Opinion
15-P-539
02-02-2016
CARE AND PROTECTION OF NADINE.
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
This is an appeal by the mother and Nadine from a final judgment of the Juvenile Court finding Nadine (born in April, 2000, and thirteen years old at the time of the trial) in need of care and protection and committing her to the permanent custody of the Department of Children and Families (department) pursuant to G. L. c. 119. The department had sought to terminate the mother's parental rights but the judge concluded that although he found the mother was currently unfit, Nadine opposed adoption and it was not in Nadine's best interests to have the mother's parental rights terminated.
Nadine's father is deceased.
The mother originally had custody of all four of her children. After the department filed this care and protection petition, the mother's two older sons were placed by agreement with their father, and they were not part of these proceedings. The mother's youngest child, Adam (a pseudonym), was born in April of 2001, and has the same father as Nadine. The judge's findings included a discussion of the mother's fitness to parent Adam, and the disposition by the judge was the same for Nadine and Adam. Although Adam filed a notice of appeal from the judgment, he withdrew his appeal after he was reunited with the mother. We therefore do not consider the judge's findings with regard to Adam.
The mother argues that the judge's factual findings do not prove by clear and convincing evidence that the mother is unfit. Specifically, she argues that the judge did not engage in an even-handed assessment of the evidence; relied on stale and outdated information or devalued the mother's progress; and made several clearly erroneous findings that undermine the overall conclusion and demonstrate that the judge did not pay close and careful attention to the evidence. Nadine adopts the mother's arguments and also argues that it was clear error for the judge to review the department's dispositional plan under an abuse of discretion standard and that visitation between Nadine and the mother should be evaluated under G. L. c. 119, § 35. We affirm.
We recite the relevant findings made by the judge. Nadine has been in the custody of the department since May 1, 2012. At that time, she was twelve years old. A G. L. c. 119, § 51A (51A report) was filed alleging that the mother, in an effort to control Nadine's behavior, was locking her in her room and refusing to release her to use the bathroom. That 51A report was supported and led to the removal of the children, including Nadine. See note 3, supra.
According to the mother, at age five or six, Nadine began to take and hide items that did not belong to her and use matches. At age six she was suspended from school for physically assaulting a teacher. The mother called Nadine's pediatrician and brought her to a hospital for an evaluation of her disruptive behavior.
In 2007, during a family trip to Disneyworld, Nadine's father was diagnosed with a terminal brain tumor and died within eighteen months of the diagnosis. He resided with the mother and the children for a significant portion of his illness, but moved out prior to his death. After the father died, the mother did not permit Nadine to visit his grave, which upset Nadine. Just before the father died, the mother began a relationship with another man, who moved into the mother's home. That relationship was marked by violence, as had been the mother's relationship with the father, and involved multiple visits to the home by police.
The department had been involved with the family on numerous occasions for approximately thirteen years. The initial involvement concerned neglect of the two older boys and Nadine, and abuse of one of the two older boys by Nadine's father. In August, 2010, several 51A reports were filed with the department alleging that the children had been neglected because of the domestic violence in the home. The department substantiated the allegations of neglect of the children in 2010, as well as sexual abuse of Nadine by an unknown perpetrator.
Approximately five months after the father's death, the mother and the mother's boyfriend took the mother's three boys to Disneyworld but left Nadine at home with a family friend as a punishment. She brought along a friend of one of the boys so that Nadine's ticket did not go to waste. The mother could not recall the reason for the punishment and did not appear to understand the negative consequences of this decision for Nadine in light of her father's recent death and her inability to visit his grave. Nadine was aware that another child was accompanying her family on vacation in her place and was very upset that she was not permitted to go.
When she was ten, Nadine allegedly stole things from school. The mother brought Nadine to a local shopping mall and required her to wear a sign that read, "My name is Nadine, and I am a thief." The mother appeared not to appreciate the impact this may have had on Nadine and minimized it by testifying that Nadine had torn the sign off anyway. The judge found that during trial, the "mother manifested an utter and complete disregard and/or disdain" regarding the effect of this event on Nadine.
During the department's investigation in 2010 (see note 4, supra), the mother reported that Nadine's behavior was worsening. She was masturbating excessively with toys and other objects and she had been observed engaged in inappropriate behavior with the family dog. At this point, Nadine was already being confined to her room, although Nadine reported that it was only for two hours at a time. The mother consulted a pediatrician regarding Nadine's inappropriate sexual behavior, and began counseling for Nadine but terminated it shortly after it had begun because she had a disagreement with the counselor.
