Opinion
18-P-523
06-07-2019
ADOPTION OF PAOLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree issued by a judge of the Juvenile Court terminating her parental rights to her son, Paolo. The judge granted permanent custody of the child to the Department of Children and Families (DCF), and approved a plan of adoption of the child. Concluding that the judge's findings were supported by clear and convincing evidence, that DCF provided reasonable services in light of the mother's lack of cooperation, and that the various delays complained of did not prejudice the mother, we affirm.
The judge also terminated the parental rights of the father. He did not appeal.
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 and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a nonexhaustive list of factors to be weighed in determining the fitness of a parent.
On review of a decision to terminate parental rights, we give substantial deference to the judge 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). "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Here, the mother does not directly contest the judge's findings that she is unfit to care for the child. Nonetheless, we conclude that the evidence supports the conclusion that the mother was unfit to parent the child and would remain unfit in the foreseeable future.
The judge's determination of the mother's unfitness was supported by clear and convincing evidence because of the mother's inability to confront her mental illness and accept effective treatment, coupled with her inability to recognize the negative impact domestic abuse has had on the child. There is ample support in the record for the judge's finding that the father has a history of domestic violence against both the mother and the child, including a physical altercation that resulted in the father's conviction and incarceration.
DCF first became involved in this case in September 2008, after G. L. c. 119, § 51A, filings alleging domestic abuse by the father against the mother and the child. On January 14, 2013, the mother called the police to report another domestic disturbance. The mother reported that the father was drunk and pulled the child's leg, causing the child to fall out of the bed and hit his head on the hardwood floor. On December 29, 2013, police and emergency services responded to a domestic abuse incident at the mother and father's residence. The mother reported that, when the child tried to intervene in a fight between the mother and the father, the father shoved him and kicked him in the chest. When the mother attempted to protect the child, the father struck the mother in the head several times and threatened to kill her. As a result of this incident, the mother and the child were transported to the hospital and the father was later arrested and convicted on charges relating to this incident, for which he was incarcerated. On March 30, 2015, after becoming aware of the mother's manic behavior and apparent desire to reunite with the father, DCF filed a petition for, and obtained, temporary custody of the child.
"It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015), quoting Custody of Vaughn, 422 Mass. 590, 599 (1996). Indeed, the child's expert reported that the child presents as insecure, is fearful of expressing his feelings, and anxiously conforms to please others. The expert concluded that the child's developmental experiences were demonstrably impacted by his parents' fighting. The child's difficulty acknowledging his emotions caused stress and anxiety that manifested in physical symptoms such as vomiting and diarrhea. Nonetheless, the mother has repeatedly denied or minimized the child's exposure to domestic violence. The mother, in explaining her plans to meet the father for dinner upon his release from prison, stated that, although the father had punched her and kicked the child, the child did not have any bruises or broken bones. Even after the child's removal, the mother continued to deny that the child was negatively impacted by domestic violence. At trial, the mother denied that the child witnessed any domestic violence aside from the December 29, 2013, incident, despite the fact that on three separate occasions the mother called the police because of the father's physical violence against her and the child. At trial she testified, "I would not ever define my relationship with [the father] as one of domestic violence."
In making his determination as to the mother's fitness, the judge properly considered the mother's intermittent desire to reestablish contact with the father upon his release from prison, despite the terms of the father's probation requiring him to stay away from the mother and the child. After receiving a report from the mother's therapist that the mother had plans to reunite with the father, DCF conducted an investigation pursuant to G. L. c. 119, § 51B (51B investigation) in March 2015. During the 51B investigation, the mother appeared to be manic and experiencing frequent mood swings. The mother admitted to DCF workers that she and the child had dinner plans with the father that night but that the father had canceled. After the child's removal, the mother continued to vacillate between understanding the need to stay away from the father and insisting that the father and the child maintain a relationship.
The mother's failure to consistently engage in the services provided by DCF also appropriately informed the judge's decision that the mother was unfit. After the child was taken into DCF custody, DCF prepared a service plan that required the mother to complete a program to address the effects of domestic violence on herself and the child. The mother attended three sessions in November 2015 but did not finish the program. See Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017) (judge properly considered failure to participate in services to address domestic violence in determining parental unfitness). The mother reported that she was in another domestic violence group but never signed any releases to enable DCF to verify her attendance. Moreover, the mother claimed that the domestic violence group sessions she did attend were "not helpful at all." Indeed, she testified, "I learned that eye rolling is considered abuse." She remained unable to explain how domestic violence impacts children.
