Adoption of Pierce. ( 2023 )

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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-78
ADOPTION OF PIERCE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered by a judge of the
Juvenile Court terminating her parental rights, claiming that
there was insufficient evidence to support certain findings.
The father does not appeal from the termination of his parental
rights, but joins with the mother in challenging the judge's
approval of the adoption plan proposed by the Department of
Children and Families (department) on the grounds that the
adoption plan was not in the child's best interests. We affirm.
Discussion. "In deciding whether to terminate a parent's
rights, a judge must determine whether there is clear and
convincing evidence that the parent is unfit and, if the parent
is unfit, whether the child's best interests will be served by
terminating the legal relation between parent and child."
Adoption of Ilona, 459 Mass. 53, 59 (2011). "A finding of
1 A pseudonym.
unfitness must be supported by clear and convincing evidence,
based on subsidiary findings proved by at least a fair
preponderance of evidence. See Adoption of Elena, 446 Mass. 24,
30-31 (2006). '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.' Adoption of Ilona, supra."Adoption of Patty, 489 Mass. 630, 637 (2022).
1. Findings. The mother challenges several of the judge's
findings regarding her fitness. We set forth a brief summary of
the judge's overall findings for context.
Thirty-four years of age at the time of trial in 2021, the
mother has a long history of substance use dating to when she
was eighteen years old. She had heroin and Suboxone in her
system when she gave birth to her oldest child in 2011. The
mother's parental rights to that child were terminated, and that
child was adopted by the maternal grandmother.
Pierce was born in 2014, also having been exposed to
substances at the time of birth. For a variety of reasons,
including the mother's positive test for opiates and
amphetamines shortly before his birth, Pierce was placed in
foster care with the kinship placement that ultimately became
the preadoptive placement (foster parents or preadoptive
2
parents). When the mother and father began to participate in
services, the department considered reunification and began
overnight visits. However, in November of 2017 the mother
tested positive for substances while in labor with a third
child, and visits with Pierce were suspended. In 2018,
overnight visits resumed between the parents and Pierce, and
ultimately Pierce was returned to live with the mother and
father in New Hampshire in April of 2018.
The father told the mother to leave in November of 2018
after she told him that Pierce might not be his child, and drove
them to the maternal grandmother's house in Massachusetts. The
mother and Pierce returned to live with the father in New
Hampshire in February of 2019. However, in March of 2019 the
mother was arrested following a domestic dispute with the
father, who obtained a restraining order against her. After
that incident, the mother lived in a shelter in New Hampshire
and Pierce remained with the father. Some days later, the
father -- now the sole parent caretaker of Pierce and his two
younger brothers –- drove Pierce to the maternal grandparent's
home in Massachusetts and left him there. In April of 2019, the
mother returned to Massachusetts to live with the maternal
grandmother and Pierce. After several weeks, the mother left
with Pierce. She and Pierce stayed with various family members
and friends through August of 2019.
3
Ultimately the department filed a second care and
protection petition. In July of 2019, while she was Pierce's
sole caretaker, the mother tested positive for morphine, and
unprescribed oxycodone and oxymorphone. At the time the mother
was not participating in substance abuse treatment, and later
testified that she did not go to treatment because she did not
think she needed it. The trial judge found the mother's belief
to be indicative of the mother's lack of understanding of her
illness or its impact on her ability to care for Pierce. During
this period, the department could not locate the mother or
Pierce for an extended period. The department was granted
temporary custody on August 6, 2019, and Pierce was returned to
the kinship placement.2
Between September of 2019 and February of 2020 the
department social worker was unable to visit the mother, either
because the mother did not answer her door or because she did
not go to an agreed upon location. The mother had no contact
with the department between December of 2019 and March of 2020,
when the mother called the department social worker. The social
worker's attempts thereafter to contact the mother were
unsuccessful.3
2 The department asked the father to take Pierce, but he
declined.
3 The judge found that the social worker made sustained efforts
to locate and reach the mother.
4
In June of 2020, the mother ingested heroin, along with
Prozac, gabapentin, and clonidine, and was hospitalized. She
entered and successfully completed the High Point program at the
Shattuck Hospital and then entered a residential treatment
program. She left that program before completion and the judge
found that she "has not demonstrated an ability to maintain
long-term engagement in substance abuse treatment and sobriety
since 2011."
The mother visited Pierce sporadically. She did not visit
him or ask the department about him in the fifteen-month period
from December of 2019 until February of 2021. At one point, the
mother stated that she did not visit him because she "needed a
little mental space and time."
The mother did seek mental health treatment in the months
before trial, but did not provide the department with releases
that would have permitted it to confirm her progress.
