Opinion
19-P-1393
07-22-2020
CARE AND PROTECTION OF PAXTON.
NOTICE: 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
In June 2013, the Department of Children and Families (department) filed a petition alleging that the child, born in July 2003, was in need of care and protection. See G. L. c. 119, §§ 24 and 26. In 2015, the mother stipulated that the child was in need of care and protection. In 2017, the mother sought review and redetermination of that adjudication, pursuant to G. L. c. 119, § 26 (c). A Juvenile Court judge conducted a permanency hearing over the course of seven nonconsecutive days between July and November of 2018. The judge heard testimony from the child, the mother, a department social worker, one of the child's teachers, and a therapist for the mother. On December 28, 2019, an order entered (1) adjudicating the child in need of care and protection, (2) finding the mother unfit to parent the child, and (3) committing the child to the department's permanent custody. The mother appeals, claiming that the judge's finding of unfitness is not supported by clear and convincing evidence, and that the department failed to make reasonable efforts to reunite her with the child. For the reasons set forth below, we affirm.
The judge also found the child's father unfit. The father did not participate in the proceedings and is not a party to this appeal.
Background. In his consideration of the testimony and nearly 1,500 pages of exhibits, the judge made 326 findings of fact and ten conclusions of law that "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 findings, using female pronouns to refer to the child, as did the judge, solely in order "to accurately reflect the evidence as it was presented, though this may not accurately reflect the child's current gender identity."
The child apparently identified as female until after testifying on the third day of trial, which was in July 2018. In October 2018, on the sixth day of trial, the social worker testified that the child had disclosed identifying as a transgender male. The judge was sensitive to this development but also recognized that the child had not testified to that effect, and that neither the child nor the child's attorney had asked the judge to use male pronouns.
The child was nine years old when she was removed from the mother's custody. Social workers from the department had arrived at the two-bedroom summer sublet apartment the mother and child were sharing with two graduate students to find the mother and child living in filth. The mother and child appeared dirty and smelled as if they had not bathed. By this point in the child's life, the mother and child had lived in at least twenty-eight different homes, apartments, shelters, hotels, or other locations, in five different States and India. Child service agencies had been involved with the mother and child in at least two of those States. Most of those cases were closed after the family moved and could not be located by the agencies. The child had not received regular medical care and was not immunized; her first eye exam, performed after she was removed, revealed that she is legally blind in one eye. The mother had been aware of the child's vision impairment but took no action. At trial, the child described her unstable childhood as "real traumatizing, real all over the place." "I, half the time, didn't know where we were going, didn't know what we would eat. Didn't know where we would sleep. Didn't know if I would have clothes for the next day, even. If I would get a shower in."
California, Massachusetts, Nevada, New York, and Washington.
Since she was four years old, the child had begged to go to school. The mother refused to enroll the child, telling her that at a school she would be bullied and overmedicated. The mother also told the child she was designing a homeschool for the child to attend, which would be called "[Paxton] School" (homeschool). The mother had a high school diploma and completed some college classes, but did not have a college degree. She was still in the process of designing the homeschool at the time of trial in 2018 -- five years after the child was removed and ten years after the child became eligible to enroll in kindergarten. The mother maintained that she had homeschooled the child pursuant to an approved plan dated 2012, signed by the Chicopee Public School system, and which does not include a curriculum. In 2013, when the child was removed, the mother falsely represented that the child was academically up-to-date. The child, however, reported "not being educated" by the mother, and, at age nine, was spelling at a kindergarten level and doing math at a prekindergarten level. The child could not spell her own middle name, did not know what a fraction was, and did not know right from left. These deficiencies were discussed with the mother, along with the child's lack of hygiene, lack of social skills, and desire to go to school. The mother's response was, "I want the focus taken off of what [the child] wants and put on what I want. I want help with curriculum for [homeschooling the child]."
