In re Irma
| Docket Number | 22-P-909 |
| Decision Date | 30 August 2023 |
| Parties | ADOPTION OF IRMA (and three companion cases[1]). |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from decrees issued by a judge of the Juvenile Court terminating her parental rights to the four children. On appeal, the mother claims that the judge erred by (1) denying her motion to continue the care and protection trial (2) declining to order adequate posttermination and postadoption visitation, and (3) failing to make an independent inquiry into the adequacy of the notices served by the Department of Children and Families (department) under the Indian Child Welfare Act (ICWA). The two oldest children Irma and Lola, appeal from the termination of the mother's parental rights as to them. They concede that the mother was unfit at the time of trial, but argue that the judge erred in finding that (1) the mother's unfitness was likely to continue to a near certitude, and (2) the department's plans of adoption by recruitment were in their best interests. We affirm.
Background.
We recount the relevant facts, reserving certain details for later discussion. The children, Irma (born 2007), Lola (born 2010), Marnie (born 2013), and Nathan (born 2014), are the biological children of the mother. Irma's birth father was unknown at the time of trial; Lola's father is Alan; Marnie's father is Brian; and Nathan's father is Colin.[2] Between 2017 and 2018, the mother had three children with David, the oldest of whom, Amy,[3] passed away in 2019. The mother and David's twins, born in March, 2018, are the subjects of a separate care and protection proceeding, they are not subjects of the present appeal. Prior to trial, the judge denied the department's motion to consolidate the two matters.
The mother's long history with the department began in 2007 when the maternal grandmother (grandmother) physically assaulted the mother in the presence of Irma. Since then, the mother has been the subject of more than thirty reports filed pursuant to G. L. c. 119, § 51A (51A reports), alleging neglect of the children due to domestic violence, mental health and behavioral issues, and criminal activity. Many of the reports stemmed from incidents of verbal and physical abuse in the mother's familial and romantic relationships, primarily with the fathers of her children and the grandmother. In the summer of 2016, due to increasing concerns about violence in the mother's relationship with David, the department created a domestic violence safety plan with the mother and recommended that she no longer interact with him. The mother did not comply, and between October 2016 and February 2017, filed at least seven police reports due to David's violence, threats, and harassment.
In June 2017, the department filed the underlying care and protection petition and obtained temporary custody of the children and two month old Amy after Irma (age ten) called 911 reporting that David came to the home, banged on the door, demanded to see the children, and strangled the mother. Immediately following the children's removal, the mother was noncompliant and aggressive with the department.[4]
In March 2018, while the children remained in the department's custody, the mother gave birth to twins with David. At the time of the birth, the mother had an active abuse prevention order against David and repeatedly denied his paternity of the twins to the department. However, after a 51A report was filed alleging neglect of the twins, the department conducted an investigation pursuant to G. L. c. 119, § 51B (51B investigation), learned of David's paternity, and supported the allegations of neglect based on the mother's history of domestic violence with David. The department filed another care and protection petition and obtained temporary custody of the twins before they were discharged from the hospital.
Following the twins' removal, the mother was again hostile and aggressive with the department. Between July 2018 and February 2019, the mother engaged inconsistently in services, and had significant police involvement due to her violent relationship with David. It was not until around March 2019 that the mother began to consistently engage with the department, attend visits with the children, and show insight into her past behavior. During the period between March and July 2019, the mother's home was appropriate for the children and was observed to be clean and clutter-free. The mother made significant progress, and in May 2019, the goal for the children was changed from adoption to reunification. By December 20, 2019, all of the children were reunified with the mother.
Between December 20 and 27, 2019, the mother contacted the department several times to express concerns about Amy (age two) exhibiting "unusual" behavior.[5] The department told the mother to seek help including, on December 27, advising her to seek medical attention for Amy. The mother did not do so. On December 28, she called 911 and reported that Amy was unresponsive. When an ambulance arrived, Amy was not breathing and did not have a heartbeat. The other children watched as emergency responders helped Amy regain a pulse; she remained unconscious. Amy was then hospitalized, placed on life support, and diagnosed with nonaccidental abusive head trauma. The examining physicians also raised concerns about the presence of non self-inflicted scratches and marks on Amy's body. Amy was determined to be brain dead on December 29 and passed away on December 31, 2019. Several 51A reports were filed alleging physical abuse of Amy by the mother, and following a 51B investigation, the department supported the allegations. The mother was charged with manslaughter and reckless endangerment of a child in connection with Amy's death.[6]
After the judge denied the mother's motion to continue the trial until after the resolution of her criminal charges, the Juvenile Court case was tried over four days in June and July 2021. The judge found the mother unfit, terminated her parental rights to the children, and approved the department's adoption plans for Irma, Lola, and Nathan. The judge also terminated the parental rights of all the fathers with the exception of Brian, who was granted permanent custody of Marnie. The judge ordered quarterly sibling visitation among all the siblings, including the twins. The judge declined to order posttermination or postadoption visitation between the mother and Marnie and Nathan. However, recognizing the bond that Irma and Lola shared with the mother, the judge ordered one supervised posttermination and postadoption visit per year between each of them and the mother, at each daughter's request.
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 termination is in the child's best interests." Adoption of Jacques, 82 Mass.App.Ct. 601, 606 (2012). "We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence," Adoption of Nancy, 443 Mass. 512, 515 (2005), "and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).
a. Motion to continue.[7]
The mother maintains that the judge abused her discretion in denying the motion to continue the trial. The crux of this argument is that the judge failed to consider that the mother would be deprived of the ability to engage with the department or present evidence of her fitness without incriminating herself in Amy's death. We are unpersuaded.
"Whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and [her] decision will be upheld absent an abuse of that discretion." Care &Protection of Quinn, 54 Mass.App.Ct. 117, 120 (2002). In evaluating a motion to continue, "the judge should 'balance any prejudice to the other civil litigants which might result from granting a stay, against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution.'" Id. at 122, quoting United States Trust Co. of N.Y. v. Herriott, 10 Mass.App.Ct. 313, 317 (1980).
The judge denied the mother's motion because the case had been pending since 2017 and the children were "entitled to have some permanency." The judge properly considered that the harm of delays in termination proceedings "is unfortunately suffered principally by the children," Adoption of Don, 435 Mass. 158, 170 (2001), that a resolution of the mother's criminal case might take some time, and that "[n]o cases of any kind have a greater claim for expedition at all stages than those...
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