In re Adoption of Xaviera

The mother of four children appeals from decrees entered in the Juvenile Court finding her unfit to assume parental responsibility for her children and terminating her parental rights to the children. See G.L. c. 210, § 3.

This case began when the Department of Children and Families (DCF) filed an affidavit in the Juvenile Court on March 29, 2010, alleging that the mother's four children were in need of care and protection. See G.L. c. 119, § 24. Temporary custody was granted to DCF the same day. Following the mother's waiver of a temporary custody hearing on April 1, 2010, trial on the merits was held over eighteen nonconsecutive days beginning on October 14, 2011. The trial judge entered an order on December 22, 2011, finding the mother and the three fathers of the children unfit and the children in need of care and protection, but did not terminate any parental rights at that time. He ordered the mother to undergo a psychological evaluation and parenting evaluation by the Juvenile Court.

A review and redetermination hearing to determine the best interests of the children in respect to the termination of the mother's parental rights was held over five days in January, 2013. The judge, on February 1, 2013, ordered the termination of the mother's parental rights to all the children, and ordered decrees dispensing with her consent to, or notice of any adoption, custody, guardianship, or any other disposition of the four children.

This case reaches us after two lengthy hearings in the Juvenile Court, and two sets of the judge's detailed findings of fact and conclusions of law which ultimately resulted in the termination of the mother's parental rights to her four children. The children, who have three fathers, have all been in DCF custody, and do not dispute their custody or placement in this appeal. A summary of the status of each child is given in the margin. The three fathers have not appealed. Given the mother's failure to challenge any of the judge's findings of fact or rulings of law, her two insubstantial issues raised on appeal leave little to be decided. Although the two issues raised by the mother in her brief were not raised below, we nevertheless consider them in the interest of finality.

1. The psychological evaluation. In her brief, the mother raises a number of questions about the trial judge's authority to order her to participate in a psychological evaluation and waive her statutory privilege; asserts that the evaluation was for the benefit of DCF, not her; and argues that the evaluation resulted in a shifting of the burden of proof. She also asserts that there was no conclusive evidence at the care and protection hearing to support DCF's contention that mental health issues were contributing to her unfitness. As we review the judge's reasoning and the background supporting the request for the evaluation, we conclude the mother's questions and assertions have no merit.

In his findings of fact, the judge stated:

“Mother denies that she has mental health problems but is willing to participate in the parenting psychological evaluation offered through the court clinic and will sign releases of information necessary to accomplish this evaluation. Mother's promise of participation in such an evaluation is an important consideration in the Court's Judgment. The Court suspects that Mother suffers from some undiagnosed mental health issue.... More clarity regarding Mother's mental health is desirable. In the absence of such clarity (as would result from an evaluation), the Court would nevertheless be able to issue a more permanent Judgment. The Court's reluctance to do so at this time is merely a reflection of the Court's desire, given the importance of the case, to consider as much information as is possible.”

We observe that the mother's position has been to deny that she has mental health problems. The record clearly reflects that the mother was asked and instructed to confer with her counsel on the issue of an evaluation. Dr. Pelaprat, the psychologist who performed the evaluation for the Juvenile Court clinic, informed the mother that the evaluation was voluntary and could be discontinued at any time. The December 22, 2011, order clearly states that the evaluation was subject to a Lamb warning. Commonwealth v. Lamb, 365 Mass. 265, 270 (1974).

The judge made several findings of the results of the psychological evaluation, three of which we quote in the margin. These findings do not appear to have opened any new mental health issues—and were not dispositive—but add to the great weight of the judge's findings on the mother's unfitness, which we discuss in the following section.

2. Review of the record. Because we have noted that the results of the psychological evaluation were not dispositive and that there was ample other evidence to support the termination of the mother's parental rights, we now refer to that evidence.

As stated in greater detail in the brief of DCF at pages 24–31, and the childrens' brief at pages 16–24 and 43–47, the principal findings supporting the mother's unfitness include (1) instances of failure to follow the five service plans developed by DCF between April, 2010, and March, 2012; (2) failure to cooperate with DCF personnel; (3) instances of domestic violence which had an impact on the children; (4) neglect of medical needs of the children; (5) lack of anger control; (6) denial of mental health issues; and (7) frequently missed visits with the children and inappropriate behavior with them.

The judge issued two comprehensive, detailed, and lengthy decisions totalling 393 findings of fact. It is apparent that the judge “articulate[d] specific and detailed findings in support of [his] conclusion that termination is appropriate, demonstrating that [he] has given the evidence close attention.” Adoption of Nancy, 443 Mass. 512, 514–515 (2005). The finding of unfitness was based on “clear and convincing evidence,” and the judge properly determined that the mother's “unfitness is such that it would be in the [children's] best interests to end all legal relations.” Id. at 515.

The judge concluded:

“This Mother remains grievously unfit. She promises that given the opportunity, she will continue to seek return of the custody of her children. This holds the promise of putting the children in the middle of her ongoing custody fight. She will wreak devastation upon the children if she is allowed to have custody or even contact with them. It is not in the best interest of any of the children to allow Mother to interfere with the children, initiate multiple, repetitious litigation regarding custody of the children or otherwise hinder the settled placement of the children into a fit environment.”

The judge declined to order posttermination visitation.

Finally, the mother asserts that the children, with the exception of Peter, will be living with a biological parent, and urges that the judge should have continued their placements without terminating her rights. “Although a factor, the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights.” Adoption of Jacques, 82 Mass.App.Ct. 601, 610 (2012). The “judge's decision was clearly focused on [the children's] need for ‘permanence and stability’ that the mother failed to provide.” Ibid., quoting from Adoption of Nancy, supra at 517. “The judge appropriately recognized that severing all legal relations between the mother and the children, including her right to visit, communicate, or have any contact with them ... is a critical step in promoting stability in their lives.” Adoption of Willow, 433 Mass. 636, 647 (2001).

Decrees affirmed.