ADOPTION OF ADALYN v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees issued by a Juvenile Court judge terminating her parental rights to her three children and declining to order posttermination visitation. We conclude that the trial judge properly found clear and convincing evidence of parental unfitness caused primarily by the mother's inadequately addressed mental illness, long history of domestic violence, and unstable and poor housing choices; properly declined to defer to the opinion of the mother's holistic therapist; and properly found that the Department of Children and Families (DCF) did not neglect the children or spread false information about the mother. Further concluding that the judge acted within his discretion in not ordering mandatory posttermination visitation, we affirm.

1. Background. The mother has a long history with DCF. We, however, limit our discussion to the events since her pregnancy with Adalyn. In November 2013, while she was pregnant with Adalyn, the mother underwent a psychological evaluation by a licensed psychologist, who found that she exhibited symptoms consistent with a diagnosis of bipolar II disorder. In February 2014, Adalyn was born, testing positive for marijuana.

Following Adalyn's birth, the mother lived in an apartment she rented with a former boyfriend, who she admitted caused holes in the walls of the apartment. In September 2014, the mother told police officers that she had gotten into a verbal argument with her brother in the presence of Adalyn. This argument escalated, and her brother dragged her out of the home, while she handed Adalyn over to the maternal grandmother.

In January 2015, the maternal grandmother reported to police that the mother dug her fingernails into the maternal grandmother's right hand and arm while the maternal grandmother attempted to calm the mother. The police took photographs of the maternal grandmother's injuries. When a DCF investigator made an unannounced visit in February 2015 to the mother's apartment, there was an overflowing trash container, the floor was soiled with crumbs and debris, there was broken glass on the bannister of the stairway, and Adalyn was picking up unused condoms in their wrappers on the floor and putting them in her mouth. The investigator also noticed a prescription pill bottle with two white tablets and a tied, cut-off clear plastic baggie filled with a white powdery substance on the kitchen table. In February 2015, a judge of the Juvenile Court granted DCF temporary emergency custody of Adalyn (then days shy of her first birthday), and Adalyn was removed the next day.

While the mother was pregnant with her younger children, the twins, she lived with her father. When she was approximately eight months pregnant with the twins, she got into a fight with her sister and went to live in a domestic violence shelter, but she was expelled for violating curfew. In November 2015, a different judge of the Juvenile Court granted DCF temporary emergency custody of the twins, days after their birth. The twins also tested positive for marijuana exposure at birth. Following the birth of the twins, the mother went back to live with her father, with whom she had an altercation as well.³ The mother remained there at the time of trial.

Approximately two weeks after DCF took the twins into custody, they were placed in the foster care home of the preadoptive parents. Adalyn was placed in the same home in April 2016.

In March 2016, the mother sought treatment from South Bay Mental Health for depression and manic behaviors. In May 2016, she was civilly committed to Westwood Lodge Hospital. She was again diagnosed with bipolar disorder, mixed with psychotic behavior.⁴ The mother was referred by DCF to obtain mental health services at Child and Family Services, but she declined to participate. She also refused a referral for a parent aide, refused to complete a medication evaluation, and refused to get an updated psychological evaluation. At trial, the mother testified that she did not need any medication to treat her mental illness, because she was not prescribed any.⁵ The mother maintained that she was bipolar at one time, but she was no longer bipolar.⁶

In February 2017, the mother appeared at a police department to make a report that DCF workers had documented their belief that she was a prostitute. At the trial, Randdy Chestaro, a DCF supervisor, testified that, after the mother reviewed the record following one of the court dates, she noticed that someone had recorded in a dictation for DCF that she had been prostituting. The mother accused a particular DCF worker of telling the police and others that she was a prostitute, even though this particular DCF worker was not assigned to the mother's case at the time the information was written. The mother alleged that the police were following her as a result of this. Chestaro testified that the only individuals that had access to the dictations were DCF and the attorneys, and he assured the mother that there would be no contact with the police about any of this information.

During visits, the mother referred to the adoption and case workers as “losers” in front of the children, and videotaped the workers rather than focusing on her children. She claimed that workers were intimidating her and her children by staring at them with “bug eyes” and “messy hair,” and she referred to police in the presence of Adalyn as “pigs in police uniforms,” informing Adalyn that she does not trust the police. Nonetheless, the mother was always affectionate with the children at visits.

