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22-P-568 Appeals Court
ADOPTION OF LEONARD.1
No. 22-P-568.
Barnstable. February 6, 2023. - September 26, 2023.
Present: Henry, Shin, & Hodgens, JJ.
Adoption, Dispensing with parent's consent. Minor, Adoption. Parent and Child, Dispensing with parent's consent to adoption. Indian Child Welfare Act. Evidence, Qualification of expert witness. Witness, Expert. Practice, Civil, Adoption. Department of Children & Families.
Petition filed in the Barnstable County/Town of Plymouth Division of the Juvenile Court Department on March 22, 2017.
The case was heard by James J. Torney, Jr., J.
Lois M. Farmer for the mother. Richard A. Salcedo for Department of Children and Families. Natalie K. Hoppel for the child.
HODGENS, J. Following trial, a Juvenile Court judge
concluded that the mother was unfit and terminated her parental
1 A pseudonym. 2
rights with respect to her son, Leonard, who is an enrolled
member of the Mashpee Wampanoag tribe. See G. L. c. 119, § 26;
G. L. c. 210, § 3. On appeal, the mother raises two primary
arguments: (1) the evidence failed to support some of the
judge's findings, and (2) the termination proceedings failed to
comport with the requirements of the Indian Child Welfare Act of
1978 (ICWA), 25 U.S.C. §§ 1901 et seq. While we conclude that
the evidence supported the challenged findings, we vacate the
decree and remand for further proceedings mandated by the ICWA.
Background. We summarize the facts found by the judge,
supplemented by evidence from the record consistent with those
findings. The mother struggles with mental health issues
including bipolar disorder, posttraumatic stress disorder
(PTSD), anxiety, and depression. Continuing through the time of
trial, the mother has refused to take prescribed medications,
has been "homeless her entire adult life," has "exhibited a
pattern of leaving stable housing," and lives with family and
friends, in the woods, or in her car. She also has "a limited
employment history" and receives Social Security income. She
has a criminal history that includes open cases of assault,
assault on a family or household member, harassment, and
breaking and entering with the intent to commit a felony.
The Department of Children and Families (department) became
involved with the mother and the child (born in 2013) in 2014, 3
when it received a report pursuant to G. L. c. 119, § 51A (51A
report), alleging neglect of the child. That report was
unsubstantiated; however, the department substantiated four out
of five 51A reports of suspected neglect filed from 2014 to
2016. The child was removed from the mother's care in March
2017, following an incident during which the mother became
disruptive at a hospital while giving birth to her second child.
Neither the mother's second child nor her third child, born
during the course of these proceedings, is a party to this
appeal.
A family action plan developed by the department outlined a
number of tasks for the mother in order to work toward
reunification with the child. The mother's mental health
struggles impeded the child's healthy development and
contributed to the mother's housing instability. The mother did
not follow through with any of the tasks in the action plan
apart from sporadic visits with the child. In particular, she
did not avail herself of necessary mental health services,
failed to communicate consistently with the department, and
missed "numerous" visits with the child. On the occasions when
she did visit, the mother "fail[ed] to demonstrate an
understanding of [the child's] developmental level and needs."
The department social worker assigned to the case attempted to
assist the mother in filling out applications to access mental 4
health and housing services, but the mother often rebuffed her
efforts.
The child has "special needs that . . . require active
engagement by his caretaker." He is "delayed in the areas of
adaptive and personal-social development." He is in therapy and
has been diagnosed with PTSD, attention deficit hyperactivity
disorder, and generalized anxiety and adjustment disorder. He
also sees an occupational therapist "for concerns related to
body awareness and personal boundaries as well as emotional
regulation and attention and behavior issues." His behavioral
issues include being aggressive toward his peers, being
particularly aggressive toward females, using inappropriate
language, and making sexual gestures.
Following his removal from the mother's custody in March
2017, the child was placed in multiple foster homes. Since
August 2017, the child has been living in a tribal kinship
foster home. The foster mother is a maternal second cousin.
The foster mother enrolled him in a program that provides
special needs services, arranged for corrective surgery related
to a congenital abnormality, and cares for his physical,
emotional, behavioral, and educational needs. Both the child
and the foster mother are members of the Mashpee Wampanoag
tribe, and the child attends an indigenous language immersion
school as well as an after-school program. He is "comfortable 5
and thriving" in the foster mother's home and has "bonded to
her."
