ADOPTION OF DANTE v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial, a Juvenile Court judge concluded that Dante and James were in need of care and protection and that the mother was unfit to parent them. The judge entered decrees terminating the mother's parental rights, concluding that termination was in the children's ³ best interests.⁴ On appeal, the mother claims that many of the judge's factual findings were clearly erroneous; that the Department of Children and Families (DCF) failed to make reasonable efforts to reunify the mother with the children; and that termination of the mother's parental rights was not in the children's best interests. We affirm.

Background. We summarize the judge's findings, reserving some details for our discussion. The mother has five children. None of the children were in the mother's custody at the time of trial. This action relates only to Dante, born in February 2007, and James, born in October 2011.

The mother has been diagnosed with sickle cell anemia, bipolar disorder, depression, and an intellectual disability. She has failed to consistently comply with mental health treatment and has substituted street drugs for her prescribed medication. She has exposed all of her children to domestic violence and has failed to adequately supervise them.

DCF became involved with the family in 2000 when a report of abuse and neglect was filed pursuant to G. L. c. 119, § 51A (51A report), for neglect of the mother's oldest child, Adam (a pseudonym). The report alleged that the mother fought with her boyfriend in Adam's presence, and that both the mother and her boyfriend were arrested. The mother reported that she intended to continue the relationship with her boyfriend, and the maternal grandmother took custody of Adam.

In January 2008, DCF filed a care and protection petition regarding Dante and placed him in foster care. The petition was based on allegations of neglect: that the mother had failed to feed Dante age-appropriate food, that she failed to provide him with adequate medical care, and that her housing situation was unstable. Dante was returned to the mother's care after she participated in DCF services. Less than two months later, another 51A report was filed after the mother admitted to a DCF social worker that she had put hot sauce on Dante's tongue to deter him from swearing. Following James's birth in 2011, a 51A report was filed after he tested positive for tetrahydrocannabinol (THC), the psychoactive component of marijuana. The mother later admitted that she had consumed marijuana.

Yet another 51A report was filed in March 2013. At the time, the mother resided in an apartment with Dante, James, two of her other children, and the maternal grandmother. The mother left the apartment to buy cigarettes at 9 p.m., leaving Dante and James alone. She returned at approximately 3 a.m. under the influence of some substance. She and her boyfriend had an argument in the apartment above the one where the family resided, during which he physically assaulted her. When the police arrived, the mother was transported to the hospital for psychiatric evaluation.

Shortly after that incident, DCF filed a care and protection petition pursuant to G. L. c. 119, § 24, regarding Dante, James, and Adam.⁵ In September of 2013, DCF changed its plan for the children from reunification to adoption. In May of 2014, the mother stipulated to her unfitness. The judge found that the children were in need of care and protection and committed them to the permanent custody of DCF. In June of 2015, the judge approved DCF's permanency plan and found that DCF's efforts to place the children were reasonable. The trial regarding termination of the mother's parental rights took place over the course of eight days between January and April of 2017, with an additional day in September of 2017, after the judge reopened the evidence.

By the time of trial, Dante was living in a preadoptive home. He has a positive relationship with his preadoptive parents, who have addressed his educational, therapeutic, and physical needs. Dante has made significant progress. The permanency plan for Dante is adoption by his preadoptive parents.

James has cognitive limitations and suffers from sickle cell anemia, which requires special care and daily medication. He has been diagnosed with an unspecified neurological disorder and requires daily academic support at school and at home. He has excessive tantrums which have been difficult for his foster parents to manage. Consequently, he has been in three different intensive foster care homes. DCF's permanency plan for James is adoption. As of the final trial date, DCF had not found a suitable preadoptive home for James.

Discussion. The central question in a case to terminate parental rights is whether the parent is unfit and 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). “We give substantial deference to a 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.

