In re Ursa
| Docket Number | 22-P-1048 |
| Decision Date | 29 November 2023 |
| Parties | ADOPTION OF URSA (and a companion case[1]). |
| Court | Appeals Court of Massachusetts |
Heard: September 6, 2023.
Adoption Dispensing with parent's consent, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Dispensing with parent's consent to adoption. Practice, Civil, Adoption. Department of Children & Families. Indian Child Welfare Act. Constitutional Law, Self-incrimination. Evidence, Child custody proceeding. Witness, Self-incrimination.
Petition filed in the Barnstable County/Town of Plymouth Division of the Juvenile Court Department on April 9, 2018.
Following transfer to the Suffolk County Division of the Juvenile Court Department, the case was heard by Maura Hardiman, J.
Natalie K. Hoppel for the mother.
Kristin S. Braithwaite for Department of Children and Families.
Daniel R. Katz for the children.
Present: Massing, Grant, & Brennan, JJ.
In this tragic case, a toddler's death resulted in the mother being indicted for, and eventually pleading guilty to, manslaughter and reckless endangerment. While the criminal case was pending, proceedings for care and protection of the mother's six other children went forward. This appeal concerns the Juvenile Court decrees terminating the mother's parental rights as to her two youngest children, a twin daughter and son, Ursa and Michael. The mother asks us to vacate the decrees on the ground that the trial judge did not adequately investigate whether the twins were subject to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq. (ICWA). The mother also argues that the judge abused her discretion by failing to continue the trial while the criminal case against her was pending, and that because the Department of Children and Families (department) acted as an agent of the prosecution, it was error for the judge to consider the mother's failure to engage with the department in the determination of the mother's unfitness. The mother also challenges the judge's sibling visitation order and the judge's decision not to order posttermination or postadoption visitation with the mother or the maternal grandmother. Discerning no error or abuse of discretion, we affirm.
Background.
We summarize the trial judge's findings of fact, which are not disputed. The subject children, born in 2018, are the twins. The mother and the twins' father[2] were also the biological parents of Amy,[3] who was born in 2017 and died in 2019. The mother has four older children, born in 2007, 2010, 2013, and 2015, each with a different father. The four older children were the subjects of a separate care and protection proceeding, the judge having denied the department's motion to consolidate. A panel of this court affirmed the decrees terminating the mother's parental rights with respect to those children in an unpublished decision pursuant to our Rule 23.0. See Adoption of Irma, 103 Mass.App.Ct. 1106 (2023).
The mother's extensive history with the department started in 2007, when the children's maternal grandmother struck the mother in the presence of the mother's oldest child, who was six months old at the time. The mother has since been the subject of approximately thirty reports filed pursuant to G. L. c. 119, § 51A (51A reports), alleging neglect of the children based on domestic violence, mental health problems, behavioral issues, and criminal activity. About one-half of the 51A reports were supported, screened in, or resulted in the department conducting investigations under G. L. c. 119, § 51B (51B investigations).[4]
The mother and father met in 2016, and their relationship soon turned volatile and violent. Police officers responded to at least ten domestic violence reports involving the couple in 2016 alone, and at least fifteen the following year. Such reports included "threats to do harm, larceny, burglary, violations of active restraining orders, and verbal and physical abuse." The mother and the father also obtained abuse prevention orders against each other. The department became concerned about the children's exposure to the violence, and police responses that permeated the relationship. The mother's conflict with the father aligned with her well-documented antagonism toward neighbors, family members, previous boyfriends, and department employees. The judge found that the mother "had a long history of domestic violence as a spectator, victim and perpetrator of abuse ... in most of her relationships, including with [the twins' fathers and the other fathers of her children."
In June 2017, in violation of an active abuse prevention order, the father arrived at the mother's home and demanded to see Amy, then two months old. Soon after he entered the home, the father allegedly strangled the mother. The oldest child, then ten years old, called 911. The department conducted a 51B investigation with which the mother refused to cooperate. She denied that the incident occurred, that her daughter called 911, or that she and the father had any history of domestic violence. The mother repeatedly threatened violence against department social workers during the investigation, even threatening to kill a worker and the worker's child. The department filed a care and protection petition and obtained custody of the mother's five children.
In early 2018, while the children remained in the department's custody, the mother gave birth to Ursa and Michael. They were born prematurely at thirty-two weeks gestation and admitted to the neonatal intensive care unit of the hospital with numerous concerning conditions. The father was present at the hospital for their birth, although he did not establish paternity for another two years. On discovering the mother's history of department involvement and of incidents of domestic violence involving the father, hospital staff filed a 51A report. In the subsequent investigation, the mother and father both denied that the father had been at the hospital during or after the twins' birth, and the mother denied having had any contact with the father since the June 2017 assault. Hospital records showed, to the contrary, that both parents wore parent identification bands, the father identified himself to the doctor and medical staff as "the father of the children," and the father visited the hospital at least twice after the twins were born as they received ongoing medical care. The judge found that the mother and the father "maintained contact throughout 2017 and 2018 and continued to engage in domestic violence." The department filed a care and protection petition for Ursa and Michael about three weeks after they were born, obtained emergency custody before they were discharged from the hospital, and placed them in short-term foster care. The following month, the department placed them in a long-term foster home, where they developed a strong bond with their foster family.
The mother began to engage with department services and to exhibit positive behaviors in early 2019. The department changed the children's goals from adoption to reunification with the mother following a permanency planning conference in May 2019. The mother participated in a biweekly parent aide service provided by the department that helped the mother develop fundamental parenting skills, provided some of the children with in-home therapy, and supplied the department with weekly updates about the family. The department reunited Ursa and Michael with the mother in September 2019 in light of her cooperation and progress on her action plan. By late December 2019, the mother had regained custody of all seven children.
Reunification lasted little more than a week. Between December 20 and 27, 2019, the mother contacted the department several times to express concerns about Amy, then age two, exhibiting "unusual" behavior. On December 26, the mother reported that Amy was "head banging, scratching herself, wide eyes staring off, replying 'yes' to everything and having accidents on the furniture." The next day, after the mother reported that Amy was scratching herself more and had become more reserved, a department social worker strongly advised the mother to seek medical attention for Amy and to speak to a family therapist. The mother agreed, but when Amy exhibited symptoms of distress around 11:50 P_.M. that night, the mother sent a text message to the social worker instead of calling 911.
The mother finally called 911 around midnight or early in the morning on December 28 and reported that Amy was unresponsive and could not be heard breathing. The 911 operators instructed the mother to rub Amy's chest while awaiting the ambulance. By the time an ambulance arrived, Amy was not breathing and had no heartbeat. Police arrived to find Amy wrapped in a blanket and propped up on the couch, which indicated that the mother had not followed the 911 operators' instructions. The other children watched as emergency responders restarted Amy's heart. Amy remained unconscious as the first responders rushed her to the local hospital, where she arrived in critical condition with visible bruises on her neck, ribs, and the back of her head. A computed axial tomography (CAT) scan suggested she had suffered nonaccidental trauma. Amy was then airlifted to Boston Children's Hospital (BCH) at about 2:45 A.M., where she was placed on life support and diagnosed with nonaccidental abusive head trauma. The mother became emotional as she said goodbye to Amy just before the airlift. She expressed concern about Amy's condition and was cooperative with medical staff. The department placed the other children in foster care so the mother could stay with Amy in the hospital.
The treating physicians at BCH observed that Amy "had a subdural hematoma,...
To continue reading
Request your trial