In November, 2011, the mother brought Nadine to Corrigan Mental Health Center (Corrigan) because Nadine was engaging in threatening and aggressive behavior toward her siblings, peers, and teachers, and continued to exhibit inappropriate sexual behavior and hygiene problems. In December, 2011, Nadine was suspended from school for aggressive behavior.
When the department social worker began investigating the most recent 51A report, she arrived at the home in the afternoon of April 30, 2012, sometime between 3:00 and 4:00 P.M. She found Nadine locked in her room with no sheets or blankets. The only items in Nadine's room were the bed, dressers, and a desk. The bed was a loft bed that was very high with the mattress approximately three feet from the ceiling such that Nadine would not be able to sit up in bed. There was a strong odor of urine in the room. The mother explained that Nadine had no sheets or blankets because she would urinate and defecate on them. The social worker observed rags and towels outside Nadine's room. The mother stated that she used the rags and towels to block spaces around and under the door in order to keep the odor contained. The mother directed the social worker to stains on the first floor ceiling which she said were from Nadine's urine seeping through the floor. Nadine testified that at night, she had no access to the bathroom unless she knocked on the door to wake someone, but they were heavy sleepers. The judge discredited the mother's explanation that Nadine would choose to urinate in her room despite the mother's willingness to permit her to leave her room to use the bathroom.
There were black marks on the ceiling of Nadine's bedroom. The mother stated the marks were from Nadine's holding lighted matches to the ceiling. The school and Nadine denied that Nadine engaged in fire-setting behaviors. Nadine stated that once, the mother had set a fire in the oven and blamed Nadine.
There was a broken glass window pane in Nadine's room. The judge found that the mother's failure to remove the broken glass was unexplainable in light of her complaints that Nadine was violent and suicidal.
Nadine had a bowl and cup in her room. The mother stated that Nadine had meals in her room because she was unable to behave at the table and would take food from the other children.
According to the mother, Nadine would lie, steal, set fires, threaten the other children, and act out sexually. She told the social worker that Nadine had gone after Adam with a knife and a pair of scissors. The mother stated that as a result, she locked Nadine in her room at night. The judge did not find this credible in light of the social worker finding Nadine locked in her room between 3:00 and 4:00 P.M.
In contrast, the three boys' rooms were clean with made up beds, contained televisions and video game units, and had locks that locked from the inside rather than the outside.
The mother agreed to bring Nadine to a crisis center and to remove the lock from Nadine's door. The mother brought Nadine to Corrigan at 10:00 P.M. that night. Nadine was determined to need inpatient care, but was sent home that night because of a shortage of beds. The mother telephoned the social worker and left her a message that Corrigan would not keep Nadine so she was going to bring her home and lock her in her room. After the children did not report to school on the following day, May 1, 2012, and after the mother did not answer the telephone, the department decided to remove all four children.
When the social worker arrived at the home between 11:00 A.M. and 12:30 P.M. on May 1, Nadine was not in her room. Rather, she was sitting on the floor in a corner of the living room facing the wall. The other children were sitting in the living room watching television. If Nadine was allowed out of her room on weekends she was required to sit on the floor and face the wall for at least ninety minutes.
On May 3, 2012, a meeting was held regarding Nadine's needs at St. Vincent's, the residential facility in which she had been placed. The mother refused to visit with Nadine because she was too angry to do so. The judge found that this was another indication of the mother's inability or unwillingness to recognize Nadine's needs. Daily supervised telephone contact was allowed between the mother and Nadine but Nadine had difficulty reaching the mother, who refused to establish a set time for telephone calls. During the investigation, Nadine stated that she wished she had not caused so many problems so that the children could be home.
In the past, the mother prohibited Nadine from participating in other family activities, such as a slumber party arranged for the other children. When Nadine's birthday coincided with Easter, she forced Nadine to remain in her room during an Easter egg hunt where she could see the egg hunt through her broken window.
During the pendency of this case, Nadine was placed in a specialized unit at St. Vincent's for two weeks. She was then moved to the "general residence" of the facility. In August, 2012, she was placed in a specialized foster home but she was returned to St. Vincent's in January, 2013, after troubling behavior at the foster home escalated. In April, 2013, Nadine had to be moved to a different unit at St. Vincent's, where she experienced difficulties, and on May 29, 2013, she needed to be physically restrained. In August, 2013, Nadine was placed in a different intensive foster home but was again returned to St. Vincent's just before the end of trial. The judge found that Nadine needed a higher level of care than can be provided in a home setting.
