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19-P-388 Appeals Court
ADOPTION OF WEST (and two companion cases1).
No. 19-P-388.
Hampden. January 13, 2020. - March 27, 2020.
Present: Green, C.J., Massing, & Lemire, JJ.
Department of Children & Families. Adoption, Dispensing with parent's consent, Visitation rights. Minor, Adoption, Visitation rights. Parent and Child, Adoption, Dispensing with parent's consent to adoption. Practice, Civil, Adoption.
Petitions filed in the Hampden County Division of the Juvenile Court Department on August 26, 2013.
The cases were heard by Rebekah J. Crampton Kamukala, J.
John P. Dennis for the mother. Brian Pariser for Department of Children and Families. Kathleen Putney Towers for Brian & another. Sherrie Krasner for West.
MASSING, J. In this appeal from decrees terminating the
mother's parental rights with respect to the three children, we
1 Adoption of Brian and Adoption of Anna. The children's names are pseudonyms. 2
address when and how a parent may assert a claim that the
Department of Children and Families (department) failed to make
reasonable efforts towards family reunification. The mother's
primary contention on appeal is that the department did not make
sufficient services available to her in Spanish. Concluding
that the mother never asserted this specific claim during the
course of the proceedings, and that the judge did not abuse her
discretion in determining that the department's efforts were
reasonable and that termination of the mother's parental rights
was in the best interests of the three children, we affirm.
Background. We summarize the relevant facts as found by
the Juvenile Court judge after seven days of trial, supplemented
by uncontested evidence from the record. The mother was born in
Puerto Rico, is a native Spanish speaker, and requires an
interpreter to understand English. She has three children:
West, Brian, and Anna.2 At the time of trial, West was eleven
years old, Brian was seven years old, and Anna was four years
old. All three children have special needs, which at the time
of trial were being addressed by their foster families with the
assistance of counsellors and specialists.
The mother met West's father and gave birth to West when 2
the mother and West's father were teenagers in Puerto Rico. The mother met the man who would become Brian and Anna's father in Puerto Rico and relocated with him to Massachusetts when West was an infant. The father of West and the father of Brian and Anna are not parties to this appeal. 3
The department first became involved with the mother in
2009 after the mother walked into the local police station and
alleged domestic violence by the father of Brian and Anna. The
department encountered the mother again in 2011 after receiving
a G. L. c. 119, § 51A, report (51A report) alleging neglect of
the children. The department closed both cases after
investigating and offering services to the mother.
On August 25, 2013, a 51A report was filed alleging neglect
of the children at the mother's apartment. When police and
social workers arrived they found the mother's friend Caroline
Smith (a pseudonym), nine month old Anna, and signs of violence,
including dried blood. The mother, West, and Brian were absent;
Smith did not know where they were. Earlier that day, the
mother had accused the children's babysitter of stealing drugs
and money. The mother and the babysitter argued, then the
mother hit the babysitter in the face with a pistol. The
babysitter left the apartment and was transported by ambulance
to Baystate Medical Center (Baystate), where she was treated for
an orbital fracture of her eye. The mother was charged with
assault and battery by means of a dangerous weapon and released
on bail. She was later convicted after a jury trial and
received an eighteen-month suspended sentence.
The department took custody of Anna and was informed that
West and Brian might be in New York with their maternal 4
grandfather. The following day, the department filed a care and
protection petition on behalf of all three children. The next
day, the maternal grandmother delivered Brian to the emergency
room at Baystate. Brian had a broken leg and many bruises and
required surgery. Upon release from the hospital, he was placed
in a foster home.
The mother appeared for the seventy-two hour temporary
custody hearing. She stated that she was unsure of West's
whereabouts. Twenty minutes after a Juvenile Court judge told
the mother that she would be held in custody until West
appeared, a family friend delivered him to court. The mother
waived the temporary custody hearing, and all three children
remained in the custody of the department.
After the children were removed, the mother engaged in
services and complied with the department's plan to work towards
family reunification. In February 2015, the department
determined that while the mother had completed only some of her
service plan tasks, she was moving in a positive direction. In
May 2015, the department recognized the mother's compliance with
the service plan, including her attending individual therapy
sessions, and developed a reunification plan for the mother and
the children.
In the summer of 2015, the department reunited the mother
with all three children. Within a few months, however, the 5
mother stopped engaging in services and began neglecting the
children. In September 2015, the department removed all three
children and placed them in foster homes again after a 51A
report was filed alleging that Brian had arrived at school with
a burn mark on his back, reporting that West had burned the
letter "A" on him with the mother's cigarette lighter while she
was outside smoking. The 51A report also stated that the mother
had disciplined West with a belt, that she missed school
meetings for the children, and that she left the children
unsupervised.
