Opinion
15-P-838
03-31-2016
ADOPTION OF PORTIA.
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
A judge of the Juvenile Court issued a decree terminating the mother's parental rights to her minor child, Portia. The mother appeals, arguing that (1) the judge impermissibly drew key findings from reports prepared pursuant to G. L. c. 119, § 51A (51A reports), and G. L. c. 119, § 51B (51B reports); (2) the findings as a whole fail to show a nexus between the mother's mental illness and her capacity to care for Portia; and (3) the judge abused her discretion in not ordering posttermination visitation. For the reasons discussed below, we affirm.
The decree also terminated the parental rights of Portia's father. He did not attend the trial and is not a party to this appeal.
Background. Portia was born in January, 2007. While in her mother's custody, Portia generally was a happy and healthy child. However, over a six-month period commencing in April, 2012, a number of 51A reports were filed with the Department of Children and Families (department) concerning the mother's behavior. Those initiating reports included personnel at Portia's elementary school, a neighbor, medical providers, and the police. Investigation ensued, and, in November, 2012, Portia was placed in the custody of the department. On October 1, 2013, Portia was adjudicated a child in need of care and protection by stipulation of the parties and findings of the judge. One year later, after trial, the judge issued the decree, finding, inter alia, that as a result of the mother's psychiatric instability, Portia would likely be subjected to neglect in the future if she were returned to her mother's care, and that the mother's behavior would likely impede Portia's access to the broader community.
Discussion. Before terminating parental rights, the trial judge must determine, by clear and convincing evidence, that the parent is currently "unfit," and, if so, whether termination is in the best interests of the child. Adoption of Nancy, 443 Mass. 512, 515 (2005). Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment; nor is it a determination that the parent does not love the child. The question for the judge is "whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or activity harmful to the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). On appeal, the judge's findings are entitled to substantial deference and will not be disturbed unless shown to be clearly erroneous. Adoption of Ilona, 459 Mass. 53, 59 (2011).
With these standards in mind, we turn to the mother's arguments.
1. Challenged findings. Prior to trial, the mother filed a motion in limine to limit the purposes for which 51A and 51B reports would be admitted in evidence. On the first day of trial, the parties reported that they agreed on the scope of the admissibility of the reports, and the judge concurred with their approach. The judge ruled that the 51A reports would be admitted only to explain the reasons why the department filed and prosecuted the care and protection proceedings, and that the 51B reports would be admitted only to the extent that they contained factual information and statements by the mother or other parties; opinions, assessments, and judgments, including conclusory statements and administrative decisions by the department, would not be considered. The ruling was consistent with applicable case law. See Custody of Michel, 28 Mass. App. Ct. 260, 266-267 (1990).
Despite the judge's clear explanation of the limits she would place on this evidence, the mother now claims that it may be inferred from certain findings that the judge used the 51A and 51B reports improperly. However, with regard to the 51A reports, the six findings of which the mother complains all concern events and behavior described in reports that predated the care and protection petition. As such, they describe the reasons why the reports were filed and how the mother came to the attention of the department. Although the mother points to other findings in which the judge concludes that the mother's "disturbing behaviors" interfered with her ability to parent Portia, there is no reason to believe that the judge made those findings based on the content of the 51A reports as distinct from other properly admitted evidence, including trial testimony that was to the same effect.
Likewise, with respect to the 51B reports, it is far from clear that the judge failed to adhere to the limitations imposed by her ruling. Insofar as the mother now argues that the judge should have ignored second level hearsay in these reports, she did not raise this objection at trial and did not seek any redactions. Furthermore, even if the hearsay was objectionable, the mother was not prejudiced, as there was a considerable amount of other evidence supporting the judge's conclusions. The trial testimony concerning the mother's conduct both before and after Portia was removed from her custody provided ample basis for the conclusion that, despite being devoted to Portia, and despite receiving therapy and psychiatric services, the mother remained unable to care for Portia in a manner that would promote her well-being.
2. Nexus. A finding of unfitness cannot be based on the fact of a parent's mental illness alone. Adoption of Quentin, 424 Mass. 882, 888 (1997). The judge must find a nexus between the parent's condition and risk of abuse, neglect, or other harm to the child. See Care & Protection of Bruce, 44 Mass. App. Ct. at 761. See also Adoption of Stephen, 401 Mass. 144, 152 (1987). While the mother argues that no such nexus was shown here, review of the findings and the underlying evidence reveals that there was strong support for the judge's determination that the mother's psychiatric condition manifested itself in ways that were and would continue to be detrimental to Portia.
