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Adoption of Chad

Appeals Court of Massachusetts, Norfolk

February 27, 2019

ADOPTION OF CHAD (and a companion case [1]).

          Heard: November 7, 2018.

         Petition filed in the Norfolk County Division of the Juvenile Court Department on September 9, 2014. The case was heard by Mary M. McCallum, J.

          Diana S. Spanos for the mother.

          Rachel T. Rose for Chad.

          Lynne M. Murphy for Department of Children and Families.

          Dennis M. Toomey for Anne.

          Present: Milkey, Henry, & Englander, JJ.

         

          MILKEY, J.

         In this care and protection case, a Juvenile Court judge found the mother of two children unfit and terminated her parental rights as to them. The judge's decision was based in critical part on her assessment that the mother was unable to appreciate or address both children's extensive special needs. The mother and one of the children have appealed. For the reasons that follow, although we agree with the judge that serious issues regarding the mother's fitness have been raised, we nevertheless conclude that various shortcomings in the proceedings necessitate that the matter be remanded.[2]

         Background.[3]

         1. The mother.

         Born in 1980, the mother moved to Massachusetts at age seventeen with her parents. In January of 1999, the Department of Children and Families (DCF) removed the mother from her home after reports that she was being physically abused, and she remained in DCF's care and protection until August of 2002 (the month she turned twenty-two) . At that point, the mother was placed with the Department of Developmental Services (DDS) because of her mental disabilities.

         The judge did not make findings about the degree of the mother's mental disabilities, nor is that clear from the trial record. On one hand, there is a reference in one of the exhibits to the mother being "very cognitively challenged," and the extent of the services that she has received from DDS suggests a substantial mental disability. On the other hand, there are other suggestions in the record that her disability is only "moderate" or even "mild," with one person describing her as being "smart as a whip and doing fine." No expert testified as to her disabilities; in fact, no one from DDS testified at all.[4] There was evidence that the mother's therapist had assigned to her a "global assessment functioning [rating] of 51 out of 100," without any explanation of what that meant or how it mattered. Although the judge appears to have accepted that assessment, no evidence of how that particular level of functioning affected the mother's parenting skills was presented.

         In 2016, the mother was diagnosed as also suffering from a moderate degree of major depressive disorder.[5] In addition, it is uncontested that the mother is morbidly obese (weighing over 500 pounds at the time of trial), and that this condition at least somewhat affects her mobility.

         2. The nature of the trial evidence.

         Before turning to a summary of DCF's involvement with the family, we highlight the nature of the evidence adduced at trial. Although the mother testified at length, her testimony mainly addressed the period after the children were removed in September of 2014. There were three other witnesses at the trial: the woman who had served as the foster mother of the children for a period of time after their removal, the DCF adoption worker assigned in 2015, and the DCF social worker assigned in 2015. Thus, there was almost no live testimony that addressed the mother's parenting of the children while they were in her care.

         Instead, DCF relied on the documentary record with regard to what happened prior to the children's removal. That record, consisting of thirty-six trial exhibits, included reports produced pursuant to G. L. c. 119, §§ 51A and 51B (51A reports and 51B reports), and the report of a court-appointed investigator appointed pursuant to G. L. c. 119, § 24. Those reports were submitted with agreed-upon redactions, and the parties and the judge shared a common understanding that the 51A reports could be used only to "set the stage," and that the 51B reports were "admitted to the extent that they contain[ed] primary fact and statements of the mother." See Custody of Michel, 28 Mass.App.Ct. 260, 266-267 (1990) . See also Adoption of Luc, 94 Mass.App.Ct. 565, 566-569 (2018). We turn next to what the documentary record established with regard to DCF's involvement with the family prior to the removal of the children.

         3. The children.

         Chad was born in November of 2006. The mother and Chad lived in a DDS-funded group home in the Dorchester section of Boston, operated by Dare Family Services (Dare), where the mother had been placed just before Chad was born. At the group home, the mother had twenty-four hour assistance from a full-time staff supplied by DDS. The record reflects that during this period, the mother was able to attend to Chad's everyday needs with the help of the Dare staff, which led DCF to close a case it had opened before newborn Chad had been discharged from the hospital. In June of 2008, a 51A report was filed expressing concern over the mother's yelling at Chad and lack of attentiveness toward him, but DCF closed the matter after concluding that the mother showed apparent improvement.

         By February of 2011, the mother and Chad had moved to a "shared living" home in the Roxbury section of Boston, still with round-the-clock supervision, where they remained under the care of DDS. That same month, the mother gave birth to Anne, and the family moved back to Dare's Dorchester group home. During this period, DCF looked into allegations that the mother was neglecting newborn Anne and physically abusing Chad. However, further investigations "indicated that the mother and children were doing fairly well," and DCF ultimately concluded that the allegations were unsupported.

         4. The family moves to Brockton.

         In December of 2011, DDS moved the mother and her children to a foster home in Brockton. At the Brockton home, also run by Dare, the proprietor, Betsy Goodacre (a pseudonym), looked after the family. In addition, the mother was later provided the weekly services of an aide to assist her in staying on top of appointments and such. The family remained at the Brockton home until the summer of 2014.

         In March of 2012, Chad, then five years old, began to exhibit sexualized behavior at school, such as telling a girl that he wanted "to lick her between her legs." Concerned that Chad might have been subjected to sexual abuse, DCF investigated. The mother and Chad denied any allegations of sexual abuse, and DCF did not find such allegations supported.[6]DCF did document a number of ways that Chad could have been exposed to inappropriate sexual images or activity. These included his having observed instances of nudity and sexual behavior involving third parties at the Dorchester group home, and his having observed pornography on the mother's tablet computer or cellular telephone. Notably, the clinical supervisor at Dare -- one of two parties who reported Chad's sexualized behavior -- nevertheless concluded that Chad could remain in the home (so long as he had a separate bedroom), and she expressed her view that the mother "ensures that the basic needs of her children are met at all times."

         In August of 2012, while the family was still living in Brockton, the mother had to be hospitalized for a physical ailment, and she left her children in the care of Goodacre. This led to a 51A report expressing concern about the mother's ability to care for the children, especially if her absence became prolonged.[7] Apparently after the mother was discharged from the hospital, DCF screened out the concerns based on existing supports.

         In February of 2014, an early intervention provider for one of the children expressed concerns to DCF about the mother's ability to care for the children. The concerns were over whether the mother's cognitive issues and weight-related immobility were causing the mother not to meet the children's basic needs or to follow up on recommended services for them. At this time, Goodacre stated her view that the mother "is a good mother and does the best that she can." The Dare clinical supervisor shared that view and requested that an aide be arranged for the mother; one was ultimately provided to her for four months.

         5. The ...


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