Opinion
21-P-885
06-17-2022
ADOPTION OF ZIPPORAH. [1]
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
The Department of Children and Families (department) filed this care and protection petition in June of 2016 and was granted temporary custody of the mother's daughter, Zipporah. After a 2019 trial, a Juvenile Court judge found the mother unfit and terminated her parental rights, primarily based on the mother's longstanding problems with domestic violence and substance misuse. On appeal, the mother does not challenge any of the judge's findings of fact or conclusions of law. Rather, she argues that the department failed to make reasonable efforts to address those two problems and that the judge failed to make the requisite reasonable efforts determination before terminating the mother's rights. The mother therefore seeks a remand. Concluding that a remand is not warranted, we affirm.
The putative father's parental rights were also terminated; he did not appeal.
Discussion. 1. Department's reasonable efforts.
"When . . . terminating parental rights, a judge must determine whether the department has complied with its duty to make 'reasonable efforts ... to prevent or eliminate the need for removal from the home.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting G. L. c. 119, § 29C. See Care & Protection of Rashida, 489 Mass. 128, 130 (2022) (Rashida II); Care & Protection of Rashida, 488 Mass. 217, 221 (2021) (Rashida I). The burden is on the department to prove by a preponderance of the evidence that it has made reasonable efforts. See Rashida II, supra at 129. "However, even where the department has failed to meet this obligation, a trial judge must still rule in the child's best interest. 'A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest.'" Adoption of Ilona, supra, quoting G. L. c. 119, § 29C. See Rashida II, supra at 133; Rashida I, supra at 221.
a. Domestic violence. The mother first claims that the department's failure to refer her to a domestic violence shelter at the outset of this case constituted a failure to make reasonable efforts to assist her in extracting herself from and staying out of physically abusive relationships. The judge found, however, that the department had made other extensive efforts to help her address the domestic violence issue, but the mother had not benefited from them to the extent necessary to protect Zipporah from the risk of future harm.
The mother points to nothing in the trial record suggesting that it was unreasonable for the department not to refer her to a domestic violence shelter. The department had no reason to think that obtaining physical separation from her abuser was the key to the mother's progress. To the contrary, while her most recent abuser was in jail for six months and she told the department the relationship was over, the mother rekindled her relationship with him. The problem was not that she had nowhere to go to escape him, but, as the judge found, "her continued lack of insight into how her relationship with violent men put her and [Zipporah] at risk." Once he was released from jail, the mother allowed him to be present during her overnight visit with Zipporah, and she urged Zipporah not to tell anyone that he had been present. Nowhere at trial, including in her closing argument, did the mother indicate that a domestic violence shelter placement earlier in the case would have been desirable or helpful in escaping his influence.
Moreover, at permanency hearings in May of 2017 and June of 2018, the judge had found that the department was making reasonable efforts toward its then-goal of reunification. The mother does not explain why, if she needed domestic violence shelter services at that time, she did not raise the issue with the judge, who could then have examined whether it was unreasonable for the department not to offer such services. The mother also could have filed an abuse of discretion motion. See Rashida I, 488 Mass. at 221. If dissatisfied with the judge's reasonable efforts or abuse of discretion determinations at any point during the case, the mother could have sought interlocutory review by a single justice pursuant to G. L. c. 231, § 118. See Care & Protection of Walt, 478 Mass. 212, 218 (2017). She did not avail herself of those opportunities.
We see nothing in the case law suggesting that the department's obligation to prove reasonable efforts extends to (1) offering evidence about every conceivable service that could have been offered to address a particular parental deficiency, and then (2) proving that such a service was not reasonably required. At trial, the department's evidence amounted, at the least, to a prima facie showing of reasonable efforts to assist the mother with her domestic violence problem. If the mother disagreed, it was incumbent on her to offer evidence and argument in support of her position.
"A judge is required by statute to determine whether the department has made reasonable efforts at the emergency hearing, the seventy-two hour hearing, and 'not less than annually' thereafter" while the child is in the care of the department. Rashida I, 488 Mass. at 219-220. Other than at those times, a party may file a motion for determination of reasonable efforts but must meet a burden of production before the department is required to prove reasonable efforts. At the hearing on the merits of a care and protection petition, i.e., at the trial at issue here, no such motion is required to trigger the department's burden of proof. See Rashida II, 489 Mass. at 129-130. However, it would serve no apparent purpose to require the department to disprove the reasonable necessity for services that a parent never sought and that there is no evidence the department knows the parent needs.
