Adoption of Ilona.1

• Decision Date: 04 March 2011
• Docket Number: SJC–10741.
• Citation: 459 Mass. 53,944 N.E.2d 115
• Parties: ADOPTION OF ILONA.1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 53
944 N.E.2d 115

ADOPTION OF ILONA.1

SJC–10741.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 1, 2010.Decided March 4, 2011.

[944 N.E.2d 118]

William T. Cuttle, Boston, for the mother.Diana Cowhey for the child.Brian Pariser for Department of Children and Families.Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.GANTS, J.

[459 Mass. 54] The Department of Children and Families (department) filed a petition under G.L. c. 119, § 24, alleging that Ilona was a child in need of care and protection.² After five days of trial, a judge in the Juvenile Court found that Ilona's mother and father were “currently unfit, unable and unavailable to further the welfare and best interest of [Ilona]” and that their unfitness was “likely to continue into the indefinite future to a near certitude.” The judge concluded that Ilona was a child in need of care and protection, and dispensed with the need for her parents' consent to adoption, guardianship, custody, or other disposition of the child pursuant to G.L. c. 119, § 26.³ The judge ordered that Ilona be committed to the custody of the department, and found that Ilona's best interest would be served by the department's plan of adoption, which proposed that Ilona be adopted by her current foster parents. The judge also found that a significant attachment existed between Ilona and her mother and that continued contact between them was in Ilona's best interest, but declined to enter an order as to the frequency or extent of contact between them, concluding that these decisions were “best left to the informed decision making” of Ilona's preadoptive parents.⁴

[944 N.E.2d 119]

The mother makes two arguments on appeal.⁵ First, while she does not dispute that she is currently unfit as a parent, she claims that there is a reasonable likelihood her unfitness would be temporary if the department provided her with adequate support services, and that the decision to terminate her parental rights before such services were provided was improper. Second, she claims that the judge abused his discretion in declining to [459 Mass. 55] order visitation with Ilona after finding that continued contact between them was in Ilona's best interest.

The Appeals Court concluded that the judge did not err in terminating the mother's parental rights but that he abused his discretion in not ordering visitation with the mother. Adoption of Ilona, 76 Mass.App.Ct. 481, 488, 923 N.E.2d 546 (2010). We granted the applications for further appellate review filed by Ilona and the mother. We agree with the Appeals Court that the judge did not err in terminating the mother's parental rights, but do not agree that, in the circumstances of this case, he abused his discretion in declining to order visitation with the mother and leaving decisions about visitation to the sound judgment of the preadoptive parents. Therefore, we affirm the judgment of the Juvenile Court.⁶

Background. We summarize the judge's factual findings, supplemented where needed by undisputed facts in the record. Ilona was born in 1997 and is the mother's only child; Ilona's father left the mother after she became pregnant and has had no contact with the mother or child. Ilona first came to the department's attention in March and October, 2001, when two reports that the mother had physically abused Ilona were filed under G.L. c. 119, § 51A, and were found to be supported after investigation. The mother participated in a parenting class in 2000 and 2001, but her physical abuse of Ilona continued.

A third § 51A report was filed on December 27, 2006, after the police responded to a 911 telephone call from a neighbor who reported hearing screams and banging on the walls coming from the mother's apartment. When the police arrived, they found nine year old Ilona in shock, with redness and bruising on her face, hips, and arms. Ilona told the police that her mother had hit her with a belt because she did not eat her dinner, and disclosed a history of regular physical abuse by the mother. The mother initially denied physically abusing Ilona, but later admitted she hit her because Ilona had refused to eat her food. As a result of this incident, the mother was charged with assault and battery by means of a dangerous weapon, and assault and battery on a child resulting in injury. After admitting sufficient facts for a finding of [459 Mass. 56] guilt as to both charges, the mother was given a continuance without a finding and placed on probation for eighteen months.

