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

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a three-day trial, a Juvenile Court judge found the mother of Hal to be unfit, adjudicated Hal to be in need of care and protection, and committed him to the custody of the Department of Children and Families (department). The judge further found that the department had failed to make reasonable efforts toward the goal of reunification and ordered the department to develop a transition plan for Hal to return to the mother's care.³ The mother appeals from the judgment finding her unfit at the time of trial.⁴ We affirm.

Discussion. The department filed the subject care and protection petition under G. L. c. 119, § 24, and obtained emergency custody of Hal, then three years old, and his brother, Adam (a pseudonym), then seven years old, on July 7, 2017, after receiving three reports alleging neglect under G. L. c. 119, § 51A (§ 51A reports). The § 51A reports arose from an incident three days earlier in which the police responded to the family's home and found the mother naked, unstable, apparently intoxicated, and arguing by telephone with Adam's father. The mother expressed that she could not “handle life anymore.” The children were transported to the home of their maternal grandmother, and the mother was admitted to a hospital for a mental health evaluation.

In April 2018, the department, in its discretion, returned Adam to the mother's care,⁵ and Hal began unsupervised weekend visits with her. Hal began to develop a more positive relationship with the mother after these weekend visits began. During the pendency of this case, Hal remained in the care of his godmother, who had also cared for him during a prior removal in 2014, see note 6, infra, and with whom he was closely bonded.

“Parental unfitness ․ means ‘grievous shortcomings or handicaps’ that put the child's welfare ‘much at hazard.’ ” Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). A judge's subsidiary factual findings must be proved by a preponderance of the evidence. See Adoption of Larry, 434 Mass. 456, 462 (2001). “Taken together, these facts must then prove parental unfitness, since it is the ‘critical inquiry,’ by clear and convincing evidence.” Care & Protection of Laura, 414 Mass. 788, 793 (1993). We review the judge's findings and conclusion with substantial deference and will not disturb them except “where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother asserts that the judge's findings are inconsistent, inaccurate, or not supported by the record. The mother also contends that the judge failed to weigh the evidence evenhandedly, thereby violating her rights to due process. Contrary to the mother's assertions, we conclude that the judge's findings of fact and conclusions of law are sufficiently specific and detailed “so as to demonstrate that close attention has been given the evidence.” Custody of Eleanor, 414 Mass. 795, 799 (1993). Moreover, the judge's thoughtful findings, which diligently cited the trial record,⁶ show that she conducted an “even-handed, proper assessment of all the facts.” Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 22 Mass. App. Ct. 62, 69 (1986).

The record offers ample support for the judge's factual findings, as well as the ultimate conclusion that the mother was unfit to care for Hal at the time of trial. The judge properly considered the mother'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). In addition, the judge's consideration of the mother's “past conduct, medical history, and present events to predict future ability and performance as a parent” was appropriate. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). The mother had a long history of department involvement, including the prior removal of both Hal and Adam from her care in 2014 due to allegations of abuse and neglect.⁷ She has faced significant challenges with substance use and mental health, particularly with managing stress.

Although the judge credited the mother for seeking treatment in order to address the “grievous shortcomings” affecting her parenting, the judge nonetheless found that the mother was not presently fit to care for Hal. See Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012) (“judge was entitled to consider the evidence of [the mother's] recent improvements within the context of her earlier and continuing deficits”). The judge found that the mother had “dutifully completed” the substance use treatment programs presented to her by the department; that she endeavored to participate in counseling, albeit inconsistently; and that she had completed anger management, relapse prevention, and parenting support programs. The department maintained at trial that the mother had disengaged from services. The mother testified that she was not engaged in treatment at the time of trial because she had completed all of the programs presented to her by the department to address her sobriety at that point. While the judge found that the mother's engagement with services was inconsistent, she also faulted the department for failing to make reasonable efforts to reunify Hal with the mother, specifically, for neglecting to provide referrals for services appropriate to the mother's stage of recovery or offer specific supports to help her meet the needs of Hal and Adam.

