In re Adoption Yalena

100 Mass.App.Ct. 542

181 N.E.3d 525

ADOPTION OF YALENA.¹

No. 21-P-205

Appeals Court of Massachusetts, Worcester.

Argued September 15, 2021.

Decided December 3, 2021.

Madeline Weaver Blanchette, Northampton, for the mother.

Adelaida P. Jasperse, for Department of Children and Families.

Dawn M. Messer, for the child.

Present: Vuono, Blake, & Englander, JJ.

BLAKE, J.

After four month old Yalena was brought to the University of Massachusetts Memorial Medical Center (hospital) with facial bruises, medical personnel discovered that she also had eleven bone fractures. The mother, Yalena's primary caretaker, denied inflicting the injuries and claimed that she did not know who did. The Department of Children and Families (department) removed Yalena from her parents’ care, and placed her with a paternal great uncle and his partner (preadoptive family), where she remained throughout these proceedings.² Following a trial in the Juvenile Court, the judge issued a decree that the mother was unfit to assume parental responsibility of Yalena, terminated her parental rights, dispensed with the need for the mother's consent to adoption, and approved the adoption plan proposed by the department. The judge also ordered that the mother could have three supervised posttermination and postadoption visitations per year. The mother appeals, claiming that the judge required her to prove that she did not injure Yalena, and did not know who did, thereby improperly shifting the burden of proof to her. She also claims that because no expert witness, department social worker, or law enforcement officer testified that the mother injured Yalena, the judge improperly speculated about the cause of Yalena's injuries.

The mother next argues that the judge "ignored" the fact that both expert witnesses who conducted parenting and psychological evaluations testified that they did not believe that the mother would injure Yalena. And for the first time on appeal, she claims that the department did not provide her with a meaningful pathway to reunification, thereby violating her due process rights.³ We affirm.

Background. We summarize the judge's detailed and thoughtful findings of fact and conclusions of law, all of which find ample support in the record.⁴ In November 2014, shortly after Yalena's birth, the department received a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect. Upon investigation, the department supported the allegation based on the mother's longstanding mental health history and the unsanitary conditions in her home. The case remained open for assessment, in part, to monitor compliance with the services that the department had put in place following its investigation.

On March 25, 2015, Yalena, then four months old, was brought to the hospital with a "big bruise on each cheek, which were bluish and purplish in color; a bruise on the bridge of her nose, which was yellow in color; and a faint bruise on her hairline." A 51A report was filed. Thereafter, the department filed a petition for emergency custody of Yalena. At that time, both parents waived their rights to a hearing, and stipulated that the department would retain custody of Yalena. After six days of hospitalization, Yalena was discharged and placed with her preadoptive family, where she has remained throughout these proceedings. Initially, the department's goal was to reunify the mother with Yalena, but the goal was changed to adoption on January 23, 2016.

1. Yalena's injuries. At the hospital, Dr. Peter Sell, an expert in pediatrics and child abuse, conducted a complete examination of Yalena. A skeletal survey revealed eleven fractures -- five healing fractures to the ribs, two healing corner factures to the distal femur bones, and four healing fractures to the tibia and fibula bones. Dr. Sell believed some of the fractures were seven to ten days old, but he could not determine the age of the other fractures. He ruled out brittle bone disease and other underlying medical issues, and formed the opinion that the rib injuries were more likely than not the result of physical abuse, possibly due to a squeezing force or stepping on Yalena. He also opined that certain leg fractures were caused by "a tug or a twist, something with a lot of force to it." Dr. Sell diagnosed Yalena with "inflicted injuries and child physical abuse."

2. The mother's explanation for Yalena's injuries. The mother was Yalena's primary caretaker; Yalena was rarely watched by anyone else. The mother described her as a happy child who did not cry or get upset. However, over the course of this case, the mother also reported that Yalena was "a bit of a handful, fussy and difficult to soothe." She admitted that she had a hard time understanding what Yalena needed when she was screaming, and that she felt overwhelmed. The mother acknowledged seeing bruises on Yalena's face as early as February 2015, and additional bruising the following month, but did not tell Yalena's pediatrician because there was "so much going on." The day before the mother brought Yalena to the hospital, Yalena was described as uncharacteristically fussy, exhibiting signs of distress, and having "a blank expression with her eyes."

