In re Leonard

218 N.E.3d 673

ADOPTION OF LEONARD.¹

No. 22-P-568

Appeals Court of Massachusetts, Barnstable.

Argued February 6, 2023.

Decided September 26, 2023.

Lois M. Farmer, Hyannis, for the mother.

Richard A. Salcedo, for Department of Children and Families.

Natalie K. Hoppel, for the child.

Present: Henry, Shin, & Hodgens, JJ.

HODGENS, J.

Following trial, a Juvenile Court judge concluded that the mother was unfit and terminated her parental rights with respect to her son, Leonard, who is an enrolled member of the Mashpee Wampanoag tribe. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the mother raises two primary arguments: (1) the evidence failed to support some of the judge's findings, and (2) the termination proceedings failed to comport with the requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 et seq. While we conclude that the evidence supported the challenged findings, we vacate the decree and remand for further proceedings mandated by the ICWA.

Background. We summarize the facts found by the judge, supplemented by evidence from the record consistent with those findings. The mother struggles with mental health issues including bipolar disorder, posttraumatic stress disorder (PTSD), anxiety, and depression. Continuing through the time of trial, the mother has refused to take prescribed medications, has been "homeless her entire adult life," has "exhibited a pattern of leaving stable housing," and lives with family and friends, in the woods, or in her car. She also has "a limited employment history" and receives Social Security income. She has a criminal history that includes open cases of assault, assault on a family or household member, harassment, and breaking and entering with the intent to commit a felony.

The Department of Children and Families (department) became involved with the mother and the child (born in 2013) in 2014, when it received a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of the child. That report was unsubstantiated; however, the department substantiated four out of five 51A reports of suspected neglect filed from 2014 to 2016. The child was removed from the mother's care in March 2017, following an incident during which the mother became disruptive at a hospital while giving birth to her second child. Neither the mother's second child nor her third child, born during the course of these proceedings, is a party to this appeal.

A family action plan developed by the department outlined a number of tasks for the mother in order to work toward reunification with the child. The mother's mental health struggles impeded the child's healthy development and contributed to the mother's housing instability. The mother did not follow through with any of the tasks in the action plan apart from sporadic visits with the child. In particular, she did not avail herself of necessary mental health services, failed to communicate consistently with the department, and missed "numerous" visits with the child. On the occasions when she did visit, the mother "fail[ed] to demonstrate an understanding of [the child's] developmental level and needs." The department social worker assigned to the case attempted to assist the mother in filling out applications to access mental health and housing services, but the mother often rebuffed her efforts.

The child has "special needs that ... require active engagement by his caretaker." He is "delayed in the areas of adaptive and personal-social development." He is in therapy and has been diagnosed with PTSD, attention deficit hyperactivity disorder, and generalized anxiety and adjustment disorder. He also sees an occupational therapist "for concerns related to body awareness and personal boundaries as well as emotional regulation and attention and behavior issues." His behavioral issues include being aggressive toward his peers, being particularly aggressive toward females, using inappropriate language, and making sexual gestures.

Following his removal from the mother's custody in March 2017, the child was placed in multiple foster homes. Since August 2017, the child has been living in a tribal kinship foster home. The foster mother is a maternal second cousin. The foster mother enrolled him in a program that provides special needs services, arranged for corrective surgery related to a congenital abnormality, and cares for his physical, emotional, behavioral, and educational needs. Both the child and the foster mother are members of the Mashpee Wampanoag tribe, and the child attends an indigenous language immersion school as well as an after-school program. He is "comfortable and thriving" in the foster mother's home and has "bonded to her."

Due to the mother's lack of progress with her action plan tasks, the department in July 2018 changed its goal from reunification with the mother to a permanent guardianship with the foster mother and sought termination of the mother's parental rights. After a trial where the judge found the mother unfit and terminated her parental rights, the parties filed a joint motion to vacate the decree because the expert witness presented by the department failed to meet the requirements of the ICWA. The judge allowed the motion. Following a second trial that included forty-four exhibits and testimony from the mother, the department social worker, the foster mother, and a different expert witness on Native American cultures, the judge issued a decree terminating the mother's parental rights on November 8, 2021, and the mother appealed.

Discussion. "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." Adoption of Xarina, 93 Mass. App. Ct. 800, 802, 109 N.E.3d 528 (2018), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 976 N.E.2d 814 (2012). When, as here, a child is a member of an Indian tribe, Federal law imposes additional requirements before parental rights may be terminated. Two of those requirements are at issue here. First, the judge must determine that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. § 1912(d). Second, the judge must make an additional "determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f). We do not disturb a judge's decision terminating parental rights unless the findings of fact are "clearly erroneous" or "there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011).

Unfitness. The mother contends that the judge erred by finding that she exhibited a "persistent lack of stable and appropriate housing" despite evidence showing that she had stable housing from March to September 2017. We disagree. The evidence clearly supported the judge's finding of the mother's persistent homelessness, which is a "proper consideration[ ] in an unfitness determination," when coupled with the mother's refusal to avail herself of available housing. Adoption of Virgil, 93 Mass. App. Ct. 298, 303, 102 N.E.3d 1009 (2018). By her own admission at trial, the mother had been homeless "all [her] life before and after [she] had kids." She testified that she "stay[s] with friends and family, sometimes in [her] vehicle." The record also showed that the mother had a history of abandoning housing arrangements: in the summer of 2016, she abandoned housing in a New Bedford shelter; in September 2017, she abandoned tribe-provided housing on Cape Cod; in December 2017, she abandoned housing in a shelter in Springfield; and in June 2019, she abandoned housing in Chatham. The mother also testified that she did not have a place to live if the child were returned to her custody. In assessing the mother's fitness, the judge properly considered this evidence of the mother's history of abandoning housing and was not required to give "undue weight" to a fleeting period of housing stability. Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136, 807 N.E.2d 237 (2004). See Adoption of Anton, 72 Mass. App. Ct. 667, 676, 893 N.E.2d 436 (2008) ("inability to secure ‘adequate stable housing’ " properly considered [citation omitted]).

We also discern no error in the judge's finding that the mother's untreated mental health issues endangered the child. The mother contends there was no nexus between her mental health issues and her ability to parent, but the record shows otherwise. The mental health issues cannot be viewed in isolation. As the judge found, "persistent lack of stable and appropriate housing, untreated mental health issues, and limited insight into [the child's] needs" coalesced to endanger the child. The record showed that the mother had mental health issues including bipolar disorder, PTSD, anxiety, and depression, but refused to take prescribed medications. On March 22, 2017, the incident occurred resulting in the mother losing custody of the child. While in active labor with her second child, the mother came to the hospital with the child and became disruptive. The mother argued with hospital staff and threatened to leave against medical advice. Based on this incident, the department supported allegations of neglect against the mother due to, untreated mental health issues. See Adoption of Xarissa, 99 Mass. App. Ct. 610, 617, 171 N.E.3d 737 (2021) ("judge reasonably concluded that the mother's failure to address her mental health concerns properly perpetuated the issues that brought the child into...