Opinion
11-P-1550
04-03-2012
ADOPTION OF KACY.
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
On November 24, 2010, a decree entered in the Juvenile Court terminating the mother's parental rights with respect to her daughter, Kacy. The judge's decision rested in large part on the mother's diagnosis with factitious disorder by proxy (FDP). On appeal, the mother claims that the judge committed error in issuing a decree without a clear or specific plan for the child's adoption. She also claims that the evidence offered was insufficient to prove parental unfitness, and that the judge erred in failing to order postadoption or posttermination visitation. After careful review of the record, we affirm the decree.
At trial, the father stipulated that he is unfit to father the child due to unavailability, and consented to the implementation of an alternative permanent plan. He is not a party to this appeal.
'Factitious disorder by proxy is also known as Munchausen syndrome by proxy. Stedman's Medical Dictionary 1906 (28th ed. 2006). The definition of Munchausen syndrome by proxy has not changed since Adoption of Keefe, 49 Mass. App. Ct. 818, 819 n.2 (2000), where we cited to the 26th edition of Stedman's Medical Dictionary. A person with FDP fabricates or exaggerates illnesses or physical ailments suffered by another person, typically the child of the person with FDP. In extreme cases, a parent with FDP may induce physical injury to the child, to support the assertion that the child is in need of medical treatment.' Adoption of Willamina, 71 Mass. App. Ct. 230, 231 n.3 (2008).
Background. The following facts are taken from the judge's findings, and are supported by the record. The mother was born in 1962, married in 1988, and had her first child, Eliot, in 1989. The couple divorced, and the ex-husband was granted custody of Eliot at the time of their separation. The mother has not seen him since his eighth birthday. The mother met the father in 1992, and gave birth to her second child, Fred, in 1994. The Department of Children and Families (department) first became involved with the family in 1996 as a result of a domestic violence incident between the mother and father. Through the department's involvement, custody of Fred was eventually transferred to the father in 2000. Kacy was born in September, 1998, and is the second child of the mother and father. She is the only subject of the present petition.
When she was an infant, the mother reported that Kacy had severe reflux, and daily experienced diarrhea and vomiting. The mother took her to Children's Hospital several times, but the hospital found no illness or injury, other than uncomplicated gastrointestinal reflux. While living at a shelter, the mother continually insisted that Kacy and Fred were sick, even though they appeared healthy. In 2001, the mother reported to her primary care doctor that Kacy was hyperactive, had trouble sleeping, and had violent tantrums. In 2002, the mother continued to report that Kacy suffered from severe psychological problems. Despite the mother's reports, a 2002 evaluation found that Kacy's cognitive and social behavior appeared normal.
Over the next several years, the same pattern continued. The mother repeatedly reported to health care professionals and school officials that Kacy was aggressive in the home, suffered from symptoms of bipolar disorder, had severe asthma, and digestive and skin disorders. Based on the mother's reports, Kacy was repeatedly prescribed medication for her asthma, reflux, and mental health conditions. Those medications included several mood-stabilizing and psychotropic medications, such as Concerta, Clonidine, Seroquel, Tenex, and Depakote. Kacy was seen numerous times by various psychiatrists and specialists, and hospitalized multiple times due to behavior issues. In each instance, Kacy's behavior, disposition, and physical health were at odds with the mother's reports, and several health care providers expressed concern that the mother could be fabricating her daughter's symptoms. During the hospitalizations, Kacy was weaned off several medications with no ill effects. In addition, the mother also informed Kacy of incorrect information about her father, causing Kacy to believe her father was dangerous.
The department filed the instant petition in response to reports filed by Cambridge Hospital in the summer of 2009. The reporter stated that the mother was delusional, and had misrepresented Kacy's medical and psychiatric history, falsely claimed Kacy needed certain procedures, and falsely reported that Kacy had been raped. Kacy was thereafter removed from the mother's care and transitioned to foster care. Following removal, Kacy's emotional health gradually improved. She is no longer taking psychiatric medication and engages in age-appropriate behavior. Her focus on health issues has decreased, and she is doing well in her permanent home placement.
A four-day trial was held over nonconsecutive days in the fall of 2010. The judge credited the trial testimony of two experts witnesses: Tasha Baizerman, a social worker who conducted a parenting and clinical evaluation of the mother and Kacy, and Catherine Ayoub, Ph.D., an expert in FDP, and related disorders. The judge also heard testimony from social workers who had worked with the mother during the department's involvement, an expert who testified on behalf of the mother, and lay witnesses, including the mother. Over fifty exhibits were admitted in evidence, including Kacy's pediatric medical records and the written reports of the guardian ad litem and the examining psychologist.
