ADOPTION OF WENDY v. << (2021)

Appeals Court of Massachusetts.

ADOPTION OF WENDY (and two companion cases 1).

20-P-985

Decided: April 16, 2021

By the Court (Kinder, Henry & Lemire, JJ.2)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge found both the father and the mother unfit to assume parental responsibility of their three children, terminated their parental rights, and declined to order posttermination and postadoption visitation. The father and the mother appeal, contending that the Department of Children and Families (department) failed to prove their unfitness by clear and convincing evidence and that the judge abused his discretion in declining to order posttermination and postadoption visitation. The father also appeals from the order denying his separate motion, filed after the decrees entered, for posttermination visitation. Together, the children appeal only the portion of the decrees specifically declining to order posttermination and postadoption visitation. For the reasons stated below, we affirm.

1. Background. a. Involvement with the department. The father and the mother have been married since 2007; they share three children: Wendy (born September 2008), Jane (born May 2010), and Sara (born June 2011). The department has been intermittently involved with the family since Sara's premature birth in 2011. The children were temporarily removed from the home and placed in the department's custody for the first time in December 2013, when the parents' youngest child (a six month old son) was found dead, “face-down in a plastic bag wedged between the parents' bed and nightstand,” while the children were at home. The children were returned to the parents in September 2014. The children were removed by the department a second time for approximately ten days in January 2015 based on the condition of the family's home; that case closed in June 2016.

In November 2017, a G. L. c. 119, § 51A report (51A report), was filed with the department alleging neglect of the three children by the father and the mother due to their failure to establish and maintain physical, emotional, and educational supports and routines for the children. Since the start of the school year the children had been tardy to school over twenty-five times, and absent over eight times. The 51A report also alleged that the children came to school dirty and smelled of urine and were inappropriately dressed for the weather, and that the two older children struggled with behavioral issues in school, Wendy exhibited sexualized behaviors, and all three children required extensive dental work. It was reported that the parents had failed to utilize supports put into place by the school to assist the children. The department conducted a G. L. c. 119, § 51B investigation (51B investigation), as a result of the 51A report. The parents did not respond to the department investigator when she made her initial visit on November 20, 2017, to the family's home, although she could hear voices inside the house.

The following day, a second 51A report was filed against the mother and the father for the neglect of Wendy and Jane as a result of the family being dismissed from their current dental provider. On that day, the mother had interfered with the dentist's attempt to treat Wendy and was unwilling to listen and follow through with the dentist's recommended treatment.

On November 27, 2017, the department investigator met with the children's school social worker, who informed the investigator that the children frequently came to school smelling of urine and body odor, and that Wendy regularly had behavioral outbursts and was defiant. After the school implemented a behavioral plan for Wendy, the parents moved the children to another school district but eventually returned them to their former school.³ The investigator also individually interviewed the children at their school and observed that each child had a distinct, unpleasant odor, had significant black dirt under her fingernails, and that Jane was wearing her pajama bottoms. During a subsequent telephone call between the department and the mother, the mother minimized the children's hygiene issues. She stated that the school targeted her children, that the children were being bullied on the school bus, that the school had changed the start time without telling her, and that the children's former foster parents were responsible for the children's dental issues.

After several attempts to gain access to the family home, on November 28, 2017 the investigator was allowed into the home for a limited inspection (the investigator was not permitted to view the two bedrooms or the basement). The investigator observed that the inside of the home was dirty and cluttered and had a stale odor, the walls were dirty and written on, the kitchen was sticky, and there was a swarm of flies clustered around the ceiling light in the living room. The department opened a case on the family at the conclusion of the investigation.

Between January and August 2018, the family's social worker made monthly visits to the home and regularly observed that the home was dirty and emitted a strong odor and that the children were unclean and not appropriately dressed for the weather. The parents made no changes to improve conditions after the social worker's observations were shared with them and support services were offered. The parents declined the department's offer to rent a dumpster so that they could clean debris from their home. In February 2018, a third 51A report was filed alleging a further decline in the children's school tardiness where they frequently came to school midway through the day. The school filed child requiring assistance petitions with the court on February 5, 2018. See G. L. c. 119, § 39E. For a brief period in 2018 the parents worked with a parent partner, but the services were ultimately terminated in September 2018 due to the parents' failure to follow through.