At the time of trial Pierce was six and one-half years old
and had lived with the preadoptive parents and their three
children for approximately five years. A play therapist
reported that Pierce repeatedly stated that he was "so scared,"
that he was afraid to go up or down stairs, and that his
imaginary play was violent. She diagnosed him with
posttraumatic stress disorder (PTSD). The preadoptive parents
reported flashbacks, nightmares, and fear of department social
5
workers. According to a child trauma expert who conducted an
in-person evaluation of Pierce over five sessions, he suffered
from PTSD, was anxious and afraid, was hypervigilant, and had
exaggerated emotional reactions. The expert opined that it did
not appear that Pierce was coached by the foster parents,
particularly because the effects of child coaching generally do
not last over multiple sessions.4 She stated that he used age-
appropriate language to describe his fears and that his affect
(disassociation, body rigidity, rapid breathing) could be
attributed to PTSD.
The judge determined that the mother suffered from long-
term mental health and substance use issues and posed a risk to
Pierce's welfare. She further found that Pierce had special
mental health needs, that he required a high level of
sensitivity, stability, and continuity, that the proposed
adoptive parents were able to meet those needs, and that there
was a strong bond between Pierce and the preadoptive parents.
It is against this backdrop that we evaluate the mother's claims
of error.
4 Pierce reported abuse that the department was unable to
substantiate. He told the mental health professionals that his
biological mother was not his mother, that his parents "stole"
him, that his father was "bad," that he was "hit," and that his
"pee pee" was hurt. The mother and father claimed that these
statements were coached. The judge considered the reports not
for their truth, but for the child's state of mind.
6
a. Nexus. The mother contends that there is no nexus
between the mother's mental health issues, her drug use, and
Pierce's welfare or her ability to care for him. However, the
record demonstrates that the mother has suffered from substance
use disorder for a period of fifteen years, encompassing efforts
at rehabilitation followed by relapse.5 While this pattern may
be understandable, and all may hope that the mother will one day
maintain her sobriety, the impact of such cyclical relapse on a
child as fragile as Pierce is evident. He was the second of
three infants born substance exposed. The mother took multiple
unprescribed medications during the time she cared for him in
2019, and did not participate in substance abuse treatment for
extended periods of time because she thought she did not need
it. In 2019 to 2020, while he was in the care of the
preadoptive parents, she ceased all contact, recognizing that
5 We agree with the mother's implicit argument that "evidence of
alcohol or drug use is relevant to, but not dispositive of, 'a
parent's willingness, competence, and availability to provide
care.'" Adoption of Luc, 484 Mass. 139, 147 (2020), quoting
Care & Protection of Frank, 409 Mass. 492, 494 (1991).
"Treatment 'does not always work the first or even the second
time, [and] relapse should not be cause for giving up on' an
individual experiencing substance use disorder." Adoption of
Luc, supra, quoting Commonwealth v. Eldred, 480 Mass. 90, 99
(2018). "Just as we should not criminalize addiction, . . . ,
parental rights should not be terminated only because the parent
has a substance use disorder." Id. at 147. However, in this
case, the mother was given multiple opportunities for treatment
over a period of years, and at this juncture the best interests
of the child is paramount.
7
she needed time and distance for her own recovery. See
generally Adoption of Yalena, 100 Mass. App. Ct. 542, 552-553
(2021). The best interests of the child dictate that the needs
of the child remain uppermost. The judge's finding that the
mother's ongoing substance abuse issues posed a risk to Pierce,
a child particularly in need of stability and continuity, was
not clearly erroneous. See Adoption of Luc, 484 Mass. 139, 146–
147 (2020).
b. Staleness. The mother maintains that the evidence
underlying the findings was stale to the extent that the judge
relied on evidence before June of 2020, when she sought
substance abuse treatment. The judge was entitled to consider
the mother's entire history. "Prior history . . . has
prognostic value." Adoption of Luc, 484 Mass. at 145, quoting
Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). Moreover
in the recent past she did not complete her residential
treatment program and the judge found that she has been unable
to maintain substance abuse treatment since 2011.
At trial in March of 2021, the mother testified that she
had been in substance abuse and mental health treatment for
approximately eight months; she testified that during that time,
she had consistently provided clean drug tests. The judge
credited mother's testimony that she sought mental health
treatment since July of 2020, but did not credit her other
8
statements because she did not provide releases to the
department, which received only one toxicology screen, and did
not meet with the department at any time since the case was
opened to February 2021. The judge was not required to credit
the mother's self-report of sobriety in the face of her
unwillingness to provide releases to the department that would
have permitted it to validate her claims. Credibility was for
the judge, whose findings were not stale.
c. Other factual findings. The mother challenges several
discrete factual findings. For the sake of completeness, we
address them below, but stress that even if all her evidentiary
arguments were sustained, none of them (singly or in the
aggregate) would alter our conclusion here. The evidence was
simply overwhelming that the mother's lengthy and troubled
history of substance abuse rendered her unable to care for
Pierce.
