermination visitation is entitled to some consideration, it is not controlling. See Care & Protection of Georgette, 439 Mass. 28, 36 (2003). Further, given their specific limitations, it is not clear that the children have the ability to fully appreciate their best interests or their mother's role in creating the serious difficulties they currently face. See Adoption of Nancy, 443 Mass. at 519. Notably, the boys' counsel on appeal agrees with the judge's findings that visitation is not currently in the children's best interests. The judge properly balanced the appropriate factors in concluding that the adoptive parents should determine any visitation with the mother at a later time.
Decrees affirmed.