In re Franklin

• Decision Date: 28 June 2021
• Docket Number: No. 20-P-876,20-P-876
• Citation: 99 Mass.App.Ct. 787,173 N.E.3d 1121
• Court: Appeals Court of Massachusetts
• Parties: ADOPTION OF FRANKLIN (and two companion cases ).

99 Mass.App.Ct. 787

173 N.E.3d 1121

ADOPTION OF FRANKLIN (and two companion cases ¹ ).

No. 20-P-876

Appeals Court of Massachusetts, Bristol.

Argued April 7, 2021.

Decided June 28, 2021.

Michael S. Penta, Peabody, for the father.

Jennifer L. Kernan for Department of Children and Families.

Christine Hamilton-Queiroz, Worcester, for Bruce.

Morgan A. Russell, Lawrence, for Franklin and Cora.

Present: Milkey, Hand, & Grant, JJ.

MILKEY, J.

This case involves the welfare of three children born in 2004, 2008, and 2009. In June of 2016, while the father was incarcerated, the Department of Children and Families (department) removed the children from the mother's care. One year later, the mother died from a drug overdose.

Between the removal of the children and the trial on the termination of the father's parental rights, the department allowed only one visit between the father and children and then unilaterally terminated visitation. The father was released from incarceration in February of 2018, just days before the termination trial began in the Juvenile Court. After trial began, the father filed a motion seeking immediate restoration of visitation. As detailed infra, the trial judge effectively tabled consideration of that motion until it became moot.

On September 25, 2018, after the close of trial, the judge issued decrees that found the children in need of care and protection, found the father unfit, and terminated the father's parental rights. The judge also approved the department's plan under which all three children would be adopted by their then-foster parents (foster parents). The father timely appealed, and the judge eventually issued his findings and conclusions of law in July of 2019.

Meanwhile, shortly after the close of trial and before the decrees even entered, the circumstances of the middle child, Bruce, changed. In short, Bruce was placed in institutional care, and the foster parents, who had planned to adopt all three children, decided not to adopt him. Once the father learned of that change, he filed a motion for relief from judgment with respect to Bruce. After the trial judge denied that motion in part for lack of standing, the father appealed that order, and his appeals were consolidated. Bruce filed his own appeal, largely aligned with the father's, and the other two children participated as appellees. We conclude that in light of the fact that the department violated its regulations by unilaterally terminating visitation, and in light of Bruce's changed circumstances, a remand is appropriate to reexamine whether an order providing for visits between the father and Bruce is warranted. We otherwise affirm the decrees terminating the father's rights and the order denying the father's motion for relief from judgment.

Background. 1. The removal of the children. The department first became involved with the father and mother in 2004 when their oldest child, Franklin, tested positive for methadone

at birth. Both parents had a long history of substance abuse, including with heroin and opioids, and the mother eventually died of a drug overdose in 2017. Although the father denied using heroin after 2003, the judge discredited that testimony and found that the father used heroin as recently as 2015 (at which time the father began a multiyear jail sentence).

The father has a lengthy criminal history, including multiple charges for dealing drugs, which he admitted he had done in the presence of the children.² He collected swords and knives, to which the children had access, and he has a history of violence. For example, the father admitted that on one occasion when a woman annoyed him by knocking on his door and refusing to leave, he chased her with a sword that he used to damage her car. In 2008, he was charged with assault with intent to murder and related charges after a witness to a stabbing identified him as the perpetrator. The police found the father with multiple weapons, including a double-edged sword that had blood on it. He was held without bail following a dangerousness hearing, although the charges eventually were dismissed. In total, the father has been incarcerated twice since the children were born.³ For the alleged 2008 stabbing, he was held for three months. For a 2015 drug conviction, he was incarcerated from June of 2015 to February of 2018.

