ADOPTION OF RENEE (and six companion cases 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found the mother unfit to parent the youngest seven of her eleven children, terminated her parental rights to those children, and declined to order posttermination visitation between the parents and the children.3 On appeal, the mother challenges several of the judge's findings and claims that the evidence was insufficient to support the decrees. The children claim error in the judge's decision not to order posttermination visitation with the parents. Renee, the oldest child in this matter, argues that (1) the judge erred in terminating the mother's parental rights to all seven children absent child-specific findings, and (2) termination of the mother's parental rights was not in Renee's best interests. We vacate the order denying posttermination visitation and a portion of the decree terminating the mother's parental rights as to Renee. The decrees are otherwise affirmed.
Background. The judge made 387 specific and detailed findings of fact. We summarize the pertinent findings, reserving some details for discussion of the issues. In March 2016, the Department of Children and Families (department) investigated allegations that, during a fight between the mother and the father, the youngest child was hit on the head with the lid of a pot. Another of the children reported that the father was physically abusive to the mother and the children, and often consumed alcohol. As a result of this investigation, the allegations of physical abuse of the youngest child by the father and neglect of all the children by the mother were supported. On March 22, 2016, the department filed a care and protection petition and was granted temporary custody of the children.
Following this removal, most of the children did well in their foster placements, although Renee struggled to adjust. Meanwhile, the mother was compliant with many of her service plan requirements, including that she visit with the children. Accordingly, in January 2017, Renee returned to the mother's care, followed in April 2017 by the two youngest children. In the fall of 2017, two more children were reunified with the mother.4 The reunifications were generally successful until the end of May 2018, when the mother stopped meeting with service providers and communicating with the department. That fall, the five children who were in the mother's care were often absent from school, and Renee exhibited concerning behavior. A report was filed pursuant to G. L. c. 119, § 51A (§ 51A report), after Renee stated that her ADHD medication had not been refilled and the family's apartment did not have heat, electricity, or food. When the subsequent investigation revealed that the mother was “pirating” electricity from a downstairs neighbor, the children were arriving at school hungry, and the father had been staying at the mother's apartment,5 the department again removed the children from the mother's care. All five children were found to be infected with scabies.
Thereafter, the mother failed to maintain contact with the department or to comply with requests for medical records and home visits. In January 2019, the mother lost her housing and became homeless. She did not attend a scheduled visit with the children until March 2019. At that time, the department changed its permanency goal for all seven children from reunification to adoption.6
Discussion. A decision to terminate parental rights requires a two-step analysis. See G. L. c. 210, § 3. First, the judge must find, by clear and convincing evidence, that the parent is unfit and will continue to be unfit into the indefinite future. See Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607 (2012). Second, the judge must determine whether termination of parental rights serves the best interests of the children. See id. The judge's decision will remain undisturbed unless the findings of fact are clearly erroneous or there is a clear error of law or abuse of discretion. Adoption of Ilona, 459 Mass. 53, 59 (2011).
1. Unfitness. We are not persuaded by the mother's claim that the judge's findings are insufficient to prove by clear and convincing evidence that she was unfit to parent the children. The judge's unchallenged findings demonstrate a long-standing pattern of the mother's neglect of the children and an inability to either provide for their basic needs, or accept the help that would permit her to meet their basic needs. The judge's findings regarding the children's frequent truancy, the unsafe and unsanitary conditions of the home, periodic reports that the children went hungry, and unresolved issues of domestic violence were well supported.
Renee, joined by the mother, argues that the judge erred in failing to consider whether the mother was fit to care for a “smaller subset” of children. This argument is inapplicable where the mother's unfitness stemmed from indiscriminate neglect, rather than a failure to attend to one or another child's specific and individual needs. Here, the findings show that the mother's failure to meet the “particular needs” of the children affected each child individually; when in the mother's care, all the children suffered from a lack of safe housing, adequate food, and the supports needed to ensure their healthy development. Adoption of Mary, 414 Mass. 705, 711 (1993). Contrast Adoption of Frederick, 405 Mass. 1, 9 (1989) (“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 Cesar, 67 Mass. App. Ct. 708, 712 (2006) (“A parent may be fit to raise one child and unfit to raise another, in circumstance where the needs of the ․ children differ”).
Moreover, the record reveals that the mother failed to meaningfully engage in resources offered by the department to assist her in providing food, clothing, and shelter to the children, or to treat her mental health issues.7 Even after her children were removed, the mother did not initially respond to communication from the department, and later told social workers, “I did get your phone calls and messages; I just didn't call you back.” See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (“refusal to cooperate with the department ․ is relevant to the determination of unfitness”). The judge was entitled to conclude that the mother “was not able to benefit from [the services offered by the department] such that she could become a fit parent,” see Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), and that the mother did not have the ability “to resume full responsibility for” the children. Adoption of Paula, 420 Mass. 716, 730 (1995).
