ADOPTION OF ELI (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: August 5, 2024
• Docket: 23-P-0752
• Status: Unpublished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-752

ADOPTION OF ELI (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from decrees entered in the Juvenile Court

pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3, the

mother and the father of Eli and Grant, identical twins born in

2013, claim that the judge erred in determining that the

mother's unfitness was likely to continue and that termination

of the rights of both parents was in each child's best

interests. They allege that the judge gave undue weight to a

single episode of domestic violence; erred by relying on

evidence of domestic violence and the mother's mental health,

because that evidence was stale and had no nexus to her

parenting abilities; and improperly considered the parents'

poverty. Concluding there was clear and convincing evidence to

support the decrees, and discerning no abuse of discretion by

1 Adoption of Grant. The children's names are pseudonyms. the judge, see Adoption of Ulrich, 94 Mass. App. Ct. 668, 675

(2019), we affirm.

Background. We summarize the judge's relevant findings of

fact, supplemented by uncontested evidence from the record, 2

recognizing at the outset that the father does not challenge the

finding of his own unfitness. In May 2016, following the twins'

second removal from the parents' custody over concerns they were

not being adequately fed, the Department of Children and

Families (department) filed a petition alleging that Eli and

Grant were children in need of care and protection. 3 See G. L.

c. 119, § 24. The twins were returned to the parents' custody

about one week later after hearing; removed again the next month

due to homelessness and missed medical appointments; and then

again returned to the parents' care after about one week. In

December 2016, the twins were diagnosed with failure to thrive

because they were not gaining weight. Eli's weight was in the

ninth percentile while Grant's was in the second. In March

2 The judge made 403 findings of fact that "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001).

3 The first removal was conducted by a different State's child welfare agency when the twins were two weeks old, and they were returned to the parents six months later. The second removal -- the first by the department -- was additionally prompted by concerns that the family was homeless, the mother was using physical discipline, and the mother was not following up with medical appointments for Eli and Grant.

2 2017, for the fourth time in three years, the twins were removed

from the parents' care after they witnessed a physical

altercation between the mother and father. In describing this

incident to the department, the mother stated the father pushed

the children into a bedroom before choking her and slamming her

head into a wall while the boys ran in and out of the room. The

mother also reported that the father had been physically abusive

to her in the past. At trial the father denied the allegations,

and the mother denied that the father was abusive in the past,

but the judge did not credit their testimony.

Eli and Grant have specialized needs requiring

extraordinary attentiveness. The twins were born prematurely.

Each twin was deaf in one ear and had been diagnosed with

Dilantin syndrome and a heart murmur. Eli was also diagnosed

with autism spectrum disorder, attention deficit hyperactivity

disorder (ADHD), and global developmental delays. He requires

significant supports both in school and in the home, including

occupational therapy, physical therapy, and speech therapy. Eli

also needs caretakers who understand his diagnoses and can help

him engage in the services he needs to progress developmentally.

In 2019, Eli transitioned from a foster home to a group home

placement where his needs could be met by around-the-clock, one-

on-one therapeutic care. He made "tremendous improvement" there

3 such that, by the time trial ended three years later, 4 his

aggressive behaviors "stabilized significantly." He could speak

in almost full sentences, use words to express what he wanted,

had achieved improved physical strength, and could toilet

independently. Eli was ready to step down to a less restrictive

setting, provided there was "structure and predictability in his

day."

Grant has also been diagnosed with global developmental

delays and takes medication for ADHD. In addition, Grant has

been diagnosed with a trauma-related disorder. Grant requires a

rigid structure in his home environment and extensive in-home

behavioral and educational support, in addition to the services

he receives at school. He receives that support in his

preadoptive home because the preadoptive mother is a special

education teacher and board-certified behavioral analyst.

Though Grant has greater language abilities and has achieved

more independence in his basic living skills than Eli, Grant

still needs a caregiver who understands his needs and can help

him engage in the necessary services to continue making

developmental progress. Grant's preadoptive mother understands

his needs, because she was the preschool teacher of both Grant

and Eli.

4 Trial was delayed several times because of the COVID-19 pandemic.

4 Discussion. "In deciding whether termination of parental

rights will serve the child's best interests, '[t]he inquiry

. . . is not whether the parent is a good one, let alone an

ideal one; rather, the inquiry is whether the parent is so bad

as to place the child at serious risk of peril from abuse,

neglect, or other activity harmful to the child.'" Adoption of

Cadence, 81 Mass. App. Ct. 162, 168 (2012), quoting Care &

Protection of Bruce, 44 Mass. App. Ct. 758, 761 1998). "Where

there is evidence that a parent's unfitness is not temporary,

the judge may properly determine that the child's welfare would

be best served by ending all legal relations between parent and

child." Adoption of Cadence, supra at 169. "[W]e rely on the

trial judge to weigh the evidence in order to determine whether

there is a sufficient likelihood that the parent's unfitness is

temporary." Adoption of Ilona, 459 Mass. 53, 59-60 (2011).

