Adoption of Nigel. ( 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-1169
ADOPTION OF NIGEL. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a judge of the
Juvenile Court finding her unfit, terminating her parental
rights to her son, Nigel, and declining to order posttermination
visitation. We affirm.
Background. We summarize the judge's findings of fact,
supplemented by uncontroverted evidence from the record.
Nigel was born in 2012. Four days after his birth, the
Department of Children and Families (department) filed the first
of three care and protection petitions on behalf of Nigel after
he showed symptoms of drug withdrawal and based on concerns with
the mother's history of substance abuse and mental health
issues. 2 After the seventy-two hour hearing, custody was
1 A pseudonym.
2 The mother began drinking alcohol at eleven years old. She has
a history of opiate addiction, cocaine use, and abuse of
prescription drugs that dates to her mid teenage years. The
mother has suffered from anxiety, depression, bipolar disorder,
returned conditionally to the mother and father, and the case
was dismissed five months later.
In summer 2013, Nigel was evaluated by early intervention
services for "delays in personal-social communication, motor and
cognitive development." He was referred for further evaluation
and services. Although the mother took Nigel to his evaluation,
thereafter she failed to "follow through with vital early
intervention services" and "neglected" Nigel's speech and
behavior issues.
In July 2016, the mother was stopped by police while
driving a car apparently under the influence of an "unknown
substance." Nigel was in the vehicle, and police found heroin
and a syringe on the front passenger floor. When department
social workers visited the mother's home the following day, it
was "extremely filthy and cluttered," causing safety concerns
for the child. Nigel was observed to be "dirty," "wearing dirty
clothing," and "his hair was matted." The department took
emergency custody of Nigel.
While in the department's custody, Nigel was diagnosed with
autism spectrum disorder. The doctor opined that Nigel met "the
criteria of a child who has posttraumatic stress disorder and
[was] at risk for dysregulated behavior and additional emotional
and posttraumatic stress disorder at different points in her
life.
2
psychiatric problems as he gets older." He also reported that
Nigel's behaviors indicated a lack of "any parenting of any
consistent quality." Approximately one year later, Nigel was
returned to his parents' care, and the petition was dismissed by
agreement of the parties. The department remained involved with
the family.
In October 2017, Nigel's father died unexpectedly in a work
accident. To assist with the traumatic impact of this tragedy,
the department assigned a family partner to work with the mother
and referred her to grief counselling. The department also
arranged for the mother's adult daughter to assist with Nigel's
care. The daughter got Nigel ready for school, provided
transportation to his appointments, brought the mother to her
drug treatment, and facilitated communication between the mother
and the department. In effect, the daughter became Nigel's
primary caretaker. On occasions when the daughter was not
available, the mother failed to bring Nigel to medical
appointments and had difficulty getting him ready for school.
Eventually, the daughter withdrew from her caretaker role.
Beginning in December 2018, a series of G. L. c. 119, § 51A
reports (51A reports), were filed against the mother based on
reports of domestic violence, substance abuse, and mental
instability while caring for Nigel. Nigel's school also
reported numerous absences and daily tardiness. In March 2019,
3
a department emergency response worker visited the mother's home
and discovered "garbage, toys, papers, clothing, and misc. items
scattered on every surface and floor between the kitchen, living
room, and bedroom." Although the house was "significantly
cleaner" the following day, within one month a department social
worker observed that "the home was again messy and disorganized,
food was on the wall, and dried dog feces was on the floor. The
child wore dirty clothes and [had] a dirty face."
The department filed this care and protection petition in
April 2019 after a 51A report alleged that the mother tested
positive for unprescribed benzodiazepines, was seeking
benzodiazepines from other patients at her treatment clinic, and
that Nigel had missed a physical examination and was two years
behind in dental visits. The department took emergency custody
and placed Nigel in a kinship foster placement with his maternal
grandparents.
After Nigel's removal, the department met with the mother
multiple times to discuss her action plan with the goal of
reunification. The department referred the mother for services
for her own substance use and mental health issues as well as to
help her understand Nigel's autism diagnosis. The department
also invited the mother to participate in medical appointments
and school meetings after Nigel was placed with the
4
grandparents. 3 However, the mother failed to produce a relapse
prevention plan, did not execute a parenting plan or obtain a
parental fitness evaluation, and did not follow through with a
referral for a medication evaluation. In January 2020, the
department created a tiered reunification plan aimed at gradual
increases in visitation to help reunify the mother and Nigel.
