Adoption of Eileen. ( 2023 )


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  • 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-189
    ADOPTION OF EILEEN.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 to the child.                 On
    appeal she contends that the ultimate finding of unfitness was
    not supported by clear and convincing evidence, that certain
    subsidiary findings regarding her behavior and the impact of her
    behavior on the child lacked evidentiary support, and that an
    order for postadoption visitation should have entered.               We
    affirm.
    Background.     This case comes before us after a remand for
    further findings.      See Adoption of Eileen, 
    99 Mass. App. Ct. 1104
     (2020).       Our review now encompasses the judge's additional
    findings of fact and conclusions of law.            Because it is
    important to assess the mother's claims in context, we set forth
    1   A pseudonym.
    a brief summary of the judge's findings, supplemented by facts
    in the record that support those findings.
    The mother was the subject of a child in need of services
    petition between 2009 and 2012.   The evidence of the nature of
    the involvement is scarce, but the judge found that the
    Department of Children and Families (department) became involved
    due to, among other things, the mother's curfew violations and
    substance use.
    The child was born when the mother was eighteen years old.
    The mother was unaware of the pregnancy until her fifth month.
    She tested positive for marijuana and cocaine during the
    pregnancy, but not at the time of the child's birth.2   The mother
    and the child were discharged from the hospital to the maternal
    grandmother's home, but the maternal grandmother informed the
    department that the mother and child could no longer live there.
    The mother and the child then lived at a teen parenting program
    briefly before returning to the maternal grandmother's home,
    where the mother remained for most of the case.
    The maternal grandmother filed a report pursuant to G. L.
    c. 119, § 51A (51A report), on June 17, 2015, alleging that the
    mother had not come home until 2 A.M., and then had left the
    2 The child's meconium sample was too small to be tested for
    substances at birth, but her urine sample was negative for
    substances. The G. L. c. 119, § 51A, report was supported
    because the child was substance exposed during pregnancy.
    2
    house abruptly, leaving the child with the maternal grandmother,
    who had indicated that she was unwilling to care for the child
    any longer.   The allegations were supported, and the department
    filed a care and protection petition that same day, alleging
    that the child was left with an inappropriate (i.e., unwilling)
    caregiver.    Notably, the mother addressed the department's
    concerns, followed through on all that was requested of her, the
    child was returned to her physical custody in March, 2016, and
    the petition was dismissed in July, 2016.
    However, in the months following the dismissal of the
    petition, the tide changed.    The mother did not go to therapy,
    did not participate in parenting programs, and dropped out of a
    nursing assistant training program.    The mother attributed her
    inability to complete the training program to the fact that the
    child was unable to go to day care because of asthma and ear
    infections.   The mother did not obtain any employment or enter
    another training program and was utterly reliant on the maternal
    grandmother for housing and support.
    Beginning in October of 2016, four 51A reports were filed
    concerning the child.3   A mandated reporter filed a 51A alleging
    3 Three of the four reports were supported. The April 7, 2017,
    report was screened out only because a judge of the Probate and
    Family Court had appointed the paternal grandmother as the
    child's guardian, and the child was no longer in the care of the
    mother. On appeal, the facts pertaining to the April 7 report
    are not disputed.
    3
    alcohol use by the mother while caring for the child.     In March
    of 2017, another 51A report was filed when the mother left the
    child with the paternal grandmother and did not return as
    promised.
    On April 7, 2017, the mother again left the child with the
    paternal grandmother and did not return.   The social worker was
    unable to locate the mother and called the paternal grandmother
    on May 2, 2017.   The paternal grandmother reported that the
    mother had left the child, had not returned, and that she did
    not know where the mother was.   During this time the child had
    broken her arm, and the paternal grandmother had great
    difficulty obtaining medical treatment because the mother was
    unavailable to give consent.
    The child was remained with the paternal grandmother, who
    had been appointed guardian, see note 3, supra, on the condition
    that the father (who had several children with girls under the
    age of sixteen) not be permitted in the home.   The paternal
    grandmother allowed contact with the father in the home, and the
    department filed a 51A report, which was supported.     The
    department filed another care and protection petition, and the
    child was removed from the paternal grandmother's home and
    ultimately placed in a kinship placement that became the
    preadoptive home.
