January 30, 2015
Adoption of Faith (and two companion cases  )
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And 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
A mother appeals from Juvenile Court decrees terminating her parental rights to her three children., We affirm.
On August 29, 2012, the Department of Children and Families (department) removed the children from their mother's care; the department received temporary custody after the mother waived her right to a hearing. Faith and Erica were placed together in a foster home; Scott was placed in a separate foster home.
In September, 2012, Faith and Erica had their first visit with their mother after they were removed from her care. At the end of the visit, they did not want to leave her and became difficult to control. Afterwards, both girls were admitted to the Italian Home for Children (Italian Home) and a crisis team was called to evaluate them. The girls remained at the Italian Home until November, 2012, and thereafter they were placed in a kinship foster home with a paternal aunt. They have remained in this prospective preadoptive home since that time.
When Scott initially arrived in foster care in August, 2012, he was described as " dirty" and behind on his medical immunizations. On March 25, 2013, he was placed in a kinship foster home with his paternal grandmother, a prospective preadoptive placement. At the time of trial, he was attending daycare and doing well.
The mother first argues that the judge's subsidiary
findings rely on erroneous information and " one-sided fact finding." After
careful review, we are satisfied that the three challenged subsidiary findings
were not key findings and appear not to have had an impact on the judge's
ultimate conclusion of unfitness.
The first finding at issue, finding 29, refers to a 2008 child abuse and neglect report made pursuant to G. L. c. 119, § 51A (51A report), admitted at trial as exhibit nine, which stated that the mother's apartment was " infested with gnats and had a deplorable food odor. There was trash, rotted food and soiled diapers everywhere." The report was based on a police report filed by a Fall River police officer, a mandated reporter. A 51A report is admissible to set the stage in order to explain how the department became involved with the family, and, therefore, the mother's historical conduct and pattern of past neglect appropriately can be considered on the issue of her current fitness. See Adoption of Irene, 54 Mass.App.Ct. 613, 620, 767 N.E.2d 91 (2002). See also Adoption of George, 27 Mass.App.Ct. 265, 268, 537 N.E.2d 1251 (1989). In the present case, the judge noted that, between March, 2008, and October, 2012, eleven 51A reports were filed on behalf of the children.
In addition, it does not appear that the mother objected to the admission of this specific 51A report, nor did she make any effort to excise from the report any of the hearsay statements she now complains about. As a result, she is precluded from asserting here that the 51A report was admitted improperly in evidence, or that the judge erred in relying on the statements contained in that report. See Adoption of Sean, 36 Mass.App.Ct. 261, 265, 630 N.E.2d 604 (1994).
The second contested finding, finding 192, states that the mother has lived in a one-bedroom apartment with Scott's father since January, 2013. In fact, the evidence shows that, at the time of trial, Scott's father and the mother lived in a two-bedroom apartment. The number of rooms is not the issue, however. The significant factor is the judge's underlying concern that the mother was living with the person who brutally assaulted her in front of the children, and that she persistently failed to acknowledge that he was, indeed, the cause of her physical injuries. The judge was permitted to conclude that the mother's steadfast refusal to acknowledge domestic abuse in her home contributed to her unfitness as a parent. See Custody of Vaughn, 422 Mass. 590, 595, 664 N.E.2d 434 (1996).
Third, finding 193, " Mother did not appear for the first or second day of trial" is wrong. According to both the docket sheet and the transcript, the mother was present for both trial days, although she arrived late on day two; she also testified. However, the judge referred to the mother's testimony in her findings, showing that the error in this finding was an oversight. In light of all of the evidence, we cannot say that it is material.
Unfitness and termination.
The mother also argues that, because several of the
judge's findings are erroneous, the remaining findings do not prove her
unfitness by clear and convincing evidence, and that termination of her parental
rights was therefore not supported. We disagree.
At the time of the children's removal on August 29, 2012, the department's goals for the mother were to address the importance of providing proper supervision of the children, along with ongoing concerns about domestic violence, homelessness, and her mental health. The department service plan for that period also required the mother " to educate herself on the effects of domestic violence and refrain from all relationships where domestic violence is present, both as the victim and the aggressor" ; attend weekly visits with the children and monthly visits with the social worker; and attend domestic violence and parenting classes.
