Opinion
21-P-423
04-06-2022
ADOPTION OF MARTIN.[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
The Department of Children and Families (department) filed a care and protection petition in Juvenile Court in October of 2016 and was granted temporary custody of the mother's infant son, Martin. The maternal grandmother (grandmother) filed a petition seeking appointment as Martin's guardian in January of 2018. The two matters were tried together from February to May of 2020. A judge found the mother unfit and terminated her parental rights, denied her request to order posttermination or postadoption visitation, denied the grandmother's guardianship petition, and approved the department's plan for Martin to be adopted by his long-time foster parents (preadoptive parents). The grandmother subsequently filed a petition for grandparent visitation with Martin, which the judge denied. Both the mother and grandmother appealed.
The putative father's parental rights were terminated earlier in the case; he did not appeal.
On appeal, the mother and grandmother argue that the judge erred in qualifying Dr. Brian Rachmaciej as an expert on bonding and attachment and in giving substantial weight to his testimony. The mother further argues that it was error to terminate her parental rights and to deny her request for posttermination and postadoption visitation. The grandmother argues that it was error to deny her guardianship petition and her visitation petition. We see no error or abuse of discretion in the judge's decisions and therefore affirm.
Discussion.
1. Dr. Rachmaciej's expert testimony.
"The admission of expert testimony is largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law" (quotation and citation omitted). Adoption of Hugo, 428 Mass. 219, 232 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "The crucial issue, in determining whether a witness is qualified to give an expert opinion, is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony" (quotation and citation omitted). Id. See Mass. G. Evid. § 702 & note (2021). No formal minimum is required in any one of these particular areas, and a witness with only a bachelor's degree but years of experience in the relevant field may properly be qualified as an expert. See Commonwealth v. Goetzendanner, 42 Mass.App.Ct. 637, 640-641 (1997).
Here, Dr. Rachmaciej was a licensed school psychologist and licensed mental health counselor with several advanced degrees and approximately thirty years of experience in fields including clinical work, clinical evaluation, parenting assessments, attachment and bonding evaluations, and trauma. He had testified as an expert in numerous Juvenile Courts and Probate and Family Courts of the Commonwealth. In each of the five years prior to trial, he had conducted between twenty-five and thirty parenting assessments and a similar number of child trauma evaluations -- a relevant point here because Martin had suffered traumatic physical injuries while in the mother's care. In the one year prior to trial, Dr. Rachmaciej had testified as an expert on attachment and bonding at least twenty times. Three of those cases had involved autistic children -- another relevant point here, because Martin had been diagnosed with autism spectrum disorder, level 3. Dr. Rachmaciej had also worked extensively in teaching and assessing children with autism.
After a lengthy voir dire regarding his qualifications, and over the objections of the mother and grandmother, the judge qualified Dr. Rachmaciej as an expert in bonding and attachment, as well as in trauma, child development, and other topics. Dr. Rachmaciej then testified that Martin did not have a primary attachment to the mother or grandmother (although there was "some level of attachment" to the latter); that Martin had a primary attachment to both preadoptive parents; that if Martin were removed from his preadoptive placement, he would likely suffer psychological harm; and that if he were returned to the mother, Martin would be unable to form a primary attachment to her. The judge credited Dr. Rachmaciej's testimony in its entirety.
Although the transcript in places refers to his qualifications as an expert in bonding and "assessment," the judge's written findings make clear that she found him qualified as an expert in bonding and "attachment."
We are unpersuaded by the mother's and grandmother's arguments that the judge abused her discretion in permitting Dr. Rachmaciej to testify as an expert and in giving substantial weight to his testimony. That Dr. Rachmaciej had never taken a course specifically focused on bonding and attachment, but instead had studied those issues as part of a larger focus on child development, did not preclude him from being qualified as an expert. The mother and grandmother further argue that Dr. Rachmaciej was insufficiently familiar with children with autism to express an opinion about such a child's bonding and attachment. But this argument was not raised to the judge as a reason not to qualify him as an expert, and therefore it is waived. See Adoption of Jacob, 99 Mass.App.Ct. 258, 270-271 (2021). Several of the mother's and grandmother's other arguments are simply unsupported by the record.