Nonetheless, the “critical inquiry” in a care and protection case is whether a parent is presently fit to care for the child. See Care & Protection of Laura, 414 Mass. at 791. Even if the department has failed to make reasonable efforts, this “shall not preclude the court from making any appropriate order conducive to the child's best interest.” Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. Despite the mother's progress, the judge properly concluded that the mother's emotional instability, low tolerance for stress, and “trauma reactive behavior” demonstrated unfitness to care for Hal. See Adoption of Luc, 484 Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9 (1989) (“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”).

The judge also properly considered the mother's ability to parent Hal in light of his individualized needs. “The specialized needs of a particular child when combined with the deficiencies of a parent's character, temperament, capacity, or conduct may clearly establish parental unfitness.” Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009), quoting Care & Protection of Amalie, 69 Mass. App. Ct. 813, 818 (2007). While the judge recognized that the mother had approximately fifty unsupervised weekend visits with Hal since April 2018, and that there was only one report of neglect or abuse during that time,⁸ she found that the mother needed additional services to assist her in addressing Hal's unique needs.⁹

The unfitness determination necessarily included an assessment of the mother's ability to parent both Hal and Adam simultaneously. “Parental fitness as to one child does not render a parent fit with respect to a different child if the other child has special needs.” Adoption of Frederick, 405 Mass. at 9. The department's social workers perceived the mother as unable to manage both children during supervised visits, and the mother herself reported feeling overwhelmed. Prior to the children's removal in July 2017, the mother expressed that “she did not feel ready” to care for Hal and that he “require[d] a lot from her.” Approximately one week before trial, a court clinician observed the mother's “erratic” behavior at a two-hour visit with Hal and Adam. The clinician and the family's ongoing social worker both testified about the mother's behavior during this visit, which the judge credited. The clinician further testified that “parenting both children together simultaneously [would] be challenging for [the mother].” We are not persuaded by the mother's argument that the judge accorded undue weight to the evidence concerning this two-hour visit. The judge's findings clearly demonstrate that this visit was but one factor among many others. While the judge recognized that the mother made progress in her parenting skills as a result of engaging with services, the record supports the judge's ultimate conclusion that the mother continued to have difficulty managing the stress of parenting and was unfit to assume full parental responsibility for Hal at the time of trial. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999).

Judgment affirmed.

FOOTNOTES

3.   The department filed its transition plan on October 11, 2019, after the trial had concluded. Although the planned reunification date was December 20, 2019, the department noted that the mother wanted to postpone reunification until the summer because she was concerned about interrupting Hal's school year and about the effect the disruption would have on his mental health. The department and Hal both argue that the mother's desire to delay reunification is further evidence of her unfitness, while the mother argues that we should not consider this evidence because it was outside the record. We need not resolve this controversy, because even without this evidence, the record supports the judge's finding that the mother was unfit at the time of trial.

4.   Hal's father is unknown or unnamed and is not involved in this appeal.

5.   Adam was initially a subject of this care and protection proceeding along with Hal. On the second day of trial, the judge dismissed Adam from the petition and ordered full custody restored to the mother.

6.   The mother argues that a few of the judge's findings cite to incorrect sections of the record, and that one refers to posttrial events not in the record. See note 2, supra. These failings do not render the judge's findings unreliable. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 n.6 (2004), citing Adoption of Helen, 429 Mass. 856, 859-861 (1999) (“minor errors do not matter where ultimate conclusion of unfitness is thoroughly supported by record”).

7.   The department filed a care and protection petition in January 2014, alleging neglect of Adam and Hal, after Hal tested positive for cocaine at birth. The department retained custody of both children for several months until Adam was returned to the mother's care in March 2014, and Hal was returned in August 2016. Since 2008, a total of fifteen § 51A reports concerning the mother have been filed, including those involving the mother's two older children, who are not parties in the present petition. The mother was also involved with the department as a child.

8.   A 51A report filed in July 2018 alleged that Adam had inappropriately and sexually touched Hal while in the mother's care. This incident occurred shortly after allegations regarding sexual abuse in Adam's foster home came to light. The judge credited the mother's testimony that she did not believe the allegations made by Hal against Adam.

9.   In particular, the judge found that the mother needed support in managing the sleep plan developed for Hal, who had trouble sleeping and suffered from nightmares. At the time of trial, in-home supports were in place to assist the mother in meeting the needs of Adam, but no such supports were in place for Hal. The judge ordered the department to incorporate an in-home therapy team as part of the court-ordered transition plan.