Opinion
22-P-305
01-31-2023
ADOPTION OF RONNA.[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
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In February 2020, the Department of Children and Families (department) filed a petition under G. L. c. 119, § 24, alleging that Ronna was a child in need of care and protection. Following a six-day trial, a Juvenile Court judge concluded that the mother was "currently unfit to assume parental responsibilities for the subject child," that her unfitness was "likely to continue into the indefinite future to a near certitude," and that it was in Ronna's best interests to terminate the mother's parental rights. The judge further determined that Ronna's best interests would be served by the department's plan of adoption. The judge declined to order posttermination and postadoption visitation.
On appeal, the mother claims (1) the department failed to make reasonable efforts to reunify her with Ronna, (2) the judge relied upon clearly erroneous factual findings in concluding the mother to be unfit, and (3) the judge abused his discretion by failing to order posttermination visitation. We conclude that the judge's findings were supported by the evidence before him, he properly applied the law to the facts found, and he did not abuse his discretion in his determinations of reasonable efforts, fitness, termination, custody, and visitation. We therefore affirm the decree.
Ronna's father stipulated to termination of his rights and is not a party to this appeal.
Background.
We summarize the judge's relevant findings of fact, supplemented by uncontested evidence from the record. The mother has led an unstable life accentuated by long periods of homelessness, substance use issues, domestic violence, and criminal involvement. The mother came to the attention of the department in February 2020, one day after Ronna's birth, when it received a report filed pursuant to G. L. c. 119, § 51A. The department's ensuing G. L. c. 119, § 51B, investigation revealed that the mother used illegal drugs prior to and during her pregnancy with Ronna, lacked stable housing, and remained involved in a physically abusive relationship with the father. On February 27, 2020, the department filed the instant care and protection petition, and on March 2, 2020, a judge ordered temporary custody of Ronna to the department after the mother waived her right to a hearing.
The judge made 207 findings of fact and thirty-six conclusions of law that "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).
At Ronna's birth, the mother tested positive for cocaine and methadone.
1. The mother's action plan.
In support of its initial goal of reunification, the department provided an action plan to the mother. In summary, the plan required the mother to seek treatment for her substance use disorder, refrain from illicit substance use, participate in a domestic violence educational program, establish a home free from violence and substance use, and attend regular visits with Ronna. During the pendency of this case, the mother failed to meaningfully comply with her action plan. More specifically, the mother neither participated in a substance use evaluation nor attended individual counselling for substance use and mental health. She continued to use illicit substances while failing to adhere to her toxicology screening. Furthermore, the mother was unable to secure stable housing, and she remained in an abusive relationship with the father.
2. Visitation.
The mother's in-person visitation with Ronna commenced upon Ronna's release from the hospital in early March 2020. However, in mid-March 2020, visitation was disrupted by the department's temporary policy suspending inperson visitation in response to the COVID-19 pandemic. From March through July 9, 2020, the mother's contact with Ronna was limited to virtual visitation as well as video recordings shared by Ronna's foster parents. On July 9, 2020, when weekly in person visits resumed, the department compensated for the pause in personal contact by providing the mother with additional visitation time. The mother's compliance with visitation was inconsistent through the remainder of 2020. While she attended the visits regularly, the mother either fell asleep, "nodded off," or appeared impaired by substance use during multiple visits. She also either "no-showed" or canceled multiple visits.
The mother received one two-hour visit per week. This was double the department's standard visitation time allocation.
The mother's engagement with visitation deteriorated further in March 2021. During multiple visits, the mother struggled to act appropriately, including instances in which she appeared agitated and dysregulated, causing the department to intervene. She also either canceled or failed to attend multiple visits with Ronna. By the time her trial began in September 2021, the mother had stopped appearing for visitation.
3. Ronna.
Ronna was diagnosed with neonatal abstinence syndrome following her birth. She needed respiratory assistance and showed signs of distress such as tremors, crying, not being able to be comforted, and not eating. The department transitioned Ronna to a child-specific foster home in March 2020. Ronna thrived in this placement, and she appeared to be developmentally on track when the judge, upon his adjudication of this matter in October 2021, approved the department's plan of adoption by the parents.
Discussion.
"To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012), citing Adoption of Kimberly, 414 Mass. 526, 528-529 (1993). "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." Adoption of Mary, 414 Mass. 705, 711 (1993). "We give substantial deference to the judge's decision" to terminate parental rights "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).
1. Reasonable efforts.
"Before seeking to terminate parental rights, the department must make 'reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. at 60, quoting Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002). A reasonable efforts determination requires a judge to consider the department's efforts relative to the contested service or services as part of a comprehensive review of the entirety of the department's actions in that case. See Care & Protection of Rashida, 488 Mass. 217, 229 (2021).
The mother claims the department failed to make reasonable efforts to support visitation, to assist the mother with recovery from substance use disorder, and to assist the mother with securing stable housing.
a. Visitation.