An abuse of discretion is "a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Further, as a general matter, "dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations" furnishes "no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
In any event, Dr. Rachmaciej testified to his experience with and approach to evaluating children with autism, and the mother's argument that Dr. Rachmaciej was unfamiliar with the type of autism with which Martin had been diagnosed is, at best, a misunderstanding of Dr. Rachmaciej's testimony. There was no evidence that bonding and attachment by children with autism was such a specialized area that he was unqualified to opine on it.
For example, the mother erroneously suggests that, in response to questioning of his expertise in bonding and attachment, Dr. Rachmaciej stated that his expertise lay in trauma. In the transcript passage the mother cites, however, Dr. Rachmaciej was answering a question posed by the judge regarding his background in trauma, not in bonding and attachment. The grandmother attacks Dr. Rachmaciej as having insufficient experience with children of less than school age. He testified, however, that of the twenty-five to thirty parenting assessments he had completed in the preceding year, about half were of children under the age of four.
There is no merit to the mother's and grandmother's argument that Dr. Rachmaciej was unqualified or that his testimony should not have been credited because he supposedly had misled prior courts and practitioners about his licensure. Dr. Rachmaciej acknowledged that he had entered a consent agreement with a licensing board under which he agreed to describe himself as a licensed school psychologist rather than a licensed psychologist and further agreed to pay a fine. But the mother and grandmother cite nothing in the record (nor do we find anything) to substantiate their claims that he had misled any court or practitioner in this regard.
Finally, the grandmother argues that the approach Dr. Rachmaciej actually used to evaluate Martin's bond with her did not conform to the "comprehensive" methodology to which he testified prior to being qualified as an expert, and so his evaluation here was unreliable. See Commonwealth v. Barbosa, 457 Mass. 773, 783 (2010), cert, denied, 563 U.S. 990 (2011) (expert's process or theory must be both reliable and applied to facts of case in reliable manner). The grandmother never moved to strike or otherwise objected to Dr. Rachmaciej's testimony on this basis, however, and thus the argument, even assuming it goes to admissibility rather than weight, is waived.
In sum, for all of the foregoing reasons, the judge did not abuse her discretion in qualifying Dr. Rachmaciej as an expert and in giving substantial weight to his assessments of the relationships between Martin and his various caretakers.
2. Termination of parental rights.
It was the department's burden to prove by clear and convincing evidence that the mother was currently unfit to parent. See Adoption of Gregory, 434 Mass. 117, 126 (2001). "Subsidiary findings must be proved by a fair preponderance of the evidence." Adoption of Helen, 429 Mass. 856, 859 (1999). "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the 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 see no need to summarize the judge's carefully reasoned explanation of the basis for termination; instead, we proceed directly to consider the mother's arguments on appeal.
The mother asserts that it was an abuse of discretion to terminate her parental rights, where the grandmother was available as a substitute caregiver and yet the department failed to make reasonable efforts to assist the grandmother in remedying whatever conditions it viewed as making her an inappropriate guardian. First, however, the mother did not raise this argument below, and so it is waived. See Adoption of West, 97 Mass.App.Ct. 238, 242 (2020). Second, the mother cites nothing in the statutes or regulations governing the department's reasonable-efforts obligations, or decisional law interpreting those obligations, that requires the department to make reasonable efforts to assist a proposed substitute familial caregiver such as a grandparent. See generally Care & Protection of Rashida, 488 Mass. 217, 225-232 (2021); Adoption of West, supra at 241-243. Third, even if the department had failed to make reasonable efforts, that would "not preclude the court from making any appropriate order conducive to the child's best interest." Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C.
The mother also argues that termination of her rights was unnecessary because, contrary to the judge's findings, Martin had a strong bond with the grandmother. This argument largely reduces to a disagreement with the weight that the judge accorded Dr. Rachmaciej's testimony and other evidence concerning Martin's relationship with the grandmother. Such disagreement furnishes "no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
To the extent that the mother challenges the judge's conclusion that a guardianship with the grandmother was not in Martin's best interests, we address those points infra when discussing the grandmother's similar argument.
