ADOPTION OF GILBERTO v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In July 2015, the Department of Children and Families (department) filed a petition alleging that Gilberto, Sarah, and Laura were children in need of care and protection. The children were removed from the care of the mother and placed in separate foster homes. In December 2017, after trial, a Juvenile Court judge found all three children to be in need of care and protection. The judge found the mother unfit, found that it was in each child's best interests to terminate the mother's parental rights, approved of adoption plans prepared by the department for Gilberto and Sarah, and ordered entry of decrees terminating the mother's parental rights and dispensing with the need for her consent to each child's adoption. The judge made similar findings, and identical decrees entered, with respect to the father of Gilberto and Sarah (father 1).³ The mother was awarded two posttermination visits per year with Gilberto and Sarah, on specific terms that the judge set forth in the decision, and the department was ordered to “make reasonable efforts for a period of one year” to identify preadoptive families who were willing to comply with those terms. The judge found that Laura's father (father 2) was not unfit and placed Laura in father 2's permanent custody. The judge declined to order posttermination visitation between the mother and Laura.

The mother appeals from the decrees, claiming that the judge's findings are insufficient and do not provide clear and convincing evidence that she is unfit. The mother also claims error in the judge's decision not to order posttermination visitation with Laura. Gilberto and Sarah cross-appeal from so much of the decision that orders posttermination visits with the mother and requires the department to search for preadoptive families willing to accommodate that visitation. We affirm.

Background. Trial took place over the course of six nonconsecutive days between September and November, 2017. The judge heard testimony from three department social workers, including the family's ongoing social worker since 2015, and the family's ongoing social worker from 2012 until 2014. The mother and her boyfriend also testified. After considering the testimony and fifty-two documentary exhibits, the judge made 148 findings of fact and fifty conclusions of law. Contrary to the mother's claim, we conclude that the judge's findings “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).⁴ We summarize the findings, supplemented by evidence the judge explicitly credited.

1. The mother. The mother was twenty-eight years old at the time of trial and suffered from type-one diabetes that she did not properly address. This failure resulted in multiple hospitalizations and created a serious risk to the mother's health during her pregnancy with Laura. Six months before trial, the mother's diabetes was “uncontrolled.” The mother has also been diagnosed with, and prescribed a number of medications to treat, migraine headaches, ulcerative colitis, rheumatoid arthritis, carpal tunnel syndrome, chronic pain syndrome, facet degeneration of lumbar region, fistula, fibromyalgia, seizure disorder, and chronic gastritis. At the time of trial, contrary to medical advice, the mother was not using an insulin pump. She was not taking medication prescribed to treat her colitis; she was not in treatment for her spinal condition; she continued to have chronic migraines; and she continued to have seizures, which prevented her from driving.

The mother has received mental health diagnoses of posttraumatic stress disorder, depression, anxiety, attention deficit hyperactivity disorder, psychosis, suicidal ideation, borderline personality disorder, major depressive disorder, and bipolar disorder. The mother waits until her mental health reaches a crisis level to seek assistance, “precipitating acute hospitalization occasioned by concrete plans” to engage in, and in fact engaging in, self-harm.⁵ In December 2015, the mother was hospitalized after she intentionally overdosed on ibuprofen and prescription medication. In January, April, May, June, July, and August of 2016, the mother was hospitalized for suicidal ideations, hallucinations, and self-injurious behavior. Aside from these hospitalizations, the mother has not seen a psychiatrist since 2014. The mother testified at trial that she still experiences hallucinations as a result of feeling stressed and overwhelmed by everyday things.⁶ The judge did not credit the mother's repeated assertions that parenting three children under the age of five would not cause her to become stressed and overwhelmed.

