Opinion
No. 13–P–1957.
10-08-2014
ADOPTION OF WALT (and two companion cases).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Juvenile Court issued decrees terminating the parental rights of the mother and father and dispensing with their rights to consent to adoption of their three children, Walt, Henry, and Peter. See G.L. c. 210, § 3. On appeal, the mother challenges the correctness of the judge's findings and conclusions as to her parental fitness. She argues that the trial judge erred in terminating her parental rights because she obtained and benefited from services to remedy her parenting deficiencies, and those services will continue to be available to her. She also contends that the judge's subsidiary findings were fatally flawed.
After careful review of the judge's findings and the record, we conclude that the judge did not err in finding the mother unfit and discern no merit in the parents' other claims of error. We therefore affirm the decrees terminating the mother's parental rights.
The father does not challenge the findings concerning his own unfitness, or the decrees terminating his parental rights; the propriety of those decrees accordingly is not at issue. We need not consider the father's various challenges to the decrees terminating the mother's rights, as the father is without standing to raise them. See Adoption of Paula, 420 Mass. 716, 722–723 n. 8 (1995). In any event, we discern no merit in the father's arguments on the mother's behalf.
Background. We summarize the material facts from the judge's findings, which are supported by the evidence, supplementing them with additional facts not in dispute. We discuss additional evidence and findings below in connection with the issues the mother raises.
At the age of eight, the mother sustained a traumatic brain injury, which causes migraines and seizures. She also suffers from cognitive impairments, short-term memory loss, and diagnosed posttraumatic stress disorder (PTSD) and depression. The mother and father began their on and off again relationship in 2003 when they were eighteen and nineteen years old respectively. They had their first child together in 2005. Both parents have criminal records, and the father regularly committed domestic violence against the mother throughout their relationship. Over the years, the mother has obtained various abuse prevention orders under G.L. c. 209A (209A orders) in response to the father's abuse, but the 209A orders have all since expired. The mother has a history of unstable housing, moving in and out of shelters, and her last employment was in 2010. The father was also unemployed at the time of trial.
Neither that child nor two other children of the mother are subjects of this proceeding. The mother does not have custody of any of these older children.
The children at issue were born in 2008, 2009, and 2011. The two older children suffer from a variety of physical and cognitive disabilities. The youngest child (who was removed from the parents' custody at birth) is developmentally on target but is considered at risk due to the conditions in the family.
The oldest has diagnosed developmental delays, attention deficit hyperactivity disorder (ADHD), PTSD, separation anxiety, adjustment disorder, attachment disorder, asthma, toe-walking, and sleep apnea. He receives various services for these conditions. The second child is physically healthy but suffers from diagnosed adjustment disorder, emotional dysregulation, and separation anxiety. He has behavioral issues with peers and receives therapy for aggressive behavior.
While the mother was in labor with the youngest child in May, 2011, she experienced a seizure and entered a coma-like state. On May 25, the Department of Children and Families (DCF) filed the care and protection petitions and took temporary custody of the children. DCF noted that the mother had left the other two children in the father's care despite having an active 209A order against him and despite having agreed with her caseworker, in advance, that the father should not care for the children during her hospitalization. Approximately one month after giving birth, the mother regained consciousness and capacity. The children remained in foster care. The mother complied with her service plan, including, among other things, participating in individual therapy, parenting and psychological evaluations, and regular supervised visits with the children.
In March, 2012, new tasks were added to the mother's service plan, including requirements that she attend scheduled visits with the children's doctors and regularly contact her children's service providers. The mother continued to comply with the old tasks but failed to comply with the new ones.
The mother began attending weekly domestic violence group services in August, 2012. This program also referred her to two organizations to help with day-to-day tasks such as transportation, scheduling, and parenting skills.
The parties disagree as to whether DCF ever referred the mother for services related to her traumatic brain injury as required by the service plan. However, the record contains evidence that DCF did refer her and reach out to the program on multiple occasions, but that by the time she was finally accepted, the mother did not meet with the program representative and told the representative that she did not need services.
