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
22-P-1229
ADOPTION OF CAMERON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered in the Juvenile
Court terminating her parental rights to her son, Cameron, who
was born in May 2019. Cameron appeals from the order granting
the mother posttermination and postadoption visitation. 2 We
affirm the termination of the mother's parental rights and
vacate the order for posttermination and postadoption visitation
between the mother and Cameron.
Background. At the time of removal, the mother and the
putative father 3 (father) lived together with eight week old
1 A pseudonym. 2 The Department of Children and Families does not join Cameron's appeal of the visitation and instead notes that Cameron can return to the trial court and request a modification of that order. 3 The judge treated the putative father as the biological father
of Cameron for most of the case, but removed him from the case on March 3, 2020, after he failed to establish paternity. Cameron's legal father, as listed on his birth certificate, is the mother's former husband. The legal father denied paternity, noting that he was abroad, serving in the military, at the time Cameron was conceived. On May 8, 2021, the legal father was Cameron and the father's two year old son, Kevin, and three year
old daughter, Nora, from another relationship.
The mother and all three children came to the attention of
the Department of Children and Families (department) on July 4,
2019, when Nora was admitted to the hospital with injuries to
her genital area consistent with penetrative sexual assault, and
the department received a G. L. c. 119, § 51A, report (51A
report). The department filed a care and protection petition
under G. L. c. 119, § 24, and was granted emergency temporary
custody of Cameron and his half-siblings, Kevin and Nora. While
there was no evidence that Cameron or Kevin had been abused, the
department was concerned for the safety of all three of the
children in the home.
The trial judge found that the events leading to the
department's involvement unfolded in the following manner. On
July 4, 2019, the mother fed the children lunch and put them
down for a nap before leaving to run errands. Approximately ten
to fifteen minutes later, the father sent a text message to the
mother that Nora had been injured. The mother instructed the
father to clean the wound and said she would be home soon to
evaluate the situation. When the mother returned to the home
served in hand with a notice of the custody proceedings, but he did not appear at any hearings. His parental rights were terminated; he has not appealed.
2 approximately three minutes later, she found the father
squatting over Nora, who was naked and bleeding from the vagina
on the bathroom floor. The bleeding was so extensive that the
mother had to wipe the area multiple times before she could see
there was a substantial tear in Nora's vaginal opening.
Other than stating that he had found Nora upstairs "laying
there bleeding," the father did not explain what happened. The
mother did not call emergency services and left Cameron and
Kevin in the father's care while she took Nora to the hospital.
The father and the mother claimed that Nora had scratched
herself in the genitals; however, hospital staff found dirt but
no blood under Nora's fingernails.
That evening, the mother asked the father how Nora had been
injured. The father stated that he did not know because he was
outside mowing the lawn when the injury occurred. The mother
did not go up to the second floor of the apartment or inspect
Nora's room until after the police searched the apartment on
July 5, 2019. The mother claimed she never saw any evidence of
blood anywhere in the apartment other than on a towel in the
bathroom.
On July 19, 2019, the mother told the department that she
believed Nora's injuries were a "straddle injury" from falling
on a railing while attempting to climb over her bed. The mother
3 claimed the injuries resulted from the father's negligent
supervision.
On July 25, 2019, the father was arrested and, on October
17, 2019, was indicted on charges related to the alleged sexual
abuse of Nora. The mother moved out of the home she had shared
with the father and rented a room in the apartment house where
the father's grandparents (great-grandparents) lived. The
mother visited the father in jail and attended two or three of
his court dates.
The department's concerns centered on the mother's ability
to protect Cameron, considering the mother's inconsistent
statements regarding how Nora was injured and her reluctance to
believe the father had assaulted Nora even after he had been
indicted. In conversations with the department social worker
assigned to this case from July 2019 to January 2020, the mother
continued to resist acknowledging that the father assaulted
Nora, even when the social worker told the mother there was a
medical report that confirmed Nora was sexually assaulted. In
October 2019, the mother told the department social worker that,
absent deoxyribonucleic acid (DNA) evidence, she would not
believe the father had sexually assaulted Nora.
On August 12, 2019, the father was released on bail and
placed on house arrest with a global positioning system monitor,
and he moved in with the great-grandparents. Based on her
4 residence, the mother was required to walk by the father's
apartment to exit and enter the building and often passed him
sitting on the porch. The mother stated she continued to live
in the building because she did not feel safe in a shelter. The
mother refused to move to New York to live with her mother.
