Opinion
12-P-1445
08-29-2013
CARE AND PROTECTION OF KEIKO.
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
The mother and her teenage daughter, Keiko, appeal from a judgment of the Juvenile Court maintaining the commitment of Keiko to the custody of the Department of Children and Families (DCF). Several months after DCF filed its original petition for custody, the mother stipulated that she was unfit and that Keiko was in need of care and protection. The judge held a hearing for 'review and redetermination' of the mother's unfitness. Despite an undeniable bond between the mother and Keiko, the significant limitations and needs of both the mother and Keiko led the judge to continue the commitment of Keiko to the custody of DCF. We affirm.
The father is not involved in these proceedings.
We also encourage DCF to maintain and, where feasible, make every effort to strengthen, the durable bond of affection between Keiko and the mother. However, and contrary to the mother's request for us to instruct the judge to determine a transition plan, DCF remains best situated to consider the total circumstances of Keiko's living arrangement. Background. Keiko was born in December, 1998. Prior to her birth, Keiko's mother and biological father had separated. In 2001, the mother began a relationship with Keiko's stepfather, whom she married in early 2002. In late 2008, when Keiko was ten years old, she disclosed instances of sexual abuse at the hands of three individuals. The revelations resulted in two G. L. c. 119, § 51A, reports within one week of each other. One report alleged that her stepfather had sexually abused her on multiple occasions. The second report alleged that her male neighbor had sexually abused her. During a subsequent interview about these reports, Keiko claimed that her biological father had sexually abused her on a single occasion. DCF took custody of Keiko.
The circumstances of the father are not relevant to this appeal.
DCF maintained custody from December, 2008, to the time of the review and redetermination hearing in or about October, 2011. According to Keiko's needs, DCF placed her at different facilities during that interim. However, beginning in March, 2010, Keiko's mental health deteriorated. Her troubles were marked by auditory hallucinations, attempts to harm herself, and threats of suicide. Nevertheless, throughout DCF's custody, the mother faithfully visited and maintained contact with Keiko. There is no dispute that the mother and Keiko have great affection for each other.
After the trial, the judge issued 188 detailed findings of fact, conclusions of law, and a dispositive order. She ordered that Keiko remain in DCF custody in 'an alternative planned living arrangement.' The judge emphasized (1) Keiko's special needs; and (2) the mother's inability to meet those needs.
On appeal, Keiko argues (1) that the evidence does not support the judge's finding of unfitness; and (2) that the judge had predetermined the outcome of the case. The mother argues (1) that the evidence does not support the finding of unfitness; and (2) that the judge should have ordered DCF to create a transition plan of reasonable efforts to reunify Keiko with the mother. Additional relevant facts appear throughout our analysis.
Analysis. 1. Sufficiency of the evidence of unfitness. The welfare of a child is the critical consideration for a judge determining the fitness of a parent to care for a child. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981). A State may intervene when the welfare of a child outweighs a parent's natural right to the custody of his or her children. See Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641-642 (1975). A judge's determination of parental unfitness assesses the 'grievous shortcomings or handicaps that put the child's welfare much at hazard.' Adoption of Greta, 431 Mass. 577, 587 (2000), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).
A reviewing court leaves a judge's subsidiary findings undisturbed unless they are 'clearly erroneous.' Ibid. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Those findings also receive 'substantial deference' on appellate review since that judge possessed the opportunity to evaluate the witnesses' credibility and weigh the evidence. Adoption of Quentin,424 Mass. 882, 886 (1997). Adoption of Nancy, 443 Mass. 512, 515 (2005). In the present case, the judge's findings fall into three categories: (1) Keiko's deficits and needs; (2) the mother's deficits; and (3) the durable bond of affection between them. The judge's voluminous subsidiary findings brought her to the ultimate findings that (1) the mother is unfit to care for Keiko, and (2) Keiko must remain committed to the custody of DCF. The judge's findings are free of clear error.
2. Keiko's needs and mental health deficits. Keiko has special needs. The record contains ample evidence from health care professionals illustrating her substantial cognitive limitations. She has received diagnoses of posttraumatic stress disorder (PTSD), pervasive developmental disorder, mild mental retardation, and anxiety and depression. Her intelligence quotient is approximately sixty-two, and she has language and behavioral difficulties.
After DCF took custody of Keiko, she at first appeared to be doing well. However, in March, 2010, Keiko's mental health began to decline. The evidence did not identify a specific cause for her deterioration. She reported hearing voices directing her to harm herself. One auditory hallucination instructed her to kill herself and her mother so that they could be together in heaven. In multiple other instances, Keiko either tried or threatened to harm herself. Her treatment providers sought and ultimately prescribed antipsychotic medication. Keiko required six ongoing medications. As of May, 2011, she was receiving psychiatric crisis intervention. Keiko's suicidal ideation presents a continuing danger of self-harm.
