Opinion
No. 12–P–465.
2012-10-24
Care and Protection of LEIF.
By the Court (RUBIN, HANLON & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We have before us an appeal from a decision of a Juvenile Court judge finding a child, Leif, now fourteen, in need of care and protection due to the current parental unfitness of his mother, and committing Leif to the custody of the Department of Children and Families (DCF or the department).
In a care and protection proceeding, the petitioner, in this case DCF, must demonstrate parental unfitness by clear and convincing evidence. Custody of a Minor, 389 Mass. 755, 766–767 (1983). This high burden of proof reflects the important, constitutional right of parents to the care and custody of their children. That right may not be invaded lightly. Thus unfitness, the legal prerequisite to the finding of a need for care and protection that allows State intervention in the parent-child relationship, may be found only when “the parents [are] shown to have grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard.” Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). See Adoption of Greta, 431 Mass. 577, 587 (2000). The trial judge's inquiry must focus upon whether the particular parent is fit to parent the particular child. See Adoption of Abigail, 23 Mass.App.Ct. 191, 193 (1986). Our courts have explained repeatedly that it is consequently conceivable that a parent may be fit to bring up one child and unfit to bring up another. Richards v. Forrest, 278 Mass. 547, 553 (1932). R.D. v. A.H., 454 Mass. 706, 715 (2009). In this case, the care and protection proceeding below addressed the mother's fitness with respect to two children, Leif and his older sister. Leif's older sister turned eighteen during the pendency of this appeal, and her case therefore is not before us. On this appeal, both mother and child challenge the finding of unfitness with respect to Leif, and it is on the mother's fitness with respect to him that we focus our review. It is the fact of endangerment of a specific child that determines whether a parent is unfit with respect to that child, and whether, therefore, he or she may properly be found by the judge to be in need of care and protection. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591–592 (1981).
With respect to Leif, the judge's conclusion that the mother was unfit and the child was therefore in need of care and protection is amply supported by clear and convincing evidence.
The judge found that the mother had “repeatedly failed to insure minimally adequate medical care for [Leif].” In terms of physical health, Leif was diagnosed at a physical examination in December, 2008, with asthma (for which he had previously been treated) and was prescribed albuterol, Flovent, and an aero chamber. In January, 2010, personnel from E.N. White School filed a G.L. c. 119, § 51A, report because the mother had failed to provide them with asthma medication or emergency forms for Leif. A few days later, Leif was once again prescribed a “Flovent aero chamber” and “albuterol.” It was reported to the court investigator, and is undisputed, that Leif had had severe asthma attacks in school but the school had no medication or emergency forms to authorize it to administer emergency updrafts for his asthma. Although the record indicates that both children were up to date on their immunizations, that Leif had been seen at Holyoke Pediatrics between 2004 and 2008, and again in January, 2010, and that the mother had obtained and filled prescriptions for him, the mother also failed to bring Leif for a physical scheduled for March 11, 2010; nor did Leif have a physical at anytime during 2009.
With respect to mental health, Leif was also diagnosed in 2008 with attention deficit hyperactivity disorder (ADHD) (again, a condition for which, the record indicates, he had also previously been diagnosed), and he exhibited disruptive behavior in school that appears to have been, at least in part, symptomatic of this disorder. The judge concluded that the mother's claims that she made sure that Leif took his ADHD medication were belied by his behavior in school.
The judge also found that the mother acknowledged that she did not give him his ADHD medication because of its side effects, specifically, suppressing hunger, and weight loss. Without more evidence, we cannot say that this supports the finding that the child was in need of care and protection.