Discussion. 1. The judge's findings. In general, the mother argues that the judge's findings do not support the conclusion by clear and convincing evidence that she is unfit. The judge's conclusions regarding Nadine are amply supported by subsidiary findings, which, in turn, are amply supported by the evidence.
More specifically, the mother argues that the judge did not fairly assess the evidence because he allegedly treated the mother's expert witnesses differently from the department's expert witness. "[A] judge may accord the weight he chooses to expert testimony." Guardianship of Brandon, 424 Mass. 482, 499 (1997). As detailed in the department's brief at pages 28 through 29, it is readily apparent that the judge carefully evaluated the opinions of the experts and the evidence that supported or contradicted them. He did not give any single factor conclusive weight. Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987).
The mother also argues that the judge relied on stale evidence and did not credit her recent participation in services. Although the mother refused to participate in domestic violence services and refused sexual abuse treatment for Nadine, she did participate in, and was credited by the judge for, attending Nadine's treatment team meetings, individual therapy, and parenting programs, as well as for improved interactions during visits with Nadine. The judge did not credit the mother's claim that she had learned from the services. The assessment of the credibility of the mother is well within the judge's discretion. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984); Adoption of Nancy, 443 Mass. 512, 515 (2005).
The mother argues that several findings are clearly erroneous and that these erroneous findings undermine the overall conclusion and demonstrate that the judge did not pay close and careful attention to the evidence. She challenges finding no. 38, that Nadine was exposed to domestic violence all of her life, and finding no. 39, that the mother acknowledged consuming alcohol in 2010, which contributed to the negative environment in the home. The record contradicts her argument. The mother also argues that finding no. 73, that she failed to support Nadine's need for telephone contact, was clearly erroneous. Again, the record and other uncontested findings directly contradict her argument.
2. Visitation. Nadine argues that it was clear error for the judge to review the department's dispositional plan under an abuse of discretion standard and that visitation between children and parents should be evaluated under G. L. c. 119, § 35. Nadine cites no support in the statutory or case law for either argument. The judge did not terminate parental rights and was, therefore, not required to approve a specific plan or enter specific orders regarding visitation. G. L. c. 119, § 26. Decisions related to the "normal incidents of custody" are committed by statute to the discretion of the department. G. L. c. 119, §§ 21, 26, and 32. Care & Protection of Isaac, 419 Mass. 602, 609 (1995). Moreover, there was no alternative plan suggested by any party for Nadine, other than to remain in the department's custody and continue with treatment in a residential setting.
The parties agreed that Nadine could not be returned to her mother at the time of trial. Not only did Nadine have special needs that the mother did not appreciate and could not meet, there was also a restraining order issued by the District Court barring the mother from unsupervised contact with Nadine.
Nadine also argues that due process requires that the judge exercise direct authority over terms of visitation because visitation may affect the parent-child relationship, which may, in turn, affect the outcome of any future termination of parental rights trial. In light of the many procedural protections in the statutory scheme of G. L. c. 119, the protections created by the department's regulations, and the protections embedded in the decisional law, this argument is not persuasive and is without support. Orders concerning visitation are based solely on the child's best interests. See Adoption of Rico, 453 Mass. 749, 754 (2009).
As the department noted in its brief, the family dynamic in this case is rapidly changing and the mother's parental rights have not been terminated. The mother or Nadine may, of course, petition the court for a review and redetermination of the current needs of Nadine. G. L. c. 119, § 26(c).
Conclusion. The subsidiary findings supporting the judge's ultimate finding that Nadine was in need of care and protection and that the mother is currently unfit to parent her are well supported by the evidence. Nadine is a child with special needs and the record demonstrates that the mother not only neglected Nadine, she also subjected Nadine to cruel and counterproductive punishments in an effort to control her behavior. Additionally, as the judge concluded, the mother's drastic and inappropriate treatment of Nadine and her lack of appreciation of its consequences, particularly in stark contrast to her treatment of the boys, not only affected Nadine's relationship with her brothers, most especially Adam, it also ingrained in all of the children negative attitudes that could lead to further negative behaviors.
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 2, 2016.