Opinion
21-P-1042
11-09-2022
ADOPTION OF KATRINA (and a companion case [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 a trial in the Juvenile Court, a judge adjudicated the mother unfit and terminated her parental rights to Katrina (born in 2013) and Adam (born in 2017). Concluding that the judge acted within his discretion in denying a continuance and that the evidence supported the judge's determination that termination of the mother's parental rights was in the children's best interests, we affirm.
The fathers of Adam and Katrina are not involved in this appeal.
Background.
On August 8, 2019, the Department of Children and Families (department) filed a care and protection petition pursuant to G. L. c. 119, § 24, on behalf of Adam and Katrina. This followed an emergency investigation pursuant to G. L. c. 119, § 51B (51B investigation), and two G. L. c. 119, § 51A, reports (51A reports) alleging neglect, including one from July 2019 alleging that the mother was found unresponsive in her yard with one year old Adam next to her. It was later determined that the mother had overdosed on opiates.
The mother has a history of suicide attempts and has struggled with borderline personality disorder, anxiety, and depression. At least twice in the year preceding the instant petition, the mother was hospitalized because of her mental health. The mother denies a history of substance use, but during an emergency room visit two days prior to her opiate overdose, she tested positive for benzodiazepines, amphetamines, and marijuana. In the face of overwhelming evidence of her drug dependency, the mother maintained that she had not knowingly ingested opioids, but agreed to attend counseling and do whatever the department asked of her, including attending an inpatient program.
On August 28, 2019, all parties waived their rights to a temporary custody hearing and the Juvenile Court granted the department temporary custody of Adam and Katrina. Throughout August and September 2019, the mother met weekly with her ongoing social worker, who created a series of action plans designed to address the mother's mental health and substance use issues. Among other things, the plans tasked the mother with drug screens and treatment, parenting classes, therapy, and psychiatric counseling. The mother did not comply. She failed to provide needed releases so the department could verify her participation in therapeutic or psychiatric services, offered no proof of her engagement in treatment, and did not provide her social worker with the names of either her therapist or psychiatrist. And, although the mother tested positive for Fentanyl at least four times between September 2019 and January 2021, she continued to deny substance use.
The mother's relationship with her children began to deteriorate significantly in October 2019. She started to miss her weekly visits with her assigned social worker, as well as her twice-weekly visits with the children. Around this same time, the mother ended her relationship with Adam's biological father. Between August 2019 and March 2020, the mother missed almost half of the scheduled visits with the children.
At the time of trial, the mother's most recent contact with Adam had been in November 2020, and, during her last phone call with Katrina in February 2021, the mother cried to Katrina, complaining that she was lonely and sad. After this call, Katrina started therapy again. The week before trial, when the mother spoke to her social worker, she did not ask about the children.
The department changed its goal for Adam to permanency through adoption in October 2019. Adam was placed in a kinship preadoptive home in August 2020 and Katrina was placed with her biological father in March 2020. Since reuniting with her father, Katrina has attended therapy, excelled in school, and maintained relationships with Adam and her grandparents. Both children have enjoyed living in their respective placements.
After several delays caused by the COVID-19 pandemic, the first relevant discovery order was issued to the parties in August 2020. That order required that (except for good cause) the parties comply with the order's deadlines for filing witness and exhibit lists. All parties were required to be present at the final pretrial conference to discuss any issues relating to discovery, and the order expressly stated that "[a]bsent good cause, any motion to continue the scheduled trial dates must be heard prior to the scheduled trial dates." The mother and Katrina's father filed their witness and exhibit lists on October 16, 2020.
Because the pretrial conference was delayed, the judge issued an updated order in February 2021, retaining the same language and scheduling the pretrial conference for March 2021. When the department failed to comply with filing deadlines in the updated order, the judge allowed the mother's motion to continue the trial.
The third and final order was issued on May 7, 2021. The May order contained the same language as the previous orders, requiring all final witness and exhibit lists by June 1, 2021, and all motions in limine by June 11, 2021. The final pretrial conference was scheduled for June 25, 2021, and all parties except the children were required to attend. Trial was set to begin on July 29, 2021. Neither the mother nor her attorney attended the final pretrial conference or filed any motions in limine prior to trial. Adam's father filed his proposed witness and exhibit lists on June 24, 2021, the department filed its lists on July 27, 2021, and the mother filed her lists on July 28, 2021.
On the first day of trial, Adam's father stipulated to the termination of his parental rights and entered into an open adoption agreement with Adam's preadoptive parents. That same day, the mother filed a second motion to continue trial on the grounds that the department had failed to file witness and exhibit lists until two days before trial. Although the motion was denied, the mother renewed it on the second day of trial because counsel was unable to serve a new witness, the mother's therapist at Habit Opco. The mother did not attend either day of trial.
After a two-day trial, the judge terminated the mother's parental rights on August 2, 2021, and issued detailed findings on October 1, 2021, supporting his conclusion that the department met its burden of demonstrating, by clear and convincing evidence, that the mother was unfit to parent the children, and was likely to remain so.
Discussion.
