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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1056
ADOPTION OF ADRIAN (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The three parents involved in this case appeal from decrees
issued by a Juvenile Court judge terminating their parental
rights to two children. We conclude that there was adequate
evidence of parental unfitness for all three parents, based on
all parents' persistent domestic violence, all parents'
inconsistent and inappropriate visitation, substance use issues
for the mother and one of the fathers, and untreated mental
health problems and housing instability for the mother, all of
which placed the children at unacceptable risk. Although the
conduct of the trial was imperfect, the trial judge neither
prejudged the credibility of the witness nor exhibited bias.
1Adoption of Idra. The children's names are pseudonyms. The children supported the termination of parental rights in the Juvenile Court and continue to do so on appeal. Finally concluding that the other issues raised in this appeal
lack merit, we affirm.
1. Background. a. Domestic violence. The father of
Adrian (father 1) and the mother have an "extensive history of
physical and verbal domestic violence." Both have been
perpetrators and victims. The judge's findings in this regard
are well supported by the testimony and records submitted during
the trial. The father of Idra (father 2) has a history of
domestic violence against the mother, to the point where
father 2 was sentenced to eleven months of incarceration for
assault and battery on the mother and her friend while the
mother was pregnant. Again, the judge's findings in this regard
are well-supported by the testimony and records submitted at
trial.
All three parents have not adequately participated in
domestic violence services, despite the recommendations of the
Department of Children and Families (DCF). The mother has
inconsistently sought domestic violence counseling. Throughout
2022, despite repeated referrals and recommendations from
clinicians and DCF, the mother refused to engage in individual
therapy or group trauma-based therapy services. In July 2022,
she reported that she was engaging in an out-of-state virtual
domestic violence group class, but DCF could not confirm her
participation in this program or assess her progress.
2 Similarly, neither father 1 nor father 2 has meaningfully
participated in domestic violence counseling or any intimate
partner abuse education programs despite DCF recommendations.
b. Visitation. During visits, the mother "displayed
indifference" towards the children, arrived unprepared without
"diapers, toys and food," and was often observed "not
interacting" with the children. On two occasions, she appeared
visibly intoxicated when she visited the children. On several
occasions, the mother let Idra wander outside the visiting room
unsupervised.
Father 1's visits with Adrian were frequently limited or
cut short because of his inappropriate behavior. During one
visit, father 1 made "inappropriate, sexual comments" towards a
social worker and, at other visits, used vulgar language in
front of the child. In July 2020, father 1 threatened the
foster parents during a visit. In May 2021, at a supervised
visit, father 1 disparaged DCF social workers in front of the
child. In February 2022, father 1 recorded a TikTok video of
Adrian during a visit in which he stated that Adrian was
"imprisoned" in the DCF office. In May 2022, father 1 appeared
intoxicated during one of his visits.
In July 2020, father 2 contacted DCF and requested
involvement in Idra's case but did not establish paternity until
3 October 2021.2 In March 2021, father 2 received his first action
plan from DCF. Between October 2021 and April 2022, father 2
attended twelve to sixteen visits with the child. His
supervised visits ended, however, in April 2022 when he fled
Massachusetts after violating a bail agreement. Father 2 has
not visited the child since April 2022.
c. Other issues. The mother has struggled with housing
instability since 2001. From 2010 to 2019, she lived with
father 1. In 2020, the mother changed residences several times,
living with numerous different individuals. At the conclusion
of trial, the mother was living with her aunt and "had yet to
obtain stable housing."3
The mother has been diagnosed with bipolar disorder,
depression, post-traumatic stress disorder (PTSD), and alcohol
use disorder. She has not consistently engaged in individual
therapy or a medication regimen despite "numerous
recommendations and referrals" from DCF. The mother has not
engaged in any treatment for her bipolar disorder or sought
psychiatric treatment in over ten years. In August 2017, she
started therapy but was formally discharged from the program in
2 Father 2 was incarcerated at least some of this time.
3 By contrast, father 1 obtained a one-bedroom apartment in 2023.
4 2018. She sought treatment again in March 2020 but participated
in treatment so inconsistently that she had to reenroll in the
program on several occasions. At trial, the mother claimed she
attends virtual group sessions to treat PTSD but her
participation in this program had not been verified.
