In re Varik

• Decision Date: 16 August 2019
• Docket Number: No. 18-P-1363,18-P-1363
• Citation: 132 N.E.3d 961,95 Mass.App.Ct. 762
• Parties: ADOPTION OF VARIK.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 762

132 N.E.3d 961

ADOPTION OF VARIK.¹

No. 18-P-1363

Appeals Court of Massachusetts, Plymouth..

Argued April 5, 2019

Decided August 16, 2019

Lisa Augusto, Committee for Public Counsel Services, for the father.

Andrew Don, Scituate, for the child.

Lynne M. Murphy, Jamaica Plain, for Department of Children and Families.

Present: Agnes, Maldonado, & Sacks, JJ.

AGNES, J.

A judge of the Juvenile Court found the father unfit² to parent his son, Varik, and issued a decree terminating his parental rights, thereby dispensing with his need to consent to Varik's adoption.³ The judge committed Varik to the custody of the Department of Children and Families (department), approved the department's adoption plan, and ordered postadoption visitation between the father and Varik.⁴ Both the father and Varik appeal.

The father argues that the judge abused her discretion in denying his request to continue the trial, in finding him permanently unfit without considering the department's failure to provide appropriate services to address his family's unique needs, and in terminating his parental rights in the absence of an adequate adoption plan. Varik contends that the adoption plan approved by the judge is deficient and, as a result, the termination decree must be vacated and the case remanded, and that the department failed to make reasonable efforts to provide appropriate services to the father. We affirm in part and vacate in part.

Background. The judge made eighty-two findings of fact based on the testimony of three witnesses and thirty-one exhibits introduced at trial. Varik was born in 2008 and was nine years old at the time of the termination of parental rights trial in May, 2018. The mother and the father have two children together, Varik and Varik's sister, who lives with the mother and the mother's boyfriend in North Carolina. Varik moved to Massachusetts to live with the father in May, 2015, at age six, after he reported that the mother's boyfriend had cut him with a knife and child protective services in North Carolina became involved with the mother's family.⁵ The father currently lives in Rhode Island with his long-term girlfriend and their daughter, Varik's younger half-sister.

In February, 2016, a mandated reporter filed a report pursuant to G. L. c. 119, § 51A, alleging that Varik had attended school with a swollen, painful hand, and had disclosed that his father "gave him a whoopin' with his hand" the day before, causing Varik to fall on and injure his own hand. The father picked up Varik from school, telling school workers that Varik was "a liar" and that he would take Varik to the doctor. Later that day, as part of the emergency investigation pursuant to G. L. c. 119, § 51B, a department investigative worker and a social worker visited the home. There they found the father alone because his girlfriend had taken Varik, along with his younger half-sister, to the hospital. At the hospital, Varik told department social workers that the father had hit him on the legs with a belt the week before. The father did not visit Varik, who had a hand fracture, at the hospital. The department took custody of Varik that day and filed a care and protection petition in the Juvenile Court the following day.

Under the service plan prepared by the department, the father's tasks included consistently engaging in counselling to address his anger issues and how the abuse had impacted Varik, exploring alternative methods of disciplining the children, completing a parenting course, and consistently visiting Varik. The father completed the parenting course and participated in some individual counselling addressing his ability to better handle Varik's behaviors and to recognize the causes of those behaviors. The father's first counsellor terminated services because the father missed several appointments in a row. The department also had a very difficult time contacting the father to schedule his visits with Varik, and the father missed a number of visits, citing the demands of his work schedule. To accommodate his work schedule and better facilitate the supervised visits, the department began scheduling the visits at a visitation center on Saturdays. Despite this accommodation, the father still missed numerous visits and expressed aggravation if Varik arrived late, blaming the department for his tardiness.⁶ As of September, 2016, the father denied abusing Varik and denied any responsibility for Varik being in the department's care.

