In re Adoption of Querida

• Decision Date: 11 February 2019
• Docket Number: No. 18-P-915,18-P-915
• Citation: 119 N.E.3d 1180,94 Mass.App.Ct. 771
• Parties: ADOPTION OF QUERIDA (and a Companion Case).
• Court: Appeals Court of Massachusetts

94 Mass.App.Ct. 771

119 N.E.3d 1180

ADOPTION OF QUERIDA (and a Companion Case¹ ).

No. 18-P-915

Appeals Court of Massachusetts, Essex.

Argued December 3, 2018

Decided February 11, 2019

Deborah Sirotkin Butler, Arlington, for the mother.

Andrew J. Haile, Assistant Attorney General, for Department of Children and Families.

Erin M. Noonan, for the children.

Present: Blake, Lemire, & Singh, JJ.

BLAKE, J.

Following a trial in the Juvenile Court, the judge found that the mother was unfit to assume parental responsibility of two children, terminated her parental rights, and declined to order posttermination visitation. The mother appeals contending that the Department of Children and Families (department) failed to prove her unfitness by clear and convincing evidence and that the judge abused his discretion in declining to order posttermination visitation.² We affirm.

1. Background. The mother has a long history of serious mental health issues, including anxiety and depression. In 2013, the department received a report pursuant to G. L. c. 119, § 51A (51A report), alleging that Julie (born in 2005) sexually abused Querida (born in 2002) while in the mother's care. The department did not remove the children, but the case remained open for services. In 2015, five additional 51A reports were received over a six-month period. These reports included allegations that the mother was drinking and smoking marijuana to excess, hitting the children, and failing to get the children to school. The department continued to provide services to the family while investigating the reports. In November, 2015, another 51A report was filed that led to the children's removal. This report was filed as a result of the mother taking Julie to the emergency room because she had been coloring on the walls and on toys. During this hospital visit, the mother indicated that her boy friend had hit Julie. The department conducted an investigation pursuant to G. L. c. 119, § 51B (51B investigation), issued a report (51B report) supporting the allegations, and filed a care and protection petition on behalf of the children.

a. School attendance. As part of the 51B investigation, school personnel reported that the children had between fifty and sixty absences each, for each of the past two years. In response, the mother blamed the children and had numerous excuses for her failure to both get the children to school and get them to school on time. School personnel reported that the mother was often inappropriate in front of the children, calling the children "horrible" and suggesting "she should give them to the state."

b. Medical and educational needs. Both children have significant medical needs. Querida suffers from asthma

and a number of food and environmental allergies. She has been prescribed multiple medications, which she must take daily, and has an EpiPen. Julie has been diagnosed with major depressive disorder and moderate cognitive disorder. She performs in the "extremely low" range of intellectual functioning and suffers from "visual-perceptual motor deficits." Julie also suffers from other maladies, including nightmares. She is prescribed medication for agitation.

The mother has been unable to manage the children's medical needs. She is unable to make sure that Querida takes her medication daily. Indeed, Querida reported that her medications were "all over the place" at the mother's home. In addition, the mother smoked in the house, which aggravated Querida's asthma

. Querida's pediatrician confirmed that her asthma was poorly controlled in the mother's care.

Julie is a student and resident at a school for children with special behavioral and emotional needs. Due to the mother's behavior at a visit, she was barred from the school grounds.

At the time of trial, both children were up to date medically and receiving counselling. Since her placement with the department, Querida has not had an asthma

attack and was attending school regularly. At the time of trial, Julie was happy and comfortable in her school placement.

c. Interactions with the department. The mother was understandably upset when the department removed the children from her care. She threatened to kill a department social worker and sue the department. Due to the mother's behavior, an ambulance was called. Over the course of the 51B investigation, the mother screamed at department social workers and continued her threats to assault them.