The mother made repeated claims that Adalyn was being abused in her foster home, alleging that Adalyn had a swollen collar bone, a chipped tooth, and “vaginal trauma.” The foster parents took the child for a full medical examination to allay the mother's concerns. Because of the allegations, DCF decided to do a full body check of Adalyn before every visit with the mother.

Since March 2017, the mother's only treatment has been by her holistic therapist, Dr. Kathleen Gayoski, with whom she practices “coping skills ․ like yoga, meditation, ․ [and other] healthy alternatives to medication.”⁷ Dr. Gayoski had recommended that the mother be reunified with the children to a court investigator.

The cases concerning all three children were consolidated for trial. On October 24, 2018, after a trial, a judge of the Juvenile Court terminated the mother's parental rights and declined to order posttermination visitation.⁸ This appeal followed.

2. Standard of review. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a nonexhaustive list of factors to be weighed in determining the fitness of a parent.

On review of a judge's decision to terminate parental rights, we give substantial deference to the trial 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, 459 Mass. 53, 59 (2011). “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.’ ” Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). An abuse of discretion exists where the reviewing court concludes that “the judge made ‘a clear error of judgment’ ․ such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

3. Termination of parental rights. The mother argues that the trial judge erred in terminating her parental rights because Dr. Gayoski believes that she should have custody of her children. The trial judge recognized that the mother has been “largely consistent” in meeting with her holistic therapist, who has been “a support to [the] mother.” The holistic therapist, however, had not reviewed any record of the mother's psychiatric hospitalizations or any DCF record, had never observed a visit between the mother and the children, and had spoken to a DCF worker only for a few minutes on one occasion. “[T]he judge was entitled to consider the evidence of her recent improvements within the context of her earlier and continuing deficits.” Adoption of Jacques, 82 Mass. App. Ct. at 608. The trial judge's assessment of the credibility of witnesses and weight of the evidence should be afforded substantial deference. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034 (1999). As the holistic therapist's understanding of the mother's mental health history is primarily based upon the mother's self-reporting, the trial judge was not obligated to defer to her recommendation.

The mother further argues that her children were neglected by DCF. Specifically, at oral argument, the mother argued that her concerns were not being followed up on. Particular concerns that the mother cited were that one of her children had chronic low hemoglobin ⁹ and that Adalyn had a lump on her collarbone, a chipped tooth, and was potentially subjected to sexual abuse. To dispel such concerns, the DCF worker and her supervisor did a full body check of Adalyn before each visit and did not note any concerns. Following the mother's report of the swollen collar bone and chipped tooth, the preadoptive parents took Adalyn for a full medical exam, upon which a dentist determined there was a “superficial chip.” The physician did not see a lump or any sign of injury. Upon full body examinations by the child's pediatrician, no evidence of sexual abuse was found. The trial judge did not err in attributing these unsubstantiated concerns of abuse and neglect to the mother's inadequately treated mental illness where the preadoptive parents and DCF promptly followed up on each concern the mother had regarding the children's health.

The mother argues that DCF spread false information about her and relied upon falsified documents. Particularly, the mother contends that DCF was spreading false information that she was prostituting. Further, she maintains that the documents utilized by DCF have false information in them regarding her mental health diagnosis.¹⁰

The mother filed a police report in February 2017 that DCF workers had documented their belief that she was a prostitute, and the record at trial demonstrates that there was a DCF dictation documenting this belief. It appears from the record, however, that the only person who communicated the prostitution rumor to the police department was the mother. Regarding the documentation of the mother's mental health diagnosis, in May 2016, while the mother was admitted to Westwood Lodge Hospital, she was diagnosed with bipolar disorder mixed with psychotic behavior. In the discharge summary, it was noted that the mother has a history of bipolar disorder and schizophrenia. Therefore, any documentation that the mother may suffer from schizophrenia was supported by the discharge summary from Westwood Lodge Hospital. Because the mother has refused to submit to an updated psychological evaluation, there has been no evidence to dispute that she still suffers from bipolar disorder, and the trial judge acted within his discretion in relying on the mother's actions to date in confirming that she still had unresolved mental health concerns.