1. Denial of the mother's motion to continue.
"The decision on whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and the judge's decision will be upheld absent an abuse of that discretion." Adoption of Gillian, 63 Mass.App.Ct. 398, 409410 (2005). We review the decision to deny a continuance for abuse of discretion, see Vazquez Diaz v. Commonwealth, 487 Mass. 336, 344 (2021), reversing only where we find that "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." Id. at 345, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Denial of the mother's motion for a continuance was not error. The department's failure to timely file its witness and exhibit lists did not deprive the mother's counsel of the opportunity to prepare a meaningful cross-examination of the department's witnesses. The mother's counsel reasonably could have anticipated the department's witnesses, who were listed on four of the previously filed witness lists dating back to October 2020; the witnesses were the parties, the adoption worker, the social worker, and one of the preadoptive parents. See Commonwealth v. Carter, 475 Mass. 512, 519 (2016), citing Commonwealth v. Lopez, 433 Mass. 406, 413 (2001) ("The relevant inquiry is whether the defendant has sufficient time to investigate the proposed testimony"); Commonwealth v. Chappee, 397 Mass. 508, 518 (1986) ("An important reason for notice rules is the prevention of surprise"); Commonwealth v. Wilson, 381 Mass. 90, 114-115 (1980) (untimely disclosure of statements introduced at trial did not prejudice defendant where defendant had reason to expect contents of statements well before trial).
In denying the motion, the judge emphasized the mother's absence from the pretrial conference, as well as her failure to timely disclose the name of her therapist. Although it is true that the pretrial conference afforded the mother an opportunity to raise her disclosure concerns, our decision does not rely on her failure to attend and do so.
The exhibits, likewise, were anticipatable. The 51A reports and 51B investigation identified in the department's exhibit list had been admitted at the seventy-two hour hearing in 2019, reproduced in the record given to the mother's counsel in April 2021, and included in the updated record sent to the parties the week of trial. Not only had the mother had notice of the exhibits since 2019, but her counsel was notified of their inclusion in the record the week of trial. Contrast Commonwealth v. Vaughn, 32 Mass.App.Ct. 435, 442 (1992) (relief warranted where judge concluded that, even though defendant knew of exhibits before trial, he could not have reasonably anticipated change in testimony about what those exhibits depicted). The parties were also on notice that the judge intended to accept the court investigator's report as evidence at the trial.
The "[s]peedy resolution of cases involving issues of custody or adoption is desirable." Care & Protection of Quinn, 54 Mass.App.Ct. 117, 122 (2002), quoting Adoption of Emily, 25 Mass.App.Ct. 579, 581 (1998). Given the nearly two-year delay of trial, the judge's denial of an additional continuance was a reasonable exercise of his discretion. This is especially so where the mother had twice successfully sought to delay the trial, and where she failed to appear on either day of trial.
2. Termination of parental rights.
For the first time on appeal, the mother claims that "state intervention" in August 2019 was not shown to be necessary and that the department failed to make reasonable efforts to reunify her with the children after their removal. Since these claims were not properly raised in the Juvenile Court, we decline to address them here. See Adoption of Yalena, 100 Mass.App.Ct. 542, 554 (2021).
The mother does not dispute that she is currently unfit to parent the children but argues that the judge abused his discretion by failing to consider alternative dispositions for permanency and by "unnecessarily" terminating her rights.
"We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest[s] of the child, and reverse only where findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). We conclude that the judge committed no such error in finding that termination was in the best interests of the children.
Termination of parental rights requires "a two-part analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge must find that the parent is presently unfit." Adoption of Cadence, 81 Mass.App.Ct. 162, 167 (2012). The determination of parental fitness must be supported by "clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). "Second, the judge must find that 'it would be in the child's best interests to end all legal relations between parent and child.'" Adoption of Cadence, supra, quoting Adoption of Nancy, supra. There is no requirement in this test that the judge impose the least restrictive disposition; rather the judge's decision making is guided by the children's best interests.
Because the mother conceded that, at the time of trial, she was unfit, we need ask only whether it was an abuse of discretion to find it was in the children's best interests to terminate the mother's parental rights. See Adoption of Nancy, 443 Mass. at 515. Predictions about a parent's future fitness must be "more than hypothetical," Adoption of Inez, 428 Mass. 717, 723 (1999), and "a judge must decide . . . whether, 'on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may only be temporary.'" Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). "A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006).
Here, the judge properly relied on evidence that, since October 2019, the mother consistently missed appointments, services, visits, and court appearances. He properly considered evidence of the mother's untreated mental health issues, repeated denials of substance use, lack of cooperation with the department, and inability to prove her engagement in services. See Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998). The mother's lack of insight into her substance use disorder, combined with her failure to participate meaningfully in treatment, suggest that her problems with substance use were not temporary. See Adoption of Elena, 446 Mass. at 31-33 (judge's determination of mother's future unfitness based largely on her failure to deal effectively with her long history of drug misuse). Her frequent absences from visits with the children and her inappropriate behavior during her last phone call with Katrina suggest that the mother failed to appreciate her parental obligations and lacked a significant parental bond with her children.
In making the best interests determination, the judge must also consider the "plan proposed by the department or other agency initiating the petition." Care & Protection of Zeb, 489 Mass. 783, 786 (2022), quoting G. L. c. 210, § 3 (c). Here, the department's proposed permanency plan for Adam was sufficiently detailed for the judge to find that it supported the important goals of stability and permanency. Contrast Adoption of Thea, 78 Mass.App.Ct. 818, 824-825 (2011) (department's plan insufficient to support termination where child's current placement was unstable and no identifiable posttermination plan was in place for child). Adam had been happily living with his preadoptive kinship family for almost a year at the time of trial and the open adoption agreement ensured his continued contact with his father, who assented to the termination of his parental rights. See Adoption of Nancy, 443 Mass. at 517 ("Here we have a case where the children are finally in stable situations").
Similarly, Katrina's plan was sufficiently detailed to permit the judge to find that it served her best interests. The record revealed a strong bond between Katrina and her father, who agreed to continue sibling contact between Katrina and Adam. Since being with her father, Katrina has excelled in school and received counseling. The judge properly assessed the mother's future fitness, the proposed permanency plans, and the factors in G. L. c. 210, § 3, and properly concluded that termination of the mother's parental rights was in the best interests of the children.
Decrees affirmed.
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.