Due to the mother's lack of progress with her action plan
tasks, the department in July 2018 changed its goal from
reunification with the mother to a permanent guardianship with
the foster mother and sought termination of the mother's
parental rights. After a trial where the judge found the mother
unfit and terminated her parental rights, the parties filed a
joint motion to vacate the decree because the expert witness
presented by the department failed to meet the requirements of
the ICWA. The judge allowed the motion. Following a second
trial that included forty-four exhibits and testimony from the
mother, the department social worker, the foster mother, and a
different expert witness on Native American cultures, the judge
issued a decree terminating the mother's parental rights on
November 8, 2021, and the mother appealed.
Discussion. "To terminate parental rights to a child and
to dispense with parental consent to adoption, a judge must find
by clear and convincing evidence, based on subsidiary findings
proved by at least a fair preponderance of evidence, that the
parent is unfit to care for the child and that termination is in
the child's best interests." Adoption of Xarina, 93 Mass. App.
Ct. 800, 802 (2018), quoting Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). When, as here, a child is a member of an 6
Indian tribe, Federal law imposes additional requirements before
parental rights may be terminated. Two of those requirements
are at issue here. First, the judge must determine that "active
efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful."
25 U.S.C. § 1912(d). Second, the judge must make an additional
"determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to
the child." 25 U.S.C. § 1912(f). We do not disturb a judge's
decision terminating parental rights unless the findings of fact
are "clearly erroneous" or "there is a clear error of law or
abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59
(2011).
Unfitness. The mother contends that the judge erred by
finding that she exhibited a "persistent lack of stable and
appropriate housing" despite evidence showing that she had
stable housing from March to September 2017. We disagree. The
evidence clearly supported the judge's finding of the mother's
persistent homelessness, which is a "proper consideration[] in
an unfitness determination," when coupled with the mother's
refusal to avail herself of available housing. Adoption of 7
Virgil, 93 Mass. App. Ct. 298, 303 (2018). By her own admission
at trial, the mother had been homeless "all [her] life before
and after [she] had kids." She testified that she "stay[s] with
friends and family, sometimes in [her] vehicle." The record
also showed that the mother had a history of abandoning housing
arrangements: in the summer of 2016, she abandoned housing in a
New Bedford shelter; in September 2017, she abandoned tribe-
provided housing on Cape Cod; in December 2017, she abandoned
housing in a shelter in Springfield; and in June 2019, she
abandoned housing in Chatham. The mother also testified that
she did not have a place to live if the child were returned to
her custody. In assessing the mother's fitness, the judge
properly considered this evidence of the mother's history of
abandoning housing and was not required to give "undue weight"
to a fleeting period of housing stability. Care & Protection of
Lillith, 61 Mass. App. Ct. 132, 136 (2004). See Adoption of
Anton, 72 Mass. App. Ct. 667, 676 (2008) ("inability to secure
'adequate stable housing'" properly considered [citation
omitted]).
We also discern no error in the judge's finding that the
mother's untreated mental health issues endangered the child.
The mother contends there was no nexus between her mental health
issues and her ability to parent, but the record shows
otherwise. The mental health issues cannot be viewed in 8
isolation. As the judge found, "persistent lack of stable and
appropriate housing, untreated mental health issues, and limited
insight into [the child's] needs" coalesced to endanger the
child. The record showed that the mother had mental health
issues including bipolar disorder, PTSD, anxiety, and
depression, but refused to take prescribed medications. On
March 22, 2017, the incident occurred resulting in the mother
losing custody of the child. While in active labor with her
second child, the mother came to the hospital with the child and
became disruptive. The mother argued with hospital staff and
threatened to leave against medical advice. Based on this
incident, the department supported allegations of neglect
against the mother due to, untreated mental health issues. See
Adoption of Xarissa, 99 Mass. App. Ct. 610, 617 (2021) ("judge
reasonably concluded that the mother's failure to address her
mental health concerns properly perpetuated the issues that
brought the child into the department's custody").
Relying on Care & Protection of Bruce, 44 Mass. App. Ct.
