In Re Adoption of Chad ( 2019 )

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18-P-606 Appeals Court
ADOPTION OF CHAD (and a companion case1).
No. 18-P-606.
Norfolk. November 7, 2018. - February 27, 2019.
Present: Milkey, Henry, & Englander, JJ.
Adoption, Dispensing with parent's consent. Parent and Child,
Adoption, Dispensing with parent's consent to adoption.
Minor, Adoption. Practice, Civil, Adoption, Findings by
judge.
Petition filed in the Norfolk County Division of the
Juvenile Court Department on September 9, 2014.
The case was heard by Mary M. McCallum, J.
Diana S. Spanos for the mother.
Rachel T. Rose for Chad.
Lynne M. Murphy for Department of Children and Families.
Dennis M. Toomey for Anne.
MILKEY, J. In this care and protection case, a Juvenile
Court judge found the mother of two children unfit and
terminated her parental rights as to them. The judge's decision
1 Adoption of Anne. The children's names are pseudonyms.
2
was based in critical part on her assessment that the mother was
unable to appreciate or address both children's extensive
special needs. The mother and one of the children have
appealed. For the reasons that follow, although we agree with
the judge that serious issues regarding the mother's fitness
have been raised, we nevertheless conclude that various
shortcomings in the proceedings necessitate that the matter be
remanded.2
Background.3 1. The mother. Born in 1980, the mother
moved to Massachusetts at age seventeen with her parents. In
January of 1999, the Department of Children and Families (DCF)
removed the mother from her home after reports that she was
being physically abused, and she remained in DCF's care and
protection until August of 2002 (the month she turned twenty-
two). At that point, the mother was placed with the Department
of Developmental Services (DDS) because of her mental
disabilities.
2 The father of Chad did not participate in the trial and
has not appealed. We affirm the decree terminating his parental
rights. The paternity of Anne was never determined, and a
decree was issued terminating the parental rights of her
"unknown or unnamed father." We affirm that decree as well.
3 The factual recitation that follows relies on the judge's
detailed subsidiary findings, none of which the mother has shown
to be clearly erroneous. We supplement those findings slightly
with material from the documentary record.
3
The judge did not make findings about the degree of the
mother's mental disabilities, nor is that clear from the trial
record. On one hand, there is a reference in one of the
exhibits to the mother being "very cognitively challenged," and
the extent of the services that she has received from DDS
suggests a substantial mental disability. On the other hand,
there are other suggestions in the record that her disability is
only "moderate" or even "mild," with one person describing her
as being "smart as a whip and doing fine." No expert testified
as to her disabilities; in fact, no one from DDS testified at
all.4 There was evidence that the mother's therapist had
assigned to her a "global assessment functioning [rating] of 51
out of 100," without any explanation of what that meant or how
it mattered. Although the judge appears to have accepted that
assessment, no evidence of how that particular level of
functioning affected the mother's parenting skills was
presented.
In 2016, the mother was diagnosed as also suffering from a
moderate degree of major depressive disorder.5 In addition, it
The mother herself testified extensively at the trial, and
4
with respect to her ability to respond to the questions posed to
her, no obvious, cognitive lapses jump off the pages of the
transcript. That said, as discussed infra, the judge's findings
that the mother lacked the ability to understand or provide for
her children's special needs are well supported by the record.
4
is uncontested that the mother is morbidly obese (weighing over
500 pounds at the time of trial), and that this condition at
least somewhat affects her mobility.
2. The nature of the trial evidence. Before turning to a
summary of DCF's involvement with the family, we highlight the
nature of the evidence adduced at trial. Although the mother
testified at length, her testimony mainly addressed the period
after the children were removed in September of 2014. There
were three other witnesses at the trial: the woman who had
served as the foster mother of the children for a period of time
after their removal, the DCF adoption worker assigned in 2015,
and the DCF social worker assigned in 2015. Thus, there was
almost no live testimony that addressed the mother's parenting
of the children while they were in her care.
