ADOPTION OF XAN v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued a decree finding that the mother was unfit to assume parental responsibility of her son, Xan, terminated her parental rights, and approved the adoption plan set proposed by the Department of Children and Families (department). The judge declined to order postadoption contact.³ The mother appeals claiming that (1) the department failed to use reasonable efforts to reunify her with the child, (2) the judge improperly shifted the burden of proof to the mother to prove fitness, and (3) the judge erred in failing to appoint a guardian ad litem (GAL) for her.⁴ We affirm.

Background. We draw on the detailed findings of fact made by the trial judge, which find ample support in the record. The mother, who was age sixteen, gave birth to the child in July 2014. While the pair were in the hospital, the department received a report from a mandated reporter, pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of the child by the mother and neglect of the mother by her parents (the maternal grandparents). Another 51A report was filed on August 4, 2014, alleging neglect by the mother due to her inability to feed, care for, and carry the newborn child without supervision.⁵ The department filed a care and protection petition and was awarded temporary custody. On August 27, 2014, the maternal grandmother (grandmother) was given temporary custody of the child, with conditions. The mother resided with the grandmother and the child and they received a “plethora of services.”

On November 17, 2014, two more 51A reports were filed, alleging physical abuse and neglect of the mother by the maternal grandfather (grandfather), and neglect of the child by the mother and the grandmother. On the same day, the mother was admitted to a hospital for mental health treatment. During this time, the mother reported that the grandmother and the grandfather physically abused her, and that the child was at risk for abuse. The department removed the child, placed him in a foster home, and filed a care and protection petition with the mother as the subject child. On November 24, 2014, the judge appointed two GALs for the mother -- one to make recommendations as to the administration of antipsychotic medication,⁶ and the other to serve as an education surrogate.⁷

Following an investigation pursuant to G. L. c. 119, § 51B, the allegations of neglect of the mother and the child were supported; however the allegation of physical abuse by the grandmother and the grandfather was unsupported. Both the child and the mother stayed in their respective foster care placements. In December 2014, the mother was reunified with the grandmother and grandfather, and thereafter the child was placed in the mother's care. Less than one month later, a 51A report was filed by a mandated reporter alleging neglect of the child by the mother, after the mother was arrested for domestic assault and battery against the grandfather following a physical altercation. The child was not in the home at the time of the incident, but due to safety concerns, he was placed back in the former foster home. The grandfather agreed to leave the home, and the mother stayed in the home.

The department continued to provide services to the family. The mother and the grandmother had weekly visitation with the child. In August 2015, the mother turned eighteen years old, and expressed an interest in enrolling in the department's pre-independent living program, but changed her mind and decided to stay with the maternal grandparents.

On November 19, 2015, the department changed the child's goal from reunification to adoption. In February of 2016, the mother stipulated to her unfitness and, in November of 2016, she moved to New York.⁸ Thereafter the mother visited the child three times, on an inconsistent basis, and ultimately lost contact with the department. Despite this, the department social worker mailed the family action plan to the mother at a New York address provided by the mother. In September 2018, the mother contacted the department and requested a meeting, which led to a supervised visit with the child. At this visit, the mother fell asleep. When the child referred to his foster mother as “mom,” the mother became visibly upset, and ended the visit after twenty minutes. That was the last time that the mother visited the child.⁹

At trial, two department social workers testified and twenty-three exhibits were entered in evidence. The mother did not testify.

Discussion. 1. Reasonable efforts. The mother claims that the department did not make reasonable efforts to provide services to her before terminating her parental rights.¹⁰ See G. L. c. 119, § 29C. “Before seeking to terminate parental rights, the department must make ‘reasonable efforts’ aimed at restoring the child to the care of the natural parents.” Adoption of Uday, 91 Mass. App. Ct. 51, 53 (2017), quoting Adoption of Ilona, 459 Mass. 53, 60 (2011). While the department is obligated to make reasonable efforts to maintain the family unit, “the parents' rights are secondary to the child's best interests.” Adoption of Gregory, 434 Mass. 117, 121 (2001). The judge must weigh the “[e]vidence of [a] parent[']s refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs.” Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).

Here, the department met its obligation to the mother. The department provided the mother with therapy, including placements in two STARR programs. However, providers reported that the mother did not meaningfully engage in services and displayed aggressive, threatening, and paranoid behavior. The second STARR program reported that the mother was violent, aggressive, and insubordinate. The department also provided the mother with a parent aide, who participated in supervised visits and provided guidance to the mother.

