Opinion
18-P-685
03-07-2019
ADOPTION OF VIVICA.
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 daughter, Vivica, declining to order posttermination and postadoption visitation, and dispensing with her consent to Vivica's adoption. On appeal, she contends that the judge abused his discretion when he approved the permanency plan of the Department of Children and Families (department) for the adoption of Vivica more than twelve months after the department obtained custody, see G. L. c. 119, § 29B, and without first conducting an evidentiary hearing. In addition, because of rulings the judge made at the hearing, which was held immediately prior to trial, the mother alleges that the judge had "prejudged" the outcome of the trial. The mother also claims that the department unfairly terminated her visits with Vivica and failed to make adequate efforts to reunite the family. For the reasons that follow, we affirm.
The father's parental rights were terminated in the same proceeding. He has not appealed.
Background. We summarize the relevant facts and procedural history from the judge's comprehensive findings, all of which are supported by the evidence. Vivica was born in February, 2016, in Providence, Rhode Island. At that time, the mother did not have custody of her four older children, and she was homeless. The mother reported to hospital personnel that she had not received any prenatal care and disclosed that she suffered from mental health issues and had a history of heroin addiction.
The mother had a lengthy history with the department which began in 2006, after the birth of her first child. There were concerns about the mother's substance abuse, chronic homelessness, criminal record, and domestic violence. The mother had been the victim of severe physical abuse. In January, 2014, the mother, who was pregnant, was beaten badly by her partner. At least one older child was exposed to domestic violence. The mother's parental rights to two of her older children were terminated, and the other two older children were placed with a guardian or in a kinship foster home.
The mother was diagnosed with attention deficit disorder, depression, anxiety, and bipolar disorder. She also suffered from alcoholism.
The Rhode Island Department of Children, Youth and Families (Rhode Island department) filed a petition with the Family Court in Providence and obtained temporary custody of Vivica before she left the hospital. Soon thereafter, Vivica was placed in what would become her preadoptive home. The mother subsequently returned to Massachusetts (where she had lived previously) and had supervised visits with Vivica for one hour per week in Rhode Island, but she was inconsistent and missed some visits. The mother's last visit with Vivica was in June or July of 2016.
Meanwhile, in May of 2016, following a telephone hearing between the Rhode Island Family Court and the Massachusetts Juvenile Court, the Rhode Island judge issued an order "[t]hat the Commonwealth of Massachusetts shall exercise jurisdiction over [the] child." On August 12, 2016, pursuant to a care and protection petition filed by the department, a Juvenile Court judge granted the department temporary custody of Vivica, who continued to live with her foster family in Rhode Island. The mother did not appear at the hearing. The department attempted to contact the mother by telephone to no avail, and a summons requiring her to appear at the custody hearing was returned without having been served. Although there is conflicting evidence as to whether the mother made herself available to the department during the subsequent period of assessment, there is no dispute that at some point in the fall of 2016, the mother went to Florida, where she remained for approximately six months.
For example, the department developed a service plan with the mother beginning October 24, 2016, with the goal of reunification. It is unclear whether the mother signed the plan, but at trial she acknowledged that the department's service plan was intended to facilitate reunification. The mother's tasks included, among other things, making herself available to the department social workers, participating in therapy to address her mental health and substance abuse issues, and contacting the department social worker to set up and follow a regular and consistent visitation schedule with Vivica. She did not follow through on any of these tasks until she entered treatment one month prior to trial.
The mother testified that she left Massachusetts and went to Florida in October of 2016. However, the mother's CARI report indicates that she was charged with a criminal offense in the Orleans Division of the District Court on November 9, 2016.
The mother returned to Massachusetts in April of 2017, but did not contact the department until June of 2017, when she arrived unannounced at the department's office and asked to visit with Vivica. The mother was informed that the goal for Vivica had changed from reunification to adoption. The mother expressed sadness and stated she was ready to work with the department and wanted visits with Vivica. In July of 2017, the mother met with the department social worker and stated that she was trying to engage in services and obtain housing and employment. Although the mother completed a five-week program to become a certified nursing assistant, she could not find work due to her criminal history. In addition, she was unable to find suitable housing. On August 10, 2017, the department held a foster care review. The mother did not attend. The department requested a permanency hearing, which was scheduled for August 15, 2017, but was postponed for reasons which are not in the record. On August 23, 2017, the mother was placed in protective custody after she was found sleeping outside in the middle of the night. She was intoxicated. The mother met with the social worker again in September and claimed that she was attending Alcoholics Anonymous meetings. Otherwise the mother was noncompliant with the service plan tasks, and she remained homeless. In addition, on September 7, 2017, the mother was charged with assault and battery on a police officer and resisting arrest.
These charges, as well as a charge of operating a motor vehicle after the suspension of her license, had not been resolved at the time of trial.
