In re Eamon

• Decision Date: 07 June 2021
• Docket Number: 20-P-900
• Citation: 170 N.E.3d 352 (Table),99 Mass.App.Ct. 1127
• Parties: ADOPTION OF EAMON.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1127

170 N.E.3d 352 (Table)

ADOPTION OF EAMON.¹

20-P-900

Appeals Court of Massachusetts.

Entered: June 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father of Eamon appeals from a decree of a Juvenile Court judge finding that the permanency plan proposed by the Department of Children and Families (department), adoption by Eamon's foster mother, served Eamon's best interests. Eamon's paternal grandmother (grandmother) appeals from an order denying her petition for guardianship.³ We affirm.

Background. The department sought emergency temporary custody of Eamon in October 2015, one day after he was born.⁴ See G. L. c. 119, § 24. A judge granted emergency temporary custody to the department that day. At the time of Eamon's birth, the father did not know whether he was Eamon's biological father. His paternity was established when Eamon was about sixteen months old.

Eamon was born prematurely and substance exposed. He had significant health complications as a result, including supraventricular tachycardia (SVT), a condition that causes an abnormally fast heart rate. He also experienced respiratory issues and for a time received early intervention services.⁵ After Eamon was born, he remained in neonatal intensive care for about two months. When he was discharged from the hospital, the department placed him in the home of the foster mother, a registered nurse with the skills to care for children with complex medical conditions. The foster mother had visited Eamon regularly while he was in the hospital and was fostering Eamon's older half-brother at the time.⁶ The father and grandmother tried to visit Eamon once while he was in the hospital, but he had been moved. Eamon remained in the foster mother's care throughout the pendency of the petition. At the time of trial, in addition to seeing his pediatrician, Eamon was seeing several specialists for his medical conditions, including a cardiologist for his SVT, a neurologist to monitor the effects of a brain bleed discovered at birth, and an orthopedist.

The goal for Eamon changed from reunification to adoption in July 2016, to reunification with his mother and father in March 2017, and again to adoption in February 2018. The grandmother, who first met Eamon when he was about six months old, asked the department for information about how to become a foster parent⁷ and completed a family resource application. The department did not process the application, however, because the grandmother was permitting the father to live with her at the time, rendering her application "ineligible automatically." She applied to be an adoptive resource for Eamon in February 2018, and her application was approved in April 2018. The foster mother also expressed interest in adopting Eamon in February 2018, and she was approved as an adoptive resource in August 2018.

In July 2018, the department identified the grandmother as Eamon's preadoptive parent and informed the foster mother of its intent to remove him from her home. The foster mother appealed the department's decision by requesting a fair hearing. See 110 Code Mass. Regs. § 10.06(4) (2014) (permitting foster parent to appeal removal of child from foster home in certain circumstances). The fair hearing officer found that while the department's decision to place Eamon with the grandmother aligned with the department's policy goals of "plac[ing] highest priority on identifying a family resource from within the child's kinship or community circle," Department of Children and Families, Family Resource Policy #2006-01 (July 8, 2008), the department "failed to adequately consider [Eamon's] individual needs in conjunction with" its own regulations. See 110 Code Mass. Regs. § 7.101(1)(d) (2009).

The father stipulated to the termination of his parental rights, waiving his right to a trial and to appeal from the termination, but reserving his right to participate in the trial and any appeal concerning Eamon's placement.⁸ The department informed the trial judge of the fair hearing officer's decision on the first day of trial⁹ and presented the foster mother as the department's proposed adoptive resource. The grandmother and the foster mother both filed petitions for guardianship, which were consolidated with the care and protection petition. See, e.g., Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 574 & n.19 (2009). Trial proceeded as to Eamon's placement only. The father advocated for the grandmother's custody.¹⁰ The judge ultimately concluded that adoption by the foster mother was in Eamon's best interests.

