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-39
ADOPTION OF CEILIA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Juvenile Court found the
mother unfit to parent her children, Ceilia and Jane, terminated
her parental rights to both children, and concluded that
adoption of the children by their preadoptive foster parent was
in their best interests. On appeal, the mother claims the judge
abused her discretion by failing to properly consider the
mother's plan of kinship guardianship. The mother also appeals
from the trial judge's denial of a motion for relief from
judgment and a new trial, arguing the judge abused her
discretion in finding there were no extraordinary circumstances
warranting a new trial. We affirm.
1 Adoption of Jane. The children's names are pseudonyms. 1. Background. We summarize the judge's findings of fact,
reserving certain details for later discussion.2 Ceilia was born
in December 2018 and Jane in December 2019. Between December
2019 and January 2020, the Department of Children and Families
(DCF) received five reports under G. L. c. 119, § 51A (51A
reports), alleging neglect of the children. First, in December
2019, a 51A report was filed, and subsequently supported by DCF,
alleging the mother tested positive for marijuana while
pregnant. DCF's investigation revealed the mother was using
marijuana to cope with the murder of the children's father. DCF
found that the children's needs were being met, and the children
remained in the mother's care.
In January 2020, four 51A reports were filed, three of
which were supported by DCF, alleging neglect of the children by
the mother and her then boyfriend. Of note, one January 2020 51A
report, which was supported by DCF, alleged the mother had
medically neglected the children. The children's pediatrician
reported the mother had not attended several of the children's
medical appointments and follow-up visits. When the mother did
attend appointments, she and the children emitted such a strong
2 The trial judge made 216 "specific and detailed" findings and forty-two conclusions of law in support of her decision to terminate the mother's parental rights, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
2 cannabis odor that the medical room had to be aired out prior to
reuse. Concerning Ceilia, the mother did not attend an
appointment for the child's hip dysplasia, nor could it be
confirmed that Ceilia was in a Pavlick harness as required to
address the condition. With respect to Jane, the pediatrician
expressed concerns with her "inconsistent . . . feeding
schedule."
As a result, DCF filed a care and protection petition and
obtained temporary custody of both children in January 2020.
The mother subsequently waived her right to a temporary custody
hearing, and DCF retained temporary custody of the children.
DCF then implemented an action plan for the mother to work
towards reunification with the children. The action plan
required the mother to address concerns pertaining to her
parental fitness, including exposure to violence, unstable and
unsafe housing, domestic violence, marijuana use, and mental
health.
a. The mother's unfitness. At trial, the mother
stipulated to her temporary parental unfitness and acknowledged
the risk of harm to the children emanating from the violence
around her. In fact, the mother's life was often endangered by
encounters with violent individuals from 2019 through March
2022. In March 2019, she fled her apartment after three men
came to her door with a gun looking for another man. In May
3 2019, the children's father was stabbed and killed while the
mother and Ceilia were present. In January 2020, individuals
threatened to take the mother's belongings while in her home.
In March 2020, armed individuals entered her home looking for
money and attempted to drag her boyfriend from the apartment.
In July 2020, the mother's new boyfriend was involved in a
drive-by shooting outside her apartment. Following the
shooting, police recovered two handguns and numerous rounds of
ammunition from a safe in the mother's apartment; the safe also
contained records personal to the mother. In January 2021,
police found a gun magazine and shell casings in the mother's
living room. In April 2021, police responded to her address for
reports of a "gunshot victim," and encountered the victim of an
apparent self-inflicted gunshot wound. At trial in May 2022,
the mother testified she was likely to be murdered. Despite the
danger facing the mother, she minimized her involvement in the
violence, claiming not to have knowledge of any of these
incidents while continuing to associate with the individuals
involved.
The violence around the mother contributed to her inability
to obtain safe and stable housing. In her prior housing, as
detailed above, the mother was subjected to a violent home
invasion by individuals familiar to her and her then boyfriend,
she acquiesced to others storing firearms and ammunition, and
4 her home was the site of active gunfire. The mother recognized
her residences have not been safe living environments for her
children, but at the start of trial in May 2022, two and one-
half years after DCF was granted custody of the children, she
had not taken any steps to obtain safer housing.