The judge also properly considered the mother's mental illness and her failure to accept her diagnosis and comply with treatment. "A parent may be found unfit because of mental deficiencies, but only where it is shown that such 'deficiencies impaired her ability to protect and care for the [child].'" Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Quentin, 424 Mass. 882, 888-889 (1997). Here, the mother suffers from posttraumatic stress disorder and bipolar disorder. DCF workers reported that the mother was manic and difficult to keep on topic during visits. The mother's psychologist reported that the mother had difficulty modulating her own anxiety and interpersonal boundaries. The mother often spoke openly about adult and personal topics in front of the child. The child's psychological evaluation indicated that this behavior was psychologically damaging to the child and put "overwhelming stress and anxiety on [him]." As a result, the child suffered from anxiety and poor self-esteem, as well as vomiting and diarrhea. By contrast, the mother refused to recognize the impact of her mental illness on the child, "did not see intrusiveness as a problem," and "believed her parenting of [the child] was wonderful." The mother has not demonstrated that she has the ability or inclination to control her bipolar disorder. As a result, her illness has significantly impaired her ability to care for the child. The evidence adequately supports a finding of unfitness that is likely to continue indefinitely. See Adoption of Ilona, 459 Mass. at 59-60.
Moreover, the mother's refusal to accept her diagnosis makes progress unlikely. Since the child's removal, the mother has repeatedly alleged that her behavioral issues are caused by diagnoses other than bipolar disorder, such as a tumor and menopause. Even at trial she questioned the diagnosis of bipolar disorder. Additionally, the mother's compliance with treatment has been inconsistent at best, and she has been unwilling to share psychological evaluations with DCF as set out in her service plans. In 2016, the mother's therapist reported that she "has made little to no progress." The mother's expert testified at trial that the mother "was very hesitant about taking medications," that the chance of "treatment success is greatly diminished if a person's unwilling to accept or take the medications or treatment services," and that the mother "had a very limited understanding or appreciation for the impact of her symptoms on her life." The mother's inability to recognize the negative impact her illness has had on the child makes it difficult for her to seek help and improve her fitness as a parent. The judge's findings relating to both the mother's mental illness and the history of domestic violence in the family "are specific and detailed, and they demonstrate that [s]he gave close attention to the evidence." Adoption of Talik, 92 Mass. App. Ct. at 374. Accordingly, the judge properly found that the mother's "'grievous shortcomings' . . . put the child's welfare much at hazard," and thus that termination is in the best interests of the child. Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018), quoting Adoption of Leland, 65 Mass. App. Ct. 580, 584 (2006).
2. Termination of visits. "Biological parents are entitled to visitation with their child so long as the visits are not harmful to 'the welfare of the child and the public interest.'" Adoption of Rhona, 57 Mass. App. Ct. 479, 488 (2003), quoting G. L. c. 119, § 35. "[B]efore terminating visitation rights, a judge must make specific findings demonstrating that parental visits will harm the child or the public welfare." Adoption of Rhona, supra at 489, quoting Custody of a Minor (No. 2), 392 Mass. 719, 726 (1984). The mother argues that the judge's failure to make findings at the time visitation was terminated warrants remand. The judge postponed a decision on DCF's motion to suspend visitation pending a guardian ad litem report, and there is no indication in the record that the mother posed any objection to the delay. Indeed, on this record, it appears that the mother first objected to the suspension of visitation over a year after visitation ceased and then specifically requested that the visitation decision be combined with the termination trial.
Nonetheless, we cannot countenance such a delay in deciding whether visitation should occur, even when the parents acquiesce. Such an error, however, does not automatically undermine the judge's decision on termination or posttermination visitation. In considering what remedy, if any, is required, "our lodestar is, of course, the best interests of the child[]." Adoption of Natasha, 53 Mass. App. Ct. 441, 450 (2001). "To set aside the department's decision, the [mother] must show not only that the department violated its own regulations, but also that [her] substantial rights were prejudiced by its action." Wilson v. Department of Social Servs., 65 Mass. App. Ct. 739, 747-748 (2006).
Here, giving no weight against the mother to the absence of visitation between August 2015 and the end of the trial, we need not disturb the judge's conclusions because the mother's rights were not prejudiced and the suspension of visitation was in the best interests of the child at the time it first occurred. See Adoption of Natasha, 53 Mass. App. Ct. at 450-451. The mother was frequently late to visits and her behavior during visits was erratic and noncompliant with the visitation guidelines set out in her service plans. The mother "would be talking very fast, switching topics very frequently" such that "[i]t was difficult to . . . make sense of the conversations." The mother would try to discuss the father and the foster home with the child and made "a lot of references to Jewish people in concentration camps."
