Opinion
20-P-763
05-25-2021
ADOPTION OF DAVE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a judge of the Juvenile Court finding her unfit and terminating her parental rights to her son, Dave, and approving the plan to place Dave in a permanent guardianship with his foster parent. The mother argues that (1) her parental rights were terminated improperly because the Department of Children and Families (department) did not file a notice of intent to terminate parental rights, (2) the judge failed to ensure that the mother testified through an interpreter, and (3) the department failed to make reasonable efforts to assist the mother with securing mental health services. We affirm.
Background. We recite the facts as found by the trial judge, reserving certain details for later discussion. Dave was born in July 2011 with a kidney condition that obstructed the free flow of his urine, causing his kidney to stretch. After doctors performed an ultrasound, they wanted to take an additional x-ray of Dave's kidneys. The mother refused to consent to the x-ray; however, the father consented and the x-ray was taken. When Dave was discharged from the hospital, the doctors instructed the mother to schedule a follow-up ultrasound within two weeks. However, she failed to bring Dave to that follow-up ultrasound, and she also failed to bring him for his one-month immunizations and his two-month physical. In addition, the mother did not apply for MassHealth for Dave as she had been instructed; this prevented him from receiving his specialized infant formula. As a result of these issues, in September 2011, a G. L. c. 119, § 51A report (51A report), was filed, alleging medical neglect by the mother. The allegations were supported, and the department offered the mother early intervention services for Dave, but she declined them.
In November 2011, doctors performed the ultrasound of Dave's kidneys. The ultrasound showed that his kidney condition had worsened and that he required immediate surgery. The mother refused to consent to the surgery, saying that Dave "looked well." The father gave his consent for the surgery and it was performed the following day. Afterwards, when Dave was approved for discharge, the mother did not come to the hospital to pick him up. The father arrived at the hospital two days later, but he was not prepared to tend to Dave's extensive medical needs, which was required if Dave was discharged.
As a result, and based on concerns that the mother could not adequately care for Dave's special medical needs, the department assumed emergency custody. On December 1, 2011, the department filed an emergency care and protection petition. Dave was placed with an experienced foster parent who specialized in caring for children with special needs. However, he was returned to the mother's care in November 2012; the mother then regained full custody in June 2013 and the department closed the family's case.
In March 2015, another 51A report was filed alleging medical neglect of Dave by the mother due to her paranoid behavior: she was claiming that someone was poisoning her food. The department supported the neglect allegations, referred the mother to a parent partner, and encouraged her to enroll Dave in preschool. Another 51A report was filed in August 2015, alleging neglect by the mother after she and Dave were evicted from their apartment and became homeless. That same month, the father obtained custody of Dave through the Probate and Family Court.
In September 2016, the department filed the care and protection petition underlying the case before us. At a hearing six days later, the Juvenile Court judge awarded conditional custody to the father. In November 2016, the department received a 51A report from Boston Children's Hospital, alleging that the father was neglecting Dave's medical needs; specifically, at that time, the father had missed three scheduled appointments to review Dave's tests regarding a diagnosis of muscular dystrophy. The department filed a motion for emergency custody; the motion was allowed, and the department received temporary custody of Dave in December 2016. The department placed him with his previous foster parent, where he remained through the time of trial. At the time that the department filed the care and protection petition, the mother's whereabouts had been unknown for more than one year.
In January 2017, Dave was formally diagnosed with an aggressive form of muscular dystrophy. The judge found that while most children are diagnosed with muscular dystrophy between the ages of three and four, Dave was not diagnosed until he was five; as a result of the late diagnosis, Dave's disease had progressed significantly. By the time of trial in December 2019, Dave was totally wheelchair-bound. His condition is expected to worsen progressively; he eventually will lose the use of his arms and require both a feeding tube and a ventilator. Dave's life expectancy is twenty to thirty years. He currently receives extensive medical care from his foster parent and numerous care providers, along with weekly gene therapy infusions through a port in his chest. He also meets with a behavioral therapist.