In September, 2012, the mother was living in a homeless shelter. On September 11, 2012, she attempted to cancel her first scheduled visit with her children, saying, " she did not have time to make the visit." She eventually did attend the visit. This was the visit where, at the end, Faith and Erica became out of control and were taken to the Italian Home. The mother did not confirm or arrange for any other weekly visits with any of the children in September, 2012.
On September 26, 2012, the mother contacted the social worker and informed her that she would not be visiting the girls until October; however, she failed to visit them any time during that month. On October 3, 2012, she was twenty minutes late for her one-hour visit with Scott, and failed to confirm subsequent visits with Scott because she was " sleeping" or " forgot." On November 1, 2012, the mother visited at the Italian Home with the girls for the first time since September. In mid-November, the girls left the Italian Home and were placed with the paternal aunt in Boston. The mother reported she would not be able to get to Boston for visits due to transportation difficulties. She told the social worker that she went to Boston only once a month to visit her older sons, see note 3, supra, and " that's it," making no alternative plans for visits.
In November, 2012, the mother obtained a one-bedroom apartment with Scott's father, but they soon were evicted for nonpayment of rent. In January, 2013, the mother moved to a two-bedroom apartment with Scott's father, where she was living at the time of trial; however, her name was not included on the lease. In November, 2012, the mother began individual counseling as required under her service plan. After three sessions she was not permitted to return because she had " too many no-shows."
On November 21, 2012, the mother missed a visit with Scott because she overslept; when offered a visit with the girls on this same day, she reported that she could only visit the girls one time per month and only at the beginning of the month. She refused a two-hour visit with the girls. The mother also continued to miss visits with the children, stating that she was too busy with things to do (searching for an apartment with Scott's father) and did not like visiting Scott at the department's office. During the visits she did attend with Scott, she was not attentive to him or his needs. In mid-December 2012, the mother stated that she could not visit the girls because she lacked transportation to Boston; the only mode of transportation acceptable to her was a rental car, and she refused to take public transportation.
Around this same time, the mother was referred to a parenting class, which she declined, stating that she was a fine parent. In mid-January, 2013, she refused any services recommended by the department except counseling, which she was attending reluctantly. The mother also continued to deny the allegations of neglect, stating that the reason her children were taken away was because of her race and financial difficulties. On January 29, 2013, the department's goal for all of the children changed from reunification to adoption.
In February, 2013, the mother continued to miss or cancel visits with the children. Specifically, she canceled her monthly two-hour visit with the girls (the first since November, 2012); she missed her February visits with Scott because she was " up late chillin" with Scott's father. In March, 2013, she canceled her visit with Scott because she had a dentist appointment. On April 11, 2013, the mother finally had a visit with the girls, as well as a visit with Scott. She also attended a May 7 visit with the girls, and arrived fifteen minutes late for her one-hour May 15 visit with Scott. On June 10, 2013, the mother requested that a visit with Faith at the Italian Home be postponed to later in the afternoon because she refused to take a bus to the visit and was awaiting a rental car. She later canceled the visit, which had been scheduled to discuss the department's goal change, and asked for another date. Between April, 2013, and July, 2013, the mother was offered monthly visits with Scott; she attended only three visits, arriving five to ten minutes late for each, and leaving five to ten minutes early for two of the visits.
On June 12, 2013, the mother arrived at her meeting with the social worker with a cracked lip and bruises on her elbows and arms; she stated that she fell down cement stairs. She was no longer attending her domestic violence class and was still living with Scott's father. The mother's July visit with the girls was suspended due to her failure to attend the family session scheduled in June; there were no other visits with the girls from June to October, 2013. On June 28, 2013, the police were called to the home of the mother and Scott's father for a domestic disturbance; the mother reported there was no physical altercation and she " dropped the charges." The mother missed all of her home visits with the social worker in August, September, and October, 2013; she missed her August visit with Scott, but attended a two-hour visit with him in October (to make up for rescheduling by the department of the September visit), arriving late.
On October 10, 2013, the mother attended a family visit with the girls at the Home for Little Wanderers, arriving thirty minutes late; the girls were happy to see her. She assured the girls, upon their asking, that there was no more fighting (with Scott's father), but Erica stated that it looked like the mother had a black eye, which the mother denied.
