Opinion
21-P-1012
07-21-2022
ADOPTION OF SHANKAR.[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 July 2019 and was granted temporary custody of Shankar. After a 2021 trial, a Juvenile Court judge found the mother and father unfit and terminated their parental rights. The mother and the father separately appeal. The mother argues that the judge erred in finding that her unfitness was likely to continue indefinitely. She claims that the department failed to make reasonable efforts at reunification by withholding the results of her neuropsychological evaluation, and that, had she received those results, she could have engaged in services specific to her needs. The father argues that the judge erred in weighing the evidence of domestic violence and alcohol use against him while failing to properly credit him for treatment services he received. He further argues that the department failed to make reasonable efforts by failing to offer him housing services despite knowing that stable housing was a requirement of reunification under his action plan. Concluding that the judge did not err in her decision, we affirm.
1. Background.
We recount the relevant, mostly undisputed facts, reserving certain details for later discussion. The department has been involved with the family since Shankar's birth, when a report pursuant to G. L. c. 119, § 51A, was filed alleging that Shankar was born exposed to Subutex. The mother and the father have histories of substance abuse. The mother began using heroin at nineteen and continued to use until she was committed to the Women's Addiction Treatment Center in 2010. The father became addicted to Oxycontin in his late teens after a doctor prescribed him the drug to treat a back injury. He eventually switched to methadone for pain management, which he has used on and off for fifteen years. The father admitted to using heroin when he was unable to get methadone. Since 2016, the father has attended Habit OpCo, a recovery center where he participates in a methadone clinic. However, despite knowing about Habit Opco's zero tolerance policy for alcohol, the father continues to drink, a fact that he minimizes.
The father has been charged with assault and battery on a family or household member and assault and battery by means of a dangerous weapon. He has been named the defendant in three restraining orders. The mother has numerous convictions for various crimes. She also has a record of mental illness and at the time of trial was prescribed numerous medications to manage her mental health conditions. However, she admitted that she did not always take her medication as prescribed. Among other things, the mother suffered from paranoia and delusions. In 2018, mother took Shankar to a gas station about ten minutes from her house, but she was too confused and lost to find her way back home. As a result, the mother and Shankar were at the gas station for nearly five hours.
In June 2019, a Probate and Family Court judge awarded the father custody of Shankar, and the father, at a minimum, knew that the department wanted the father to leave the home with the child or to have the mother leave the home. The mother remained in the home despite repeated reminders from department social workers that the father and child were supposed to live apart from the mother pursuant to the probate judge's order. After a domestic violence incident less than one month after the father obtained custody, the department assumed emergency custody of Shankar. The father was arrested and, while in custody, denied ever being told that the mother had to leave the home.
Following the department's removal of Shankar from the father's custody, the department provided the mother and the father with a family action plan for reunification. That plan required the mother to engage in both a weekly parenting group and domestic violence services, such as individual or group therapy, obtain safe and stable housing, and successfully complete a comprehensive neuropsychological evaluation. The father was required to engage in weekly therapy, obtain safe and stable housing, complete both a substance abuse and a batterers evaluation, and continue to attend his methadone appointments at Habit OpCo.
The mother was unable to obtain safe and stable housing and reported that she was staying with friends. The mother also reported that she was in weekly individual therapy and provided letters from her therapist confirming her participation, but the department later learned, and the mother admitted, that she forged the letters and was not attending therapy. The mother did not attend a weekly parenting group.
The father had not completed a substance abuse evaluation by the time of trial. Although he made several claims to the department regarding his alleged attempts to obtain an evaluation, he failed to follow through with the department's offers to assist him. The father's drug screenings have shown inconsistent positive results for benzodiazepines, for which he has not shown a prescription. The department, despite regular efforts, was not able to confirm father's attendance at Habit OpCo. The father did participate in biweekly therapy from a provider at Arbour Counseling between March and October 2020, and he has participated in a men's group and a parenting class.
The department obtained permanent custody of Shankar on March 11, 2020. Shankar is currently in the custody of a paternal great aunt and uncle and lives with their family. Shankar has a close relationship with the family and calls the great aunt and uncle "mama" and "dada" and refers to his cousins as his "brothers." Shankar shares a room with one of his cousins, and it is appropriately sized and furnished. He is bonded to the family and considers them his parents and siblings.
2. Discussion.
The central question in an action to terminate parental rights is whether a parent is unfit, and if so, whether termination is in the best interests of the child. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Findings to support a termination of parental rights must be by "clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Darlene, 99 Mass.App.Ct. 696, 702 (2021), quoting Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). "Parental unfitness . . . means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard." Adoption of Darlene, supra, quoting Adoption of Leland, 65 Mass.App.Ct. 580, 584 (2006).
a. Termination of the mother's parental rights.