The mother came to the United States from Brazil in 2003. She has struggled with mental health issues for a significant period of time. She was hospitalized for depression in 2004 or 2005. In 2011, she was hospitalized for one week after she tried to stab herself. At that time, she was diagnosed with depressive disorder, severe psychosis, and schizophrenia. At the time of trial, she was not on any medication and believed she did not need medication; she testified that she was "very healthy."
The mother and the father were never married and did not live together. The mother was unemployed from 2008 until 2018, and she relied solely on the father for income. The mother also reported to the department that she was homeless at times, including when Dave was with her. At the time of trial, she was living with her father in his shelter placement, a residence that the mother admitted would not be appropriate for Dave if they were reunified.
The mother did not have any contact with Dave from August 2015 until May 2018, when she began having supervised monthly visits with him. During those visits, the mother often said things that upset Dave; for example, she told him that he would be coming home with her soon, that the father was a bad man, that Dave was healthy, and that he just needed to get up and walk. The mother also claimed that if Dave were returned to her, he would be "cured" of his terminal illness. The mother complied with some, but not most, of her service plan tasks, and none with any consistency. The mother also remained adamant that there was nothing wrong with her mental health, that she needed no mental health treatment, and that there was, therefore, no need for her to complete a neuropsychological evaluation.
The trial took place over three days in December 2019 and January 2020. On the first day of trial, the father stipulated to his unfitness, and an order to that effect entered the same day. On February 20, 2020, the judge found that the mother was unfit and terminated her parental rights. The judge also found that the department's plan for permanent guardianship by the current foster parent served Dave's best interests. The judge declined to order any posttermination or postguardianship visitation between the mother and Dave. The mother filed a timely appeal.
The father's parental rights to Dave were also terminated. The father has not appealed.
Discussion. 1. Termination. The mother first argues that her parental rights should not have been terminated, because the department's goal for Dave was guardianship without the termination of her parental rights, and the department failed to file any notice of intent to terminate parental rights, thus depriving her of any warning of that possibility. This argument fails.
"To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Id. at 606-607. The best interests of the child is an overriding principle in care and protection matters. See Adoption of Willow, 433 Mass. 636, 644-645 (2001). A judge may find that terminating parental rights is in a child's best interests, even when termination is not required to implement a permanency plan for the child. See Adoption of Nancy, 443 Mass. 512, 516-517 (2005).
Here, the mother's unfitness was amply supported by the judge's 267 factual findings; the mother does not challenge the finding of unfitness on appeal. Taken together, the factual findings "constituted the clear and convincing evidence required" to support the termination of the mother's parental rights. Adoption of Don, 435 Mass. 158, 167 (2001). See Adoption of Jacques, 82 Mass. App. Ct. at 606-607.
Further, the care and protection summons, served in hand on the mother on January 30, 2018, expressly stated that her parental rights could be terminated during the course of the proceedings if the judge determined that termination was in Dave's best interests. This was adequate warning. See Adoption of Donald, 49 Mass. App. Ct. 908, 909 (2000) ("The express language of G. L. c. 119, § 26 [4], permits, and in some instances mandates, that the judge, upon a finding of the need of care and protection, consider and order the dispensation of the need for parental permission to adopt. Although a judge is required to follow the standards set forth in G. L. c. 210, § 3(c ), in determining whether to abrogate parental consent, nothing in G. L. c. 119, § 26 [4], requires that a separate petition or motion be filed before the judge may act." [Footnote omitted]). For that reason, the judge did not abuse her discretion in terminating the mother's parental rights after a trial on the merits.
