ADOPTION OF ZELDEN v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This appeal arises from a decree of a Juvenile Court judge finding the mother of Zelden unfit, terminating her parental rights, and granting her four supervised posttermination and postadoption visits with Zelden per year. The mother and Zelden each appeal from the decree, contending that both the termination of the mother's parental rights and the visitation order were an abuse of discretion.³ We affirm the portion of the decree terminating the mother's parental rights. However, we vacate the portion related to the visitation order and remand for further proceedings consistent with this memorandum and order.

Background.⁴ Zelden was born in April of 2008, the second of the mother's three children. For five years after Zelden was born, the mother independently raised and supported him and his older half-brother, while working and studying. By early 2013, however, the mother had given birth to Zelden's younger half-brother, and was in an abusive relationship with the father of that child. After receiving G. L. c. 119, § 51A, reports of neglect, in August of 2013 the Department of Children and Families (DCF) filed a care and protection petition in the Juvenile Court and was awarded temporary custody of the three children. DCF reunified the family not long afterwards.

In August of 2015, DCF received a § 51A report that the mother was found in her vehicle with heroin and drug paraphernalia, along with Zelden and his two half-brothers. The mother's drug screen, conducted the following day, was positive for opiates and cocaine. That September, DCF was granted temporary custody of the children.⁵ DCF placed Zelden in foster care, where he has since remained.

The mother's substance abuse issues continued thereafter. In December of 2015, the mother was arrested during a drug raid and incarcerated for one month. Later, in a January 2016 meeting with a DCF social worker, the mother admitted to having a substance abuse problem and needing help. She entered a six-day detoxification program in April 2016. Afterwards, on DCF's recommendation, the mother sought to enter a longer-term residential treatment facility, Grace House, where she would have the opportunity to be reunified with the children. Per Grace House's instruction, the mother asked her DCF social worker to send a letter to Grace House stating that DCF would place the children with her after she had achieved thirty days of compliant participation. The social worker sent such a letter, and provided the mother with a copy. Grace House never acknowledged receipt of the letter, however, and apparently never processed it. The social worker made follow-up telephone calls to Grace House, which were not returned. The mother accordingly was unable to enter inpatient treatment there. She did, however, engage in outpatient services at other facilities.

In June of 2016 the mother was incarcerated for drug-related offenses, and she remained incarcerated for seven months, until January of 2017. During this period DCF changed its goal for Zelden from reunification to adoption. While incarcerated, the mother engaged in various drug treatment and mental health services. She also began meeting with a counsellor from the Baystate Bridge Program. After the mother's release in January 2017, the Bridge Program directed her to resources for medical, mental health, and substance abuse treatment. However, the counsellor had difficulty contacting the mother, and the mother attended only one psychiatric appointment at the recommended hospital. Meanwhile, the mother did not provide DCF with confirmation of therapy sessions or employment, and canceled meetings on short notice. Between April and June 2017, DCF was unable to meet with the mother to give her a new service plan. As demonstrated by the mother's drug screens, the mother continued using cocaine and opiates through May of 2017.

Despite their separation, Zelden and the mother maintained a strong bond. For most of the two-plus years preceding trial in June of 2017, the mother routinely visited with Zelden once per week, including regular visits while she was incarcerated. At times the mother canceled or arrived late to a visit, but on the whole she was “relatively consistent in maintaining contact.” Between December of 2016 and May of 2017, the mother missed only a single visit and attended approximately twenty-five.

Zelden has thrived in his foster home and has a positive connection with the foster parents, who are also the preadoptive parents. At trial, Zelden testified that he preferred to be reunited with his mother, but that if reunification were not an option he would prefer to remain in his current placement and to see his mother twice each week. In contrast, both DCF and the foster parents supported only two posttermination and postadoption visits per year.

The trial occurred on various dates from June through September of 2017. On March 22, 2018, the trial judge issued the decree, from which the mother timely appealed. On June 8, 2018, the judge issued his written findings and conclusions.⁶

1. Termination of parental rights. “To terminate parental rights, ․ a judge must find by clear and convincing evidence ․ that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “Parental unfitness means ․ more than ineptitude, handicap, character flaw, conviction of a crime, unusual lifestyle or inability to do as good job a as the child's foster parent. ․ [P]arental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard” (quotations and citation omitted). Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). Further, the judge must also find that the parent's unfitness is not temporary, but is likely to continue. Id. When analyzing whether termination serves the child's best interests, the judge “consider[s] the ability, capacity, and readiness of the [parent] ․ to assume parental responsibility.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c). We give substantial deference to the judge's determination that termination is in the child's best interests. See Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother challenges the unfitness finding for two principal reasons. First, the mother claims that the judge insufficiently weighed the strides she made toward self-improvement, which included freeing herself from domestic violence and seeking treatment for her substance abuse. She argues that she should have been given more time to address her shortcomings. Second, the mother claims that the judge incorrectly determined that DCF made reasonable efforts to support her. Both arguments fail.

The mother contends first that the judge insufficiently credited her efforts to recover from domestic violence. In particular, the mother criticizes the judge's conclusion that she “did not provide any confirmation to [DCF] that she had engaged in services related to her history of domestic violence.” The mother's point is unavailing, however, because a fair reading of the judge's findings, as a whole, shows that he did not place substantial reliance on the mother's domestic violence issues. Rather, the judge's unfitness finding relied mainly on evidence of the mother's long-running substance abuse, and the effects of that substance abuse on her ability to parent Zelden. See Adoption of Helen, 429 Mass. 856, 860-861 (1999).