The mother's claim that the judge relied on inadmissible hearsay in making her findings is not supported by the record. First, because a § 51A report is an allegation of suspected abuse, not the product of an agency investigation, compare G. L. c. 119, § 51A, with G. L. c. 119, § 51B, the judge appropriately used the § 51A reports only to “set the stage.” Care & Protection of Inga, 36 Mass. App. Ct. 660, 664 (1994), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). Second, the majority of the challenged findings derived from official department-created documents and first- and second-level hearsay contained within those documents are admissible “for statements of primary fact, so long as the hearsay source is specifically identified in the document.”8 ,9 Adoption of Luc, 484 Mass. 139, 153 (2020). See Adoption of George, 27 Mass. App. Ct. 265, 272 (1989). The mother's claim that the judge relied substantively on hearsay statements that were admitted only to “set the stage” is similarly unavailing. We see nothing in the record to intimate that the judge used those statements for anything more than the purpose for which they were admitted.10 See Custody of Michel, supra at 267. See also Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992) (“it is presumed that the judge as trier of fact applies correct legal principles”). Finally, the mother's remaining challenges simply reflect a dissatisfaction with the judge's weighing of the evidence and her credibility determinations. See Adoption of Larry, 434 Mass. 456, 462 (2001) (judge's findings overturned only where there is no supporting evidence). Having carefully reviewed the record, “[w]e see no basis for disturbing the judge's view of the evidence.” Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). “[T]he judge did not clearly err in finding that the mother was unfit and that her unfitness was not temporary.” Adoption of Ilona, 459 Mass. at 62.
2. Best interests analysis. After finding that a parent is unfit, a judge must determine “whether the parent's deficiencies ‘place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child,’ ” Adoption of Varik, 95 Mass. App. Ct. 762, 767 (2019), quoting Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), such that the children's “best interests will be served by terminating the legal relation between parent and child[ren]” (citation omitted). Adoption of Luc, 484 Mass. at 144. In making this determination, the judge “shall consider the ability, capacity, fitness and readiness of the child[ren]'s parents ․ and shall also consider the plan proposed by the department or other agency initiating the petition” (citation omitted). Adoption of Nancy, 443 Mass. 512, 515 (2005).
a. Six youngest children. The judge properly considered the relevant factors in determining that termination of the mother's parental rights would be in the best interests of the six youngest children. See G. L. c. 210, § 3 (c). Even with the assistance of the department, the mother failed to address the causes of her unfitness or make use of the supportive services to better provide for the children. The judge found that the mother displayed neither the “propensity nor the willingness or ability to learn how to appropriately address the children's educational, emotional, and social needs.” The judge was entitled to weigh against this fact the significant evidence of the children's positive growth after they were removed from the mother's care and the judge's findings reflect that she did so, carefully considering each child's well-being and development throughout the course of the proceedings. See Adoption of Terrance, 57 Mass. App. Ct. 832, 835 (2003). We see no abuse of discretion in the judge's ultimate conclusion that termination of the mother's parental rights would offer the “permanency, safety, and security” that was in the best interests of the six youngest children. See Adoption of Willow, 433 Mass. 636, 647 (2001) (“Stability in the life of a child is important”). More specific findings were not required given the “constellation of factors” that justified terminating the mother's parental rights to each child, regardless of their individual characteristics. Adoption of Greta, 431 Mass. 577, 588 (2000). See Adoption of Nancy, 443 Mass. at 516. To the extent the mother now challenges the inclusion of the department's revised adoption plans in the findings, we see no error. The judge properly sought and considered more particular information from the department about the adoptive homes the department hoped to recruit for the children. See Adoption of Scott, 59 Mass. App. Ct. 274, 278 (2003) (judge retains “oversight over posttrial adoption plans”).
b. Renee. Renee, born in January 2007, was eleven years old at the time of trial and was not in a preadoptive home. The judge found that Renee had difficulty adjusting after removal from the mother's care and “really wanted to see” the mother, but also that Renee did “very well” in her current foster placement and did not ask about the mother. For the first time on appeal, Renee claims that termination of the mother's parental rights was not in her best interests because Renee (1) was not in a preadoptive home, (2) desired to return to the mother, with whom she had a significant relationship, and (3) was almost of the age where she could withhold her consent to adoption. See G. L. c. 210, § 2. Given the gravity of what is at stake in these proceedings, we conclude that this case presents “special circumstances” to warrant appellate consideration of this late-raised issue. Adoption of Flora, 60 Mass. App. Ct. 334, 340 n.10 (2004).