Instead, DCF relied on the documentary record with regard
to what happened prior to the children's removal. That record,
consisting of thirty-six trial exhibits, included reports
produced pursuant to G. L. c. 119, §§ 51A and 51B (51A reports
and 51B reports), and the report of a court-appointed
investigator appointed pursuant to G. L. c. 119, § 24. Those
5 Although the mother once was diagnosed with bipolar
disorder, her DDS service coordinator reported in 2006 that that
diagnosis "was questionable and that she had ended her
medication three years earlier on the advice of her
psychiatrist."
5
reports were submitted with agreed-upon redactions, and the
parties and the judge shared a common understanding that the 51A
reports could be used only to "set the stage," and that the 51B
reports were "admitted to the extent that they contain[ed]
primary fact and statements of the mother." See Custody of
Michel, 28 Mass. App. Ct. 260, 266-267 (1990). See also
Adoption of Luc, 94 Mass. App. Ct. 565, 566-569 (2018). We turn
next to what the documentary record established with regard to
DCF's involvement with the family prior to the removal of the
children.
3. The children. Chad was born in November of 2006. The
mother and Chad lived in a DDS-funded group home in the
Dorchester section of Boston, operated by Dare Family Services
(Dare), where the mother had been placed just before Chad was
born. At the group home, the mother had twenty-four hour
assistance from a full-time staff supplied by DDS. The record
reflects that during this period, the mother was able to attend
to Chad's everyday needs with the help of the Dare staff, which
led DCF to close a case it had opened before newborn Chad had
been discharged from the hospital. In June of 2008, a 51A
report was filed expressing concern over the mother's yelling at
Chad and lack of attentiveness toward him, but DCF closed the
matter after concluding that the mother showed apparent
improvement.
6
By February of 2011, the mother and Chad had moved to a
"shared living" home in the Roxbury section of Boston, still
with round-the-clock supervision, where they remained under the
care of DDS. That same month, the mother gave birth to Anne,
and the family moved back to Dare's Dorchester group home.
During this period, DCF looked into allegations that the mother
was neglecting newborn Anne and physically abusing Chad.
However, further investigations "indicated that the mother and
children were doing fairly well," and DCF ultimately concluded
that the allegations were unsupported.
4. The family moves to Brockton. In December of 2011, DDS
moved the mother and her children to a foster home in Brockton.
At the Brockton home, also run by Dare, the proprietor, Betsy
Goodacre (a pseudonym), looked after the family. In addition,
the mother was later provided the weekly services of an aide to
assist her in staying on top of appointments and such. The
family remained at the Brockton home until the summer of 2014.
In March of 2012, Chad, then five years old, began to
exhibit sexualized behavior at school, such as telling a girl
that he wanted "to lick her between her legs." Concerned that
Chad might have been subjected to sexual abuse, DCF
investigated. The mother and Chad denied any allegations of
7
sexual abuse, and DCF did not find such allegations supported.6
DCF did document a number of ways that Chad could have been
exposed to inappropriate sexual images or activity. These
included his having observed instances of nudity and sexual
behavior involving third parties at the Dorchester group home,
and his having observed pornography on the mother's tablet
computer or cellular telephone. Notably, the clinical
supervisor at Dare -- one of two parties who reported Chad's
sexualized behavior -- nevertheless concluded that Chad could
remain in the home (so long as he had a separate bedroom), and
she expressed her view that the mother "ensures that the basic
needs of her children are met at all times."
In August of 2012, while the family was still living in
Brockton, the mother had to be hospitalized for a physical
ailment, and she left her children in the care of Goodacre.
This led to a 51A report expressing concern about the mother's
ability to care for the children, especially if her absence
became prolonged.7 Apparently after the mother was discharged
6 During the course of the investigation, Goodacre told DCF
that Chad -- in response to being asked where he learned the
things he had said at school -- had stated "that his mother
wants him to lick her in that manner." In finding allegations
of sexual abuse unsupported, DCF appears to have not credited
that account.
7 Part of the concern related to the fact that although
Goodacre was willing to provide child care, it was not within
8
from the hospital, DCF screened out the concerns based on
existing supports.
In February of 2014, an early intervention provider for one
of the children expressed concerns to DCF about the mother's
ability to care for the children. The concerns were over
whether the mother's cognitive issues and weight-related
immobility were causing the mother not to meet the children's
basic needs or to follow up on recommended services for them.
