IN RE ADOPTION OF GHITA, Mass: Appeals Court 2022:
"By the Court (Neyman, Ditkoff & Hand, JJ.[12])
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
NOTICE: Summary decisions issued by the Appeals Court pursuant to
M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020)
(formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001
[2009]), are primarily directed to the parties and, therefore, may not
fully address the facts of the case or the panel's decisional rationale.
Moreover, such decisions are not circulated to the entire court and,
therefore, represent only the views of the panel that decided the case. A
summary decision pursuant to rule 23.0 or rule 1:28 issued after
February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
The mother appeals from a decree issued by a Juvenile Court judge
terminating her parental rights to her daughter pursuant to G. L. c.
119, § 26, and G. L. c. 210, § 3.[2]
We conclude that the trial judge properly found that the Department of
Children and Families (DCF) made reasonable efforts toward
reunification. Further concluding that the mother had adequate
representation and that the DCF attorney did not have a disqualifying
conflict of interest, we affirm.
1. Background.
a. Pretrial activity.
The mother has a long history with DCF. We, however, largely limit
our discussion to the events since the birth of the child in November
2018. One day after the child was born, a hospital social worker called
DCF to report possible neglect of the child after the mother tested
positive for marijuana[3]
and refused to provide her home address to the hospital. Two social
workers responded, but the mother refused to let them in to see her.[4]
The nurse supervisor tried to explain to the mother that the social
workers just wanted to talk with the mother about her plan for the baby,
but the mother began yelling and swearing and told the nurse supervisor
that she would assault the social workers if they entered the hospital
room.
Subsequently, the mother packed up her belongings, tore up the
child's birth certificate, pulled the IV out of her own arm, kissed the
child on the head, and left the hospital without the child and against
medical advice. DCF assumed custody of the child and, upon her discharge
from the hospital, placed her in a foster home. The child has lived in
the same preadoptive foster home without disruption since her initial
placement.
The mother first visited the child on December 13, 2018. The mother
appropriately soothed the child, changed her diaper without issue, and
was affectionate, providing a blanket as a gift after the visit. DCF
offered the mother nearly weekly visits, but the mother attended
subsequent visits only sporadically. When the mother attended visits,
she had appropriate interactions and was nurturing, but her ability to
respond to the child's needs was minimal.
On March 15, 2020, DCF closed its offices because of the COVID-19
pandemic. From March to July 2020, the mother was offered weekly video
or phone visits with the child, but she refused them.[5]
On July 15, 2020, DCF reopened its offices. The social worker offered
the mother in-person visits, with COVID-19 protocols requiring the
mother to call the social worker the morning of each visit to confirm
that she had no COVID-19 symptoms, to wear a face mask the entire visit,
and not to share snacks with the child.[6]
The mother did not attend any of the six visits offered biweekly
between DCF's reopening and the trial. As of the trial, the last time
the mother had visited the child, either in person or virtually, was
March 2, 2020.
DCF assigned the mother eleven action plan tasks that have remained
largely unchanged since the child's birth. The tasks include individual
therapy, an anger management course, medical and psychological
evaluations, weekly visits with the child, and finding stable housing.
Since the child's birth, the mother has struggled with inadequately
treated mental health issues and housing instability.
When the child was born, the mother denied that she was currently
receiving mental health services. The mother has been diagnosed with
mood and personality disorder, borderline personality disorder,
posttraumatic stress disorder, and bipolar disorder, and has a history
of trauma and domestic violence. Although she was previously prescribed
Wellbutrin and Adderall, there is no evidence that the mother has taken
either medication since the child's birth. On December 12, 2018, the
mother rejected DCF's recommendation that she attend treatment and
therapy. The mother became angry when social workers attempted to
discuss mental health services with her. The mother told the social
worker that she was seeing a therapist after the child's birth, but the
mother never provided a release for the therapist's records, and the
social worker was unable to confirm that the mother was seeing the
therapist.
