Opinion
16-P-1330
06-16-2017
ADOPTION OF JENNY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decision by a judge of the Juvenile Court, which found her unfit to parent the subject child and terminated her parental rights. Specifically, the mother contends that the trial judge's findings do not support his conclusion of parental unfitness, and that the termination of the mother's parental rights was not in the child's best interests. We affirm.
The father has not appealed from the termination of his parental rights.
Background. After trial, the judge issued 724 individual findings of fact, and an additional 121 findings after a subsequent hearing. The mother does not contend that any of these findings of fact lack support in the evidence that was before the judge. Here, we summarize and relate only those facts pertinent to the mother's claims, reserving certain facts for further discussion below.
1. The mother. The mother was born in Florida and lived in Honduras until her early adult years. She moved to Massachusetts sometime in 2004. She primarily speaks Spanish and has a limited understanding of English. She has been married once previously but is now divorced. She currently resides in Somerville.
The mother has been diagnosed with a number of mental health problems, including major depressive disorder, borderline personality disorder, and posttraumatic stress disorder. She was hospitalized at least three times in relation to these conditions. At least twice, the hospitalizations occurred after the mother had undergone a period of stress.
In 2012, the mother alleged that she was "locked in a basement" and that the child's foster parents were trying to kill the child; however, the hospital's admission notes stated that "[i]t is possible that [the mother's] distress and degree of delusion is worsening, possibly in relation to the approaching date at which her daughter may become available for adoption." In 2014, the mother was hospitalized to undergo a competency evaluation prior to a trial for criminal charges related to incidents with the father, and made similar claims about being kidnapped and raped before her hospitalization.
The mother also has a history of relationships involving severe conflict, including domestic violence, with the people in her life. She has had at least five restraining orders issued against her, two of which were still in effect at the time of the trial. Several of these restraining orders were obtained by persons who the mother was initially friends with, until the friendships soured. One such incident occurred when the mother and a friend attempted to follow the father after he left the mother's apartment. The mother brought the child, who was seven months old at the time, in the friend's car without a car seat. A physical fight ensued between the mother and the friend, in the child's presence, until the mother took the child and exited the car. See note 4, supra.
The mother's friendship with a former roommate deteriorated when the mother accused her of wanting to buy the child from the mother and sell the child. A physical altercation later occurred in the friend's car that led to criminal charges against the mother.
2. The child. The child was born in 2010. Shortly after her birth, the child began to have seizures. She was initially diagnosed with a seizure disorder and prescribed medication. When the child was approximately two years old, she was diagnosed with nephrotic syndrome, which is a chronic kidney condition characterized by relapse and remission, and requires constant monitoring. Left untreated, nephrotic syndrome can cause severe harm to the kidneys and can, in certain cases, become fatal. Caring for a child with nephrotic syndrome requires close attention to her symptoms, as well as "dipstick" testing of urine to monitor protein levels. The dipstick testing must be carefully done and charted to ensure accurate monitoring of the child's condition. If a caregiver misses signs of relapse, it will take longer to achieve remission, and could require a hospital stay. Thus, a caregiver needs to be vigilant to any signs of illness, be able to administer medications correctly, and be able to schedule multiple medical appointments with medical professionals.
3. Involvement of Department of Children and Families (DCF). There have been approximately sixteen G. L. c. 119, § 51A, reports (51A reports) filed since 2010 with respect to the mother and the child, twelve of which were screened-in by DCF. Two of the 51A reports were filed in response to the incident detailed above, when the mother brought the child into a car without a proper car seat and fought with the driver. Most of the remaining reports were filed either as a result of reports of loud arguing between the mother and the father at the mother's apartment, or in response to the mother calling the police or 911 in relation to the child's medical condition.
Two 51A reports were also filed in response to an incident that occurred in April, 2011. An ambulance and paramedics were dispatched to the mother's apartment in response to the mother's 911 call that the child was not breathing. Upon arriving, a paramedic observed the child with blood on her face and shirt, and exhibiting what the paramedic believed to be postseizure symptoms. The mother was very angry, yelling at the paramedics and refusing to allow them to examine the child. The mother continued to yell and swear at the paramedics as she accompanied the child into the ambulance. During the ambulance ride, the mother held the child on her lap in order to comfort her, rather than having the child restrained. The mother continued to argue with one of the paramedics, apparently over the decision to transport the child to Massachusetts General Hospital in Boston instead of a hospital in Everett. During the ride, the mother did not have a firm hold on the child due to her constant turning around to yell at the paramedic, and the other paramedic had to repeatedly ask the mother to pay attention to the child. At one point the mother became upset and "tossed" the child away from her, forcing the paramedic to catch her before she hit the floor or any equipment. As a result of this incident, the mother was later arrested and charged with assault and battery on the child.