758, 764 (1998), the mother contends that the department's
service plan amounted to the heavy-handed ultimatum, "no
medication, no child." To the contrary, the department
presented a comprehensive action plan that included specific
tasks tailored to the mother's mental health issues: submitting
to a "full scale" psychological evaluation, signing releases for 9
the department's access to psychological records, engaging in
mental health treatment, taking all prescribed medications, and
notifying the department of her medications. According to the
testimony of the department social worker, the mother failed to
complete any of the tasks and remained "emotionally unstable."
The social worker also testified that the Department of Mental
Health had "offered [the mother] a bed," but she declined.
These untreated mental health issues also hindered the
mother's ability to address the needs of the child. "When
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 Quentin, 424 Mass. 882, 888 (1997).
According to the department social worker's testimony, the child
had special needs, including "diagnosed disorders" of his own,
that required a "stable" parent to be actively engaged in his
psychological, emotional, and educational care. That social
worker, with five years of experience in working with this
family, testified that the mother "has not obtained or followed
through in terms of getting any kind of stability in her life."
Although the judge could have elaborated further, we conclude
that he properly considered the nexus between the mother's
untreated mental health issues and her "capacity to assume
parental responsibility." Adoption of Frederick, 405 Mass. 1, 9 10
(1989). See Adoption of Quentin, supra (nexus shown where
"mother's mental deficiencies impaired her ability to protect
and care for the children"); Adoption of Jacob, 99 Mass. App.
Ct. 258, 265 (2021) (nexus shown where mother's "failure to
address her numerous mental health issues" interfered with her
parental responsibilities).
Based on the foregoing, the challenged findings of fact are
amply supported by the record. Especially in light of the
mother's pattern of leaving stable housing and her untreated
mental health issues that coincided with neglect of the child,
the judge did not "need [to] wait for disaster to happen but
[could] rely upon past patterns of parental neglect or
misconduct in determining current or future fitness." Adoption
of Virgil, 93 Mass. App. Ct. at 301. The findings of fact are
not "clearly erroneous," and we discern no "clear error of law
or abuse of discretion" in the judge's unfitness determination.
Adoption of Ilona, 459 Mass. at 59.
ICWA. The mother challenges the judge's application of the
ICWA. She contends that the department failed to demonstrate
that "active efforts" were made to prevent the breakup of the
Indian family and failed to demonstrate that the child would
suffer "serious emotional or physical damage" in her custody.
25 U.S.C. § 1912(d),(f). 11
Congress enacted the ICWA in response to "the separation of
large numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian
homes." Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 32 (1989). The ICWA is designed "to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children
from their families." 25 U.S.C. § 1902. "The act thus serves
to protect not only the interests of the child and the parents,
but of the tribe as a whole." Adoption of Arnold, 50 Mass. App.
Ct. 743, 748 (2001). Congress authorized the Secretary of the
Interior to "promulgate such rules and regulations as may be
necessary to carry out the provisions" of the ICWA. 25 U.S.C.
§ 1952.
Active efforts. The pertinent Federal regulation defines
"active efforts" as
"affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child- custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan."
25 C.F.R. § 23.2.
The judge concluded that the department had made active
efforts by facilitating visits with the mother, making referrals 12
to service providers, assisting the mother in locating housing,
and locating the mother in the community when she became
unavailable. He further concluded that these efforts proved
unsuccessful because the mother was unwilling or unable to
cooperate with the department. We discern no error.
The record provides ample support for the judge's findings
and conclusions on this point. The department developed a
family action plan with the stated goal of reunification. The
plan included specific tasks for the mother designed to
strengthen the familial bond: engaging in parenting classes,
attending scheduled child visits, participating in parenting
activities, and preparing a household budget. Apart from
sporadic visits with the child, the mother did not complete any
tasks on the action plan. The department "repeatedly" offered
to help the mother, but she "didn't engage" with the department.
According to the social worker, the department went "above and
beyond" its usual role to try and help the mother. The
department repeatedly tried to "reengage" the mother and address
the action plan to no avail. The social worker "repeatedly"
called the mother and left messages and searched for her in the
community in places "where she might be staying." The
department tried to help the mother complete an application for
assistance from the Department of Mental Health, but the mother
declined to cooperate. The department worked with three ICWA 13
caseworkers for the Wampanoag tribe as well as the foster mother
and the child. The department developed a visitation schedule
between the mother and the child. Following the COVID-19
pandemic, the department tried to develop another visitation
schedule, but the mother "would not respond." Such evidence
provided strong support for the judge's conclusion that the
department engaged in "active efforts" to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the child's family. 25 U.S.C. § 1912(d).