The mother has a history as a perpetrator and victim of domestic violence. In October 2012, the department received a report pursuant to G. L. c. 119, § 51A (51A report) alleging neglect of Gilberto after the mother went to a police station and stated that father 1 threatened to hit her while she was holding Gilberto, then seven months old. In December 2012, the mother's mental health issues spawned an incident of “significant violence” between the mother and father 1, which lead to the filing of another 51A report alleging neglect of Gilberto. The mother and father 1 argued, and the mother pulled out a knife, while Gilberto was sleeping in another room.⁷ In February 2013, allegations of neglect of Gilberto were supported because the mother and father 1 engaged in a physical confrontation that woke Gilberto and caused him to cry. Father 1 shoved the mother from behind while she was holding Gilberto, causing her to fall on the bed. The mother, who was pregnant with Sarah, shielded Gilberto with her body while father 1 threatened her. The mother testified that father 2 also engaged in acts of domestic violence in the children's presence, stating that father 2 tried to “rip” Sarah from her arms and spit at her when she went after him; threw iced coffee at her; broke her cellular telephone; and barricaded her in the bathroom and tried to burn her with hot water.⁸ After father 2, the mother became involved with a man whom she reported was physically abusive.⁹ In light of this history, since 2015, the department's family action plan required the mother to engage in a domestic violence program and develop an “intimate partner violence safety plan.” The mother has done neither.

The mother has never established a safe and stable home for the children, which has also been a task on her family action plan since 2015. Her living situation has largely been predicated on the men she dated, and has generally consisted of one bedroom located in someone else's home. The mother has also lived in shelters and been homeless. At the time of trial, the mother and her boyfriend were renting a single room in a boarding house that was not appropriate for children. Despite having income, the mother did not contribute to the rent, and she had not saved any money in order to obtain more suitable housing. The mother planned to live at a shelter and seek agency assistance to obtain housing if the children were returned to her care; however, she did not seek any such assistance before or during the trial.

The family action plan also required the mother to meet monthly with the ongoing social worker and visit with the children. The mother did so until October 2015. Thereafter, and partially as a result of her repeated hospitalizations, the mother did not meet with the social worker or visit with the children throughout much of 2016. The mother visited with Gilberto and Sarah only three times in 2017, and “no showed” for three visits with them that were scheduled to take place during the course of the trial. The mother had not seen Laura since March 2016.

Finally, the family action plan required the mother to participate in counselling, provide random drug screens, engage in a psychological evaluation, and sign full releases. The mother engaged in counselling and provided the results of two drug screens, but failed to complete a psychological evaluation.¹⁰ She signed limited releases, allowing the social worker only to confirm with providers her participation in services, but not to discuss her progress.

2. The children. Gilberto was born in March 2012. Five days later, the department supported allegations of neglect of Gilberto because of the mother's untreated mental health condition. The department opened a case for the family, and Gilberto qualified to receive services from early intervention providers and Visiting Nurses Association. In July 2012, Gilberto was hospitalized “due to failure to thrive,” and his early intervention worker expressed concern that the mother was declining nutritional assistance. The department supported allegations of neglect of Gilberto by the mother after concluding that she had not been feeding him properly.

Sarah also qualified to receive services from early intervention providers and Visiting Nurses Association after her birth in August 2013. By February 2014, the mother and children were engaged in services, so the social worker recommended that the family's case be closed. Seven months later, the department received a 51A report alleging neglect of Gilberto and Sarah and discovered during its investigation that the children were no longer involved in early intervention services. The family was living in a shelter, and the mother was pregnant with Laura.¹¹ In February 2015, Laura was born prematurely. Laura had a cardiac condition, and immediately became the subject of a 51A report due to her prenatal exposure to the mother's medications. While investigating the report, the department learned that the mother had not managed her diabetes during the pregnancy, creating a risk to Laura of fetal death, and that Gilberto had been diagnosed with autism.