The child has been removed from the mother's care by DCF three times: the first time in May, 2010; the second time in March, 2011; and the third time in April, 2011, after the ambulance incident. The child has remained in DCF custody since April, 2011, and first lived with a foster parent before being placed with the preadoptive parents.
Discussion. We review the decision of the trial judge to determine whether there was any abuse of discretion or error of law. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). We also review findings of fact under the familiar "clearly erroneous" standard. See Adoption of Adam, 23 Mass. App. Ct. 922, 924 (1986). In doing so, we grant substantial deference to the judge's decision, because a "judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment [regarding fitness]." Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).
1. Unfitness. "The interest of parents in their relationship with their children is fundamental, and constitutionally protected." Petition of the Dept. of Public Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981) (Department of Pub. Welfare ). A State's intervention into a family is only justified if the parents "have grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975) (New England Home ).
"[T]he term ‘unfitness' signifies something more than a standard by which we measure the limits of acceptable parental conduct"; it is a standard that we use "to measure the circumstances within a family as [those circumstances] affect the child's welfare." Department of Pub. Welfare, supra at 589. It requires careful consideration, reflecting the unique facts present in each case, of the capacity of the parents to care for the child. See Freeman v. Chaplic, 388 Mass. 398, 404-405 (1983). DCF has the burden of proving parental unfitness by clear and convincing evidence. Adoption of Lorna, 46 Mass. App. Ct. 134, 139 (1999).
Clear and convincing evidence is evidence that is "strong, positive and free from doubt." Stone v. Essex County Newspapers, 367 Mass. 849, 871 (1975) (quotation omitted).
The welfare of the child is the most important consideration when determining parental fitness. Department of Pub. Welfare, supra. "[T]he critical question is whether the [biological] parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576 (1980). The parental unfitness test and the best interests of the child test are not mutually exclusive, but rather "reflect different degrees of emphasis on the same factors." New England Home, supra at 641.
"A mental disorder is relevant where ‘it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs.’ " Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005), quoting from Adoption of Frederick, 405 Mass. 1, 9 (1989). Consideration of a parent's mental condition is also a statutory factor in termination cases. See G. L. c. 210, § 3(c )(xii). A parent's mental illness may support a finding of unfitness when there is evidence that the mental illness interferes with the parent's ability to provide care for the child. See Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 701 (1984) ; Adoption of Eduardo, 57 Mass. App. Ct. 278, 282-283 (2003).
The mother maintains that the judge's findings of fact do not support his determination that she is unfit, and that the judge's determination that her mental illness created a significant risk of harm to the child was not sufficient to support a determination of unfitness. Specifically, the judge found that "[t]here is no dispute that [the mother] suffers from a serious, long-standing mental disorder" that "interferes with her ability to keep [the child] safe and to work with professionals who provide necessary services to [the child]." He found that uncontrolled, the mother's mental illness led to "impulsive, unnecessary confrontations, including confrontations with persons who are involved in caring for [the child] or who respond to requests for assistance, such as her DCF caseworkers, emergency medical technicians, police officers, and medical providers." Specifically, the judge concluded that the mother's mental illness and the attendant confrontations led to a serious risk of harm to the child on two occasions: the 2010 incident where the child was placed in a car without a proper car seat and was present when the mother engaged in a physical confrontation with the driver, and the 2011 ambulance ride where the mother failed to pay proper attention to the child, failed to securely hold the child in her lap, and "either recklessly or intentionally caused [the child] to be tossed away from her."