The mother has a history of using "alcohol, crack cocaine,
heroin, and opiate-based prescription medication." She tested
positive for cocaine in 2017, after she gave birth to Adrian,
and in 2020, two days before giving birth to Idra.4 The mother
overdosed on three separate occasions from March 2019 to March
2020, including once when she was pregnant with Idra. From 2021
to 2023, she tested positive for opiates on several occasions
and appeared intoxicated in front of police and DCF workers. At
trial, the mother was unable to explain her recent positive drug
tests and seemed not to understand how her substance use
contributed to the removal of the children.
Father 1 has been diagnosed with opioid dependency and
alcohol dependency. In February 2017, when the mother was
pregnant, father 1 overdosed on heroin. Father 1 engaged in
substance use treatment services in 2017 but stopped in 2018.
On March 3, 2021, father 1 was arrested and charged with
possession of narcotics. At trial, he testified that he did not
4 The mother refused to take a drug test when she gave birth to Idra.
5 believe he had any problems with substance use. None of the
three parents completed the tasks in any of their multiple
action plans.
2. Termination of parental rights. a. Standard of
review. "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). Parental unfitness must be determined by
taking into consideration "a parent's character, temperament,
conduct, and capacity to provide for the child in the same
context with the child's particular needs, affections, and age."
Adoption of Garret, 92 Mass. App. Ct. 664, 671 (2018), quoting
Adoption of Mary, 414 Mass. 705, 711 (1993).
b. Termination of the mother's parental rights. The
mother's persistent involvement in relationships filled with
domestic violence, both as a victim and a perpetrator, is a
significant basis for finding her unfit. See Adoption of Jacob,
99 Mass. App. Ct. 258, 262 (2021) ("Domestic violence may
imperil a child's physical safety and psychological
development"). There were numerous incidents where father 1
struck her and incidents where she struck father 1, including
6 one time with a hammer. She falsely stated that the
relationship ended in 2019, even though she had been observed
kissing and embracing father 1 in 2022. Similarly, she stayed
in a relationship with father 2 despite repeated incidents of
violence by him. She falsely stated at trial that she was not
in contact with father 2.
The mother has failed to address her history of domestic
violence. Despite numerous referrals from DCF, the mother
failed to participate consistently in domestic violence
counseling programs. See Adoption of Zak, 87 Mass. App. Ct.
540, 544 (2015) (parents' lack of engagement with domestic abuse
counseling supported finding of unfitness). Similarly, the
mother's ongoing contact with both father 1 and father 2 is
"probative of her inability to protect herself and her children
from future abuse." See Adoption of Jacob, 99 Mass. App. Ct. at
265.
Furthermore, the mother "displayed inappropriate behavior
in front of or towards the subject children" during supervised
visits. The mother failed to bring diapers or toys for the
children, despite numerous reminders, and "displayed an
unwillingness to engage with her children." She repeatedly
allowed one of the children to wander around unsupervised. The
mother's demonstrated failure to care appropriately for the
children during visits supported a finding of unfitness. See
7 Adoption of Rhona, 63 Mass. App. Ct. 117, 122 (2005) (finding
that mother's lack of engagement with child during visit
contributed to lack of bonding).
In addition, the mother's substance misuse would place the
children at a significant risk of harm. Although the mother
testified that she has been sober since 2013, she has overdosed
three times since then, including while pregnant, and tested
positive for opiates several times between 2021 and 2023. A
history of substance misuse alone is not enough to establish
parental unfitness, but a parent's unwillingness to engage in
treatment is an important consideration. See Adoption of Elena,
446 Mass. 24, 32-33 (2006). Here, the mother engaged only
intermittently in treatment and once appeared intoxicated while
visiting the children. Additionally, the mother does not appear
to understand that her issues with substance misuse affect her
ability to parent. See Adoption of Luc, 484 Mass. 139, 147
(2020) (failing to engage in treatment and not recognizing need
for treatment speaks to parental fitness where it "inhibits
parent's ability to provide minimally acceptable care").
The mother has persistently struggled with housing
instability. She had not had stable housing since 2001 and had
not secured her own stable housing by the time of trial. This
contributed to her unfitness. See Adoption of Anton, 72 Mass.
8 App. Ct. 667, 676 (2008) (inability to secure adequate and
stable housing properly considered in fitness determination).