In June 2018, a fourth 51A report was filed against the parents due to the children's absence from school. A police “well child” check was requested, and the children were observed to be dirty but healthy looking. The mother reported to the police that the children did not attend school because they had a contagious summer rash; the children had at that time collectively missed over one hundred days of school. Although in June 2018 the mother had a negative urine screen, in July 2018 the father reported to the department his concerns that the mother was abusing illegal substances. The father agreed not to allow the mother back into the home but did not abide by that agreement.

On August 19, 2018, another 51A report was filed, which led to the children's removal for the third time. This report was filed as a result of the children knocking on a neighbor's door; the children were “filthy,” Jane and Sara wore no shoes, and Wendy's hair was matted. The report further alleged that the parents did not know the whereabouts of the children, that the board of health was notified as to the condition of the home, and that the police had responded to the home seventeen times for various incidents. On August 20, 2018, the department filed the care and protection petition underlying this case, the children were removed from the home, and the department was granted temporary custody of them. After the children's removal, the department had difficulty contacting or meeting with the parents.

Shortly after the children were removed, the parents were evicted from their home. They moved to a scarcely furnished house with no running water in a nearby town; the department believed that the parents were living there illegally. After eviction from that home, the parents lived in various hotels, at a seasonal campground, and eventually in the father's truck. The mother did not always live with the father during this time and neither the father nor the department knew of her whereabouts. From January to September 2019, the department was unable to conduct any in home visits with the parents due to their housing instability; they were referred to the department's housing coordinator more than once but they failed to follow up on the recommendation until shortly before trial, when the father alone made contact. At trial neither the father nor the mother had a developed or viable plan to secure housing.

b. The children. Wendy was in the fifth grade at the time of trial and required no special educational services. Throughout the department's involvement with the family, the department suspected that Wendy was a victim of sexual abuse.⁴ While in the parents' custody, Wendy was receiving counselling for posttraumatic stress disorder (PTSD), and her academic performance suffered due to her frequent tardiness and absences from school. The mother blamed Wendy for the tardiness of all of the children because Wendy had difficulty waking up in the morning. Wendy exhibited (both before and after removal) some parentified behaviors. After removal, Wendy required medical treatment at Beth Israel Hospital to remove a tick that was embedded in her scalp; the staff at her residential placement discovered the tick while attempting to clean and comb Wendy's hair. The staff was unable to remove the knots from Wendy's hair and they were forced to cut it. Wendy received dental treatment after she was removed from the home; she had a cavity in every tooth and required the extraction of five adult teeth. She was suspended from school on two separate incidents for threatening a staff member and choking another student. Due to Wendy's significant behavioral issues, she was eventually placed in a comprehensive foster care home, where she remained at the time of trial. While in the department's custody, Wendy received school-based individual trauma-informed therapy in spring 2019, and during the 2019-2020 school year.

Jane was eight years old at the time of removal. Her educational performance suffered while in the parents' care due to attendance problems; because she had difficulty following multistep directions and information retention, Jane's foster mother requested educational testing to determine if she needed special educational accommodations. Jane and Wendy attended the same school and saw each other daily during the school year. Jane was placed in five unrestricted foster homes before returning, in September 2018, to a foster home she had been placed in twice previously; she had exhibited some behavioral issues, specifically talking back to her foster parents and requiring frequent prompts to complete self-care tasks. As of September 2019, Jane attended weekly individual therapy. Upon entering department custody, Jane received dental treatment and underwent dental surgery, requiring six tooth extractions, two root canals, two caps, and three fillings.

Sara was seven years old at the time of trial. Her educational performance also suffered while in the parents' care due to frequent tardiness and absences. She exhibited no behavioral issues in school. She was placed in several different unrestricted foster homes until February 2019, when she was placed in her current home. In her foster homes, she exhibited some behavioral difficulties, such as physical boundary setting, talking back, and resisting house rules. Sara had not been seen by a dentist before November 2017. At the time of trial she was participating in weekly in-home therapy. Her foster mother described her as “very smart, insightful, sweet, and kind.”