The mother's argument on appeal is akin to "[a] claim of inadequate services[, which] must be raised in a timely manner to provide the judge and the department the opportunity to make accommodations while the case is pending." Adoption of Yalena, 100 Mass.App.Ct. 542, 554 (2021), citing Adoption of West, 97 Mass.App.Ct. 238, 242 (2020). "The department's obligation to make reasonable efforts to reunify the child with the mother is contingent upon her obligation to substantially fulfill her parental responsibilities (including seeking and using appropriate services)" (emphasis added). Adoption of Yalena, supra. See Adoption of Daisy, 77 Mass.App.Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011) (same); Adoption of Serge, 52 Mass.App.Ct. 1, 9 (2001) (same). Here, the mother never sought domestic violence shelter services.
A claim of inadequate services may be raised in an abuse of discretion motion, but proceedings on such a motion do not substitute for a reasonable efforts determination. The latter "necessarily requires a judge to consider the contested service or services, but . . . is a more comprehensive review of the entirety of the department's actions in the context of a particular case." Rashida I, 488 Mass. at 229. See Id. at 235.
Nor is there any record evidence that the department had independent reason to believe the mother needed such services. On appeal the mother cites a United States District Court decision stating that "[o]ne service that is critical to the best interests of battered women and their children and to avoiding unnecessary removals is the domestic violence shelter." Nicholson v. Williams, 203 F.Supp.2d 153, 212 (E.D.N.Y. 2002) . She further cites an academic article concluding that "women who receive shelter services endure shorter periods of violence than women who do not access such services." Panchanadeswaran & McCloskey, Predicting the Timing of Women's Departure from Abusive Relationships, J. Interpers. Violence (Jan. 2007). But neither of these sources purports to conclude that shelter services are appropriate for every woman experiencing domestic violence, regardless of what service she has already received and regardless whether she has previously found it difficult to obtain physical separation from her abuser. Moreover, neither source was offered in evidence or cited to the judge. "What constitutes reasonable efforts . . . must be evaluated in the context of each individual case," Care & Protection of Walt, 478 Mass. at 227, and is in part a question of fact, see Rashida II, 489 Mass. at 131. We therefore decline the mother's invitation to make a fact-based determination, on an issue raised for the first time at the appellate level, by concluding that the department's failure to offer her shelter services constituted a failure to make reasonable efforts at reunification.
b. Substance misuse. The mother also claims that the department's failure to refer her to a residential substance misuse treatment program at the outset of this case constituted a failure to make reasonable efforts to assist her with her substance misuse issues. The judge found, however, that from the outset of the case in 2016, the department had made other extensive efforts to help her address substance issues, but the mother had not benefited from them to the extent necessary to protect Zipporah from the risk of future harm. Based on the judge's findings, we think the department made a prima facie showing of reasonable efforts in this regard.
Of particular note, the judge found that in November of 2018 (three months before trial), a department family action plan recommended that the mother engage in an intensive inpatient substance misuse treatment program, but that the mother adamantly refused to do so. Shortly thereafter, the mother began to refuse to sign further action plans, because she did not want to participate in an inpatient substance misuse program. In December of 2018, the mother was told that "she needed high-level care, either an intensive outpatient program or an inpatient program." When she failed to participate in either type of treatment, she was discharged from the "Healthy Living" substance misuse treatment program. She then asked the department to refer her to a different program -- not an inpatient program -- and the department did so. The mother then chose to attend yet another different program, but she stopped attending after two sessions due to a conflict with the supervisor.
At trial the mother gave various reasons for refusing inpatient treatment, including that the prospect of losing Zipporah at the approaching trial caused her to "shut down." The judge was not required to credit these explanations or to infer that the mother would have agreed to inpatient treatment had it been offered earlier.