The mother, who has a family history of psychiatric illness, was diagnosed with bipolar disorder when she was sixteen years old. In conjunction with this case, a psychological assessment confirmed the diagnosis of bipolar disorder, and schizoaffective disorder could not be ruled out without further evaluation. The mother's illness significantly affected her behavior. Witnesses testified that they observed the mother talking to herself or to persons who were not there, making odd physical gestures, speaking in strange voices, and appearing to be delusional.
The mother was persistently preoccupied with the notion that Portia was the target of sexual abuse. For example, when bringing Portia to her first day of kindergarten, the mother yelled after her, "Don't let them touch you. They're all perverts." She complained to school authorities that the common children's songs, "Where is Thumbkin" and "Hokey Pokey," were teaching the children sexualized behavior. She accused Portia's teacher of being a pedophile. She also asked the school principal whether she was married to a pedophile and whether she was in the sex trafficking business. The mother reported that Portia's teacher had sexually abused Portia in the classroom in front of other children; but investigation showed that on the day in question, the teacher was not even at school.
Eventually, the mother's behavior led Portia's school to obtain a no-trespass order against her. The precipitating event occurred when she was dropping Portia off at school. Another parent's car was blocking her, and she began to yell. When a teacher spoke to her about it, she aimed her car at the teacher and stepped on the gasoline pedal, swerving away at the last moment.
Also troubling was the mother's behavior during supervised visits with Portia. In Portia's presence, the mother threatened to "blow up" the parent aide, called her a pedophile, and accused her of trying to steal Portia. On one occasion, the mother told Portia that she was getting "dumb" in foster care, and talking like someone who was "selling her body." She would ask Portia peculiar questions such as, "Do I sound or look like Frank Sinatra?" Portia would become uncomfortable during visits and would look to the social worker for assistance.
At trial, the mother was unable to remain focused. While being questioned by her attorney, the mother announced that she could see her attorney's thighs and that her skirt was too short. She interrupted, laughed inappropriately, made unresponsive remarks, spontaneously interjected that she liked "only black people for sex," and made inappropriate comments to the judge at the conclusion of the case.
The judge is to be commended for the sensitivity and respect that she showed to the mother at all times.
The mother's compliance with her psychiatric treatment was inconsistent, at best. As the judge found, the mother was unable to accept her need for additional psychiatric medications and, consequently, was unsuccessful in managing her symptoms and modifying her disturbing behavior in the community and her concerning interactions with others. When told by social workers and others that it was important to take her medications, the mother responded that she did not like taking them and only took them so she could be reunited with Portia. The psychologist who evaluated the mother doubted that she would continue to use medications if and when Portia were returned to her care. He also opined that the mother's behaviors "are likely confusing for [Portia] and are interfering [with the mother's] ability to support her child's access to the broader social surround."
Based on all of the above, as well as other facts set forth in the judge's detailed and thorough decision, the judge was warranted in finding a nexus between the mother's mental health issues and her capacity to resume parental responsibility for Portia.
3. Visitation. Portia was placed in her preadoptive home on April 21, 2014. The judge found that Portia has a close bond with the preadoptive parents. They have provided a safe and nurturing home for Portia, and they have been instrumental in obtaining therapeutic services and special education testing for her. The department encouraged the preadoptive parents to allow future contact between Portia and her mother, and they expressed their willingness to do so.
While acknowledging that there is an existing emotional bond between Portia and her mother, the judge found that Portia had been made "anxious and stressed" by her mother's behaviors. After considering "the fluctuation and recent deterioration of the mother's mental health, the unpredictability of her behaviors, and her challenging conversations and interactions with [Portia] during past parent-child visits," the judge determined that the preadoptive parents were in the best position to assess the manner of future contact and to use their discretion and sound judgment concerning the particulars of such contact.
The mother argues that the judge should have ordered at least one postadoption visit per year; however, posttermination visitation is left to the judge's broad discretion. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016). Here, the judge considered the relevant factors and made a decision that was well within the bounds of reasonable alternatives. There was no abuse of discretion. See generally L.L. v. Commonwealth, 470 Mass. 169, 184-185 & n.27 (2014).
Decree affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 31, 2016.