The mother next argues that termination was unwarranted because, although concededly unfit at the time of trial, she was on an "upward trajectory." This argument occupies less than one page of the mother's brief and merely recites various well-accepted legal propositions relevant to the termination of parental rights without making any specific reference to this case. We decline to discuss it further. See Maroney v. Planning Bd. of Haverhill, 97 Mass.App.Ct. 678, 683 n.8 (2020) (claims not adequately argued on appeal are waived). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
The mother also asserts that termination was unwarranted because she consistently had positive visits with Martin. However, visitation was but one of many factors that the judge considered in finding the mother permanently unfit. Other factors included the "[m]other's character and temperament; her evasiveness and lack of truthfulness; her inability to follow action plan tasks and to engage in necessary treatment consistently, as well as her inability to be open and honest with the [d]epartment regarding her services; her inability to cooperate with the [d]epartment and other professionals; [and] her lack of insight into [Martin's] injuries as well as her involvement in those injuries." The judge "also considered the condition of the child when with [the mother] and compared that to the condition of the child once removed . . . and growth of emotional ties between [Martin] and his pre-adoptive family and the effect of a force[d] return of [Martin] to [the mother's] care. "
In so doing, the judge took into account the "quality of visitation," reflecting the judge's earlier findings that while the mother's visitation was generally consistent and her conduct appropriate, Martin's lack of eye contact and expressed affection was concerning, especially as compared to his interactions with the preadoptive parents.
The mother attacks a number of the judge's findings as erroneous or unwarranted, but she misconstrues these findings. What the mother interprets as the judge faulting her for not asking the department to assist her with housing and transportation, we view simply as the judge's discharge of her duty to "make specific and detailed findings demonstrating that close attention has been given to the evidence." Adoption of Quentin, 424 Mass. at 886. The mother's claim that the judge "erroneously found that [she] had not engaged in substance abuse treatment" is contradicted by the very finding the mother cites in support of her claim. The judge's findings that the mother had not been forthcoming with the department about her substance abuse issues, leaving the department in the dark, were amply supported by the mother's own testimony and that of a department social worker. In sum, the mother has shown no error or abuse of discretion in the judge's decision to terminate her parental rights.
3. Posttermination and postadoption visitation.
The mother asserts that the judge abused her discretion in declining to order posttermination and postadoption visitation. Once again, however, the mother's argument merely recites the law governing such decisions, without specifically identifying any claimed flaws in the judge's visitation decision in this case. We thus do not discuss the issue further. See Maroney, 97 Mass.App.Ct. at 683 n.8.
4. Denial of guardianship petition.
a. Challenged findings and inferences.
The grandmother argues that the denial of her guardianship petition was based on unsupported findings and inferences. First, the grandmother challenges the judge's finding that the grandmother either knew or was willfully ignorant of the mother's substance abuse problem. But the grandmother, although aware that the mother had tested positive for heroin at the time of Martin's birth, did "not believe that [was] a concern." The judge made ample findings that the grandmother had reason to know about the mother's continuing substance abuse issues yet did not probe them with the mother and was not credible in testifying that she had not drawn the obvious conclusions. Although knowledge or willful ignorance may not have been the only possible inferences from the evidence, they were reasonable inferences for the judge to draw and were not clearly erroneous. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005) (appellate court bound by judge's findings of fact, including reasonable inferences drawn from evidence, unless clearly erroneous).
Martin himself tested positive for codeine and morphine at birth.
"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). Custody of Eleanor, 414 Mass. 795, 799 (1993).
Second, the grandmother argues that the judge erred in finding that, if appointed to be Martin's guardian, the grandmother would be unable to protect Martin from injury by the mother. The judge found that the mother had previously inflicted significant physical injuries on Martin, and yet the grandmother, having heard the medical evidence, still believed that there was another reasonable explanation for those injuries. The judge found the grandmother's testimony about certain of Martin's injuries to be evasive and her testimony on a range of key issues not to be credible. The grandmother had no concerns about the mother's ability to care for Martin safely without the grandmother herself being present. The grandmother testified that, if appointed Martin's guardian, she would think it appropriate to return Martin to his mother once the mother found a place to live and the grandmother had spoken to the mother's substance abuse therapist and other providers. In light of this evidence, it was reasonable for the judge to find that the grandmother could not protect Martin.
The grandmother finally argues that the judge improperly faulted her for failing affirmatively to disclose facts about the mother's substance abuse issues to the department. Insofar as the grandmother asserts that she could not disclose such facts because she did not or could not reasonably know them, we have already determined, supra, that the judge's contrary inferences were reasonable. On the other hand, insofar as the grandmother asserts that she had no legal duty to disclose details of the mother's substance abuse problems to the department, she may be correct -- perhaps with the exception of the brief period when the grandmother herself had custody of Martin.
