Opinion
10-P-2273
10-28-2011
ADOPTION OF KENDRA.
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
The parents of Kendra, who was born on October 16, 2002, appeal from a decree of a Juvenile Court judge terminating their parental rights and their right to consent to adoption. Kendra has submitted a brief seeking affirmance of the decree. After careful review of the record, we discern no merit in the parents' various claims of error and affirm the decree in its entirety.
Background. We summarize the relevant facts and procedural history from the judge's comprehensive findings, which are amply supported by the record. The parents were married in 1991. They had three sons and one daughter, Kendra, who is the subject of this appeal. The parents' relationship was fraught with verbal and physical abuse. Before the parents divorced in 2002 (shortly before the birth of Kendra), the mother had obtained numerous abuse prevention orders against the father, who has an extensive criminal record including convictions for violent crimes. The Department of Children and Families (department) first became involved with the family in 1998 after receiving a report alleging neglect by the mother and father due to drug use and domestic violence. The report was substantiated and, although the family was offered support services, the parents soon separated. During the ensuing ten years, the father visited his sons sporadically but had no contact with Kendra until 2008, when he returned to the area after the department filed a care and protection petition and obtained temporary custody of all four children.
Karl was born in 1993; Bruce was born in 1995; and Max was born in 1997.
Meanwhile, between 1998 and 2008, Kendra and her siblings lived with the mother, who suffered from substance abuse and mental illness. During this period, the department substantiated numerous reports of neglect and abuse by the mother, the majority of which concerned the mother's excessive use of alcohol and drugs.
The mother has been diagnosed with major depression, impulse disorder, posttraumatic stress disorder, attention deficit hyperactive disorder, and borderline personality disorder.
In July 1999, the department received a report from a mandated reporter that the mother's boyfriend had stabbed himself in the stomach and tracked blood into the apartment while at least one child was present. Upon investigation, the department supported an allegation of neglect, and the mother signed a service plan agreeing to keep the boyfriend out of the home.
In February 2004, the mother was arrested for drunk driving and resisting arrest. Two years later, in February 2006, the department substantiated a report that the mother left Kendra, age four, alone and asleep in a running car for twenty minutes. The department assigned a social worker to the family, but the mother refused to meet with her or return her phone calls. Throughout 2006 and 2007, the department initiated nonemergency responses to various supported allegations of neglect, including sexual abuse of Kendra by her older brother Karl, provision of childcare by a developmentally disabled woman, and an incident in which one of the children's caretakers drove with Max on top of her car.
In February, 2008, Max, then age eleven, called the department to report that his mother was using drugs and drinking and driving. The mother was uncooperative during the department's subsequent investigation. Two weeks later, the department received a report that the mother's sister's boyfriend, who lived with the sister in the mother's home, was intoxicated and threatening to kill the family while in the presence of the children. During the subsequent investigation, the social worker assigned to the case received threatening phone calls at work and at home from the mother and her sister. When the social worker spoke to the mother about the seriousness of the department's concerns for her children, she swore at him.
As noted, after a decade of involvement with the family, the department eventually obtained custody of Kendra when she was five years old. Kendra was placed with a foster mother who now wishes to adopt her. The judge found that Kendra has many special needs as she suffers from speech delays, hyperactivity, and hygiene issues. The foster mother addressed all of these, and Kendra has shown considerable improvement.
The department also obtained custody of Kendra's brothers, two of whom were placed with the maternal grandmother but later were removed to foster homes as a result of neglect caused primarily by the grandmother's alcohol abuse. The third brother was placed in a residential center.
Shortly after Kendra began living with her foster mother, she threatened her foster mother with a knife and, as a result, was hospitalized for forty-five days. However, upon her release, she returned to the foster mother and has lived with her throughout the pendency of this case.
When the department commenced these proceedings, a new social worker was assigned to work with the family. Initially, the mother called her derogatory names and refused to meet with her. Eventually, the mother and father, who by this time had returned from his new home in Georgia, agreed to a service plan that required the mother to attend parenting classes, complete a psychiatric evaluation, refrain from using drugs or alcohol, take all prescribed medications, and demonstrate an understanding of the children's medical needs, among other tasks. As the judge found, the mother generally complied with her service plan, and her attitude toward the department improved. In particular, the judge noted that the mother did not miss any scheduled visits with Kendra.
