In re Darlene

99 Mass.App.Ct. 696

171 N.E.3d 199

ADOPTION OF DARLENE.¹

No. 20-P-82

Appeals Court of Massachusetts, Suffolk.

Argued January 13, 2021.

Decided June 9, 2021.

Kerry A. Bagnall, Plymouth, for the mother.

Carol A. Frisoli, Concord, for Department of Children and Families.

Maura J. Kiefer for the child.

Present: Lemire, Ditkoff, & Grant, JJ.

GRANT, J.

The mother appeals from a decree issued by a judge of the Juvenile Court finding her unfit and terminating her parental rights to her daughter, Darlene.² See G. L. c. 119, § 26 ; G. L. c. 210, § 3. The mother argues that the judge's findings lack the specificity and detail required to support termination of the mother's parental rights, that the judge erred in finding that the Department of Children and Families (DCF) used reasonable efforts to reunify the child with the mother, and that the judge abused her discretion in concluding that it was in the child's best interests to terminate the mother's parental rights. We affirm.

Background. The mother was born in 1991. As a child, she was diagnosed with bipolar disorder, attention deficit hyperactivity disorder, and oppositional defiant disorder ; cognitive testing placed her in the below average range, although her scores fluctuated throughout her childhood. At the age of twelve, she received an incorrect dosage of medication which she ingested for twenty-eight days, resulting in a brain injury. She was placed in DCF's custody when she was fifteen years old, and remained in its custody until she became a client of the Department of Developmental Services (DDS). She earned a certificate for completion of high school, but did not graduate because she did not pass the Massachusetts Comprehensive Assessment System tests. As a teenager, she was psychiatrically hospitalized at least twice.

While pregnant with Darlene, the mother was psychiatrically hospitalized because she was "extremely labile, emotional, crying, angry, screaming" and exhibiting symptoms of bipolar disorder. During that hospitalization, a legal guardian was appointed for her.

Darlene was born in June 2014. At that time a G. L. c. 119, § 51A, report was filed based on concerns that due to the mother's history of mental illness she was not competent to care for Darlene. DCF assumed emergency custody of Darlene, who was placed in a foster home on her release from the hospital. Two months later, Darlene was transferred to the foster home where she has since resided, and it is now her preadoptive home. She has never been in the mother's custody.

Some months after Darlene's birth, the mother's guardian and DDS placed the mother at the Judge Rotenberg Center (JRC), a highly structured residential setting.

1. First trial. In February 2015, DCF changed the goal for the child from reunification to adoption. A trial on the merits of DCF's care and protection petition took place over eight days beginning in July 2016 and ending in March 2017 (first trial). On May 22, 2017, the judge issued findings and orders concluding that the mother was "presently unable and/or unavailable" to parent Darlene as a result of her cognitive and developmental disabilities. The judge noted that the mother had shown progress during parent-child visits, but had never had unsupervised contact with Darlene or engaged in a primary caretaking role, and that the mother "need[ed] to identify and establish a plan relating to housing and her care of [Darlene] should she be awarded custody in the future." The judge awarded permanent custody to DCF, but declined to terminate the mother's parental rights. The judge found that for much of the time, DCF had failed to make reasonable accommodations for the mother as required by the Americans with Disabilities Act, 42 U.S.C. § 12132, and that DCF "placed the burden upon [the] [m]other to inform [DCF] of her required accommodations." The judge found that DCF had failed to provide the mother with a parent aide as available under DCF's own regulations, see 110 Code Mass. Regs. §§ 7.060 - 7.061 (2008), and that DCF's "actions and treatment of [the] [m]other during the pendency of this care and protection petition is demonstrative of its failure to make reasonable efforts to reunify the child with [the] [m]other." She concluded that although the mother was unable or unavailable to parent Darlene at that time, termination of the mother's parental rights was not in Darlene's best interests. The judge ordered that "the parties ... develop a reunification plan of the ... child to [the] [m]other" and that "visits between [the mother and the child shall] occur as frequently as logistically possible and shall progress to unsupervised and overnights when appropriate."