The department asked the mother to maintain a safe home, comply
with her methadone program, take drug screens, create a
parenting plan, and allow the department into her home to
monitor her progress. In early March 2020, based on the
mother's failure to make timely progress toward completion of
these goals, the department changed Nigel's permanency goal to
adoption.
Following a trial held on several dates between February
18, 2021 and August 19, 2021, 4 the judge found the mother unfit,
adjudicated Nigel to be in need of care and protection,
terminated the mother's parental rights, and declined to order
posttermination visitation between the mother and Nigel. This
appeal followed.
3 The judge acknowledged and considered that the department
failed to invite the mother to one of Nigel's individualized
education program meetings. She determined that this failure
did not prevent a finding that the department engaged in
reasonable efforts to reunify the mother and Nigel.
4 The trial was conducted virtually via Zoom during the COVID-19
pandemic.
5
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child and to dispense with
parental consent to adoption, a judge must find by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests" (citation omitted). Adoption of Oren, 96 Mass.
App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and
the 'best interests of the child test' are not mutually
exclusive, but rather 'reflect different degrees of emphasis on
the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,
671 (2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). In making this determination, the judge
considers "'the ability, capacity, fitness and readiness of the
child's parents' as well as 'the plan proposed by [the
department].'" Adoption of Garret, supra at 675, quoting
Adoption of Nancy, 443 Mass. 512, 515-516 (2005).
The parent's fitness is determined by taking into
consideration a parent's "capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993). "The
inquiry is whether the parent's deficiencies 'place the child at
serious risk of peril from abuse, neglect, or other activity
harmful to the child'" (citation omitted). Adoption of
6
Olivette, 79 Mass. App. Ct. 141, 157 (2011). "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 clear error of law or abuse of discretion."
Adoption of Ilona, 459 Mass. 53, 59 (2011).
The mother argues that the judge erred in her analysis of
Nigel's best interests by finding that she is unfit, finding
that DCF provided reasonable reunification efforts, failing to
consider evidence of her bond with Nigel, and relying on stale
evidence. We disagree.
a. The mother's unfitness. The mother's unfitness
resulted from a "constellation of factors." Adoption of Greta,
431 Mass. 577, 588 (2000). Her recurring substance abuse and
mental health struggles affected the mother's capacity to assume
parental responsibility and fulfill the needs associated with
Nigel's disabilities. See Adoption of Frederick, 405 Mass. 1, 9
(1989) ("Mental disorder is relevant only to the extent that it
affects parents' capacity to assume parental responsibility").
The mother's substance abuse resulted in Nigel suffering drug
withdrawal symptoms at birth. She exposed him to unsanitary
home conditions, endangered him by driving a car while under the
influence, exposed him to domestic violence, and repeatedly
failed to attend to Nigel's basic hygienic, medical, and
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educational requirements. Moreover, the mother neglected
Nigel's special needs to a degree that it exacerbated his
developmental delays.
Despite the department's intervention over the course of
three care and protection cases, the mother failed consistently
to participate in services and treatment to address the issues
that caused the removal of her child. See Adoption of Serge, 52
Mass. App. Ct. 1, 8 (2001) ("The mother's lack of meaningful
participation in recommended services was also relevant to the
question of her fitness"). We agree with the judge's
determination that the mother failed to take responsibility for
actions that created neglectful conditions and endangered Nigel.
The judge found that the mother could not articulate how her
inconsistency with services, both for herself and for Nigel,
negatively impacted her ability to meet Nigel's needs.
We are mindful of the challenges the mother has faced since
she was a teenager. However, regardless of the underlying
causes of the mother's circumstances, we discern no abuse of
discretion in the judge's determination that her unfitness would
persist, and therefore termination of her rights was in Nigel's
best interests. See Adoption of Cadence, 81 Mass. App. Ct. 162,
169 (2012) ("Where there is evidence that a parent's unfitness
is not temporary, the judge may properly determine that the
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child's welfare would be best served by ending all legal
relations between parent and child").
b. Reunification efforts. Before terminating parental
rights, the judge must determine whether the department engaged
in reasonable efforts to support the family to allow the child
to be returned to the parent's care. See Adoption of West, 97
Mass. App. Ct. 238, 242 (2020). The mother argues that the
department failed to engage in reasonable efforts to reunify
because some of the items on her action plan could not be
completed while she did not have custody of Nigel. 5 However,
most of her tasks did not require custody, and she failed to
engage with the action plan or demonstrate behavioral changes.