By the end of her first year at public school, the child had overcome her academic deficiencies and was at the same level as her fifth grade peers. The child was living in a guardianship with the maternal grandmother (grandmother), who was supervising visits with the mother. The grandmother reported that the child was sad and angry following visits with the mother. In June 2014, the child asked that telephone contact with the mother be limited to one per week because the mother was calling too frequently. The child also expressed a preference not to visit with the mother, but stated that she would because she "understood that visits were required." Visits were moved to a YWCA and took place on an inconsistent basis. When visits did occur, the mother did not respect the child's boundaries. For example, the mother would give the child long hugs that made her visibly uncomfortable. When the child's discomfort was brought to the mother's attention, the mother replied, "That is my child and I am the mother and I'm sorry but no one is going to tell me to stop touching my child." Visits at the YWCA stopped in or before July 2015, when the child was removed from the grandmother's custody and placed in foster care.
In July 2015, the mother stipulated to her unfitness. Thereafter, the child stopped taking telephone calls from the mother because she was calling the foster home too often and the child did not like speaking with her. Out of a sense of obligation, the child continued to visit with the mother and eventually agreed to unsupervised visits because she "felt bad" for the mother. An overnight visit in December 2017 ended in calamity when the child had an anxiety attack triggered by the level of filth in the mother's apartment. After recovering from the attack, without being comforted by the mother, the child cleaned five bags of trash out of the mother's apartment. The mother did not comply with the parameters for taking the child out for an unsupervised day visit in January 2018; the mother picked the child up early from the foster home, dropped her off late, and tried to take her to church despite specifically being advised in advance that she did not want to go to church. The child last visited with the mother in February 2018.
By February 2018, the child was excelling in school and had become involved in the school's choir and theater programs. The child was preparing for her role in a school play, which she did not want the mother to attend. The mother was told she would need the department's permission to attend. Without permission, the mother came to the play and sat in the front row. After the play ended, the mother approached the child's friends and chorus teacher to ask where the child was. The child had spotted the mother during the play and ran to the teacher's classroom when it was over because she did not want to see the mother.
One month later, the department informed the mother that the child's school choir had been invited to perform in Washington, D.C. The social worker did not tell the mother where or when the performances would take place. The mother obtained that information from the child's school and showed up at one of the performances unannounced. The child saw the mother in the audience -- front and center holding a camera -- and ran off the stage crying. The child spent the rest of the performance on the school's bus. She missed the final song and group picture. After the performance, the mother approached the child's teacher and started to follow her to the bus. When the teacher told the mother to stop, the mother began to cry and said, "I won't be bullied." At trial, the child testified that it felt like the mother "kept ruining all the important things that were going on" in her life. After this incident, the child blocked the mother from all social media accounts and encouraged her friends to do the same.
The mother had contacted one of the child's friends through social media "because she was upset about some of the behavior that happened" and wanted to "discuss it" with the friend. The mother felt there "was a lot of aggressive energy," and stated that she was "concerned about bullying and disrespect she was getting from [the child] and her friends."
In February 2017, the mother sought review and redetermination of her stipulation of unfitness, citing a substantial change in circumstances in that she was engaged in therapy and had stable housing. The mother had in fact engaged in some individual therapy; however, her attendance was sporadic and the mother was not forthcoming with her providers. The mother testified at trial that she was currently working with her therapist on learning "to live not in crisis-mode." The mother and child had previously engaged in family therapy. However, that was stopped at the child's request because, per the therapist, the mother had difficulty hearing the child's wants and desires. The child described the sessions as "my mom talking a lot, my therapist talking not enough and me talking not at all." The child ended family therapy because it was "traumatizing" and she found it "really hard to say something and have [the mother] genuinely listen and process it." When the child "first came out to Mother as a lesbian, Mother made a hurtful remark about [the child's] 'demons' being taken from her eventually." The mother expressed her belief that a person has control over their sexual orientation and testified that she would "hope to turn [the child] away from that orientation" if the child was returned to her care by offering the child "a Christian education" at the homeschool.