2. Events between the first and second trials. On April 7, 2017, less than three weeks after the conclusion of the first trial, the guardianship of the mother was terminated because she "no longer [met] the standard for" it.³

Beginning in July 2017, the mother's supervised visits with Darlene were increased to two hours per week. After visits increased, the foster mother reported that Darlene was having tantrums, engaging in head-banging, regressing in toilet training, and sometimes said she did not want to attend visits. As required by the judge's order, DCF provided the mother with a parent aide, for six months from June through December 2017. The aide worked with the mother twice a week, which the mother testified was helpful. Because the mother was living at JRC, which was too disruptive an environment for Darlene, parent-child visits took place at public places such as a playground, shopping mall, or library. It was the mother's responsibility to plan each visit, a task she found "overwhelming." The parent aide noted that the mother "would often fixate on a frustrating issue such as housing, rather than trying to accomplish the tasks that were asked of her."

In September 2017, the mother moved for review and redetermination of DCF's care and protection petition. The motion was premature because six months had not yet passed since the first trial. See G. L. c. 119, § 26 (c ). The judge allowed the motion for a review and redetermination hearing, and the case was continued for trial.

In December 2017, the mother moved to an apartment in the Elizabeth Stone House (ESH), which provided transitional housing and support services. As of the review and redetermination trial (second trial), the mother was living in that apartment, which she shared with a roommate. The apartment contained a bedroom for the child, which the mother supplied with appropriate furniture, toys, and clothing. She took multiple parenting classes. She was refilling and managing her own prescription medications. She traveled independently to her own medical and therapy appointments, and to school meetings and medical appointments for the child. At the time of the second trial, the mother was enrolled in an anger management class and two classes at a community college, which she traveled to on her own. The mother received $775 monthly in Supplemental Security Income (SSI), and testified that she could support herself and Darlene with that income. She also engaged in a search for part-time work.

Darlene, who was four and one-half years old at the time of the second trial, was diagnosed with behavioral problems that included frequent outbursts and a short attention span. She had an individualized education plan (IEP) and needed substantial direction and a school setting tailored to her needs. When interacting with other children, her behaviors included biting and kicking. As of the second trial, she was working with an individual therapist and a therapeutic mentor and was on a wait list for a therapeutic day program.

A court investigator's report filed in January 2018, G. L. c. 119, §§ 21A & 24, noted that the mother was working hard to accomplish what DCF asked of her and was in "strong" compliance with service plan goals. Even so, the investigator expressed concerns about the mother's inability to manage money, her lack of understanding of Darlene's IEP, and tension between her and the foster mother, which the investigator attributed in part to DCF's failures to support them both. The investigator recommended that parent-child visits take place at the mother's home at ESH, a more realistic setting in which to assess her parenting ability. She noted that a bystander observing the mother and Darlene at a visit at a public play area "might not know the two were together," but it was unclear whether that was because of the setting, Darlene's special needs, or the lack of a bond between them.

Counsel for the child then sought and obtained funds for forensic psychiatrist Virginia Merritt to evaluate the bond between Darlene and the foster mother. Among the information that Dr. Merritt considered was her observation of a March 20, 2018 parent-child visit at the mother's home that was described in detail by both Dr. Merritt and a DCF social worker. Dr. Merritt noted that during the visit, the mother spent most of the time interacting with the other adults present, and as a result of her "failure to respond to [Darlene]'s attempts to interact, [the mother] also failed to read [Darlene]'s distress and [Darlene] did not turn to [the mother] for comfort or reassurance." Dr. Merritt concluded that Darlene had a "modest attachment" to the mother, and that the mother "was attached to the idea of having a child, but not very attached to [Darlene] herself." In contrast, Dr. Merritt concluded that Darlene was "strongly attached" to the foster mother, and that removal of Darlene from the foster mother would be "psychologically ... catastrophic." Dr. Merritt opined that the mother "does not have the empathy or maturity" that would be required to help Darlene through the trauma of a separation from the foster mother, and did not exhibit the behavior necessary to help Darlene with her considerable developmental needs. The judge credited Dr. Merritt's opinion.

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