The mother argues the department failed to make reasonable efforts toward visitation-related goals by unilaterally denying the mother statutorily mandated in-person visitation for almost the entirety of Ronna's first four months, and then compounding that deprivation by not adequately compensating for the pause in personal contact once in-person visitation resumed. While G. L. c. 119, § 21, confers to the department, as custodian of a minor, the authority to control parent-child visits, this authority is qualified by a parent's right to visitation, as set forth in G. L. c. 119, § 35, if "the welfare of the child and the public interest will not be injured." Thaddeus v. Secretary of the Executive Office of Health & Human Servs., 101 Mass.App.Ct. 413, 423 (2022). Here, the department's determinations concerning the mother's visitation were well grounded within its discretionary authority, initially while navigating a public health crisis, and then later, by gradually modifying the plan responsive to the mother's inability to comply with the services aimed to support reunification.
Although the mother preserved the reasonable efforts argument as it applies to visitation by raising it at trial, we note that she did not raise the issue early enough in the proceedings to allow the department to address any expressed concern while the goal remained reunification. See Care & Protection of Rashida, 488 Mass. at 230.
The mother's first claim that the department abused its discretion by suspending in-person visitation from March through July 2020, due to COVID-19, was rejected by this court in Thaddeus, 101 Mass.App.Ct. at 424. In considering the legality of the department's temporary policy to suspend inperson visitation, the court found the ongoing public health response to restrict transmission of COVID-19 amounted to circumstances in which in-person visitation could reasonably be deemed as injurious to the welfare of the child and the public interest thus justifying the department's mandate. See id. at 423. The court further held that the department was not required to secure court approval in advance of substituting virtual for in-person visits due to COVID-19 since the department's policy was a temporary measure, not a termination of a parent's visitation rights. Id. at 423-424.
Although the specific issue in Thaddeus was the legality of the department's temporary policy and not a claim of unreasonable efforts, the court noted that a reasonableness challenge would fail based on the same rationale. Thaddeus, 101 Mass.App.Ct. at 423. Given the substantial health challenges Ronna faced following her birth, as well as the mother's instability at that time, the judge did not err in finding the department's policy to suspend in-person visits was reasonable.
Once in-person visitation resumed, the mother contends the department should have supplemented its decision to increase the mother's visitation time with additional efforts or services in order to adequately compensate for the lack of in-person visits. This claim is unavailing considering the ample evidence that the mother's difficulties in progressing toward reunification with Ronna were not a result of the department's visitation time allocation, but instead due to the mother's inability to responsibly comply with her visitation, to find stable housing, to sever her abusive relationship with the father, and to refrain from using drugs. The mother's inability or unwillingness to engage in the department's action plan belies her claim of inadequate services on appeal. See Adoption of Yalena, 100 Mass.App.Ct. 542, 554 (2021) ("The department's obligation to make reasonable efforts to reunify the child with the mother is contingent upon her obligation to substantially fulfill her parental responsibilities [including seeking and using appropriate services]").
The mother suggests the department should have explored other ways -- for example, consultation with a psychiatrist or developmental specialist -- in order to compensate for the in-person visitation pause.
Accordingly, the judge neither abused his discretion nor committed legal error in finding that the department's visitation determinations were reasonable.
b. Housing and substance use.
Where the mother raises her reasonable efforts claims with respect to the department's lack of support for her recovery and housing instability for the first time on appeal, we deem the claims to be waived. See Care & Protection of Rashida, 488 Mass. at 230. See also Adoption of West, 97 Mass.App.Ct. 238, 242 (2020). The mother, represented by counsel during the pendency of this matter, never requested a reasonable efforts review or pursued any other legal avenue of relief such as (1) requesting an administrative hearing or contesting her action plan by filing a grievance, (2) filing an abuse of discretion motion, or (3) raising the issue during a pretrial hearing. See Adoption of West, supra at 242-243. Had she done so, the mother would have effectively notified the department or the court that she was receiving inadequate services and afforded the department the chance to address her complaints. See id.
Even if the mother had properly preserved her reasonable efforts claims concerning her substance use and housing instability, there was ample evidence the department made reasonable efforts by providing specific information and support to the mother to obtain treatment as well as secure a stable living environment with a long-term residential treatment provider. The mother's minimal engagement with the opportunities presented to her supported the judge's conclusion that she had not benefited from them. See Adoption of Yalena, 100 Mass.App.Ct. at 554.
2. Unfitness.
The mother argues the judge's decisions to find the mother unfit and to terminate her parental rights were based in part upon clearly erroneous findings concerning the mother's mental health and Ronna's needs. We disagree.
