KALISKA v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After an eight-day trial, a judge of the Juvenile Court found the father currently unfit to parent his daughter, Kaliska, and adjudicated her in need of care and protection.³ The child, who was eleven years old at the time of trial in 2017, was placed in the permanent custody of the Department of Children and Families (department).⁴ We affirm.

The judge's subsidiary findings must “prove clearly and convincingly that the [parent is] currently unfit to provide for the welfare and best interests of [the child].” Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016), quoting Adoption of Quentin, 424 Mass. 882, 886 (1997). “Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age.” Id. The question is whether the father's parental shortcomings “place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

The father argues that “the [c]hild may well have significant development delays, disabilities, limitations, and/or special needs, but the nature and extent cannot be conclusively discerned based on this record.” He also argues that some of the findings describe the “normal behavior” of an eleven year old. We disagree.

The judge properly concluded that the child “has significant special needs” and requires “many services and supports” and “a caregiver who is capable of understanding her needs and ensuring that she receives those [services].” The child's psychological evaluation in 2015 concluded that she was in the first (lowest) percentile in verbal comprehension and working memory, second percentile in processing speed, fifth percentile in fluid reasoning, and seventh percentile in visual-spatial skills. The child's Department of Developmental Services (DDS) caseworker informed the court investigator that the child was qualified for DDS services because of her intellectual disability.

At the time of trial in 2017, the child was in the fourth grade, in a small self-contained classroom that focused on her abilities, and she was not academically at her grade level.⁵ She required close assistance in developing life skills, including personal hygiene skills such as showering and washing her hair. She had a challenging time answering questions about herself.

The record also supports the judge's finding that the father failed to meet, or even acknowledge, the child's special needs. Despite receiving copies of the child's psychological evaluation and individualized education plan, and visiting with the child, the father did not believe that she has any mental health issues or diagnoses. He believed that the child's performance would improve if people “stop[ped] babying her.” The person who conducted the father's parenting evaluation opined that he lacked the ability to make a plan to address the child's needs. The father has a problem with anger management and does not have a support network. During his visits with the child, he sometimes exhibited behaviors that demonstrated he would be unable to meet her needs if she were placed in his care. He did not contact the child's care providers as required by his service plans.⁶ A parent's lack of understanding of the specialized needs of a child may establish parental unfitness. Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009). See Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989) (parent's mental health is relevant in a fitness evaluation “to the extent that it affects [his] capacity to assume parental responsibility, and ability to deal with a child's special needs”).

Finally, the father asserts that the judge drew a negative inference because the father did not undergo a psychological examination, and that this violated his due process rights. As an initial matter, the findings merely state the fact that the father did not undergo the examination and do not expressly draw an inference. We see no error in the judge noting this fact. What is of significance is that the father changed his mind but then did not or could not follow through on arranging for the evaluation. In addition, the main case the father relies upon, Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738 (1984), which involved the provision in G. L. c. 233, § 20B (e), as then in effect, for creating an exception to the psychotherapist-patient privilege, is not persuasive. That case did not apply to care and protection matters, it did not address the permissibility of adverse inferences from the refusal to have a psychological evaluation, and even its general policy concerns as to the termination of parental rights have since been addressed by the Legislature by amending that statutory provision so that it now allows disclosure in cases “involving child custody, adoption or the dispensing with the need for consent to adoption,” provided that in these newly added categories, a warning is given. Even if we were to find fault with the judge's notation that the father initially refused the evaluation, which we do not, the evidence of his unfitness in light of the child's special needs was overwhelming. See Adoption of Luc, 484 Mass. at 146.

Judgment affirmed.

FOOTNOTES

3.   We note that the father has shown evident affection toward the child, and the judge's findings do not negate this. “Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision was not a moral judgment or a determination that the father ․ do[es] not love the child.” Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).

4.   The mother's parental rights to the child were terminated in 2016, and she is not a party to this appeal.

5.   The school also provided the child with a laptop computer, a literacy specialist, and an aide in her science and social studies classes.

6.   At trial, the father could not identify which school the child would attend if placed in his custody, and he had not spoken with the principal of any potential school.