The parent-child bond is relevant to the best interests analysis. See Adoption of Bianca, 91 Mass. App. Ct. 428, 432 (2017). So too is the department's realistic plan for the child. See Care & Protection of Valerie, 403 Mass. 317, 319 (1988). A child's wishes are also relevant, although not “outcome determinative.” Adoption of Nancy, 443 Mass. at 518. Here, neither Renee's wishes nor the statutory significance of her age was put before the judge. Accordingly, we cannot discern whether and what impact those factors would have had on the judge's analysis. A remand for further consideration of, and findings regarding, those factors is appropriate. See Adoption of Ramona, 61 Mass. App. Ct. 260, 266-267 (2004).
3. Posttermination visitation. The children argue that the judge erred in not ordering posttermination visitation. From the bench, the judge found that “there was no evidence given at trial that there was a significant relationship between any of the children and the parents that, if disrupted, would cause irreparable harm to the children,” and left the decision of posttermination visitation to the discretion of the adoptive families.
The decision to order posttermination visitation must be “grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child[ren] and the biological parent[s].” Adoption of Vito, 431 Mass. 550, 562 (2000). The guiding principle in determining whether posttermination visitation is in the best interests of the children is not whether the children would be “irreparably harmed” in the absence of such an order, but instead whether a visitation order would “assist the child[ren] as [they] negotiate[ ], often at a very young age, the tortuous path from one family to another.” Id. at 564-565. Notwithstanding the mother's parental deficiencies in this case, the record shows that she was the children's primary caregiver until they were removed from her care. Where, as here, none of the children were in preadoptive homes at the time of trial, continued visitation with the biological parents “can provide support and continuity,”11 and is a factor to be considered by the judge. Adoption of Rico, 453 Mass. 749, 757 n.15 (2009). See Adoption of Vito, supra at 563-564 (posttermination visitation may be warranted by evidence of children's bond to parents and lack of identified preadoptive homes). Because the judge applied an incorrect “irreparable injury” standard, and it is therefore not clear that the judge weighed these considerations in evaluating whether posttermination visitation was in the children's best interests, we remand for further findings on this issue.
Conclusion. For all these reasons, the portion of the decree terminating the mother's parental rights as to Renee is vacated and the matter is remanded to the Juvenile Court for further findings as to Renee's best interests. The order denying posttermination visitation as to all the children involved in this appeal is also vacated, and we remand for further findings as set forth in this memorandum and order. In all other respects, the decrees are affirmed.
Affirmed in part; vacated in part and remanded.
3. The father of six of the seven children did not appeal from the termination of his parental rights as to those children. The biological father of the youngest child was unknown to the Juvenile Court.
4. The other two children remained in foster care.
5. The department was concerned about the father's presence in the mother's apartment in light of the history of domestic violence between the mother and father.
6. None of the children were in the mother's custody at the time of trial.
7. The judge did not credit the mother's denial that she had any mental health issues.
8. The mother also claims error in the admission, both in whole and in part, of an affidavit by a department social worker written in support of the department's petition for custody of the children. Contrary to the mother's argument, the affidavit is admissible in evidence subject to the same limitations as any other department-created document. See Care & Protection of Bruce, 44 Mass. App. Ct. 758, 766 (1998) (affidavit of social worker is admissible department report). Here, the judge properly admitted the affidavit, and where its contents were derived from § 51A reports, limited the use in her findings in order to “set the stage.”
9. In a footnote in her brief, the mother seems to argue that because the trial occurred prior to the Supreme Judicial Court's decision in Adoption of Luc, 484 Mass. 139 (2020), and because the department did not present the hearsay sources as witnesses, she had no opportunity to rebut the allegations. We address her argument only to observe that, at the time of trial, the mother was on notice that second-level hearsay contained in department-created reports was admissible. See Adoption of Luc, 94 Mass. App. Ct. 565, 569 (2018), S.C., 484 Mass. 139 (2020) (“second-level hearsay may be rebutted by subpoenaing the source”). There is nothing in this record to indicate that the mother was foreclosed from subpoenaing the hearsay declarants to testify at trial.
10. We note that finding no. 284 contains a portion of a § 51A report that the judge ruled inadmissible on the allowance of the mother's motion in limine. We agree with the mother that this statement was inadmissible, but conclude that its erroneous inclusion in the judge's findings “could not prejudice the mother and would not provide a basis for reversal,” considering the overwhelming evidence of unfitness. Adoption of Kimberly, 414 Mass. 526, 538 (1993).
11. We note that, on remand, the judge is not prevented from considering changed circumstances since the date of the original issuance of the decrees, such as whether the children have been placed in preadoptive homes. See Adoption of Vito, 431 Mass. at 557 n.15 (“a judge ․ may revisit the question of postadoption contact, if necessary, for the best interests of the child due to changed circumstances”).
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