The mother claims that the finding that she had a history
of domestic violence and engaged in an altercation in front of
Pierce was clearly erroneous. It is uncontroverted that the
father obtained a restraining order against her; the allegations
included a threat to "smash" the father's and the babysitter's
faces. She was arrested for violating the restraining order,
resisting arrest, and disorderly conduct. There was evidence
that Pierce was inside the home when the confrontation on the
9
street occurred, but even if Pierce did not hear or see the
confrontation, the fact of the confrontation remains, and was
properly considered. See Adoption of Lisette, 93 Mass. App. Ct.
284, 294 n.15 (2018) (domestic violence considered in assessment
of parental fitness even if not witnessed by parties' children).
Similarly, the judge's finding that the mother had not
provided stable housing was not in error. It is undisputed that
at the time the mother had sole physical custody of Pierce, she
did not have permanent housing but rather relied upon friends
and family for short stays. She made no apparent effort to find
permanent housing, and for large parts of this case was, in the
judge's words, "whereabouts unknown." This is not a case where
the department failed to assist a willing and engaged parent in
locating housing. Rather, the mother failed to maintain contact
with the department, avail herself of services, or secure enough
of a foothold on her own health to provide a home (either with
the maternal grandmother or elsewhere) in which to provide a
stable environment to Pierce.6 Cf. Adoption of Yalena, 100 Mass.
6 The mother also claims that the judge should not have referred
to the mother's "criminal history" because all cases were
dismissed, that there was no evidence that Pierce was
underweight due to her care, and that the judge's reference to a
G. L. c. 119, § 51B, report that stated Pierce was not in school
was irrelevant because he was not of school age. We need not
reach these subsidiary arguments because none of them would
impact our disposition of this appeal.
10
App. Ct. at 554 (parent's obligation to seek appropriate
services).
2. Adoption plan. "In determining the best interests of
the child, the judge must consider, among other things, 'the
plan proposed by the department.' Adoption of Varik, 95 Mass.
App. Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c). . . .
To determine the sufficiency of the plan, the judge may consider
evidence and testimony 'regarding unfitness and the child's best
interests, in addition to the written plan.' Adoption of Varik,
supra. The judge's determination that a particular plan is in
the child's best interests 'presents "a classic example of a
discretionary decision" to which we accord substantial
deference."'" Adoption of Xarissa, 99 Mass. App. Ct. 610, 619–
620 (2021), quoting Adoption of Jacob, 99 Mass. App. Ct. 258,
272 (2021).
The father and the mother contend that placing the child
with the preadoptive parents, who had hired a private
investigator to film and follow them and department social
workers, was at best insensitive and at worst, interfered with
reunification and materially contributed to the mother's
continued struggles with addiction, precipitating the finding of
unfitness. The preadoptive parents did not act in conformity
11
with the department's regulations or expectations.7 However, the
record evidence was that the preadoptive parents had provided a
good home for Pierce, a child with a heightened need for
security. Moreover, the home was the only one the child had
known for five of his six years.8 The department informed the
foster parents that their conduct was not appropriate. The
foster parents signed an agreement promising to abide by the
department's policies. The child was placed with them again
based on these assurances, and there is no indication that they
violated the agreement. The judge found that they acted out of
concern for the child, who had cried when told he was going to
visit his parents and refused to go. The judge was permitted to
find that the preadoptive parents had been overzealous in their
efforts to protect him from perceived harm, but remained an
appropriate adoptive family for the child.
We can well imagine that this placement, the adoptive
parents' conduct, and the subsequent adoption, would be
demoralizing to the parents. In considering the appropriate
7 For example, the preadoptive mother applied for a restraining
order to prevent the department from reunifying Pierce with the
parents in violation of 110 Code Mass. Regs. § 7.104(1)(h)
(2009) (preadoptive parents must have ability "to accept and
support the child's relationship with his/her parents, siblings
and other family members and with the Department").
8 The parents also claimed that the child was coached. The judge
credited the expert's opinion that the child was not coached.
Questions of credibility are for the trial judge, and the
finding was not clearly erroneous.
12
permanency plan here, however, the judge did as she was required
to do, by focusing on the best interests of the child. See
Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020) ("'In
considering what remedy, if any, is required to address . . .
misconduct, our lodestar is, of course, the best interests of
the child[].' Adoption of Natasha, 53 Mass. App. Ct. 441, 450
[2001] [affirming termination of parental rights despite
department's violation of its own regulations]"). The judge was
faced with the choice of permitting a kinship adoption by a
family that Pierce had known for almost all his life, or
placement in the home of a stranger. The judge did not abuse
her discretion in deciding that the child, plagued by fears and
anxiety, and in particular need of a calm and stable
environment, should remain with the family he knew.
Decrees affirmed.
By the Court (Sullivan,
Hand & Walsh, JJ.9),
Clerk
Entered: February 17, 2023.
9 The panelists are listed in order of seniority.
13