The family action plan developed by the department for the
mother included the following tasks: obtain safe and stable
housing; meet with her social worker monthly; maintain healthy
relationships; participate in domestic violence services and
counselling, individual therapy, and parenting classes; sign
releases; attend supervised visits with Cameron; have no phone
contact with the father during visitation; create a
reunification and child care plan; and express in writing why
Cameron was removed from her care and how her actions
contributed to his removal.
On December 9, 2019, the department changed the case goal
from reunification to adoption. Multiple foster care review
panels found that the mother failed to enroll in individual
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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
22-P-1229
ADOPTION OF CAMERON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered in the Juvenile
Court terminating her parental rights to her son, Cameron, who
was born in May 2019. Cameron appeals from the order granting
the mother posttermination and postadoption visitation. 2 We
affirm the termination of the mother's parental rights and
vacate the order for posttermination and postadoption visitation
between the mother and Cameron.
Background. At the time of removal, the mother and the
putative father 3 (father) lived together with eight week old
1 A pseudonym. 2 The Department of Children and Families does not join Cameron's appeal of the visitation and instead notes that Cameron can return to the trial court and request a modification of that order. 3 The judge treated the putative father as the biological father
of Cameron for most of the case, but removed him from the case on March 3, 2020, after he failed to establish paternity. Cameron's legal father, as listed on his birth certificate, is the mother's former husband. The legal father denied paternity, noting that he was abroad, serving in the military, at the time Cameron was conceived. On May 8, 2021, the legal father was Cameron and the father's two year old son, Kevin, and three year
old daughter, Nora, from another relationship.
The mother and all three children came to the attention of
the Department of Children and Families (department) on July 4,
2019, when Nora was admitted to the hospital with injuries to
her genital area consistent with penetrative sexual assault, and
the department received a G. L. c. 119, § 51A, report (51A
report). The department filed a care and protection petition
under G. L. c. 119, § 24, and was granted emergency temporary
custody of Cameron and his half-siblings, Kevin and Nora. While
there was no evidence that Cameron or Kevin had been abused, the
department was concerned for the safety of all three of the
children in the home.
The trial judge found that the events leading to the
department's involvement unfolded in the following manner. On
July 4, 2019, the mother fed the children lunch and put them
down for a nap before leaving to run errands. Approximately ten
to fifteen minutes later, the father sent a text message to the
mother that Nora had been injured. The mother instructed the
father to clean the wound and said she would be home soon to
evaluate the situation. When the mother returned to the home
served in hand with a notice of the custody proceedings, but he did not appear at any hearings. His parental rights were terminated; he has not appealed.
2 approximately three minutes later, she found the father
squatting over Nora, who was naked and bleeding from the vagina
on the bathroom floor. The bleeding was so extensive that the
mother had to wipe the area multiple times before she could see
there was a substantial tear in Nora's vaginal opening.
Other than stating that he had found Nora upstairs "laying
there bleeding," the father did not explain what happened. The
mother did not call emergency services and left Cameron and
Kevin in the father's care while she took Nora to the hospital.
The father and the mother claimed that Nora had scratched
herself in the genitals; however, hospital staff found dirt but
no blood under Nora's fingernails.
That evening, the mother asked the father how Nora had been
injured. The father stated that he did not know because he was
outside mowing the lawn when the injury occurred. The mother
did not go up to the second floor of the apartment or inspect
Nora's room until after the police searched the apartment on
July 5, 2019. The mother claimed she never saw any evidence of
blood anywhere in the apartment other than on a towel in the
bathroom.
On July 19, 2019, the mother told the department that she
believed Nora's injuries were a "straddle injury" from falling
on a railing while attempting to climb over her bed. The mother
3 claimed the injuries resulted from the father's negligent
supervision.
On July 25, 2019, the father was arrested and, on October
17, 2019, was indicted on charges related to the alleged sexual
abuse of Nora. The mother moved out of the home she had shared
with the father and rented a room in the apartment house where
the father's grandparents (great-grandparents) lived. The
mother visited the father in jail and attended two or three of
his court dates.
The department's concerns centered on the mother's ability
to protect Cameron, considering the mother's inconsistent
statements regarding how Nora was injured and her reluctance to
believe the father had assaulted Nora even after he had been
indicted. In conversations with the department social worker
assigned to this case from July 2019 to January 2020, the mother
continued to resist acknowledging that the father assaulted
Nora, even when the social worker told the mother there was a
medical report that confirmed Nora was sexually assaulted. In
October 2019, the mother told the department social worker that,
absent deoxyribonucleic acid (DNA) evidence, she would not
believe the father had sexually assaulted Nora.