"Because childhood is fleeting, a parent's unfitness is not

temporary if it is reasonably likely to continue for a prolonged

or indeterminate period." Id.

Many of the parents' challenges in this case "amount to no

more than a disagreement with the judge's weighing of the

evidence and credibility determinations regarding witnesses."

Adoption of Don, 435 Mass. 158, 166 (2001). Having carefully

reviewed the record, "[w]e see no basis for disturbing the

judge's view of the evidence." Adoption of Quentin, 424 Mass.

5 882, 886 n.3 (1997). Even after sporadically engaging for six

years in some of the multitude of programs recommended by the

department, the mother did not demonstrate insight into the

needs of Eli and Grant, as evidenced by her failure to

acknowledge the serious nature of their developmental delays,

her continued use of inappropriate language and parenting

techniques with the children during visits, and her statements

that "she does not know what the boys' needs are and that she

does not understand their needs."

Moreover, the mother was unable to accept the redirection

and suggestions of social workers, parent mentors, and clinical

staff when interacting with Eli and Grant. She would curse,

yell, and scream in the presence of the twins, even if it was

not directed at them, though sometimes it was. The mother

demonstrated an inability to parent Eli and Grant at the same

time; her presence "would cause a shift in the boys' actions,"

and they seemed "to be physically upset when in the room with

Mother in ways that they were not with other adults," suggesting

that she had not used appropriate parenting strategies with them

in the past. Cf. Adoption of Ulrich, 94 Mass. App. Ct. at 676

("record shows that the mother had a difficult time managing her

anger and that this issue had a significant effect on the

children"). Nor had she ameliorated this issue in such a way

that the twins changed their responses to her presence.

6 Frequently they "could not handle staying for the full thirty-

minute visit," with both boys exhibiting aggression and Eli in

particular becoming dysregulated, because the parents tried to

restrain him as a form of behavioral modification, resulting in

him head-banging, throwing objects, and hitting. Mere

participation in services does not render a parent fit without

evidence of appreciable improvement in her ability to meet the

needs of the child, see Adoption of Ulrich, supra, and the

mother was not entitled to an indefinite opportunity to reform.

See Adoption of Cadence, 81 Mass. App. Ct. at 169.

The mother did not articulate any realistic plan for

meeting the complex emotional and physical needs of Eli and

Grant, together or as individuals. See Adoption of Paula, 420

Mass. 716, 730 (1995). Though at one point she acknowledged the

services that would need to be in place if one or both children

were returned home, she also said she "would not be engaged in

any services if the children were reunified with her and [the

department] was no longer involved," suggesting a level of

instability and uncertainty that made it unlikely the mother

"would be vigilant about accessing services on behalf of the

twins." Adoption of Flavia, 104 Mass. App. Ct. 40, 52 (2024).

When "combined with each twin's significant needs requiring

recognition and appreciation for the appropriate response," this

was a risk the judge was not required to take. Id. at 48. See

7 Adoption of Ulrich, 94 Mass. App. Ct. at 676 ("judge did not err

in using the mother's repeated prior conduct to predict her

future interactions with the children"). Regardless whether a

specific nexus could be identified between the mother's mental

health issues and her inability to meet the twins' needs, that

overall inability itself was powerful evidence of unfitness.

The mother did not attend treatment meetings at Eli's group

home or "attend visits with the children in the morning or

around lunchtime, as these were her [emotional support] dog's

training hours." She had not attended the twins' individualized

education plan meetings for several years due in part to her

inability to control her behaviors and act appropriately, and

she often was unable to control her temper during foster care

reviews, resulting in a tense, adversarial environment rather

than a cooperative discussion about how best to serve the

interests of Eli and Grant. See Petitions of the Dep't of

Social Servs. to Dispense with Consent to Adoption, 399 Mass.