In October, 2012, DCF changed the goal from reunification to adoption. In May, 2013, the trial judge conducted a hearing over the course of five nonconsecutive days on the merits of DCF's motion to terminate parental rights, and the judge entered decrees terminating each parent's rights on May 31, 2013.
The judge issued written findings of fact and conclusions of law on August 13, 2013.
Discussion. The mother argues that the judge erred in his assessment of the facts and that his findings of fact do not support the ultimate conclusion of parental unfitness. She alleges various evidentiary errors, which are necessarily intertwined with the issue of fitness. Specifically, she contends that the judge's findings do not reflect a careful assessment of the evidence, that he failed to give adequate consideration to certain evidence that was favorable to her case, that certain findings and conclusions are unsupported by the evidence, and that he improperly considered certain evidence. We address each argument in turn.
a. Finding of unfitness. Before terminating the legal relationship between a parent and child pursuant to G.L. c. 210, § 3, a judge must first determine by clear and convincing evidence that the parent is unfit and that termination is in the child's best interests. See, e.g., Adoption of Nancy, 443 Mass. 512, 515 (2005). “These twin determinations are not separate and distinct but, instead, are ‘cognate and connected steps' that ‘reflect different degrees of emphasis on the same factors.’ “ Adoption of Malik, 84 Mass.App.Ct. 436, 438 (2013), quoting from Adoption of Cesar, 67 Mass.App.Ct. 708, 712–713 (2006). In this case, the judge properly focused on the mother's fitness at the time of trial. See Adoption of Lenore, 55 Mass.App.Ct. 275, 281 (2002).
Decisions as to the best interests of a child are discretionary and rely heavily on “the trial judge's experience and judgment.” Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). In light of this, the judge's decision is entitled to “substantial deference.... [O]ur task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused his discretion or committed a clear error of law.” Adoption of Hugo, 428 Mass. 219, 225 (1998). It is not our function to evaluate the weight assigned by the trial judge to the evidence, or to second guess his assessment of credibility of witnesses. See Custody of Eleanor, 414 Mass. 795, 799 (1993).
This deference to the trial judge's consideration of the evidence “requires that the judge make ‘specific and detailed findings demonstrating that close attention has been given to the evidence.’ “ Adoption of Abby, 62 Mass.App.Ct. 816, 823 (2005), quoting from Adoption of Quentin, 424 Mass. 882, 886 (1997). The question on appeal is not whether there is evidence to support the mother's position, but whether the judge's subsidiary findings are supported by a fair preponderance of the evidence, and, if so, whether, taken together, these findings “prove clearly and convincingly that the [mother is] currently unfit to provide for the welfare and best interests of [her] children.” Adoption of Quentin, supra at 886. These findings “will not be disturbed unless clearly erroneous.” Ibid. “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. at 799 (quotation omitted).
Despite the moral overtones of the statutory term “unfit,” the judge's decision is not a moral judgment. The inquiry is whether the parent's deficiencies “place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). “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). See G.L. c. 210, § 3(c ) (listing fourteen factors judge must consider when evaluating parental fitness); Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799–800 (1983) (child's special needs and parent's extremely limited parenting skills furnish support for judge's findings of unfitness); Adoption of Terrence, 57 Mass.App.Ct. 832, 835 (2003) (contrasting children's conditions while in mother's care with their conditions after removal). Finally, while a parent's cognitive impairment is not evidence of unfitness per se, the judge may properly consider such a limitation where it has bearing on the parent's ability to meet the child's needs. See Adoption of Quentin, 424 Mass. at 888–889.