Notwithstanding her compliance, the mother continued to suffer from mental illness and chronic substance abuse, which caused her to be hospitalized for psychiatric care on nine occasions between July 2008, and the commencement of trial in November 2009. On the day that she and the father stipulated that all four children were in need of care and protection, the mother attempted suicide by overdosing on Vicodin. Thereafter, in August, 2009, when the department changed its goal from reunification to adoption, the mother again attempted suicide. The mother also was admitted to the hospital for suicidal behavior one week prior to the commencement of the trial. As to the father, the judge found that he did not comply with the majority of the tasks set forth in his service plan and did not visit with Kendra consistently.
Ultimately, the judge concluded that both parents were currently unfit to parent Kendra. Specifically, the judge found that the mother neglected her children by 'exposing them to domestic violence, substance abuse, unsanitary home conditions, and lack of supervision.' With respect to Kendra in particular, the judge found that the mother failed to protect her from her older brother after observing him touch her inappropriately. The judge also found that the mother's mental illness and substance abuse issues would place Kendra at risk should she be returned to the mother's custody. While recognizing the mother's partial compliance with the department's service plans and her use of services offered to her, the judge determined that in light of the mother's ongoing mental health issues, Kendra's special needs, and the bond that has developed between Kendra and her preadoptive mother, it was in Kendra's best interest that the mother's parental rights be terminated.
With respect to the father, the judge found that he essentially abandoned Kendra by failing to visit her for the first five years of her life and that, although he visited Kendra when she was in the custody of the department, he never developed a meaningful relationship with her.
Discussion. On appeal, the mother contends that (1) certain medical records, upon which the judge relied, were not properly introduced in evidence; (2) the judge's findings do not adequately support the conclusion that she is currently unfit as a result of mental illness; and (3) the judge ignored evidence favorable to her. The father adopts the mother's arguments and raises two additional points. He contends that it is in the best interests of Kendra to be raised by the mother, and claims that because he would provide support to the mother, his rights should not be terminated. Additionally, he asserts that the judge erred by not ordering postadoption visitation. We address each argument in turn.
a. Medical records. The record does not support the mother's claim that medical records relating to her hospitalizations at Noble Hospital (exhibit 34) and Providence Hospital (exhibit 41) were not properly introduced in evidence. When the department moved to introduce the records at issue, the mother registered a limited objection to '[a]nything that is privileged and hearsay. Diagnosis and treatment is fine.' The judge stated, 'if there are any objections to those hospital records coming in, I'm not going to be reading them in camera, okay. The person who's objecting is the one who's going to have to glean out whatever is in there.' Ibid. She later clarified her ruling as follows: 'They [the records] are going to come in as exhibits exactly the way they are unless there is an objection to them. . . . And so I'm saying that the person who is objecting to certain things coming in, should there be a privilege in there, is the one that is going to have to review them and take out, redact.' At the close of the evidence, the judge scheduled a final date for filing objections, and none were filed.
Although the mother also contests the admission of exhibit 35, the judge never received it and, thus, did not rely on it.
Under these circumstances, we agree with the department that the records were properly introduced. In any event, even if we were to assume some impropriety in the manner in which the records were admitted, the mother was not prejudiced by the judge's reliance on them because, even without the records, there was sufficient evidence of the mother's unfitness to warrant termination of her parental rights.
Our conclusion that the records were entered properly in evidence is further supported by the position the mother expressed in her proposed findings of fact, namely that she does not oppose the admission of the records.
b. The mother's mental health and current unfitness. The mother challenges the judge's finding that her mental health issues negatively impact her ability to parent. See Adoption of Frederick, 405 Mass. 1, 9 (1989) ('Mental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs '). The mother asserts that her frequent hospitalizations during the pendency of the proceedings were triggered by the grief she experienced when her children were removed from her custody and were not due to any ongoing mental illness. She therefore contends that the judge erred in relying upon those hospitalizations, including the suicidal behavior that led to in-patient treatment, to conclude that she is currently unfit.
