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
23-P-1038
ADOPTION OF CONRAD (and four companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees of the
Juvenile Court that found them unfit to care for their five
children, terminated their parental rights, and declined to
order posttermination and postadoption visitation. The mother
argues that the judge made numerous errors in considering the
evidence and that without those errors, the evidence of the
mother's unfitness was insufficient. The father challenges,
among other things, the process by which the children testified
at trial. Both parents also challenge the findings that their
unfitness would continue indefinitely and that termination was
in the children's best interests. We affirm.
1Adoption of Timothy, Adoption of Rose, Adoption of Alice, and Adoption of Julia. The children's names are pseudonyms. Background. We summarize the trial judge's findings of
fact, with additional facts reserved for later discussion.
1. Procedural history. The mother and the father met when
they were both teenagers; their relationship was "on-and-off."
Both have long histories of substance use, mental illness, and
criminal activity. There is also a history of domestic
violence. At the close of trial in 2022, the mother and the
father had five children: Conrad (thirteen years old); twins
Timothy and Rose (eight years old); Alice (five years old); and
Julia (two years old).
The present matter is the second care and protection
petition filed against the parents. The first petition was
filed in June 2016, following the removal of the three oldest
children due to allegations of substance use, domestic violence,
and neglect by the parents. In September 2016, the mother gave
birth to the parents' fourth child, Alice, who was born
substance exposed.2 A further care and protection petition was
filed by the Department of Children and Families (department) on
Alice's behalf.
Following a trial of these first cases, the mother and the
father regained conditional custody of all four children. After
reunification the cases were dismissed, and thereafter submitted
2 The mother did not receive prenatal care with Alice. The mother used heroin up until two days before Alice's birth.
2 for closing on November 19, 2019. Six days later, however, on
November 25, 2019, the department received a fresh report
alleging neglect, which detailed bruising on the twins, then
five years old, as well as on the mother's face. Following an
investigation, the department conducted an emergency removal and
commenced the instant care and protection action on December 6,
2019.
The mother gave birth to the parents' fifth child, Julia,
on June 26, 2020, prematurely at thirty-four weeks. The mother
did not receive prenatal care for Julia until she was twenty-
eight weeks pregnant. While Julia was in the hospital, the
department filed a further care and protection petition. Julia
was discharged to the department's custody, and has never lived
with her parents.
2. Trial. The trial occurred over twenty-one
nonconsecutive days from June 4, 2021, until July 7, 2022.
Seventeen witnesses testified including, as relevant to the
issues on appeal, three of the children (Conrad, Rose, and
Timothy) and an Ohio State police trooper.
The children's testimony was taken in July of 2021, using a
procedure discussed in more detail infra.3 The children
3 Although there was no discussion of the issue during trial, in her findings the judge stated, without explanation, that the children's testimony was admitted only for the children's state of mind.
3 testified to their observations of the father's repeated
physical abuse of the mother in their home, resulting in
bruising "all over her body." The children also testified that
both the mother and the father hit them with their hands and a
belt. Each child testified that they did not feel safe in their
home with the mother and the father. The children also
testified that they would like to remain with their respective
preadoptive placements. In addition to the children's live
testimony, the department also submitted reports that contained
statements the children had made, including that the children
saw the father hit the mother, leaving bruising including on the
mother's face, and that the parents hit them.4
Following the children's testimony, and in the midst of
trial, the parents left on a cross-country road trip. They were
stopped in Ohio by a State trooper. The trooper appeared at
trial and testified that he initially stopped the parents for
speeding, but that the stop led to a search of the vehicle,
which yielded drug paraphernalia. The trooper also described a
video and audio recording from the cruiser where the parents
were held while their vehicle was searched. The recording was
ultimately excluded from evidence, but the trooper testified
4 At trial, both parents denied domestic violence in their relationship. The mother testified that she was aware of the children's concerns about how the father treated them.
4 that in the recording the mother handed the father an item from
her genital area after the father asked if she "had the stuff."