The department's permanency plan at trial for all three children was adoption by the maternal grandmother, who lives in Tennessee, or adoption by recruitment if the grandmother was not approved as an appropriate resource.

c. The mother. In addition to the three children at issue here, the mother has four older children who are not in her custody.⁵ She received a general equivalency degree (GED) and has limited employment history. The mother self-reported suffering from mental illness but has failed to seek treatment as recommended by the department. Her history of substance use is unclear due to her failure to sign requested releases. The mother testified to not using illegal substances in twenty years, but she tested positive for cocaine in September 2018, and the father reported that she smoked crack cocaine. The mother has a significant criminal record spanning from 2012 to 2019 and has been incarcerated several times. As of September 2019, she had an open criminal charge for shoplifting (third or subsequent offense) and was incarcerated on that charge at the time of trial.

The mother's March 2019 action plan recommended, among other things, that she meet monthly with the department; sign releases as requested by the department; undergo a neuropsychological evaluation; attend weekly therapy to address her substance use and mental health issues, receive support in conflict resolution, and learn coping skills; engage in services at Independence House; participate in a weekly parenting class; refrain from drug and alcohol use; complete regular drug screens; attend all child-parent visits while abiding by the department's visitation rules; refrain from contacting the children or their foster parents directly; obtain consistent employment or apply for disability benefits; and obtain clean, stable housing. The mother has continuously failed to engage in nearly every service recommended by the department to improve her parenting abilities and has not been forthcoming about her mental state, her sobriety, or her housing status. She failed to participate in a neuropsychological evaluation, and it was not until her testimony at trial that she disclosed the domestic violence in her relationship with the father.

The mother has failed to recognize or take responsibility for her parental deficiencies. She testified at trial that she bathed the children and washed their hair “at least” every other day, and claimed to have regularly cleaned the family's home, never having had an issue with cleanliness until the children's removal. The judge did not find the mother's testimony credible. The mother failed to take any responsibility for the poor conditions of the home or her role in the children's significant dental issues The judge did not credit the mother's testimony that the children brushed their teeth “a few” times each day under her supervision. The mother testified that despite several incidents of domestic violence in her relationship with the father, she never left with the children because he threatened that he would kill her if she did. The mother insisted that the father was a good parent to the children and had never been violent toward them. The judge did not find credible the parents' individual testimony that their relationship ended more than one year before trial, as they frequently stayed together in the weeks leading up to the time of trial. The reunification plan suggested by the mother at trial did not include the father.

d. The father. The father dropped out of school in the ninth grade. He reported to the department that he was self-employed but never provided proof of employment. The father is addicted to pain medication and claimed he was participating in a suboxone program; however, the department was not able to verify his participation in the program after August 2018. He has a self-reported mental health diagnosis and failed to identify any mental health care provider from whom he was receiving treatment. The father has a significant criminal history spanning from 1983 to 2019; his most recent arrest was in March 2019 for assault and battery and assault by means of a dangerous weapon involving the mother. The parents' relationship was riddled with incidents of domestic violence, including occasions where the father physically assaulted and choked the mother, sometimes in front of the children. The children heard the father threaten to kill the mother and as a result did not want to attend school and leave the mother alone with the father.

The father's March 2019 action plan recommended, among other things, that he meet monthly with the department; participate in weekly therapy to address his substance use history; undergo a neuropsychological evaluation; work with a life coach to identify life goals and areas of improvement and to increase coping skills and healthy relationships; complete drug screens; take medication as prescribed; participate in and complete the Nurturing Fathers program and implement the skills learned with the children; attend scheduled visits with the children, before which he was to confirm his attendance or his inability to attend; maintain and verify consistent employment; and secure safe, clean, and stable housing.

During the pendency of this case, the father has consistently failed to communicate with the department about his housing situation, his mental health, or his criminal activity. He enrolled in the Nurturing Fathers program and a parenting class, as the judge found, only in anticipation of trial. He has failed to complete the neuropsychological evaluation or to verify his sobriety or participation in individual therapy.

Throughout his trial testimony the father failed to take responsibility for his role in the children's continuing need for care. He denied any awareness of cleanliness issues or the extent of the children's dental issues until the department became involved; he assumed the mother was properly overseeing the children's care and appropriately tending to their needs. He admitted he was more focused on his relationship with the mother than on caring for the children. The reunification plan proposed by the father at trial did not involve the mother.

e. Visits with the children. When the children were first removed, the parents were given weekly supervised visits. The visits were reduced to biweekly in February 2019 due to the parents' lack of progress on their action plan tasks and the change in goal for the children to adoption. In response to the reduction in visitation, the father sent threatening text messages to the department social worker. The parents were regularly rude to the social worker and allowed the children to be rude to her as well. The parents consistently visited with the children but struggled to interact appropriately with them, and the visits were frequently chaotic, as the parents had difficulty controlling the children's behavior. The parents also lacked the ability to end visits timely and appropriately. Additional department staff was required to assist in ending visits because of the parents' disruptive behavior. The parents ultimately were required to use a different exit from the visitation center than the children after visits, because the parents inappropriately continued interacting with the children when they were in the parking lot. This was upsetting for the children. The parents also missed several visits and failed to provide the department with prior notice, thereby disappointing the children.

