ADOPTION OF WADE v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge found both the mother and the father unfit to care for the three children, granted permanent custody to the Department of Children and Families (DCF), and terminated the father's parental rights.³ The judge did not terminate the mother's parental rights at that time. However, following motions for review and redetermination by the mother and DCF, the judge conducted a second trial and subsequently found the mother unfit to assume parental responsibility, terminated her parental rights, and approved DCF's adoption plans for the three children. On appeal, the mother claims that: (1) several of the judge's subsidiary findings and related conclusions supporting the unfitness determination were clearly erroneous; (2) the judge improperly shifted the burden to the mother to demonstrate her fitness; and (3) the judge failed to give due consideration to the mother's proposed alternative custody plans.⁴ We affirm.

Discussion. 1. Contested findings. The mother claims that several of the judge's findings were clearly erroneous, stale, or failed to demonstrate an even-handed review of the facts; specifically, those relating to the mother's: (1) continuing substance abuse; (2) unstable housing; (3) failure to learn about the children's needs; (4) mental health and memory issues; and (5) failure to appreciate the effect of domestic violence on the children.⁵ We disagree.

A judge's decision that termination of a parent's rights is in the best interests of a child is afforded substantial deference and will be reversed “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” (quotation and citation omitted). Adoption of Larry, 434 Mass. 456, 462 (2001).

a. Substance abuse. The mother first claims that DCF presented no direct evidence of her current substance abuse to rebut her own testimony that she no longer uses drugs. However, the judge was not obligated to credit the mother's testimony. The record showed that the mother failed to attend, or was late to, several relapse prevention group meetings; missed several drug screens; was observed with a pinpricked and bruised arm; had a positive alcohol test during treatment; tested negative for suboxone despite receiving suboxone treatment; failed to provide DCF with information regarding the clinic where she claimed to have completed a hair follicle test; was ultimately discharged from her treatment program for failure to comply; and withdrew her consent to release treatment records to DCF. See Adoption of Elena, 446 Mass. 24, 32-33 (2006) (combined view of past involvement with drugs and current failure to comply with treatment program is relevant to fitness determination). See also G. L. c. 210, § 3 (c) (xii) (mandating consideration of conditions likely to continue for prolonged, indeterminate period, such as drug addiction).

In light of the mother's admitted noncompliance with her treatment program, missed drug screens, and withdrawn release consents, the mother's argument that direct evidence of her drug use was stale is without merit. See Care & Protection of Vieri, 92 Mass. App. Ct. 402, 406 (2017) (negative inference permitted from lack of cooperation with DCF). That the judge considered the mother's prior drug use in assessing what weight to afford more recent evidence of her noncompliance was not error.⁶ “Although ‘stale information cannot be the basis for a finding of current parental unfitness[,] ․ [p]rior history ․ has prognostic value.’ ” Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). As occurred here, a judge “may consider past conduct to predict future ability and performance.” Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997).

b. Housing. The mother next claims that the finding that she had not obtained safe, stable, and appropriate housing was clearly erroneous. However, the record reveals that the mother had a history of housing instability and that her current housing was in fact not stable.⁷ Inability to secure “adequate stable housing” is a proper consideration when determining a parent's unfitness (citation omitted). Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). While the mother testified that she had arranged housing with her aunt and a home study had been completed on that residence, that arrangement was prospective only and otherwise “definitely temporary.” Further, it was dependent on the continuing good will of the aunt. Therefore, the judge's finding was not clearly erroneous in light of the mother's past and current housing instability. See Adoption of Paula, 420 Mass. 716, 729 (1995) (consideration of past evidence appropriate where it is relevant to current fitness). See also Custody of Eleanor, 414 Mass. 795, 799 (1993) (deferential review of trial judge's assessment of weight of evidence).

c. Understanding the children's needs. The mother also challenges the finding that she failed to demonstrate an understanding of the children's emotional and developmental needs. She claims that the judge erred in attributing this failure to her when DCF denied her access to the children's medical providers, information she claims was necessary to achieve this service plan goal.⁸ We disagree.

The mother's service plan with DCF required that she demonstrate an understanding of “the children's emotional and developmental needs through conversations with the DCF Social Worker and through conversations with the children's treatment providers.” The social worker first discussed this task with the mother in October of 2015, and it is undisputed that the mother made no progress on this task until May of 2016. She rarely asked about the children's well-being, including health information. She did not request their education records. In June of 2016, three months before trial and at least eleven months after she discussed the service plan task with the social worker, the mother finally met with the adoption worker in order to discuss the children's needs and request their provider information. The mother met with the adoption worker three times between May and July 2016, but then failed to show up to her fourth meeting in August. While the mother testified to various facts about the children's needs and services, she also stated that that she still “didn't realize” the extent of services in place for the children.