In any event, although the judge drew adverse inferences from the grandmother's failure to make disclosures to the department, the judge drew the very same adverse inferences from the grandmother's failure to encourage the mother herself to be more forthcoming with the department. These inferences were that the grandmother (1) prioritized protecting the mother's interests over furthering Martin's welfare and (2) was unable to acknowledge the severity of the mother's difficulties and how they affected Martin. Accordingly, any erroneous attribution to the grandmother of a duty of disclosure to the department was not essential to the judge's conclusion that, despite the grandmother's undoubted love for Martin, appointing the grandmother to be Martin's guardian placed him at risk of future abuse or neglect and was not in Martin's best interests. We see no prejudicial error or abuse of discretion in the judge's conclusions in this regard.
b. Even-handed consideration of permanency plans.
The grandmother also argues that the judge failed to give even-handed consideration to her guardianship petition (which the mother supported) as compared to the department's plan for adoption by the long-time foster parents. "Regardless of the party offering the plan, '[a] judge should provide an "even handed" assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan.'" Adoption of Jacob, 99 Mass.App.Ct. at 272, quoting Adoption of Hugo, 428 Mass. at 226 n.8. The judge's determination of which plan served Martin's best interests "presents a classic example of a discretionary decision to which we accord substantial deference" (quotation and citation omitted). Adoption of Jacob, supra.
The grandmother first asserts that the judge "ignored positive evidence [of the grandmother's] history of compliance with court orders and the ability to meet [Martin's] needs." To the contrary, the judge expressly acknowledged that the grandmother "loves and is dedicated" to Martin and "could meet [his] basic needs." The judge found that, during Martin's seven-month placement with the grandmother in 2017 (which was before the department learned of the mother's ongoing substance abuse problems), the department had "no concerns" about Martin's placement. Although a history of noncompliance with court orders would warrant mention in the judge's decision, the grandmother had no such history, and the absence of an explicit finding on that issue is of no significance here. Fundamentally, what the grandmother questions is the judge's determination that her ability to meet Martin's basic needs was outweighed by her "inability to probe [the mother] about [Martin's] inflicted injuries and [the mother's] substance abuse," which "place[d] [Martin] at risk of future abuse and neglect." The judge was "not willing to take that risk." We cannot say this was an abuse of discretion.
Second, the grandmother asserts that the judge erred in finding that Martin did not have a positive attachment to her. Again, however, the judge found, based on Dr. Rachmaciej's testimony, that there was "some level of attachment" between Martin and the grandmother, and that the grandmother's actions towards Martin at a visit were "warm" and attuned to Martin's immediate needs. But Martin's interaction with the grandmother evinced a "more restricted social/emotional display," in which Martin did not appear to feel "safe or secure," compared to his interactions with the preadoptive parents. The grandmother's claim that the judge "place[d] too much weight on Dr. Rachmaciej's opinion that [Martin] held a primary attachment to his pre-adoptive family," furnishes no basis to overturn the judge's findings, which have not been shown to be clearly erroneous. See Adoption of Quentin, 424 Mass. at 886 n.3.
The judge acted within her discretion in giving more weight to the opinion of Dr. Rachmaciej, as an expert on bonding and attachment, and to the specific observations of a department social worker about Martin's visits with his grandmother, than to the statement of a guardian ad litem (GAL) that Martin was attached to his grandmother. Notably, the GAL also concluded that despite this attachment, the risks and disadvantages of giving the grandmother guardianship of Martin -- including that guardianship would not provide Martin with the permanency he needed -- warranted proceeding to trial on whether to terminate the mother's parental rights.
Third, the grandmother asserts that the judge "did not consider" the mother's progress as of the time of trial, which in the grandmother's view made it in Martin's best interests to be placed under guardianship until the mother regained her fitness, instead of terminating the mother's parental rights and freeing Martin for adoption. But the judge expressly acknowledged the points that the grandmother claims show the mother's upward trajectory, including completion of parenting classes, college enrollment, and recent substance abuse treatment progress. The judge nevertheless remained concerned that the mother was not forthcoming about her substance abuse and had not addressed her previous infliction of serious injuries on Martin. The judge thus found that the mother's unfitness was not merely temporary but was "likely to continue into the indefinite future to a near certitude." This finding was not clearly erroneous.
