Opinion
19-P-310
03-03-2020
ADOPTION OF XANDRIA (and two companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from Juvenile Court decrees terminating her parental rights and dispensing with the need for her consent to the adoption of twins Xandria and Amy, born in 2009, and Tom, born in 2015. The mother challenges the sufficiency of the evidence of her unfitness, claims that termination is not in the twins' best interests, and argues error in the judge's decision not to order posttermination and postadoption contact between the mother and Tom. Xandria does not appeal from the decree terminating the mother's parental rights as to her, but argues that the case must be remanded for reconsideration of the adoption plan prepared by the Department of Children and Families (department), which she claims is not in her best interests. We affirm.
The twins' father (father 1) has not appealed from the decrees terminating his parental rights. Tom's father (father 2) stipulated to his unfitness at the commencement of trial and is not a party to this appeal.
Background. Following a five-day trial at which the mother testified, the judge made 235 findings of fact and thirty-five conclusions of law which "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). We summarize the judge's findings, reserving some facts for our discussion of the issues.
The department became involved with the mother and the twins in 2011, after the mother reportedly ingested an entire bottle of Tylenol, five Excedrin pills, and alcohol while caring for Xandria and Amy. In 2012, the mother was hospitalized for engaging in self-injurious behavior. In June, 2013, the department received a G. L. c. 119, § 51A, report (51A report) alleging neglect of the twins by the mother because the mother was not taking her medication as prescribed, she was missing appointments with providers, and her sleep patterns were off so that she slept while the three year old twins were awake, leading to a lack of supervision. Following an investigation, the department was "concerned," and provided services to the mother. By September 2013, the mother had not identified a primary care physician for her daughters, and she had been terminated as a client by mental health providers for her failure to keep appointments. The mother's public benefits and health insurance also were terminated, because she failed to respond to her mail.
In March 2014, a 51A report was filed alleging neglect of Xandria and Amy by the mother because they were two years overdue for their physical exams. When the mother eventually brought the twins to the pediatrician for their exams, there were no concerns about their health. There also had been occasions when the mother was not home when the children were returned from preschool. In April 2014, there were allegations of neglect of the twins by the mother after she left them alone in the car at a shopping plaza. In September 2014, Xandria and Amy began part-day kindergarten because the mother's delay in enrolling them resulted in there being no more full-day slots available. The twins then repeated kindergarten because they missed sixty days of school in the 2014-2015 academic year. The twins were enrolled in full-day kindergarten for the 2015-2016 academic year; by October, 2015, they had missed eight days of school.
A police officer filed this report and would not allow the mother to drive home because her license to operate was suspended. The mother and twins were driven home in a police cruiser and, when Amy mentioned to the department worker who was investigating the April 2014 allegations of neglect that she had ridden in a police car before, the mother acknowledged having left the children alone in the car on another occasion.
Tom was born in May 2015. On July 24, 2015, a 51A report was filed alleging neglect of Tom by the mother and father 2 because Tom had missed his two-month checkup. The mother stated that she had not taken Tom to the appointment due to a lack of insurance. Following an investigation, the department initiated services for the family. Tom was not seen for his two-month checkup until he was six months old.
On November 6, 2015, police responded to the mother's apartment at 11:30 P.M. , after a neighbor called to report "that she could observe through the window a male party physically beating a female party." The neighbor had heard screaming from the mother's apartment and gone outside, where she observed the six year old twins holding each other on the front porch. Xandria and Amy screamed that father 2 had a knife and was "hitting mommy." The neighbor could hear six month old Tom crying inside the house. Tom was still crying when the mother answered the door for the responding officer. The mother, who was nervous, shaking, and bleeding from the cheek, stated that she and father 2 had a verbal argument but "nothing was wrong." When the officer later told the mother that a 51A report would be filed, the mother became belligerent and swore at the officer while holding Tom in her arms.
The neighbor also observed a "gouge" on the side of one of the twins' faces, "and when asked what happened, the girl stated somebody hit her."