At this time, Goodacre stated her view that the mother "is a
good mother and does the best that she can." The Dare clinical
supervisor shared that view and requested that an aide be
arranged for the mother; one was ultimately provided to her for
four months.
5. The family's stay in hotels. In July of 2014, Goodacre
went on vacation, and the mother and children were placed in
respite care. During this period, the mother decided that
lingering problems with her Brockton shared living placement
were sufficiently serious that she could not go back.8 This led
to something of a crisis, because a suitable substitute
her DDS responsibilities and thus DDS could not pay her for
that.
8 The mother made various complaints about her Brockton
living situation, including that Goodacre swore at her and that
Chad was displaced from his assigned bedroom by the son of
Goodacre's new boy friend.
9
placement could not be found. As a result, the mother and the
children -- together with a full-time aide -- had to be housed
in hotels.
During the period that the family was placed in hotels,
various individuals filed a series of 51A reports alleging
neglect or abuse of the children by the mother. The documentary
record includes contradictory "evidence" about these allegations
and suggests unanswered questions. For example, based on a
bungee cord being attached to Anne's crib and some marks on
Anne's ankle, a DDS clinical supervisor had concern that the
mother may have tied Anne to the crib to keep her there. Given
that the mother had around-the-clock supervision, the record
reflects some perplexity on the part of DCF about how -- if the
allegations were true -- someone could have missed the mother's
alleged abuse or neglect. In addition, the record reflects that
one of the mother's aides told DCF that she did "not have any
concerns for [the] mother's parenting since she was placed at
the hotel." Of potential significance, DCF's evaluation of the
living situation at this time includes the following statement:
"The mother has an aide in the room [twenty-four] hours a
day. They are currently in a hotel room because D[are]
ca[nn]ot find a placement that will take mother and her
children. [Dare] and DDS have been advocating for [DCF] to
take custody of the children because of their barrier to
10
placement and the expense of maintaining the current
situation."9
In any event, matters came to a head on September 8, 2014,
when one of the mother's aides reported to DCF two significant
concerns. The first was that the mother was lying in bed all
day and not responding in a timely manner to prompts that she
feed the children. The second was that Chad allegedly had told
her that he had seen the mother masturbating (describing this in
detail), and that both children were exhibiting sexualized
behavior, including Chad "french kiss[ing]" his three year old
sister.10 DCF conducted an emergency removal of the children the
following day.
6. The placement of the children postremoval. Anne was
placed at an intensive foster home operated by a foster parent,
Susan Johnson (a pseudonym). Johnson had specialized training
in addressing children with special needs, and she herself had a
developmentally disabled child. After a two-month temporary
placement elsewhere, in November of 2014, Chad also was placed
9 This statement appears in the section of a 51A report that
includes a summary of the interview with the aide. It is not
clear whether this statement is properly attributed to the aide
being interviewed or to the DCF author of the report.
10Despite the mother's hotel room being "staffed [twenty-
four seven]," the 51A report also noted that, "[w]hen asked
where the staff person [wa]s when this [wa]s happening, and why
it [wa]s allowed to go on, it was said that it is unknown who
the staff person was when this was happening."
11
with Johnson, who retained physical custody of both children
until December of 2015. However, Johnson ultimately realized
that she could not handle both children in her home, in great
part because Chad needed full-time supervision, and the children
continued to exhibit sexualized behavior with each other if left
unattended. Chad therefore was sent to the Bridge Home, a
facility that could provide "a higher level of care and
supervision." From there, he was transferred to the Stetson
School in Barre, which had a specialized residential treatment
program.11 It is well established that Chad has learning
disabilities and attention deficit problems (ADHD) in addition
to his other special needs. He has also been diagnosed with
posttraumatic stress disorder.
Meanwhile, Anne stayed at Johnson's home until June of
2016. At that time, Johnson moved to Florida for reasons not
explained in the record, and Anne was placed in a series of
temporary foster homes. Johnson eventually moved back to
Massachusetts and sought to regain custody of Anne; however, she
was unable to obtain suitable housing. At the time of trial,
DCF viewed Johnson as a potential adoption resource for Anne if
11With over two years having passed between the trial and
the hearing in our court, see note 18, infra, we requested from
counsel an oral update regarding the placement of the children.