By the time of trial in 2018, the mother had resided in the same apartment in Palmer for over two years. Over that time period, the Palmer police department logged at least ninety calls or responses involving the mother, often at her apartment. Many responses involved violations of restraining orders the mother had obtained against a man with whom she maintained a relationship for nearly three years, even though she claimed that the man was physically and verbally abusive and that he had drugged and raped her. In June 2018, the month before trial began, the mother reported to police that a different man was threatening her. The mother is the subject of three restraining orders, taken out (1) in 2011, protecting the grandmother; (2) in 2014, protecting an acquaintance whose credit card the mother had used without permission; and (3) in March of 2018, protecting the mother's neighbor.
The mother lived in Amherst until 2015. That police department logged more than fifty calls or responses involving the mother between 2014 and 2018.
The mother is eager for the child to return to her care and testified that she would "absolutely" homeschool the child if that were to happen. The child testified that she does not want to be homeschooled and does not want to live with the mother, because she "doesn't feel like my mom accepts me" and doesn't "feel like I could grow and become the person that I would like to be." The child also did not think the mother was "emotionally or physically stable enough to take care of me." The child did not feel like she "could deal with both our stuff" if she lived with the mother, and she did not want to visit or have any contact with the mother at the time of trial. The judge found the child, then fifteen years old, to be "thoughtful and articulate," with "a clear understanding of the circumstances of the family's involvement with the [d]epartment and the Juvenile Court."
The child was diagnosed with posttraumatic stress disorder (PTSD) in September 2018, after she had testified but while the trial was still ongoing. In October, the child experienced a crisis involving suicidal thoughts and behaviors. The social worker testified that the child "was going to be hospitalized for a period of time to help her with her extreme anxiety and triggers," which "include issues around Mother, including the comment she made about [the child]'s 'demons' and the overwhelming trash in Mother's home." The child disclosed to the social worker that the child was a transgender male, but the child did not tell the mother because of what the judge found to be "well founded fears that Mother would react adversely to such information."
The judge recognized that the mother had engaged in some services on her family action plan. However, he found, those services "have obviously not resulted in any meaningful change in Mother's ability to parent [the child]" because the mother "continues to prioritize her own wants and desires over [the child]'s educational and emotional needs." The judge further found that the mother has a continuing (1) "inability to hear [the child]'s needs and respect [the child]'s identity, wishes, and boundaries," (2) "inability to maintain a clean home," and (3) fixation on the homeschool, which "seem[s] to blind [the mother] to the needs of the child after whom she has named the program." Ultimately, the judge found that the department had satisfied its burden of establishing that the mother is unfit to parent the child and that it is in the child's best interests to be committed to the department's permanent custody.
The child never expressed an interest in being adopted.
Standards of review. "In care and protection cases, the judge's subsidiary findings must be proved by a preponderance of the evidence and will only be disturbed if clearly erroneous." Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). "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).
In this case, the question presented by the proceeding for review and redetermination was whether the department had satisfied its burden of proving, "by clear and convincing evidence, that [the mother was] currently unfit to further the best interests of [the child] and, therefore, the child is in need of care and protection" (quotation omitted). Care & Protection of Vieri, 92 Mass. App. Ct. 402, 404-405 (2017). "Clear and convincing evidence is evidence that is 'strong, positive and free from doubt.'" Adoption of Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018), quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975). In reviewing a judge's determination that the department had sustained its burden of proof, we are mindful that "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. at 799.
Over the department's objection, the judge found, based on a good faith proffer from the mother's attorney, that the mother had met her initial burden of showing "that there has been an important change or changes."
Discussion. The mother claims that the child's removal violated G. L. c. 119, § 1, in that it occurred without the department having provided the mother with services including housing, therapy, and a parent aide. The mother also claims that the judge erred in finding that the mother's homeschooling was a failure, and that the judge's decision was based on stale evidence. None of these claims are persuasive.
"Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Care & Protection of Vick, 89 Mass. App. Ct. at 706. The child was fifteen years old at the time of trial and did not feel that the mother understood or accepted the child for who the child was. The mother insisted on homeschooling the child even though she had no college degree, or other teaching credentials, and did not teach the child how to spell her own middle name, what a fraction was, or right from left. "When we add to this the extraordinary progress that [the child] made when she was removed from her mother's care" and enrolled in public school, Adoption of Ilona, 459 Mass. 53, 62 (2011), "[w]e see no basis for disturbing the judge's view" that the mother's homeschooling efforts were wholly unsuccessful. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). This was not a case where the judge simply disapproved of the mother's lifestyle. See id. at 887 (parents' embrace of ideologies or life-styles at odds with average, by itself, not basis for depriving them of custody). The child testified that she was "adversely affect[ed]" by the mother's homeschooling, id.; when she finally enrolled in the fifth grade she discovered that she was years behind her peers.
The mother's chronic inability to keep a clean home was a proper consideration in this case where that inability triggered extreme anxiety for the child. See Care & Protection of Vick, 89 Mass. App. Ct. at 706. The judge was not required to return the child to the mother's care in the hope that the mother's ability to maintain a clean home had improved to the point where the child would not experience further anxiety attacks. See Adoption of Inez, 428 Mass. 717, 721 (1999); Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (prior history has prognostic value). The mother's failure for nine years to keep a stable home environment for the child was "traumatizing" to the child, and led, among other factors, to the child's diagnosis of PTSD. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).
By the time of trial, the mother had lived in the same apartment for nearly three years. Therefore, it is not clear to us why the department was required to provide housing assistance.
Contrary to the mother's claim, the department did provide individual and family therapy. Family therapy stopped at the request of the child (rather than the mother or the therapist); the child reported that it was further traumatizing her. The mother's actions in providing false reports to individual therapy providers, and missing appointments, cannot be placed at the doorstep of the department. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997) (department's duty to use reasonable efforts to preserve family ties "was contingent upon the mother's fulfillment of her own parental responsibilities"). The judge was entitled to consider the mother's refusal or inability to participate meaningfully in services designed to strengthen the family unit. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005); Adoption of Mario, supra.
The mother's claim that the finding of unfitness is based on stale evidence is belied by the record, which shows regular police responses to the mother's actions as recently as one month before trial commenced. Until less than six months before trial, the mother continued to be involved with men whom she claimed were abusive or threatening. The mother remained fixated on the homeschool at trial. The mother also testified that she intended to steer the child away from the child's sexual orientation by giving the child a "Christian education" -- something that the child has repeatedly and adamantly rejected. The mother believed "demons" were responsible for the child's sexual orientation, a comment that echoed in the child's mind while apparently struggling with suicidal thoughts during the course of the trial. The mother attended the child's artistic performances without permission and against the child's expressed wishes, diminishing those important events for the child. In short, as the judge found, the mother is unable to hear or understand the child's needs or to separate the child's needs from her own. See Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002).
At the time of the mother's testimony, the child had not yet revealed identifying as a transgender male.
The judge was entitled to consider the child's thoughtfully articulated wishes not to live or even have contact with the mother, see Adoption of Nancy, 443 Mass. 512, 518 (2005), and to give the child's wishes the evidentiary weight he deemed appropriate. See Custody of Eleanor, 414 Mass. at 799. The judge's findings are amply supported by the record, and, in our view, provide overwhelming evidence that, at the time of trial, "the mother did not have the ability to address her own shortcomings as a parent or to provide much-needed parental support and guidance to [the child], whose . . . emotional needs [became] increasingly evident" as the trial progressed. Care & Protection of Vieri, 92 Mass. App. Ct. at 405. A parent aide could not have changed this outcome. "[T]he mother's inability to provide for [the child]'s over-all welfare and best interests was the central determination of her unfitness." Care & Protection of Vick, 89 Mass. App. Ct. at 709.
Judgment affirmed.
By the Court (Singh, Wendlandt & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 22, 2020.