Discussion. When a judge makes a custody determination after finding a parent unfit, the "driving factor" is the best interests of the child.¹¹ Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002). See G. L. c. 210, § 3 (c ). The judge is obligated to consider the plan proposed by the department and any placement proposed by a parent. See Guardianship of Tara, 97 Mass. App. Ct. 11, 13 (2020), citing Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012) ; Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). Where the parties propose competing permanency plans, "[t]he judge must perform a careful evaluation of the suitability of the plan[s] and must meaningfully ... evaluate what is proposed to be done for the child" (quotations and citation omitted). Adoption of Helga, 97 Mass. App. Ct. 521, 528 (2020). See Adoption of Varik, 95 Mass. App. Ct. 762, 770 (2019). This requires "a ‘careful evaluation of the suitability’ of the plan[s]." Adoption of Dora, supra at 475, quoting Adoption of Lars, 46 Mass. App. Ct. 30, 31 (1998), S.C., 431 Mass. 1151 (2000).

"A judge should provide an even handed assessment of all the facts surrounding both the department's plan and any competing custody or adoption plan" (quotation and citation omitted). Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). This assessment requires a "decision based on all of the relevant facts. Troublesome facts, pointing to a conclusion contrary to that reached by the department or the judge, are to be faced rather than ignored." Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). See Adoption of Imelda, 72 Mass. App. Ct. 354, 365 (2008). Because "[t]he trial judge is ordinarily in the best position to consider and choose among the conflicting elements, ... we do not disturb [the judge's] findings unless they are clearly erroneous." Adoption of Irene, 54 Mass. App. Ct. at 617. "We give deference to the judge's determination of the child's best interests, and we ‘reverse only when there is a clear error of law or abuse of discretion.’ " Adoption of Varik, 95 Mass. App. Ct. at 767, quoting Adoption of Cadence, 81 Mass. App. Ct. at 166.

The father and grandmother argue that the judge abused her discretion in concluding that adoption by the foster mother was in Eamon's best interests. Furthermore, the father contends that we owe no deference to the judge's findings. According to the father, the judge "ignored, overlooked or minimized" material evidence; failed to face "troublesome facts" about the foster mother; made "unfair, unreasonable and arbitrary" inferences that were not based on the evidence; failed to consider the impact of the fair hearing officer's decision, which determined the department's position at trial; and approved the plan of adoption by the foster mother without adequate evidence that the plan was in Eamon's best interests. The grandmother makes similar claims, asserting that the judge did not conduct an even-handed assessment of the competing plans, did not pay close attention to the evidence, failed to consider the benefit of a kinship placement for Eamon, and gave undue weight to the fair hearing decision.

1. Findings of fact. The father contends that the judge did not adequately address facts related to the foster mother's 2005 application to become a foster parent.¹² The judge in fact did discuss this history, noting that the department had "some concerns" about the foster mother's first application, but also noting that the second time the foster mother applied "[s]he felt she was in a good place ... and was more established in Massachusetts." The judge reasonably did not dwell on the department's reasons for denying the foster mother's nearly fifteen year old application, which was stale evidence of minimal relevance, superseded by ample evidence concerning the foster mother's present ability to care for Eamon. Cf. Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003) (in finding mother unfit, judge improperly "relied on stale evidence [of drug use] to predict the mother's future behavior, while ignoring the more recent evidence of her sobriety").

The father further faults the judge for failing to "express[ ] any skepticism" about the foster mother's inconsistent statements concerning the first application. To the extent these statements were relevant at all, they went to the foster mother's credibility, and it is well settled that "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993).

The father also contends that the judge's finding that the foster mother visited Eamon in the hospital fifteen times showed an inattention to the evidence, where the judge failed to reconcile the inconsistencies between the decision of the fair hearing officer and the testimony at trial about the frequency of the foster mother's visits. The evidence established that the foster mother made frequent visits to Eamon in the hospital, whatever the exact number. Even assuming that the judge's finding of fifteen visits was erroneous, this finding was "not central to the ultimate conclusion" concerning Eamon's best interests. Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).

The father and grandmother both challenge the judge's findings about the foster mother's ability...