In re Jacques

• Decision Date: 10 October 2012
• Docket Number: No. 11–P–190.,11–P–190.
• Citation: 976 N.E.2d 814,82 Mass.App.Ct. 601
• Parties: ADOPTION OF JACQUES.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 601

976 N.E.2d 814

ADOPTION OF JACQUES.¹

No. 11–P–190.

Appeals Court of Massachusetts, Essex.

Argued June 5, 2012.

Decided Oct. 10, 2012.

William Cuttle, Boston, for the mother.

Chick Maroni, Boston, for the child.

David R. Marks, Assistant Attorney General, for Department of Children & Families.

Present: BERRY, SMITH, & RUBIN, JJ.

SMITH, J.

The mother and Jacques appeal from a decree of the Juvenile Court terminating the mother's parental rights to her son, Jacques. They claim that the ultimate findings were not supported by clear and convincing evidence and that the judge erred in failing to order postadoption visitation. We affirm.²

1. Background. We summarize the facts, as found by the trial judge, with additional undisputed facts from the record. Jacques was born on June 13, 2000, to the mother, who was twenty-four years old at that time.³ The mother has one older son and one younger daughter, Andrea, neither of whom are in her custody. The older child has resided in the Dominican Republic with his paternal grandmother since 2000. Andrea, born in 2002, resides in Boston with her paternal grandmother,who has had custody of her since she was approximately three months old. The mother has regular contact with Andrea.

Jacques is an “inquisitive, bright, perceptive and likeable” child. He was nine years old at the time of trial. Jacques is a special needs child, and he has been diagnosed with attention deficit hyperactivity disorder, posttraumatic stress disorder, and enuresis. He takes several medications for these conditions.

The mother has suffered several instances of sexual abuse in her life, both when she was a child and as an adult. At trial, she testified that Jacques was the result of a rape by the putative father. After living in a domestic violence shelter for about one year, the mother and Jacques moved in with a friend of the mother's, Suzanne White.⁴ In 2002, they left White's home and lived with the maternal grandmother for a short time. The mother and Jacques then moved in with the mother's boyfriend, Bruce Fox and his mother, Rona Fox.⁵ Bruce is the father of Andrea. When their relationship ended in 2004, the mother moved into her own apartment. The Department of Children and Families (department) first became involved with the family when Jacques was two years old, after a G.L. c. 119, § 51A, report (51A report) was filed by a mandated reporter. On July 14, 2002, the mother took Jacques to the hospital, reporting that he was lethargic and had been vomiting. An examination revealed that Jacques had suffered bruising to his abdomen, buttocks, and legs. A CAT scan further revealed a pancreatic injury, for which Jacques underwent surgery.

A doctor noted that Jacques's injuries were consistent with a force type of trauma. Although Jacques suggested at the time that it was Bruce who had abused him, the department supported the allegation of neglect by an unknown perpetrator.⁶ A review of Jacques's medical records at the time also revealed that he had been admitted to the hospital shortly after his birth for failure to thrive. At that time, Jacques's doctor was also concerned about the possibility of abuse or neglect. The mother testified that Jacques's abdominal injury was caused by a fall while playing outside, although she gave inconsistent accounts to the doctors about what had happened following the injury. The judge did not credit the mother's testimony. The department filed an emergency care and protection petition, and was granted custody of Jacques. Jacques was returned to his mother's care about one year later.

In 2005, the mother lost her job and her apartment. She voluntarily relinquished custody of Jacques to White, who eventually became Jacques's permanent guardian. The mother nevertheless maintained frequent contact with Jacques. While Jacques was in White's care, the department remained involved as allegations of abuse and neglect continued. Jacques disclosed to his therapist that his mother physically abused him on visits. He once returned from a visit with cuts and scrapes around his hairline, which were observed by a department investigator.⁷ White continuedto send Jacques on visits with the mother, even after learning the department was filing a 51A report against the mother.