The parents regularly relied on electronic devices during visits to entertain the children. The mother routinely spent visits taking pictures of herself. She inappropriately spoke to the children about the care and protection proceedings and made unkept promises about reunification or placement with the maternal grandmother. At a visit in August 2019, the mother arrived one and one-half hours late; when the social worker attempted to address with the mother her tardiness, she began yelling and swearing at the worker in front of the children, upsetting them by the outburst. The father consistently took a more active role during the parent-child visits by cleaning up the visitation room, but he nonetheless failed to assist in ending the visits on time.

Due to the children's significant dental issues, the parents were instructed to bring to visits only healthy snacks, which they continuously failed to do, instead bringing candy and soda. The parents showed favoritism to Wendy, bringing her gifts without bringing gifts for the other children. On one occasion the parents inappropriately brought Wendy adult lingerie, and, on another, the mother hid a cell phone in Wendy's gift bag in violation of the visitation rules. The judge did not find credible the mother's testimony that the department knew that she was going to give Wendy a cell phone. As of July 2019, the parents were no longer permitted to bring gifts to visits. Despite explicitly being told not to, the mother sent unapproved notes directly to the children and personally contacted the children's respective foster parents. The parents missed without notice their September 11, 2019 visit with the children where they had planned to celebrate Wendy's birthday. The judge did not find credible the father's testimony that he relied on the mother to cancel the visit because his cell phone was not working.

f. Decrees. After a one-day trial on the merits in September 2019, the judge on October 18, 2019 issued decrees finding both parents unfit and terminating their respective parental rights to the children. The judge “specifically declined” to order posttermination or postadoption visitation between the parents and the children. On December 12, 2019, following a hearing, the judge denied the father's motion for posttermination visitation. On January 31, 2020, the judge issued his findings and conclusions in support of the termination decrees.

2. Discussion. a. Termination of parental rights. Both the father and the mother argue that many of the judge's factual findings were clearly erroneous and therefore there was insufficient evidence to find them unfit, and that the termination of their respective parental rights was not in the children's best interests.⁶

“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). “Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference.” Id. at 606-607. “[A] judge must ‘evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent․’ ” Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass. 705, 710 (1993). “Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age.” Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). The judge, in terminating parental rights, “must also find that the current parental unfitness is not a temporary condition.” Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018).

The father argues that certain of the judge's factual findings are erroneous, for example, that he had an inappropriate relationship with Wendy, that he had not completed any of the tasks on his action plan (he testified at trial that he did not complete tasks), including verifying his sobriety or employment, meeting regularly with the department or keeping the department informed of where he was living, and engaging in suggested services. We disagree. See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001) (lack of meaningful participation in recommended services relevant to question of fitness). We also are not persuaded by the father's contention that the judge based his findings of housing insecurity on the father's “temporary homelessness” or limited income, when the father had been living in hotels, a campground, and his truck since March 2019, and had failed to utilize until shortly before trial housing assistance offered by the department. See Petitions of the Dep't of Social Servs. To Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (lack of “stable home environment” valid consideration in unfitness determination). Even if some of the judge's findings were erroneous, his “overall conclusion of parental unfitness is [nonetheless] fully supported by the record.” Adoption of Helen, 429 Mass. 856, 860 (1999). See Adoption of Jacques, 82 Mass. App. Ct. at 606.

The mother's challenges to the judge's factual findings likewise fail. Her claim that several of the findings are erroneous falls short. Specifically, she contends that the judge's unfitness findings were erroneously based on housing instability, medical and dental neglect of the children, and the children's poor school attendance. We do not agree. The mother's unfitness results from a “constellation of factors” that the judge detailed in his findings and that were adequately supported by the record. Adoption of Greta, 431 Mass. 577, 588 (2000). In addition to those specifically contested by the mother, the record also supports the findings relating to the mother's role in the deplorable condition of the family's home, the children's significant untreated dental needs (for which the mother deflected blame), and the more than one hundred days of school collectively missed by the children while in the parents' care. Many of “the criticisms presented by the mother go to the weight of the evidence. We give substantial deference to ‘the judge's assessment of the weight of the evidence and the credibility of the witnesses.’ ” Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Adoption of Quentin, 424 Mass. 882, 886 (1997). We discern no error in the judge's findings of the mother's unfitness.