The department created a service plan for the mother that, for the most part, she either refused or was unable to comply with. Prior to the children's removal, the tasks included monthly meetings with the department, ensuring the children attended school and received necessary medical care, maintaining consistent mental health treatment for herself and the children, keeping all appointments with supportive care groups, and getting a parenting psychological evaluation. After the children's removal, the service plan was amended to include demonstrating appropriate behavior at visitation, maintaining all scheduled medical appointments, getting a parenting psychological evaluation, and setting boundaries for her conduct with the children.³ At trial, the mother stated that she "[didn't] need to learn anymore of how to be a mother."

d. Domestic violence. The mother has a history of relationships with men who abuse her. She was the victim of physical and sexual abuse at the hands of her partners. The children reported that Julie's putative father had hit both of them. The mother reported that when the girls informed her of this, she struck him. Despite this history, the mother had left both children with him at times.e. Visitation. The majority of weekly visits were problematic. The mother yelled at the children and blamed them for turning the department against her. During a visit in August, 2016, the department called an ambulance when the mother became "irate" when the social worker tried to redirect the mother from her radio to paying attention to the children. During visits, the mother often brought up inappropriate topics with the children, spent time on the telephone and taking photographs of herself, and frequently cried. At a visit at the department office, a Massachusetts State police trooper had to intervene because the mother was described as "dysregulated." In addition, the mother brought men to the visits, including one who had been abusive to her. The mother's last visit with Querida was in September, 2016, and since then the mother has only requested a visit once, which Querida refused. The mother told a social worker that "she can put [Querida] up for adoption, but she will fight for [Julie]."

f. Behavior at trial. The mother had numerous outbursts during the trial. During the testimony of a social worker, the mother yelled out that the social worker was a "home wrecker," a "piece of crap," and a "loser." She also yelled that she would "love to[ ] tear [the social worker] up inside like you're lying to me." The judge had the mother removed from the court room until she could compose herself. When the mother returned, she called out that the social worker was a "pathological liar." The judge took a lengthy recess and arranged for the mother to see a mental health provider in the court clinic. The judge expressed that the mother's mental health was "a great concern" but noted that he was not drawing an adverse inference from her absence when court resumed after the recess.

On the next scheduled trial date, the mother became so agitated that the judge suspended the trial and continued the trial to another date. On the day of the rescheduled trial, while in the court house lobby, the mother was swearing loudly. She then became hysterical in the restroom and made suicidal comments to her lawyer and the court clinician. As a result, an ambulance was called for the mother, and she was taken to the hospital. The judge resumed the proceedings in the mother's absence; the department called four witnesses, and the judge heard closing statements. The judge reopened the case for a third day of trial to allow the mother to testify. After a few questions from the department's lawyer, the mother lost her composure. The mother was escorted from the court room,⁴ and the proceedings ended after the parties rested.

2. Discussion. a. Judicial bias. The mother claims that statements made by the judge during the proceedings concerning her behavior in the court house and court room demonstrated bias that permeated his decision to terminate her parental rights. In large part, the mother relies on Care & Protection of Bruce, 44 Mass. App. Ct. 758, 694 N.E.2d 27 (1998), to support her claim that the judge's comments reflect bias, speculation, and prognostication. In Care & Protection of Bruce, we held that the judge erred in terminating the mother's parental rights where no nexus existed between her mental health diagnosis and her current ability to parent. Id. at 760-761, 694 N.E.2d 27. Here, to the contrary, the mother's lengthy history of untreated mental illness, in combination with her behavior throughout trial, bears a direct relationship to her ability to care for the children. The judge is free to "use past conduct, medical history, and present events to predict future ability and performance as a parent," and thus the mother's reliance on Care & Protection of Bruce is misplaced. Id. at 761, 694 N.E.2d 27. However, this case presents a larger question of what a trial judge can do when a litigant appears to be in distress in the court house or court room. The judge's observations of the mother throughout these proceedings do not disqualify him, as the mother suggests, from adjudicating the case. See Liteky v. United States, 510 U.S. 540, 554-556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). See also Erickson v. Commonwealth, 462 Mass. 1006, 1007, 966 N.E.2d 795 (2012).

Here, the judge observed the mother at the beginning of trial screaming and threatening witnesses. Initially, h...