The department's goal remained reunification of the
children with the mother. The department designed service plans
to help the mother reach this goal, but the mother did not fully
engage with the services offered. She attended visits with the
children twice a month but was often late. One of the service
plan tasks required the mother to bring snacks and prepare age-
appropriate activities for her visits with the children. When
the visits were held in the social worker's office, the mother
did not engage with the children but instead let them play with
her cell phone or tablet computer. The visits were moved to the
Children's Museum, but the mother still had difficulty
interacting with the children. Although she completed parenting
classes, her primary means of discipline appeared to be corporal
punishment. 6
The department made substantial efforts to provide the
mother with mental health care; we discuss these efforts in
detail below. In March 2016, the department changed its goal
from reunification to adoption as the mother did not appear to
be addressing the issues necessary for reunification. After a
trial that began in February 2017 and concluded in late July,
the judge found the mother was currently unfit, was likely to
continue to be unfit into the indefinite future to a near
certitude, and that it was in the best interests of the children
to terminate the parental rights of the mother. The judge
ordered that the children should have at least one visit per
year with the mother, so long as the department, or each child's
adoptive parent or guardian, agreed it was in the best interests
of the child.
Discussion. The mother's central claim on appeal is that
the department failed to make reasonable efforts to reunify her
with her children because it failed to provide her with Spanish-
speaking service providers. As discussed below, the mother did
not raise this claim at any point in the proceedings when the
department could meaningfully address it or the judge could
properly evaluate it. In addition, the mother asserts that we
should reverse the judge's decision to terminate her parental
rights because it was based on the clearly erroneous finding
that she abandoned the children, and that the judge abused her 7
discretion by declining to order postadoption visits with Brian
and Anna.
1. Reasonable efforts. The department is "required to
make reasonable efforts to strengthen and encourage the
integrity of the family before proceeding with an action
designed to sever family ties." Adoption of Lenore, 55 Mass.
App. Ct. 275, 278 (2002). Indeed, the department in its
regulations "recognizes the special concerns of linguistic and
cultural minorities in the Commonwealth," and requires both that
its social workers be fluent in a language their clients
understand and "that both the services it provides directly and
those it provides through providers or contracts are culturally
sensitive to the various minority groups in the client
population." 110 Code Mass. Regs. § 1.06 (2008).
Judges are required to assess the department's reasonable
efforts at various junctures during a case when the department
takes or retains custody of children: at emergency custody
hearings, at seventy-two hour temporary custody hearings,
annually thereafter, and before terminating parental rights.
See Care & Protection of Walt, 478 Mass. 212, 219-224 (2017);
Adoption of Ilona, 459 Mass. 53, 60 (2011); G. L. c. 119, § 29C.
A judge's determination that the department made reasonable
efforts will not be reversed unless clearly erroneous. Adoption
of Ilona, supra at 61-62. "However, even where the department 8
has failed to meet this obligation, a trial judge must still
rule in the child's best interest." Id. at 61. See G. L.
c. 119, § 29C ("A determination by the court that reasonable
efforts were not made shall not preclude the court from making
any appropriate order conducive to the child's best interest").
Here, before making the termination decision, the judge
specifically found that the department made reasonable efforts
to reunite the children with the mother. The judge did not
address the department's alleged failure to provide services in
Spanish because the mother never raised the issue.
"It is well-established that a parent must raise a claim of
inadequate services in a timely manner." Adoption of Daisy, 77
Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). The
parent should assert the claim "either when the parenting plan
is adopted, when [s]he receives those services, or shortly
thereafter." Adoption of Gregory, 434 Mass. 117, 124 (2001).
Raising the issue at an early stage in the proceedings allows
the department to remedy the inadequate services, which in turn
fosters a greater chance of family reunification. A parent
cannot raise a claim of inadequate services for the first time
on appeal, as the department would not have had the opportunity
to address it.
A parent has many avenues available to raise a claim of
inadequate services. A parent may pursue her claim by 9
requesting an administrative fair hearing or rejecting the
service plan and filing a grievance. See Adoption of Gregory,
434 Mass. at 124, citing 110 Code Mass. Regs. §§ 6.07, 10.05,
10.06, 10.37, 10.39 (1998).3 A claim of inadequate services can
be raised by a so-called "abuse of discretion" motion. See
Adoption of Daisy, 77 Mass. App. Ct. at 781 (mother filed motion
claiming that department had abused its discretion by failing to
secure specific services). Counsel for a parent may raise
issues of inadequate services prior to trial, such as during a
pretrial conference. See Adoption of Gregory, supra at 124-125.
These methods put the department on notice that its efforts may
be inadequate, allow the department an opportunity to remedy any
problems, and permit the department to defend its efforts at
trial.
