In re Adoption of Qadira

90 Mass.App.Ct. 1121

65 N.E.3d 670 (Table)

ADOPTION OF QADIRA.¹

No. 15–P–1715.

Appeals Court of Massachusetts.

December 21, 2016.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The parents appeal from decrees of the Juvenile Court, finding them unfit and terminating their parental rights to their daughter, Qadira. The mother argues that she was denied effective assistance of counsel when her attorney failed to raise before trial the issue of whether the Department of Children and Families (department) had provided her with inadequate services. The father argues that there was not clear and convincing evidence that he was unfit at the time of trial, and that it was not in the child's best interests to terminate his parental rights. After careful consideration, we conclude that the mother was provided effective representation; there was sufficient evidence to establish the parents' unfitness, and termination was proper. As a result, we affirm.

Background. The judge found the following facts; neither parent challenges any of those findings specifically. Qadira was born in December, 2012, with a number of disabilities, including a cleft palate.³ A few days after she was born, a hospital nurse in the neonatal intensive care unit filed a report pursuant to G.L. c. 119, § 51A, alleging neglect: the hospital staff was concerned about the parents' ability to meet the child's many needs. As a result, Qadira was placed with the paternal aunt when she left the hospital several weeks after she was born. The aunt is now her preadoptive foster mother.

While she was in the hospital, Qadira was diagnosed with some genetic abnormalities and a heart murmur; she was later diagnosed with autism. She has significant developmental delays and receives ongoing and extensive outpatient and in-home services. She needs a caregiver who fully understands her diagnoses, one who is able proactively to seek services and treatment, and who is also able to attend and follow up with all medical and other provider appointments. In addition, the caregiver must be able to engage in daily repetitive exercises, and routinely teach Qadira every developmental and motor skill, as she is unable to learn on her own. Qadira will likely regress if her caregiver does not continue to help with her developmental needs. Although the parents show interest in and affection for Qadira, the judge concluded that they are not able to meet all of the complex caretaking responsibilities required for Qadira's care.

The mother is cognitively limited, as was the maternal grandmother. The mother dropped out of high school before she graduated and never obtained her GED. The mother describes herself as healthy; she reports that she became diabetic while she was pregnant, but she is uncertain if she is still diabetic. She does not undergo annual physicals and has not been to the dentist in several years; she is missing many teeth, and the teeth she has are significantly decayed. The mother receives benefits from the Department of Developmental Services (DDS) and is eligible, together with the father, for five hours weekly of services, including help with grocery shopping, budgeting, house cleaning, and transportation .⁴ However, both the mother and the father usually refuse these services, believing that they do not need help from DDS other than rides from their caseworker, Jim Richards.

The mother also receives Social Security Disability Income and has a representative payee who pays her rent and other monthly expenses; she is not certain how much income she receives; she cannot identify the disability for which she receives the income or how much she pays for rent each month.

The mother was not employed at the time of trial, and the judge did not find credible the mother's testimony that she wanted to find employment. The mother rarely leaves the house alone; she does not answer the telephone or the door when she is home alone. When she is angry, she refuses to speak with people, and sometimes she screams; the judge did not credit the mother's denial that she ever yells or screams at anyone. The mother has difficulty recalling details about her past or people in her life and also has difficulty with issues involving time. She does not take the initiative to resolve important issues in her life or seek clarification or assistance when she is unsure of something.

The father is able to read and write but he has cognitive limitations; he lived in an adult foster home before marrying the mother. He has a heart condition (pulmonic stenosis ) that requires him to have an annual stress test, which he has not undergone in two years; he also has not visited the dentist for several years. The father receives DDS benefits, as well as Supplemental Security Income; he has a representative payee who pays his rent and other monthly bills.

The father has worked off and on for the past ten years at GAAMHA, a "sheltered workshop," a job he obtained through DDS; he works Monday through Thursday earning approximately $100 per week. Although he testified that he wanted to earn more money, he chooses not to work on Fridays. He has good attendance and has shown improvement in his communication skills and maturity since working in this position; despite these improvements, he continues to have issues at work regarding his personal hygiene. His employment was terminated at Job Lot because of hygiene issues. The father has worked at other temporary jobs at Walmart, and Stop and Shop, and has done landscaping and other jobs. However, he also has declined some other employment opportunities—including a job at Market Basket, one at Speedy Oil Change, and one as a janitor. The judge found that the father was "suggestible and easily confused [during his testimony]. He offered inconsistent testimony based on how questions were posed, and he often needed very targeted leading questions to give a complete answer."

At the time of trial, the parents had been married for approximately three years. Since April, 2014, the parents have declined all services except for transportation from their caseworker, Jim Richards. Although Richards is available to the parents for one hour per week to assist with grocery shopping and arranging medical or dental appointments, they use his services only for rides to appointments and visits with Qadira. They have not allowed Richards into their home since April, 2014.

The parents do not always inform DDS when they are in need of specific services, but they "become angry when DDS has not anticipated these undisclosed needs." Historically, they have cut off contact if they are angry with a provider, including the department social worker. The parents continually struggle with the selection of healthy foods and with meal preparation; they are resistant to suggestions by DDS workers and department workers who have tried to help them. They frequently miss scheduled medical and dental appointments. The father tends to follow or defer to the mother.

The parents live in a two-bedroom apartment where cleanliness has been an ongoing issue; since the parents declined DDS housecleaning services in the summer of 2014, the condition of the apartment has worsened. In the six months prior to trial, the department social worker has observed an "odor" or "foul smell" in the apartment when visiting. "[T]he parents have been inconsistent with the cleanliness of their apartment, and do not recognize on their own when there are cleanliness problems." The parents also have to be reminded regularly to attend to their own personal hygiene, including washing their hair, changing their clothes, and brushing their teeth; this problem has persisted. The parents have declined services designed to help them address their respective shortcomings, insisting upon doing things themselves to show their independence despite their inability to do so.

The parents do not ask about Qadira's medical issues or diagnoses and do not appear to be curious about her needs. They attended Qadira's medical appointments for the first six months of her life, but then stopped; the father stated that he got too busy at work, and the mother failed to provide any explanation. The judge did not find credible the mother's testimony that nobody asked her to go to Qadira's medical appointments. The parents suggested that if the aunt did more to help Qadira she would not need physical therapy; the judge found the parents' accusations incredible, and noted them as a further example of the parents' lack of understanding of Qadira's medical and developmental needs. Although the father has retained some information given to him about autism, the mother's understanding is much more limited. Based on the parents' testimony at trial, the judge found that the parents have a very limited understanding or knowledge of Qadira's needs and the services she requires.

More specifically, the parents are able to attend to some of Qadira's needs (i.e., feeding, dressing, diaper changing), but they need prompting or correction even for some tasks they have previously performed. The department has seen little improvement in the parents' ability to care for Qadira during visits; the mother often defers to the father in holding, feeding, and soothing Qadira during visits, and oftentimes looks to the father to intervene when Qadira needs something; as a result, the father provides more of her care during visits. The parents have consistently maintained that, if Qadira were returned to them the mother would be the primary caretaker while the father is working; the father has no concerns about the mother's ability to care for Qadira because he believes she loves children and knows she would not abuse Qadira. However, there is no support in the record for the proposition the mother has the ability to care adequately for Qadira.

The department caseworker prepared identical service plans for each parent and then reviewed the required tasks with them. The parents did not ask any...