The department removed Ilona from her mother's home on the day of the incident, and on December 28, 2006, filed the instant care and protection petition in the Suffolk County Division of the Juvenile Court Department. The department was granted temporary custody of Ilona and placed her that same day in the home of the foster parents who now wish to adopt her and in whose home she continues to reside.

Before the December 27, 2006, incident, the mother had been attending weekly individual

[944 N.E.2d 120]

sessions with a therapist, which began in November, 2005, and monthly individual sessions with a psychiatrist, which began in May, 2006. She was diagnosed with major depression and a learning disorder, not otherwise specified. Apart from a six-month break in her therapy sessions, these weekly and monthly sessions continued after the incident and through the time of trial.

After the incident, in January, 2007, the department began providing the mother with services intended to improve her parenting skills and teach her alternative forms of discipline. In the first half of 2007, the mother completed a sixteen-week nurturing class that taught parenting skills and techniques, and a twelve-week one-on-one anger management counselling program. Although both programs were conducted in Spanish, representatives of the programs reported that the mother had difficulty understanding the concepts that were taught.⁷ The mother did not demonstrate any of the skills or concepts taught in the nurturing class or make any significant change to her parenting as a result of the class. The department also recommended that the mother participate in a Department of Mental Health day program, which was designed to help with job training and job placement, but the mother declined.

Throughout its temporary custody of Ilona, the department arranged biweekly visits between Ilona and her mother, supervised by a department social worker. The social worker observed that, during most of the visits at the mother's apartment in early [459 Mass. 57] 2007, the mother did not initiate any conversation or express any interest in Ilona's life, but instead watched television, cooked, or cleaned. Ilona asked her mother's permission for everything she did during a visit, including using the bathroom and getting food. When the mother prepared food for her, Ilona would eat what she was given but never ask for more, even when she was hungry, because she feared her mother's reaction. The social worker worked with the mother in order to increase her interaction with Ilona and improve her responsiveness to the child during these visits.⁸

In July, 2007, and again in September, 2007, the mother asked the department social worker if there were additional services she could participate in that would help to get her daughter back, asking specifically whether she could do the nurturing class again. She was told that she had already done it all and should continue with her outpatient counselling and mental health services.

The mother also twice sought court orders in order to obtain additional services from the department. On September 17, 2007, the mother's attorney orally asked the judge to order the department to provide family therapy for Ilona and her mother, but the judge declined. On May 14, 2008, the mother's attorney filed a motion seeking an order that the department provide licensed family therapy services or other appropriate family services, but the motion was denied.

By August 14, 2007, however, the department had changed its goal for Ilona

[944 N.E.2d 121]

from reunification to adoption.⁹ At a permanency hearing held on November 29, 2007, in accordance with G.L. c. 119, § 29B, a judge (who was not the trial judge) determined that the department's “efforts to place the child in a timely manner in accordance with the permanency plan for the child, other than reunification, were reasonable.”

[459 Mass. 58] Two Juvenile Court clinicians issued reports that were considered by the trial judge. In a report dated June 20, 2007, a clinician who had twice interviewed the mother concluded that she had a cognitive impairment, with over-all intellectual ability in the low range. While he did not make a parenting evaluation, he noted that parents with her cognitive limitations “often experience significant difficulty in adequately caring for a child, especially as the child becomes older and the developing needs of the child become more complex.”

A second Juvenile Court clinician conducted a parenting evaluation after interviewing the mother twice and observing two visits between the mother and Ilona. In her April 30, 2008, report, she noted that the mother blamed Ilona for disclosing the abuse to the authorities, and had limited insight into her parenting problems and her relationship with Ilona. The clinician noted that, during the visits, there was little conversation between the mother and Ilona, and it appeared they had nothing to talk about. The clinician wrote, “It appears that in addition to being physically abusive, [the mother] was not able to meet her daughter's emotional needs and nurture her.” However, the clinician was critical of the services that were provided to the mother, noting that the department had placed the mother in standard parenting interventions...