    4
    In an effort to obtain a better understanding of the
    reasons for the mother's behavior, and the appropriate means for
    improving her parenting ability, the department requested that
    the mother participate in a neuropsychological exam, attend
    treatment for mental health issues, and participate in a
    substance use evaluation.    Referrals were made for all three
    services.    The mother did not successfully complete any of these
    three critical tasks.
    Specifically, no neuropsychological evaluation was
    performed.   The social worker provided a referral, but the
    mother did not call for an appointment.     The provider reached
    out on several occasions but reported to the department that
    they received no response from the mother.    Even though the 51A
    report regarding the mother's intoxication was supported based
    on family members expressed concern about the extent of the
    mother's drinking and marijuana use, the mother did not follow
    up on a referral for a substance use evaluation.    The mother
    agreed to attend what she described as "bullshit therapy," and
    attended counselling for a brief period.     The program terminated
    services in January of 2018 when she missed two visits.    The
    mother did not participate in therapy again until two weeks
    before trial.   She did, however, complete the Parenting Journey
    class in 2018, although she appeared to have difficulty
    describing what she had learned.     The judge found that the
    5
    mother was unable to demonstrate that she had benefited from the
    few services in which she engaged.
    The mother was frequently unavailable for monthly visits by
    the social worker.   She did not visit the child regularly,
    despite the fact that she was not working or going to school.
    She missed approximately twelve visits while the child was in
    foster care, failed to cancel the scheduled visit in advance,
    and was unavailable by telephone.    She also missed two of three
    foster care reviews and some court dates.    The judge did not
    credit her reasons for missing the foster care reviews.   The
    mother testified that she missed the court dates due to an
    "emergency," but when asked what the emergency was, she declined
    to answer and replied, "No response" twice.4   The judge did not
    credit this response.
    4 The mother's action plan contained twelve components, several
    of which were related to organizational and independent living
    skills. On appeal the department and the child also argue that
    the mother should be declared unfit because she has not secured
    her own housing, was not employed, and had not prepared a
    household budget. We view these action plan tasks as secondary
    to the primary goals of improving the mother's mental health,
    wellness, and overall stability, and ensuring that the child
    would not be neglected or abandoned in her care. Many people
    reside in multigenerational households, are unemployed, and lack
    budgeting skills, but possess the maturity and wherewithal to
    care for their children. We understand the mother's apparent
    inability to make a plan to care for the child to be evidence of
    a larger (and as yet undefined and unaddressed) constellation of
    problems that place the child at risk of neglect. To the extent
    that one or both appellees ask us to uphold the termination of
    parental rights based on one or more of these secondary factors
    alone, we decline to do so.
    6
    Discussion.   1.   Termination of parental rights.    "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 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).
    This case required the judge to assess the risks posed to
    the child based on the mother's past history of neglect, and on
    one occasion, apparent abandonment.   Viewed through this lens,
    we can not say that the judge's findings were unsupported, or
    that the judge abused her discretion in deciding that the risk
    of ongoing neglect was so severe that the child's best interests
    would be served by termination of parental rights.     "The judge
    properly considered the mother's continued failure to cooperate
    7
    with the department in determining that the mother did not have
    the ability to address her own shortcomings as a parent."     Care
    & Protection of Vieri, 
    92 Mass. App. Ct. 402
    , 405 (2017).     On
    the evidence before her, the judge was permitted to find that
    the mother repeatedly left the child with caregivers and did not
    return, did not understand what being a parent required, and did
    not appreciate the impact of her own shortcomings on the child.
    The reasons for the mother's behavior were unclear.      The
    mother has a childhood history of alcohol and drug use, and
    although she had cared for the child while impaired, she did not
    follow through on a referral for an evaluation of substance use
    issues, nor did she attend more that a handful of the
    counselling sessions designed to assist in addressing any mental
    health needs she may have had.   Because of the mother's
    noncooperation, the judge was unable to make any findings
    regarding the mother's substance use and mental health.
