Adoption of Tia

• Decision Date: 10 November 2008
• Docket Number: No. 08-P-281.,08-P-281.
• Citation: 896 N.E.2d 51,73 Mass. App. Ct. 115
• Parties: ADOPTION OF TIA.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

896 N.E.2d 51

73 Mass. App. Ct. 115

ADOPTION OF TIA.¹

No. 08-P-281.

Appeals Court of Massachusetts, Franklin-Hampshire.

Argued June 19, 2008.

Decided November 10, 2008.

Margaret M. Geary for the mother.

Madonna E. Cournoyer, Assistant Attorney General, for Department of Children and Families.

Deborah W. Kirchwey for the child.

Present: McHUGH, BROWN, & GREEN, JJ.

McHUGH, J.

The mother appeals from a decree of the Franklin and Hampshire Counties Division of the Juvenile Court Department terminating her parental rights to her daughter, Tia. On appeal, the mother argues that comments the judge made at the beginning of the trial, in conjunction with the judge's extensive use of the Department of Children and Families' (DCF) proposed findings of fact, prejudiced her and warrant a new trial.² Although the judge's comments are troublesome, our review of the entire record leads us to affirm the decree.

The evidence at trial showed that the mother, now thirty-three years of age, has been plagued by domestic violence and alcohol abuse for much of her life. She began drinking at the age of thirteen and, in 1993, while living with a man who had a history of alcohol abuse and domestic violence, lost custody of her first child as a result of issues that alcohol and domestic violence produced.

The mother also lost parental rights to her second child for essentially the same reasons. She and that child's father, another man with a history of alcohol abuse and domestic violence, were unable to resolve continuing conflicts, substance abuse, and domestic violence issues over the course of more than four years while they were together.³ To her credit, however, the mother attended some detoxification programs and Alcoholics Anonymous meetings during this period and attained some sobriety.⁴

Notwithstanding her efforts at sobriety, alcohol abuse and domestic violence continued their role in the mother's life. Shortly after losing custody of her second child, the mother met a recovering alcoholic and drug addict, whom we shall call Frank, moved in with him, and ultimately married him, though he, too, was physically abusive towards her. During her cohabitation with Frank, the mother relapsed and began drinking again, in part because of Frank's extramarital affairs.

While living with Frank, the mother allowed the man who would become Tia's father, whom she had only recently met, to move into the marital home, although Frank was very sick with hepatitis C and cirrhosis. Four months after the father moved in, Frank died.

During the months that followed, police responded to several reports of disturbances, verbal arguments, and unwanted persons at the home the mother shared with the father. During one incident, the mother tried to call the police, but the father unplugged the telephone to prevent her from doing so. Somehow, the mother managed to hit a "panic button" in the house that summoned police. When the police arrived, the father threw the mother against the door to block their entry. Despite these repeated domestic disputes, the mother allowed the father to remain in her home. She even allowed him to return to the house after he served three and one-half months in jail for violating a restraining order she had taken out against him.

At some point during her dispute-filled relationship with the father, the mother became pregnant with Tia, and gave birth two months after the father's release from jail. Three days after Tia's birth, however, DCF received a G.L. c. 119, § 51A, report alleging neglect of Tia. The report was based on arguments between the mother and father during the mother's and Tia's stay at the hospital, arguments so substantial that hospital security was twice called to the mother's room to deal with them.

DCF investigated the § 51A report and found it supported. Based upon the parents' conduct in the hospital, their history of domestic violence, their mental health histories, and their history of neglect and abuse of other children, DCF assumed custody of Tia and placed her in a foster family with one of the mother's other children.

Thereafter, the mother began therapy, and initially maintained strong attendance. Despite her attendance, however, the mother was not able to apply what she learned and continued her pattern of choosing abusive partners. Four months after Tia's removal, the mother brought her new, and, as it would turn out, abusive, boyfriend—we shall call him Charles—to a supervised visit with Tia. Ultimately, it turned out that Charles's residence in the mother's home delayed parent-child home visits for two months.

