Opinion
12-P-833
01-04-2013
CARE & PROTECTION OF URI.
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
Uri and his mother appeal from an adjudication that Uri was in need of care and protection pursuant to G. L. c. 119, § 26, and his subsequent commitment to the Department of Children and Families (department) for continued care at a residential treatment facility, The Robert F. Kennedy Children's Action Corps (RFK). On appeal, both mother and child challenge the judge's conclusion that Uri's needs were such that his mother was unable to meet them. We affirm.
Standard of review. A child may be adjudicated in need of care and protection only if there is clear and convincing evidence to support the finding that a parent is currently unfit. Care & Protection of Erin, 443 Mass. 567, 568 (2005). Subsidiary findings must be proven by a fair preponderance of the evidence. Care & Protection of Laura, 414 Mass. 788, 793 (1993). An appellate court will leave a trial court judge's findings undisturbed absent a showing that they are clearly erroneous. Care & Protection of Stephen, 401 Mass. 144, 151 (1987). Parental abilities and Uri's behavior. The mother and Uri contend that the Juvenile Court judge erroneously focused on Uri's behavior and needs rather than the mother's alleged deficiencies. Parental fitness is evaluated in the context of a child's particular needs. Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984). Here that context is acute. It is undisputed that Uri has exhibited disruptive, violent, and aggressive behavior since he was a child. Uri was choked and picked up off the ground by the neck at his preschool. In a single day at preschool, he expressed suicidal thoughts to the staff, touched two girls in their genital areas, urinated on a girl, and threw a chair at a teacher. He has been tardy, absent, and suspended from school numerous times and used chairs, scissors, and other objects as weapons at school. In 2006, his elementary school filed a child in need of services petition because he was an habitual offender.
He has been placed in various foster homes, which have not been successful. In his various foster placements, the police have had to be called several times, he has violated curfew, refused to follow directions, and has been violent with other children and a foster parent. During this time Uri was diagnosed with mood disorders, attention deficit hyperactivity disorder, and was taking psychiatric medication.
More recently, he has pulled a knife on the mother, punched his fist through a window, been in fights at a residential program, and previously been arrested and placed in the custody of the Department of Youth Services. The mother's abilities must be evaluated in this context. The mother has had understandable difficulty addressing Uri's challenging behavior. For the reasons set forth more fully below, there was no error.
Staleness. Uri contends that the judge's findings that a pattern existed in which the mother failed to fully avail herself of services was based on stale evidence. The mother and Uri argue that she is currently in therapy, has family and community support, is in compliance with the department's plan, and that any previous inattentiveness has been fully remedied.
The judge made the following findings supported by the record. In light of Uri's history and behavior, the department considered family therapy to be a prime component of any reunification plan. On or before January, 2011, the mother was offered family therapy at RFK and, in December, 2010, funds for a commuter rail pass and rides to and from the train station to RFK. However, she did not use those funds for passes. She did, however, engage in therapy sessions over the telephone. In July, 2011, the mother began going to in-person therapy when a social worker transported the mother to RFK. The mother has, since November, 2011, transported herself to RFK to participate in family therapy with Uri.
The mother testified that she did not use the funds because the roundtrip travel and therapy would take all day. The judge did not credit the mother's reasons for failing to go to RFK for therapy. The mother was also concerned about her daughter taking long rides in the car and wanted to wait until Uri's father's release from prison to begin family counseling. However, the mother visited the father in Walpole, but did not visit Uri at a residential school in Walpole. Although it is clear that the travel posed some obstacles, it was vital to reunification.
The mother's relationship with and ability to set limits for Uri improved. However, as recently as September, 2011, the mother had to call RFK to remove Uri from her home. The fact that she called for assistance is not to be criticized. Nevertheless, the need to call highlights the fact that Uri's behavior, while improving, is still extremely difficult to deal with for any parent or caretaker in a home setting, particularly where, as here, there had been a relatively short course of family therapy.
The judge did find that there had been progress. As of trial, the judge found that Uri's aggression and defiance at RFK were in decline, although Uri still had difficulty following directions, was disruptive, hindered the treatment of others, and bullied other students. He required significant academic support and special education services, including a highly structured environment, consistency, and an extended school year. The judge also found that Uri was happy to be home and that he got love, attention, and support there. The mother had taken steps to develop a social support system.
