In re Josie

99 Mass.App.Ct. 1132

170 N.E.3d 720 (Table)

ADOPTION OF JOSIE (and a companion case ¹ ).

20-P-1080

Appeals Court of Massachusetts.

Entered: July 1, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, a Juvenile Court judge concluded that Josie and Sarah (girls) were in need of care and protection, that the mother was unfit to parent them, and that termination of the mother's parental rights was in the girls' best interests. Decrees entered terminating the mother's parental rights and dispensing with the requirement that she consent to adoption.³ On appeal, the mother principally argues that (1) the judge erred in finding that the mother was unfit to parent the girls, (2) the Department of Children and Families (department) failed to make reasonable efforts to reunify the mother and the girls, and (3) the judge abused her discretion in failing to order posttermination visitation. A third sibling, Robert (a pseudonym), argues that the judge abused her discretion in ordering only two in-person sibling visits per year. We affirm.

Procedural background. In June 2017, four years after the girls and their older brother Robert were removed from the custody of the mother, the department permitted the girls to move to North Carolina with their foster mother. Thereafter, the department filed a motion for review and redetermination, seeking to terminate the mother's parental rights as to the girls.⁴ See G. L. c. 119, § 26. The mother filed a motion requesting (1) a finding that the department had abused its discretion in allowing the girls to move, and (2) an order compelling their return to Massachusetts. After an evidentiary hearing, a Juvenile Court judge agreed that the department had abused its discretion in permitting the girls to move to North Carolina, reasoning that the move "did not conform to [the department's] permanency planning policy, placement policy, or its statutory imperative to use reasonable efforts to preserve biological ties between [the mother] and [the girls]." However, the judge declined to order the girls' return to Massachusetts, concluding that separating them from the foster mother with whom they had lived for four years was not in their best interests. The judge did enter a remedial order requiring, among other things, that the department (1) arrange at least one visit per month of at least two hours between the mother and the girls, (2) "seek a clinical consult" as to whether electronic communication with the mother served the girls' best interests, and (3) defer to the girls' therapists and clinicians regarding family therapy.

The review and redetermination trial began in May of 2018 and ended in October 2019. In a comprehensive written decision, the judge found the mother unfit to parent the girls and that termination of the mother's parental rights was in the girls' best interests. The judge also approved the department's plan for adoption by the girls' foster mother. The judge declined to order posttermination visitation with the mother, leaving that decision to the discretion of the department and the foster mother. However, the judge did order biannual in-person visits and monthly telephone contact between the girls and Robert.

Factual background. We summarize the judge's pertinent findings of fact, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). The mother suffers from posttraumatic stress disorder (PTSD), depression, and anxiety, due, in large part, to domestic violence she experienced during her relationships with the fathers of Robert, Josie, and Sarah. Panic attacks prevented her from using public transportation and flashbacks disturbed her sleep. She did not work and frequently slept during the day. Consequently, the mother missed numerous appointments with mental health clinicians and therapists.

In January 2013, the department filed a petition alleging that Robert, then seven years old, and the girls, who were two and five at the time, were children in need of care and protection. Aside from the children's ongoing exposure to Sarah's father's domestic violence,⁵ the department also cited evidence that the mother slept throughout the day and failed to supervise the children, the home was in a deplorable condition, and the mother was not providing for Robert's special emotional and behavioral needs. When department responders told the mother that they were going to remove the children, she responded, "take them, I'm sick of it." Subsequently, the mother stipulated to her unfitness, Robert was placed in a residential school for children with special needs, and the girls were placed together in the home of the foster mother, with whom they have continued to reside.

Following removal, the girls were enrolled in a special afterschool program to address their behavior problems. Josie hit other children with pencils, resisted staff, and frequently attempted to run away. These behaviors worsened following visits with the mother. Josie was diagnosed with PTSD and oppositional defiance disorder. Sarah exhibited tantrums during which she "threw chairs, flipped tables, threw papers, bit a teacher, and hit other children." She took medication for attention deficit hyperactivity disorder. Both girls had individualized education plans to accommodate their need for social and emotional support. While the girls' behavior improved after they moved to North Carolina with their foster mother, their need for structure and constant supervision continued.

Robert was reunified with the mother in December 2016. Shortly thereafter, the mother complained that her available income was being "eaten up" by Robert and that the department had "dumped" Robert on her. The mother continued to demonstrate difficulty supervising Robert and administering his medication because she frequently did not get out of bed. At about the same time, the mother slept through a foster care review meeting for the girls. In April 2017, a social worker awakened the mother when she arrived at noon for a scheduled visit. The sink was full of dirty dishes, the trash was overflowing, and there was no food in the refrigerator. The mother denied the worker access to Robert's bedroom.

In April 2018, the mother blamed Robert for her eviction. She told the department to "remove Robert," because she could not afford to keep him in the home or "do this anymore." Robert thanked the social worker who arrived to remove him. He stated that the mother had threatened to cut his hand or burn him when he misbehaved, and that the mother kicked him and hit him with a broom. Robert also disclosed that the mother rented his bedroom to strangers and made him sleep on the couch.⁶

Discussion. 1. The mother's appeal. a. Unfitness. The central question in a case to terminate parental rights is whether the parent is unfit to parent such that termination is in the best interests of the children. See Adoption of Ilona, 459 Mass. 53, 59 (2011). Such findings must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). See Adoption of Mary, 414 Mass. 705, 710-711 (1993). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age" (quotation and citation omitted). Adoption of Rhona, 63 Mass. App. Ct. 117, 125 (2005). "We give substantial deference to [the] judge's decision ... 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.

Citing "a six-year pattern of [the mother's] inability to care for her children" or herself, the judge found by clear and convincing evidence that the mother was unfit to parent the girls and that her unfitness was likely to continue. There was ample evidence supporting that conclusion. The mother "has suffered significantly" from depression, PTSD, and anxiety. As a result, she frequently was unable to get out of bed and leave her room. She has demonstrated an inability to supervise her children, each of whom has special needs. The mother lacked understanding of the girls' special needs and had no realistic plan for managing their behavioral problems. See Adoption of Paula, 420 Mass. 716, 730 (1995) ; Adoption of Oliver, 28 Mass. App. Ct. 620, 625-626 (1990) (unfitness established where child has substantial needs and parent lacks understanding and ability to care for those needs). Instead, the mother continued to be "overwhelmed with her own problems." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 134 (1990). In these circumstances, we discern no error of law or abuse of discretion in the judge's conclusion that the mother's shortcomings, including her "ongoing mental health concerns, her inability to care for herself, and her demonstrated inability to care for even one of her children at a time ... would impair her ability to care for the girls if they were returned to her custody."⁷

b. Reasonable efforts at reunification. The department is required to make reasonable efforts to strengthen the family unit before seeking to terminate parental rights. Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). "A judge may consider the department's failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary." Adoption of Ilona, 459 Mass. at 61. The mother's principal argument on this issue is that the judge erred in failing to consider her earlier finding that the department abused its discretion when it allowed the girls to move to North Carolina with the foster mother, and failed to consider the department's noncompliance with the remedial order. The department argues that it...