Qualified expert witness. Before the mother's parental
rights could be terminated, the ICWA required the department to
present expert testimony showing that "custody of the child by
the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child." 25 U.S.C.
§ 1912(f). The social worker "regularly assigned to the Indian
child may not serve as a qualified expert witness." 25 C.F.R.
§ 23.122(c). Testimony may come "from one or more experts." 25
C.F.R. § 23.121(b). See Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979).
The mother contends that the expert presented by the department
was not qualified under 25 U.S.C. § 1912(f) to testify about the
likelihood of "serious emotional or physical damage to the
child." We agree. 14
The department offered a member of the Peoria Indian Tribe
of Oklahoma as its expert. The witness's educational background
included a bachelor's degree in economics (modified by Native
American studies) as well as a law degree. The witness
explained that her modified undergraduate degree was similar to,
but not designated as, a minor in Native American studies
because at the time of her degree the college had a Native
American studies program rather than a department. She has been
a member of the Indian Child Welfare Association since 2008 and
received training through that organization on the ICWA. She
has practiced law in Massachusetts since 1999 and is certified
to take care and protection cases. Her work experience includes
roles as a court investigator, educational advocate, and
guardian ad litem. She has presented training programs on the
ICWA for members of the local bar and previously qualified to
testify as a "Native American expert" in Massachusetts courts in
"Indian child welfare cases." She has no experience working
with the Wampanoag tribe.
Based on these qualifications, the department moved at
trial to qualify the witness "as an expert in native American
cultures and traditions." The mother indicated that she had no
objection. Near the conclusion of the witness's direct
testimony, the department asked whether the child would suffer
serious emotional or physical damage if returned to the mother. 15
The witness replied that it was "a really difficult question,"
but based on her "reading of what has occurred over the past
four years," her opinion was that the mother was "still
unstable" and that it would cause the child "serious emotional
damage" if he were returned to the mother. At this point, the
mother objected on the ground that "[t]his is an expert in ICWA
affairs, not an expert in child psychology." The judge
overruled the objection.
A trial judge has "wide discretion" when deciding whether
to qualify an expert witness, and such decision "will be
reversed only where it constitutes an abuse of discretion or
other error of law." Commonwealth v. Javier, 481 Mass. 268, 285
(2019), quoting Commonwealth v. Frangipane, 433 Mass. 527, 533
(2001). "The crucial issue is whether the witness has
sufficient 'education, training, experience and familiarity'
with the subject matter of the testimony" (citation omitted).
Letch v. Daniels, 401 Mass. 65, 68 (1987). See Mass. G. Evid.
§ 702 note (2023). "[A] judge's discretion can be abused when
an expert witness is permitted to testify to matters beyond an
area of expertise or competence." Frangipane, supra.
In the present case, the expert's testimony lacked the
requisite foundation about her ability to predict the likelihood
of harm to the child. In cases in which 25 U.S.C. § 1912(f)
applies, an expert witness (or expert witnesses) "must be 16
qualified to testify regarding whether the child's continued
custody by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child and should be
qualified to testify as to the prevailing social and cultural
standards of the Indian child's Tribe" (emphasis added). 25
C.F.R. § 23.122(a). Neither the governing statute nor
regulations provide any exception when, as here, a child is
placed with another member of the same tribe. Such mandated,
specialized expertise on the issue of emotional or physical harm
requires more than showing that the witness has knowledge and
experience in economics, Native American studies, law, the ICWA,
care and protection cases, and the customs of the Peoria Indian
Tribe of Oklahoma. See Oliver N. v. State, 444 P.3d 171, 179-
180 (Alaska 2019) (while experts were qualified to testify to
tribal customs and standards and had backgrounds involving ICWA,
they lacked sufficient expertise to opine on likelihood of harm
to child if returned to parent's custody).
To qualify as an expert on that issue, the witness must be
capable of testifying to "a causal relationship between the
particular conditions in the home and the likelihood that
continued custody of the child will result in serious emotional
or physical damage to the particular child." 25 C.F.R.