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment; nor is it a determination that the mother does not love the child. The question for the judge 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 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
The judge also determined that the mother's mental illness "caused her to have grave problems in her personal life." These problems included "highly dysfunctional" personal relationships, multiple restraining orders filed against her, multiple arrests and incarcerations, and multiple hospital stays. The judge initially believed that with proper diagnosis and treatment, the mother's mental condition would improve to a point where she would be able to effectively parent the child. However, after being treated for nearly a year, the judge found that despite some improvement, the mother continued to exhibit the same tendencies as she had before her treatment changed. This led the judge to conclude that the mother's mental illness caused her to be unfit and unable to care for the child. We discern no error in this conclusion.
Contrary to the mother's assertions, the record is replete with findings that support the judge's unfitness determination. The judge's findings are detailed, thorough, and show that he gave the case his close attention. See Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). The mother's argument that the judge's findings are insufficient to support his conclusions is belied by the record and is largely based on the fact that the mother weighs the judge's findings differently than the judge did. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3 (2003), quoting from Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985). The judge is not required to view the evidence from the mother's perspective. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).
Indeed, the judge is to be commended not only for his effort in producing the lengthy and detailed decisions, which included some 845 findings of fact and extensive rulings of law, but also for his willingness to provide the mother with additional time to correct her issues and an additional opportunity to be heard prior to his ultimate determination that the mother is unfit.
Nor it is erroneous, as the mother contends, for the judge to find that she was generally able to meet the child's medical needs while also concluding that she was unable to provide proper care for the child when her mental condition deteriorated. The record demonstrates that the mother, while able to provide adequate care for the child during stress-free periods, would quickly deteriorate in stressful situations, and it was then that the judge found the child was at the greatest risk of harm. This finding is supported by the evidence. In addition, the child's nephrotic syndrome was diagnosed after her removal from the mother's care, and the judge found that the mother was not organized or attentive enough to manage the child's medical condition without significant disruption to the child's life.
2. Termination. After a finding of unfitness, a "judge must determine 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 Nancy, 443 Mass. 512, 515 (2005). In order to dispense with a parent's consent to adoption, the unfitness element must be so probative and persuasive that it can serve as a predicate for finding that the unfitness will continue undiminished into the future, affecting the welfare of the child. See Adoption of Carlos, 413 Mass. 339, 350 (1992). While consideration of the reasonable likelihood that a parent's unfitness at the time of trial may only be temporary is appropriate, such a prediction must rely "upon credible evidence rather than mere hypothesis or faint hope." Adoption of Serge, 52 Mass. App. Ct. 1, 7 (2001) (quotation omitted). See Adoption of Carlos, supra.
As noted above, the judge found that the evidence presented during the original trial clearly and convincingly supported the determination that the mother was currently unfit. At the subsequent hearing, the judge found that despite a revised diagnosis and further treatment, the mother "continues to struggle unsuccessfully to control her mental disorder." The judge noted the similarities between the mother's 2012 psychiatric hospitalization and her most recent hospitalization in 2014, and concluded that "despite ongoing treatment [the mother] has not stabilized to the point that [the child] safely may be returned to her care and custody." Based on this finding, the judge determined that the mother remains unfit to care for the child and that her unfitness is likely to continue indefinitely into the future. There was no error in the judge's conclusions.
In this case, the record contains numerous findings in which the mother's mental illness presented a substantial risk of harm to the child, especially when the mother was under severe stress. The supplemental findings of fact demonstrate clearly and convincingly that that risk has not abated despite the mother's further treatment. In addition, the judge noted in his findings that the preadoptive parents have managed the child's medical condition well enough to the point where her condition is monitored largely via electronic mail messages with the child's doctor. The judge found that the mother was not capable of such organization and management, which risked disruption to the child's life, as poor management of her condition would lead to frequent medical appointments, emergency room visits, and hospitalizations. It has now been more than six years since the child was placed in DCF custody. At some point, the judge must say "enough," and act in the best interests of the child. Adoption of Carlos, supra at 242. See Adoption of Ilona, 459 Mass. 53, 60 (2011) ("Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period"). Therefore, there was no error in the termination of the mother's parental rights.
In a footnote to her brief, the child asks us to remand this matter in order for the judge's visitation order to be reviewed, pursuant to the adoptive parents' motion to intervene. As no appeal was taken from the denial of that motion, the issue is not properly before us, and we make no determination on it here. To the extent that the child and the adoptive parents take issue with the judge's visitation order, that matter is best revisited in the Juvenile Court in the future.
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Decree affirmed.