The mother's face was "fully made up" when a department emergency response worker arrived at the home at 2:30 A.M. on November 7, to investigate the 51A report. The mother denied that father 2 assaulted her and "explained that she had been married to a very abusive man in the past and that she taught her daughters that if anything bad ever happened to leave the home and go tell someone." The mother claimed that Xandria and Amy had misunderstood the situation when they did just that the evening before. Amy reported that she and Xandria left the house because they were scared.
The mother married father 1 in 2009, and separated from him in 2010. The mother was not divorced from father 1 at the time of trial. She testified that father 1 was verbally and emotionally abusive but not physically abusive.
In December 2015, a 51A report was filed alleging neglect of Tom by the mother and father 2 because Tom was behind in his pediatric appointments and the mother refused to meet with or return the calls of the parent aide who was helping her reinstate Tom's health insurance. In January 2016, Tom was visibly sick and behind in his vaccinations. A 51A report was filed on January 28, 2016, after the parent aide arrived at the family home to transport Tom to a scheduled medical appointment and no one answered the door. On February 3, the mother called the pediatrician's office and requested an appointment for Tom that same day. Thirty minutes before the scheduled appointment, the mother called to cancel it.
On February 10, 2016, the department filed a G. L. c. 119, § 24, petition alleging that all three children were in need of care and protection. The department was granted temporary custody of the children. Tom, who was visibly ill at the temporary custody hearing, was removed from the mother's care and placed with a foster parent who brought Tom to the emergency room, where he was diagnosed with bronchiolitis. The department allowed the twins to stay in the mother's home and implemented a service plan that required the mother, among other things, to provide for Xandria's and Amy's "general health, safety and welfare," and to engage in domestic violence services "to address concerns of domestic violence in her home and how this impacts her children."
Tom's foster parent then brought Tom to his new pediatrician, where he was diagnosed with a double ear infection and conjunctivitis. Nine month old Tom also received his four-month immunizations at the appointment.
On February 25, 2016, a 51A report was filed at 4 A.M. alleging neglect of Xandria and Amy by the mother and father 2. A neighbor had called 911 to report that father 2 "was out of control and had a knife." Father 2 was stabbing things on the table, yelling that he would "kill everyone," and stated that he had a gun. When the neighbor screamed for the children to run to her house, father 2 came toward the neighbor with the knife and cut her superficially. The officer who responded to the neighbor's 911 call observed holes in the walls of the mother's apartment, a broken bannister, and smashed picture frames. Father 2 was arrested and charged with assault and battery by means of a dangerous weapon and malicious destruction of property. Xandria and Amy were removed from the mother's care and placed in a foster home, and the mother obtained a restraining order against father 2.
Xandria later reported that the mother was holding her on February 25, when father 2 grabbed the mother by the neck. Xandria was scared and did not feel safe at home when father 2 was there. Amy reported that the mother and father 2 were fighting, father 2 was "smashing stuff," and Amy was scared because father 2 was threatening to stab the mother in the back with a knife. "[Amy] stated that her mother was holding her hand while trying to get away" from father 2, and that she did not feel safe at home when father 2 was there.
The mother denied seeing father 2 with a knife on February 25, or that anyone from the department ever discussed concerns about domestic violence with her. On March 8, 2016, the mother obtained a one-year extension of the restraining order against father 2. Tom received his six-month vaccinations in April 2016, when he was eleven months old, and finally was brought up to date medically.
The mother inconsistently engaged in services between February 2016, when the children were removed, and October 2017, when trial commenced. She took two domestic violence classes, but, when pressed at trial to identify one specific thing she learned from the classes, could only state that she now knows that a toxic relationship is different from a healthy one. The mother had not learned any strategies for dealing with an abuser. She failed to make herself available to the department on a consistent basis, and in August 2016, she nearly lost her housing because she failed to respond to telephone calls, to her mail, or to the door for representatives from the Weymouth Housing Authority. At one point, the mother owed the electric company over $5,000 for unpaid bills. The mother was terminated as a client from several therapists for failing to keep her appointments. When the mother did attend therapy, her treatment focused on daily crisis management and consistency in attendance, and not her underlying mental health problems or the deep-rooted issues that interfere with her daily functioning. Finally, although the mother's interactions with the children were consistently positive during supervised visits, the department had to cancel several visits (including one during the course of the trial) because the mother either failed to call to confirm them, called too late, or failed to arrive on time, as required by the department.