Despite these advances, the judge found that the mother was unable to respond effectively to Uri's disobedience and aggression. The difficulties the mother has encountered are not surprising. Fifteen years old at the time of trial, Uri continues to be physically aggressive. He pulled a knife on his mother in December, 2009, struck a sibling in foster care, threatened to stab his foster stepfather, and has been placed in physical restraints while at RFK.
The judge found that visits with the mother have consistently and recently failed and put Uri at 'considerable risk.' In June, 2011, Uri got into an argument with the mother at Franklin Park and disappeared for two days, he has been rude and oppositional toward the mother, and he has disappeared for several hours at a time. Thus, the finding was supported by the evidence.
In so finding, the judge did not credit Dr. Jeff Stein's testimony that the mother understands the nature and severity of Uri's needs and can follow through with therapy. We do not disturb this finding on appeal. R.D. v. A.H ., 454 Mass. 706, 719 (2009).
The record also supports the finding that the mother has not been able to fully understand and appreciate the depth of Uri's problems and the nature of the care necessary to address them. Cf. Adoption of Serge, 52 Mass. App. Ct. 1, 8 (1993) (specific and realistic plan for assuming fulltime care of child relevant). In November, 2011, the mother took Uri to New York against RFK's recommendations after an argument between herself and RFK staff in front of Uri. The mother desired to enroll Uri at a local high school, but had not contacted anyone to determine whether the school would be able to implement Uri's individualized education program (IEP). Although she testified that she planned to continue therapy through the Boston Medical Center, she had not contacted the hospital to discuss this plan.
In sum, the judge recognized that the mother had improved in parenting Uri, and that Uri had improved his behavior, but that Uri's defiance, temper, and physical aggression were beyond the mother's capabilities, and, indeed, any placement's capabilities other than RFK. Given Uri's 'specialized needs,' Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 125, and the mother's inability to meet them at the time of trial, the judge's ultimate finding that Uri was in need of care and protection was not clearly erroneous.
Judge's weighing of the evidence. The mother contends that the judge's findings represent a flawed weighing of the evidence, reiterating her argument that she has had recent successes, but the judge gave no weight to them. The judge did not overlook the mother's advances. He noted that the mother's relationship with Uri had improved, that Uri had made progress, and that the mother had begun traveling to participate in family therapy with Uri. Ultimately, however, he concluded that '[w]hile the picture is more hopeful, problems persist which lead me to conclude that reunification is not presently in [Uri's] best interests.' We accord substantial deference to the judge's weighing of the evidence and decipher no error here. See Adoption of Nancy, 443 Mass. 512, 515 (2005).
Uri's best interests. The mother's final contention is that Uri's best interests are not served by a placement at RFK. Uri's behavior presents considerable obstacles for any placement, and although the mother has made recent improvements in parenting Uri, the judge's conclusion that 'immediate reunification is not presently in [Uri's] best interests' is supported by the findings that he benefits from a therapeutic school that offers services and that he 'continues to need the individualized and structured environment offered at RFK.'
'Availability'. Uri challenges the judge's ruling that the mother was 'unavailable,' arguing that she was at all times available to her son. The choice of terms was based on the request of the mother. At trial, mother requested that, if the judge were to allow the petition, the judge find the mother 'unavailable' instead of 'unfit.' Accordingly, the judge found that mother 'presently is unavailable to assume parental responsibility for the subject child.' Although Uri argues on appeal that the trial judge did not actually find the mother 'unfit,' a finding of unavailability in a care and protection proceeding is 'comparable to being declared unfit.' Care & Protection of Erin, 443 Mass. 567, 568 n.2, 572-573 (2005). Moreover, we are cognizant of the many reasons why the mother would seek to avoid the negative connotations of the statutory phrase 'unfit,' and the many reasons why the judge would accommodate that request. The ultimate goal of all parties remained family reunification. 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 loves and provides for her child to the best of her ability, but nonetheless reach the conclusion that the best interests of the child warrant allowing a petition for care and protection. This case presents a juvenile whose present behavior would be difficult for any parent, foster parent, or placement to manage. The judge's findings and rulings were designed to provide the maximum support to Uri during the period of transition to adulthood, and were supported by the evidence.
General Laws c. 119, § 24, inserted by St. 2008, c. 176, § 84, provides that '[a] person may petition under oath the juvenile court alleging on behalf of a child within its jurisdiction that the child: . . . has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention.'
Judgment affirmed.
By the Court (Trainor, Agnes & Sullivan, JJ.),