In August, 2008, White sought to have Jacques removed from her guardianship, as she was having difficulty dealing with Jacques's behavior and because she was suffering from a chronic illness.⁸ Jacques was then placed with the Shaws,⁹ a family White knew through her church. Jacques stayed with the Shaws for several months, until they were no longer able to care for his special needs. The department then placed him with an intensive foster family in Lynn.

In 2006, the mother began to collect Social Security disability income due to sciatica. Rona acts as the mother's representative payee; the mother does not receive the checks herself. The mother prefers having Rona handle her financial affairs. The judge did not credit the mother's testimony that she is responsible enough to handle her own money, and that she does not know why Rona is her representative payee. In 2008, after entering another domestic violence shelter, the mother secured a government-subsidized apartment in Lynn, where she continues to reside.

The department originally developed service plans for the mother with a goal of “[p]ermanency through [r]eunification of the [f]amily.” The plans, which called for weekly contact and visits with Jacques, focused on helping the mother improve her parenting skills, particularly with respect to her understanding of Jacques's special needs, and helping her to address her own mental health issues. Initially, the mother was not in compliance with many of the service plan tasks. She did not complete a parenting class, an anger management program, or a psychological evaluation. She also failed to attend individual therapy consistently ¹⁰ and failed to visit with Jacques while he resided with the Shaws.¹¹ Jacques became upset as a result of the mother's inability to visit him.

In August, 2009, due to the mother's failure to progress, and Jacques's need for stability, the department's goal changed to adoption. The mother's compliance did, however, improve over the course of time, and by the time of trial, she had a record of consistent visits with Jacques, had completed a parenting class, and was attending an anger management class. The mother had also completed the psychological evaluation that the department had requested in order to determine if she and Jacques would be able to attend family therapy, but she refused to release the results. The judge found that the mother “purposefully withheld her evaluation results in [an] effort to conceal what I can only conclude are unfavorable results.” Her attendance at individual therapy also remained inconsistent.

On the basis of the above evidence, on March 22, 2010, the judge found the mother unfit to parent Jacques, and ordered that a decree issue terminating her parental rights. The judge recognized, however, that Jacques has a significant attachment to his mother and that it was in his best interest to maintain a relationship with her. Accordingly, the judge ordered posttermination visitation to continue, at the clinical discretion of the department, with a minimum of one visit per month. The judge nevertheless declined to order postadoption visitation, as he found that it would be in Jacques's best interest to continue the issue for further hearing when an adoption resource is identified by the department.

2. Discussion. a. Jacques's appeal. Before proceeding with the arguments on appeal, we begin by addressing Jacques's position on appeal. Following the issuance of the judge's decision, at a subsequent status report hearing, it came to this court's attention that the position of Jacques's appellate counsel was in direct opposition to that of his trial counsel. In particular, Jacques's appellate counsel sought reunification, whereas Jacques's trial counsel maintained her position that the mother's rights should be terminated. In response to the conflicting advocacy, the judge held an in camera meeting with Jacques to ascertain Jacques's feelings on reunification. Following that meeting, the judge reported to counsel that his decision and orders would remain the same.¹² Jacques's appellate counsel thereafter filed an appellant brief in this court.

In its brief, the department argues that Jacques has waived his arguments on appeal, as his position on appeal is directly opposed to his position at trial. Although, “[g]enerally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances [,] [s]ee Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697 (1984),” Adoption of Mary, 414 Mass. 705, 712, 610 N.E.2d 898 (1993), here the child was not a losing party below. Rather, his position changed when appellate counsel was appointed. Because of that unusual circumstance, we consider the merits of Jacques's claims on appeal.

b. Clear and convincing evidence of unfitness. 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 Kimberly, 414 Mass. 526, 528–529, 609 N.E.2d 73 (1993). Adoption of Peggy, 436 Mass. 690, 701, 767 N.E.2d 29, cert. denied, 537 U.S. 1020, 123 S.Ct. 540, 154 L.Ed.2d 428 (2002). “In determining whether the best interests of the children will be served by issuing a decree dispensing with the need for consent, a ‘court shall consider the ability, capacity, fitness and readiness of the child's parents....' ” Adoption of Nancy, 443 Mass. 512,...