Opinion
21-P-461
01-03-2022
ADOPTION OF DAWN. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following trial a Juvenile Court judge found that Dawn's parents were unfit to parent her and that termination of their parental rights was in Dawn's best interests, and the judge accordingly issued decrees terminating their parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. The judge approved a plan put forward by the Department of Children and Families (DCF) for the child's adoption by the foster family with whom she had been living for fourteen months. On appeal, the father argues that the judge abused her discretion by finding that custody to the maternal grandmother was not in the child's best interests because the judge did not provide an even-handed assessment of competing placement options, and that the judge erred in finding that there was no bond between the child and her siblings. He also argues that DCF failed to make reasonable efforts to reunify the child with him before terminating his parental rights. We affirm.
The mother's appeal was withdrawn upon her death.
Background.
Dawn has been in DCF care since her birth in 2017. At birth, she tested positive for opiates, cocaine, marijuana, and methadone. She has significant developmental delays and receives occupational therapy, physical therapy, early intervention services, treatment from a podiatrist, medical care for significant vision problems, and consultations with the Perkins School for the Blind.
The father has five children. He does not have custody of any of them nor does he seek custody of Dawn in this appeal. The father has a history of substance use disorder, schizophrenia, and depression. Throughout this case, DCF had difficulty contacting the father due to periods of homelessness, involuntary placements in substance use treatment, and time spent in custody. When DCF was able to contact the father, it did attempt to engage the father in services. DCF's first action plan required the father to engage in several tasks, including that he undergo substance use evaluation, provide weekly drug screens, engage in therapy, attend a nurturing fathers program, contact DCF for visits, meet with the DCF case worker, and attend court and reviews. A later action plan required him to meet with DCF and allow access to his home, inform DCF of changes in contact information and household members, sign releases of information, obtain appropriate housing, attend a substance use disorder treatment program and take steps to avoid relapse, sign releases for a referral for a parenting and psychological evaluation, attend court dates and foster care reviews, and attend monthly visits with the child. The trial judge found that the father had not "meaningfully engaged in or completed any tasks" on his action plans. She also found that given the father's circumstances of transience or involuntary custody for substance use treatment, DCF made "reasonable efforts to engage [the flather in services."
Since November 2018, the child has lived with the same foster (now the preadoptive) family, a two-parent home with the family's two biological children. The child's medical and emotional needs have been addressed by the family, and she has formed strong attachments with them.
At trial, the father offered the maternal grandmother as an alternative placement for the child. Two of the child's biological sisters resided with the grandmother at the time of trial; the child has never lived with them. The grandmother had been on the waitlist for subsidized housing for four years and was searching for other housing at the time. During a ten-month span, the grandmother only visited the child three times and was unresponsive to DCF for four of these months. The child's two biological sisters joined the grandmother for only one visit. One of the biological sisters has significant needs of her own requiring the grandmother's care and the grandmother herself also suffers from a number of health issues, including a stroke causing short-term memory loss. The trial judge found that the alternative placement with the maternal grandmother was not in the child's best interests.
Discussion.
1. Assessment of competing placement options.
Where the parties propose competing plans, the judge must carefully evaluate each plan, including an "even handed assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan" (quotation and citation omitted). Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See Adoption of Helga, 97 Mass.App.Ct. 521, 528 (2020). "In choosing among placement plans, it falls to the sound discretion of the trial judge to determine what is in the best interests of the child, and our review on appeal is one of substantial deference" (quotation and citation omitted). Adoption of Bianca, 91 Mass.App.Ct. 428, 434 (2017).
The father argues that the trial judge abused her discretion in finding that custody to the maternal grandmother was not in the child's best interests because the judge did not provide an even-handed assessment of the competing plans and considered some inappropriate factors. We disagree.
DCF proposed, and the judge approved, a plan under which the child would be adopted by her foster parents. The judge appropriately considered that Dawn was thriving in the care of the preadoptive family. Significantly, the preadoptive family had a demonstrated history of providing for her extensive medical and developmental needs. The trial judge also rightly considered that the grandmother was already caring for two of the child's sisters, one of whom had significant needs, and that the grandmother had her own significant medical challenges. The grandmother had only been able to visit the child three times between April 2019 and January 2020 and had been "not responsive to" DCF for four months in that period.
The father contends that the judge considered at least in part the grandmother's lifestyle and the material opportunities the preadoptive family offered. Review of the record, however, demonstrates that no inappropriate factors, "such as disapproval of a [grand]parent's life-style or a comparison of the material opportunities a foster parent may offer with those offered by a natural [grand]parent" were considered. Care & Protection of Three Minors, 392 Mass. 704, 712 (1984), citing Custody of a Minor, 389 Mass. 755, 766-767 (1983). The trial judge properly considered the grandmother's current housing situation. She shared housing with another family, one of the child's siblings had her own bedroom, and the grandmother planned to share a bedroom with the other sibling and Dawn. The judge did not consider the grandmother's income or lifestyle. We discern no abuse of discretion.
2. Sibling relationship.
The father argues that the judge erred in failing to find a bond between the child and her two sisters who reside with the grandmother. We disagree. "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Adoption of Jacques, 82 Mass.App.Ct. 601, 606-607 (2012). "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation and citation omitted). Adoption of Larry, 434 Mass. 456, 462 (2001). The trial judge based this finding on the fact that the child had never resided with the sisters because she has been in DCF care from birth, and the sisters had only visited the child once. We discern no error. Moreover, the finding did not factor into the assessment of the competing plans.
3. Reasonable efforts.
For the first time on appeal, the father argues that DCF only provided a list of tasks for him to complete, rather than mandated services or service referrals. The argument is waived. See Adoption of Willow, 433 Mass. 636, 651 (2001). The argument also fails on the merits. DCF is required to "make every reasonable effort to encourage and assist families to use all available resources to maintain the family unit intact." 110 Code Mass. Regs. § 1.01 (2008). See Adoption of Ilona, 459 Mass. 53, 60 (2011) ("Before seeking to terminate parental rights, the department must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents" [citation omitted]). This includes making "reasonable efforts to work in cooperation with incarcerated parents to promote a healthy relationship with their children, and to avoid permanent separation," by having "regular visitation at the correctional facility, as well as the holding of case conferences and other consultations at the correctional facility." 110 Code Mass. Regs. § 1.10 (2008). However, DCF's obligation to make reasonable efforts is "contingent upon [the parent's] fulfillment of [their] own parental responsibilities," and subject to DCF's competing "duty to insure that the child is protected from the absence, inability, inadequacy or destructive behavior of the parent." Adoption of Mario, 43 Mass.App.Ct. 767, 774 (1997). See G. L. c. 119, § 1. See also Adoption of Varik, 95 Mass.App.Ct. 762, 769 (2019). During the pendency of the case, the father's periods of homelessness, hospitalization, and time spent in custody made it challenging or impracticable for DCF to assist the father with direct referrals to services. The father did not request any visits with the child during the times he was free from custody. While he did enroll in mental health and substance use treatment, he quit after a few meetings because he "did not like it." We discern no error in the trial judge's finding that DCF fulfilled its obligation to make reasonable efforts to reunite the father and his child.
Decree affirmed.
The panelists are listed in order of seniority.