1. Factual findings. After reviewing forty-two exhibits and the testimony of ten witnesses, the judge made 103 detailed findings of fact. Based on those findings, the judge concluded that the mother's abuse and neglect of the children was long-standing and continued to place them in danger. The mother challenges this conclusion as unsupported by the judge's subsidiary findings, several of which she argues were clearly erroneous. We have carefully reviewed the challenged factual findings and conclude that, with limited exceptions, the record evidence supported those findings by a preponderance of the evidence.⁶ Adoption of Jacques, 82 Mass. App. Ct. at 606.

The mother claims that the judge selectively relied on negative evidence regarding her parenting and that much of the evidence was stale. We are not persuaded. DCF had been involved with the family for approximately seventeen years. Many of the issues relating to the mother's neglect of the children and her involvement in domestic violence remained unresolved at the time of trial. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (“where the [parent] has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to the children to say, at some point, ‘enough’ ”). Here, the judge properly relied on the mother's “prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining” that termination was in the children's best interests. Adoption of Diane, 400 Mass. 196, 204 (1987).⁷

Moreover, the unchallenged findings alone establish that the mother suffers from serious mental illness, including depression, anxiety, and bipolar disorder. She has failed to consistently take her prescribed medication and has not followed through with DCF services and treatment plans. The mother has also failed to consistently provide stable housing for the children and has relied on others to care for them. In short, we see no abuse of discretion in the judge's conclusion that termination of the mother's parental rights was in the children's best interests.

2. Reasonable efforts by DCF. DCF 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 [DCF's] failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary.” Adoption of Ilona, 459 Mass. at 61. Here, the mother had two psychological evaluations which revealed her cognitive impairment. Consequently, DCF referred the mother to the Department of Developmental Services (DDS), but required her to contact DDS and complete the application process on her own. The mother and James argue that DCF's referral to DDS, without more, was unreasonable. We agree that, given the mother's cognitive limitations, simply directing her to DDS and suggesting a self-referral, did not reasonably accommodate her special needs. This claim, however, was never raised in the trial court and is therefore waived. See Adoption of Gregory, 434 Mass. 117, 124 (2001). Were we to reach the issue, it would not affect our view of the judge's ultimate conclusion regarding termination. Even where DCF fails to make reasonable efforts to reunify the family, “[the] trial judge must still rule in the child[ren]'s best interests” (citation omitted). Adoption of Ilona, supra. For all of the reasons discussed herein, there was ample evidence supporting the judge's conclusion that the mother's unfitness was likely to continue and that termination was in the children's best interests.

Finally, the mother and James argue that termination was not in the children's best interests because the adoption plans were legally insufficient. First, we are not persuaded by the mother's argument that Dante's bond with his pre-adoptive family was the dispositive factor in the judge's termination decision. As we have said, the judge could reasonably conclude that termination served Dante's best interests from the ample evidence of the mother's inability to parent the children. Second, while DCF has had difficulty identifying adoptive parents for James because of his special needs and challenging behavior, “[t]he adoption plan need not be fully developed to support a termination order.” Adoption of Willow, 433 Mass. 636, 652 (2001). The judge specifically considered James's special mental, physical, and emotional needs, as well as DCF's plan for adoption by recruitment, which included specific steps DCF intended to take to identify prospective adoptive families for James. There was no abuse of discretion.

Decrees affirmed.

FOOTNOTES

3.   Although the mother has five children, references herein to “the children” refer solely to Dante and James.

4.   The judge also determined that the children's fathers were unfit and entered decrees terminating their parental rights. The fathers have not appealed.

5.   Adam was dismissed from the care and protection petition in July 2013, because the maternal grandmother had legal and physical custody of him.

6.   We agree with the mother, for example, that there was insufficient evidence supporting the finding that the “[m]other did not believe that her children were affected by the domestic violence that they witnessed.”

7.   We discern no error in the judge's findings relating to the mother's older children. The mother's history of parenting her older children had prognostic value that the judge was entitled to consider when deciding her fitness to parent Dante and James. See Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (mother's “history shows failures to follow through with therapy and other forms of assistance for her children and for herself”).