In re Bea
| Decision Date | 13 May 2020 |
| Docket Number | No. 19-P-289,19-P-289 |
| Parties | ADOPTION OF BEA. |
| Court | Appeals Court of Massachusetts |
Mark A. Papirio, Springfield, for the mother.
Adelaida P. Jasperse for Department of Children and Families.
Amy L. Perry Mercier, Pittsfield, for the child.
Present: Lemire, Singh, & Wendlandt, JJ.
The mother appeals from a decree entered by a Juvenile Court judge finding her unfit and terminating her parental rights to her daughter, Bea. On appeal, the mother contends that the judge abused her discretion by allowing testimony from an expert who observed the mother and the child for two hours in connection with providing an opinion of the relationship between the mother and the child. The mother maintains that the child's counsel, who requested the assessment, violated her ethical obligations under Mass. R. Prof. C. 4.2, as appearing in 471 Mass. 1440 (2015), by not providing prior notice of the observation to the mother's counsel. Instead, the preadoptive mother scheduled the logistics of the appointment with the mother directly.
This appeal presents the question whether the admission of the expert's testimony, regarding her observations during a two-hour assessment, requires reversal of the decree terminating the mother's parental rights. Because our lodestar is necessarily the best interests of the child, we conclude that reversal is not required in view of the other evidence of the mother's unfitness.2 Concluding that the mother's other arguments also do not warrant reversal, we affirm.
Background. We summarize the judge's findings of fact, supplemented by uncontroverted evidence from the record.
The child was born to the mother, who was then fifteen,3 in 2014. At the time the child was born, the relationship between the mother and the father, who was then twenty,4 was marred by domestic violence and abuse. The couple had started dating when the mother was twelve or thirteen years old; the father (who was then eighteen years old) began living with the mother in the home of the maternal grandmother, who consented to the cohabitation despite the age difference.5 Following the child's birth, the young family continued to live in the home of the maternal grandmother, who herself had had sixty-three abuse and neglect reports pursuant to G. L. c. 119, § 51A ( § 51A report), filed against her with the Department of Children and Families (department). See note 5, supra.
1. Neglect of the child. During the six months the child remained in the mother's custody, the mother would leave the child behind and leave the maternal grandmother's home herself, her whereabouts unknown to the maternal grandmother. Often, the child was left in the care of the woman who is now the preadoptive mother, whom the mother had known her entire life.6
The department's involvement with the child began in January 2015, when it received a § 51A report that the child had been left with an inappropriate caretaker.7 By February 2015, the department had supported additional § 51A reports, confirming that the mother neglected the child's immunizations and failed to follow through with early intervention service referrals, and the department filed the present care and protection case. At the department's insistence, the maternal grandmother obtained an abuse prevention order pursuant to G. L. c. 209A (c. 209A order) against the father.8
2. The mother's mental health and cognitive limitations. The mother has several diagnosed mental health conditions, including depression, anxiety, attention deficit hyperactivity disorder
, and posttraumatic stress disorder. At the time of trial, these conditions remained untreated. The mother neglected to take her medication as directed, did not have a psychiatrist, and, by the end of trial, had discontinued therapy altogether. Although the mother underwent a psychological evaluation, she refused to provide the results to the department.9
The judge found that the mother, who had an eighth-grade education, had cognitive limitations; her processing was slow, and she struggled to remember tasks.10 A parenting evaluation by the mother's expert showed that the mother was cognitively functioning in the very low to low average range. The mother testified that she planned to finish her general education degree and then attend nursing school; however, the judge found that the "[m]other [wa]s [not] working toward these goals."
3. Lack of progress on service plan tasks. The department provided five service plans during the pendency of the case, each tailored to the mother's particular circumstances in relation to her age, mental health, cognitive limitations, and history with domestic violence. In view of the mother's failure to comply with most of her service plan tasks during the first year,11 the department changed its goal for the child to adoption.
Thereafter, the department's service plans required the mother to undergo a psychological evaluation to assess her parental abilities, to receive therapy to address her relationship with the maternal grandmother, and to attend courses geared towards helping her understand how domestic violence and her relationships affected her parental abilities. The judge found that the mother failed to engage meaningfully in services and had not been able to benefit from those few services in which she had participated.12
The mother's expert opined that the mother could parent the child adequately with appropriate supports, including parenting partner services or community support. Unfortunately, the mother refused precisely the type of services -- specialized services designed to mitigate the effects of her cognitive limitations on her parenting abilities -- her expert opined were necessary. In particular, the department offered the mother the assistance of a parent aide who specialized in providing service to individuals with developmental disabilities. The mother refused to engage these services. The judge found that the mother's refusal to accept specialized services, coupled with her lack of community supports,13 "mean[t] that she ha[d] failed to overcome her parenting deficiencies."
4. The child's bond with the preadoptive parents and receipt of specialized services. At the time of removal, the child was temporarily placed in foster care; however, in April 2015, at the mother's request, temporary custody of the child was granted to the preadoptive parents. The child has remained in their home ever since, and the mother acknowledged the strong bond between the child and the preadoptive parents.
The child began early intervention services soon after being removed from the mother's custody; at the time of trial, the child was receiving behavioral therapy
twice a week.
5. Visitation with the mother. Initially, visits between the mother and the child occurred in the preadoptive parents' home and, by agreement, were scheduled to occur twice weekly. However, the mother was inconsistent with the visits, often arriving late or not at all. After a few months, the visits were reduced to once per week because the mother agreed she could not manage more visits. The preadoptive mother supervised the visits in her home.14
While visits were still occurring at the preadoptive parents' home, as discussed in more detail infra, the child's counsel retained an expert to conduct a relationship assessment between the child and the preadoptive parents and between the child and the mother. By June 2016, the weekly one-hour visits were moved to a supervised visitation center at the preadoptive mother's request.
6. New violent relationship, younger child's removal, and continued reliance on maternal grandmother. When the trial began, the mother was almost nineteen years old and was living with her new boyfriend at the maternal grandmother's home.15 Her relationship with the boyfriend, like the one with the father, was plagued by domestic violence.16 The judge did not credit the mother's benign explanations of, and attempts to minimize, the boyfriend's behavior, finding that the boyfriend acted "in a violent or tumultuous manner." The boyfriend (who had a significant criminal record and whose pending criminal charges included one for assault and battery at the time of the trial) was offered, but did not complete, services designed to assist him with his violent behavior.
The mother and the boyfriend had a child in 2017 (younger child) who was removed from their custody. The department attempted to reunify the younger child with the mother17 and agreed to allow the younger child to return to the mother if the mother and the boyfriend left the maternal grandmother's home to reside in a shelter. The mother was able to secure a placement at a shelter; at the end of the trial, she lived there with the boyfriend and the younger child.
At trial, the mother testified that she was sometimes overwhelmed with the care of the younger child and was not ready to take custody of Bea. She wanted time to achieve financial stability. If she did get custody, her plan was to enlist the maternal grandmother's help and to raise both children with the boyfriend.
7. Determination of unfitness and visitation. The judge found that the mother was currently unfit and that the unfitness was likely to continue into the indefinite future "to a near certitude." The judge determined that terminating the mother's parental rights would serve the best interests of the child. The judge also concluded that it was in the child's best interests for "some contact to continue" with the mother. Accordingly, the judge ordered posttermination and postadoption visits between the child and the mother.
Discussion. "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...
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