Opinion
21-P-504
01-27-2022
ADOPTION OF FARRAH (and three companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge found the mother unfit to parent Farrah, Susan, Julie, and Linda, and that it was in the girls’ best interests to terminate the mother's parental rights. On appeal, the mother claims error in several factual findings and in the judge's conclusion that her unfitness is likely to last into the foreseeable future. The children also appeal, arguing that termination is not in their best interests given their ages and strong bond with the mother, and because the adoption plan offered by the Department of Children and Families (department) was inadequate. We affirm.
Identical decrees entered with respect to the fathers of Farrah and Susan. The trial to terminate the parental rights of Julie's father was bifurcated. The father of Linda passed away before proceedings commenced. None of the fathers have participated in this appeal.
Background. We summarize the judge's pertinent findings of fact, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). The mother, born in 1989, had a long history with the department as a child victim of abuse and neglect. She was in the department's custody from the age of twelve to the age of sixteen. From the age of sixteen to the age of eighteen, she was committed to the Department of Youth Services. In March 2008, the mother gave birth to Farrah, and the hospital filed a report pursuant to G. L. c. 119, § 51A (51A report), alleging that Farrah was at risk of neglect; the report was supported. Six months later, the mother was incarcerated for thirty days for two counts of assault and battery. The mother has numerous adult convictions for assault and battery, disturbing the peace, and disorderly conduct.
Susan was born in February 2009. In November 2009, Susan and Farrah were removed from the mother's care due to incidents of domestic violence between the mother and a male partner. The department filed a petition alleging that the girls were in need of care and protection. The petition was dismissed in the spring of 2010 after the mother engaged in services. In July 2010, Julie was born. Linda was born in December 2012. Since 2008, the department has received twenty-four 51A reports alleging abuse and neglect of the girls by the mother, resulting in the department's provision of services to the mother and the children. The reports alleged physical and sexual abuse, homelessness, medical neglect, and domestic violence between the mother and her partners, the fathers of her children and a man named Michael (a pseudonym).
In April 2018, the department received four 51A reports alleging abuse and neglect of the children due to their disturbing behavior at school and domestic violence between the mother and Michael. During the department's investigation of those reports, another 51A report was filed on July 3, 2018, after two of the children ran to a neighbor asking for help because Michael was beating and strangling the mother. The mother refused to cooperate with responding police officers despite fresh wounds to her neck and face. When the department conducted an emergency removal, the mother "took off running" with the three younger children before threatening to murder department workers, charging at them with a "two-by-four" board, and throwing a ceramic tile at their car while the children were inside. On July 6, 2018, a court order to produce Farrah was issued because the mother refused to disclose Farrah's location. The mother eventually brought Farrah to court and all four children were placed in foster care. Thereafter, the mother went to the department's office and threatened to "shoot up the place." The mother was criminally charged for her conduct.
A department supervisor testified that, "[a]t one point [the mother] had pushed the table and it hit me. She had come around the table, it appeared to be coming at me. ... She then told, told me that she was coming after me, she knew what my face looked like." The supervisor interpreted this conduct as a threat.
Charges of threatening to commit murder and resisting arrest ultimately were continued without a finding, while charges of making terroristic threats and disturbing the peace were nolle prossed.
All four children struggled in foster care with behaviors including self-harm and inappropriate sexual conduct. Due to her challenging behavior, Farrah's placement was changed twenty times in the seventeen months between removal and the beginning of the trial. Susan's placement changed seven times, Julia's fifteen, and Linda's ten. Farrah was diagnosed with posttraumatic stress disorder and major depression ; several times during the pendency of this case, her behavior required crisis intervention. Julie has also required crisis intervention. The mother was aware that the children were struggling, but showed no meaningful change in her thinking or behavior. Indeed, police continued responding to calls regarding violence between the mother and Michael, including at least eight times between September and December 2019.
Discussion. 1. Unfitness. The decision to terminate a parent's rights requires a two-part analysis. See Adoption of Garret, 92 Mass. App. Ct. 664, 671 (2018). "First, the judge must determine whether the parent is fit to carry out the duties and responsibilities required of a parent." Id. See Adoption of Ilona, 459 Mass. 53, 59 (2011). "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" (quotation and citation omitted). Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005). If the judge finds the parent unfit by clear and convincing evidence, and if there is no "credible evidence supporting a reasonable likelihood that the parent will become fit" in the near future, the judge must assess whether termination of parental rights is in the child's best interests. Adoption of Ilona, supra. "We give substantial deference to [the] judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id.
Here, the judge found that each of the girls experienced significant loss and trauma in the mother's care due to "years of unstable housing, exposure to domestic violence, screaming, and general chaos." Although the department made referrals for the family, the mother either did not avail herself of those referrals or did not cooperate fully with the services she was provided. The mother was and remains unwilling or unable to separate herself from an abusive partner despite engaging in domestic violence services. Her denial of abuse in the face of numerous police responses demonstrates a continuing inability to separate herself from violence and abuse, and an inability to understand the effect of abuse on her family. The judge found that the mother "lack[s] protective instincts for the children," each of whom have significant needs that require careful supervision, structure, and "specialized ... therapeutic intervention." The judge further found that the mother "has not been able to provide these things in the past, and she is not in a position to do so as of trial." Thus, while the judge found "[t]hat [the mother] can pay appropriate attention and engage with the children in [a] supervised setting," that did not outweigh the mother's inability to provide "a stable, caring home that is free from abuse, neglect, police involvement, instability and violence."
We have carefully reviewed the lengthy record in this case. The judge's findings are well supported and justify a finding of unfitness. See Adoption of Elena, 446 Mass. 24, 33 (2006) (pattern of neglect and parent's minimization); Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (failure to keep stable home environment and maintain service plans); Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996) (inability to break cycle of violence); Adoption of Oliver, 28 Mass. App. Ct. 620, 625-626 (1990) (no understanding or ability to meet child's special needs).