Possible causes were any combination of Keiko's separation from her mother, a placement in a residential program, the sexual abuse, her mother's inability to protect her, and her cognitive delays which might affect her coping skills.
Keiko's incidents of self-harming action or effort included running into traffic, wrapping a cord around her neck, attempting to jump out of a window, and threatening to stab herself.
3. The mother's deficits. The mother's parenting deficiencies left her unable to care properly for Keiko. Like Keiko, she has patent cognitive limitations. The mother is illiterate. She maintains incoherent memories of her past relationships. Her confusion included the inability to recall how many children she has. Such cognitive limitations can impair a parent's ability to care for a child.Adoption of Ilona, 459 Mass. 53, 62 (2011) (cognitive limitations are part of the overall determination of unfitness).
A licensed mental health counselor viewed the mother as a loving person, but with no ability to plan for Keiko's care. A social worker similarly felt that the mother could not deal with Keiko's complex needs. These mental and cognitive shortcomings bear directly on the mother's fitness to parent Keiko. See Adoption of Frederick, 405 Mass. 1, 9 (1989) (mental disorders are relevant to a determination of fitness because they affect parent's capacity to assume parental responsibility and to deal with a child's special needs).
The mother also failed to understand the gravity of the sexual abuse of Keiko. She does not comprehend the association between the sexual abuse of Keiko and her PTSD and other mental health problems. She has not appreciated, or responded to, that experience. For example, when Keiko disclosed that her stepfather had sexually abused her, the mother grounded Keiko, and took no action to protect her. The judge specifically found that Keiko disclosed sexual abuse months before DCF became involved, and that the mother failed to take any remedial action. That dissociation illustrates her incapacity to meet Keiko's needs. See Adoption of Larry, 434 Mass. 456, 467-468 (2001) (a parent's failure to act and to protect a child against the actions of the other parent is evidence of unfitness).
The mother similarly cannot describe appropriate responsive actions in the event that Keiko needed an intervention or began to harm herself. In particular, a social worker expressed her concerns that the mother would be unable to identify warning signs of danger in Keiko's behavior. The judge made clear that the health and safety of Keiko were of paramount concern. When the judge determined that Keiko was in need of care and protection, she was 'not bound to wait for a disaster to happen.' Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). See Custody of a Minor (No. 2), 378 Mass. 712, 714 (1979) ('the State's interest in protecting children from suffering harm at the hands of their parents may properly be preventive as well as remedial').
4. The bond between the mother and Keiko. Abundant evidence establishes a strong emotional bond between the mother and Keiko. The mother has faithfully visited Keiko since the time of their separation in December of 2008. It was clear during their visits that the mother and Keiko exchanged genuine affection. DCF does not appear to want to keep the mother away from Keiko. On the contrary, DCF recognizes their strong bond, and has set a 'goal . . . to move Keiko to a safe living situation closer to Mother.' If Keiko's mental health improves, DCF also hopes to place Keiko in a new intensive foster home.
Even with this emotional tie, the judge rooted her custody decision in sufficient findings, none of which is clearly erroneous. 'The specialized needs of [Keiko] when combined with the deficiencies of [the mother's] . . . capacity [and] conduct may clearly establish parental unfitness.' Care & Protection of Amalie, 69 Mass. App. Ct. 813, 818 (2007), quoting from Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984). As a result, the judge's decision to maintain the commitment of Keiko in DCF custody was proper.
Since we conclude that the evidence supports the judge's findings, Keiko's claim that the judge predetermined the outcome of the case is unsupported.
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5. Judicial order concerning reunification. A trial judge has broad equitable authority to order a transition plan consistent with the best interests of the child. See
Adoption of Rico, 453 Mass. 749, 754 (2009). The source of a judge's authority is G. L. c. 119, § 26(b), as amended, St. 2008, c. 176, § 84, which states in relevant part:
'If the child is adjudged to be in need of care and protection, the court may commit the child to the custody of the department until he becomes an adult or until, in the opinion of the department, the object of his commitment has been accomplished . . . . The court also may make any other appropriate order, including conditions and limitations, about the care and custody of the child as may be in the child's best interest.' (Emphasis supplied).
Here, the mother claims on appeal that the judge abused her discretion by approving the alternative planned permanent living arrangement (APPLA), which did not require DCF to make reasonable reunification efforts. In light of the circumstances of Keiko's special needs, we conclude that DCF's APPLA plan was sound. The judge did not abuse her discretion. Since the judge did not terminate the mother's parental rights, reunification is still a possibility in the future if a change develops in the circumstances of the mother or Keiko.
Judgment affirmed.
By the Court (Trainor, Katzmann & Sikora, JJ.),