Ultimately, DCF's duty is “contingent upon the mother's fulfillment of her own parental responsibilities.” Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997). Therefore, in weighing the evidence and determining credibility, the judge properly looked to the totality of the evidence and not just the mother's request for provider information. See Custody of Two Minors, 396 Mass. 610, 620-621 (1986) (DCF clearly and convincingly established unfitness despite evidence of parents’ good intentions and some positive efforts).⁹

d. Mental health and memory issues. The judge also found that the mother suffers from mental health and memory issues, and concluded that this, along with other conditions and shortcomings, would put the children's welfare at risk. The mother claims this conclusion was not supported by the record and, in any event, it is not a grievous shortcoming for a parent to have “a poor memory for appointments ․ especially in the age of smart phones with alarms, calendars, and scheduling apps.” See Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975) (parental unfitness means “grievous shortcomings ․ that would put the child's welfare ․ much at hazard”). It is important to reiterate that “[c]ountless children have thrived while in the care of parents facing mental health challenges.” Adoption of Luc, 484 Mass. 139, 146 n.17 (2020). However, a parent's mental health concerns are relevant to the extent that they “affect[ ] the parent[’s] capacity to assume parental responsibility, and ability to deal with a child's special needs.” Id. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9 (1989).

A judge's finding will be overturned only if there is no evidence to support it. See Adoption of Larry, 434 Mass. at 462. Here, there was sufficient evidence to support the judge's findings and conclusion surrounding the mother's mental health and memory issues.¹⁰ The judge's concern was not simply that the mother's diagnoses could interfere with managing the children's various appointments, as the mother claims, but also that the mother's mental health issues contribute to her inability to maintain stability, housing, and employment and, therefore, an inability to provide the children with the services and consistency they require in order to succeed. See G. L. c. 210, § 3 (c) (xii) (requiring trial judge to consider mental illness and parent's ability to provide minimally acceptable care). In light of the evidence, the judge's conclusion was not clearly erroneous.

e. Effect of domestic violence on the children. Next, the mother claims that it was clearly erroneous to find that she failed to acknowledge father's violence or to benefit from domestic violence services. The mother claims that she accomplished this task by completing a domestic violence support group, testifying to the “power and control” cycle, and ending contact with the father. However, the mother's service plan task was to “be educated regarding the effects of domestic violence on [the] children” (emphasis added). The evidence showed that the mother denied the father's history of domestic violence and physical abuse towards herself and their oldest child, and did not acknowledge the harm such abuse causes to children. A DCF social worker testified that when the oldest child attempted to discuss a traumatic memory with the mother during a supervised visit, the mother “minimized” and “dismissed” the child's attempts. It was, therefore, not clearly erroneous for the judge to find that the mother did not demonstrate an understanding of the effect of domestic violence on the children as required by her service plan. See Custody of Eleanor, 414 Mass. at 799.

2. Burden-shifting claim. At several points in the termination decree, the judge wrote that the mother had “failed to demonstrate” compliance with, or achievement of, various service plan tasks. The mother claims that this language demonstrates that the judge allocated to her the burden to demonstrate her own fitness. We disagree.

“[DCF] always bears the burden of proving, by clear and convincing evidence, that a child is still in need of care and protection.” Care & Protection of Erin, 443 Mass. 567, 568 (2005). When read in context, the judge's challenged language refers to a summation of the evidence presented by DCF, focusing on the mother's failure to successfully complete her service plan tasks. The judge explicitly stated, “[The m]other has failed to consistently follow through with her DCF service plan tasks.” Further, the judge noted three times that the burden rested with DCF to prove unfitness. See Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003) (judge's statements that mother “has demonstrated” or “has not demonstrated” does not result in burden shifting where judge otherwise demonstrated application of proper legal standard to evidence). There was no error.

3. Alternative custody plans. Finally, the mother claims that the judge failed to consider her proposed kinship alternatives and the negative evidence relating to DCF's proposed preadoptive family. For a judge to consider parental nominations of caretakers, there must be an actual nomination. See Adoption of Xarina, 93 Mass. App. Ct. 800, 804 (2018) (adoption proposal must include sufficient information for judge to assess suitability). Although the mother claims on appeal that the grandmother and the aunt were proposed as alternative kinship options for custody, that is a misstatement of the record. The aunt was offered only as a support for the mother in the event that the mother regained custody. As to the grandmother, she was previously denied as a foster placement option for the children in 2014.¹¹ Since that time, she has made requests to DCF for increased visits, but not custody. At trial, she testified that she was not in a position to take custody of the three children, although she would assist if the mother regained custody. The next day, she changed her testimony and stated that she would like custody of the older child “right now.” A single, self-contradictory statement made spontaneously at trial is not a proposal with sufficient information to facilitate a judge's suitability assessment, especially when the grandmother had not sought custody since 2014, and the child has significant needs. See id.

