Adoption of Imelda

892 N.E.2d 336, 72 Mass. App. Ct. 354, 2008 Mass. App. LEXIS 871
CourtMassachusetts Appeals Court
DecidedAugust 14, 2008
DocketNo. 07-P-1520
StatusPublished
Cited by20 cases

This text of 892 N.E.2d 336 (Adoption of Imelda) 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 Imelda, 892 N.E.2d 336, 72 Mass. App. Ct. 354, 2008 Mass. App. LEXIS 871 (Mass. Ct. App. 2008).

Opinion

Vuono, J.

The mother appeals from a decree of the Juvenile [355]*355Court dispensing with her consent to the adoption of her three year old daughter, Imelda. She argues that the evidence does not clearly and convincingly establish that she is currently unfit. She also claims that the judge’s subsidiary findings demonstrate that the judge did not engage in an “even handed review of the evidence” and that the judge erroneously failed to make specific and detailed findings regarding domestic violence in the adoptive home.

We note at the outset that this case is unusual because, ten months after the Department of Children and Families (DCF)2 filed its care and protection petition, the child, rather than DCF, sought to terminate parental rights.3 Imelda maintains that it is in her best interests to be adopted by her paternal grandmother, with whom she has been living since February of 2006. After careful review of the judge’s findings and the record, we conclude that the decree dispensing with the mother’s consent to the adoption must be vacated.

Facts. We summarize the material facts from the judge’s findings that are supported by the evidence, supplemented by undisputed evidence from the trial exhibits relied on by the judge.4 Imelda was bom on November 21, 2003. Her parents had become romantically involved when the mother was fourteen and the father was sixteen. At the time of Imelda’s birth, the mother was seventeen and the father was nineteen. Imelda’s paternal grandmother obtained legal guardianship of Imelda’s mother after she became pregnant, and transported her to her prenatal doctors’ appointments.5 During the pregnancy, the father was incarcerated on drug-related charges; he began living with the mother after his [356]*356release, when Imelda was three months old. In September, 2004, the paternal grandmother moved from Brockton to Salem, and the parents moved in with her, at her request. In the late spring or early summer of 2005, the family moved out of the paternal grandmother’s home in Salem to a two-bedroom apartment. After the move, Imelda’s paternal grandmother frequently cared for Imelda during the day, while the mother was at work.

In September, 2005, the paternal grandmother called DCF and reported that Imelda’s parents were fighting with each other, loudly and volatilely, with the child present. The report was screened in pursuant to G. L. c. 119, § 51 A. A DCF investigator subsequently determined that the allegations of neglect were “unsupported” as to the mother, who had called the police on several occasions to have the father removed from the home after he became violent, but were “supported” as to the father, who admitted that he had punched holes in the apartment walls and otherwise damaged the apartment during bouts of anger. See G. L. c. 119, §§ 51A & 51B. The investigator’s report also noted that the home was “neat and clean” and that Imelda was “dressed appropriately” and appeared to be “well cared for.”

On December 28, 2005, an assessment worksheet prepared by a DCF social worker indicated that “overall” DCF’s involvement with the family had been positive. The social worker stated that the mother interacted well with Imelda and used appropriate disciplinary measures, but would benefit from a parent aide. The report also noted that the mother felt that the paternal grandmother undermined the mother’s disciplinary methods and was inconsistent in maintaining the limits the mother had set.6

In January of 2006, the paternal grandmother contacted DCF a second time, alleging that the mother was using Oxycontin and had failed to seek follow-up medical care for Imelda after she suffered an ear infection in December of 2005. The paternal grandmother also reported continuing problems surrounding domestic violence in the home. When a DCF investigator arrived [357]*357at the house to begin her investigation, each parent initially denied any drug use, but during that same visit, the mother admitted to using Oxycontin and “a small” amount of marijuana, and the father admitted to heavy use of marijuana, estimating he smoked at least fifteen marijuana cigarettes per day. Both parents told the investigator they knew that the grandmother had called DCF. When the paternal grandmother arrived at the house during the investigator’s visit, the parents yelled at her. The DCF investigator later confirmed some medical neglect regarding Imelda’s follow-up appointments with the pediatrician.

Thereafter, based on its investigation, DCF supported a finding of neglect as to both parents, and filed a care and protection petition pursuant to G. L. c. 119, § 24. Imelda was placed in the temporary custody of DCF in January of 2006. The parents waived their rights to a seventy-two-hour temporary custody hearing, but reserved the right to a placement hearing. At the temporary placement hearing on February 14, 2005, attended by the father, but not the mother, the paternal grandmother was given temporary custody of Imelda. The placement was made on the condition that the paternal grandmother’s partner of eighteen years and the father, who was then living in the parental grandmother’s house, complete a batterer’s program.7 The mother and father attended a pretrial conference on March 31, 2006.

During the period from January, 2006, through November, 2006, DCF developed three service plans for the family.8 The service plans required the mother to attend drug screening and [358]*358AA meetings before she would be allowed unsupervised visitation with Imelda. However, the mother failed to provide drug screens, failed to provide documentation of attending AA/NA meetings, and missed many appointments with DCF social workers. In addition, the mother admitted that she lied to DCF workers about having obtained certain drug screens. The service plan also required weekly supervised visits with Imelda at the paternal grandmother’s home. The mother visited only five or six times and missed twelve scheduled visits during this period. She did, however, call and speak with Imelda “at least” several times per week.

In October, 2006, Imelda filed a notice of intent requesting that parental rights be terminated and stating that adoption by her paternal grandmother was in her best interests. A trial on the parents’ fitness was held on November 30, 2006. Because of CORI issues in regard to the paternal grandmother’s partner, DCF’s attorney stated at trial that DCF could not “officially” support the child’s plan.

Neither parent was present at trial. The mother’s and father’s respective attorneys filed motions to withdraw. The father’s attorney reported that the father had been arrested the previous day in another county. The mother’s attorney reported that the mother’s whereabouts were unknown. The attorneys for both parents were then permitted to withdraw.

Both of the maternal grandparents attended the trial. The paternal grandmother also attended, and testified as the sole witness. The judge found the parents to be unfit and the child in need of care and protection. The judge then continued the trial in order to allow time for completion of an adoption home study of the paternal grandmother and for a determination whether it was in the child’s best interests to terminate parental rights. Temporary custody remained with the paternal grandmother.

The “best interests”9

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Bluebook (online)
892 N.E.2d 336, 72 Mass. App. Ct. 354, 2008 Mass. App. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-imelda-massappct-2008.