Opinion
11-P-797
05-10-2012
ADOPTION OF NANETTE (and a companion case).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a proceeding for termination of parental rights. On appeal, the mother does not contest the Juvenile Court judge's decrees of termination of parental rights. The only issues on appeal are the judge's placement determinations, and his orders denying postadoption visitation. We affirm.
Standard of review. A judge evaluates both the placement of a child and postadoption visitation from the vantage point of the best interests of the child. This is a 'question that presents the trial judge 'with a classic example of a discretionary decision." Adoption of Hugo, 428 Mass. 219, 225 (1998), quoting from Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). Accordingly, we 'determine whether the trial judge abused his discretion or committed a clear error of law.' Adoption of Hugo, supra. '[W]e afford great deference to a trial judge's decision when a biological parent's fundamental and constitutionally protected right to retain custody of her child is at risk . . . . [T]he trial judge's decision is entitled to the same deference where, as here, his determination [regarding placement] does not implicate any such right.' Adoption of Hugo, supra (affirming placement decision). See Petition of Dept. of Social Servs. to Dispense With Consent to Adoption, 392 Mass. 696, 702 (1984). Even so, the judge must make specific and detailed findings that are supported by clear and convincing evidence. See Adoption of Paula, 420 Mass. 716, 731 (1992). Subsidiary findings must be proven by a preponderance of the evidence, Adoption of Hugo, supra at 424, and will not be disturbed unless clearly erroneous, Adoption of Mary, 414 Mass. 705, 710 (1993). Placement. The twin girls were born on April 9, 2009, during the mother's thirty-fifth week of pregnancy. Both were small for their gestational age. Nanette tested positive for cocaine in her urine, and required supplemental feeding with a nasal tube. Beth required surgery for a diaphragmatic hernia, and was intubated because she could not breathe on her own. Nanette received early intervention services for one year, and experienced delays in language and feeding. Beth underwent surgery, and further surgeries were anticipated. She had a partially developed left lung, and became quite ill when her right lung collapsed.
The record suggests that a portion of her intestine was lodged in or near her lung, and that one lung was underdeveloped as a result. This condition was unrelated to the mother's drug use.
The Department of Children and Families (department) took custody of Nanette and Beth within twenty-four hours of their birth, filing a care and protection petition on April 10, 2009. G. L. c. 119, § 24. After their medical conditions stabilized, the twins were placed in foster care. Beth was followed by a pediatric surgeon, an ophthalmologist, a neonatologist, an occupational therapist, a physical therapist, a gastroenterologist, and a pulmonologist.
By December of 2009 the department had determined that its goal of reunification was not feasible. It located a long-term foster home with the Smiths. The mother proposed Ms. Parker, whose brother was dating, and had a child with, the mother's sister. Both girls have been with the Smiths since January 17, 2010.
A pseudonym.
A pseudonym.
On appeal, the mother claims it was error for the judge to select the Smiths, rather than Parker, whom the mother characterizes as a kinship placement. The mother also claims that the department improperly excluded Parker from serious consideration, and that it was error not to provide the mother the full home report on the Smiths.
Mariel Rijo, a department social worker, testified that she sought a placement for the girls with a family with no other children due to the fact that they were twins with special medical needs and a heightened need for ongoing treatment and intervention. Upon hearing that Parker also had two other children, Rijo did not conduct a full investigation of the Smiths. While the judge found many reasons to prefer the Smiths, this factor, i.e., the presence of other children in the Parker household, is sufficient to conclude that there is clear and convincing evidence to support the judge's decision to place the twins with the Smiths, or any other similar family if the Smiths placement did not succeed. Neither the biological parent's preferred placement nor the department's preference, in and of themselves, carry any greater weight than the other. Adoption of Hugo, 428 Mass. at 226 n.9. Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002). The judge conducted an 'even handed assessment,' and determined that the Smith household was suitable, and that the Parker household was not a suitable placement. Adoption of Hugo, supra at 226. The judge did not abuse his discretion.
We do not rely on the judge's findings regarding the relative economic status of the two placements. See Custody of a Minor, 389 Mass. 755, 766-767 (1983); Care & Protection of Three Minors, 392 Mass. 704, 712 (1984); Adoption of Hugo, 428 Mass. at 227. The judge also noted that Parker had not met the children and did not know them, and that Parker's mother, a proposed alternate caregiver, was on SSDI disability for a stress disorder, for which she had not been treated for over four years. Parker's mother had recently left the country for two months. The judge was entitled to consider this evidence not only for purposes of evaluating the stability of the child care plan, but for the degree to which Parker was realistic about the needs of the children, their medical needs, and her ability to adequately care for them. See id. at 227-228 & n.13. Based on inconsistencies in her testimony, the judge also found her not credible. Findings of credibility are entitled to deference. Custody of Eleanor, 414 Mass. 795, 799 (1993).
Because termination was conceded, and the judge permissibly found that Parker was not an appropriate placement, we need not and do not reach the question whether the mother had a due process right to the home study. Once termination was conceded, the mother no longer had a constitutionally protected interest in the proceedings. The placement decision is not one of constitutional dimension. Adoption of Hugo, 428 Mass. at 226 n.9. Compare Adoption of Cesar, 67 Mass. App. Ct. 708, 715-716 (2006) (discussing parental rights to challenge adoption plan where appeal pending challenging termination decision).
At oral argument the parties informed the panel that the Smiths had separated. Counsel for the twins nonetheless withdrew their objection to the placement and joined in the department's brief. We do not consider changes in circumstances since trial in the absence of exceptional circumstances. Adoption of Inez, 428 Mass. 717 (1999).
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Postadoption visitation. The judge's finding that posttermination visitation was not in the best interests of the children was supported by clear and convincing evidence. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). He made extensive findings and rulings, which we summarize briefly here. By the time of hearing, the mother had had literally scores of hospitalizations, multiple failed attempts at rehabilitation, and an extensive criminal history. Her behavior in the hospital was aggressive, if not violent, a pattern which had been repeated over many years. She has made numerous efforts to comply with service plans, to no avail. It is clear from the judge's findings that the mother has been visited with more than her share of life's challenges and pain, and that her many attempts to overcome these challenges have met with little if any success. The preadoptive family has indicated a willingness to exchange cards and letters. The judge's determination to leave the question of any further contact to the adoptive placement was not an abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 64 (2011) ('Adoption of Lenore, 55 Mass. App. Ct. 275, 284 [2002] [adoptive parents will be in best position to determine whether visits with child's biological parents will be in child's best interests]').
Decrees affirmed.
By the Court (Trainor, Smith & Sullivan, JJ.),