As to the mother's substance abuse, the judge's findings are detailed and not challenged by the mother. They address the mother's substance abuse history, her associated terms of incarceration, and her inconsistent strides towards improvement. Substance abuse was at the root of DCF's decision to separate the mother from Zelden in September 2015, and was the cause of the mother's incarceration in 2015 and again in 2016. During the six months preceding trial, the mother's drug screens continued to return positive for illegal substances. The judge found that the mother “failed to address the most pressing matter in a substantive way -- namely her addiction to cocaine and heroin.”

The mother's addiction thus directly prevented her from being able to care for Zelden, and the judge had ample reason to find that the mother's dependence was not temporary, see Adoption of Virgil, 93 Mass. App. Ct. at 301. To her credit, the mother did admit that she needed help, and she engaged in some support services at various times, both during and after incarceration. Yet the judge determined that such favorable evidence was outweighed by the mother's demonstrated, ongoing substance abuse and her failure to comply with service plans. We give “substantial deference” to the judge's weighing of the evidence, Adoption of Nancy, 443 Mass. 512, 515 (2005), and his conclusion was amply supported in the record.

The judge also did not err in finding that DCF satisfied its reasonable efforts obligation. Before seeking to terminate parental rights, DCF must undertake reasonable efforts to support reunification. See Adoption of Ilona, 459 Mass. at 60. Here, the judge's findings show that DCF worked with the mother for years, that the mother's participation in DCF programs was inconsistent and, at times, openly uncooperative, and that the mother's substance abuse continued despite DCF's efforts. While the mother and Zelden characterize DCF's unsuccessful attempt to help the mother gain admission to Grace House as a failure to satisfy its legal duty, the judge's findings do not support their contentions. To the contrary, the judge found that DCF provided the requested document to Grace House and made follow-up telephone calls; the mother and Zelden fail to acknowledge these findings. Nor do they address the mother's apparent lack of follow-up. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997) (DCF's obligation contingent on “the mother's fulfillment of her own parental responsibilities”). Once again, we defer to the judge's weighing of the evidence.

2. Visitation. Both the mother and Zelden also challenge the judge's visitation order, arguing that under the circumstances ordering only four visits per year was insufficient, and an abuse of discretion. As indicated, prior to the judge's decree, issued in March of 2018, the mother and Zelden had visited regularly, once each week. Zelden testified that if he could not be returned to the mother's custody, he would like to have visits twice per week. The judge found that Zelden and the mother had a bond, but nevertheless the effect of his decree was to reduce their contact significantly. The judge did not provide a rationale, or specific findings, as to this part of the decree.

In Adoption of Ilona, 459 Mass. at 63-66, the Supreme Judicial Court addressed the relevant factors a judge should consider in determining whether to order visitation between a child and a parent whose rights have been terminated. One consideration -- indeed, the overarching consideration -- is the best interests of the child. Id. at 63. Adoption of Ilona teaches, however, that the best interests factor “does not by itself answer the question whether an order of visitation should enter.” Id. at 64. Rather the judge must also consider whether such an order is necessary, or whether under the circumstances the question of visitation should be left to the child's adoptive family. Id. (“once a preadoptive family has been identified, a judge must balance the benefit to the child of an order of visitation that will provide assurance that the child will be able to maintain contact with a biological parent, with the intrusion that an order imposes on the rights of adoptive parents”).

We acknowledge that questions of posttermination and postadoption visitation or contact can be complex, and that the determination is generally left to the “sound discretion” of the trial judge, who has seen and heard the testimony of the parties. Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). In making such decisions the judge should consider the relationship and emotional bond between the child and the parent, Adoption of Vito, 431 Mass. 550, 562 (2000), as well as the child's age, Adoption Rico, 453 Mass. 749, 757 n.15 (2009) (“For an older child ․ contact with a biological parent can provide support and continuity ․ and thereby achieve a better adjustment to a new family”). The judge should also consider the child's relationship with the preadoptive parents, and whether visitation decisions should be left to the judgment of the preadoptive parents. Adoption of Ilona, supra at 64-66.

Here, the judge found that Zelden and the mother “maintain a bond,” and that posttermination and postadoptive contact is in Zelden's best interests. The judge's decree, however, resulted in a significant reduction in Zelden's contact with the mother, from fifty-two times per year to four.⁷ The judge's decision does not explain the reasons for this significant reduction, nor does it address how the reduction comports with Zelden's best interests, particularly in light of Zelden's expressed desire for even greater contact, as well as the testimony of the preadoptive parents favoring just two visits per year.

Under the circumstances a remand is necessary for the judge to reconsider the applicable factors, and to more fully explain his rationale. The explanation should address how the amount of any visitation that is ordered furthers Zelden's best interests, in light of the competing views of the child and the preadoptive parents.⁸ On remand the judge may properly consider evidence of the current circumstances of Zelden, the mother, his siblings, and the preadoptive parents.

We vacate that portion of the decree related to posttermination and postadoption visitation and remand the matter for further proceedings consistent with this memorandum and order.⁹ The decree is otherwise affirmed.

So ordered.

vacated in part and remanded; otherwise affirmed

FOOTNOTES

3.   The judge also issued a decree terminating the parental rights of Zelden's father, who has not appealed.

4.   We recite the salient factual findings of the Juvenile Court judge, together with certain material facts that are not in dispute. The mother does not challenge as clearly erroneous any of the findings we recite.

5.   Zelden's half-brothers were not a part of this termination proceeding. One brother is in the custody of his father and the other is in an agreed-to guardianship.

6.   Zelden's motion to file a late notice of appeal was allowed by the single justice on August 31, 2018.

7.   The judge's decree left any additional contact, beyond four visits per year, to the “sole discretion of the child's legal custodian.”

8.   The judge should also address visitation with Zelden's half-siblings and maternal grandmother. The judge found that at the time of trial Zelden had “maintain[ed] a strong relationship” with both of his half-brothers.

9.   Pending further order of the judge, the parties should continue the visitation schedule now being followed.