Here, the judge determined that the children's best interests would be served by terminating the legal relation between the parents and the children. See Adoption of Ilona, 459 Mass. 53, 59 (2011). At some point the judge must say, “Enough.” Adoption of Inez, 428 Mass. 717, 724 (1999), quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 242 (1991). A judge “need not wait for disaster to happen but may rely upon past patterns of parental neglect or misconduct in determining current or future unfitness.” Adoption of Virgil, 93 Mass. App. Ct. at 301. Considering the lack of significant improvement in the parents' abilities to adequately parent the children, their consistent failure to engage in services recommended to ameliorate their parental shortcomings, and their lack of a viable or developed plan for secure housing, the judge did not clearly err in finding that the parents' unfitness was not temporary. Id. at 62.

We therefore conclude that the judge did not abuse his discretion or commit a clear error of law in determining that the father and the mother were unfit, that their condition was not temporary, and that termination of their respective parental rights was in the children's best interests. See Adoption of Oren, 96 Mass. App. Ct. 842, 846 (2020). See also Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c) (“the court shall consider the ability, capacity, and readiness of the child[ren]'s parents ․ to assume parental responsibility” before terminating parental rights).

b. Posttermination and postadoption visitation. Both the father and the mother claim that the judge abused his discretion in declining to order posttermination and postadoption visitation between the parents and each of the children. They contend that the judge ignored in his findings the strong bond between the parents and the children and, because no preadoptive placements had been identified as of the time of trial, declining to order visitation was not in the children's best interests. The children make a similar argument as to visitation.

“[T]he decision whether to grant [posttermination and] postadoption visits must be left to the sound discretion of the trial judge.” Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). This decision is grounded in an analysis of what is in the best interests of the children. See Adoption of Ilona, 459 Mass. at 63. This is a highly deferential standard, and here the judge, based on this record, did not abuse his discretion in declining to order such visits.

Throughout the pendency of this case the parents continuously put their own needs before those of the children, focusing on their troubled relationship over the children's care and needs. The visits between the parents and the children were often times chaotic, and the parents' inability to timely end the visits as instructed by the department added to the chaos and was upsetting to the children. The parents' disregard for missed visits with the children had a detrimental effect, especially when the children were already at the visitation site in anticipation of a visit before learning that the parents would not attend. The mother's tardiness to visits and subsequent volatile behavior toward social workers upon her arrival in the children's presence caused them angst. The parents' struggle to have appropriate interactions with the department and service providers, frequently occurring in the children's presence, reflected in the children's inability to appropriately interact with others. In addition, their ongoing failure to engage in services recommended to teach and reenforce appropriate parenting skills showed a pattern of parental neglect that the parents were unwilling or unable to correct.

Taking these considerations together, we discern no error and certainly no abuse of discretion in the judge's determination that posttermination and postadoption visitation was not in any of the children's best interests.⁷ See Adoption of Ilona, 459 Mass. at 63.

Decrees affirmed.

Order denying motion for posttermination visitation affirmed.

FOOTNOTES

3.   It was reported to the investigator that the school had worked with the parents in October 2017 to address the children's frequent tardiness and absences. However, the parents did not follow the agreed-upon plan and blamed the children for the lack of compliance. In addition, the parents refused a referral by the school to Gosnold, Inc. for counselling. The parents did agree to attend parenting classes but attended only two classes and never completed the program.

4.   In September 2017, the school nurse reported that Wendy had “spotting” in her underwear and recommended to the parents that she be examined by a doctor for “precocious puberty”; the parents did not follow through, and the judge found that the mother dismissed the school's concerns. Wendy was referred to an endocrinologist, but the parents never followed through with that referral.

5.   The father here is not the father of the mother's four older children.

6.   The children contend that their best interests were served by the termination of parental rights, and they support the department's permanency plan of adoption by the maternal grandmother.

7.   We likewise find no error with the judge's conclusion that the father's posttrial motion for posttermination visitation was not in the children's best interests.