In addition to her continual association with abusive men, the mother otherwise repeatedly demonstrated her inability to care for Tia, in one instance declaring, "I'm so sick and weak; no f____ way I can care for her." The mother frequently complained about feeling ill and having various problems that prevented her from visiting with Tia or taking care of her. The mother also expressed suicidal feelings, and, at least on one occasion, claimed to lack sufficient money to buy Tia food, even though she always had enough money to keep herself supplied with cigarettes.⁵

In spite of ongoing issues and setbacks, DCF agreed to place Tia in the mother's home for a one-month transition period aimed at total reunification. During this one-month period, however, the mother constantly called the foster mother for weekend respite breaks, sometimes declaring that she was sick, sometimes expressing her inability to care for Tia, and sometimes claiming she was sick of Tia and "needed a break." Indeed, on one occasion, the mother told the foster mother, "If I had my way, you could keep her forever."

The events that led DCF to change the goal from reunification to adoption began with the mother's telephone call to DCF to report that she was sick, having difficulty caring for Tia, and needed an overnight respite. The foster mother agreed to provide that respite and picked Tia up at the mother's house, where, without success, the mother urged the foster mother to keep Tia an additional night, saying that, if she did, DCF would never know. When the foster mother returned Tia to the mother's home the following evening as scheduled, she found the mother dressed in attire far more polished than usual and saw six or seven cars parked in her yard.

When the foster mother returned Tia to the mother, she told the mother that Tia was running a fever and had a rash. The next day, however, the foster mother received a telephone call from the mother who said that she was at a nearby mall. The mother reported that she was so sick that she had to go to an emergency room immediately and therefore needed the foster mother to take Tia. The foster mother picked up Tia at the mother's home and notified DCF that she had done so, thereby triggering contact between a social worker and the mother during which the mother told the social worker a series of conflicting stories about why she had asked the foster mother to take Tia.

In any event, when the foster mother picked Tia up, she observed that Tia's nose was "caked with mucus," that she was congested, and that she was running a fever. Two days later, when Tia's condition had not improved, the foster mother took her to a doctor who diagnosed her as having bronchitis. At that point, DCF abandoned the reunification plan and began to focus on adoption.

On the basis of that evidence, the judge ruled that the mother lacked "the ability, capacity, fitness and readiness to assume parental responsibility" for Tia and that DCF's plan for adoption was appropriate. While the judge made a number of findings and rulings that support her conclusion in that regard, the following ruling articulates the essential basis for her ultimate judgment:

"Sadly, this court finds that while [the] mother asserts her desire to have custody of [Tia], her actions and emotions indicate she knows she is not able to parent this child consistently and safely. [The mother] repeatedly acknowledged her inability to be a parent '24-7' to both the foster mother and [DCF,] asking for `respite' each occasion that [Tia] was with her for more than a few days. Additionally, [the] mother's interactions with [Tia] are striking for their apparent lack of emotional attachment to her. I find it notable that [the] mother never used the child's name over the course of three days testimony, only referring to [Tia] as `the baby' or `my baby.' While the court would acknowledge the mother in her own way loves this child, it is apparent that [the mother's] desire to prove her ability to parent [Tia] far exceeds her ability to do so."

As noted earlier, the mother focuses her appellate argument on comments the judge made early in the trial, as well as her substantial use of DCF's proposed findings of fact, claiming that, in combination, the judge's comments and her use of the proposed findings deprived her of a fair trial.

The judge's comments are, indeed, quite troubling. The over-all trial lasted nine days and involved the testimony of nine witnesses, the mother included. The mother was the only witness during the first four trial days. As the second day of trial began, the judge, from the bench, broached the idea of settlement, saying "[I]n the spirit of negotiation, I asked [DCF] ... if there was a proposal that they could make to the mother." Without waiting for an answer, she then began to outline the reasons that, in her view, made the mother's consideration of settlement worthwhile:

"Now, I know that we're in the middle of this hearing, and I know that there's still more evidence scheduled. However—and I know too that on a personal level, that [the] mother has been trying extremely hard, and has been making in her own personal life some very significant gains, okay? But what I do know also, from at least the evidence that I've received, and also what's gone on when I've been on this case, is that [D...