CUSTODY OF LAUREEN v. << (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Laureen appeals from a decree entered by a judge of the Probate and Family Court that adjudicated her unfit to parent Laureen, adjudicated Laureen in need of care and protection, and transferred permanent custody of Laureen to the Department of Children and Families (department).³ See G. L. c. 119, § 23 (a) (3). The mother argues that the evidence does not support a finding of unfitness because she was in substantial compliance with her family action plan, she was successfully parenting Laureen's younger half-sister, and she had proposed an appropriate plan to transition Laureen to her custody. The mother further claims that the judge erred by not ordering sibling visitation sua sponte. Laureen has submitted a brief in which she maintains that the judge's decision regarding custody should be affirmed, but she requests that the case be remanded to the trial court for the entry of findings and an order authorizing sibling visitation.

We affirm the decree and, as we explain in more detail later, we decline to remand the case for an order regarding sibling visitation.

Background. The mother contends that the judge's finding of unfitness was not supported by clear and convincing evidence, but she does not challenge any of the judge's subsidiary findings, which we summarize as follows. Laureen was born in August 2007. She lived with her mother, maternal grandmother, and great grandmother in Newburyport until the family was forced to leave their home due to its deplorable and unsanitary condition in July 2015.⁴ The mother and Laureen relocated temporarily to New Hampshire and then to a campground in Maine. Laureen's father learned about the condition of the Newburyport home from the media and filed a complaint for modification of a prior custody judgment and an emergency motion for custody in the Probate and Family Court. The judge sua sponte transferred custody of Laureen to the department on August 6, 2015. A department social worker informed the mother of the court order, but the mother did not return Laureen to Massachusetts. Soon thereafter, the mother and Laureen were located in New York City. The mother was arrested and later charged in Massachusetts with reckless endangerment of a child.⁵ Laureen was transported to Massachusetts and placed in a residential program at St. Ann's Home (St. Ann's) in Methuen.

When Laureen first arrived at St. Ann's on August 27, 2015, she urinated in the corner of her room and was afraid of the sound of a flushing toilet. She displayed aggressive sexualized behavior and would impulsively grab the private areas of students and staff. She used vulgar language and had significant deficits in her daily living skills. Laureen was home schooled by her mother and had not been exposed to “appropriate social emotional and cognitive stimulation.”⁶ Proper care of Laureen at St. Ann's required one-on-one supervision by a staff member and sometimes two staff members were needed to ensure Laureen's safety.

By the spring of 2016, Laureen's condition reached a crisis point and she was admitted to Cambridge Health Alliance for in-patient psychiatric care. The mother had weekly visits with Laureen at St. Ann's prior to Laureen's hospitalization. However, after Laureen returned to St. Ann's, the department suspended the mother's visits on the advice of Laureen's clinical team at St. Ann's and Dr. Gordan Harper, a psychiatric consultant, all of whom had concluded that Laureen had suffered trauma while in the mother's care, and that the mother's visits triggered dysregulation. Although Laureen's behavior began to improve after visits with the mother were suspended, Laureen still required significant supervision and specialized care to treat her diagnoses of autism spectrum disorder, posttraumatic stress disorder, and Tourette's syndrome.

Meanwhile, after her visits with Laureen were suspended, the mother stopped attending sessions with Laureen's therapist. At the mother's request, a second, and then a third therapist were assigned to the case after which the mother's attendance resumed, albeit sporadically. At this point, the mother was not fully cooperating. For example, after her visits were suspended, the mother was asked to prepare a “protective statement,” designed to facilitate Laureen's healing process, and she declined to write one.

Laureen remained at St. Ann's, and had been residing there for almost three years when the trial on the department's petition for permanent custody commenced on June 12, 2018. Laureen was almost eleven years old. At that time, the mother resided in West Springfield with her partner and their daughter, who was born about a year earlier in April 2017. The mother had not seen Laureen since August 2016, and Laureen had no knowledge of the mother's partner or the existence of her half-sister. Just before trial commenced, St. Ann's clinicians determined that contact between Laureen and her mother could resume through written communication. Laureen received her first letter from the mother in June 2018.