Gilberto was nonverbal and overdue for a physical exam when he was removed at the age of three. By the time of trial two years later, Gilberto's speech had significantly improved, and his autism diagnosis was in question because many of the behaviors that prompted it decreased while he was in foster care. Sarah had an eye condition that required monitoring, while “Gilberto suffers from no medical maladies” but had special educational and emotional needs that the mother was not able to meet. Gilberto and Sarah were both doing well in their respective foster homes at the time of trial and have bonded with their foster parents, who wish to adopt them.

After Laura was removed from the mother's care, father 2 participated in a forty-week batterer's intervention program, engaged in individual counselling, signed full releases, completed a psychosocial assessment and a psychological evaluation, met with the department and visited with Laura monthly, and followed all of the department's recommendations. As a result, in November 2016, Laura was placed in father 2's temporary custody. Laura did well in father 2's care and continued to do so at the time of trial. She was attending day care and receiving early intervention services; father 2 was attending to her medical needs in connection with her cardiac condition; father 2 and Laura were meeting with the social worker on a monthly basis; the social worker was in touch with collaterals who had no concerns about father 2's care of Laura; and father 2 was ensuring that Laura had consistent contact with her siblings.

3. Judge's ultimate conclusions. “When all is considered,” the judge found that the mother's failure to address her own issues rendered her unfit to parent all three children. The “unfitness is likely to continue to the foreseeable future to a near certainty,” the judge concluded, because the mother fails to recognize the impact on her children of her mental health struggles (which in turn jeopardized her medical condition), exposure to domestic violence, and an unstable living situation. After considering the factors set forth at G. L. c. 210, § 3 (c), the judge found that factors (ii), (iv), (v), (vi), (viii), and (xii) were applicable, and that “stability and permanency for these children warrant[ ] the termination of [the mother's] parental rights.” He further found that it was in the best interests of Gilberto and Sarah to have two supervised visits with the mother per year, which “shall be arranged, with thirty days' notice by mother contacting the custodian.” The decision also stated:

“In the event mother misses two visits (not necessarily consecutive) except as a result of verified hospitalization or inpatient mental health treatment in a facility, then all visits thereafter shall be terminated, except as may be allowed in the sole discretion of the custodian. Further, [the department] shall make reasonable efforts for a period of one year from the date of this order to identify a preadoptive family that will continue this schedule of visitation post adoption, but if not achieved within one year, then the adoption may proceed without such a requirement, based on the fact that in weighing the impact on the children, permanency by adoption must ultimately supersede the opportunity to continue to have occasional contact with mother and permanency cannot be delayed interminably to accomplish an ongoing visitation schedule.”

In contrast to the mother, the judge found that father 2 made progress in addressing his shortcomings by engaging in services and cooperating with the department. The judge found that father 2 provided Laura with a stable environment, and that his extended custody of Laura, under the department's supervision, satisfied the mandates of G. L. c. 119, § 26 (b) (2) (i). He declined to order posttermination visitation between the mother and Laura because he saw “no evidence of a bond.” The judge further noted that at the time of trial, the mother had not visited with Laura, who was thirty-four months old, for eighteen months.

Issues on appeal. The mother claims on appeal that the decrees must be vacated because the judge's findings do not (1) establish a nexus between her parental shortcomings and harm or risk of harm to the children, (2) demonstrate that termination is in each child's best interests, or (3) adequately address father 2's history of domestic violence. She also claims error in the judge's decision not to award her posttermination visits with Laura. Gilberto and Sarah claim that the judge was required to find that they share a bond with the mother before ordering posttermination visitation, and that he erred in finding that such visitation is in their best interests.

At oral argument, we asked the parties why the visitation order as to Gilberto and Sarah had not expired by its own terms one year after entry, rendering the cross appeal moot. The department agreed that the order had expired, both because one year had passed, and because, it represented, the mother had not visited with Gilberto or Sarah during that year. Counsel for the mother did not dispute that the issues raised by the cross appeal were moot,¹² but asked that we address the visitation order anyway to clarify that a bond is one factor to be considered in deciding whether such an order is appropriate, but is not a prerequisite. We decline the mother's invitation, dismiss the cross appeal as moot, and confine our analysis to the mother's appeal.

