Adoption of Daesha.

• Court: Massachusetts Appeals Court
• Decided: February 6, 2024
• Docket: 23-P-0409
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-409

ADOPTION OF DAESHA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a Juvenile Court judge found the

mother to be currently unfit to parent her child, that her

unfitness was likely to continue unabated into the future, that

it is in the child's best interests that the mother's parental

rights be terminated, and that the plan of the Department of

Children and Families (DCF) that the child be adopted by the

mother's cousin, the child's godfather (godfather), and his wife

is in the child's best interests. The mother appeals, arguing

that the judge abused his discretion because the child's best

interests could have been served without the extreme step of

severing the legal relationship between the mother and child.

Within this overarching contention, the mother makes four

specific subsidiary arguments. First, she contends that the

judge did not give adequate weight to the progress she

demonstrated during the period between October 1, 2019 (when the

mother stipulated to an adjudication that the child was in need of care and protection) and the time of trial (on various dates

between September 2021 and January 2022). Second, she argues

that there was no nexus between her mental health issues and her

ability to parent the child. Third, she contends that the judge

erroneously relied on stale evidence. Fourth, the mother

asserts that the child's present and future welfare do not

demand termination of the mother's parental rights because

guardianship with the godfather and his wife was an available

alternative.

Discussion. In deciding whether to terminate a parent's

rights, a judge must determine whether there is clear and

convincing evidence that the parent is unfit and, if so, whether

the child's best interests will be served by terminating the

legal relation between parent and child. See Adoption of Nancy,

443 Mass. 512, 515 (2005). We defer to a trial judge's decision

to terminate 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 finding is clearly erroneous when there is no

evidence to support it, or when, 'although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),

quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).

2 1. Mother's progress. The mother points out, and the

judge found, that the mother began to take some positive steps

beginning in 2021 towards addressing her challenges and parental

shortcomings. For example, the mother began working regularly

with Tyeisha Genty, a family support and stabilization

specialist from Cambridge Family and Children Services, on a

weekly basis beginning in January 2021, and the mother began

individual therapy in August 2021. The mother had also located

housing. The mother is to be commended for making these changes

and efforts, but it was open to the judge to assess whether --

as of the time of trial (September 2021 through January 2022) --

they were sufficient to overcome the evidence of unfitness over

many years, including during 2021. See G. L. c. 210,

§ 3 (c) (viii) (parent's lack of effort to be considered in

assessing parent's fitness). We "afford deference to the

judge's assessment of the weight of the evidence and the

credibility of the witnesses, as well as to the judge's

determination of the child's best interests, reversing only if

there is clear error or abuse of discretion." Adoption of

Jacob, 99 Mass. App. Ct. 258, 266 (2021).

The mother's history before October 1, 2019 (when she

stipulated that the child was in need of care and protection),

included serious mental health issues requiring multiple

hospitalizations, dysregulated behavior that included physical

3 assaults on family members and others, unlawful and dangerous

operation of a motor vehicle, violations of restraining orders,

threats to abscond with the child, and attempted larceny from a

store and assault and battery on a store employee for which she

was ultimately found guilty after several probation violations.

Throughout this period, the maternal grandmother was the child's

primary caretaker; in fact, the grandmother was appointed the

child's guardian in April 2015. The mother does not dispute the

accuracy of the judge's findings numbered one through sixty-

nine, which pertain to the mother's unfitness during the period

before the October 1, 2019 stipulation.

The evidence also supported the judge's findings for the

period after the stipulation. For example, the mother's housing

situation was not stable. As of October 1, 2019, it appears

that the mother lived at Putnam Gardens in Cambridge, where the

child could not be placed because other residents in the home

were the subject of an open DCF case. In addition, the child

could not remain with the maternal grandmother because the

grandmother was unable to separate the mother from the child.

In November 2019, the mother proposed that she enter a shelter

with the child, but this was not a viable option because it

would remove the mother and child away from needed supports,

services, and medical providers. Prior to moving into an

4 apartment in March 2021, the mother stayed with her mother for a

short period of time and slept in her car at times.

There was also evidence that the mother did not engage in

therapy to address her mental health and behavioral issues.

Indeed, there was evidence that the mother did not even

acknowledge the need for therapy for a long time. For example,

despite having referrals for individual therapy, the mother did

not engage in individual therapy from July 2019 through January

2020. In February 2020 and May 2020, a DCF caseworker again

emphasized to the mother the need to engage in individual

therapy, but the mother continued to believe that therapy was

not necessary. Although the mother initially participated in

appointments with the Family Intensive Reunification and

Stabilization Team (FIRST), she refused contact with FIRST in

July 2020 and stopped working with them. The mother again

declined to participate in therapy, psychiatry, and anger

management services in September 2020 and October 2020.

There was also evidence that, on numerous occasions and in

a variety of contexts, the mother was unable to regulate or

control her reactions and behaviors. For example, during visits

with the child, the mother did not observe COVID-19 masking

protocols, or require family members and others to do so,

despite the child's vulnerability due to sickle cell disorder.