The mother's brief, supported by citations to an unpublished 2016 doctoral dissertation, broadly asserts that "substance abuse is . . . best treated in a residential treatment setting." On this basis she then claims that the department should have known in 2016, rather than in 2018, that she needed a long-term residential substance misuse program. As with the domestic violence issue, however, the mother never made any such claim to the judge. The mother never offered the dissertation in evidence or otherwise referred to it in her arguments to the judge. We decline to rely on this academic dissertation, offered for the first time on appeal, to make a reasonable efforts determination, which must be individualized and fact-specific, about this case. See Rashida II, 489 Mass. at 131; Care & Protection of Walt, 478 Mass. at 227.
Moreover, the mother's argument that she should have been offered inpatient substance misuse treatment in 2016 ignores the results of a foster care review in November of 2017. At that review, the department concluded that the mother was in compliance with her family action plan tasks, including actively participating in substance misuse treatment, and the department's goal was to reunify the mother with Zipporah in December of 2017. That reunification was derailed not by any sudden substance misuse relapse but by the mother's choice to continue her relationship with her abuser upon his release from jail. The mother fails to explain how the department should have known in late 2017 that the mother needed inpatient substance misuse treatment.
Further, as discussed supra, the judge found in both May of 2017 and June of 2018 that the department was indeed making reasonable efforts toward reunification. If the mother disagreed, and believed she needed residential substance misuse treatment at that time, she could have raised the issue with the judge and, if dissatisfied with the judge's determination, could have sought interlocutory review. She did not do so.
The department's plan changed to adoption only in August of 2018, after the mother's abuser committed another act of violence against her. The mother's substance misuse apparently continued in the fall of 2018, leading a November 2018 foster care review report to express greater concern about the issue than had the May 2018 report. In short, the mother has not persuaded us that it was unreasonable for the department not to have recommended inpatient substance misuse treatment earlier than November of 2018.
2. Judge's failure to make reasonable efforts determination.
The judge's lengthy findings of fact and conclusions of law, despite being careful and detailed, regrettably did not include the requisite finding regarding whether the department had made reasonable efforts toward reunification. See Rashida II, 489 Mass. at 130; Rashida I, 488 Mass. at 221; Adoption of Ilona, 459 Mass. at 61. The mother seeks a remand for the judge to make such a finding, apparently with particular regard to domestic violence and substance misuse. We conclude that a remand would serve no useful purpose here.
As stated supra, "even where the department has failed to meet [its reasonable efforts] obligation, a trial judge must still rule in the child's best interest." Adoption of Ilona, 459 Mass. at 61, citing G. L. c. 119, § 29C. See Rashida I, 488 Mass. at 221; Care & Protection of Walt, 478 Mass. at 228. Here, the judge found that the mother's "unfitness is likely to continue into the indefinite future to a near certitude," and she concluded that Zipporah's best interests would be served by termination of the mother's parental rights. The mother has not challenged these determinations.
In a postargument letter pursuant to Mass. R. A. P. 22 (c), as appearing in 481 Mass. 1651 (2019), the mother asserts that "embedded in" her reasonable efforts argument is a claim that additional efforts by the department "could have . . . ma[de] her unfitness temporary and termination unnecessary." For present purposes, however, what matters is not what could have happened during the pendency of this case had the department made efforts to place the mother in residential programs in 2016, but whether, by the time of trial in 2019, the mother was permanently unfit and Zipporah's bests interests required termination of the mother's rights. See Adoption of Ilona, 459 Mass. at 61.
Where the mother's unfitness was permanent, and where Zipporah's best interests warranted termination, nothing would be accomplished by remanding for findings on whether the department should have recommended a domestic violence shelter or inpatient substance misuse treatment earlier than it did. At this stage of the proceedings and of Zipporah's life, a hypothetical determination that the department reasonably should have done more at an earlier stage would not change the judge's disposition of the case.
We are also mindful that (1) the judge did find the department's efforts toward reunification to have been reasonable as of May of 2017 and June of 2018; and (2) on appeal, the mother has offered no substantial reason to believe that referral to a domestic violence shelter, or earlier referral to residential substance misuse treatment, would have prevented her from being found permanently unfit at the time of trial.
Decree affirmed.
The panelists are listed in order of seniority.