Here, the mother contends that she raised her claim of
inadequate services in a timely manner because she discussed it
with her psychological evaluator and raised it in her proposed
findings of fact and conclusions of law submitted after the
trial, and that it was a "theme that ran through the life of the
case." Adoption of Chad, 94 Mass. App. Ct. 828, 839 n.20
3 In appropriate circumstances, a parent may bring an independent action alleging inadequate services. See Adoption of Gregory, 434 Mass. at 124 (noting that father could have filed action for discrimination under Americans with Disabilities Act). 10
(2019). We are not persuaded that the mother put the department
or the judge on notice of her current claim of inadequate
services.
The mother bases her current reasonable efforts claim on
the trial testimony of psychologist Brian Rachmaciej, Ed.D.
Throughout its contact with the mother, the department
recognized that she had mental health issues and the department
periodically assigned Rachmaciej to evaluate her psychological
functioning. The mother and Rachmaciej had a good rapport
because he spoke Spanish and was knowledgeable about her
cultural background. She told Rachmaciej that she had
difficulties finding Spanish-speaking therapists. Rachmaciej
testified that in general families in western Massachusetts
"with very specific linguistic and cultural differences have a
much more difficult time obtaining services in the appropriate
language or by a clinician with training in their own unique
cultural frameworks," and that there is "an extreme lack of
psychiatrists," even for "populations that don't require
linguistic, specialized or culturally specialized" services. In
2016, Rachmaciej recommended a partial hospitalization program,
weekly therapy, and referral to a psychiatrist for medication.
The trial judge found all of the above to be true.
But while the mother confided to Rachmaciej that she was
having difficulty finding Spanish-speaking therapists in her 11
vicinity, there is no evidence in the record that Rachmaciej or
the mother conveyed this information to the department.
Rachmaciej's role was to assess the mother's psychological
functioning and make recommendations for treatment; he did not
have a supervisory role in the implementation of her service
plan. He testified that on one occasion he took a more active
role, advocating to the mother's social worker that she needed
the partial hospitalization program, a recommendation with which
the mother's regular therapist initially disagreed. Contrary to
the mother's current claim, however, Rachmaciej believed that
this program had "culturally sensitive linguistically
appropriate providers on site." Even though Rachmaciej's
testimony touched on the availability of mental health services
for Spanish speakers, the mother did not raise the issue in
argument at trial.
The mother contends that she raised her claim in her
proposed findings of fact and conclusions of law, filed
approximately four months after the trial ended. This was too
late to raise the issue for the first time. As the trial had
already ended, the department had no opportunity to modify its
efforts to promote a greater chance of family reunification, or
to put on evidence that it had actually made reasonable efforts
to address the perceived issue, and the judge did not have an
opportunity to evaluate the claim. The mother relies on a 12
footnote in Adoption of Uday, 91 Mass. App. Ct. 51, 53 n.4
(2017), for the proposition that a reasonable efforts claim can
be asserted for the first time in posttrial proposed findings
and rulings. Her reliance is misplaced. That footnote quoted a
trial judge who had raised the issue of reasonable efforts sua
sponte, noting that the father did not address the issue in his
proposed findings and rulings and stating that "the issue has
not [been] actively litigated or framed from review." Id. To
be sure, addressing an issue in proposed findings and rulings is
usually a good indication that the issue was raised at trial --
but it is not an acceptable avenue for raising an issue that was
never addressed at trial.
In any case, the mother did not raise the issue in her
proposed findings and rulings. She did make references to
Rachmaciej's testimony, which the trial judge incorporated in
her findings. But as to reasonable efforts, the mother's
proposed findings focused on the summer of 2015, when the
children were returned to her, asserting in general terms that
the social worker's efforts on her behalf were not as good as
they had been before, that the service plan tasks "were very
difficult to fulfill," and that the social worker did not make
her a therapy referral until November 2016. The judge rejected
this suggestion, finding instead that the mother "worked hard
with services in 2015" until her children were returned to her, 13
but "within a few months of their return, [the m]other stopped
meeting with providers for herself and her children."
The record also belies the mother's claim. The department
provided the mother with Spanish-language services throughout
the case, including providing her with a Spanish-speaking social
worker, writing service plans in Spanish and English, having her
evaluated by a Spanish-speaking psychologist, and referring the
mother to Spanish-speaking therapists. After the children were
removed for the second time, the mother's Spanish-speaking
social worker made a series of referrals, four in all, to
Spanish-speaking therapists. The social worker first referred
the mother to West Central Family and Counseling (West Central)
in November or December 2015. After the mother failed to
respond to requests to set up appointments, West Central closed
her case. In late January or early February 2016, the social
worker referred her to River Valley Counseling Center (River
Valley), but she did not appear for the initial intake
appointment. Sometime during the spring in 2016, the social
worker referred her to River Valley again, and the mother
inconsistently attended therapy there for three or four months.