"When . . . terminating parental rights, a judge must determine whether the department has complied with its duty to make 'reasonable efforts ... to prevent or eliminate the need for removal from the home.'" Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. See Care & Protection of Rashida, 489 Mass. 128, 130 (2022) (Rashida II); Care & Protection of Rashida, 488 Mass. 217, 221 (2021) (Rashida I). The burden is on the department to prove by a preponderance of the evidence that it has made reasonable efforts. See Rashida II, supra at 129. "However, even where the department has failed to meet this obligation, a trial judge must still rule in the child's best interest. 'A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest.'" Ilona, supra, quoting G. L. c. 119, § 29C. See Rashida II, supra at 133; Rashida I, supra at 221.
The mother argues that because the department neither shared the results of her neuropsychological evaluation, nor updated her family action plan based on the evaluation, it did not make reasonable efforts at reunification. There is no evidence that the department purposefully withheld the evaluation from the mother or that the department even knew that the mother had not received the results of the evaluation. The mother points to no evidence that the evaluation necessitated or recommended any update to the services the department was providing to her. If the mother disagreed, it was incumbent on her to offer evidence and argument in support of her position. The mother's argument on appeal is akin to "[a] claim of inadequate services[, which] must be raised in a timely manner to provide the judge and the department the opportunity to make accommodations while the case is pending." 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)" (emphasis added) . I_d. See Adoption of Daisy, 77 Mass.App.Ct. 768, 782 (2010), S_.C., 460 Mass. 72 (2011) (same); Adoption of Serge, 52 Mass.App.Ct. 1, 9 (2001) (same). Here, the mother never attempted to find out the results of her evaluation or whether it recommended any additional services.
The October 3, 2020 family action plan stated that the mother had agreed to focus, among other things, on "successfully complet[ing] a comprehensive neurological evaluation as recommended by her neuropsych and follow all/any recommendations and provide a copy to the [d]epartment." The results of the neuropsychological evaluation were also summarized at some length in the court investigator's reports dated October 2, 2020, and thereafter.
A claim of inadequate services may be raised in an abuse of discretion motion, but proceedings on such a motion do not substitute for a reasonable efforts determination. The latter "necessarily requires a judge to consider the contested service or services, but . . . is a more comprehensive review of the entirety of the department's actions in the context of a particular case." Rashida I, 488 Mass. at 229. See id. at 235.
"What constitutes reasonable efforts . . . must be evaluated in the context of each individual case," Care & Protection of Walt, 478 Mass. 212, 227 (2017), and is in part a question of fact, see Rashida II, 489 Mass. at 131. We therefore decline the mother's invitation to make a fact-based determination, on an issue raised for the first time on appeal, by concluding that the department's failure to provide her the results of the neuropsychological evaluation constituted a failure to make reasonable efforts at reunification.
At trial, a judge must determine both whether the parent is currently unfit and whether "on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary" (citation omitted). Adoption of Ilona, 459 Mass. at 59. "Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." I_d. at 60. In assessing whether a parent's unfitness is likely to continue indefinitely, a judge may consider "past conduct, medical history, and present events to predict future ability and performance as a parent." Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
The mother does not challenge any of the judge's factual findings and there was ample evidence in the record that her unfitness was likely to continue indefinitely. The mother was repeatedly dishonest with the department, going so far as to forge documents. Additionally, she failed to engage in many of the services offered to her. The failure to comply with services is relevant to a parent's fitness. See Adoption of Rhona, 63 Mass.App.Ct. 117, 126 (2005). Moreover, the mother was unable to obtain safe and secure housing and was staying with friends. Evidence of a parent's failure to maintain adequate housing and "keep a stable home environment" is relevant to the unfitness determination. Petitions of the Pep't of Social Servs. to Pispense with Consent to Adoption, 399 Mass. 279, 289 (1987). We see no error in the judge's conclusion that mother's unfitness was likely to continue for a prolonged or indeterminate period.
b. Termination of the father's parental rights.
The father argues that the judge erred in relying on domestic violence allegations to find that he was unfit. The record is clear that the father had a significant history of domestic violence in both his prior relationships and his relationship with the mother. That history ranged from an assault on family members to being named as the defendant in three restraining orders. The father and the mother fought frequently while Shankar was present in the home.
The father's violence included a physical assault on the mother where he put his hands around the mother's throat, cursed at her, and threatened her. This incident was captured in a video recording and credited by the judge. The father's claim that the domestic violence episodes were stale is unpersuasive. Some of the father's actions occurred within the last few years prior to the trial and after Shankar's birth. The judge properly found that this past conduct was not too remote and was relevant to his current parental fitness. See Adoption of Larry, 434 Mass. 456, 468-469 (2001) . Although the father did engage in some counselling, he continued to deny all domestic violence. The fact that the judge did not credit the father's evidence that he was an eager participant at some sessions and was actively engaged was not error. The father's "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). At trial, the father continued to refuse to complete a batterer's evaluation and maintained that he did not need a "whole program" of domestic violence counselling.
The father objects on appeal to the reference and characterizations of video recordings in a G. L. c. 119, § 51B, report by a nontestifying witness. The father did not object when the report was admitted at trial, and those reports are admissible, under the Luc criteria, as primary fact. See Adoption of Luc, 484 Mass. 139, 153 (2020).