The mother attended and completed a weekly parenting class in February or March, 2013, but stated that she " didn't really learn anything" from the class because the topics that were covered she " already knew." In April, 2013, the mother enrolled in a domestic violence class; she finally completed the class in August, 2013, after several stops and starts. Approximately one month before trial, the mother again began individual counseling, participating in three sessions. In June, 2013, the mother participated in a psychological examination, but missed the scheduled appointment to discuss the results.
In determining unfitness, " the department must prove by 'clear and convincing evidence that a parent is currently unfit to further the child's best interest[s].'" Adoption of Zoltan, 71 Mass.App.Ct. 185, 187, 881 N.E.2d 155 (2008), quoting from Adoption of Katharine, 42 Mass.App.Ct. 25, 27, 674 N.E.2d 256 (1997). " The inquiry is whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Olivette, 79 Mass.App.Ct. 141, 157, 944 N.E.2d 1068 (2011), quoting from Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761, 694 N.E.2d 27 (1998). Once unfitness is determined, the judge " must then ascertain 'whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child.'" Adoption of Gillian, 63 Mass.App.Ct. 398, 404, 826 N.E.2d 742 (2005), quoting from Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). In issuing the decree terminating parental rights, the judge must " consider the ability, capacity, fitness and readiness of the child's parents . . . and shall also consider the plan proposed by the department." G. L. c. 210, § 3( c ). " When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused [her] discretion or committed a clear error of law." Adoption of Elena, 446 Mass. 24, 30, 841 N.E.2d 252 (2006).
In the present case, the judge conducted a trial over two days, listened to the testimony of several witnesses, including the mother, and reviewed forty-five trial exhibits, including 51A and 51B reports, investigative reports, department service plans, and records from the Italian Home. We are satisfied that there was adequate evidence to support her findings that: the mother continues to deny the occurrence of domestic violence, both past and present, in the home she shares with Scott's father, along with the impact of such violence on the children;  the mother has been unable to maintain a stable and secure home life for the children;  since 2003, the mother has displayed an ongoing pattern of neglectful supervision of her children;  and the mother has failed to engage consistently in or to benefit from services or resources offered by the department, including those required under her service plan. Taken together, these facts provided clear and convincing evidence that the mother was unfit.
In determining that it was in the children's best interests to terminate the mother's rights, the judge's 193 factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3( c ). " Although it would be better practice specifically to state the reasons that termination is in the child[ren]'s best interest, such specificity is not required." Adoption of Nancy, supra at 516. We see no error and, therefore, conclude that the judge did not abuse her broad discretion in terminating the mother's parental rights after a finding of unfitness.
The trial judge found that the children " love and miss their mother" and " worry about [her] well-being," which warrants continued contact between the mother and the children after termination and adoption. Postadoption contact, however, was limited to one supervised visit each year between the mother and all of the children, combined with an ability to " send and receive cards and letters from and to the children as deemed appropriate by the adoptive parents." The mother asserts that the judge abused her discretion in issuing a vague and limiting postadoption order. We disagree.
A decision not to order postadoption visitation is upheld absent a showing that the judge has abused her discretion. Adoption of Lenore, 55 Mass.App.Ct. 275, 283, 770 N.E.2d 498 (2002). Once a judge determines that a parent is unfit, it is within her discretion to grant both posttermination and postadoption visits. Adoption of John, 53 Mass.App.Ct. 431, 439, 759 N.E.2d 747 (2001). The purpose of postadoption contact is not to strengthen the bonds between the child and the mother but rather " to assist the child[ren] as [they] negotiate, often at a very young age, the tortuous path from one family to another." Adoption of Vito, 431 Mass. 550, 565, 728 N.E.2d 292 (2000).
Here, the record amply supports the judge's decision to order limited postadoption contact between the mother and the children. At the time of trial, the mother had a long history with the department of the neglect of her children, and the children had been in foster care for more than one year. The judge found all of the children to be well adjusted and finally in stable, preadoptive homes. Meanwhile, during this period, the mother did not visit the children regularly, often showing up late to visits or canceling the visits completely, and, as noted previously, failed to confront her problems with housing, mental illness, and domestic violence. These facts are sufficient to justify the judge's decision that postadoption visitation would be limited in the children's best interests.
Katzmann, Hanlon & Maldonado, JJ.