Counsel represented that Chad was now living in regular foster
care but attending specialized day programs.
12
she could solve her housing needs.12 In the time between Anne's
placement at Johnson's home and the trial, her sexualized
behavior improved significantly to the point where she no longer
presented such behavior. However, Anne did exhibit other
problematic behaviors such as throwing extreme tantrums, and she
has some degree of developmental disabilities.
7. The mother postremoval. After the children were
removed, the mother was placed in a DDS group home in Chelsea
until November of 2015. Then, she moved to a DDS group home in
Dorchester. As the judge found, the group home was "more of an
independent living program" that had a separate bedroom for each
of the four residents, and a communal kitchen, living room, and
dining room. By this time (and continuing through the trial),
the mother participated in a day program that extended from 9
A.M. to 3 P.M. each weekday in Dorchester. That program
"offered education, community support, fitness[,] clinical
rehabilitation," and assistance in seeking employment. As of
the date of trial, the mother -- who once had been employed at
Goodwill -- had participated in one job interview, but had
received no offers of outside employment. She did do custodial-
type work at the day program, for which she received a small
12At oral argument, counsel represented that Anne is now
living in a "specialized group home" and has not been placed
with Johnson.
13
amount of income. Otherwise, her income consisted of Social
Security payments based on her disability, from which amounts
were withheld for her share of housing payments and for access
to the Greater Boston public transportation service known as
"The RIDE."
The mother also participated in other self-improvement
efforts including individual therapy, which, at the urging of
DCF, she began in May of 2015. She met regularly with her first
therapist until that therapist went on maternity leave in
October of 2015. The mother then met with a different
therapist, but that therapist left the agency in January of
2016. When DCF discovered the lapse in therapy, it urged the
mother to contact a certain health center to obtain a new
therapist. The mother stated that she would do so, but this
never came to fruition.
Again at DCF's urging, the mother enrolled in classes at a
parenting program in March of 2016. That program, which
encompassed forty-five hours of training, met every Thursday.
The mother completed this program in June of 2016, and presented
her certificate of completion to DCF prior to the termination
trial. Although the record indicates that the mother agreed to,
and participated in, a formal evaluation of her parenting
14
skills, that parenting evaluation was never admitted at trial,13
and the judge therefore did not have the benefit of it.
Much of the live testimony went to the face-to-face visits,
and other contact, between the mother and the children after
they had been removed. The first-hand accounts of the various
visits between the mother and the children generally are
consistent: the children hugged and kissed the mother,
interacted with her, enjoyed the gifts or appropriate snacks
that she brought, and said things such as "[b]ye Mom" when they
left.14 There was also uncontested testimony that the mother
expressed concern for their well-being, for example, by checking
for dirt under the children's fingernails, and on one occasion
questioning whether Chad had warm enough clothing for a visit to
a park. The third-party accounts of the visits did tend to
emphasize the mother's relative immobility. For example, the
DCF adoption worker who supervised a visit at a restaurant
testified that the mother "remained in a seat the entire time
13The record suggests that the parties may have agreed
prior to trial that this evaluation would be excluded, but no
explanation was offered.
14Initially, in the fall and winter of 2014, there were
reports that both children, particularly Chad, would "cry when
they [saw the mother]" and that they would "tell her that they
miss her and want to go home." However, by 2016, the DCF
adoption worker stated that neither child showed any signs of
distress during the visit she supervised, and that both were
able to "separate pretty well" from the mother.
15
during the visit." The judge herself repeatedly highlighted the
mother's sedentary nature in her subsidiary findings, for
example, by noting that during a visit with the children at the
Dorchester group home, the mother spent most of the time sitting
on the bed.15
A combination of factors placed some constraints on when
and where face-to-face visits could take place. For example,
the mother's Chelsea group home did not allow visits there. The
mother frequently canceled visits, based on asserted reasons
such as physical ailments (e.g., sore feet) or the lack of
proper outdoor clothing. Once DCF placed Chad in the Stetson
School in Barre, transportation there became an obvious problem.
