Opinion
15-P-1091
03-25-2016
CARE AND PROTECTION OF OCTAVIA.
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 and the father appeal from the decision of a judge of the Juvenile Court finding that Octavia is a child in need of care and protection and committing her to the permanent custody of the Department of Children and Families (department). See G. L. c. 119, §§ 24, 26. For the reasons set forth below, we affirm.
Discussion. 1. Standard of review. "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). "The judge's findings in a [care and protection] proceeding [pursuant to G. L. c. 119, §§ 24 and 26] . . . must prove current parental unfitness clearly and convincingly." Custody of Eleanor, 414 Mass. 795, 799 (1993). See Adoption of Nancy, 443 Mass. 512, 514-515 (2005). Subsidiary findings must be established by a fair preponderance of the evidence. Care & Protection of Laura, 414 Mass. 788, 793 (1993). See Adoption of Elena, 446 Mass. 24, 30-31 (2006). On appeal, we must leave the judge's findings undisturbed absent a showing that they are clearly erroneous. Id. at 31. "Moreover, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Adoption of Quentin, 424 Mass. 882, 886 (1997), quoting from Custody of Eleanor, supra at 799. See Adoption of Nancy, supra at 515.
2. Mother's appeal. The mother contends that she had made significant improvements in her ability to care for Octavia by the time of trial, and that the judge's ruling was therefore in error because the judge relied on stale information. Throughout the period that the department was involved with the family, the mother suffered from largely undiagnosed and inconsistently treated mental illness that significantly impacted the mother's ability to care for Octavia. In assessing parental fitness, "the State interest in protecting neglected children may properly be preventive as well as remedial." Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979). The judge was entitled to look to past patterns of behavior in assessing the mother's capabilities and the likelihood of future abuse. "[A]n assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child." Id. at 883. We therefore look to the entire history of the mother's care and involvement with Octavia in reviewing the adequacy of the judge's findings and rulings.
The mother had been prescribed medication for mental health issues since the age of eighteen. She took the medications intermittently based in part on what she described as sickness or an allergic reaction to them.
There is a significant history of past neglect of Octavia which tracks the course of the mother's mental illness; the mother described the mental illness as anxiety, stress, and depression. Reports of maternal neglect first emerged in 2010 when Octavia was four years old. See G. L. c. 119, § 51A (51A report). The mother and child were living in the home of the paternal grandparents. Octavia was not clean, and the mother refused to use a bathroom that was also used by others unless it had been disinfected first. During Octavia's infancy the mother left Octavia in a dirty diaper, and toilet trained her in the bedroom. Octavia's hair was matted with food, and the mother sponge bathed her only when Octavia was asleep.
The mother does not dispute any of the judge's 155 findings of fact regarding her past history of care for Octavia. Rather, the mother argues that the legal conclusions were improperly drawn.
The mother was evicted, along with Octavia, in 2010. Another 51A report was filed when the mother, then living in a shelter, could not grasp the fundamentals of feeding or bathing Octavia. The mother ritualistically cleaned her physical surroundings to remove germs but would not use the bath tub at the shelter. She struggled to properly bathe Octavia, with the result that Octavia's hygiene was poor. The mother was unable to discipline Octavia, who hit her mother and told her to sit in a corner. The mother did not regularly bring Octavia to school, and appeared unable to grasp either the importance of doing so or how to get her there.
As was the case when the mother lived with the paternal grandparents, the mother also expressed deep-seated concerns about occasions when Octavia might be in contact with strangers. For example, she did not accept the department's referral for day care services. When Octavia reached school age, the mother did not put her on the bus to school because mother did not know the bus driver.
The mother left the shelter for an apartment with support from Catholic Social Services in November, 2011. For a period of time she complied with her service plan tasks. The department's supervision terminated in January, 2012. At some point, the mother ceased compliance with her service plan in all respects.
The mother's service plan tasks were to: (1) meet with department social workers; (2) sign releases for information from collateral contacts; (3) engage in psychiatric treatment; (4) engage in individual counselling to address mental health; (5) take prescribed medication daily; (6) attend visits with Octavia and confirm visits by 9:00 A.M. on the day of the visit; (7) bring appropriate snacks and activities to the visit; (8) ensure Octavia is medically and dentally up to date; (9) attend all court dates and foster care reviews; (10) engage in a parenting class; and (11) follow all recommendations of the department.
Sixteen months later, in May, 2013, a new 51A report was filed regarding Octavia, who was then seven years old. The mother was living in an apartment with no furniture save two beds. Octavia was not in school and was left unattended in the streets. The mother initially refused the social workers entry to the home. She called the police, but eventually allowed the social workers to enter once the police arrived. The mother told the social workers that she had heard the neighbors mimic her through the walls. During the course of the incident her behavior so degraded that she was involuntarily committed.