On October 16, 2017, the mother voluntarily entered an inpatient detoxification program. The trial on the termination of her parental rights commenced on November 9, 2017. At that time, the mother had completed twenty-six days of the inpatient program and was scheduled to transition to a halfway house. On the first day of trial, the judge held the permanency hearing which had been continued (and rescheduled twice) from August 15, 2017. The judge approved the department's plan for adoption and determined that the department's efforts to place Vivica in accordance with the plan were reasonable. The trial commenced thereafter and, as we have previously noted, the judge found the mother unfit, terminated her parental rights, and declined to order posttermination or postadoption contact between the mother and Vivica.
Discussion. 1. Permanency hearing. First, the mother claims that the decree must be vacated and the case remanded for a new trial to remedy what she alleges was a "prejudgment" of her case. This allegation is based primarily on the timing of the permanency hearing, which, as noted, was held immediately before the trial commenced. We have reviewed the record carefully and, although we understand the mother's concern, we discern no valid basis for concluding that the judge was prejudiced merely because he approved the department's permanency plan before the trial began. To the contrary, after hearing testimony from a department social worker assigned to Vivica's case, Vivica's foster parent, the mother, and the father, and after reviewing numerous exhibits, the judge made extensive findings supporting his ultimate finding of unfitness. We are confident that the matter was decided on the evidence presented at trial and was not influenced by the outcome of the permanency hearing.
We note that the department maintains that the mother has waived her challenges to the permanency hearing. Because the issue has been briefed by the parties and is highly important to the mother, we pass on the issue of waiver and proceed to the merits.
Second, the mother claims that neither the department nor the judge adhered to the guidelines set forth in G. L. c. 119, § 29B, which require that permanency hearings be held within twelve months of the date on which the department obtains custody of the child. See Rule 6 of the Uniform Rules for Permanency Hearings, Trial Court Rule VI (2000). There is no question that the permanency hearing was held more than twelve months after the department was granted temporary custody of Vivica. Nonetheless, the mother is not entitled to a new trial where, as here, the permanency hearing initially was scheduled in a timely manner and, as discussed above, the mother has not shown how she was prejudiced by the timing of the hearing.
General Laws c. 119, § 29B (a), provides in relevant part: "[W]ithin 12 months of the original commitment, grant of custody or transfer of responsibility of a child to the department by a court of competent jurisdiction . . . the committing court shall conduct a permanency hearing . . . to determine and periodically review thereafter the permanency plan for the child."
We use the version of the rule as in effect at the time of the hearing. The current, amended version of this rule is now denominated as Rule 8 of the Uniform Rules for Permanency Hearings, Trial Court Rule VI (2018).
Lastly, the mother claims that the judge erred by not holding a separate evidentiary hearing in connection with the permanency hearing. Again, the failure to demonstrate any prejudice is fatal to the mother's claim. In any event, we note that the hearing essentially occurred simultaneously with the trial, as is permitted by Rule 6 B of the Uniform Rules for Permanency Hearings. The clerk called the case, which was "scheduled for termination of parental rights," and, while the parties were discussing pretrial matters, the permanency plan was addressed and the judge approved the plan. The mother, through her attorney, objected to the approval of the plan but did not request an evidentiary hearing, attempt to submit evidence, or add anything when the judge asked if the parties wished to do so.
2. Due process. The mother claims that the department's decision to terminate her visitation with Vivica after Massachusetts assumed jurisdiction violated her right to due process and unfairly prejudiced the final outcome of the case. This argument is unavailing. Due process requires, at a minimum, "notice and the opportunity to be heard at a meaningful time and in a meaningful manner." Adoption of Rory, 80 Mass. App. Ct. 454, 458 (2011), quoting Adoption of Zev, 73 Mass. App. Ct. 905, 905 (2009). Here, the mother had multiple opportunities to be heard, but she did not pursue them. The mother unilaterally ceased visits with Vivica in June or July of 2016, and then remained out of State for six months. Contrary to the mother's assertion, she was not prohibited from visiting with Vivica upon her return. Rather, she was asked to show a commitment to her service plan before visitation would resume. Although the judge observed that the department could not prevent visitation, he did not blame the department for not making those arrangements given the mother's history of inconsistency and the fact that she was voluntarily unavailable to visit with Vivica for six months. See Adoption of Paula, 420 Mass. 716, 730 (1995) ("The mother's failure cannot be laid at the department's door").
3. The department's reasonable efforts. The mother next claims that the department made no reasonable efforts to reunite her with Vivica. We see no evidence that suggests that the department was inadequate in this regard. See Adoption of Daniel, 58 Mass. App. Ct. 195, 204 (2003).
Prior to changing the goal to adoption, the department made numerous attempts to engage the mother in reunification with Vivica. The department developed a service plan for the mother for the period of October 24, 2016, through April 24, 2017, that had reunification as its goal. However, the mother was not in Massachusetts for most of this time and, in any event, did not comply with the plan. Moreover, even when the mother's whereabouts were unknown, the department maintained its efforts to contact her by sending letters to her last known address. It was only in June of 2017, when the mother returned from Florida and was informed that the department had changed the goal for Vivica to adoption, that the mother attempted to engage in services and ultimately sought inpatient treatment. Given these circumstances, we conclude that the department's actions were reasonable and did not prevent reunification.
Decree affirmed.
By the Court (Vuono, Desmond & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 7, 2019.