As a result of the incident in Ohio, the father was charged with
drug trafficking.5
3. Findings. The judge found that the mother and the
father were unfit and terminated their parental rights. In May
of 2023 the judge entered detailed findings of fact and
conclusions of law. As to the mother, the judge found that she
had significant issues with mental health, substance use,
domestic violence in her relationship with the father, housing
and employment instability, and criminal behavior. The judge
also found that the mother had failed to meaningfully address
these issues, and that the evidence showed that the substance
use, criminal activity, and domestic violence were ongoing, and
likely to continue indefinitely. Although the judge
acknowledged that the mother engaged in some services related to
her mental health, she had not done so "consistently or
earnestly," nor had the mother completed other action plan tasks
to better her parenting abilities.
5 The judge erroneously found that the trip caused the mother and the father to miss a scheduled department visit. Where the mother and the father missed several scheduled visits, this was harmless error. See G. L. c. 231, § 119; Adoption of Sherry, 435 Mass. 331, 336 (2001).
5 The judge also found that the parents' relationship was
"extremely unstable, toxic, and fraught with domestic violence
and criminal activity." The judge concluded that the mother
"persisted in her relationship with [the f]ather through this
case, despite the ongoing domestic violence and statements that
her own children were fearful of their father."
As to the father, the judge noted that he was "adamant that
he refuse[d] to work with the [d]epartment or engage in any
services whatsoever." The father, "by his own account, had done
nothing to address his current situation" and had not
"demonstrated any observable changes as to his substance abuse,
mental health diagnoses, domestic violence, or criminal
history."
The judge concluded that "[n]either parent has taken
responsibility for their own behaviors in their relationship
. . . [nor has] gained insight into any of the parental deficits
which have plagued them throughout this case" and their "lack of
insight continues to put the children at risk of further harm if
reunified to either parent's custody." Finally, the judge
declined to order posttermination or postadoption visitation.
Discussion. "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
6 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 is determined by
considering a parent's character, temperament, conduct, and
capacity to provide for the child's particular needs,
affections, and age." Care & Protection of Vick, 89 Mass. App.
Ct. 704, 706 (2016). The judge must determine "whether the
parent's deficiencies place the child at serious risk of peril"
(quotation and citation omitted). Adoption of Olivette, 79
Mass. App. Ct. 141, 157 (2011). A judge must also decide
"whether, 'on the basis of credible evidence, there is a
reasonable likelihood that the parent's unfitness at the time of
trial may be only temporary.'" Adoption of Ilona, 459 Mass. 53,
59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350
(1992). "[A] parent's unfitness is not temporary if it is
reasonably likely to continue for a prolonged or indeterminate
period." Adoption of Ilona, supra at 60.
The judge's findings and best interests determinations are
entitled to substantial deference, and we do not disturb the
judge's factual findings unless they are clearly erroneous.
Adoption of Hugo, 428 Mass. 219, 225 (1998); Adoption of
Jacques, 82 Mass. App. Ct. at 606-607.
1. Unfitness of the father. On appeal, the father
contends that the judge erred in concluding that his unfitness
7 would continue and in terminating his parental rights. There
was no error.
The father admits that he is currently unfit, and the
evidence of his unfitness was overwhelming. The father had an
extensive, ongoing criminal record spanning from 2003 through
trial that included charges and convictions of violent, drug,
and firearm offenses, for some of which he served committed
time. At the time of trial, the father was facing numerous
charges, and during trial, the father incurred more charges,
including from the Ohio incident. The father also had an
extensive history of substance use, continuing through trial.
There was evidence that during the pendency of this case, the
father overdosed twice.
As detailed below, there also was direct and circumstantial
evidence of domestic violence by the father against the mother
on numerous occasions, including in the children's presence and
sometimes resulting in bruising. There was also evidence that
the father hit the children.6
Finally, the father refused to work with the department in
any meaningful way. The father acknowledged his lack of
6 The paternal grandmother obtained abuse prevention orders for herself and all five children against the father due to the father threatening to harm her. While the father denied this during his testimony, the judge did not credit him.
8 cooperation, testifying that he had done "fucking nothing" for
the department. The judge appropriately concluded that the
father's "shortcomings will continue undiminished in the future
with an attendant harmful effect on the subject children," and
thus, it was in the best interests of the children to terminate
his parental rights.7
2. Unfitness of the mother. There also was no error in
the judge's decision to terminate the mother's parental rights.
