Appeals Court Again Vacates a Termination of Parental Rights

In a published decision issued today (Adoption of Chad, No. 18-P-606), the Appeals Court has again rejected a trial court judge’s termination of a parent’s rights. See also our February 5, 2019, post (link).  Specifically, concluding “various shortcomings in the proceedings necessitate that the matter be remanded,” the Appeals Court vacated and remanded for further proceedings the decrees of Juvenile Court Judge Mary M. McCallum terminating a mother's parental rights. 

Apparently fundamental to the Appeals Court’s ruling was that the children supported contact with their mother and that the older one was 12 years of age:  “We note for purposes of the remand that, with Chad now having turned twelve, the law presumes he is competent to express where his best interests lie.  See G. L. c. 119, § 1.” The Appeals Court affirmed the decrees terminating the parental rights of the children's fathers, who did not participate. 

The Appeals Court did point out, however, that “although we agree with the judge that the record raises serious concerns about the mother's capacity to address the children's needs, we conclude that, at a minimum, further exploration and explication is necessary before the mother's parental rights may be terminated.”

The Appeals Court noted that the trial court’s “decision was based in critical part on her assessment that the mother was unable to appreciate or address both children's extensive special needs.”  The Appeals Court provided an extensive family history, which included evidence suggesting that the mother suffers from a “mental disability” to one degree or another.  The mother also “was diagnosed as also suffering from a moderate degree of major depressive disorder” and “the mother is morbidly obese (weighing over 500 pounds at the time of trial), and that this condition at least somewhat affects her mobility.”

The Appeals Court then traced a lengthy history of the family through removal upon allegations of abuse and neglect through to post-removal visits. 
The “first-hand accounts of the various visits between the mother and the children generally are consistent:  the children hugged and kissed the mother, interacted with her, enjoyed the gifts or appropriate snacks that she brought, and said things such as "[b]ye Mom" when they left.   Further, the Appeals Court pointed out that “[t]here was also uncontested testimony that the mother expressed concern for their well-being, for example, by checking for dirt under the children's fingernails, and on one occasion questioning whether Chad had warm enough clothing for a visit to a park.”

 “At trial,” the Appeals Court noted, “the mother and both children supported the family being reunited.  Nevertheless, the judge found the mother unfit and ruled that her parental rights should be terminated.  While the judge's findings raise a number of concerns about the mother's fitness, she rested her ruling on one ground, namely, that the mother was incapable of addressing the children's special needs.  Although the findings and rulings that the judge issued to explain her decision total fifty-six pages, her reasoning is capsulized in the following key passages:

"Both [Chad] and [Anne] are children who have significant specialized needs.  [Anne] has required a heightened level of intensive foster care by a foster parent proficient, trained and experienced in meeting her specialized needs.  While in [DCF's] custody, [Anne] has especially needed the experienced advocacy of a knowledgeable caretaker who was able to pursue additional support services, school and after school programs and educational supports to meet her needs.  Her behavior and global delays have been quite challenging for her pre-school and Kindergarten educators.  [Anne]'s specialized needs when combined with the mother's parental deficiencies and incapacities, clearly establish the mother's parental unfitness to parent [Anne].  [Chad] also has significant specialized needs which were beyond the ability of his intensive foster parent to manage.  [Chad] has required the highest level of intensive care in a residential therapeutic program which is particularly able to address his sexualized behavior and his trauma history.  [Chad]'s specialized needs when combined with the mother's parental deficiencies and incapacities, clearly establish the mother's parental unfitness to parent [Chad]. . . .  It is clear to this court that each of these children have required and will continue to require extraordinary attentiveness on the part of his/her caretaker and the mother has little or no ability to provide that level of attentiveness, has little or no understanding of either child's needs, and little or no genuine ability to provide for either child's needs."

Then, with regard to the efforts the mother made to improve her parenting abilities, the judged added the following:

"Despite the mother's efforts and compliance with certain recommendations set forth on her service plans, particularly her participation in individual therapy for a period of months and her attendance at a parenting program, she has not acquired the genuine ability to benefit from these services to the extent that she is now able to parent her children.  Indeed, the mother acknowledges in her trial testimony that she needs significant assistance in managing [Chad]'s behavior should her son be returned to her care.  Further, the mother indicates in her trial testimony that she only feels capable of providing for her children's needs, services and appointments if such services are physically 'close' and 'nearby' to her.  Essentially, should the children be returned to the mother's care, the services which are necessary to meet the children's specialized needs must be convenient for the mother in order for them to be utilized."

Of note, “[a]lthough the judge terminated the mother's parental rights, she ordered regular posttermination and postadoption visitation between Chad and Anne, and between the children and the mother.”

In discussing the case, the Appeals Court reiterated the law in the Commonwealth concerning termination of parental rights:   A finding of parental unfitness must be supported by "clear and convincing evidence."  Adoption of Paula, 420 Mass. 716, 729 (1995).  That means that "[t]he requisite proof must be strong and positive; it must be 'full, clear and decisive.'"  Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), quoting Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).  "Parental unfitness, as developed in the case law, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent" (footnotes omitted).  Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).  "[T]he issue 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'" (citation omitted).  Adoption of Zoltan, 71 Mass. App. Ct. 185, 188 (2008).

Further, a “parent may be found unfit because of mental deficiencies, but only where it is shown that such "deficiencies impaired her ability to protect and care for the children."  Adoption of Quentin, 424 Mass. 882, 888-889 (1997).  "Where a parent, as here, has cognitive or other limitations that affect the receipt of services, [DCF's] duty to make reasonable efforts to preserve the natural family includes a requirement that [DCF] provide services that accommodate the special needs of a parent."  Adoption of Ilona, 459 Mass. 53, 61 (2011).

In applying these principles, the Appeals Court wrote, “while it is undisputed that the mother could not address the children's special needs on her own, it is also undisputed that their special needs could not be managed by other individuals either.”  Further, “the judge's analysis does not take into account the availability of support resources to help the mother manage her life, including her role as a parent.  The judge did not speak directly to the nuanced question that the mother's situation posed:  whether, with available assistance, the mother would be able to leverage the outside support that both children plainly need.  To be clear, we note that we do not presume that the answer to that question is "yes"; in the end, it may well be that the mother's demonstrated problems with completing tasks even with some assistance prove too profound.  Our point is simply that before we can countenance the "extreme step" of terminating a parent's rights (citation omitted), Adoption of Ilona, 459 Mass. at 59, further proof is warranted as to how the mother's mental disability and other issues affect her ability to serve the children's best interests.  See Adoption of Quentin, 424 Mass. at 888.”

“In addition, we note that the judge did not squarely address the separate question whether termination of the mother's parental rights was warranted even if she was not fit to assume custody herself.  See Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008) ("Unfitness does not mandate a decree of termination").  This is not a case where the facts dictated that the relationship between the parent and children be severed; to the contrary, in recognition of the bond and positive relationship between the mother and children, the judge mandated posttermination and postadoption visitation.  Nor is this a case where the children were well-situated for adoption or other stable, long-term placements. 

As Chad’s counsel “eloquently argued,” "It has now been almost two years since trial and it is unclear upon what DCF grounds [its] rosy predictions for the adoption prospects of [Chad], who will be twelve in November [of 2018].  He deserves to spend what little remains of his childhood with the only stable and loving, albeit imperfect and disabled, parental figure that he has ever had in his life."