When not incarcerated, the father had an itinerant lifestyle and often was absent from the family. Notably, he lived at over fourteen different addresses between 2004 and 2015. Even when he was living with the family, the father had only limited involvement in taking care of the children. There also was robust evidence of his neglect and abuse of the children. The father inflicted physical punishment on the children on a daily basis, hitting them with a belt or toy car track that he called the "whipper." He and the mother would sometimes leave the children alone, including overnight, even when the oldest child was only seven years old.

While the mother was pregnant with Bruce, the parents separated for a time. When Bruce was born in 2008 testing positive for methadone

and exhibiting signs of drug withdrawal, he and his older brother, Franklin, were removed from the mother's custody. The parents reunited, and the children were returned to their care after about six months. A daughter, Cora, was born in 2009.

After being convicted of possession of heroin with intent to distribute, the father began serving a jail sentence in June of 2015. As noted, in June 2016, while the father was incarcerated, the children were removed from the mother's custody. The following month, Franklin and Bruce were placed with the foster parents, and Cora joined them there two months later. In early 2017, prior to the mother's death, the department changed its goal for all three children to adoption by the foster parents.

2. Visits with the father. During the beginning of the father's most recent incarceration, the mother periodically would bring the children to visit him. The mother stopped bringing the children for visits after November of 2015. In December 2016, the father told the department's ongoing social worker that he had not seen the children in over a year, and wanted visits with them. Even so, and despite Bruce and Cora -- then eight and seven -- also expressing an interest in such visits, the record reflects minimal effort by the department to provide the father visits with the children for months after removing them from the mother's custody.⁴ While in March of 2017, at one of the ongoing social worker's regular meetings with the father at the Plymouth County house of correction, the father told her that he did not want the children to visit him at that time because he was on a hunger strike and did not want the children to see him in a debilitated condition, by May 2017, the father told the ongoing social worker that he wanted to resume visits with the children. She told him that she would discuss with the children whether they were interested in visits.

All three children voiced their interest in visiting the father, and a visit between the children and the father finally took place on July 31, 2017. The father maintains, with some evidentiary support, that the visit went reasonably well under inherently difficult circumstances -- three young children whose mother had just died visiting their incarcerated father after a lengthy absence and having to speak with him separated from him by a glass barrier, using a telephone. The department maintains that the visit did not go well: the ongoing social worker who supervised the visit testified that Bruce was disruptive and defiant on the car ride to the jail, all three children were difficult to manage during the visit, and the father did not express his condolences to the children for the mother's death, even after Bruce commented that he missed the mother.⁵ Even so, the social worker acknowledged that the father asked the children how they were doing and told them that he missed and loved them.

Following the July 31, 2017 visit, Bruce was very upset and said he wanted to live with the father, and was worried that if he was adopted by the foster parents he would not be able to see the father again. His behavior, and to some extent that of the other children, also took a turn for the worse. Bruce began to defecate on the floor, to hear voices, and to become frightened of being alone. The father and Bruce argue, with at least some force, that this decompensation may have been due to causes other than the visit, such as the mother's recent death or, for that matter, Bruce's being deprived of visits with the father. The department took the position that the visit was the cause of Bruce's decompensation.

Within one week after the July 31 visit, the department decided not to allow further visits between the children and the father. The decision was made by the ongoing and adoption social workers and the management team at the department's office, after consultation with the department's trial counsel. The department never sought approval of its decision from a judge, and did not notify the father of that decision.⁶ The father meanwhile wrote each of the children a letter in August 2017.⁷ Bruce's behavior continued to deteriorate, and he was hospitalized twice and placed in community-based acute treatment (CBAT) programs on four occasions through February of 2018.

The father was released from incarceration on February 8, 2018, four days before the termination of parental rights trial began. The trial ran a total of thirteen largely nonconsecutive days over the next six months. On March 2, 2018, the father filed an abuse of discretion motion requesting that visitation be restored. This prompted the department to file a motion seeking court ratification of its decision to suspend visitation. Over the father's objection, the judge tabled consideration of the dueling motions regarding visitation, and stated that he was folding those issues...