CARE AND PROTECTION OF MACAULY v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A judge of the Juvenile Court found that the child was in need of care and protection and that the mother was currently unfit to parent the child, and placed the child in the guardianship of the maternal uncle. See G. L. c. 119, § 26. The mother has a long history of mental illness, including periodic psychotic episodes, often of paranoia. She has been hospitalized several times during the child's life, and the child frequently has been cared for by other family members for extended periods. The mother appeals, arguing that the judge's finding of unfitness is not supported by the evidence and that the judge's conclusion that the child will be at risk if he is returned to the mother's care is “impermissible speculation.”³ We affirm.

Background. We summarize the judge's findings of fact, which are amply supported by the record. The child, born in December 2006, was twelve years old at the time of trial. The Department of Children and Families (department) has been involved with the mother and child since two weeks after the child's birth. At that time, the mother displayed paranoid behavior; she sought medical attention for the child every day because she believed there was something wrong with the child (the child was healthy), and claimed that her boyfriend was trying to poison her. The department stayed actively involved with the family until March of 2008, when the mother agreed to allow a maternal aunt and the mother's boyfriend to be the child's primary caregivers for one year, while she addressed her mental health issues.

The department became involved again in September of 2011, over concerns with the mother's mental health. She was diagnosed with schizophrenia and paranoid delusions, was not consistent in taking her medication or treating with her psychiatrist, and did not allow anyone into her apartment to check on her or the child. The mother's extended family arranged for the mother to be hospitalized and assumed care of the child. The mother appeared to stop taking her medication again in July of 2015, and the department again became involved, but it took no action because the child's primary caretakers were family members with whom the mother and child were living.

In December of 2017, the mother and child were still living in a house with the mother's extended family. The police were called to the house and the mother reported the presence of armed men; the police saw only members of the mother's family. The mother became upset when the child refused to go with her to their shared bedroom in the basement, and accused her family members of poisoning the child. In January of 2018, emergency personnel were called to the house again because the mother was being paranoid and experiencing delusions. Among other things, the mother was not allowing the child to leave their shared bedroom to eat and spend time with the rest of the family upstairs. The department filed a care and protection petition on January 17, 2018, and the child was placed with the maternal uncle, in whose care he remained at the time of trial.⁴

Discussion. “In care and protection cases, the judge's subsidiary findings must be proved by a preponderance of the evidence and will only be disturbed if clearly erroneous. Taken together, these findings must then prove clearly and convincingly that the [parent is] currently unfit to provide for the welfare and best interests of [the child]. Parental unfitness is determined by considering the parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age.” (Quotations and citations omitted.) Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). “[T]he inquiry is whether the parent is so bad as to 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 mother argues that the judge's subsidiary findings do not establish that the child was at “serious risk of peril” and that there is no nexus between the mother's mental health issues and her ability to care for the child. We do not agree. While the judge recognized that the mother had made recent improvements -- including being compliant with her medication and therapy, obtaining suitable housing for her and the child, and visiting and maintaining contact with the child on a regular basis -- the judge based his finding of unfitness largely on the mother's extensive and serious history of mental illness, and her continuing inability to acknowledge that illness and its effect on the child. The mother denied that she had been hospitalized numerous times for her mental health issues, testifying instead that she went to the hospital for insomnia and headaches. She also testified that her only mental health diagnosis was depression, but that “[she was] good now.”⁵ Her continuing paranoia was evident at the trial when she reiterated her allegation that when she and the child lived with her extended family, the family tried to poison her and the child. She also did not contradict her prior statements “that there were people in the Amherst area who wanted to hurt or kill her.”

Importantly, there was also a clear nexus between the mother's mental illness and her ability to parent the child. The mother isolated the child by keeping him captive in their shared bedroom, refusing to allow the child to eat meals with the extended family or to spend time with them, and even refusing to take him to school. “It is not the existence of the mother's mental health issues that dictated the judge's conclusions, but rather the results of the mother's parenting and its actual and predicted effects on” the child. Adoption of Eduardo, 57 Mass. App. Ct. 278, 283 (2003).

The child testified that he wanted to live with the maternal uncle, not the mother. He described the mother's paranoia -- that “someone's out to get her, or someone's poisoning her and me,” and the effects of the mother not taking her medicine -- “she would get really angry, throw stuff at people, started getting into fights with family members.” He testified that when he lived with the mother, he sometimes got “really scared” about the mother not taking her medicine and fighting with her relatives.⁶ The wishes of a child “are entitled to weight in custody proceedings (although not determinative).” Care & Protection of Georgette, 439 Mass. 28, 36 (2003).⁷

The judge concluded that the mother was unable to “recognize her own paranoid thinking” and that if she became mentally unstable, the child “would be at risk of being responsible for Mother's care.”⁸ The mother responds that the judge's conclusion was based on “impermissible speculation.” We do not agree with the mother's characterization. The mother's “past pattern of behavior” has “prognostic value,” and the judge could rely on such past history. Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986).

At base, “[p]arental fitness is tied to what lies in the best interests of the [child].” Custody of Michel, 28 Mass. App. Ct. 260, 269 (1990). A child does not have to “have suffered maltreatment” before being removed from a parent's care; the department can take more than “remedial action,” and a judge “does not have to wait for disaster to happen.” Id. Here, the mother argues that she is not unfit to parent the child because the child is old enough “to understand when his mother is experiencing a crisis” and to know that he should “reach out to” his “strong network of family members.” We cannot fault the judge, however, for concluding that it was not in the child's best interests to place him in the position of having to take care of the mother if she sustains another mental health breakdown. Nor do we accept the mother's argument that the department should not have intervened because the child “has thrived in his mother's care with the assistance of his extended family when the mother has experienced a mental health crisis.” The mother ignores the facts that her relationship with her family has not always been cooperative, and that she has tried to isolate the child from her family in the past. In addition, since the mother now lives in her own apartment, her extended family would no longer be readily available to assist with the care of the child, or to recognize when such assistance is needed. Moreover, the child testified that he was afraid that the mother would not allow him to maintain a relationship with his extended family if he lived with her, and family members expressed fears that the mother would move with the child to a different city or out-of-State. There was clear and convincing evidence to support the finding that the mother was currently unfit.

Judgment affirmed.

FOOTNOTES

3.   The father did not appeal from a decree terminating his parental rights.

4.   The judge approved the department's plan of guardianship of the child by this maternal uncle.

5.   She admitted that she was under the care of a psychiatrist, but that he prescribed medicine because her “energy was very low.”

6.   The child also testified that he and the mother moved every nine to twelve months, which upset him because he could not keep the friends he made, and made him sad. The judge could have “focused on the mother's frequent moves with the child” in determining the mother's unfitness. Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004).

7.   “[T]here shall be a presumption of competency that a child who has attained the age of 12 is able to offer statements on the child's own behalf and shall be provided with timely opportunities and access to offer such statements, which shall be considered by the department if the child is capable and willing.” G. L. c. 119, § 1.

8.   Of all the judge's findings, the mother specifically challenges only one, stating, “The court erroneously found that Mother refused to make a safety plan.” She claims that the department did not establish that she knew that a safety plan was a requirement. To the contrary, the department social worker testified that she talked to the mother about the department's requirements. In any case, the clear import of the judge's finding is that the failure to create a safety plan was caused by the mother's persistent denial of her mental health issues, which was the main focus of the judge's ultimate finding of unfitness. See Adoption of Paula, 420 Mass. 716, 729 (1995) (judge can rely on mother's unwillingness or inability to acknowledge past neglect of child in finding mother unfit).