When her therapist at River Valley left to work at the Holyoke
Health Center, the mother declined to follow her therapist there
because she did not like the facility. In December 2016, the
mother was referred to a therapist who could meet with the 14
mother in her home; she was seeing this therapist at the time of
trial. The department more than reasonably accommodated the
mother's needs; "heroic or extraordinary measures, however
desirable they may at least abstractly be, are not required."
Adoption of Lenore, 55 Mass. App. Ct. at 278.
Finally, in a citation to supplemental authority submitted
after oral argument, the mother referred us to a footnote in
another case, in which we rejected the department's assertion
that a reasonable efforts claim had been waived because it was a
"theme that ran through the life of the case." Adoption of
Chad, 94 Mass. App. Ct. at 839 n.20. In that case, the record
raised serious concerns about the mother's mental capacity, but
the termination trial did not explore whether available outside
support could have assisted her in caring for the special needs
of her children. Id. at 839, 842. In the present case, the
failure to provide services in Spanish was neither a theme of
the case nor supported by the record. The mother has failed to
show that the judge's finding of reasonable efforts was clearly
erroneous.
2. Finding of unfitness. "To terminate parental rights to
a child, the judge must find, by clear and convincing evidence,
that the parent is unfit and that the child's 'best interests
will be served by terminating the legal relation between parent
and child.'" Adoption of Luc, 484 Mass. 139, 144 (2020), 15
quoting Adoption of Ilona, 459 Mass. at 59. "We give
substantial deference to the judge's findings of fact and
decision, and will 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 Luc, supra, quoting Adoption
of Ilona, supra.
The mother argues that the judge erroneously determined she
was unfit because she abandoned the children, which resulted in
the termination of her parental rights. Under G. L. c. 210,
§ 3 (c), judges must consider fourteen nonexclusive statutory
factors, "to the extent they are relevant, when determining
whether the child's best interests require dispensing with the
parent's consent to adoption." Adoption of Zoltan, 71 Mass.
App. Ct. 185, 195 n.14 (2008). The judge found that the mother
"often left her children . . . with unqualified babysitters, or
alone for a short time when the oldest child . . . was . . .
eight years old." The judge listed this finding under the first
statutory factor, "the child has been abandoned." G. L. c. 210,
§ 3 (c) (i). Although the finding was factually accurate, as a
matter of law it does not amount to having "abandoned" the
children, which is specifically defined by statute as "being
left without any provision for support and without any person
responsible to maintain care, custody and control because the
whereabouts of the person responsible therefor is unknown and 16
reasonable efforts to locate the person have been unsuccessful."
G. L. c. 210, § 3 (c). See Adoption of Posy, 94 Mass. App. Ct.
748, 753 (2019). This factual finding would have been more
aptly categorized as evidence of "neglect," the second statutory
factor. See G. L. c. 210, § 3 (c) (ii). Indeed, under the
second factor, the judge found, among other things, that the
mother "was neglectful of the children leaving them alone at
times." The judge's error in classifying the evidence of
neglect as evidence of abandonment did not undermine her
ultimate conclusion that the mother was an unfit parent and
likely to remain so.
3. Postadoption contact. The judge ordered that the
children "should have at least one visit per year with their
[m]other, . . . as long as it is in the best interests of each
child as determined by the [d]epartment . . . while in the
custody of the [d]epartment, and to be determined by each
child's adoptive parent or guardian when in their custody." The
mother argues that this order, which effectively leaves
visitation in the discretion of the department and the adoptive
parents, contains "nothing but boilerplate language," is
contrary to the children's wishes, and is not in their best
interests.
The decision to order posttermination or postadoption
visits is left to the judge's discretion. See Adoption of John, 17
53 Mass. App. Ct. 431, 439 (2001). "An order for postadoption
visitation is not warranted in the absence of a finding that a
significant bond exists between the child and a biological
parent and 'that continued contact is currently in the best
interests of the child.'" Id., quoting Adoption of Vito, 431
Mass. 550, 563-564 (2000).
The children argue, through counsel, that the order is
appropriate and supported by the evidence and the judge's
findings, specifically, that West expressed a desire to limit
visits to once per year, that Brian feared the mother would hit
him and Anna, that the mother came to visits unprepared, that
she did not interact appropriately with the children, and that
the preadoptive parents were alert to the children's needs. We
agree. "When a trial judge decides not to order visitation,
. . . [s]he is not required to make extensive findings if [s]he
has already made specific and detailed findings regarding the
child's best interests and the determination of parental
unfitness." Adoption of John, 53 Mass. App. Ct. at 439.
Contrast Adoption of Oren, 96 Mass. App. Ct. 842, 849 (2020)
(remanding for findings where "despite evidence that visitation
would be in the child's best interests," judge gave no
explanation for decision not to order postadoption visitation).
Decrees affirmed.