The mother also minimized domestic violence in her home by
the father and a former boyfriend. Domestic violence between
the father and the mother was common, and in a "really bad"
incident of abuse by the father in 2014, the mother "ended up
with two black eyes and a bloody nose." At trial, she blamed
herself for provoking him. Moreover, the mother did not
adequately engage in domestic violence services as required by
her DCF action plan. The mother signed up for individual
classes with a domestic violence treatment center, but she did
not verify her completion of the individual classes nor did she
provide DCF with evidence that she engaged in group classes.
The mother also did not demonstrate insight into how domestic
violence impacted her children. She repeatedly entered into
relationships with violent men and did so at the expense of
creating an unsafe living environment for the children.
The mother also has a history of anxiety and depression and
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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
24-P-39
ADOPTION OF CEILIA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Juvenile Court found the
mother unfit to parent her children, Ceilia and Jane, terminated
her parental rights to both children, and concluded that
adoption of the children by their preadoptive foster parent was
in their best interests. On appeal, the mother claims the judge
abused her discretion by failing to properly consider the
mother's plan of kinship guardianship. The mother also appeals
from the trial judge's denial of a motion for relief from
judgment and a new trial, arguing the judge abused her
discretion in finding there were no extraordinary circumstances
warranting a new trial. We affirm.
1 Adoption of Jane. The children's names are pseudonyms. 1. Background. We summarize the judge's findings of fact,
reserving certain details for later discussion.2 Ceilia was born
in December 2018 and Jane in December 2019. Between December
2019 and January 2020, the Department of Children and Families
(DCF) received five reports under G. L. c. 119, § 51A (51A
reports), alleging neglect of the children. First, in December
2019, a 51A report was filed, and subsequently supported by DCF,
alleging the mother tested positive for marijuana while
pregnant. DCF's investigation revealed the mother was using
marijuana to cope with the murder of the children's father. DCF
found that the children's needs were being met, and the children
remained in the mother's care.
In January 2020, four 51A reports were filed, three of
which were supported by DCF, alleging neglect of the children by
the mother and her then boyfriend. Of note, one January 2020 51A
report, which was supported by DCF, alleged the mother had
medically neglected the children. The children's pediatrician
reported the mother had not attended several of the children's
medical appointments and follow-up visits. When the mother did
attend appointments, she and the children emitted such a strong
2 The trial judge made 216 "specific and detailed" findings and forty-two conclusions of law in support of her decision to terminate the mother's parental rights, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
2 cannabis odor that the medical room had to be aired out prior to
reuse. Concerning Ceilia, the mother did not attend an
appointment for the child's hip dysplasia, nor could it be
confirmed that Ceilia was in a Pavlick harness as required to
address the condition. With respect to Jane, the pediatrician
expressed concerns with her "inconsistent . . . feeding
schedule."
As a result, DCF filed a care and protection petition and
obtained temporary custody of both children in January 2020.
The mother subsequently waived her right to a temporary custody
hearing, and DCF retained temporary custody of the children.
DCF then implemented an action plan for the mother to work
towards reunification with the children. The action plan
required the mother to address concerns pertaining to her
parental fitness, including exposure to violence, unstable and
unsafe housing, domestic violence, marijuana use, and mental
health.
a. The mother's unfitness. At trial, the mother
stipulated to her temporary parental unfitness and acknowledged
the risk of harm to the children emanating from the violence
around her. In fact, the mother's life was often endangered by
encounters with violent individuals from 2019 through March
2022. In March 2019, she fled her apartment after three men
came to her door with a gun looking for another man. In May
3 2019, the children's father was stabbed and killed while the
mother and Ceilia were present. In January 2020, individuals
threatened to take the mother's belongings while in her home.
In March 2020, armed individuals entered her home looking for
money and attempted to drag her boyfriend from the apartment.
In July 2020, the mother's new boyfriend was involved in a
drive-by shooting outside her apartment. Following the
shooting, police recovered two handguns and numerous rounds of
ammunition from a safe in the mother's apartment; the safe also
contained records personal to the mother. In January 2021,
police found a gun magazine and shell casings in the mother's
living room. In April 2021, police responded to her address for
reports of a "gunshot victim," and encountered the victim of an
apparent self-inflicted gunshot wound. At trial in May 2022,
the mother testified she was likely to be murdered. Despite the
danger facing the mother, she minimized her involvement in the
violence, claiming not to have knowledge of any of these
incidents while continuing to associate with the individuals
involved.
