Opinion
19-P-13
02-26-2020
ADOPTION OF WYNONA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the decree issued by a judge of the Juvenile Court finding her unfit and terminating her parental rights as to Wynona. The mother argues that the finding of her unfitness was not supported by clear and convincing evidence, and that the Department of Children and Families (DCF or department) failed to provide reasonable and timely services. We affirm.
The judge also found Wynona's father unfit, and terminated his parental rights. The father did not appeal.
Standard of review. "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 means more than general ineptitude -- it reflects "grievous shortcomings or handicaps that would put the child's welfare" in danger. Adoption of Lisette, 93 Mass. App. Ct. 284, 292-293 (2018), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).
The parental unfitness standard and the best interests of the child standard are not "separate and distinct, but reflect different degrees of emphasis on the same factors" (quotation omitted). Adoption of Nancy, 443 Mass. 512, 515 (2005). The best interests of the child is the paramount consideration. See Adoption of Inez, 428 Mass. 717, 720 (1999).
Sufficiency of the evidence of unfitness. As an initial matter, we conclude that, with one exception, the mother's challenges to the judge's subsidiary factual findings are without merit. See Adoption of Jacques, 82 Mass. App. Ct. at 606-607 (absent clear error, we defer to judge's findings of fact). The mother mostly challenges the judge's weighing of the evidence. "On such matters, we defer to the trial judge." Adoption of Ilian, 91 Mass. App. Ct. 727, 730 (2017). Reviewing the record, we are satisfied that the judge did not abuse her discretion in making the assessments reflected in the challenged findings.
The exception is limited to finding no. 19, which was, as the mother suggests, taken from a portion of the independent court investigator's report that was stricken before trial. To the extent that the judge erred in considering the stricken portion, however, the error was harmless; there is no indication that the judge relied on its substance as a basis for the termination of the mother's rights. See Adoption of Iliana, 96 Mass. App. Ct. 397, 408 (2019).
Regardless of the mother's obvious love for Wynona, the mother's arguments do not persuade us that the judge erred in finding her unfit. The judge's findings evince her close attention to all of the evidence in the case, and her even-handed assessment of the evidence. We find no support for the mother's claim that the judge failed to wrestle with any "troublesome facts" presented at trial.
The judge's reliance on DCF records relating to the mother's older child, Ann (a pseudonym), and describing the circumstances that led to the termination of the mother's parental rights as to Ann in the year before Wynona was born, was proper. While we acknowledge, as did the judge, that a parent's unfitness to parent one child does not rule out the parent's fitness to parent a different child, see Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981), a parent's past conduct has prognostic value. See Adoption of Larry, 434 Mass. 456, 469 (2001) (judge may "properly consider past parental conduct as relevant to the issue of current parental fitness where that conduct [is] not too remote, especially where the evidence support[s] the continuing vitality of such conduct"). Issues of the mother's homelessness, inconsistent adherence to recommended treatment for her substance abuse and emotional needs, and her failure to comply with department service plans were in play almost immediately after Ann's birth in 2012, and continued to varying degrees through Wynona's birth in 2013, and the time of trial in Wynona's case in 2018.
Ann is not involved in these proceedings.
The judge's consideration of the Cohasset police reports introduced as exhibits at the trial was likewise proper. See Adoption of Posy, 94 Mass. App. Ct. 748, 754 (2019) (evidence of domestic violence insufficient where record did not include police reports or other factual support). The mother did not contest the accuracy of those reports, which documented violence in the home in which she was living at the time of the trial (Cohasset house). See Adoption of Garret, 92 Mass. App. Ct. 664, 672-674 (2018) (considering history of domestic violence in finding parent unfit).
The police reports documented other reasons for concluding that the Cohasset house was unstable, including substance abuse by other occupants of the house.
The mother's arguments that the judge focused exclusively on evidence that showed the mother in a negative light and overlooked evidence of recent advances in her recovery are not supported by the record. For example, the judge acknowledged that the mother had participated in some substance abuse treatment; had completed parenting classes and learned some skills; kept Wynona clean; had participated in some mental health therapies; and was subject to outside stressors. Additionally, the judge acknowledged that the mother continued to attend a treatment program on an intermittent basis. The fact that, in the judge's determination, such evidence did not eclipse other, negative evidence does not lead us to conclude that the judge here did not make a fair assessment of the evidence as a whole. See Adoption of Jacques, 82 Mass. App. Ct. at 608 (judge acts within permitted discretion in considering evidence of parent's successes "within the context of [parent's] earlier and continuing deficits").
Nor did the judge ignore "[t]roublesome facts." Adoption of Leland, 65 Mass. App. Ct. 580, 583 (2006), quoting Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995). The judge's consideration of evidence of the mother's repetitive failure to follow the rules of the shelters in which she stayed did not, as the mother suggests, disregard DCF's determination that those violations themselves did not amount to neglect as defined in DCF's regulations. The judge relied on such evidence when she found that the mother was unable to "utilize the information she received in the parenting class to provide for the safety and well-being of [Wynona]," and that such actions caused her to be "at risk of termination" of her shelter placement. See Adoption of Linus, 73 Mass. App. Ct. 815, 821 (2009) (parent must have suitable housing); Adoption of Lorna, 46 Mass. App. Ct. 134, 138 (1999) (parent had "limited parenting skills").