The mother has consistently refused to give DCF her address. During
2018 and 2019, DCF attempted to schedule several home visits with the
mother, but she did not keep any of the scheduled visits. Specifically,
in December 2018, DCF attempted to schedule a home visit, but the mother
kept indicating that she needed to check with the father then never
followed up with DCF. She refused to give DCF access for a home visit,
saying it was none of DCF's business. In January 2019, the mother
reported that she was living with the father, despite having told her
social worker that she no longer lived there, but she refused to
disclose the address to DCF.[7]
In February 2019, the father alleged that the mother tried to hurt
herself with a knife and then swung it at him when he tried to retrieve
it. The father obtained an abuse prevention order against the mother.
That same month, the mother was admitted to a psychiatric facility after
she cut herself and then attempted suicide after being goaded by the
father.
Sometime before February 28, 2019, the mother reported that she was
no longer living with the father and had moved in with a friend. The
mother did not disclose this friend's address to DCF, and the mother was
asked to leave the friend's house sometime before July 2019 because of
the friend's involvement in a probate matter.
In October 2019, the mother was "couch surfing." In July 2020, the
mother reported that she had found housing with three roommates and told
her social worker that she had been living there for over a year but
refused to provide her address.[8]
DCF has attempted to engage the mother in her action plan. Sometime
before November 2019, a social worker offered to go over the mother's
action plan with her, but she refused. Between November 2018 and
November 2019, the mother was provided a copy of her action plan at
least twice.
In November 2019, DCF assigned a new social worker to the mother. The
mother told the social worker that she was not interested in receiving
services or getting referrals because she did not need them. The new
social worker never made any referrals for the mother, but the social
worker told the mother that, if she wanted services, then the social
worker would readily make referrals for the action plan items.
Specifically, the social worker would have referred the mother to
individual therapy, medication maintenance, a psychological evaluation,
an anger management course, and parenting classes. In May 2020, the
mother asked for information about anger management classes in the area,
and the social worker provided the information and a copy of the
mother's action plan to her.[9] The mother never made DCF aware of her participation in any anger management classes.
With the exception of attending some visits with the child, the
mother has not engaged on any of the action items in her plan, nor has
she signed any releases for DCF. The mother's refusal to engage in
services is consistent with her previous involvement with DCF.
b. Trial.
On October 14, 2020, the judge held a best interests hearing.[10]
The mother was not present. Counsel for the mother informed the judge
that the mother was outside the court house. Counsel indicated that he
had spoken with the mother at 6:30 A.M. that morning and had spent two
hours per day for the three prior days texting and speaking over the
phone with the mother. Around 9 A.M. on the morning of trial, the mother
sent the trial counsel a list of questions she wanted counsel to ask.
The mother expressed anxiety about what she believed was going to happen
at trial.
The judge offered that the mother could attend by telephone, and the
mother's counsel told the judge that the mother had already refused his
suggestion that she attend by telephone, but that he would like to try
again. The judge decided to deal with preliminary matters to give the
mother more time to appear.
After preliminary matters were complete, the judge gave the mother's
counsel an opportunity to go talk with her and see if she was willing to
participate in person or by telephone. The judge noted that the parties
"have worked very hard to accommodate Mother's mental health needs, her
anxiety."
The mother's counsel told the judge that he spoke to the mother for
about five minutes, and the mother represented that she was not in a
mental state fit to come into the court room. Her counsel reported that
he asked the mother what she wanted him to report to the judge on her
behalf, and counsel told the judge that the mother said, "[S]he does not
have adequate legal representation. DCF has not given her the referrals
she needs, and that she believes DCF counsel has a conflict of interest
because [DCF counsel has] represented [DCF] in all her cases." The
mother's counsel did not formally move to continue the trial.