The mother tries to cherry-pick snippets of the testimony of the child's expert to support continued visitation. For example, the mother asserts that the child told the expert he "did in fact want visits," but the expert actually testified that the child expressed "ambivalence" and that "part of him" wanted visits. She also asserts that the expert testified that "contact with his parents was of 'significant importance' and that not having contact with Mother could have a 'negative outcome'" on the child. In fact, the expert testified that the absence of contact "could have a negative outcome on [the child] if somebody else just makes the decision for him without him having felt some sense of agency." He further testified that, "if the parents have appropriate professional guidance in recognizing some of the difficulties [the child] has had and the reasons why, I think that there's certainly aspects of the longevity in those relationships that could be of significant importance." Similarly, he explained that visits would place the child "at risk for future emotional and behavioral problems" unless the mother learned "to hold back and not overwhelm [the] child and recognize the difference between . . . her feelings and his feelings." There appears to be little prospect for the mother learning the skills necessary for visits to be beneficial for the child, as she sees no need to improve her behavior. She testified at trial, "I certainly don't think anything during our visits . . . were inappropriate," and that the child's discomfort was because they "were meeting in an isolated stale environment of a DCF-run organization." She testified that visits were unsuccessful "[b]ecause [the social worker] didn't like the way my hair was parted" and "had some issues of her own that she was putting off on me."
Despite this, the mother argues that a judge should not defer to a child's preferences. Although she asserts that the judge deferred to the child, she provides no citation to any part of the record, and we discern no indication that the judge did anything other than make his own determination whether visitation was in the best interests of the child.
Addressing this, the judge left the issue of postadoption visitation to the discretion of the adoptive parents, and the record reflects that they are open to such contact.
Accordingly, there was little prospect that visitation could be resumed in the foreseeable future without harming the child. As there is no reason in this record to believe that the mother could have succeeded in obtaining resumption of visitation, she was not prejudiced by the adjudication delay, and a remand is not warranted. See Adoption of Natasha, 53 Mass. App. Ct. at 450.
3. Reasonable efforts. "Before seeking to terminate parental rights, [DCF] 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). To do so, DCF must "accommodate the special needs of a parent." Adoption of Ilona, supra at 61. This duty to make reasonable efforts, however, presumes the mother's fulfillment of her own responsibilities, such as service plan compliance and maintaining meaningful contact with DCF. See Adoption of Eduardo, 57 Mass. App. Ct. 278, 282 (2003) ("Because the mother failed to make use of the services offered to strengthen and then reunify her family and denied her mental health needs by refusing both evaluation and treatment, she cannot successfully argue that DSS's reasonable efforts failed to accommodate properly her mental health needs or to strengthen her family"). Here, the mother was not compliant with her service plans and failed to provide DCF with important information. The mother repeatedly canceled appointments with DCF to discuss her progress. The mother was hesitant about taking medication and did not agree with her bipolar disorder diagnosis. The mother was unwilling to share results of a psychological evaluation with DCF and eventually shared a redacted version that was unhelpful in determining appropriate services that the mother required. The mother attended a parenting program but continued to need substantial support after her completion of the program. The mother continuously minimized the impact of domestic violence on the child and failed to complete a domestic violence program as required by her service plans. Accordingly, DCF did not fail to meet its obligation to make reasonable efforts to restore the child to the care of the mother.
The mother asserts that "[t]here is no evidence that Mother was ever provided a service plan by DCF." In fact, the mother lodged no objection to the admission of multiple service plans in evidence and acknowledged the existence of service plans repeatedly in her testimony. We discern no clear error in the judge's finding that there were service plans.
4. Delay in findings. The mother argues that her due process rights were violated because of the delay between the beginning of the trial and the issuance of findings. Although a delay is always disfavored, "[t]he mother has not indicated in any meaningful way how the delay affected the judge's findings or conclusions." Adoption of Luc, 94 Mass. App. Ct. 565, 571 (2018). See Adoption of Don, 435 Mass. 158, 170 (2001) (no violation of due process rights where parents are unable to show that outcome of case would have been different without delay). Moreover, most of the delay was attributable to the mother. Except for the mother's testimony, DCF's case was completed well within the thirty-day time period set forth in Juvenile Court Standing Order 1-10. Further continuances were to allow for the mother's witnesses or the mother's own testimony, and were scheduled in consultation with the mother. To be sure, over six months passed between the filing of the notice of appeal and the issuance of the judge's findings, considerably over the relevant time standard. See Juvenile Court Standing Order 2-07(III)(C). Nonetheless, we can discern no way in which this delay affected the findings. "The harm of that delay in this case, as in many others, is unfortunately suffered principally by the child[]." Adoption of Don, supra.
Juvenile Court Standing Order 2-07 was in effect during the relevant time period but superseded in 2018 by Standing Order 2-18.
Decree affirmed.
By the Court (Rubin, Desmond & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 7, 2019.