DCF offered to bring Chad to Worcester for visits and suggested
that the mother travel from Dorchester to Worcester on public
transportation, which would be a four-hour round trip.16 After
15To put that fact in perspective, we note that according
to the trial testimony, the mother's bedroom, which was the only
private space she had at the Dorchester group home, measured
only five feet by twelve feet. In fact, the DCF social worker
conceded that the mother's room "lack[ed] . . . floor space" and
that "the main area for visits to occur [in the mother's
bedroom] is the bed."
16After the mother pointed out that she could not afford
the train fare to Worcester, DCF offered to reimburse her after
the fact. At trial, the mother testified that this was an
inadequate solution because she did not have thirty dollars to
purchase the ticket, prior to being reimbursed. The judge did
not make findings as to whether this, or some other reason, led
the mother to reject DCF's offer of Worcester-based visits.
16
Chad was moved to Barre, only one face-to-face visit occurred
between him and the mother, and that was when DCF social workers
drove Chad from Barre to Dorchester, and back.17 In the face of
the travel difficulties, the mother sought to have remote visual
contact with Chad through the Internet-based video-chat service
known as Skype. DCF left it to the mother to make the necessary
arrangements with the Stetson School, and this did not happen.
However, the mother did maintain frequent contact with Chad by
telephone, speaking with him at a regular time each Monday,
"like clockwork."
8. The judge's rulings. At trial, the mother and both
children supported the family being reunited. Nevertheless, the
judge found the mother unfit and ruled that her parental rights
should be terminated. While the judge's findings raise a number
of concerns about the mother's fitness, she rested her ruling on
one ground, namely, that the mother was incapable of addressing
the children's special needs. Although the findings and rulings
that the judge issued to explain her decision total fifty-six
pages,18 her reasoning is capsulized in the following key
passages:
17DCF did arrange to have Anne brought to Barre for
multiple sibling visits. Unexplained in the record is why DCF
could not bring the mother as well.
18The trial concluded in November of 2016. The following
month, the judge issued her decrees finding the mother unfit and
17
"Both [Chad] and [Anne] are children who have significant
specialized needs. [Anne] has required a heightened level
of intensive foster care by a foster parent proficient,
trained and experienced in meeting her specialized needs.
While in [DCF's] custody, [Anne] has especially needed the
experienced advocacy of a knowledgeable caretaker who was
able to pursue additional support services, school and
after school programs and educational supports to meet her
needs. Her behavior and global delays have been quite
challenging for her pre-school and Kindergarten educators.
[Anne]'s specialized needs when combined with the mother's
parental deficiencies and incapacities, clearly establish
the mother's parental unfitness to parent [Anne]. [Chad]
also has significant specialized needs which were beyond
the ability of his intensive foster parent to manage.
[Chad] has required the highest level of intensive care in
a residential therapeutic program which is particularly
able to address his sexualized behavior and his trauma
history. [Chad]'s specialized needs when combined with the
mother's parental deficiencies and incapacities, clearly
establish the mother's parental unfitness to parent
[Chad]. . . . It is clear to this court that each of these
children have required and will continue to require
extraordinary attentiveness on the part of his/her
caretaker and the mother has little or no ability to
provide that level of attentiveness, has little or no
understanding of either child's needs, and little or no
genuine ability to provide for either child's needs."
Then, with regard to the efforts the mother made to improve her
parenting abilities, the judged added the following:
"Despite the mother's efforts and compliance with certain
recommendations set forth on her service plans,
particularly her participation in individual therapy for a
period of months and her attendance at a parenting program,
she has not acquired the genuine ability to benefit from
terminating her parental rights. The judge initially explained
her ruling in a six-page document that accompanied the decrees
and that was entitled "Findings, Adjudication, Commitment Order
and Order to Issue Decrees." After the mother and the children
appealed, the judge issued a further explanation of her ruling
in a supplementary fifty-six page document bearing the same
title. That document was issued in March of 2018, more than
sixteen months after the trial concluded.
18
these services to the extent that she is now able to parent
her children. Indeed, the mother acknowledges in her trial
testimony that she needs significant assistance in managing
[Chad]'s behavior should her son be returned to her care.