279, 289 (1987) ("the refusal of parents to maintain service

plans, visitation schedules, and counseling programs designed to

strengthen the family unit are relevant to the determination of

unfitness"); Adoption of Yvonne, 99 Mass. App. Ct. 574, 580

(2021) (parent's inability to control temper relevant to

determination of unfitness). Though the mother engaged in

individual therapy "with some progress made," and though since

8 2019 she had maintained a one-bedroom apartment, the mother

remained "overwhelmed with her own problems," Adoption of

Gwendolyn, 29 Mass. App. Ct. 130, 134 (1990), such that "[a]t no

point . . . did it appear that she was near ready to resume full

responsibility for her [sons]." Adoption of Paula, 420 Mass. at

730. She received food stamps and was unemployed due to her

various mental and physical health conditions, for which she

received disability benefits. 5 The mother planned to rely on

this support and financial assistance from the father if the

twins were reunified with her, a plan that was relevant to the

judge not because it reflected the mother's poverty but because

"it is in the children's best interests to be in safe, stable

homes with responsible caretakers who are dedicated to their

safety and well-being." Not only was the mother's plan "not a

definitive, well-established" one given that government

assistance is not guaranteed, but there was no evidence about

the father's net income or what he did with it. 6 In assessing

5 The mother was diagnosed with posttraumatic stress disorder and associated anxiety; was diagnosed as a child with schizophrenia, bipolar disorder, and depression; and was also diagnosed as a child with a seizure disorder, with the seizures brought on by stress and the last one occurring in 2018. She attributed her disability benefits to physical problems like scoliosis, regional pain syndrome in the left hip, asthma, diabetes, high blood pressure, and high cholesterol.

6 The father consistently reported working, but he never obtained housing, and he suffered from physical ailments that

9 the mother's future fitness and the best interests of Eli and

Grant, the judge was entitled to weigh the mother's lack of

forethought into how she would finance her rent and other

necessities if the twins were returned to her care against her

and the father's historic inability to provide a stable home

environment for themselves or the children. See Adoption of

Yvonne, supra at 580-581, and cases cited. See also Adoption of

Paula, 420 Mass. at 729 (judge "properly may rely on evidence of

past parental abuse or neglect to the extent that this evidence

has relevance to current parental fitness"). 7

We are not persuaded by the parents' claim that the judge

placed undue weight on the mother's "old mental health history"

and the March 2017 episode of domestic violence, or that the

judge failed to identify a sufficient nexus between those issues

and potential harm to the twins. The judge expressly

"considered the evidence in the aggregate," which was that the

prevented him from visiting with the twins so could also prevent him from working.

7 Because "[a] judge whose order will have the effect of irreversibly terminating the legal parent-child relationship must focus on the present circumstances of the parent and the child," Adoption of Paula, 420 Mass. at 731, it does not undermine the sufficiency of the evidence that, in 2016, the judge twice returned the twins to the parents following temporary custody hearings. Nor did those temporary reunifications preclude the judge from considering the evidence from 2016 and earlier as part of a continuing pattern demonstrating the mother's overall unfitness.

10 mother had "visceral reactions" to questions about domestic

violence and refused to answer questions about the March 2017

episode. The mother continued to minimize the violence in her

relationship with the father and demonstrate an "inability or

unwillingness to seek redress when abused by Father, even when

this abuse occurred in the presence of the children."

The father also was dealing with mental health issues that

prevented him from broaching the subject. 8 For the judge, this

raised "continued concerns about the safety of the children

[were] they returned to Mother's care," because neither parent

had "engaged in any services to address or acknowledge their

roles in domestic [violence] incidents that the children

witnessed or may have witnessed." Considering the totality of

the circumstances, the judge did not err in concluding that

returning Eli and Grant to the care of their parents "would

place them in a position of increased likelihood that their

needs would be left unmet, and their behaviors would regress."

See Adoption of Flavia, 104 Mass. App. Ct. at 49.

The subsidiary findings thus provide clear and convincing

support the judge's determination that the mother was unfit to

parent Eli and Grant, separately and together, and that her

8 The father was also diagnosed with posttraumatic stress disorder and associated anxiety and had panic attacks when the topics of domestic violence or his relationship with the mother were raised.

11 unfitness was likely to continue. The same "constellation of

factors" also supports the judge's conclusion that termination

of each parent's rights was in the best interests of Eli and

Grant. Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting

Adoption of Greta, 431 Mass. 577, 588 (2000). The twins were

three years old when they came into the department's custody and

nine years old when trial ended. In all that time "the mother

and the father had not fully addressed their deficiencies to the

degree that they would not recur were the twins placed back with

them, such that neither parent was or soon would be able to

provide [Eli] and [Grant] with a safe, stable home with

responsible caretakers dedicated to their safety and well-

being." Adoption of Flavia, 104 Mass. App. Ct. at 50. At some

point, the judge must say "enough" (citation omitted). Adoption

of Ilona, 459 Mass. at 60. When we also consider the

extraordinary progress that Eli and Grant made when they were

removed from the parents' care and came under the care of

persons dedicated to their success and wellbeing, "we conclude

that the judge did not abuse h[er] discretion in finding that

the best interests of [Eli and Grant] were served by

terminating" the parental rights of each parent. Id.

Decrees affirmed.

12 By the Court (Milkey, Sacks & Smyth, JJ. 9),

Clerk

Entered: August 5, 2024.

9 The panelists are listed in order of seniority.