First, the mother had a long history of substance use that
affected her care of the children. She was consistently seen
with bruising and track marks, had multiple positive drug
screens through 2020, including when she was pregnant with
Julia, and Alice was born substance exposed. The mother's
substance use continued through trial and the mother recognized
her continued problem with opiates; however, she did not
participate in substance use treatment nor provide a relapse
prevention plan.8
7 The judge did not abuse her discretion in declining to order posttermination and postadoption visitation with the father. None of the children had visited with the father since August 2020. The judge properly considered the relevant factors in concluding that such an order was not necessary for the best interests of the children. See Adoption of Ilona, 459 Mass. at 63-66; Adoption of Oren, 96 Mass. App. Ct. 842, 848 (2020).
8 While the mother enrolled in two substance use treatment programs at the beginning of trial, the judge's finding that the mother's enrollment was "disingenuous" was not clear error. See Adoption of Luc, 484 Mass. 139, 144 (2020). Indeed, the mother
9 The mother's substance use also related to her lack of
prenatal care during her pregnancies with Julia and Alice, and
it was appropriate for the judge to note these similarities. As
noted supra, Alice was born substance exposed after the mother
did not receive prenatal care, and the mother used heroin up
until two days before Alice's birth. As to Julia, when the
mother finally received prenatal care, she had track marks and
bruises on her arms and hands, and had a positive drug screen
while pregnant. The judge permissibly could discredit the
mother's reasons for her lack of prenatal care, as well as her
testimony that Julia was born prematurely because of
preeclampsia.9 See Custody of Eleanor, 414 Mass. 795, 799
(1993).
Second, the mother had an extensive criminal history
spanning from 2007 to 2020. This history included drug-related
charges as well as charges for assault, abuse prevention act
violations, and shoplifting. Several criminal incidents
occurred with the father, including the midtrial incident in
stated she enrolled herself in those programs "knowing the trial was coming."
9 The judge erroneously stated that Julia was also born substance exposed. Given the other evidence of the mother's unfitness as to Julia, this error was not material. See G. L. c. 231, § 119; Adoption of Sherry, 435 Mass. at 336.
10 Ohio.10 There was a clear nexus between the mother's criminal
behavior and harm to the children. Indeed, the mother had been
arrested while the children were in her care.11
Third, there was ample evidence that the mother did not
have stable housing or means to support the children. At the
time of trial, the mother had lived in the maternal
grandmother's home for approximately three months, where she
planned to reunite with the children. Before that, the mother
stayed with the father in different hotels and apartments and
had twice been evicted for nonpayment of rent. As to the
mother's employment, the record supports that it was sporadic,
and the judge could permissibly discount the mother's testimony
that she was employed at the beginning of trial. See Custody of
Eleanor, 414 Mass. at 799.
10The judge erroneously found that both the mother and the father incurred drug trafficking charges as a result of the incident. This was harmless error. See G. L. c. 231, § 119; Adoption of Sherry, 435 Mass. at 336.
11The father and the mother argue that the testimony of the Ohio trooper concerning the excluded videotape was erroneously admitted, and thus should not have been considered as to the mother's criminal history. We note that neither counsel for the mother nor the father moved to strike the trooper's testimony regarding the videotape after the videotape itself was excluded -- and we note as well that it was unclear why the videotape was not admissible evidence. Moreover, it was not the videotape but the trooper's testimony of his observations that established the presence of drug paraphernalia in the parents' car.
11 Beyond these shortcomings, the mother had a pattern of
inconsistent treatment for her mental health diagnoses of
attention deficit hyperactivity disorder, bipolar disorder, and
depression. While the mother testified that she had a new
psychiatrist, they had yet to meet. The mother's mental health
had a nexus to her ability to care for her children: the mother
acknowledged that her mental health resulted in financial
difficulties, and the children recognized the mother's mental
health symptoms, stating that the mother stayed in bed
throughout the day and at times was unable to drive them to
school, resulting in their frequent tardiness. See Adoption of
Luc, 484 Mass. 139, 146-147 (2020); Adoption of Frederick, 405
Mass. 1, 9 (1989).