The record, however, belies the mother's assertion and establishes that the mother has a history of psychiatric illness that predates the removal of her children in 2008. While we do not minimize the emotional trauma that the mother claims to have experienced when these proceedings commenced, the judge's finding that the mother's mental health was and will continue to be an impediment to her ability to care for Kendra is unassailable.
The record shows that the mother neglected to maintain a safe environment for Kendra. See Adoption of Olivia, 53 Mass. App. Ct. 670, 677 (2002) (noting that a child has a 'right[] to a stable and safe environment'). Although the mother reported that Kendra was sexually abused by her brother, she did nothing to prevent further abuse. Kendra was exposed to domestic violence and supervision by multiple inappropriate caregivers. Kendra observed her mother and aunt under the influence of alcohol and other members of the household smoking marijuana. Kendra regularly attended school with marker on her face, which she stated was drawn on by her mother and brothers. When Kendra was placed in foster care at the age of five, she did not know how to use toilet paper.
Kendra told the social worker that after her mother and aunt drink 'big bottles of beer,' which makes them 'walk and act funny,' they drive with the children to the store to buy more beer.
At trial, the mother's recovery specialist testified that the mother abused alcohol and drugs to self-medicate and to help her 'manage' and 'cope' with her anxiety and depression, two of the mental illnesses that led to her multiple hospitalizations. Tr. II-48-49. The judge was thus warranted in concluding that the mother would require further care for her mental illness and substance abuse and that Kendra would be subject to potentially inappropriate custody arrangements if the mother needed in-patient treatment in the future.
Furthermore, it matters not that the mother's neglect of Kendra was directly caused by her mental illness. 'Although mental illness is a factor in determining whether to remove a child from a parent's custody, a child who is in danger of neglect or abuse can be removed even if a parent's mental illness is not the operative reason for the child's abuse or neglect.' Care & Protection of Lillian, 445 Mass. 333, 340 n.14 (2005). Here, after considering the mother's '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 judge appropriately determined that the mother's mental illness and substance abuse impacted her ability to parent Kendra.
c. Weight of the Evidence. The mother next contends that the judge should have placed more weight on testimony provided by her recovery specialist and her therapist at Noble Hospital, both of whom testified that she is stable and that the children should be returned to her. However, the mother's argument 'simply reflect[s] dissatisfaction with the judge's 'weighing of the evidence and [her] credibility determinations." Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 104 (1999), quoting from Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
With respect to credibility and weight of the evidence, '[w]e review the judge's findings with substantial deference.' Adoption of Nancy, 443 Mass. 512, 515 (2005). Here, we conclude that the judge did not err in not relying on this testimony as neither witness had interacted with the children or observed the mother with them, nor had the mother disclosed her history with the department to either of them.
Furthermore, contrary to the mother's assertion, the judge did not ignore favorable evidence. Instead she found that '[d]espite some positive advances in Mother's attitude toward the Department and appropriateness during visits with the children, this Court cannot find that there has been a substantial change in circumstances so as to find Mother currently fit.' We perceive no error in the judge's weighing of the evidence.
This conclusion obviates the need to address the father's argument that the judge erred in terminating his parental rights because the mother is fit to parent Kendra and he is able to support the mother.
d. Postadoption visitation for the father. The judge limited the father's postadoption contact with Kendra to letters and pictures and declined to order visitation on the grounds that (1) the father had no relationship with Kendra until she was five years old; (2) the father missed four of his monthly visits with Kendra during the pendency of the petition; (3) prior to trial, the father had not seen Kendra for three months; and (4) when the father was with Kendra, he had difficulty communicating with her, because, as he explained, 'she is a girl.' Given these findings, which the father does not dispute, we have no trouble concluding that the judge did not abuse her discretion by denying the father's request for postadoption visitation. See Adoption of Vito, 431 Mass. 550, 563 (2000) ('Where, as here, the child has formed strong, nurturing bonds with his preadoptive family, and there is little or no evidence of a significant, existing bond with the biological parent, judicial exercise of equitable power to require postadoption contact would usually be unwarranted').
Decree affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),