ADOPTION OF GARTH v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

These are appeals (1) by the mother from a decree issued by a judge of the Juvenile Court finding the mother unfit and terminating her parental rights as to Garth, and (2) by the paternal grandmother (grandmother) from the denial of her petition for adoption of Garth.³ On appeal, the mother asserts that the judge's finding of unfitness was not based on clear and convincing evidence and that the Department of Children and Families (DCF) did not provide adequate services.⁴ The grandmother argues that the judge erred in denying her petition for adoption. We affirm.

Background. 1. Care and protection case. We summarize the judge's findings of fact, which find ample support in the record, reserving some facts for discussion below. The mother and father met in 2009 and were in a relationship on and off for approximately four years. They have one child together, Garth, who was born in 2009. The father began physically abusing the mother in 2010.⁵

In January 2012, police responded to a report of domestic violence involving the mother and father. A G. L. c. 119, § 51A, report (51A report) was filed with DCF alleging that the father neglected Garth. DCF commenced a G. L. c. 119, § 51B, investigation (51B investigation) into the allegation.⁶ As a result of this incident, the mother ended the relationship with the father and obtained a G. L. c. 209A order against him. DCF closed the case in April 2012.

On May 29, 2013, a second 51A report was filed alleging that the father neglected Garth. The report stemmed from an incident where, after Garth let the father into the apartment, the father held the mother and Garth hostage for six hours and repeatedly physically assaulted the mother. The mother eventually escaped with Garth and went to the hospital. The father was subsequently arrested and charged with assault and battery, attempted murder, and kidnapping.⁷

On August 3, 2013, a fourth 51A report ⁸ was filed alleging that the mother neglected Garth. Police detectives, who were investigating a shooting in the mother's neighborhood, found Garth unsupervised at the mother's apartment; the mother could not be located. As a result, Garth was removed from the mother's custody, a care and protection petition was filed pursuant to G. L. c. 119, § 24, and an emergency 51B investigation was conducted.⁹ ,  ¹⁰ The mother contended that she had left Garth in the care of her nineteen year old cousin and denied all responsibility related to Garth's removal.

The mother's employment and housing were unstable throughout DCF's involvement with the family. On or around October 2013, the mother lost her Section 8 housing voucher for three years for failing to file the required paperwork, making her ineligible for certain housing services. Following the removal of Garth until February 2018, the mother moved approximately nine times and experienced periods of homelessness. From the time of DCF's first involvement with the family, the mother held at least ten different jobs. The mother's work hours varied from week to week and job to job.

After removing Garth from the mother's custody, DCF created a service plan for the mother and visits between the mother and Garth commenced. The mother often missed visits, arrived late, or was not consistently prepared for visits. In April 2014, DCF changed Garth's goal from reunification to adoption. On March 20, 2019, the judge adjudicated Garth in need of care and protection and terminated the parents' parental rights. The judge ordered that the mother have postadoption visits with Garth twice a year.¹¹

2. Grandmother's petition. The grandmother first sought to be considered as a placement resource for Garth in November 2013. DCF determined that she was ineligible for this role because of her lengthy criminal history. The grandmother later had her criminal record sealed. In 2015, the grandmother again contacted DCF to be considered as a placement for Garth. DCF explained that there was a “waiver process” that she could use to explain her criminal history, but the grandmother did not pursue this option.¹² The grandmother instead filed a petition to adopt Garth, on which the judge held a three-day trial.¹³ At trial, the grandmother did not produce the portion of her criminal record that had been sealed.

The grandmother owns her home and has a fourteen year old adopted son. The grandmother received a medical malpractice settlement, which she “has been living off of” since 2011. The grandmother “has no verifiable source of income.”

Garth has lived with his preadoptive family since June 2014. He considers his preadoptive caretakers as his parents, and wants to remain in their home “and be adopted by them.” On March 20, 2019, the judge denied the grandmother's petition, concluding that it was in Garth's best interests to be adopted by his preadoptive parents.

Discussion. 1. Termination of parental rights. The mother argues that the record does not support the judge's finding of unfitness by clear and convincing evidence. The mother contends that the judge failed to credit substantial evidence that she was fit to parent and that the judge improperly relied on the history of domestic violence in the home as a basis for determining unfitness.

“In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child.” Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017). A judge's decision to terminate parental rights is given substantial deference and we “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).

Here, the evidence showed that the father physically abused the mother while Garth was present in the home. A child exposed to domestic violence may suffer “a distinctly grievous kind of harm,” Custody of Vaughn, 422 Mass. 590, 595 (1996), and such “instances of familial violence” are properly considered when determining parental unfitness. Adoption of Talik, 92 Mass. App. Ct. at 374. The mother completed a domestic violence class after DCF's first involvement with the family in 2012. However, following the 2013 hostage incident, she did not complete or did not consistently engage with additional services that DCF requested related to domestic violence. The judge neither erred nor abused her discretion in considering the family's history of domestic violence in her determination of the mother's unfitness.

In addition, the mother achieved only “partial compliance” with the service plans that DCF provided, and by 2017 she was no longer engaging with services.¹⁴ The mother inconsistently attended meetings with DCF workers and visits with Garth. The mother's inaction caused her to lose her Section 8 housing voucher, which rendered her ineligible for certain housing services. During the pendency of the five-year care and protection proceeding, the mother was unable to demonstrate stability in either her employment or her housing. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (“inability to secure adequate stable housing was ․ properly considered in determining [the mother's] unfitness” [quotation omitted]). The judge did not err in concluding that this evidence supported a finding of unfitness.¹⁵

The judge's detailed and thorough findings of fact are supported by the record and “demonstrate that [she] gave close attention to the evidence.” Adoption of Talik, 92 Mass. App. Ct. at 374. The judge properly evaluated the provisions of G. L. c. 210, § 3 (c), and found factors ii, iii, iv, vi, vii, viii, x, and xii to be applicable. Accordingly, the judge's determination of unfitness is supported by clear and convincing evidence and the termination of the mother's parental rights is in the best interests of the child. See Adoption of Talik, supra.

