Opinion
10-P-1724
12-05-2011
ADOPTION OF BENTLEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the mother from a decree by a judge of the Juvenile Court adjudicating her son, Bentley, in need of care and protection, committing him to the custody of the Department of Children and Families (DCF) until age eighteen, and dispensing with the need for the mother's consent to adoption. See G. L. c. 119, § 26; G. L. c. 210, § 3.
We affirm substantially on the bases of the rationale stated and the findings incorporated in the thoughtful and comprehensive writing of the Juvenile Court judge, which sets forth the full case background. We shall not restate the judge's detailed findings, but rather reference only certain findings that are controlling to the decree.
The child was born in June, 2006. On October 10, 2006, when the child was four months old, a G. L. c. 119, § 51A, report was filed alleging that the mother was not properly feeding the child, and that the child had not gained weight in over a month. The child was admitted to the Boston Medical Center and was diagnosed as suffering from failure to thrive. Following treatment, he was released to the care of the mother with the provision of extensive support services. This incident of neglect of the child was not isolated. Indeed, there were ongoing incidents of the mother's neglect, as described in the judge's detailed findings. The pattern of neglect is not unlike the history of neglect of the mother's six older children, all of whom were permanently removed from the mother's care, after determinations that she was unfit to parent them.
Dating as far back as 1980, domestic violence is also a persistent problem in the mother's life. The risks arising from domestic violence continued to recent times and reached the child, who was physically abused by the mother's boyfriend. In addition to two § 51A reports filed concerning the boyfriend's physical abuse of the child, the mother admitted that the boyfriend would hit the child when the boyfriend thought the child had misbehaved.
From all that appears, a major contributory factor in the mother's unfitness to parent lies in her significant cognitive limitations. These cognitive disabilities, as well as the mother's learning disabilities, negatively affected her understanding of her parenting obligations, and had particular negative effects with respect to the mother's ability to address the special needs of this child. See Adoption of Frederick, 405 Mass. 1, 9 (1989); Adoption of Ilona, 459 Mass. 53, 61 n.11 (2011). The mother's social functioning is also limited, and as result she qualifies for special services offered through the Department of Developmental Services (DDS). In addition to these cognitive issues, the mother has psychological problems and has been prescribed Celexa for depression and Trazodone for insomnia. However, during these proceedings the mother stopped taking her Celexa. The mother recently was diagnosed with hepatitis C; originally she refused to treat that disease, but eventually began interferon treatment. Given the mother's medical issues, in 2004, a Probate and Family Court judge found that the mother was incompetent to make medical decisions for herself and appointed a guardian ad litem to assist her with those decisions. In sum, based on all the evidence before the Juvenile Court judge, the mother's unfitness to parent the child was proved clearly and convincingly.
The results of four IQ tests taken by the mother between 1979 and 2001 were 66, 84, 74, and 71, described as in the 'borderline' range. Additional achievement testing showed the mother to be functioning at an academic level between third and fifth grade.
We turn to the findings which also establish by clear and convincing evidence that it is in the child's best interests that the mother's parental rights be terminated. The child has special needs including, but not limited to, speech and language delays, in that the child seldom speaks spontaneously and appears to mimic sounds rather than to comprehend the words being spoken. Further, the child's gross motor skills have not developed in a manner consistent with his age.
Within the preadoptive home, the child has begun to show improvement. The child was enrolled in an early childhood program and is attending speech and occupational therapy each twice a week. In addition, an individualized education plan has been crafted to provide speech and language services for the child.
Settled into his preadoptive home, the child has formed strong, nurturing bonds with his preadoptive family. The child refers to preadoptive parents as 'mommy' and 'daddy.' Monitoring reports by DCF personnel reflect a great deal of warmth between the child and his preadoptive parents as well as his two new sisters. Suffice to state that, since being removed from the mother's custody, the child has begun a transformation into being what is described as a happy, well-adjusted child.
The mother also appeals from a February 24, 2011, order denying posttermination visitation. The background of the order is as follows. In his initial findings of fact and conclusions of law dated July 13, 2010, the judge found that, given an attachment between the mother and the child, there would be continued posttermination visitation. Thereafter, certain events led the judge to file supplementary findings and an order in which he determined that it was no longer in the child's best interests to have posttermination and postadoption visits with the mother.
The judge considered that the child had only one posttermination visit with the mother and does not appear to know who the mother is. The child does not request to see the mother, denies having 'another mommy' besides his preadoptive mother and says that he does not know anyone with the mother's name. See Adoption of Vito, 431 Mass. 550, 565-566 (2000). Following his one visit with the mother (before the amended order), the child became agitated and hyperactive.
For the reasons summarized above -- and based on the findings of fact and conclusions of law, comprehensively set forth by the Juvenile Court judge -- the decree is affirmed. The supplemental order denying posttermination and postadoption visitation by the mother is also affirmed.
So ordered.
By the Court (Berry, Brown & Grainger, JJ.),