When DCF personnel imposed rules on the mother regarding

5 visitation (such as complying with COVID-19 protocols and

requiring that the visits be supervised), the mother would

scream, threaten to remove the child, threaten to commit

physical assault on the DCF worker, or make inappropriate

remarks.1

The mother's inability to regulate her behaviors also led

to criminal conduct and charges, with ramifications for the

child. For example, the mother was charged with various

criminal offenses after she struck a pedestrian while driving

and caused serious injuries. During her incarceration, the

mother chose not to have visits with the child from late August

2020 to early October 2020.2 In 2021, the mother engaged in

conduct that resulted in criminal charges for unlawful operation

of a motor vehicle, assaulting a police officer, resisting

arrest, assault and battery on ambulance personnel, and assault

and battery with a dangerous weapon. She also had episodes of

unregulated behavior towards caseworkers, including threats and

1 For example, on one occasion, the mother sent a text to a DCF caseworker stating, "You retarded-ass-bitch, I told you to either text me or email me. I don't want to hear your voice. Stop calling me."

2 The mother also missed some visits with the child between October and December 2020. She also missed visits with her daughter during April and May 2021 due to her placement in a recovery center.

6 physical assault. At the time of trial, many of the criminal

charges on the mother's record remained open.

We recognize that many of the mother's shortcomings likely

stem from underlying mental and emotional health issues rather

than from a lack of love for the child. See Adoption of Bianca,

91 Mass. App. Ct. 428, 432 n.8 (2017). We also recognize that

the mother began to take positive steps in 2021 by finally

engaging in individual therapy. But the judge did not abuse his

discretion by concluding that these steps were not of sufficient

duration or significance to show that the mother's longstanding

issues were merely temporary or would likely resolve. See

Adoption of Elena, 446 Mass. 24, 31 (2006). This was not a case

where the mother made "significant progress" with respect to the

areas of concern. Contrast Adoption of Carlos, 413 Mass. 339,

351 (1992) (mother made "significant progress" with respect to

"critical area of parental unfitness").

2. Nexus of mental health issues to parental fitness. The

mother correctly points out that "[w]hen assessing parental

fitness, it is not enough to state that a parent is mentally

impaired, rather there must be a showing that the condition

affects the parent's ability to care for the child." Adoption

of Leonard, 103 Mass. App. Ct. 419, 424 (2023), quoting Adoption

of Quentin, 424 Mass. 882, 888 (1997). She argues that no such

nexus was established on the evidence in this case. We

7 disagree. The evidence showed that the mother had long-term

mental health issues that impaired her ability to regulate her

behavior and to parent the child. This dysregulation led to:

the mother being unable to parent the child without significant

support from the day the child was born, the need for the

maternal grandmother to be the child's guardian, the mother's

unstable housing, the mother's criminal conduct resulting in

incarceration (and an attendant lack of visitation with the

child), the mother's physical confrontation and aggression with

family members, DCF caseworkers, and police, the mother's verbal

confrontation and threats, and the mother's inability to comply

with or understand reasonable requests by DCF workers as to

tasks that would be helpful to the child or were necessary to

achieve reunification. All of these consequences of the

mother's dysregulated behavior were inimical to the child's

wellbeing.

The mother points to a hospital psychiatrist's view in 2015

(at the time of the child's birth) that the mother would be

capable of parenting the child with "a lot of support," as well

as her long-term psychiatrist's statement to the court

investigator in 2018 that the mother was "an intelligent person

who may have the potential to parent [the child] with a lot of

support," as indicative of the lack of nexus between her mental

health and the need to terminate her parental rights. Setting

8 aside that this evidence dated from three to six years before

trial and did not amount to an endorsement that the mother was

fit, the fact remains that, by the time of trial, the mother's

conduct during the subsequent years had not borne out these

hopes. See Adoption of Nancy, 443 Mass. at 517 (judge not

required to wait indefinitely to see if parent could address

parental shortcomings).

3. Stale evidence. The mother argues that the judge

relied on stale evidence at the expense of more recent evidence

that the mother was making progress. This is, in some sense, a

variant of her first argument, and it fails for similar reasons.

Although it is true that the mother began to take steps towards

addressing her mental health issues in 2021, this evidence does

not necessarily offset the ample evidence that the mother's

patterns of dysregulated behavior, as well as the ramifications

to the child from it, continued through the time of trial.

"[E]vidence of such ongoing patterns of parental neglect or

misconduct, especially 'where unrebutted by more recent proof of

parental capacity, [can] provide[] a satisfactory basis for a

finding of current parental unfitness'" (emphasis omitted).

Adoption of Don, 435 Mass. 158, 165 n.10 (2001), quoting Custody

of a Minor (No. 1), 377 Mass. 876, 883 (1979).

4. Guardianship versus termination. Finally, the mother

argues that the judge should not have terminated the mother's

9 parental rights, and that permanency for the children could have

been achieved through guardianship instead. Setting aside that

the record does not show that the mother took this position at

trial, the judge did not abuse his discretion is concluding that

the adoption plan proposed by DCF was in the child's best

interests. As the judge explained, at the time of trial, the

child had been in the home of her godfather and his wife for

over three years. She was fully integrated into their household

and was thriving in their care. The placement would keep the

child within her birth family and grounded in her ethnic and

cultural heritage. The godparent and his wife have experience

raising a child with sickle cell disorder, and they have

demonstrated good management of this condition with respect to

the child. The child wishes to be adopted by the godparent and

his wife, sees them as her parents, and views their children as

her siblings. See Adoption of Nancy, 443 Mass. at 518-519.

Decree affirmed.

By the Court (Wolohojian, Milkey & D'Angelo, JJ.3),

Assistant Clerk

Entered: February 6, 2024.

3 The panelists are listed in order of seniority.