The mother claims that the judge unfairly ignored positive evidence and made clearly erroneous findings regarding (1) her relationship with Michael, (2) the effect of that relationship on the children (the mother claims there was none), and (3) the department's reasonable efforts at reunification. There was no error. The judge was not required to credit the mother's testimony that she ended the relationship with Michael, especially where police responses to her home continued during the pendency of this case. And it is a fair inference from her continuation of that relationship that the mother failed to appreciate its effect on the children. It is well settled that children who witness abuse suffer "a distinctly grievous kind of harm." Custody of Vaughn, 422 Mass. 590, 595 (1996). Contrary to the mother's claim, the judge did credit the mother for her positive gains, particularly in securing an apartment. "At no point, however, did it appear that [the mother] was near ready to resume full responsibility for her daughters." Adoption of Paula, 420 Mass. 716, 730 (1995). Absent some evidence of an appreciable improvement in the mother's ability to meet the children's needs, mere participation in services did not render her fit to parent them. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019).
Evidence of the mother's volatile and aggressive behavior, and continuing intervention by the police, also supports the judge's finding that the department's failure to go to the mother's apartment, supervise visits, or invite the mother to the children's activities and appointments, "was not patently unreasonable." The record does not support the mother's claim that those decisions were never revisited; according to the assigned social worker, it was "a constant conversation which is part of the reason why we do the police collaterals, to see if it's a safe environment for us to respond." The department's obligations are contingent on a parent fulfilling their own responsibility to provide a safe environment. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997).
The mother's claims of error reflect disagreement with the judge's credibility determinations and weighing of the evidence. See Adoption of Don, 435 Mass. at 166. The judge was "not required to view the evidence from the parent's perspective." Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018). Based on all that is before us, we see no reason to disturb the judge's conclusion that the mother is unfit and likely to remain so.
2. Best interests. The children do not challenge the finding that the mother is unfit to parent them. Rather, they claim that termination is not in their best interests due to (1) their ages, (2) their strong bond with the mother, (3) the inadequacy of the department's adoption plan, and (4) the improbability that the three older girls will be adopted. See G. L. c. 210, § 2 ; Adoption of Ramona, 61 Mass. App. Ct. 260, 265-267 (2004). This argument is not without some force. We acknowledge that when these factors are present, it is not always in a child's best interests to terminate parental rights, even if the parent is unfit. However, the judge was required to balance the desires of the children and their prospects for adoption, with concern for their safety. In the end, the judge concluded that the department's plan for the children served their best interests because "they cannot safely be returned to [the mother's] care." We discern no abuse of discretion in that decision.
The mother also challenges the judge's determination that termination was in the children's best interests.
We decline to address the claim regarding the absence of a written adoption plan because it was not raised in the trial court. See Adoption of Leland, 65 Mass. App. Ct. 580, 588 (2006). We also decline to address the mother's argument that the judge erred in allowing the mother only two visits per year with the children, except to state that we see no abuse of the judge's broad discretion in this area. See Adoption of Ilona, 459 Mass. at 63. See also Thomas v. Commissioner of the Div. of Med. Assistance, 425 Mass. 738, 746 n.9 (1997) (argument which first appears on last page of brief does not rise to level of adequate appellate argument and need not be considered).
The judge found that "[t]he children need to live in a safe, stable place that is free from domestic abuse, police responses, broken glass, blood and chaos," because their "very troubling and complicated behaviors" require "careful supervision, structure and a caretaker who will put their needs first." The record supports the judge's conclusion that the mother could not provide for the children's special needs. Thus, although she was "keenly aware that the children love their mother and wish to be with her," the judge found "[o]n balance," after considering the factors set forth at G. L. c. 210, § 3 (c ), that "it serves the children's best interests to be freed for adoption, so that they have their best chance to find permanent, stable, loving caretakers who can meet their needs."
The children argue that the judge "did not consider the statutory significance of the [c]hildren's ages and that they would block adoption given their clear preference to be with [the mother]." We agree that it would have been preferable for the judge to have made more specific findings regarding the likelihood of adoption and how that might impact the children's best interests. But "such specificity is not required." Adoption of Nancy, 443 Mass. 512, 516 (2005). That termination of the mother's parental rights was in the children's best interests was implicit in the judge's findings. See id.
We note that when the trial began, Farrah was eleven, Susan was ten, Julie was nine, and Linda was six. At that point, none of the children were old enough to withhold their consent to adoption. See G. L. c. 210, § 2.
The department's permanency plan for the children was for Linda to be adopted by the paternal aunt with whom she had resided for some time and who, the judge found, "can meet [Linda's] high level of need." Susan would be adopted by a family into whose home she had transitioned. The department planned for Julie to remain with her foster parent, who was committed to keeping Julie until a permanent resource was identified, although adoption was not "completely off the table." Recruitment of a permanent home for Farrah was on hold for at least one year while she stabilized in her residential placement. The department's plan, set forth in statutorily required permanency reports, G. L. c. 119, § 29B, was sufficiently detailed pending the outcome of the G. L. c. 119, § 24, petitions. See Adoption of Paula, 420 Mass. at 722 n.7.
The department sought to update the permanency plans for the children by filing a supplemental appendix containing permanency reports which postdated the trial. Because the supplemental appendix includes information outside the trial record, the motion to file the supplemental appendix is denied.
We agree with the department that the judge was not required to consider guardianship rather than termination for Linda where the mother's position at trial was that the children should be returned to her. Where all four children were in stable, permanent, or potentially permanent placements, we cannot reasonably say that the judge abused her discretion in concluding that termination was in their best interests.
Decrees affirmed.