Adoption of Flora

801 N.E.2d 806, 60 Mass. App. Ct. 334, 2004 Mass. App. LEXIS 38
CourtMassachusetts Appeals Court
DecidedJanuary 15, 2004
DocketNo. 02-P-1373
StatusPublished
Cited by9 cases

This text of 801 N.E.2d 806 (Adoption of Flora) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of Flora, 801 N.E.2d 806, 60 Mass. App. Ct. 334, 2004 Mass. App. LEXIS 38 (Mass. Ct. App. 2004).

Opinion

Dreben, J.

After Flora (bom on December 9, 1991) and Neil (bom on December 19, 1999) had been in foster care for almost fifteen months, the Department of Social Services (department) moved to amend care and protection petitions it had previously filed so as to terminate the rights of the children’s parents.2 See G. L. c. 119, § 26.3 Decrees entered on April 5, 2002, terminating the parental rights of the children’s mother and of Neil’s father. Although the department’s petition originally sought to terminate the rights of Flora’s father, on the third day of trial, he and the department entered into a stipulation, approved by the judge, suspending termination proceedings as to him in return for his agreeing to certain conditions under which Flora would be placed in his home.

Before us are appeals by the mother and Flora from the decrees terminating the mother’s parental rights.4 The mother claims that the evidence is insufficient to find her unfit, that she did not have an opportunity to litigate the proposed placement of Flora with her father, and that the judge erred in not ordering posttermination visitation with both children. She also appeals from the denial of her motion for a new trial based on ineffective assistance of her trial counsel.

Flora contends that the department did not, as required, prepare an adoption plan for her and that the trial judge failed to address Flora’s manifest interest in ongoing contact with her [336]*336mother. Thus, she argues, termination should not have been ordered, and in any event, it was error not to order posttermination visitation. We affirm the decree terminating the mother’s parental rights with respect to Neil, but, based on Flora’s appeal, we vacate the decree as to Flora and remand the matter to the trial judge for additional findings as to whether termination is in Flora’s best interest and, if so, whether posttermination visitation should be ordered.

1. Proceedings below and facts found by the trial judge. Temporary custody of the children was awarded to the department on January 6, 2000. Some six months later, the mother stipulated that the children were in need of care and protection and should continue in the temporary custody of the department. In December, 2000, she entered into a second stipulation agreeing that the children should be placed in the permanent custody of the department. Neil’s father joined in both stipulations.

a. March 23, 2001, findings. After holding colloquies with the mother and Neil’s father and concluding that their grant of custody to the department had been made voluntarily, the judge, relying on the stipulations and exhibits admitted without objection,5 found by clear and convincing evidence that the mother and the fathers of the children were unable to provide minimally acceptable care of their children. He also found that the department’s plan of permanent custody best served the interests of Flora, Neil, and the third child.6

His findings included the following. The mother, who was bom on July 27, 1969, had a long history of substance abuse, having used cocaine since the age of seventeen. Her attempts at detoxification were unsuccessful.7 In October, 1999, seven months pregnant and fearing she might hurt the baby, the mother [337]*337went to Catholic Charities admitting that she was addicted to cocaine. She, however, failed to attend sessions for individual and group treatment, and services were discontinued. On December 19, 1999, Neil was bom, testing positive for cocaine. After his birth, the mother agreed to enter a residential drug treatment facility, but she left after fifteen days. On January 6, 2000, the department filed care and protection petitions, and the children were removed from the mother’s home and placed in the temporary custody of the department.

From January 10 to the second week of February, 2000, the mother failed to make her whereabouts known to the department and missed meetings with her social worker and two visits with the children. She tested positive for drags in March and June, 2000, and was not consistent in attending her counseling sessions or her outpatient treatment visits. Nevertheless, as of September 13, 2000, the department’s plan was reunification with the children. Unsupervised visitation was increased to include overnight visits. On two occasions, the mother left Flora unsupervised with her father in violation of her service plan although she knew that all such visits had to be coordinated through the department. In November, the mother failed to take a random urine screen, and in December, a screen came back positive for marijuana. During this period her third child was arrested for possession of marijuana.

In determining the mother to be unfit, the judge laid stress on the mother’s “persistent pattern of substance abuse and relapse and her overall shortcomings as a parent.” He noted, in particular, the recent arrest of the third child for possession of drags and the mother’s permitting Flora’s father to have access to Flora without the department’s consent.

b. April 5, 2002, findings after termination trial. The judge who had issued the March, 2001, findings also presided over the termination trial. The evidence consisted of the judge’s previous findings and exhibits, as well as additional exhibits and [338]*338testimony. Incorporating his previous findings, the judge referred to the mother’s continued drug use and her failure to remain in a residential treatment facility, her failure to keep consistent contact with her social worker, her missed visits with her children, and her failure to find work. He noted that she did not recognize the deleterious effect on her children of her having been subjected to domestic violence. The mother also failed to appear at the last day of trial.8

2. Termination and visitation as to Neil. The findings taken as a whole support the judge’s conclusion that the mother’s shortcomings and the plan for adoption with respect to Neil warrant termination of her parental rights. The judge specifically found that Neil has special needs and suffers delays in speech and gross motor skills. The mother’s drug use while pregnant clearly contributed to Neil’s delayed maturation and later difficulties. Neil had never lived with his mother except for portions of the week during the brief time when visits were increased. Since June, 2001, the mother had failed to participate in his “Early Intervention” program.

In view of Neil’s special needs and young age, the judge could properly determine that there was clear and convincing evidence that the mother’s drug relapses and failures to take advantage of department services rendered her unfit to take care of him. His finding that the department’s plan for Neil’s adoption was in his best interest is warranted. Neil is young — just four years old. The department’s adoption plan is to recruit a family with a similar cultural background willing to cope with his special needs.

The mother has also not shown an abuse of discretion by the trial judge in not ordering posttermination visitation with Neil. In ordinary circumstances, as stated in Adoption of Vito, 431 Mass.

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Cite This Page — Counsel Stack

Bluebook (online)
801 N.E.2d 806, 60 Mass. App. Ct. 334, 2004 Mass. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-flora-massappct-2004.