On August 12, 2019, the father was released on bail and
placed on house arrest with a global positioning system monitor,
and he moved in with the great-grandparents. Based on her
4 residence, the mother was required to walk by the father's
apartment to exit and enter the building and often passed him
sitting on the porch. The mother stated she continued to live
in the building because she did not feel safe in a shelter. The
mother refused to move to New York to live with her mother.
The family action plan developed by the department for the
mother included the following tasks: obtain safe and stable
housing; meet with her social worker monthly; maintain healthy
relationships; participate in domestic violence services and
counselling, individual therapy, and parenting classes; sign
releases; attend supervised visits with Cameron; have no phone
contact with the father during visitation; create a
reunification and child care plan; and express in writing why
Cameron was removed from her care and how her actions
contributed to his removal.
On December 9, 2019, the department changed the case goal
from reunification to adoption. Multiple foster care review
panels found that the mother failed to enroll in individual
therapy and to provide the department with a reunification plan
and that she continued to struggle to acknowledge why Cameron
had been removed from her care.
In June or July 2020, the mother began a romantic
relationship with a new man (boyfriend). In the fall of 2020,
the boyfriend moved in with the mother. The boyfriend did not
5 contribute financially to the household and moved from job to
job. Within two months of cohabitating, the mother and
boyfriend were engaged to be married. The mother included the
boyfriend as a potential coparent for Cameron on at least one of
the reunification plans she submitted and asked the department
to assess him. The boyfriend never attended the mother's
visitation with Cameron. In May 2021, the mother ended her
relationship with the boyfriend after she found evidence that he
had been unfaithful.
Discussion. "In deciding whether to terminate a parent's
rights, a judge must determine whether there is clear and
convincing evidence that the parent is unfit and, if the parent
is unfit, whether the child's best interests will be served by
terminating the legal relation between parent and child."
Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017), quoting
Adoption of Ilona, 459 Mass. 53, 59 (2011). "We give
substantial deference to the judge's decision to terminate
parental rights '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 Talik, 92 Mass. App. Ct.
367, 370 (2017), quoting Adoption of Ilona, supra.
1. Fitness. A parent's ability to adequately protect a
child from harm is relevant to determining parental fitness.
See Adoption of Jacob, 99 Mass. App. Ct. 258, 265 (2021) (judge
6 may consider parent's decision to remain in relationship with
abusive partner when determining fitness); Adoption of Anton, 72
Mass. App. Ct. 667, 673-675 (2008) (parent's failure to protect
child from sex offender relevant in determining fitness).
The mother argues that the department did not meet its
burden to prove parental unfitness by clear and convincing
evidence. We disagree. The judge considered the required
factors set forth in G. L. c. 210, § 3 (c), and found factors
(ii), (v), (vi), (vii), (viii), (ix), and (xii) applicable to
her determination that the mother was unfit. The mother's
unfitness resulted not simply from the July 4 incident but from
a "constellation of factors." Adoption of Greta, 431 Mass. 577,
588 (2000).
First, the evidence at trial showed that the mother was
unwilling to accept that Nora had been sexually assaulted, and
she thereafter remained unable or unwilling to accept the
father's likely role in the assault, despite substantial
evidence to the contrary and the absence of a plausible
alternative explanation. 4
4 The mother disputes the judge's characterization of her testimony at trial, arguing that the judge conflated the mother's testimony responding to questions about her prior beliefs about the father's guilt with her beliefs at the time of trial. To the contrary, the judge did not credit the mother's testimony that she came to believe six months before the trial that the father assaulted Nora. That credibility determination was, of course, squarely within the province of the trial judge
7 For at least three months after the assault, the mother
continued to suggest that Nora's injuries were caused by either
self-scratching or a "straddle injury" from falling onto her bed
railing. At trial, the mother acknowledged that neither of
those explanations was reasonable considering Nora's injuries.
At least six months after the assault, the mother stated that
she could not be sure of the father's guilt unless she saw DNA
evidence.
Despite observing the severity of Nora's injuries, the
mother chose to leave Cameron and Kevin alone in the father's
care while she took Nora to the hospital, and she accepted his
claims that he did not know what happened to Nora.
The record supports the judge's finding that the mother
failed to properly investigate how such an injury to a child
could occur in her home. The mother did not go into Nora's room
after returning from the hospital, did not attempt to find the
pull-up diaper or any of the clothes Nora had been wearing the
day of the assault, nor did she ask the father where the clothes
went.
as finder of fact. See Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). Inasmuch as the mother's challenge to the judge's findings rests on the mother's discredited testimony, it is unavailing.