Family violence is "highly relevant to a judge's determination of parental unfitness and the best interests of the child[]." Adoption of Gillian, 63 Mass.App.Ct. 398, 404 n.6 (2005). "Physical force within the family is both intolerable and too readily tolerated, and ... a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." Adoption of Garret, 92 Mass.App.Ct. 664, 671 (2018), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996). The father's failure to acknowledge and fully address his issues of domestic violence was relevant to his fitness. See Adoption of Carla, 416 Mass. 510, 519-520 (1993).
The judge's findings regarding the father's alcohol use and substance misuse are also supported by the evidence. The father denied any alcohol issue, but admitted that his drinking jeopardized his enrollment at Habit OpCo, which he was required to maintain as part of his action plan. There was also evidence that the paternal grandmother asked him to leave her property, where he had been living in a trailer in the woods, because of his drinking. Additionally, the father was taking methadone for pain management, but had admitted that, at times in the past when he was out of methadone, he turned to heroin. The father failed to complete a substance abuse evaluation to determine if any additional treatment was necessary. Further, the substance misuse affected the father's ability to parent. He fell asleep because he was under the influence of some kind of substance and preparing to inject drugs intravenously, all while caring for Shankar. The paternal grandmother testified that she observed the father's alcohol misuse only two weeks prior to her trial testimony.
Evidence of alcohol or drug abuse is "relevant to a parent's willingness, competence, and availability to provide care." Adoption of Anton, 72 Mass.App.Ct. 667, 676 (2008). Substance abuse issues are relevant to the judge's assessment of a parent's fitness "to the extent that [they] affect[] the parent['s] capacity to assume parental responsibility, and ability to deal with a child's special needs." Adoption of Frederick, 405 Mass. 1, 9 (1989). Falling asleep on one's child bears on one's fitness to parent.
The father's action plan required that he complete a substance abuse evaluation to determine whether he needed additional services, which he failed to do. The father knew that the department was having difficulty confirming any compliance with the action plan, yet he failed, or often refused, to document his compliance or provide complete copies of his records to the department or the court. This did not improperly shift any burden to the father. The department's obligation to work with a parent is "contingent upon [the parent's] own obligation to fulfill various parental responsibilities, including seeking and utilizing appropriate services" (citation omitted). Adoption of Daisy, 77 Mass.App.Ct. at 782. The judge's findings that the father minimally participated in and benefited from services are supported by the record and not clearly erroneous.
The father's arguments to the contrary, are based largely on his disagreement with the judge's weighing of the evidence, see Adoption of Quentin, 424 Mass. at 886, or on findings of fact as to which we have already rejected his claims of clear error.
The record demonstrates that the father's inability to remove the mother from the home was not simply based on poverty, as the father suggests. The father knew of the department's concerns that the mother lived in the home but he continued to permit her to live there and have unsupervised contact with Shankar. The father could have allowed Shankar to live with the paternal grandmother to safeguard him against the mother, or he could have sought an order from the Probate and Family Court that the mother vacate the home, but instead the father chose to allow the mother to stay in the home with Shankar. A finding that a parent is unfit and that termination of parental rights is in the best interests of the child in light of a parent's failure to protect a child from another parent is appropriate. See Adoption of Anton, 72 Mass.App.Ct. at 675.
Finally, the father argues that the department failed to make reasonable efforts to provide him with housing services despite knowing that stable housing was a requirement under his action plan. The father's argument on appeal, like the mother's, see supra, is akin to "[a] claim of inadequate services[, which] must be raised in a timely manner to provide the judge and the department the opportunity to make accommodations while the case is pending." Adoption of Yalena, 100 Mass.App.Ct. at 554.
The father also argues that, due to the department's failure to make reasonable efforts to assist with housing, the judge erred in determining that the father's housing instability was likely to last indefinitely. See Adoption of Ilona, 459 Mass. at 61. But the father was not particularly forthcoming or realistic with the department about his housing situation, and the department's obligation to make reasonable efforts is contingent on a parent's obligation to seek appropriate services. See Adoption of Yalena, 100 Mass.App.Ct. at 554. Moreover, even if additional efforts by the department might have assisted the father with his housing instability, this was only one of many factors the judge relied on in finding the father unfit. Thus, any weakness in the judge's conclusions of law regarding housing instability does not call into question the judge's ultimate findings and conclusions. Finally, insofar as the father argues that the department's overall approach to case management reflected a lack of reasonable efforts, the reasonable efforts claim itself is waived. See Adoption of Yalena, supra. Nor does the father identify how this would detract from the judge's overall conclusion that the father's unfitness was likely to continue indefinitely. See Adoption of Ilona, supra.
The standard of review in termination of parental rights cases allows us to reverse the judge's decision only in cases where the judge's findings are clearly erroneous or where the judge has failed to find parental unfitness by clear and convincing evidence. While the judge may have weighed the evidence against the father more heavily than we would have were we the fact finder, we cannot say that her decision reflects any "clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59.
Decrees affirmed.
The panelists are listed in order of seniority.