Fourth, the grandmother asserts that the judge "did not address the negative evidence about the proposed pre-adoptive family." But the judge was not required to view negatively either the preadoptive parents' plan to relocate to Florida (particularly where the judge did not order any posttermination or postadoption visitation) or their need for some financial assistance from the department. Similarly, the grandmother's concern about potential sexual abuse of Martin during a preadoptive family trip need not have been given any weight, because the department made a referral to a family advocacy center and the center concluded that further evaluation of the incident in question was unnecessary. Although at the time of trial Martin was not receiving the recommended number of weekly hours of applied behavior analysis (ABA) services, the grandmother cites no evidence that this was the fault of the preadoptive parents.
The grandmother also asserts, based on the testimony of an adoption worker, that the preadoptive parents frequently separated for months at a time. We have reviewed the cited passages of the testimony and find nothing to support this claim.
Accordingly, we need not address the grandmother's claim that the judge erred in finding that Martin received a particular number of hours per week of ABA services.
Fifth and finally, the grandmother asserts that Martin's bond with the preadoptive parents should not be determinative of her petition to be appointed Martin's guardian. But the judge's detailed, careful explanation for denying that petition makes clear that Martin's primary attachment to the preadoptive parents was not given dispositive weight. Rather, it was one of numerous factors on which the judge relied.
5. Grandparent visitation.
The grandmother argues that the judge abused her discretion in denying the grandmother's petition under G. L. c. 119, § 26B (a.), for posttermination visitation. As the grandmother recognizes, visitation need not be ordered if "it is determined by the court or the department that grandparent visitation is not in the child's best interests." Id. Here, based largely on the evidence at the termination and guardianship trial, the judge issued separate, detailed findings of fact and conclusions of law and denied the grandmother's petition on the ground that visitation was not in Martin's best interests. On appeal, the grandmother essentially challenges that determination.
At oral argument, the grandmother stated that she also sought postadoption visitation, but she recognized that the statute might not require it. The statute provides for consideration of grandparent visitation when "a child is placed in family foster care" or otherwise placed in the department's custody. G. L. c. 119, § 26B (a.). It has no apparent application once a child has been adopted. Cf. G. L. c. 119, § 39D (grandparent visitation rights under § 39D terminate upon child's adoption by nonstepparent). As the grandmother has not briefed this issue, we decline to address it further.
As discussed supra, "[t]he best interests of a child is a question that presents the trial judge with a classic example of a discretionary decision" (quotation and citation omitted). Adoption of Hugo, 428 Mass. at 225. The grandmother argues that the judge's best interests determination here was flawed because it depended heavily on Dr. Rachmaciej's opinion that Martin had only "some level of attachment" rather than a primary attachment to the grandmother, and did not take into account how Martin's autism might have affected that attachment. Although the grandmother's brief argues that a number of Martin's behaviors in visits with the grandmother are consistent with autism rather than lack of attachment, she relies only lay assumptions about autism and cites no record evidence in support of her argument. She also overlooks that, despite Martin's autism, he had formed a primary attachment to the preadoptive parents.
In addition, we are unpersuaded by the grandmother's claim that the lack of discussion of autism in the judge's decision denying grandparent visitation renders that decision an abuse of discretion. The judge was well aware of the significance of Martin's autism, as made clear by the numerous autism-related findings and conclusions in her termination and guardianship decisions.
Finally, the grandmother points out that after a posttrial review, a foster care review panel recommended that "a schedule for grandparent visitation be reviewed for [Martin] so that the child's needs are met." The grandmother then mischaracterizes this as a "recommend[ation] that [Martin's] visitation with [the grandmother] continue." The panel recommended a review, not visitation; it provided no more rationale for its recommendation than what we have quoted; and elsewhere, its report recognized that grandparent visitation was not then occurring. In any event, the grandmother's brief acknowledges that the panel's recommendations are not binding on the department (let alone the judge). The judge's findings expressly acknowledged the panel's recommendation for a "review[]," and then went on to explain why visitation with the grandmother, while perhaps "in her best interests," was not in Martin's best interests. This was not an abuse of discretion.
Conclusion.
We affirm the decree and the orders denying the grandmother's petitions for guardianship and for posttermination visitation.
So ordered.
Green, C.J., Vuono & Sacks, JJ.
The panelists are listed in order of seniority.