8 Moreover, the mother did not end her relationship with the
father for nearly three weeks after the July 4 incident, visited
him in jail on two occasions, and attended two or three of his
court hearings. The mother lived in the same building where the
father lived for nine months after he was released on bail.
A trial judge has "discretion to evaluate a witness's
credibility and to weigh the evidence." Adoption of Nancy, 443
Mass. 512, 515 (2005). The judge did not credit the mother's
testimony that she now believed the father sexually assaulted
Nora. Likewise, the judge was entitled to disbelieve the
department social worker's opinion that the mother's attitude
toward the father appeared to have changed in January 2021.
The mother's inability to accept that the father likely
assaulted Nora created a risk that she would not protect Cameron
from the father or other household members posing similar risk
of abuse. 5
Taken as a whole, the record evidence amply supports the
judge's findings and determination that the mother is unfit to
care for Cameron. 6
5 The department's concern extended to the mother's ongoing inability to make prudent judgments about the romantic partners she brought into Cameron's life. The mother's subsequent relationship with the boyfriend showed that her poor judgment was not confined to her relationship with the father. 6 We note that "[d]espite the moral overtones of the statutory
term 'unfit,' the judge's decision was not a moral judgment or a determination that the mother . . . [does] not love the child"
9 2. Termination of parental rights. "After ascertaining
unfitness, the judge must determine whether the parent's
unfitness is such that it would be in the child's best interests
to end all legal relations between parent and child." Adoption
of Nancy, 443 Mass. at 515. "[A] judge considering termination
also must consider the child's unqualified right to permanency
and stability and cannot hinge predictions of future fitness
determinations on a 'faint hope' that the parent will become fit
at some indeterminate time." Care & Protection of Zeb, 489
Mass. 783, 789 (2022), quoting Adoption of Ilona, 459 Mass. at
59-60.
Considering the mother's continuing tendency to enter
significant relationships without appreciating the potential
risk to Cameron, the judge acted within her discretion in
terminating the mother's parental rights. There was no
indication in the record that the mother's inability to identify
the risk to her child posed by her choice of inappropriate
romantic partners was temporary or would subside in the
foreseeable future. Compare Adoption of Carlos, 413 Mass. 339,
350-351 (1992) (declining to terminate parental rights where
judge found mother's parental unfitness could be resolved with
additional time).
(citation omitted). Adoption of Bea, 97 Mass. App. Ct. 416, 417 n.2 (2020).
10 3. Posttermination and postadoption visitation. The
Supreme Judicial Court has "repeatedly recognized the equitable
authority of a judge to order visitation between a child and a
parent whose parental rights have been terminated, where such
visitation is in the child's best interest." Adoption of Ilona,
459 Mass. at 63. Review of a judge's order concerning
posttermination and postadoption visitation is for "abuse of
discretion or clear error of law." Adoption of Zander, 83 Mass.
App. Ct. 363, 364 (2013).
Cameron argues that the judge abused his discretion in
ordering posttermination and postadoption visitation. We agree.
"[T]he first question . . . a judge should consider . . .
[is] whether there is a 'significant bond existing with the
biological parent." Adoption of Ilona, 459 Mass. at 63-64,
quoting Adoption of Vito, 431 Mass. 550, 563 (2009).
Cameron was only eight weeks old at the time he was placed
with the preadoptive mother. We do not discount the mother's
consistent history of positive visitation with Cameron.
However, such visits are insufficient to create a significant
bond that overcomes Cameron's interest in stability with his
adoptive family. See Adoption of Greta, 431 Mass. at 578, 580-
581 (finding insufficient evidence of significant bond between
mother and child despite four years of regular visitation).
11 We accordingly conclude that the judge abused her
discretion in ordering posttermination and postadoption
visitation with the mother. See Adoption of John, 53 Mass. App.
Ct. at 439 (2001).
For the foregoing reasons, that portion of the decree
terminating the mother's parental rights to Cameron is affirmed.
The order providing the mother with posttermination and
postadoption visitation is vacated. We remand the case to the
Juvenile Court and direct that the order be modified consistent
with this memorandum and order. 7
So ordered.
By the Court (Green, C.J., Blake & Henry, JJ. 8),
Assistant Clerk
Entered: March 4, 2024.
8 The panelists are listed in order of seniority.