The DCF attorney asked the judge to draw a negative inference from
the mother's absence from court, and the mother's counsel countered that
the mother was "under no mental condition to come to court." The judge
ultimately "drew a negative inference from her failure to appear that if
she had appeared, she would have no evidence to counter [DCF]'s
evidence."[11]
The judge found the mother unfit and terminated her parental rights to the child. This appeal followed.
2. Standard of review.
On review of a judge's decision to terminate parental rights, we give
substantial deference to the trial judge's decision, and "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 Ilona, 459 Mass. 53, 59 (2011).
"A finding is clearly erroneous when there is no evidence to support
it, or when, `although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'" Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).
An abuse of discretion exists where the reviewing court concludes that
"the judge made a `clear error of judgment . . . such that the decision
falls outside the range of reasonable alternatives.'" Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275 (2016), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
3. Reasonable efforts.
"Before seeking to terminate parental rights, [DCF] must make
`reasonable efforts' aimed at restoring the child to the care of the
natural parents." Adoption of Ilona, 459 Mass. at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002).
This duty to make reasonable efforts, however, presumes the mother's
fulfillment of her own responsibilities, including action plan
compliance and maintaining meaningful contact with DCF. See Adoption of Eduardo, 57 Mass. App. Ct. 278, 282 (2003)
("Because the mother failed to make use of the services offered to
strengthen and then reunify her family and denied her mental health
needs by refusing both evaluation and treatment, she cannot successfully
argue that [DCF's] reasonable efforts failed to accommodate properly
her mental health needs or to strengthen her family"). Despite this
requirement, "even where [DCF] has failed to meet this obligation, a
trial judge must still rule in the child's best interest." Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), quoting Adoption of Ilona, supra at 61.
Here, the mother rejected DCF referrals, was not compliant with her
action plans, and failed to provide DCF with important information. The
mother refused treatment and therapy on December 12, 2018, told a social
worker that she did not need services or referrals on or after November
2019, and became angry when social workers attempted to discuss mental
health services with her. The mother requested information on anger
management classes once, but she did not provide DCF any reason to
believe she attended the class. The social worker would have referred
the mother to individual therapy, medication maintenance, a
psychological evaluation, an anger management course, and parenting
classes if the mother had been willing to take referrals.
During 2018 and 2019, DCF attempted to schedule several home visits
with the mother, but she did not keep any of the scheduled visits.
Before November 2019, a social worker offered to go over the action plan
with the mother, but she refused. The mother was provided a copy of her
action plan at least twice. The mother never signed any releases for
DCF. Accordingly, the judge reasonably found that DCF met its obligation
to make reasonable efforts to restore the child to the care of the
mother under the circumstances.
4. Representation.
"A parent facing termination of parental rights is entitled to the effective assistance of counsel." Adoption of Ulrich, 94 Mass. App. Ct. 668, 672 (2019).
In assessing whether a parent received effective assistance of counsel,
"[f]irst, we look to determine whether the `behavior of counsel [fell]
measurably below that which might be expected from an ordinary fallible
lawyer' and, if so, we further inquire `whether [counsel's conduct] has
likely deprived the [parent] of an otherwise available, substantial
ground of defence.'" Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008), quoting Care & Protection of Stephen, 401 Mass. 144, 149 (1987).
Here, the mother has not shown any deficiency in her counsel's
performance. The mother's counsel was in regular contact with her before
and during the trial. When the mother did not appear at the trial, her
counsel explained to the judge that the mother was outside and did not
feel that she was in a mental state fit to come into the court room.
Counsel suggested to the mother that she could attend by telephone, and,
when the mother declined, counsel raised the mother's three issues on
her behalf.
The mother's counsel appropriately opposed the judge's decision to
draw a negative inference from the mother's absence, explaining that the
mother was "under no mental condition to come to court." Although
counsel did not formally move to continue the trial, the judge had
already expressed that the parties had "worked very hard to accommodate
Mother's mental health needs, her anxiety."