The fact that the department changed its permanency plan by the end of the trial, from guardianship without the termination of the mother's parental rights, to seeking termination does not alter this conclusion. Our cases make clear that, "[e]ven if the judge rejects all the [permanency] plans presented [by the parties], he or she nevertheless has residual authority under c. 119, § 26(b ), and c. 210, § 3, to order an alternative disposition, provided it is consistent with the best interests of the child." Adoption of Cadence, 81 Mass. App. Ct. 162, 171 (2012). See id. at 172 ("the fact that the judge approved adoption when the parties supported guardianship does not entail that she considered an issue not before her"). In sum, after considering the mother's "ability, capacity, fitness and readiness" to parent Dave, and the plan of permanent guardianship proposed by the department, based on this record, we cannot say that it was an abuse of discretion for the judge to determine that termination of the mother's parental rights was in Dave's best interests. Adoption of Nancy, 443 Mass. at 515, quoting G. L. c. 210, § 3 (c ). See L.L. v. Commonwealth, 470 Mass. 165, 185 n.27 (2014).
2. Interpreter. The mother next argues that it was error for the judge to allow her to testify in English without conducting a formal waiver of her right to use an interpreter, despite the fact that a Portuguese language interpreter was present. We review this claim to determine whether there was an abuse of discretion. Commonwealth v. Lee, 483 Mass. 531, 541 (2019).
Non-English speaking litigants have a statutory right to the assistance of an interpreter throughout legal proceedings. See G. L. c. 221C, § 2. A "[n]on-English speaker" is defined as "a person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because [she] uses only or primarily a spoken language other than English." G. L. c. 221C, § 1. If a non-English speaker wishes to decline her right to an interpreter, she must formally waive that right on the record. G. L. c. 221C, § 3 (a ). Where a litigant has at least "some ability to understand and communicate" in English, the determination regarding the need for an interpreter is left to the "wide discretion" of the trial judge. Commonwealth v. Turell, 6 Mass. App. Ct. 937, 938 (1978), quoting United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907 (1974).
Here, the trial judge did not determine that the mother qualified as a non-English speaker but instead found that she could speak and understand English without the assistance of an interpreter. See Commonwealth v. Garcia, 379 Mass. 422, 437 (1980) (determining level of fluency of litigant is "uniquely within the province of the trial judge"). Nonetheless, the judge ordered a Portuguese language interpreter, who was present for all three days of trial. The mother testified on the first two days of trial. On the first day, she provided most of her testimony in English and required the interpreter's assistance for fewer than ten questions. While the department and various service providers had used an interpreter to communicate with the mother while they were working with her during the pendency of the petition, the trial judge found that the mother spoke with Dave in English and that she often communicated with medical personnel in English; on one occasion she explicitly told a doctor, "I can understand everything."
While the mother argues that the nonresponsive nature of her testimony in English shows that her ability to testify in English was limited, we decline to draw such an inference. See Carrion, 488 F.2d at 15 ("It would be a fruitless and frustrating exercise for the appellate court to have to infer language difficulty from every faltering, repetitious bit of testimony in the record"). And, in any event, the mother offered nonresponsive testimony in both English and Portuguese.
Finally, mother's counsel had an opportunity during cross-examination to clarify any part of the mother's allegedly nonresponsive testimony and, also, to encourage her to testify through the interpreter. Counsel did neither. Where the judge did not abuse her discretion in finding that the mother did not qualify as a non-English speaker, we are not prepared to say that the judge was required to go through a formal waiver of the interpreter with the mother before she provided some testimony in English. We see no abuse of discretion.
3. Reasonable efforts. Finally, the mother argues that the department did not make reasonable efforts to reunify her with Dave. Because the mother failed to raise this issue at trial, it is waived on appeal. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020). "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 mother should have asserted the claim of reasonable efforts "either when the parenting plan [was] adopted, when [s]he receive[d] 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 any the inadequate services, which in turn fosters a greater chance of family reunification. The mother is not permitted to make a claim of inadequate services by the department "for the first time on appeal, as the department would not have had the opportunity to address it." Adoption of West, 97 Mass. App. Ct. at 242.
Decree affirmed.