In assessing the mother's fitness, the judge weighed the relevant factors before concluding the cumulative effect of the mother's substance abuse, housing instability, mental health, involvement in abusive relationships, criminal activity, and failure to engage with services established the mother's unfitness. During the pendency of this case, the mother lived in unsafe environments, including staying with other individuals who abused substances. The mother's substance use and her failure to engage in counseling added to her instability and inability to bond and care for Ronna. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) ("Evidence such as the failure of the parents to keep a stable home environment for the children, the refusal of the parents to maintain service plans, visitation schedules, and counseling programs designed to strengthen the family unit are relevant to the determination of unfitness").
The judge considered the requisite factors under G. L. c. 210, § 3 (c), finding factors (ii), (iii), (v), (vi), (vii), (viii), and (xii) to be applicable.
The mother has an extensive criminal history. At the time of the termination trial, she had five pending criminal charges.
Moreover, that the mother maintained her relationship with the father, despite being physically abused by him during her pregnancy and after Ronna's birth, supported the judge's conclusion that Ronna would be at risk of exposure to violence if she were to be reunited with the mother. See Adoption of Talik, 92 Mass.App.Ct. 367, 374 (2017), citing Custody of Vaughn, 422 Mass. 590, 595-96 (1996) (judge should carefully consider impact of domestic violence on child and parenting ability).
Addressing the mother's claims of error, we conclude it was not clearly erroneous for the judge to cite the mother's mental illness as a factor underlying his unfitness determination based on her failure to engage with any counselling for her diagnoses of anxiety and depression as well as her admission to "overdoing it" with her prescribed medications. When considering the evidence of unfitness in the aggregate, the judge reasonably concluded the mother's inability to responsibly address her mental health to be a contributing factor. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. at 289.
"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'" (citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993) .
Similarly, the judge's finding that the mother would not be able to meet Ronna's needs should Ronna be removed from her secure and stable environment was based on ample evidence of the mother's inability to progress from her life marked by "chaos and instability." Nor did the judge err in finding Ronna would suffer a traumatic loss if removed from the stable supportive foster family with whom she had thrived. See Custody of a Minor, 389 Mass. 755, 768 (1983) ("the lengthy separation of a mother and child and a corresponding growth in the ties between the child and a different custodian may in some circumstances indicate that the forced return of the child to the mother would be seriously detrimental to the child").
The intractable nature and depth of the mother's struggles with substance use, housing instability, mental health, and domestic violence amounted to clear and convincing evidence to support the judge's conclusion that the mother was unfit and that her unfitness was likely to continue into the indefinite future. See Adoption of Ilona, 459 Mass. at 60, quoting Custody of Two Minors, 396 Mass. 610, 621 (1986) ("court is permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child"). In considering how Ronna had thrived with her foster parents, we conclude the judge properly exercised his discretion in finding that her the best interests were served by terminating the mother's parental rights. See Adoption of Ilona, supra.
3. Visitation.
The purpose of posttermination or postadoption visitation "is not to strengthen the bonds between the child and h[er] biological mother or father, but to assist the child as [s]he negotiates . . . the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 564-565 (2000).
The decision whether to order posttermination or postadoption visitation follows a two-step analysis. See Adoption of Ilona, 459 Mass. at 63. The judge first determines whether there is a significant bond between the child and parent such that a court order abruptly disrupting that relationship would run counter to the child's best interests. See Adoption of Vito, 431 Mass. at 563. If such a bond exists, the judge considers whether visitation may be left to the judgment of the adoptive family without harm to the child's interest in maintaining a relationship with the biological parent. See Adoption of Ilona, supra at 64. In assessing whether to leave the decision to adoptive parents, the judge must recognize that adoptive parents are afforded the same protected interests of biological parents and are entitled to the presumption they will act in the best interests of the child in making decisions, including about visitation. Id. at 64-65.
In her claims of error, the mother cites the judge's finding that there was an insufficient contact between the mother and Ronna, and she asserts that a visitation order was necessary to ensure the department and the adoptive parents will accommodate Ronna's interests.
In his consideration of Ronna's best interests, the potential intrusion an order would place on the foster parents once the adoption was finalized, and their inherent obligations to Ronna, the judge was well within his discretion to leave posttermination and postadoption visitation decisions to the "custodian of the child." There was ample evidence supporting the judge's conclusion the mother had not formed a significant bond with Ronna. The mother had custody of Ronna for only the first eleven days of her life. During this time, the mother was unable to appropriately engage in caring for Ronna, most likely due to the mother's substance use. Similarly, the mother's attempt to bond with Ronna during visitation was hindered by the mother's challenges in progressing as a responsible parent as detailed above. Finally, in the month preceding the termination trial, the mother failed to attend visitation and lost contact with the department.
Conclusion.
For the reasons discussed above, we conclude that the judge did not abuse his discretion in terminating the mother's parental rights or leaving "all decisions in regard to any contact to the sound discretion of the child's custodian."
Decree affirmed.
By the Court
The panelists are listed in order of seniority.