The violence around the mother contributed to her inability
to obtain safe and stable housing. In her prior housing, as
detailed above, the mother was subjected to a violent home
invasion by individuals familiar to her and her then boyfriend,
she acquiesced to others storing firearms and ammunition, and
4 her home was the site of active gunfire. The mother recognized
her residences have not been safe living environments for her
children, but at the start of trial in May 2022, two and one-
half years after DCF was granted custody of the children, she
had not taken any steps to obtain safer housing.
The mother also minimized domestic violence in her home by
the father and a former boyfriend. Domestic violence between
the father and the mother was common, and in a "really bad"
incident of abuse by the father in 2014, the mother "ended up
with two black eyes and a bloody nose." At trial, she blamed
herself for provoking him. Moreover, the mother did not
adequately engage in domestic violence services as required by
her DCF action plan. The mother signed up for individual
classes with a domestic violence treatment center, but she did
not verify her completion of the individual classes nor did she
provide DCF with evidence that she engaged in group classes.
The mother also did not demonstrate insight into how domestic
violence impacted her children. She repeatedly entered into
relationships with violent men and did so at the expense of
creating an unsafe living environment for the children.
The mother also has a history of anxiety and depression and
had not adhered to DCF's action plan to address these
challenges. She was inconsistent with therapy, stopped taking
prescribed medication, and did not complete a substance abuse
5 evaluation. The mother's unprescribed use of marijuana caused
her psychiatrist to take her off other medication to avoid her
"double prescribing" herself.
Citing the mother's exposure to violence, inability to
provide a stable and safe home environment, exposure to and
minimization of domestic violence, untreated mental health
concerns, and failure to comply with DCF's action plan and be
honest with DCF, the judge found the mother's unfitness to
parent the children was likely to continue into the indefinite
future.
b. Placement plans. After obtaining temporary custody of
the children, DCF initially evaluated kinship placements with
the paternal grandmother, paternal aunt, and mother's stepmother
(maternal step-grandmother). Following the mother's stipulation
to her temporary unfitness at trial, the judge considered two
primary placement plans: guardianship with the maternal step-
grandmother, the mother's proposed plan; and adoption by the
children's current foster mother, DCF's proposed plan.
The judge found DCF's plan to be in the children's best
interests. In support, the judge noted the children's strong
bond with the foster mother and the nurturing environment of her
home. Both children identified the foster mother as "mom,"
sought her out for comfort, and as of the start of trial in May
6 2022, had been living with her for most of their lives.3 The
foster mother ensured both children were meeting developmental
milestones through early intervention and maintained the
children's medical appointments. Ceilia began taking
supplements to treat her anemia and Jane, who previously had
poor weight gain, became on track to achieve a healthier weight.
Regarding the mother's placement plan, the judge expressed
concerns that the maternal step-grandmother, who owned a
construction company, lacked the time and ability to care for
Ceilia and Jane in addition to her own seven children. The
maternal step-grandmother testified that she and her older
children would work together to care for Ceilia and Jane.
However, the maternal step-grandmother had not made a
substantial effort to visit the children while they were in DCF
care, only first visiting them around seven to eight months
after their placement, and there was no evidence that her
children knew Ceilia and Jane. Further, the judge did not
credit the maternal step-grandmother's testimony that she
attended follow-up early intervention appointments with Ceilia
and found her to be evasive when discussing her prior history
with DCF.
3 Ceilia had lived with the foster mother since February 2020, when she was around fourteen months old, and Jane was placed with the foster mother around the same time when she was less than two months old.
7 2. Discussion. a. Placement. After a determination of
parental unfitness, the judge is required to assess all
placement plans for the children and "determine which placement
will serve the best interests of the child." Adoption of Dora,
52 Mass. App. Ct. 472, 474-475 (2001). The judge's assessment
of each plan must be "even handed," regardless of which party
offered the plan. Adoption of Hugo, 428 Mass. at 226 n.8
(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.
1034 (1999). We review the judge's assessment for abuse of
discretion. See Adoption of Bianca, 91 Mass. App. Ct. 428, 434
(2017).
The mother argues the judge abused her discretion by not
appropriately considering DCF regulations regarding the priority
of kinship placements. This issue was not raised below and is
therefore waived. See Adoption of Willow, 433 Mass. 636, 651
(2001).