Further, the mother indicates in her trial testimony that
she only feels capable of providing for her children's
needs, services and appointments if such services are
physically 'close' and 'nearby' to her. Essentially,
should the children be returned to the mother's care, the
services which are necessary to meet the children's
specialized needs must be convenient for the mother in
order for them to be utilized."
Although the judge terminated the mother's parental rights,
she ordered regular posttermination and postadoption visitation
between Chad and Anne, and between the children and the mother.
The mother and both children appealed, but eventually Anne
participated as an appellee in support of the decree terminating
the mother's parental rights as to her.19
Discussion. A finding of parental unfitness must be
supported by "clear and convincing evidence." Adoption of
Paula, 420 Mass. 716, 729 (1995). That means that "[t]he
requisite proof must be strong and positive; it must be 'full,
clear and decisive.'" Adoption of Iris, 43 Mass. App. Ct. 95,
105 (1997), quoting Callahan v. Westinghouse Broadcasting Co.,
372 Mass. 582, 584 (1977). "Parental unfitness, as developed in
the case law, means more than ineptitude, handicap, character
19At oral argument, we asked Anne's counsel on what basis
his client had reversed her position. Counsel declined to
provide a direct response, commenting that the question called
for reference to material outside the record.
19
flaw, conviction of a crime, unusual life style, or inability to
do as good a job as the child's foster parent" (footnotes
omitted). Adoption of Katharine, 42 Mass. App. Ct. 25, 28
(1997). "[T]he issue is not 'whether the parent is a good one,
let alone an ideal one; rather, the inquiry is whether the
parent is so bad as to place the child at serious risk of peril
from abuse, neglect, or other activity harmful to the child'"
(citation omitted). Adoption of Zoltan, 71 Mass. App. Ct. 185,
188 (2008).
A parent may be found unfit because of mental deficiencies,
but only where it is shown that such "deficiencies impaired her
ability to protect and care for the children." Adoption of
Quentin, 424 Mass. 882, 888-889 (1997). "Where a parent, as
here, has cognitive or other limitations that affect the receipt
of services, [DCF's] duty to make reasonable efforts to preserve
the natural family includes a requirement that [DCF] provide
services that accommodate the special needs of a parent."
Adoption of Ilona, 459 Mass. 53, 61 (2011).
Having stated these background principles of law, we turn
now to examining the ground on which the judge relied, the
mother's inability to address the children's special needs.
Certain aspects of this issue are not subject to reasonable
dispute. First, the judge's finding that both children have
serious special needs (not the least of which relate to the
20
sexualized behavior they both have exhibited) is unassailable.
Second, it is indisputable that the mother lacks the capacity to
address those special needs on her own, whether due to her
cognitive limitations, depression, or weight-related immobility.
In fact, the judge's assessment that the mother is unable even
to understand what the children's special needs were is well
supported by the record. Thus, the concerns that animated the
termination decrees are both serious and well substantiated.
At the same time, while it is undisputed that the mother
could not address the children's special needs on her own, it is
also undisputed that their special needs could not be managed by
other individuals either. For example, as the judge herself
recognized, "[Chad] has required the highest level of intensive
care in a residential therapeutic program which is particularly
able to address his sexualized behavior and his trauma history."
In addition, the judge's analysis does not take into account the
availability of support resources to help the mother manage her
life, including her role as a parent.20 The judge did not speak
directly to the nuanced question that the mother's situation
20DCF suggests that the mother waived arguments that
inadequate services were provided to her by failing to raise
them in a timely manner. See Adoption of Gregory, 434 Mass.
117, 124 (2001). We disagree. Although the mother perhaps
could have raised the issue more pointedly at trial, the extent
to which available supports could have compensated for the
mother's cognitive deficiencies was a theme that ran through the
life of the case.
21
posed: whether, with available assistance, the mother would be
able to leverage the outside support that both children plainly
need. To be clear, we note that we do not presume that the
answer to that question is "yes"; in the end, it may well be
that the mother's demonstrated problems with completing tasks
even with some assistance prove too profound. Our point is
simply that before we can countenance the "extreme step" of
terminating a parent's rights (citation omitted), Adoption of
Ilona, 459 Mass. at 59, further proof is warranted as to how the
mother's mental disability and other issues affect her ability
to serve the children's best interests. See Adoption of
Quentin, 424 Mass. at 888.21
In addition, we note that the judge did not squarely
address the separate question whether termination of the
mother's parental rights was warranted even if she was not fit
to assume custody herself. See Adoption of Imelda, 72 Mass.