Finally, untreated mental disorders that affect a parent's
ability to care for a child may support a finding of parental
unfitness. Adoption of Leonard, 103 Mass. App. Ct. 416, 423
(2023). Here, despite numerous recommendations, the mother has
not meaningfully participated in any treatment that would
address her mental health needs. The mother has not followed a
medicine regimen in over ten years. Additionally, even though
the mother has been diagnosed with PTSD in part because of the
trauma she has suffered through domestic violence, she did not
meaningfully engage in domestic violence support groups or
classes. Instead, the mother continued to maintain unhealthy
relationships with father 1 and father 2. The judge properly
found that the mother's inability to address her mental health
needs or distance herself from unhealthy relationships
contributed to her unfitness.
c. Termination of father 1's parental rights. As stated,
father 1 has an "extensive history of physical and verbal
domestic violence" with the mother. Despite this troubling
history, he refused to engage in domestic violence counseling.
His history of domestic violence is a powerful factor supporting
the finding of parental unfitness. See Adoption of Talik, 92
Mass. App. Ct. 367, 374 (2017) ("instances of such familial
9 violence are compelling evidence for a finding of parental
unfitness").
Father 1 has also failed to engage in substance use
treatment. See Adoption of Elena, 446 Mass. at 32-33. Father 1
has not sought treatment since 2018 despite recommendations from
DCF. Father 1 visited the child while intoxicated and was
arrested for possession of narcotics.
Finally, father 1 frequently behaved inappropriately
towards DCF staff and Adrian during his supervised visits by
making "inappropriate, sexual comments" towards a social worker
during a visit and using vulgar language in front of the child.
Father 1 would frequently talk about case matters and would
disparage DCF and his social worker. In other visits, father 1
claimed the child was "imprisoned" by DCF and threatened the
foster parents. In addition to his behavior towards staff,
father 1 refused to engage in any services that DCF recommended.
Father 1 did not seek substance use treatment after 2018.
Father 1 additionally never meaningfully participated in
domestic violence counseling or education programs. The father
"was given multiple opportunities over the course of years to
demonstrate that [he] could provide [the child] a safe and
stable home, and [he] failed to do so." Adoption of Knox, 102
10 Mass. at 94. We discern no error in the judge's weighing of the
evidence of father 1's fitness.5
4. Judicial conduct. a. Prejudging witness credibility.
It is well established that "the finder of fact must keep an
open mind until all the evidence is presented and both sides
have rested." Adoption of Tia, 73 Mass. App. Ct. 115, 121-122
(2008). If a judge "reaches a decision on an issue of fact
before the testimony of that issue is complete . . . [he] has
deprived the party of [her] right to a full and fair hearing."
Adoption of Georgia, 433 Mass. 62, 64-65 (2000), quoting Preston
v. Peck, 271 Mass. 159, 164 (1930).
At trial, both the mother and father 1 were asked about the
timeline of their relationship. Although the mother and
father 1 each testified that the relationship ended years
before, multiple DCF reports and a police report showed that
their relationship continued until at least 2022. In one
guardian ad litem report, a social worker recounted that the
mother and father 1 were kissing on the steps of the courthouse
in February 2022. The report was admitted into evidence at the
start of trial.
When asked about the report, the mother testified that she
did not kiss father 1 in front of the courthouse. The judge
5 Father 2 does not challenge the termination of his parental rights on appeal.
11 asked the mother, "You're saying that [the social worker is]
going to come up here and lie about that?" The judge stated,
"it's hard for me to imagine the social worker, who has no gain
in this case whatsoever, is going to come up here and lie under
oath." When the mother stated that the social worker had "lied
about many reports," the judge responded, "we'll see if you can
prove it."
To be sure, these statements were not proper. The judge
could not determine the likely credibility of the social
worker's testimony without hearing it, and a witness should
never be asked to opine on the credibility of another witness's
testimony. See Commonwealth v. Quinn, 469 Mass. 641, 646
(2014); Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 2 (2019);
White v. White, 40 Mass. App. Ct. 132, 142 (1996). Nonetheless,
the judge's statements must be read in context of the entire
trial. See Adoption of Georgia, 433 Mass. at 65 (finding that
judicial conduct was proper when read in context of whole
trial). The judge already had access to the March 2022 guardian
ad litem report. See Adoption of Larry, 434 Mass. 456, 464
(2001) (judge may consider evidence outside of mother's
testimony when determining credibility). It is evident that the
judge's goal was to warn the mother against taking an
unconsidered position before it was too late to turn back.
