A MASSACHUSETTS CASE - TERMINATION OF PARENTAL RIGHTS

 

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").?