On January 24, 2017, police responded to the mother's residence after receiving a report that a man was swinging a baseball bat. After no one answered the front door, the police entered the apartment and found the mother hiding in the bathroom. The mother told them she was alone; however, the officers could see two sets of feet under the door. When the officers finally coaxed the mother to open the door, they observed father 2 inside the bathroom. The restraining order between the mother and father 2 was still in place. The mother denied that father 2 had assaulted her or that she was afraid of him, stated that she had invited him into her residence and they had both damaged items in the living room, and expressed her intent to go to court the next day to have the restraining order canceled. Later, when she was discussing the incident with her social worker, the mother stated that father 2 broke into the apartment, began breaking things, and became "physical" with her. On February 16, 2017, the department's goals for the children were changed from reunification to adoption.
Two months before trial, the mother explained to a social worker that her chronic inability to keep appointments was due to "chaos [always] happening in her life." Eight days before trial, the mother was arraigned on charges of strangulation or suffocation and assault and battery by means of a dangerous weapon. A person had accused the mother of beating and choking them for two and one-half hours after they accused the mother of stealing medication and $100 from their home. At trial, the mother testified that she had never had stability in her life. She variously attributed her inability to keep appointments to being affected by a murder that occurred near her apartment, a lack of access to transportation, "agoraphobia of some sort," being refused appointments because Tom's insurance "hadn't processed," a fear of being seen with bruises on her face, and being in shock as a result of the ongoing domestic violence she suffered at the hands of father 2. Father 2 was incarcerated at the time of trial, and he communicated that, upon release in May 2018, his plan was "to return to the mother's home."
At trial, the mother exercised her right against self-incrimination and declined to answer any questions relating to this incident.
Standard of review. A judge's first task in deciding whether to terminate parental rights is to determine whether there is clear and convincing evidence that the parent is unfit, and, if so, whether that unfitness is likely to be temporary. Adoption of Ilona, 459 Mass. 53, 59 (2011). If the judge concludes that the parent is unfit and there is no "credible evidence supporting a reasonable likelihood that the parent will become fit" in the near future, the judge then must decide "whether the child's best interests will be served by terminating the legal relation between parent and child." Id. "We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id. "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" (quotation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). A judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Discussion. 1. Unfitness. The mother argues that the judge relied on ten clearly erroneous findings to conclude that she is unfit. Having reviewed the entire record in this case, "[w]e see no basis for disturbing the judge's view of the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). The mother's claims of error in the findings relate to the judge's assessment of credibility and the weight of the evidence, "to which we accord substantial deference." Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002).
The judge's findings clearly and convincingly establish that the mother is currently unfit to parent her three children and likely to remain so. In the six years that the department has been involved with her, the mother has never been able to maintain participation in counseling programs designed to strengthen the family, or to manage financial affairs. Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). There is no dispute that the mother did not follow service plan tasks aimed at improving her fitness as a parent, or visitation schedules, Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006), and the mother has medically neglected all three children due to an "admitted and documented inability" to keep medical appointments. Adoption of Ramon, 41 Mass. App. Ct. 709, 715 (1996). The judge was entitled to conclude that the chaos which has prevented the mother from attending to her children's medical and educational needs, or participating in the services that would allow her to regain custody of her children, had not abated by the time of trial, where the mother was arrested the week before and charged with strangling and assaulting someone who accused the mother of stealing money and prescription medication. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra (failure to keep stable home environment and refusal to comply with service plan, visitation schedule, and counseling programs are relevant to determination of unfitness).