12 The judge's actions later in the trial demonstrated that he
did, in fact, keep an open mind. When DCF's counsel asked
father 1 about the same events outside the courthouse, the judge
sustained father 1's counsel's objection, stating father 1 "has
clearly said he did not embrace or kiss [the mother] and if [the
social worker] saw something different, we'll hear from him, and
the Court will determine credibility." Accordingly, despite the
judge's inartful words, he kept an open mind about the matter
until he heard from all of the witnesses. In this context, the
judge's comments did not "reflect premature conclusions, but
rather, preliminary thoughts on witness credibility." Adoption
of Doretta, 101 Mass. App. Ct. 582, 596 (2022).
b. Judicial bias. "It is well established that a judge in
this Commonwealth may question witnesses to clarify and develop
evidence and to avert perjury." Commonwealth v. Watkins, 63
Mass. App. Ct. 69, 74 (2005). "A judge may properly participate
in the questioning of a witness so long as the questioning is
not partisan in nature." Commonwealth v. Lucien, 440 Mass. 658,
664 (2004). Generally, "we have not favored except in
extenuating circumstances the takeover of questioning by a judge
during the course of trial." Adoption of Norbert, 83 Mass. App.
Ct. 542, 547 (2013), quoting Commonwealth v. Campbell, 371 Mass.
40, 45 (1976).
13 Here, DCF was asking the mother about her twin sister's
calling the police to report that father 1 had assaulted the
mother. The mother reported that her sister "was on drugs" at
the time but could not provide the date. She then started
testifying about a conversation she had with her sister and
identified it as occurring on March 19, 2019. The judge asked
the mother how she could remember a conversation from 2019 when
she "didn't remember something five minutes ago from six months
ago." When the mother confirmed that she "remembered most" of
her conversations with her sister, the judge then asked the
mother a number of questions seeking details about March 19,
2019.
Although the judge's frustration with the mother's
testimony is understandable, this line of questioning strayed
from clarification to impeachment. See Adoption of Norbert, 83
Mass. App. Ct. at 546. The mother, however, raised no objection
nor asked for the judge's recusal or any lesser corrective
action. See Adoption of Flora, 60 Mass. App. Ct. 334, 340 n.10
(2004) ("We recognize that ordinarily issues not raised at trial
are not considered on appeal absent special circumstances").6
6 Further, as we have previously held, "there is no basis for reviewing unpreserved errors in a care and protection case for a substantial risk of a miscarriage of justice." Adoption of Doretta, 101 Mass. App. Ct. at 592 n.6.
14 Even if this issue had been properly preserved, we discern
no prejudice. The judge did not limit the mother's attorney's
questioning of witnesses. The mother was not prevented from
presenting relevant evidence nor did the judge solicit
inadmissible evidence. See Adoption of Norbert, 83 Mass. App.
Ct. at 547. The testimony in question was about a minor point.
Moreover, the evidence of the mother's unfitness was strong.
"Because the record contains ample support for the judge's
detailed (and uncontested) findings, which, in turn,
unequivocally support the judge's determination that the
termination of parental rights serves the best interests of the
children, we conclude that the error was harmless." Id. at 548.
See Adoption of Tia, 73 Mass. App. Ct. at 124 ("the evidence in
this case so substantially supported the judge's findings and
conclusion that the mistakes do not warrant reversal").
6. Father 1's other claims.7 Father 1 argues that the
trial court improperly considered hearsay evidence. "Service
plans, case reviews and foster care reviews kept as records of
[DCF] are admissible, with some limitations, as records of a
public agency." Adoption of Vidal, 56 Mass. App. Ct. 916, 916
(2002). These records fall under the hearsay exception that
7 Father 1, through appellate counsel, raises three additional issues in his reply brief under Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), and Care & Protection of Valerie, 403 Mass. 317, 318 (1988).
15 authorizes "admission [of] statements of primary fact, so long
as the hearsay source is specifically identified in the report
and is available for cross-examination, should the party
challenging the evidence request to do so." Adoption of Luc,
484 Mass. at 154. This rule also applies to police reports even
if no charges were brought or convictions secured. See Care &
Protection of Frank, 409 Mass. 492, 494, 497 (1991) (police
report properly admitted even though criminal charge were
dismissed).