At trial, St. Ann's medical director, Dr. Richard Johansson, who was qualified as an expert in child psychiatry, testified and opined that a transition to placement in the mother's home would be very difficult for Laureen, and could result in Laureen regressing to many of the same behaviors (e.g., inappropriately touching other children), which she exhibited upon arriving at St. Ann's. He further opined that such a transition was not in Laureen's best interests. The judge credited Dr. Johansson's testimony.

The mother testified that from her perspective she did not know what she needed to do to regain custody of Laureen. She claimed that she had been given only one requirement, which was to work with the clinicians at St. Ann's, and that she had done so. The judge did not credit this testimony. In addition, despite Laureen's complex needs, the mother believed she was capable of taking care of Laureen. If granted custody, the mother planned to have Laureen undergo neurological and education evaluations to determine if she could homeschool Laureen as she had done in the past. She did not anticipate a problem with Laureen being with her younger half-sister. The judge explicitly noted that Dr. Johansson opined that it would be unsafe to have Laureen share a room with a child under the age of two and that Laureen's needs could not be met outside of a residential setting.

Discussion. 1. Current parental unfitness. “Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age. Though the determination must be based on current evidence, when a parent's living situation has changed, a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness. A parent may be fit to raise one child and unfit to raise another, in circumstances where the needs of the two children differ” (quotations and citations omitted). Adoption of Cesar, 67 Mass. App. Ct. 708, 711-712 (2006). A finding of parental unfitness must be supported by clear and convincing evidence. See Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997).

The judge in this case noted that the mother had made significant progress in that she was maintaining a sanitary home and providing a positive environment for Laureen's younger half-sister. However, despite these gains, the judge found that the mother was not capable of meeting Laureen's significant psychiatric and developmental needs. During Laureen's early childhood, the mother neglected Laureen by failing to provide her with a safe and sanitary home. The mother also failed to follow the advice of Laureen's pediatrician to obtain a neurological evaluation or arrange for her to be evaluated for an individualized education plan. Laureen watched “inappropriate” videos on the mother's phone, including videos with graphic scenes and vulgar language while in the mother's care. Laureen's trauma was caused, in part, by the mother's neglect, a fact which the mother was unable or unwilling to accept. In fact, the mother testified that she was “unclear” why Laureen was removed from her care. In addition, the mother engaged inconsistently with therapists, a task required of her as a precondition to regain custody of Laureen. In sum, despite the mother's gains, the judge properly determined that the mother was currently unfit to parent Laureen.

2. Best interests. “At the core of the [parental fitness] inquiry is the question of what is in the best interests of the child.” Adoption of Katharine, 42 Mass App. Ct. at 28. The judge's finding that Laureen's best interests would be served by granting permanent custody to the department also was supported by clear and convincing evidence. On the record as developed through the trial, it was evident that the trauma Laureen experienced in the mother's care had lasting effects and was a contributing factor to Laureen's extraordinary special needs. The mother neglected Laureen's medical and health care needs before Laureen was removed from her custody, and she did not make sufficient progress in acknowledging and understanding Laureen's complex diagnoses, such that the judge could conclude that Laureen's best interests would be served by denying the department's petition and granting custody to the mother. The unfortunate reality at the time of trial was that the mother could not realistically assume responsibility for Laureen, who needed to remain at St. Ann's and continue to receive the specialized care that only a residential setting can provide.

3. Sibling visitation. The issue of visitation between Laureen and her half-sister was not raised at trial. Nonetheless, as previously noted, both the mother and Laureen argue that the judge erred in failing to address the issue of sibling visitation sua sponte. We need not decide this issue because we have been informed that Laureen filed a motion seeking sibling visitation in the Probate and Family Court on March 11, 2022. We expect that motion will be heard expeditiously, and the issue will be fully addressed at that time.

Decree to transfer permanent custody affirmed.

FOOTNOTES

3.   The father stipulated to Laureen being placed in the department's permanent custody.

4.   The house was subsequently condemned and demolished.

5.   The mother ultimately pleaded guilty.

6.   The judge found that when Laureen was five years old her pediatrician believed that she exhibited signs of autism and referred her to Tufts Medical Center for evaluation. The doctor who conducted the evaluation recommended that Laureen receive an individualized education plan before enrolling in kindergarten and that Laureen undergo a psychiatric evaluation. The mother did not follow either recommendation.