The judge's findings also demonstrate "a long and documented history of domestic violence leading to [the children]'s neglect," Adoption of Ramon, 41 Mass. App. Ct. at 718, which the mother had not addressed, despite her engagement in services. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (inability to demonstrate any benefit derived from services relevant to finding of unfitness). Although the abuse appears to have been directed only at the mother, the children "were no less victims from having witnessed [it]." Adoption of Elena, 446 Mass. 24, 32 (2006). See Custody of Vaughn, 422 Mass. 590, 599 (2005) (it is well documented that witnessing domestic violence has profound impact on children). The judge was not required to give the mother "an indefinite opportunity to reform," Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012), and was entitled to consider the prognostic value of evidence that the mother repeatedly allowed father 2 to return to her home after he had been violent with her. See Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979) ; Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). The judge did not need to wait for father 2 to return to the mother's home upon his release from incarceration and a disaster to occur before concluding that the children's welfare would be at risk should they be returned to the mother's care. See Adoption of Inez, 428 Mass. 717, 721 (1999).
Contrary to the mother's claim, the judge did consider "that the mother has made her best efforts to utilize some of the recommended services."
We see no support in the record for the mother's repeated assertions on appeal that she ended the relationship with father 2. The mother did not so testify. While there was evidence that there had been no contact between the mother and father 2 in the nine months before trial, and no incidents of domestic violence, the judge was entitled to conclude that this was because father 2 was incarcerated for assaulting the mother.
2. Termination. The issue facing the judge in the second part of the analysis was not whether the mother is a good one, or whether she loves the twins. It is clear that the mother loves her children. Rather, the question for the judge was whether the mother's parental shortcomings are "so bad as to place the [twins] at serious risk of peril from abuse, neglect, or other activity harmful to the[m]" (quotation omitted). Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008).
We confine our analysis to the twins because the mother does not claim error in the judge's conclusion that termination is in Tom's best interests.
Xandria and Amy have suffered a "distinctly grievous kind of harm" from experiencing repeated, severe episodes of domestic violence perpetrated against their mother by father 2. Custody of Vaughn, 422 Mass. at 595. While the mother appears to argue that the violence did not affect the twins because they were described as "calm" by the time the police arrived on November 6, 2015, the twins repeatedly stated that father 2's behavior scared them. There is no evidence that the mother appreciates the harm caused to the twins from her relationship with father 2, that she has taken any steps to address it, that she opposes father 2's plan to return to her home, or that she has any plan for protecting herself or the twins from future violence. For Xandria and Amy, these failures represent "the ultimate denial that this is a world of justice and restraint, where people have rights and are entitled to respect." Id. at 596.
The mother argues that termination is not in the twins' best interests because they share a significant bond with her. The judge ordered posttermination and postadoption visitation between the mother and the twins in recognition of the mother's strong bond with them, as well as "[t]he additional, but highly significant, value of a court order for posttermination or postadoption visitation (or both) in a case such as this." Adoption of Rico, 453 Mass. 749, 757 (2009). Weighing against evidence of the bond, however, was significant evidence that "chaos" characterized Xandria's and Amy's life with the mother. Despite being provided support by the department and periodically engaging in services over the course of six years, the mother was at no point "ready to resume full responsibility for her daughters, who were required, to their detriment, to remain in the limbo of foster care." Adoption of Paula, 420 Mass. 716, 730 (1995). Indeed, by the time of trial, both girls had begun exhibiting difficult behaviors in the foster home and at school "around the same time as visits [with the mother]." "Stability in the life of a child is important," Adoption of Willow, 433 Mass. 636, 647 (2001), and we cannot say that the judge abused her discretion when she concluded that "these children deserve permanence and stability, which will be eased by termination of their [mother]'s rights." Adoption of Nancy, 443 Mass. 512, 517 (2005).
