In re Gertrude
| Decision Date | 29 June 2021 |
| Docket Number | No. 20-P-1117,20-P-1117 |
| Citation | 99 Mass.App.Ct. 817,172 N.E.3d 783 |
| Court | Appeals Court of Massachusetts |
| Parties | ADOPTION OF GERTRUDE (and a companion case ). |
Jeanne M. Kaiser, for the children.
Madeline Weaver Blanchette, for the mother.
Adelaida P. Jasperse, for Department of Children and Families.
Present: Milkey, Lemire, & Singh, JJ.
This care and protection proceeding involves the welfare of two girls who were nine and twelve years old at the time of trial. A Juvenile Court judge found the mother unfit and terminated her parental rights. On appeal, the daughters and the mother do not challenge the judge's determination of unfitness. Instead, they argue that termination was not warranted because it would render the daughters "legal orphans" without any realistic chance of being adopted. In support of that argument, the daughters and the mother point out that because the older daughter had reached twelve years of age, she could prevent any adoption from occurring. See G. L. c. 210, § 2. For the reasons that follow, we conclude that the judge did not abuse her discretion in terminating the mother's parental rights, and therefore affirm the decrees.
Background. At an initial best interests trial in August of 2018, the mother stipulated to her unfitness through counsel. The judge found the daughters in need of care and protection and transferred permanent custody of them to the Department of Children and Families (department). The judge subsequently scheduled a review and redetermination proceeding to consider the department's request to terminate parental rights. This time, the mother did not stipulate to her unfitness. However, neither did she attend the scheduled trial, and the judge permissibly drew from this an adverse inference regarding her ability to care for the daughters.2 See Adoption of Helga, 97 Mass. App. Ct. 521, 525-526, 149 N.E.3d 795 (2020) ; Adoption of Talik, 92 Mass. App. Ct. 367, 371-373, 84 N.E.3d 889 (2017).
At the trial's conclusion, the judge issued decrees that, inter alia, found the daughters in continued need of care and protection, found the mother unfit, kept permanent custody with the department, and terminated the mother's parental rights.3 Roughly three months later, the judge approved the department's permanency plan for adoption by recruitment.
Discussion. 1. Unfitness. Because the daughters and the mother do not challenge any of the judge's relevant subsidiary findings, or her ultimate finding that the mother was unfit, little would be gained by reciting in detail the nature and extent of the mother's unfitness. For present purposes, it suffices to say that the mother suffers from both untreated mental illness and significant unresolved substance use issues (formerly involving "crack" cocaine, Percocet
, and OxyContin ; now involving alcohol), she has an extensive criminal record (including multiple incarcerations), and she never has been able to provide the daughters with a safe and stable home.4
Nor do the daughters and the mother challenge the judge's finding that the mother's "unfitness would continue into the indefinite future to a near certitude." In fact, the daughters acknowledge the apparent "unlikelihood that mother would recover from her alcoholism in sufficient time to care for [them]." There is minimal evidence in the record that the mother has attempted to, much less been able to, overcome her grievous parental shortcomings. Finally, we note that after the department was granted permanent custody of the daughters in August of 2018, the mother made minimal efforts to visit them.5
2. Termination. a. Best interests. In order to demonstrate that the judge erred in terminating the mother's parental rights, the daughters and the mother must show that the judge abused her considerable discretion in concluding where the daughters’ best interests lay. See Adoption of Helga, 97 Mass. App. Ct. at 527, 149 N.E.3d 795. In the end, "[w]hile courts protect the rights of parents, ‘the parents’ rights are secondary to the child's best interests and ... the proper focus of termination proceedings is the welfare of the child.’ " Adoption of Ilona, 459 Mass. 53, 61, 944 N.E.2d 115 (2011), quoting Adoption of Gregory, 434 Mass. 117, 121, 747 N.E.2d 120 (2001). We are nonetheless mindful that "[u]nfitness does not mandate a decree of termination." Adoption of Imelda, 72 Mass. App. Ct. 354, 360, 892 N.E.2d 336 (2008).