§ 23.121(c). See 25 C.F.R. § 23.121(d) ("evidence that shows
only the existence of community or family poverty, isolation, 17
single parenthood, custodian age, crowded or inadequate housing,
substance abuse, or nonconforming social behavior does not by
itself constitute" sufficient evidence to terminate parental
rights under ICWA). While the statute and regulations do not
specify what type of background is needed for a witness to so
qualify, courts that have considered the question have uniformly
concluded, based on the legislative history of the ICWA and
guidelines issued by the Bureau of Indian Affairs, that
expertise beyond the qualifications of a "normal" social worker
is required. See, e.g., Eva H. v. State, Dep't of Health &
Social Servs., Office of Children's Servs., 436 P.3d 1050, 1054-
1055 (Alaska 2019), overruled on other grounds by State v.
Cissy, 513 P.3d 999 (2022); Matter of M.F., 290 Kan. 142, 153-
154 (2010). For example, courts have qualified witnesses as
experts in this area where they had "substantial education in
social work or psychology and direct experience with counseling,
therapy, or conducting psychological assessments." Eva H.,
supra at 1057. See M.F., supra at 154-155 (citing cases).
The witness here lacked any comparable experience. Her
testimony failed to illuminate how her background and experience
would help the trier of fact to understand the causal
relationship between the conditions in the home and the
likelihood of serious emotional or physical damage to the child.
See Eva H., 436 P.3d at 1058 (witness with long experience as 18
attorney and guardian ad litem, but with no training in social
work, psychology, or counselling, not qualified to testify about
emotional or physical harm). Contrast Walker E. v. State, Dep't
of Health & Social Servs., Office of Children's Servs., 480 P.3d
598, 610 (Alaska 2021) (concluding, under plain error review
applicable to unpreserved objections, that expert was qualified
because her "long experience as a caseworker would naturally
have involved assessing likelihood of harm"); Matter of Candace
A., 332 P.3d 578, 586 (Alaska 2014) (witnesses qualified where
both had "substantial education" in social work, one worked as
supervisor at child welfare agency overseeing hundreds of cases,
and other had lengthy work history as mental health clinician).
Even in the absence of such specific Federal requirements,
we conclude that the witness's experience and training did not
provide a sufficient foundation for "the subject matter of the
testimony," that being the likelihood of harm to the child if he
were returned to the mother's custody. Letch, 401 Mass. at 68.
See Commonwealth v. Rintala, 488 Mass. 421, 437 n.29 (2021)
("That [witness] had worked in the paint industry for twenty
years and was involved with the design and production of the
paint at issue here does not mean that he was qualified as an
expert witness on any topic related to paint"); Frangipane, 433
Mass. at 535 ("judge's qualification of the witness in the field
of child abuse in no way extended to a qualification in the area 19
of the neurological or medical functioning of the brain");
Timmons v. Massachusetts Bay Transp. Auth., 412 Mass. 646, 649
(1992) ("Although the expert was qualified to offer his opinion
on the plaintiff's inability to work paid police details and to
teach self-defense classes, the expert was not qualified to
testify on the issue of the permanency of the plaintiff's
injuries"). This is not a situation where a "generally
qualified" expert in a particular discipline is allowed to
testify about a discrete question of knowledge in a
"subspecialty." Commonwealth v. Mahoney, 406 Mass. 843, 852
(1990). See, e.g., Commonwealth v. Crouse, 447 Mass. 558, 569
(2006) (expert in cause and origin of fire permitted to opine
about "delay between fire ignition and alarm activation");
Letch, supra ("medical expert need not be a specialist in the
area concerned"). As a gatekeeper, a judge "must be satisfied
that the witness offered for this purpose has an expertise with
regard to the subject of inquiry." W.G. Young, J.R. Pollets, &
C. Poreda, Evidence § 702.8 at 811-812 (3d ed. 2023). That
expertise, regarding the likelihood of harm to the child if he
were returned to the mother's custody, was not present in this
case. Because the witness did not explain how her background
and experience would enable her to predict the likelihood of
harm under 25 U.S.C. § 1912(f), we must vacate the decree
terminating the mother's parental rights. 20
Conclusion. We vacate the decree and remand the matter for
further proceedings consistent with this opinion. On remand the
judge may in his discretion take additional evidence on the
issues of the mother's current unfitness and the best interests
of the child. Given the disposition of this case, we need not
address the mother's challenge to the posttermination visitation
order.
So ordered.