The mother denied injuring Yalena, and claimed that she did not know who did. She offered varying explanations for the injuries, all of which were dubious and unconvincing. For example, the mother said that Yalena pinched herself, hit her head on the crib, and hit herself with a toy. At one point the mother suggested that Yalena's injuries may have been the result of an assault that occurred when she was three months pregnant.⁵

3. The mother's relationship with the father.⁶ Throughout the pendency of the case, the mother gave conflicting information about the father. Before Yalena was removed from her care, the mother had no concerns about their relationship or the father's parenting. At another point, the mother told the department that she had no concerns with the father's ability to parent Yalena.

After Yalena was placed in the department's custody, however, the mother said that the father was very controlling, used drugs, and yelled and swore at Yalena. She told Dr. John Weagraff (an expert witness selected by the department) that the father was verbally aggressive, threatened to kill her, stabbed someone at a party, and drank heavily, leaving for days at a time. The mother told her psychiatrists that she was present when the father shook then two month old Yalena. She told Dr. Jeffery Stein (her expert witness) that she suspected that the father injured Yalena, and that she felt guilty for failing to protect her, but "even with the benefit of hindsight, she [did] not know how she could've prevented [the injuries]." She told the guardian ad litem that she never had a concern about the father, but believed that he injured Yalena during a "blind fit[ ] of rage" caused by his use of synthetic marijuana. She also said that the father was never violent toward her, did not use drugs, and did not drink often.

4. The mother's mental health. The mother has struggled with longstanding mental health issues, and was dishonest about what, if any, treatment she was engaged in. As a teen, the mother started individual therapy, having been diagnosed with depression, social issues, cutting behaviors, missing social cues, organization deficits, and features of bipolar disorder. The mother was taking several prescribed medications when she became pregnant; the mother's doctor discontinued her medications during her pregnancy.⁷ After Yalena's birth, the mother did not reengage with treatment. At the time of the court investigation, the mother had not seen a psychiatrist, and therefore had not been prescribed medication, for over a year.⁸ She restarted therapy six days after Yalena was brought to the hospital.⁹

5. The mother's service/action plans. After Yalena was removed from the mother's care, the department developed eight service/action plans designed to assist the mother with reunification. Of significant import to the mother's claims discussed infra, for a period of time, the mother's service/action plans included the following: "Acknowledge harm done to child," "acknowledge responsibility for abusing the child," "acknowledge harmful effects of physical abuse on the child[ ]," and "understand the impact of abuse/neglect on the[ ] child[ ]’s psycho/social development." Throughout the case, the mother denied injuring Yalena.

Additional tasks included monthly meetings with the department, signing releases to allow the department to speak with the mother's treatment providers, visiting with Yalena, attending counseling, participating in parenting and psychological evaluations, engaging with a psychiatrist, taking prescribed medication, attending parenting classes and groups focused on children who suffered abuse, maintaining a job and housing, creating a budget, and attending foster care reviews, meetings, and court hearings. Over the four years that the case was pending, the mother was disingenuous about her engagement with her therapist and psychiatrist, as well as her medication compliance. She did not meaningfully and consistently comply with her service/action plan tasks.¹⁰

The mother missed visits with Yalena due to her failure to confirm her attendance, as required by the department, or simply failed to show up for a visit after confirming it.¹¹ When she did visit, the mother did not provide structure, had difficulty redirecting Yalena or reading her cues, and demonstrated superficial parenting skills. She also failed to enroll in parenting classes focused on the behavioral needs of traumatized children.

Throughout the case, the mother was frequently noncompliant with home visits. After she moved in with her own parents, she did not allow the department to conduct home visits on a consistent basis. At trial, the mother testified that if she was reunited with Yalena, she planned to live with her parents, and...