Here, the judge's findings show that he exercised “utmost care” in his determination of unfitness. Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). The judge made fifty-nine detailed findings of fact related to the mother's shortcomings, the mother's history of caring for the children, the mother's progress through services, the children's needs, and the children's improvements in foster care. The judge referenced specific evidence and testimony that he credited, and the record provided adequate support for his findings and resulting conclusions. He clearly stated that in reaching his conclusion, he “considered the evidence in the aggregate, and has not given conclusive weight to any single component standing alone.” See Care & Protection of Laura, 414 Mass. 788, 793 n. 4 (1993).
b. Favorable evidence. The mother argues that the judge failed to consider certain evidence and that his decision therefore deserves less than traditional deference on review. “Troublesome facts ... are to be faced rather than ignored .... Only then is the judge's conclusion entitled to the great respect traditionally given to discretionary decisions.” Adoption of Stuart, 39 Mass.App.Ct. 380, 382 (1995), quoting from Adoption of a Minor (No. 2), 367 Mass. 684, 688–689 (1975).
We are satisfied that the judge adequately assessed the undisputed evidence favorable to the mother, and he did not abuse his discretion in finding her unfit despite that evidence. The judge found that the mother's positive gains did not sufficiently mitigate her negative history and her ongoing limitations. See Adoption of Paula, 420 Mass. 716, 729 (1995) (when circumstances have changed “a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness”). The finding of unfitness here is supported by a combination of many factors, including the mother's limited cognitive ability and short-term memory loss ; the children's special needs combined with the mother's inability to fully understand and care for these needs; the repeated exposure of the children to domestic violence; the mother's continued contact with the father throughout the course of the case and lack of a concrete safety plan to protect the children in the future; the unstable and unsafe home environment over the course of the case; the mother's limited benefit from services; the mother's inconsistent compliance with DCF service plans; and an assessment of the children's progress in the respective homes. The mother does not dispute the accuracy of these findings as to her history but argues that they are offset by her recent progress and that her shortcomings can be addressed through her participation in services. The evidence in the record constitutes ample support for a finding of unfitness.
c. Services. The mother also contends that the judge should not have terminated her parental rights because DCF failed to provide adequate services to help her address her deficiencies. Had DCF furnished sufficient services, she argues, she could have addressed her limitations and demonstrated fitness. It is undisputed that DCF was required to provide services in support of the goal of reunification. See G.L. c. 119, § 51B(g ). See also Adoption of Lenore, 55 Mass.App.Ct. at 277–279. DCF “must exercise the expertise necessary to match services with needs, and the trial judge must be vigilant to ensure that it does so.” Id. at 279 n. 3. This obligation “includes accommodating the special needs of biological parents who are handicapped or disabled,” but “heroic or extraordinary measures, however desirable they may at least abstractly be, are not required.” Id . at 278.
Contrary to the assertion by DCF, our review of the record reveals that the mother raised this argument at trial.
The record shows that DCF provided services to the mother, including a psychological assessment, individual therapy, domestic violence counseling, and parenting support through DCF. One of the agencies to which DCF referred the mother also referred her to additional services. DCF sought to implement services specific to her traumatic brain injury through the Statewide Head Injury Program, which the mother ultimately rejected after she was finally accepted into the program. See note 5, supra. The record supports the judge's conclusion that the mother only partially complied with her service plan. See Custody of Michel, 28 Mass.App.Ct. 260, 270 (1990) (judge may consider, along with other evidence, parent's refusal to cooperate with service plans). Furthermore, even if the trial judge had found DCF's search for services to be lacking, the determining factor in dispensing with parental consent is not DCF's efforts but rather parental fitness and the best interests of the child. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 268–269 (1978).
Finally, absent evidence that services have in fact resulted in improvement in parenting skills, mere participation in such services cannot support a finding of fitness. See Adoption of Paula, 420 Mass. at 730 ; Adoption of Dora, 52 Mass.App.Ct. 472, 478–479 (2001) ; Care & Protection of Quinn, 54 Mass.App.Ct. 117, 126–127 (2002). The record shows that despite her participation in services, the mother continued to lack the ability to adequately care for and supervise the children, and the services “had not appreciably improved her capacity to meet the complex emotional and physical needs of her children.” Adoption of Paula, supra at 730 (quotation omitted). There is considerable evidence that even with services, the mother was “overwhelmed by the normal responsibilities of raising and caring for [her children].” Adoption of Dora, supra at 478. It is clear from the record that the mother demonstrated a desire to be a good parent, but “good intentions are not alone sufficient indicia of ability adequately to care for children.” Custody of Two Minors, 396 Mass. 610, 620 (1986). Therefore, the judge did not err in determining that the mother's unfitness is not only temporary. Compare Adoption of Carlos, 413 Mass. 339, 350 (1992) (judge must consider potential for parent to correct weakness when taking “extreme step” of terminating parental rights).