Standards of review. To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit, the unfitness is not likely to be temporary, and the child's best interests will be served by terminating the legal relation between parent and child. See Adoption of Luc, 484 Mass. 139, 144 (2020); Adoption of Ilona, 459 Mass. 53, 59 (2011). “Clear and convincing evidence is evidence that is ‘strong, positive and free from doubt.’ ” Adoption of Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018), quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975). The judge has discretion to order continuing contact between a child and a parent whose rights have been terminated where such contact “is in the child's best interest.” Adoption of Ilona, supra at 63. “We give substantial deference to the judge's findings of fact and decision, and will 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 Luc, supra, quoting Adoption of Ilona, supra at 59.

“A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (quotation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). A judge abuses his discretion only “where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Discussion. Since 2015, the mother has been unable to secure adequate and stable housing, failed to engage in services aimed at improving her fitness as a parent, failed to maintain visitation schedules, and refused to cooperate with the department. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987); Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008); Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005). She has been absent from the children's lives for prolonged periods due to her failure to treat her mental and physical ailments. See Adoption of Talik, 92 Mass. App. Ct. 367, 373 (2017) (parent's absence relevant to finding of unfitness). That failure also prevented the mother “from being a reliable parent able to care for the almost constant needs of [three] very young child[ren]” while they were in her custody. Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 133 (1990). The mother provided “compelling evidence for a finding of parental unfitness” when she testified that Gilberto experienced violence at the hands of father 1 and all three children witnessed abuse at the hands of father 2, Adoption of Talik, supra at 374, for it is well-known that “a child who has been either the victim or the spectator of abuse suffers a distinctly grievous kind of harm.”¹³ Custody of Vaughn, 422 Mass. 590, 595 (1996). Although the judge did not find that father 2 actually engaged in domestic violence, he did find that the mother considered the relationship to be abusive but stayed in it anyway. After it ended, rather than engaging in services aimed at disrupting “the cycle of violence and instability” that had characterized her and the children's lives with fathers 1 and 2, Adoption of Ramon, 41 Mass. App. Ct. 709, 717 (1996), the mother became involved with another man she described as abusive.

The mother's claim that there is no nexus between her parental shortcomings and harm or risk of harm to the children is not persuasive. The mother's failure properly to feed Gilberto as an infant resulted in his hospitalization. Her failure to separate from abusive partners caused the department to support multiple allegations that Gilberto was neglected. The judge could infer a connection between Gilberto's developmental delays and his inconsistent receipt of services due to the mother's shortcomings, especially “[w]hen we add to this the extraordinary progress that [Gilberto] made when [he] was removed from [his] mother's care and came under the care of the nurturing foster family that was waiting to adopt [him].” Adoption of Ilona, 459 Mass. at 62. The mother's failure to manage her diabetes during pregnancy created a risk of death to both mother and Laura, and the risk posed by the mother's failure to treat her mental health issues -- the mother attempting suicide, hallucinating, or injuring herself -- is obvious. The judge's findings overwhelmingly demonstrate that the mother is unfit, “taking into consideration [her] character, temperament, conduct, and capacity to provide for the child[ren] in the same context with the child[ren]'s particular needs, affections, and age[s].” Adoption of Mary, 414 Mass. 705, 711 (1993).

It is clear from the record that the mother is “overwhelmed with her own problems.” Adoption of Gwendolyn, 29 Mass. App. Ct. at 134. Going to the train station caused the mother to cry for the rest of the day; the mother continued to experience hallucinations because she is stressed and overwhelmed; and, although she claimed transportation issues and illness prevented her from visiting with the children, the mother was not properly treating her medical conditions, including seizures so that she could drive. “At no point” was the mother ready or able “to resume full responsibility for her” children, and she had no realistic plan for parenting three young children whom she had not seen for a significant period of time. Adoption of Paula, 420 Mass. 716, 730 (1995). This “constellation of factors” justified terminating the mother's parental rights to each child, regardless of their individual characteristics. Adoption of Greta, 431 Mass. 577, 588 (2000). The judge was not required to return the children to the mother's care and wait for a crisis to occur before finding as much. See Adoption of Inez, 428 Mass. 717, 721 (1999). See also Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (prior history has prognostic value). More specific findings on each child's best interests were not required.¹⁴ See Adoption of Nancy, 443 Mass. 512, 516 (2005).