Throughout this time, Varik remained in a foster home and exhibited troubling behavior, including lying, a series of thefts, and hoarding food on an almost daily basis. Varik's disruptive behaviors at school and in his foster home improved over time as he joined a school social group, began individual counselling, and met with a mentor. By February, 2017, the department determined that the father had made significant gains as a result of his engagement with his service plan tasks and reunified Varik with him. During this period of reunification, an intensive in-home family therapeutic service was put in place, and the department developed a new service plan for the family that included tasks for the father such as continuing counselling to address his anger issues and the impact the abuse had on Varik, and exploring alternative methods of discipline that are safe and appropriate for children.

Varik reentered the department's care two months later, in April 2017, when the father and his girlfriend brought him to the department's office and stated that they could no longer care for him, given his troublesome behaviors, and that the father could not handle him without using physical discipline. The father told the department social worker that "the only way for [Varik] to learn [was] through pain." At a subsequent home visit in June, 2017, the father reported to the social worker that it was Varik's fault that he was in the department's custody and reiterated his belief that physical discipline was the best method of addressing Varik's problematic behaviors. Additionally, the father told the social worker that it was "in [Varik's] blood to be bad." In November, 2017, the father, his girlfriend, and Varik's younger half-sister moved to Rhode Island.

Varik was eventually placed in a comprehensive intensive foster care (IFC) home, where he remained at the time of the trial. By May, 2018, Varik was doing well academically, was medically up-to-date, and had graduated from an after-school mentoring program. While he still occasionally exhibited disruptive behavior, such as stealing food or school supplies, he also consistently engaged in therapeutic counselling treatment, and the department had made a referral for him to resume services with his former therapeutic mentor. Once Varik returned to the department's care, the father refused to engage in any services that were asked of him and did not participate with the department in any meaningful way toward reunification. The father told the department social worker that he did not need services, and he refused to participate in any further therapy.

In the twelve months leading up to trial in May, 2018, the father visited Varik seven times, often cancelling or not appearing for scheduled visits. He cited the nature of his seasonal work schedule, which often required him to be out of State for periods of time, as the reason for his frequent absences. While the father and Varik did have some positive and age-appropriate interactions during some visits, the father on other visits would criticize Varik or primarily discuss the department's case or upcoming court dates with him. During one visit, Varik had a sudden and severe allergic reaction

and was taken by ambulance to the hospital. The father did not accompany Varik to the hospital and caused Varik great distress by his absence. The father also did not follow up with the social worker regarding Varik's medical treatment or condition.

In February, 2018, the father indicated to the department an interest in engaging in family therapy. However, Varik's therapist at the time reported to the department that family therapy would be "completely inappropriate" given the father's repeated "toxic encounters" with Varik, including a recent telephone call the father had made to Varik during which he blamed Varik for the care and protection case, stated he would never regain custody of Varik, and threatened to move to North Carolina.

Adoption plan. On November 28, 2017, the department changed its goal for Varik to permanency through adoption. The department had submitted a request pursuant to the Interstate Compact on the Placement of Children (ICPC) for a home study in South Carolina for Varik's paternal step-grandmother, who had cared for Varik when he was younger; that home study was pending at the time of trial. Additionally, the department asserted at trial and on appeal that it was working to identify Varik's "Aunt Susan," who had visited with him a few months before trial, as a potential adoption resource.⁷ The adoption social worker further testified at trial that should the ICPC request be denied, the department would proceed to recruitment, using the services of the Massachusetts Adoption Research Exchange, and refer Varik to the department's adoption development licensing unit for additional recruitment activities.

The adoption plan did not detail Varik's specific ongoing needs, nor did it describe the specific characteristics of the ideal family that would be recruited by the department or the necessary home environment that would be the best and most appropriate placement for him.

Discussion. 1. Dispensing with parental consent to adoption. "In determining whether to dispense with parental consent to adoption, the judge must not only determine whether a parent is unfit, but [she] must also evaluate ‘whether dispensing with the need for parental consent will be in the best interests of the child[ ].’ " Adoption...