The judge also did not err in determining that the mother requires twenty-four hour a day, long-term assistance and that sufficient remedial services were not available. The record, including the mother's own testimony, demonstrates her need for extensive support on day-to-day tasks, such as managing appointments, as well as support for understanding her children's needs. In light of the evidence of the mother's cognitive limitations and short-term memory loss, it was reasonable for the judge to conclude that the mother's “shortcomings will continue undiminished,” and that her need for assistance will continue. Based on the entirety of the record, it was reasonable for the judge to find that it was unlikely that the necessary services would be available long-term.
Citing Care & Protection of Ian, 46 Mass.App.Ct. 615, 619–20 (1999), the mother contends that this finding, and the finding that she is unable to protect the children from their father, show that the judge impermissibly shifted the burden of proof to her as to “an element that was essential to the court's assessment of her parental fitness.” The judge did not shift the burden of proof. His language in the findings and conclusions as to “no credible evidence” merely demonstrates his assessment of the evidence presented on both sides of the issue and ultimate conclusion that the weight of the evidence disfavored the mother's fitness. See Adoption of Terrence, 57 Mass.App.Ct. at 836 (“judge's use of the word ‘demonstrated’ on two occasions [i.e., the mother ‘has demonstrated little change in her situation or behavior,’ and the mother ‘has not demonstrated that she is capable of caring for’ the child] did not indicate that the judge improperly shifted [DCF]'s burden of proof onto the mother”).
d. The mother's ability to protect the children from the father . The judge did not err in determining that the mother lacks the ability to protect the children from the father. The record demonstrates that the mother has a history of minimizing the pattern of domestic violence, being evasive about her contact with the father, continuing to have the children around the father, and failing to recognize the harm that results from the children's exposure to violence. The record contains reports by DCF and the guardian ad litem (GAL) expressing concern about the mother's continued contact with the father and her lack of insight into the continued incidents of domestic violence. There is evidence that the mother lifted the no contact provision of the 209A order in 2012 and that she was not initially forthcoming with DCF or the GAL regarding the incident that led to this order or the circumstances around the modification. The judge specifically credited the mother's testimony that she did not believe the father would harm the children and that she would permit the father to be involved in their lives. The record also includes testimony from an expert counselor and the investigator that the children's attachment issues and challenging behaviors can be attributed to their exposure to episodes of domestic violence against their mother. The judge noted the lack of evidence that the mother has learned how to protect the children from the father, and reasonably concluded, based on the evidence contained in the record, that the mother lacks the ability, and requisite understanding, to do so.
e. Improper consideration of evidence. Finally, the mother argues that the judge improperly considered certain evidence—specifically, references in the GAL's reports to reports made under G.L. c. 119, § 51A, that were admitted only “to set the stage.” She also disputes the judge's finding that “at least eleven reports were filed under G.L. c. 119, § 51A.” These claims are without merit for substantially the reasons stated in the brief of the children at pages 38 to 42. In sum, we conclude that the judge did not err in his consideration of evidence, and that any errors as to the details contained in the judge's findings are immaterial to his determination of the mother's unfitness. See Adoption of Mary, 414 Mass. 705, 709–710 (1993).
Conclusion. The judge did not err in concluding that the mother is currently unfit to care for the children, that this unfitness is not temporary, and that termination of the mother's parental rights is in the best interests of the children.
Decrees affirmed.