Both the mother and Xandria argue that the judge erred in terminating the mother's parental rights to Xandria because the department's adoption plan for Xandria was not sufficiently developed and did not specify the type of adoptive parents or home environment best suited to meet Xandria's unique needs. See Adoption of Varik, 95 Mass. App. Ct. 762, 771 (2019) (adoption plan must be "sufficiently detailed to permit the judge to evaluate the type of adoptive parents and home environment proposed and consider whether the proposal is best suited to meet the specific needs of the child"). The judge made nineteen specific findings dedicated to the department's adoption plan for the twins, including particularized findings regarding Xandria's personality, behaviors, and needs. She found that Xandria's school has no major concerns regarding Xandria's educational success or behaviors, that Xandria does not receive special education services, that Xandria is engaged in individual therapy, and that Xandria is prescribed medication for her asthma. Unlike the children in Adoption of Lars, 46 Mass. App. Ct. 30, 31 (1998), who suffered from various severe behavioral, developmental, and emotional problems, there was no evidence that Xandria had any special medical, education, therapeutic, or other needs into which the mother had particular insight. At the time of trial, the department was investigating a placement for all three children in a home located in another State, as well as several relatives, both maternal and paternal, who expressed interest in taking either the twins or Tom, but not all three. If the children could not be placed with any of these potential families, the department intended to recruit the same adoptive family for the twins, and a separate family for Tom, using various adoptive resources which the department identified in the plan. Contrast Adoption of Varik, supra at 771 (adoption plan inadequate where it did not contain enough information for judge to assess various options that department was actively considering). We are persuaded that the judge's findings, "coupled with [her] analysis of visitation rights in conjunction with the proposed plans and [her] conclusion that those plans will serve the children's best interests, indicate that the requisite careful consideration was given the plans." Adoption of Lars, supra at 33.
Counsel for Xandria represents that Xandria's placements have disrupted since the decrees entered and argues that it is no longer in Xandria's best interests to be adopted by the same family as Amy because of acrimony between the sisters. She asks us to remand on the issue of termination so that the judge can consider these postdecree events. We conclude that remand is not necessary here, where the same judge who ordered entry of the decrees has been presiding over Xandria's ongoing permanency hearings pursuant to G. L. c. 119, § 29B. The judge is required to consult with Xandria "in an age-appropriate manner about the permanency plan developed for [her]," G. L. c. 119, § 29B (a ), and we are confident that her consultation will include any changing wishes for placement that Xandria has, as well as any postdecree information that Xandria would like to provide, such as an expert's clinical assessment. The judge was tasked with assessing Xandria's best interests at the time of trial, Adoption of Rico, 453 Mass. at 758, and "[m]any twists and turns arise in the lives of children who are the subject of these proceedings." Adoption of Willow, 433 Mass. at 647. Where a mechanism exists to address these "twists and turns," we decline to consider postdecree events that are outside the record on appeal. See Adoption of Rico, supra at 752 n.7 (record is confined to termination proceeding). In this regard, should the judge determine that Xandria is not in a sufficiently stable living situation, the judge is free to increase Xandria's visitation with the mother or otherwise consider the mother as a resource, provided, of course, that such contact is in Xandria's best interests.
3. Visitation with Tom. Finally, the mother, but not Tom, argues that the judge abused her discretion when she declined to order posttermination and postadoption contact between the mother and Tom. The judge found that Tom has been placed in the same foster home since he was removed at the age of nine months, that he is "extremely attached" to his foster mother, that the foster mother desires to adopt Tom, and that Tom "does not display feelings of a strong emotional attachment towards his mother when they visit." The mother does not challenge these findings. It is well-settled that a judicial order for postadoption contact may be warranted where the evidence readily points to significant, existing bonds between the child and a biological parent. Adoption of Vito, 431 Mass. 550, 563 (2000). However, "[w]here, 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 [is] unwarranted." Id. The judge left postadoption contact between Tom and the mother in the "sound discretion of the adoptive parent(s)," whom we presume will exercise that discretion in accordance with Tom's best interests. Adoption of Ilona, 459 Mass. at 64.
Decrees affirmed.