After the mother reached the age of eighteen, at the department's suggestion, she signed up for voluntary services. The department continued to provide mental health, education, and family services and guidance to the mother. Through 2015, the department made several referrals for services, only some of which the mother engaged in. The mother continued to struggle in supervised visits with the child. And, in February 2016, the mother's individual therapist terminated treatment due to the mother's “complete lack of engagement.” At that time, the mother had also stopped regularly attending the therapeutic school that she had been placed in.

At a June, 2016 foster care review, the mother received a partially compliant rating as to her action plan, with minimal improvement. Thereafter, the mother moved to New York and ceased regular contact with the department.

The mother's failure to consistently engage and benefit from services cannot be attributed to the department. “In these circumstances, we think the department complied with its statutory and regulatory burden to strengthen the family, subject to its duty to insure that the child is protected.” Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). See Care & Protection of Isabelle, 459 Mass. 1006, 1007 (2011); Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002).

2. Burden of proof. Next the mother argues that the judge shifted the burden of proof to her to establish that she was fit.¹¹ We are not persuaded. The judge's use of the phrases “no evidence” and “no information,” when read in context, demonstrate that the judge did not impermissibly place the burden of proof on the mother.¹² Rather they reflect the judge's consideration of the evidence and a summation of what was presented. Compare Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003) (in context of the overall findings, use of word “demonstrated” did not indicate improper burden shifting).

The record is replete with examples of the mother's lack of cooperation and engagement in services prior to her move to New York, and her complete disengagement after her move. Without the evidence of the mother's fitness following her move to New York, the judge was required to consider the mother's prior engagement with the department. This included the services offered to her and her lack of participation therein. See G. L. c. 210, § 3 (c); Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986) (past pattern of behavior has prognostic value).¹³

3. Appointment of GAL. The mother argues that the judge erred in not appointing a GAL to “defend [her] legal rights.¹⁴ ” However, the mother concedes, as she must, that the judge appointed two GALs for her while she was a minor. Moreover, the mother was appointed counsel for the entirety of these proceedings. She does not cite any authority to support her claim, and nor can we find any. Cf. Adoption of Kirk, 35 Mass. App. Ct. 533, 536-537 (1993) (judge is not required to appoint GAL where no prior adjudication of incompetency and no issue of competence to participate in proceedings). Moreover, the mother failed to show how the appointment of a GAL would have made a difference in this case.

Decree affirmed.

FOOTNOTES

3.   The judge approved a postadoption contact agreement signed by the child's attorney, the preadoptive parents, and the maternal grandmother. The agreement provided for continued visitation between the child and the maternal grandmother and the child's younger sibling.

4.   The putative father never established paternity and is not a party to this appeal.

5.   At the time of his birth, the child had heart issues and difficulty breathing. When intubation failed, the child was placed on a ventilator. He was diagnosed with tracheomalacia. At the time of the trial, the child was on track developmentally and attending preschool where he was reported to be on target academically.

6.   The GAL for antipsychotic medication reported that the mother was suffering from mental illness that “is a substantial disorder of mood, thought, perception, orientation or memory ․ [which] grossly impairs [her] judgment, behavior, capacity to recognize reality or ability to meet ordinary demands in life.” The GAL concluded that although the mother's medication order had been in place for some time, she was not making good progress and was inconsistent in taking her medication and in engaging in therapy.

7.   The education GAL reported that the mother had a history of mental illness, aggressive behavior, and psychiatric hospitalizations. Her cognitive testing was in the low average range, and she displayed significant delays in “all areas of adaptive functioning, including self-care and general safety skills.”

8.   We reject the mother's claim that the judge clearly erred by finding that she moved to New York in November of 2016. This finding is supported by two department reports, which were admitted without objection. Furthermore, regardless of the precise date that the mother moved to New York, the record supports the judge's finding that she failed to maintain contact with the department beginning in late 2016.

9.   In December 2018, the mother gave birth to a second child. The department placed this child in the grandmother's care.

10.   In August of 2015, the mother filed a motion for an abuse of discretion hearing in the Juvenile Court which was denied after a hearing. The mother did not appeal from this denial.

11.   She points to seven of nineteen conclusions of law where the judge used the phrases “no evidence” or “no information.”

12.   The judge properly drew an adverse inference from the mother's failure to testify, although he did not put significant weight on this in his findings. Adoption of Talik, 92 Mass. App. Ct. 367, 371 (2017).

13.   All parties agree that the judge erred in finding that the mother was a signatory to the postadoption contact agreement. The error is harmless, however, because the finding was not important to the judge's determination of unfitness. See Adoption of Helen, 429 Mass. 856, 860 (1999).

14.   The docket indicates that in November 2015, the mother filed a motion for appointment of GAL for education, which was denied. However, this document is not included in the record appendix. In any event, a GAL for education was appointed when the mother was a minor.