Father 1 also raises the issue of ineffective assistance of
counsel. Trial counsel is ineffective if "the 'behavior of
counsel [fell] measurably below that which might be expected
from an ordinary fallible lawyer,'" and "'[counsel's conduct]
has likely deprived the defendant of an otherwise available
substantial ground of defence.'" Care & Protection of
Georgette, 439 Mass. 28, 33 (2003), quoting Commonwealth v.
Safarian, 366 Mass. 89, 96 (1974). "Absent exceptional
circumstances, we do not review claims of ineffective assistance
of counsel for the first time on appeal." In re Stephen, 401
Mass. 144, 150 (1987). Aside from suggesting that counsel
should have objected to nonspecific "evidence," the father
provides no description of what counsel should have done
differently or demonstration that it would have affected the
16 outcome of the case. Accordingly, he has failed to demonstrate
that he received ineffective assistance of counsel.
Finally, father 1 questions the jurisdiction of the
Juvenile Court in this proceeding. Under G. L. c. 119, §§ 24,
26 (b) (4); G. L. c. 218, § 59; G. L. c. 209B; and G. L. c. 210,
§ 3, the Juvenile Courts of Massachusetts have jurisdiction over
care and protection cases and termination of parental rights
cases within their respective districts. The Supreme Judicial
Court has held that, "[w]here a child 'is not receiving adequate
care and protection, the department [(DCF)] may file a petition
. . . to summons the child's parent "to show cause why the child
should not be committed to the custody of the department or why
any other appropriate order should not be made."'" Care &
Protection of Jaylen, 493 Mass. 798, 802-803 (2024), quoting
Care & Protection of Zeb, 489 Mass. 783, 785 (2022). Contrary
to father 1's argument, his case was decided by a duly-appointed
Juvenile Court judge, not an administrative judge. Whatever
natural rights father 1 has, the Juvenile Court has jurisdiction
over the custody of children living in Massachusetts and the
determination whether the parents are currently fit to parent
their children and whether the best interests of the child
require termination of parental rights. Custody of Victoria,
473 Mass. 64, 68-70 (2015). Accord G. L. c. 209B, § 2 (a) (1).
17 7. Posttermination visitation by father 2. "The decision
whether to grant posttermination visitation is within the
judge's sound discretion." Adoption of Cecily, 83 Mass. App.
719, 727-728 (2013). A two-part inquiry informs a judge's
decision to order visitation: "First, is visitation in the
child's best interest? Second, in cases where a family is ready
to adopt the child, is an order of visitation necessary to
protect the child's best interest, or may decisions regarding
visitation be left to the judgment of the adoptive family?"
Adoption of Ilona, 459 Mass. 53, 63 (2011). To determine
whether visitation is in the child's best interest, the judge
will consider "whether there is 'a significant, existing bond
with the biological parent' whose rights have been terminated."
Id. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563
(2000).
Here, the judge ordered that father 2 be provided with
annual reports about Idra's progress but did not mandate
visitation. We discern no abuse of discretion as the judge
properly concluded that there was no evidence of an existing
emotional bond between father 2 and Idra, and the record reveals
no "other circumstances of the actual personal relationship of
the child and the biological parent." See Adoption of Rico, 453
Mass. 749, 759 (2009), quoting Adoption of Vito, 431 Mass. at
562. Father 2 started visiting the child only in March 2021,
18 when she was fourteen months old. In total, father 2 visited
Idra twelve to sixteen times before he fled the state. By the
time of trial, father 2 had not visited the child in over a
year.
Father 2 argues that DCF offered him an open adoption
agreement with posttermination visits]. The judge, however, was
not bound by DCF's position or opinions, but rather had to
exercise his own discretion in deciding whether to order
posttermination visits. See Adoption of Terrence, 57 Mass. App.
Ct. 832, 839 (2003). The purpose of posttermination visitation
is not for the benefit of the child's biological parents, but
"to assist the child as [she] negotiates, often at a very young
age, the tortuous path from one family to another." Adoption of
Vito, 431 Mass. at 564-65. Considering the amount of time that
the child has spent with her preadoptive family compared to the
time spent with father 2, the judge acted within his discretion
19 in finding that ordering additional visits with father 2 will
not aid in this transition.
Decrees affirmed.
By the Court (Ditkoff, D'Angelo & Wood, JJ.8),
Clerk
Entered: December 19, 2025.
8 The panelists are listed in order of seniority.