App. Ct. 354, 360 (2008) ("Unfitness does not mandate a decree
of termination"). This is not a case where the facts dictated
21In Adoption of Quentin, 424 Mass. at 889, the children
had special needs similar to those presented here, and the
Supreme Judicial Court concluded that there was sufficient proof
"that the mother's mental deficiencies impaired her ability to
protect and care for the children." It bears noting, however,
that in that case, the trial judge had the benefit of nine days
of trial testimony with seventeen witnesses, including direct
expert testimony about the extent of the mother's mental
disability and how it affected her ability to care for the
children's special needs. Id. at 884, 887-888.
22
that the relationship between the parent and children be
severed; to the contrary, in recognition of the bond and
positive relationship between the mother and children, the judge
mandated posttermination and postadoption visitation. Nor is
this a case where the children were well-situated for adoption
or other stable, long-term placements. We observe, for example,
that in the mere five months between when Johnson moved to
Florida and the trial, Anne -- the child that all parties appear
to consider the easier one to place -- went through
approximately eight placement transitions. Again, none of this
is to say that the judge could not terminate the mother's
parental rights, and we recognize that such a step may be
necessary as a precursor to a recruited adoption. However, the
question of how termination would serve the children's best
interests deserves to be addressed directly.22
22 As Chad's reply brief eloquently argued:
"It has now been almost two years since trial and it is
unclear upon what DCF grounds [its] rosy predictions for
the adoption prospects of [Chad], who will be twelve in
November [of 2018]. He deserves to spend what little
remains of his childhood with the only stable and loving,
albeit imperfect and disabled, parental figure that he has
ever had in his life."
We note for purposes of the remand that, with Chad now having
turned twelve, the law presumes he is competent to express where
his best interests lie. See G. L. c. 119, § 1.
23
A few additional observations are in order. Although the
judge ultimately focused exclusively on whether the mother could
meet the children's special needs, the record reveals
significant additional concerns regarding her fitness. First
among these is whether the mother was causing the children's
sexualized behavior, not merely failing to address it
adequately. Unless such allegations were substantiated at
trial, however, the mother's parental rights could not be
terminated based on them. See Adoption of Eden, 88 Mass. App.
Ct. 293, 296 (2015) ("It is a bedrock principle that parental
rights may not be terminated on the basis of an unproven
allegation, even one as grave as [the sexual abuse allegation
there]"). See also Custody of Eleanor, 414 Mass. 795, 800–801
(1993) (where allegation of sexual assault was later withdrawn,
that allegation "in the absence of any corroboration or physical
evidence of sexual abuse . . . cannot be said [to establish]
parental unfitness . . . by clear and convincing evidence").
On this issue, the largely documentary record included
signposts that pointed in differing directions, and the
strongest evidence that the mother was somehow the source of the
problem was embedded hearsay (the statements attributed to
Chad). DCF did not press the judge to resolve the question of
the cause of the children's sexualized behavior, and the judge
neither did so nor improperly rested on unproved allegations.
24
We make these observations not to fault the judge -- who we
acknowledge was hamstrung by the far from perfect evidentiary
record put before her -- but to highlight the anomaly that the
most serious concerns about the mother's fitness lay
unresolved.23 We offer these observations as potential
assistance to the judge and parties as they formulate the
proceedings on remand.
The concerns just voiced apply as well to a second serious
concern about the mother's fitness on which the judge did not
rely: whether the mother is able, even with some assistance, to
meet the children's basic needs, not just their special needs.
Again, there were conflicting indications about this in the
largely documentary record. On one hand, that record appears to
indicate that DCF largely was satisfied that the mother
historically was able to meet the children's basic needs so long
as she had sufficient prompts from an aide supplied to her by
DDS or otherwise. On the other hand, the extent to which
appropriate supports were available to the mother prospectively
23The mother argues that the judge relied on the 51B and
court investigator reports beyond "primary fact" purposes and
inappropriately considered hearsay embedded in them. Putting
aside whether such arguments were adequately preserved, we do
not discern such errors in the judge's fact finding. The
problem with DCF's reliance on a mostly paper record was not
that the judge misused that evidence, but that the nature of the
evidence made it so difficult for the judge to get to the bottom
of the underlying facts.