At the time of trial, the daughters were in long-term foster care with someone described as a family friend.6 Although the foster mother told the department that she was unwilling to commit to adoption or guardianship, counsel for the father relayed that the foster mother was willing to care for the children "as long as necessary." The daughters and the department have treated the current placement in similar fashion, namely, as one that -- while far from ideal -- provides the daughters relative stability.
The daughters argue that, as a matter of fact, it is so unlikely that they ever will be adopted that the department's adoption plans are "illusory." They, and the mother, further maintain that any potential benefits from termination are outweighed by the negative impacts resulting from the combination of cutting off all hope of reunifying the family and from rendering the daughters legal orphans. In other words, the daughters and the mother argue, again as a matter of fact, that the costs of termination outweigh any benefits it would provide.
Nothing in the record indicates that the daughters or the mother raised their current cost-benefit arguments in the trial court. Indeed, while the testimony revealed that the older daughter did not want to be adopted and that both daughters had declined to participate in various adoption recruitment efforts, the record does not make clear that the daughters even formally opposed termination at trial. Nonetheless, the department does not argue that the daughters and the mother thereby waived the argument, and especially in light of the stakes involved, we exercise our discretion to reach it. See Adoption of Flora, 60 Mass. App. Ct. 334, 340 n.10, 801 N.E.2d 806 (2004). However, our review of this argument is limited to the factual record established at trial.
The evidence supporting the daughters’ and the mother's portrayal of the balance of termination's costs and benefits is thin at best. At the outset, we recognize that even in circumstances where termination will render children legal orphans, the children may benefit from the permanence and stability that termination creates. Adoption of Nancy, 443 Mass. 512, 517, 822 N.E.2d 1179 (2005) (). See Adoption of Jacques, 82 Mass. App. Ct. 601, 610, 976 N.E.2d 814 (2012).
Termination also makes adoption possible, and an appropriate adoption would benefit the daughters. The daughters argue that their chances of adoption are so limited that the possibility is best ignored, but we are not persuaded. As the department accurately points out, the record reflects that neither child presents behavioral problems or other significant special needs,7 that these two children are particularly resilient, and that they generally present well for adoption. Even accepting arguendo that -- holding all else equal -- older children on average face reduced chances of being adopted, no record evidence even suggested the degree of that effect.8 In short, the record provides a basis for some degree of guarded optimism about the daughters’ adoption prospects, and it does not support the daughters’ position that their adoption prospects are only illusory.
To be sure, because the older daughter has reached an age at which her consent is required for adoption, she now effectively is able to prevent an adoption from occurring. See G. L. c. 210, § 2. In other words, the older daughter has the power to render her claims of being unadoptable a selffulfilling prophecy. However, there was no evidence requiring the judge to treat the older daughter's views as immutable, particularly where the older daughter was only twelve years old. Also, there was evidence that she would begin therapy "any day now" to discuss issues such as adoption. Accordingly, the older daughter's voiced aversion to being adopted did not preclude the judge from considering whether termination of the mother's parental rights nevertheless was in the older daughter's best interests. Cf. Adoption of Nancy, 443 Mass. at 518, 822 N.E.2d 1179 ().
Turning to the other side of the cost-benefit ledger, the daughters and the mother are unable to point to evidence that demonstrates that termination would have the dire consequences to the daughters that they predict. It is true by definition that termination of their parents’ rights will render the daughters legal orphans, and that if they are not adopted, that status would continue. But "[a]lthough a factor, the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights." Adoption of Jacques, 82 Mass. App. Ct. at 610, 976 N.E.2d 814, citing Adoption of Nancy, 443 Mass. at 516–518, 822 N.E.2d 1179. Notably, where we have expressed concerns about creating "legal orphans," there has generally been "an enduring parent-child relationship" that termination would unnecessarily destroy. Adoption of Ramona, 61 Mass. App. Ct. 260, 265, 809 N.E.2d 547 (2004). Cf. Adoption of Flora, 60 Mass. App. Ct. at 340–342, 801 N.E.2d 806. Here, by contrast, the mother currently plays next to no role in the daughters’ lives; the daughters seem to have little interest in her playing a larger role; and no evidence suggests that this will change. Cf. Adoption of Ilona, 459 Mass. at 59, 944 N.E.2d 115, quoting Adoption of Inez, 428 Mass. 717, 723, 704 N.E.2d 509 (1999) (...
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