Even if the issue was not waived, the judge acted within
her discretion in considering and rejecting kinship placement
options. Judges are entitled to deference when they assess the
credibility of witnesses and weigh evidence. See Petition of
Dep't of Social Servs. to Dispense with Consent to Adoption, 397
Mass. 659, 670 (1986). Here, the judge's assessment that the
maternal step-grandmother was not a credible witness contributed
to the judge's other concerns about the maternal step-
8 grandmother's ability to care for the children. Moreover, after
thoroughly considering all the evidence, the judge found the
children were thriving in their foster home and had already
established a strong bond with their foster mother that exceeded
their bond with the maternal step-grandmother. The judge was
therefore within her discretion in concluding placement with the
foster mother was in the best interests of the children.
b. Denial of motion for relief from judgment. In
termination of parental rights cases, a judge reviewing a motion
filed pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),4
must decide whether posttrial events amount to "extraordinary
circumstances . . . [suggesting] that modification of the decree
would serve the child's best interests." Adoption of Cesar, 67
Mass. App. Ct. 708, 716 (2006). "A judge's denial of . . . a
rule 60(b) motion is within her discretion and is entitled to
great deference by a reviewing court." Adoption of Gillian, 63
Mass. App. Ct. 398, 411 (2005). We give special deference to
the decision of a judge who, as here, was also the trial judge.
See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). The
decision "will not be reversed on appeal except on a showing, by
4 "We look to rule 60(b) by analogy and as a cogent standard because the Massachusetts Rules of Civil Procedure do not apply to proceedings to dispense with consent to adoption." Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011).
9 clear and convincing evidence, that the judge abused her
discretion." Adoption of Gillian, supra.
One month after the trial concluded, in August 2022, the
mother moved to a family shelter approximately ninety miles away
from her prior residence. In January 2023, the mother gave
birth to her third daughter. In an affidavit provided by the
mother, the family shelter's director provided support for the
mother's motion. The director reported, inter alia, that the
mother had been compliant with shelter rules and had
demonstrated that she was a nurturing mother to her new
daughter. The director also endorsed the mother's ability to
parent her other children should they be returned to her care
while in the shelter.
The mother argues the judge abused her discretion denying
her motion for relief from judgment and for a new trial because
she had sufficiently resolved her unstable and dangerous living
environment (and was parenting an infant) "mere months" after
the trial concluded. She contends the instability and violence
in her living environment were the primary reasons she was found
unfit and therefore her relocation warrants a new trial. We
disagree. The judge found the mother unfit for several other
well-supported reasons, including her exposure to and
minimization of domestic violence and association with
individuals engaged in violence, not seeking adequate mental
10 health support, and not addressing her substance abuse; all of
these deficiencies persisted for multiple years.
In arguing the judge abused her discretion, the mother's
reliance on Adoption of Theodore, 36 Mass. App. Ct. 355 (1994),
is misplaced. In that case, a mother was found unfit to parent
her children due to her minimization of the father's abusive
behavior against their children and herself. See id. at 356-
357. Over one and one-half years after her trial, the mother
filed a motion for reconsideration that was supported by an
affidavit stating she had divorced her husband and was entirely
independent of him. See id. at 357-358. The judge denied the
motion without an evidentiary hearing. See id. at 358. On
appeal, the court remanded the matter for an evidentiary hearing
after concluding that the mother had resolved the single issue
supporting her unfitness by divorcing the father and engaging in
domestic violence services. See id. at 358-359. Here, in
contrast, several issues supported the mother's unfitness, and
even after her relocation and successful parenting of a newborn,
multiple parental shortcomings remained unresolved. See
Adoption of Franklin, 99 Mass. App. Ct. 787, 805 (2021) (motion
for relief from judgment denied because "evidence of the
[parent]'s unfitness at the time of trial was overwhelming, and
the subsequent improvements in [their] situation comparatively
11 modest"). Therefore, the judge did not abuse her discretion in
denying the motion.
Decrees affirmed.
Order denying motion for relief from judgment and for a new trial affirmed.
By the Court (Massing, Hand & Smyth, JJ.5),
Clerk
Entered: October 17, 2024.
5 The panelists are listed in order of seniority.