Finally, we are unpersuaded by the mother's argument that "findings regarding [Wynona's] medical needs are problematic." Even assuming that the evidence at trial, while supporting a finding that Wynona had suffered from repeated febrile seizures, did not support the judge's finding that Wynona suffered from epilepsy, the details of that diagnosis were not the critical issue. It was undisputed that Wynona suffered from several medical and emotional conditions that required consistent monitoring. The judge also heard evidence that Wynona was subject to emotional dysregulation in the face of unexpected change, and that, apart from the febrile seizures, the successful management of at least two of her conditions depended on avoiding such dysregulation. We perceive no error in the judge's determination that while the mother recognized Wynona's conditions as serious, she neither prioritized those conditions nor provided the care -- including attendance at medical appointments and early intervention services -- required to manage them. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (parent's ineffectiveness in obtaining medical care for child); Adoption of Oliver, 28 Mass. App. Ct. 620, 626 (1990) (mother did not understand child's medical needs).
These facts concerning the mother's failure to care for Wynona's needs distinguish this case from Adoption of Imelda, 72 Mass. App. Ct. 354, 362 (2008), on which the mother relies. There, the mother had missed some "routine" medical care, as well as one follow-up visit after treatment for asthma and an ear infection. See id. at 362-363.
The judge here made findings and drew conclusions that reflected an even-handed assessment of the evidence, even if those findings did not reflect as well on the mother as she might have hoped. The department met its burden of demonstrating, by clear and convincing evidence, that the mother is unfit to care for Wynona and that termination is in Wynona's best interests. See Adoption of Jacques, 82 Mass. App. Ct. at 606.
The judge also found that the mother had repeatedly failed to visit Wynona. See Care & Protection of Vick, 89 Mass. App. Ct. 704, 708 (2016) (proper to consider parent's failure to visit child after removal).
Reasonable efforts. "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 Uday, 91 Mass. App. Ct. 51, 53 (2017), quoting Adoption of Ilona, 459 Mass. 53, 60 (2011). Where a parent demonstrates special needs, the department's obligation "includes a requirement that the department provide services that accommodate [those needs]." Adoption of Ilona, supra at 61. We are not persuaded by the mother's argument that the department failed to make "reasonable efforts" to restore Wynona to her care before terminating her parental rights. See id. at 60.
We note that "a parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made." Adoption of Gregory, 434 Mass. 117, 124 (2001). It appears that the mother first raised this issue at trial, in her closing argument.
We disagree with the mother that the judge's finding of the mother's unfitness was undermined by the department's failure to make reasonable efforts to provide her with services. First, we do not perceive an unreasonable delay in the department's ultimate assignment of a parent advocate within six months of becoming aware that the mother would benefit from that service. Even assuming that the department should have recognized the mother's disorganization as a contributing factor in her inability to secure suitable housing, the department had made, and the mother had refused to follow, earlier referrals for similar supports. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). Second, we are unpersuaded that the department failed in its duty by refusing to provide the mother with a letter "indicating that lack of housing was a barrier to reunification." The mother's argument mischaracterizes her actual request; in fact, what she sought was a letter confirming that the department would reunify her with Wynona if she obtained suitable housing. In light of the department's concerns about the mother's fitness, and the resulting uncertainty about whether the family would reach the goal of reunification, this was a letter that the department was not in a position to provide. Third, even if it were true, as the mother argues, that "a more ‘seasoned’ worker" than the one assigned to the mother's case "would have been helpful," we are not persuaded that the mother has shown that the efforts of the worker actually assigned to her case were not "reasonable," particularly in light of the evidence of the mother's own failure to cooperate in communicating and working with that worker and the department. , See id. (determination of reasonableness of department's efforts contingent on "mother's fulfillment of her own parental responsibilities" and whether "department's attempts to strengthen [the] family were frustrated by the mother's own behavior").
The mother argues that the parent advocate would have assisted the mother with her transportation needs. The judge's findings recognized that the mother needed help to get from Cohasset to her treatment and to visits with Wynona, but also considered the mother's admission that she sometimes "just [got] off track or [was] thinking of something else," and evidence that the mother was unwilling to use her housing vouchers to find a more conveniently-located place to live. Additionally, in light of the mother's general tendency to treat curfews and other timing requirements loosely, the judge could reasonably have concluded that the mother's frequent reference to her transportation problems were an excuse for her unreliability, not a reason for it.
Finally, we note that while the judge here did not find that the department failed to make reasonable efforts to reunify, even if she had done so, that determination "[would] not [have] preclude[d] the [judge] from making any appropriate order conducive to the child's best interest." Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. See Adoption of Uday, 91 Mass. App. Ct. at 53-54.
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Conclusion. Based on the foregoing reasons, the judge properly concluded that the mother was unfit and that termination of her parental rights was in Wynona's best interests. The decree terminating the mother's parental rights is affirmed.
So ordered.
Affirmed.