Discussion. 1. Termination of parental rights. 'When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law. . . . Subsidiary findings must be established by a fair preponderance of the evidence, . . . and will not be disturbed unless clearly erroneous.' Adoption of Elena, 446 Mass. 24, 30-31 (2006). We accord deference to a trial judge's assessment of the credibility of witnesses and the weight of the evidence. Id. at 31.
a. Department's plan. The mother first contends that the decree must be reversed because the plan put forth by the department was inadequate. She cites the fact that, at the time of trial, the plan involved a foster mother who had only known the child for a few weeks, as the previous foster mother was no longer able to care for Kacy. The mother further claims that nothing in the record demonstrates that the plan in place was in the child's best interests.
While we recognize the mother's concerns, '[t]he adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement 'so that the judge may properly evaluate the suitability of the department's proposal." Adoption of Willow, 433 Mass. 636, 652 (2001), quoting from Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). See G. L. c. 210, § 3(b) (department authorized to commence termination proceeding 'independent of a petition for adoption'); Care & Protection of Valerie, 403 Mass. 317, 319 (1988) (plan not required to identify prospective adoptive parents).
In this case, the department's plan for Kacy was rightly centered on her immediate need for intensive therapy, in conjunction with a separation from the mother. The judge agreed. Concerning adoption, the department's plan was still evolving at the time of trial. See Adoption of Willow, supra. This was so because Kacy's relationship with her father had been so damaged by the mother's actions that it was unclear at the time of trial whether the father could be involved in Kacy's life going forward. See note 2, supra. A department social worker also testified that the current foster mother had expressed interest in adopting Kacy. Regarding that placement, the judge found that Kacy was thriving and 'excelling in her new home.' Given the circumstances of the case, the department's plan was sufficiently detailed and specific. There was no error.
The judge found that 'if [Kacy] is going to address the issues therapeutically . . . it will be difficult and impede her progress if her mother continues to be in denial that Kacy was treated like a sick child when she was not sick all those years. Mother continues to insist every week that she is still sick. This is not healthy or safe for [Kacy] and the potential harm is so great.'
b. Sufficiency of the evidence. The mother next claims that the record evidence showing comparative improvement while the child was removed from her care was insufficient to prove parental unfitness. The mother cites seven of the judge's findings in support of her argument.
The judge in this case made 277 detailed and thoughtful findings of fact, most of which concerned the mother's mental illness and its effects on Kacy's welfare. Even if we were to ignore the challenged findings, the remaining findings, taken together, would constitute clear and convincing evidence of the mother's unfitness to provide for the welfare and best interests of Kacy. See Adoption of Quentin, 424 Mass. 882, 886 (1997). Nevertheless, based upon our review of the record, the challenged findings are supported by the evidence, which show that Kacy's condition improved following removal from her mother's care.
2. Visitation. The mother lastly claims that the judge erred in failing to order posttermination and postadoption visitation.
The decision to order posttermination or postadoption contact is left to the discretion of the trial judge. Adoption of Nicole, 40 Mass. App. Ct. 259, 264 (1996). In determining whether to allow such visitation, a judge must consider the child's best interests, rather than the rights of the parent. Adoption of Abigail, 23 Mass. App. Ct. 191, 199-200 (1986). When a judge decides not to order visitation, 'he is not required to make extensive findings if he has already made specific and detailed findings regarding the child's best interests and the determination of parental unfitness.' Adoption of John, 53 Mass. App. Ct. 431, 439 (2001).
In this case, the extensive record and findings support the judge's conclusion that future contact with the mother would place Kacy at great risk due to the mother's failure to acknowledge her own mental illness, and her refusal to see Kacy as a well and healthy child. We accordingly discern no abuse of discretion.
The mother expresses concern that undue reliance was placed on the diagnostic testimony of experts Tasha Baizerman and Catherine Ayoub, without the necessary support of subsidiary findings of fact based on the record evidence. See Adoption of Willamina, 71 Mass. App. Ct. 230, 238 (2008). The concern is unfounded in this case. A majority of the judge's extensive findings cite record evidence other than the testimony of Baizerman and Ayoub. Those findings detail the mother's abuse of Kacy, and her continued refusal to acknowledge that fact. As the judge noted, '[r]egardless of whether Mother does in fact have Factitious Disorder by Proxy, Mother's actions caused harm to [Kacy].'
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Decree affirmed.
By the Court (Cypher, Smith & Fecteau, JJ.),