“Mental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs.” Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). In Adoption of Luc, the Supreme Judicial Court held that the mother's failure to engage with DCF's service plan, which required her to obtain treatment for her mental health concerns, and her consistent denial of the need for therapy and medication were “relevant to the determination of unfitness.” Adoption of Luc, supra at 147, quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). Here, the mother's mental health concerns subjected her children to repeated unnecessary medical checks and fostered a chaotic experience at visits. Although the mother was seeking assistance from her holistic therapist, she largely refused to engage in DCF's service plan. The extensive evidence of the mother's history and continuation of untreated mental health issues support the trial judge's determination that the mother's inadequately treated mental illness renders her unfit.¹¹

Furthermore, the trial judge properly concluded that the mother's long history of exposure to domestic violence supported termination of parental rights. The mother herself assaulted the maternal grandmother. Adalyn witnessed the mother being assaulted by her brother, and the mother currently lives with her father, even though she reports that he has assaulted her since the twins' birth. The judge properly considered the mother's apparent inability to protect the children from exposure to domestic violence as an important consideration in determining her parental fitness. See Adoption of Lisette, 93 Mass. App. Ct. 284, 293-294 (2018).

The evidence also demonstrated a long history of housing instability and poor housing choices by the mother. Since her pregnancy with Adalyn, she has lived with two, different (apparently abusive) boyfriends, at one point with her two brothers, and at various points with her father. She has also stayed at shelters, but once was expelled for violating shelter rules. She has consistently chosen housing options that are either unsafe or unsustainable. “The mother's inability to secure ‘adequate stable housing’ was also properly considered in determining her unfitness.” Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). The trial judge did not err in terminating the mother's parental rights.

4. Denial of posttermination visitation. A trial judge's decision whether to order visitation between a child and a parent whose parental rights have been terminated is reviewed for an abuse of discretion. See Adoption of Ilona, 459 Mass. 53, 66 (2011). “In determining whether to exercise the authority to order visitation, a judge must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?” Id. at 63.

At oral argument, the mother argued that she was bonded with the children. Although it is evident that the mother loves and cares about the children, there is no evidence to support that the children feel a close bond with her. The twins were taken from the mother days after their birth, and Adalyn was approximately one year old when DCF obtained custody of her. When the twins were separated from the preadoptive parents at visits, they were often upset, and Adalyn would console them. The judge here could reasonably conclude that mandatory posttermination visitation would not be in the best interests of the children. Where a child has formed a strong bond with her preadoptive family, and there is a lack of evidence of a significant bond with a biological parent, “judicial exercise of equitable power to require postadoption contact would usually be unwarranted.” Adoption of Vito, 431 Mass. 550, 563 (2000). We discern no abuse of discretion in the trial judge's decision not to order mandatory posttermination visitation with the mother.

Decrees affirmed.

FOOTNOTES

3.   The mother testified that, during this fight, the father hit her in the face and knocked the telephone out of the wall.

4.   The discharge summary indicates that the mother has a history of bipolar disorder and schizophrenia.

5.   The trial judge noted in his factual findings that the mother could not have been prescribed any medication because she was not under the care of a psychiatrist or a primary care physician at the time of trial.

6.   At oral argument before this panel, the mother stated that she is no longer diagnosed with bipolar disorder, but that she has a diagnosis of posttraumatic stress disorder.

7.   Dr. Gayoski testified that the mother met with her on a consistent basis monthly or twice monthly since March 2017.

8.   The juvenile judge also terminated the parental rights of the children's unknown or unnamed father or fathers.

9.   In February 2017, a physician determined that Adalyn had low hemoglobin, and recommended that the child return three months later to repeat the test. In May 2017, three months later, the child was brought for a recheck by her preadoptive parents, and her hemoglobin levels were normal. In November 2017, one of the twins was found by a physician to have slightly elevated hemoglobin, which did not concern the physician.

10.   The mother states that DCF has falsely documented that she was diagnosed with schizophrenia, and that the documentation that she is bipolar is inaccurate because that diagnosis has been “overturned.”

11.   Since the mother has been regularly meeting with her holistic therapist, she has continued to make unsubstantiated claims regarding the children's safety. For example, in March 2018, about one year after she began holistic therapy, the mother said at a visit that she had a banana with blood and “clear slime” on it, and told the DCF worker that she saw on the Internet that fruit was being infected “with things.”