25
was never directly explored at trial; indeed, no one from DDS
even testified. As a result, the fundamental question whether
the mother was in a position to meet the children's basic needs
was never resolved.
Our concern about the state of the record and the limited
nature of the judge's rulings are amplified by arguments the
mother has raised about the motives of DDS and its contractor,
Dare. Although no one from those entities testified, their
observations or views were reflected in the reports that were
included in the documentary record. Much of that evidence was
positive toward the mother, but it became increasingly negative
after the mother refused to return to the Brockton shared living
placement and therefore had to be housed in hotels. The mother
has raised nontrivial arguments that the views or observations
of those at DDS or Dare at that point may have been colored by
institutional bias. Those entities faced an incentive to
justify DCF's removal of the children, the argument goes,
because the presence of the children was the reason for the
expensive hotel placements and prevented DDS and Dare from
finding a suitable alternative placement for the mother (DDS's
only client in the family). DCF properly notes that courts are
to apply a presumption that public officials have acted in an
honest and impartial manner. See, e.g., Konover Mgt. Corp. v.
Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992).
26
However, as noted above, one of DCF's own reports reflects the
view that DDS and Dare sought to have the children removed for
these very reasons. Moreover, the mother's argument is not so
much that DDS and Dare personnel were acting in bad faith, but
rather that their narrow institutional mission created
incentives regarding how they observed and portrayed the
interests of the children. The absence of live witnesses
directly speaking to the mother's parental deficiencies deprived
the judge of the ability to assess the extent to which the
concerns expressed by DDS and Dare were supported by objective
fact.
While the judge's subsidiary findings regarding the
mother's compliance with her service plans are not inaccurate,
they nevertheless inaccurately leave the impression of wholesale
noncompliance. In fact, the mother made significant efforts to
improve her skills despite her disabilities and mobility
challenges. The most prominent example is her completion of the
forty-five hour parenting course, which required her to travel
to regularly-scheduled weekly classes.24 Of course, whether
completion of that course actually improved her parenting skills
24This intensive parenting course required the mother to
participate in group discussions, among other things. In
addition to completing the program, the mother received a "best
attendance award" for it.
27
is a different matter.25 To be sure, there were service plan
tasks that the mother did not complete. However, such
noncompliance must be viewed in light of the limited efforts
that DCF and DDS made to assist the mother in overcoming her
demonstrated problems in completing tasks on her own once the
children had been removed. The record contains several examples
of unexplained failures by the assigned officials to provide
support to help the mother succeed in keeping the family
together.
We additionally note some concern about the degree of
emphasis that the author of the reports, DCF witnesses at trial,
and the judge herself appear to have placed on the mother's
weight-related mobility issues. Indeed, the reference to these
issues appear to outnumber references to concerns about the
mother's mental disabilities. Yet mostly absent from the
judge's findings and rulings is an analysis of how those
mobility issues in fact help render the mother unfit.
Certainly, the judge did observe that, in light of the mobility
issues, "the services which are necessary to meet the children's
specialized needs must be convenient for the mother in order for
them to be utilized." But especially with the mother living in
25The mother testified that she learned helpful information
at the parenting course, in particular regarding how best to
discipline a child with ADHD.
28
Boston and having access to The RIDE, it is not clear whether
such theoretical constraints will matter in practice. Of
course, it is indisputable that Chad did for a period require
services located outside of Greater Boston, but the fact remains
that he was able to take advantage of those services without the
mother's rights being terminated.
In sum, although we agree with the judge that the record
raises serious concerns about the mother's capacity to address
the children's needs, we conclude that, at a minimum, further
exploration and explication is necessary before the mother's
parental rights may be terminated.26 We therefore vacate the
decrees terminating the mother's parental rights and remand this
case to the Juvenile Court for further proceedings consistent
with this opinion. We affirm the decrees terminating the
parental rights of the children's fathers.
So ordered.
26 On remand, the judge may take additional evidence.