We conclude that the judge's findings and conclusions were adequately supported by clear and convincing evidence of the mother's current unfitness, and represented an even-handed review of the evidence presented at trial. The judge neither improperly shifted the burden of proof to the mother, nor failed to consider evidence of her parental fitness. Therefore, the decree are affirmed.

So ordered.

Affirmed

FOOTNOTES

3.   The father is not a party to this appeal.

4.   The mother also makes several claims that DCF did not make reasonable efforts toward reunification. We disagree. First, the mother challenges DCF's decision to reduce after the first trial the frequency of her visitation. After the first trial, the mother filed three abuse of discretion motions relating to visitation. The first two motions were withdrawn, and the third was denied. The mother has failed to demonstrate that it was an abuse of discretion for her visitation to be scheduled on a monthly basis. Second, the mother contends that DCF failed to offer scheduling assistance to help overcome her memory issues. A claim of inadequate services may not be made for the first time on appeal. See Adoption of Gregory, 434 Mass. 117, 124 (2001) (parent may not raise noncompliance with Americans with Disabilities Act or other antidiscrimination laws for first time at termination proceeding). Third, the mother claims that DCF failed to make reunification efforts by denying her access to the children's clinical files. The mother makes this same argument as a contested finding, and we address it below.

5.   The mother also claims that the judge ignored “troublesome facts” about the preadoptive family and that, as a result, the entirety of the judge's decision is not entitled to deference. See Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995), quoting Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975) (“Troublesome facts ․ are to be faced rather than ignored”). However, the judge did acknowledge several of the facts noted by the mother, including that one of the children had an episode in crisis while in foster care and that the children each have significant needs and receive considerable services in the preadoptive home. The judge also acknowledged that the children experienced trauma while in the mother's care and had various issues prior to entering foster care, which the preadoptive family was working with providers to address. The other facts asserted by the mother as “troublesome” relate to whether the preadoptive parents were overwhelmed and whether the children were making progress in their preadoptive home. As to those claims, the judge made numerous findings about the care provided by the preadoptive parents, the services they coordinate for the children, and the needs and progress of the children. That the judge's assessment was ultimately unfavorable to the mother's cause does not mean that the judge ignored troublesome facts. “[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.” Custody of Eleanor, 414 Mass. 795, 799 (1993).

6.   The findings from the first trial were included as an exhibit in the second trial and were incorporated into the second set of findings. See Adoption of Darla, 56 Mass. App. Ct. 519, 520-521 (2002) (“recent findings from a prior ․ decision are admissible in a later ․ termination proceeding when such findings are relevant and material and made during a proceeding in which the parents had a compelling incentive to litigate”). On appeal, the mother does not challenge the inclusion of those earlier findings.

7.   The mother stated that she split her time equally between living with the children's grandmother and staying at her dogwalking clients’ homes. When asked about the mother's current living situation, the mother testified that it was “temporary” and the grandmother stated it was “off and on.”

8.   It is undisputed that the mother requested the children's medical records and provider information from DCF in June 2016. In advance of disclosing provider information, however, DCF required that she consistently meet with the adoption social worker to gain a practical understanding of the children's needs.

9.   The mother also claims that DCF's refusal to disclose provider information violates 110 Code Mass. Regs. § 11.22 (2008). In response, DCF contends that § 11.22 is inapplicable and 110 Code Mass. Regs. § 12.09 (2008) applies to matters in litigation. At bottom, in light of the evidence of the mother's own inaction in the record before us, the mother's claim does not render the judge's finding clearly erroneous. See Custody of Eleanor, 414 Mass. at 799 (finding of fact not clearly erroneous unless no evidence to support it).

10.   The mother testified numerous times to not being able to recall the names of medical providers and not remembering appointments or dates. At least one of the mother's diagnoses interferes with her ability to work and to be on time to appointments. The children have a myriad of special needs -- developmental, behavioral, emotional, and educational -- that necessitate daily stability and ongoing coordination with numerous clinical, therapeutic, and education professionals.

11.   There is no evidence that the grandmother appealed the denial.