We therefore agree with the judge's determination that the
department made reasonable efforts to reunify Nigel and the
mother. Even if the department had not made reasonable efforts
to reunify, it remained within the trial judge's sound
5 The mother asserts that more than one action plan was backdated
to a time either before the relevant social worker was assigned
to her case or before the social worker worked for the
department. A review of the record indicates that action plans
may have been backdated. However, this issue was not raised at
trial and thus has not been fully vetted. Although we express
concern about such a practice if it occurred, it is not
determinative of the outcome in this case. See Adoption of
Mary, 414 Mass. at 712 ("Generally, issues not raised by a
losing party in the trial court are not addressed on appeal,
absent exceptional circumstances").
9
discretion to determine that termination of parental rights is
within Nigel's best interests. See id.c. The child's bond with the mother. We are not persuaded
by the mother's argument that the judge did not give sufficient
weight to the bond between Nigel and the mother when determining
that termination of her parental rights was in his best
interests. The judge recognized Nigel's relationship with the
mother, specifically finding that the mother loves Nigel, is
bonded with him, and Nigel enjoys her visits. We are satisfied
on the record in this case that the judge did not abuse her
discretion by weighing this evidence and concluding that,
despite this relationship, termination of the mother's parental
rights was in Nigel's best interests. See Adoption of Bianca,
91 Mass. App. Ct. 428, 432 (2017).
d. Staleness of the evidence. Although stale information
cannot be the basis for determining unfitness, the mother's
"prior parental conduct is deemed relevant in assessing the
parent's capacity and ability to care for the child." Adoption
of Jenna, 33 Mass. App. Ct. 739, 744 (1992). The mother argues
that the judge relied on stale information to determine that she
is unfit because some of the judge's 437 findings are based on
information from years before this case. However, the evidence
demonstrated that the mother's historic challenges persisted at
the time of trial. Moreover, the judge was careful to recognize
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history that was admissible only to "set [the] stage," to
disregard inadmissible "opinions, conclusion[s], and
judgements," and to consider only the nonhearsay content of this
evidence.
2. Parental visitation. "In terminating parental rights
pursuant to G. L. c. 210, § 3, the Juvenile Court judge has
equitable authority to order visitation between a child and a
biological parent where such contact is in the best interests of
the child." Adoption of Garret, 92 Mass. App. Ct. at 679.
"Whether such contact in any given case is wise is a matter that
should be left to the discretion of the judge." Youmans v. Ramos,
429 Mass. 774, 783 (1999). "A judge should issue an order of
visitation only if such an order, on balance, is necessary to
protect the child's best interest." Adoption of Ilona, 459 Mass.
at 65. A judge should also consider "whether a preadoptive family
has been identified" and "whether the child 'has formed strong,
nurturing bonds' with that family." Id. at 63-64, quoting Adoption
of Vito, 431 Mass. 550, 563 (2009).
Here, the judge found that "[Nigel] is bonded and well-cared
for in his current foster home with his maternal grandparents and
extended family." Although the judge, as noted above, recognized
the bond between the mother and Nigel, she nevertheless determined
that mandated visitation was not in Nigel's best interests. See
Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006) (purpose of
posttermination visitation is assisting child's transition, not
11
strengthening bond between child and biological mother). We are
not persuaded by the mother's argument that the judge failed to
consider evidence of the negative relationship between the
mother and the maternal grandparents. Rather, we are satisfied
that the judge carefully weighed the evidence before concluding
that the grandparents "have in the past, and will in the future,
continue to make good choices to support all [Nigel's] needs for
responsible and loving care," including visits with the mother,
as long as "it serves [Nigel's] best interests." Thus, the judge
did not abuse her discretion by declining to make a specific order
of visitation. See Youmans, 429 Mass. at 783.
Decree affirmed.
By the Court (Massing,
Henry & Brennan, JJ. 6),
Clerk
Entered: October 3, 2023.
6 The panelists are listed in order of seniority.
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