Finally, the judge did not err when he placed Laura with father 2 even if he had engaged in some domestic violence, because the judge found that he had made significant progress in addressing the department's concerns, one of which was domestic violence. The judge was entitled to weigh the evidence regarding father 2's behavior while he was in a relationship with the mother against evidence that father 2 thereafter engaged in services that included a forty-week batterer's intervention program. Father 2 also cooperated with the department and provided Laura with a stable home. The judge's unchallenged findings, that (1) father 2 addressed his traits of concern and was not unfit, and (2) it was in Laura's best interests to be placed with father 2, are entitled to “substantial deference,” Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002), and justified the custody order. See Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007) (parent who is not unfit has natural right to custody of their child). An order for posttermination contact between the mother and Laura was “unwarranted” since there was no bond,¹⁵ Adoption of Vito, 431 Mass. 550, 563 (2000), and the mother had not seen Laura in eighteen months.¹⁶ Cf. Adoption of Talik, 92 Mass. App. Ct. at 374 n.7 (no abuse of discretion to decline to order visitation where mother had not seen child for nine months before trial).

Decrees affirmed.

Cross appeal dismissed as moot.

FOOTNOTES

3.   Father 1 did not appear for the trial and is not a party to this appeal.

4.   The mother's claims of error in many of the judge's subsidiary findings “amount to no more than a disagreement with the judge's weighing of the evidence and credibility determinations regarding witnesses.” Adoption of Don, 435 Mass. at 166. Having carefully reviewed the record, “[w]e see no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

5.   The mother cuts herself for “an emotional release.”

6.   The mother stated that “anything as simple as witnessing anything at one of the train stations that I'm at frequently ․ puts me on edge.” She explained, “I have a crying fit basically all day, and then my -- my mind just runs and runs and runs” with “[d]epressing thoughts.”

7.   The mother is of course correct that the judge erred in saying that the “children” were in the home while this event took place, given that Sarah had not yet been born.

8.   The judge considered the mother's statements regarding these acts not for their truth, but for the limited purposes of showing (1) the mother's perception of the relationship, and (2) that she allowed it to continue notwithstanding this perception.

9.   This was not the boyfriend who testified at trial. The mother and her boyfriend at the time of trial denied that there was any violence in their relationship.

10.   The judge was not required to credit the mother's testimony that she had completed one. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).

11.   The allegations of neglect were unsupported.

12.   Counsel for the children also did not dispute that the matter was moot.

13.   Thus, any error in the judge's findings regarding which children were present for the violent episodes involving father 1 are immaterial. See Adoption of Luc, 484 Mass. at 148 (no prejudice even if contested findings were erroneous where findings were not essential to judge's decision).

14.   We note that the judge specifically found that Gilberto and Sarah were attached to their respective foster families, who wish to adopt them. Gilberto and Sarah both take the position on appeal that termination of the mother's parental rights is in their best interests. While not dispositive, the children's wishes and bonds with their preadoptive families carry weight in the ultimate balance. See Adoption of Nancy, 443 Mass. 512, 518 (2005); Adoption of Nicole, 40 Mass. App. Ct. 259, 262-263 (1996).

15.   The judge specifically stated that the absence of a bond did “not preclude visitation, but [left] visitation to the sole discretion of” Laura's custodian.

16.   Similarly, we see no error in the denial of the mother's pretrial “motion for court ordered visits” with Laura.