The judge also found that the mother had neglected Leif's educational needs. The evidence of unfitness along this dimension is strong. As of May, 2009, Leif was in the third grade at E.N. White School. He had serious attendance problems and had missed sixteen out of 158 days of the school year. The mother told the court investigator that she did not know that her children were not attending school at that time. In January, 2010, in an interview with a DCF investigator, the mother indicated her awareness that Leif had behavioral problems at school. She stated that she stopped giving him his ADHD medication, the stimulant Adderall, because Leif was having “heavy negative side effects.” The mother acknowledged she had great difficulty in redirecting Leif or getting him to listen to her. As early as February, 2007, she had acknowledged Leif's prescription but at that time she claimed that Leif did not take the Adderall because it was affecting his appetite and he was losing weight. See note 2, supra. In February, 2010, Leif was in the fourth grade and attended school in a special education class along with ten other students. He had incurred ten unexcused absences, nine “out-of-school” suspensions, two and one-half “day” suspensions, and thirteen “tardies.” He was failing all of his classes. He also had a total of twenty-two behavioral incidents (being disruptive in class, disrespecting the teacher, being defiant, and refusing to do work), which had led to thirteen days' detention.
The mother failed to meet with the court investigator. On one particular day that a court investigator's meeting was scheduled, Leif was extremely disruptive and out of control in school, and the school could not reach the mother to come to take him home. Leif was suspended for three days, and his mother failed to come to a meeting in the school that was scheduled. During this suspension, Leif's sister remained home from school to care for him.
The mother seems to have been habitually unavailable. The judge found she was “completely unresponsive” to attempts to engage her in services in October, 2009. In August, 2009, a DCF investigator made no fewer than five attempts to visit her home, and the mother was never available. On one occasion, the investigator spoke with Leif's sister, who reported that her mother was not home and that she had no idea when her mother might return. Despite these visits, as well as multiple calls, notes, and voicemails, the investigator was unable to conduct a visit.
Finally, the judge found that the mother had failed to adequately maintain contact or engage in visitation with Leif. That finding, too, is adequately supported by the record.
The judge also found that the mother failed in the past to maintain adequate housing for Leif. The evidence supports this, although the mother was for substantial periods of time during Leif's childhood able to maintain an appropriate home. The mother and Leif are correct that the judge did not note that, at the time of trial, the mother had again found adequate housing. This does not render her findings about the mother's past inability to maintain adequate housing erroneous.
Taken together, the judge's findings that are properly supported by the evidence demonstrate by clear and convincing evidence the current unfitness of the mother and thus that Leif is a child in need of care and protection within the meaning of our statute.
The most difficult part of this case is that Leif's condition has apparently declined since his placement in custody. Although at first things seemed to go acceptably well for Leif in his foster placement, by the time of trial he had become increasingly disruptive and defiant in foster care and had been through at least six foster placements over the course of fourteen months, after which he was placed in residential care. He continued to have a strong bond with his mother. And indeed, to give just one example, there was evidence that his personal hygiene improved after a visit with his mother in which she instructed him to obey his foster parents and improve his personal hygiene.
Under our statute, if parental unfitness is shown by clear and convincing evidence in a case initiated by a properly filed petition, and the child is adjudicated in need of care and protection, the judge has the authority to “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,” or to make “any other appropriate order.” G.L. c. 119, § 26 ( b ), as amended through St.2008, c. 176, § 84. Although Leif's condition in DCF custody is a matter of serious concern, it has not been argued or demonstrated that there was any abuse of discretion in the judge's decision to place the child in the custody of DCF. Indeed, the judge faced a particularly difficult circumstance in having to assess the situation in the face of the mother's own failure to appear at trial. That failure is yet another reflection of the mother's unfortunate parenting.
While nothing further was required in this case, we do think it worth noting that in appropriate circumstances if the treatment a child is receiving in DCF custody is not in his or her best interests, a judge does have authority under the statute to enter an appropriate order in order to attempt to meet the child's needs. A judge in such circumstances may seek additional evidence, including expert testimony, to determine whether the foster placement itself is causing further harm to the child or whether his or her behavior is simply an expression of a preexisting emotional or psychological condition, and to determine whether some order might be crafted to allow for a disposition, not necessarily placing the child in the custody of his mother, that might mediate these effects.
As DCF indicates, issues surrounding the care the child is receiving in DCF custody may be explored in future proceedings for review and redetermination. See G.L. c. 119, § 26 ( c ). We assume that counsel representing Leif in the court below will remain in the case to ensure that Leif's interests are fully protected.
The judgment is affirmed.
So ordered.