The department took temporary custody of Octavia. Octavia's adult, paternal half-sister contacted the department in September, 2013. Octavia was placed in that home in the care of the sister and her husband.
After her release from the hospital, the mother declined to take medication, and did not seek counselling. She also declined to either sign a release or obtain a psychological evaluation. She did attend supervised visits with Octavia. However, at one visit, she expressed concern that her neighbors could see and hear everything that she had been doing.
A few months before trial, the mother began to take one of her three medications, signed a partial release, and went to counselling. However, in May, 2014, she began to display the same type of vigilance about bugs and germs that she had displayed when she was in the shelter. She covered the cracks in the floors and walls of her home with masking tape, as well as the electrical sockets, to prevent dust and germs from entering. She cleaned the apartment with bleach and kept the windows closed.
The tape remained in place during subsequent home visits by social workers, including one visit two months before trial.
The judge was entitled to conclude that, in the intervening time between the mother's release from the hospital and trial, the evidence established a lack of substantial, material improvement in the type of behavior that led to the neglect of Octavia. The mother suffered from long-term mental illness requiring treatment with medication since the age of eighteen. She had resisted obtaining a full psychiatric diagnosis, and had not consistently taken medication as directed. Despite brief periods of appropriate care, she has been unable to provide even basic care for Octavia on a consistent basis: the child had unattended medical needs, had not been adequately fed or bathed, and had been left unattended both day and night on the street outside the mother's apartment. The judge's factual finding that this was likely to repeat, and that Octavia was at risk of further harm was not clearly erroneous. The record evidence does not lead to the conclusion that a mistake has been made. See Custody of Eleanor, 414 Mass. at 799.
Octavia had a cyst above her eye which had been permitted to grow for many years and required surgical removal after the department took custody.
The mother also contends that the judge's findings and conclusions reflect a disapproval of her lifestyle, not a finding of neglect. See Custody of a Minor (No. 2), 378 Mass. 712, 719 (1979). The judge's findings were clear. She found that the "[m]other's anxiety makes it difficult for her to provide for her child's basic needs," and concluded that the "[m]other's illness interferes with and prevents [m]other from being able to provide for [Octavia's] basic care." These findings did not reflect a commentary on lifestyle, but rather constituted a permissible determination of unfitness, as evidenced by the mother's failure to adequately feed or bathe her child, attend to her medical needs, or ensure her basic safety.
The judge referred to certain portions of the mother's testimony in "quotes." We take the use of quotation marks not as an expression of disapproval of the mother, but rather to make it clear that the terms are the mother's own words and not the judge's interpretation.
3. Father's appeal. The father contends that his lack of a recent relationship with Octavia is not grounds for a finding of unfitness. "A caretaker's actions that fail adequately to protect a child's well-being can constitute neglect, even in the absence of actual harm." B.K. v. Department of Children & Families, 79 Mass. App. Ct. 777, 783 (2011). Here, the judge permissibly found that the father's lack of involvement with Octavia resulted in her continued neglect. See Lindsay vs. Department Of Social Servs., 439 Mass. 789 (2003) (day care worker left child unattended).
The evidence showed paternal disengagement amounting to neglect. The father moved out of his parents' home when Octavia was one year old, visited occasionally, but never paid any child support. Although he saw, and therefore knew about, the very compromised level of care that the mother gave Octavia while they were living with the paternal grandparents, he did not try to care for her himself, seek a determination of paternity, or file a report with the department. When the mother left the paternal grandparents' home with Octavia without telling the father where they were going, he made no effort to locate them. This was a conscious decision; he testified, "I ask her where she's going to move to [so] I can be right near to my daughter and her. She says I told you I don't know if that baby is yours or not, so go along with your life and leave mine alone. That's what I did."
He testified that he did not bathe her himself because "I don't think I can do that kind of job."
When the father learned that Octavia had been found, he did not seek custody. He agreed that having Octavia live with his older daughter was best, saying that Octavia was better off with her half-sister. Only after his older daughter limited his visitation did the father seek custody.
The father claims that the judge's statement that the father had done "too little too late" shows that she shifted the burden of proof to the father. The burden to prove parental unfitness lies with the department, not the parent. See Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997); Care & Protection of Ian, 46 Mass. App. Ct. 615, 619 (1999). The father argues "the uncontested evidence [is] that Mother absconded with [Octavia] and kept her hidden for a number of years." On the contrary, as noted above, the father's testimony was that he allowed the child to go, despite the fact that he knew that the mother did not properly care for her. The judge's findings and conclusions reflect this history of prior neglect by the father.
Conclusion. For all the foregoing reasons the judgment is affirmed.
Both the mother and father have shown evident affection toward Octavia, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment. A judge may find that a mother and father love their child and yet reach the conclusion that the child is in need of care and protection.
So ordered.
By the Court (Hanlon, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.