    Instead, the judge was left with a pattern of behavior
    indicative of neglect of the child, and an apparent inability to
    follow through on even the most basic of tasks designed to
    effectuate reunification.   "The judge could properly consider
    past parental conduct as relevant to the issue of current
    parental fitness where that conduct was not too remote,
    especially where the evidence supported the continuing vitality
    of such conduct."   Adoption of Larry, 
    434 Mass. 456
    , 469 (2001).
    8
    On appeal the mother points to the parenting classes, the
    fact that she had started therapy again shortly before trial,
    and that she was going to start a job to demonstrate that she
    was on an "upward trajectory."   The judge explicitly considered
    the mother's recent efforts but concluded that the mother's very
    recent participation in services did not demonstrate a
    reasonable likelihood that she would become fit in the future.
    Rather, the judge found that the mother did not understand what
    her parental obligations were or how to fulfill them.    At trial
    the department had demonstrated grievous shortcomings based on
    her past conduct, but the mother did not offer any explanation
    why she had stopped attending therapy in the past and had not
    undergone the requested evaluations.5   She did not describe what
    she would do differently in the future, other than to promise to
    get the counselling and evaluations listed in her action plan.
    She refused to explain why she missed court dates, offered no
    explanation for the missed visits with the child, and gave no
    explanation as to why she had previously left the child with
    others.   Even after taking a parenting course, she was unable to
    5 She testified that a substance use evaluation was not part of
    her action plan and that she did not try to contact the healthy
    baby program to which she had been referred. She claimed that
    date of the foster care review had been changed and that the
    social worker told her that she did not have to attend,
    explanations the judge did not credit. She promised she would
    participate in a substance abuse program and counselling in the
    future, and hoped to regain custody.
    9
    describe what she learned, or the developmental needs of a three
    year old.    The judge did not find what explanations the mother
    did give to be credible, nor did the judge find that the mother
    had improved her parenting skills.     "Evidence such as the
    failure of the parents to keep a stable home environment for the
    children, the refusal of the parents to maintain service plans,
    visitation schedules, and counseling programs designed to
    strengthen the family unit are relevant to the determination of
    unfitness."    Petition of the Dep't of Social Servs. to Dispense
    with Consent to Adoption, 
    399 Mass. 279
    , 289 (1987).     We discern
    no error.
    We recognize that the visits between the mother and child,
    when they occurred, went well, and that there was apparent
    affection between them.     "Despite the moral overtones of the
    statutory term 'unfit,' the judge's decision was not a moral
    judgment."    Adoption of Bianca, 
    91 Mass. App. Ct. 428
    , 432 n.8
    (2017).     A judge may find that a mother loves and provides for
    her child to the best of her ability, but nonetheless reach the
    conclusion that the best interests of the child warrant
    termination of parental rights.    In this case, the evidence
    supported the judge's finding that the child would be at risk of
    neglect or abandonment in the mother's care, and that
    termination was in the best interests of the child.
    10
    2.   Visitation.   The judge ordered one posttermination
    visit with the mother but left postadoption visitation to the
    discretion of the adoptive parent.   "In determining whether to
    exercise the authority to order visitation, a judge must ask two
    questions:   First, is visitation in the child's best interest?
    Second, in cases where a family is ready to adopt the child, is
    an order of visitation necessary to protect the child's best
    interest, or may decisions regarding visitation be left to the
    judgment of the adoptive family?"    Adoption of Ilona, 
    459 Mass. at 63
    .   "[O]nce a preadoptive family has been identified, a
    judge must balance the benefit to the child of an order of
    visitation . . . with the intrusion that an order imposes on the
    rights of the adoptive parents, who are entitled to the
    presumption that they will act in their child's best interest."
    
    Id. at 64-65
    .   Given the past history of inconsistent care and
    inconsistent visitation, the judge did not abuse her
    11
    considerable discretion in leaving the matter of postadoption
    visitation to the adoptive parent.
    Decree affirmed.
    By the Court (Vuono,
    Sullivan & Singh, JJ.6),
    Clerk
    Entered:    March 13, 2023.
    6   The panelists are listed in order of seniority.
    12