2. Reasonable efforts. The mother asserts that DCF did not make reasonable efforts to support reunification between the mother and child because (1) DCF did not assist the mother to obtain housing, and (2) DCF created a visitation schedule that the mother could not comply with.

“Before seeking to terminate parental rights, [DCF] must make ‘reasonable efforts’ aimed at restoring the child to the care of the natural parents.” Adoption of Ilona, 459 Mass. at 60. Both the child and DCF contend that this issue is waived because it is raised for the first time on appeal. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020) (“It is well-established that a parent must raise a claim of inadequate services in a timely manner” [quotation and citation omitted]). We agree that the mother did not timely raise these issues such that DCF had an opportunity to remedy any inadequate services. See id.

Even assuming that the mother timely raised the issue of inadequate services, “[t]he record also belies the mother's claim.” Adoption of West, 97 Mass. App. Ct. at 245. Soon after Garth was removed, DCF referred the mother to a housing coordinator to assist her with finding appropriate housing. While DCF could not refer the mother to certain housing services because she had lost her Section 8 voucher, DCF did explain and provide information to the mother regarding other housing options. The record also shows that DCF knew of and considered the mother's changing work hours in scheduling visits and meetings. We note that the mother did not pursue the opportunity to have additional visits, as offered by the preadoptive parents, to see Garth at his soccer games and dance classes. The record before us reveals that DCF reasonably accommodated the mother's needs. See id.

3. Adoption petition. The grandmother argues that the judge erred in denying her adoption petition because she had a relationship with Garth, had successfully adopted another child, and the evidence did not support any allegations regarding her criminal history. When a judge is “[p]resented with more than one potential adoption placement, the judge's task is to determine which plan will serve the best interests of the child.” Adoption of Hugo, 428 Mass. 219, 226 n.9 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). See G. L. c. 210, § 3 (c). The judge's determination will not be reversed unless there is an abuse of discretion or clear error of law. See Adoption of Hugo, 428 Mass. at 225.

Here, the judge determined that, although the grandmother sought to be a placement resource for Garth and there was evidence of their relationship prior to Garth's removal from the mother's custody, as of 2016 Garth did not appear to recognize her as his grandmother. Furthermore, the judge drew a negative inference from the grandmother's failure to produce her unsealed criminal history at trial, concluding that it was impossible to fully assess the suitability of the grandmother as a placement without access to such information.¹⁶ The judge also found that the grandmother had no verifiable income to support Garth.

In considering DCF's proposed adoption plan, the judge found, inter alia, that Garth's preadoptive parents have provided Garth with a “structured day,” they are attentive to his educational needs, and they have enrolled Garth in a variety of activities to assist with his social and emotional development. The judge noted that Garth's expressed preference is to remain with his preadoptive family. Here again, the judge's comprehensive findings and rulings support her determination, and we discern no abuse of discretion in her denial of the grandmother's petition and finding that DCF's proposed plan serves the best interests of the child.

In Juvenile Court no. 13CP0199NE, decree affirmed.

In Juvenile Court no. 16AP0010NE, order denying petition affirmed.

FOOTNOTES

3.   These appeals were docketed separately in this court, but “paired for consideration by the same panel of judges for determination.”

4.   The father did not appeal from the termination of his parental rights.

5.   Between 2011 and 2013, the mother obtained three G. L. c. 209A abuse prevention orders against the father.

6.   The judge admitted the 51A reports to “set the stage” while the 51B investigative reports were considered for “statements of fact, ․ not for purposes of diagnosis, prognosis, and evaluation.” Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).

7.   Following the May 2013 51A report, DCF conducted a second 51B investigation into the family.

8.   The third 51A report was “screened out.”

9.   The 51B investigation revealed evidence of drug use in the mother's apartment. It also included a report from the building's maintenance worker that people known to be involved with drugs frequently entered and left the mother's apartment, and that Garth was often observed playing outside unsupervised.

10.   The mother waived her rights to a temporary custody hearing and DCF was granted temporary custody of Garth.

11.   The judge first found both the mother and the father unfit and terminated their parental rights on August 15, 2018. However, the judge vacated those decrees pending the hearing on the grandmother's adoption petition.

12.   In 2016, the judge denied the grandmother's petition for grandparent-child visitation.

13.   The mother supported the grandmother's petition, in the event that the judge was unwilling to return custody of Garth to her.

14.   The mother asserts that the tasks added to her service plan -- to complete a psychological evaluation and demonstrate what she learned in her parenting class -- were designed for her to fail. The judge found that the mother completed the psychological evaluation, but, because she had allowed her health insurance to lapse, she refused to pay for it and refused to sign a release permitting DCF to review the report. The mother also completed a parenting class, but the judge concluded, as the record supports, that she had received no benefit from the class. We discern no abuse of discretion in the judge's consideration of the extent to which the mother complied with the service plans. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).

15.   The judge's findings of fact include evidence favorable to the mother. We are satisfied that the judge considered this evidence and did not abuse her discretion in determining the mother to be unfit. See Adoption of Ilona, 459 Mass. at 59.

16.   Evidence was admitted at trial that provided a summation of the grandmother's criminal history.