Because counsel's performance did not fall measurably below that
which might be expected of an ordinary fallible lawyer, we need not
assess whether counsel deprived the mother of any substantial ground of
defense. We note, however, that the mother has not argued that she had
any substantial ground of defense that was not presented to the judge,
and no such ground is apparent from the record.
5. Conflict of interest by DCF attorney.
The mother argues that the DCF attorney had a conflict of interest
because she had represented DCF in other cases against the mother.
Generally, an attorney is disqualified from representing a party when
the attorney has previously represented an adverse party on a similar or
related issue. See Commonwealth v. Colon, 408 Mass. 419, 431 (1990)
("Generally, conflicts on the part of a district attorney arise when
the prosecutor formerly was employed by the defendant or when the
prosecutor's freedom from private influence is in question"). Similarly,
a DCF attorney may be disqualified if that attorney or her colleagues
have a personal stake in the outcome of the proceedings. See Adoption of Natasha, 53 Mass. App. Ct. 441, 442, 449 (2001)
(local Department of Social Services office had conflict of interest
when supervisor from that office was proposed adoptive parent of child).
But see Adoption of Eduardo, 57 Mass. App. Ct. at 280-281
(Department of Social Services was rightfully not disqualified as
petitioner even though mother had separate suit against department
because judge was aware of other suit and there was no showing that
department acted with bias against mother).
Here, the DCF attorney had never represented the mother, and there is
no indication that the attorney or her colleagues had any personal
stake in the litigation. The information that the DCF attorney had
acquired from representing DCF in other cases was not disqualifying.
Such information, in fact, is admissible. See Adoption of Luc, 484 Mass. 139, 145 (2020).
There is no basis to disqualify a DCF attorney merely because she
previously represented DCF in proceedings against the mother. Indeed,
even a judge will not be disqualified merely based on the judge's
previous judicial involvement in proceedings against a parent. See Care & Protection of Martha, 407 Mass. 319, 329 (1990) (judge may preside over termination hearing even if judge also presided over removal hearing); Adoption of Gabrielle, 39 Mass. App. Ct. 484, 486 (1995)
("Even knowledge of damaging information against a party does not
disqualify a judge from continuing to sit on a case"). Accord Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). Accordingly, we discern no abuse of discretion in the trial judge's decision to terminate the mother's parental rights.
Decree affirmed.
[1] A pseudonym.
[12] The panelists are listed in order of seniority.
[2] The judge also terminated the parental rights of the father. He did not appeal.
[3] Shortly after birth, the child tested negative for marijuana.
[4]
Earlier, the mother had indicated she would not speak to social
workers because they would take the child away. To the social workers,
the mother expressed that she was tired and wanted to relax.
[5]
The mother indicated that she did not want people listening to her
conversations with the child and did not think phone calls were
meaningful because the child was too young to speak.
[6]
The social worker asked the mother if she would be willing to wear a
gown over her clothes during visits but did not require this.
[7]
The mother claimed that she was not on the father's lease, so visits
or mail from DCF could cause the father to lose his apartment.
[8] The mother indicated that she did not want DCF to ruin her roommates' lives.
[9] At the mother's request, the social worker also provided a copy of the action plan to the mother's counsel.
[10] On the motion of the mother's counsel, the judge held the hearing in person.
[11]
Although the mother did not raise this issue on appeal, this negative
inference is inconsistent with the judge's finding that the "Mother's
mental health issues prevented her from entering the courthouse and
participating in this trial." See Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014)
(in deciding whether to draw adverse inference, judge "is to consider
whether such an inference is `fair and reasonable based on all the
circumstances and evidence before' her"). We see no prejudice, however,
in light of the substantial evidence of the mother's parental unfitness.
See Adoption of Luc, 484 Mass. 139, 148 (2020)
("We need not decide whether the judge erred in admitting . . .
documents because, even assuming error, there was no resulting
prejudice").?