And finally, there was very concerning evidence of domestic
violence upon the mother by the father. This included direct
evidence -- the children's testimony and the children's
statements regarding domestic violence that appeared in the
department reports admitted at trial. Leaving aside the
question of whether it was proper for the judge to rely on this
evidence, which we discuss infra, there was also strong
circumstantial evidence of domestic violence -- the mother was
12 seen with bruising on numerous occasions, not just by her
children but also by social workers and medical professionals.12
The mother denied experiencing domestic violence, and did
not follow through with services related thereto, despite it
being on her action plan. The mother also did not appreciate
the effect that witnessing domestic violence had on the children
and took no action to address the children's statements that
they did not feel safe with the father.13 See Adoption of
Arianne, 104 Mass. App. Ct. 716, 723 (2024). She stated that
the children fabricated their statements that the father hit
her. The judge appropriately concluded that the mother's
"failure to terminate her relationship with [the f]ather
demonstrate[d] her inability to put her children's needs above
her own."
Many of the mother's issues in the current proceeding were
present in the previous petition. The mother did not complete
most of her action plan tasks and failed to show sufficient
progress. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677
(2019). Thus, there was no evidence that the mother's
The judge was not required to credit the mother's 12
explanations that the bruising arose from Alice hitting the mother's face or as a side effect of prescribed blood thinners. See Custody of Eleanor, 414 Mass. at 799.
There were numerous police responses to the parents' home 13
due to neighbors hearing arguments.
13 circumstances had changed or would change in any meaningful way.
See Adoption of Edgar, 67 Mass. App. Ct. 368, 373 (2006).14
3. The children's testimony. Both parents challenge the
judge's reliance on the testimony of Conrad, Timothy, and Rose,
arguing that the judge improperly limited the cross-examination
of the children such that the parents were denied the ability to
"rebut adverse allegations concerning [their] child-rearing
capabilities" (citation omitted). Adoption of Luc, 484 Mass. at
152.15 See Adoption of Roni, 56 Mass. App. Ct. 52, 55 (2002).
The mother also argues that the children's hearsay statements in
the department's G. L. c. 119, § 51B, and court investigation
reports could not be considered as evidence, for the same
reason. See Adoption of Luc, supra at 152-153 (hearsay
14In light of the issues above, the judge also did not abuse her discretion in declining to order posttermination and postadoption visitation with the mother where such an order was not necessary to protect the children's best interests. See Adoption of Ilona, 459 Mass. at 63-66. Among other things, the mother had extensive, ongoing contact with the father, the children were well bonded and doing well in their preadoptive placements, and the children's caretakers were willing to allow visits as long as they were in the best interests of the children.
15In her findings the judge stated, in a footnote, "Throughout these findings, the Court admitted any and all of the subject Child's [sic] statements for the limited purpose of understanding her [sic] state of mind. See Mass. G. Evid. § 1115(d)(l) (2020)." We discern no material error in this regard because, as discussed infra, we perceive no reason on this record why the children's testimony could not be relied upon generally.
14 contained within department records admissible for statements of
primary fact if hearsay source is identified and available for
cross-examination). See also Mass. G. Evid. § 1115(b)(2)
(2024). The father argues similarly, adding that the judge's
limitations and accommodations to the children violated due
process and that such limitations and accommodations could not
be imposed without expert evidence demonstrating that the
children would be traumatized if they testified in the ordinary
manner.
The judge allowed the testimony of the three oldest
children (ages twelve, seven, and seven at the time of their
testimony), subject to specific procedures that the judge set
after input from the parties. In particular, the judge ordered
that the lawyers would not ask the questions; rather, the
parties would submit proposed questions to the judge in advance,
and the judge would conduct the examination of each child. The
procedure contemplated that the parties could submit proposed
follow-up cross-examination questions during a recess after each
child's direct examination, but no face-to-face cross-
examination by counsel would be allowed; instead, the judge
would conduct the follow-up cross-examination of each child.
The parents would not be present in the court room, but could
watch the proceedings by videoconference. The judge expressly
found that the procedures were necessary because it would be
15 traumatic for the children to testify with their parents in the
court room and to be questioned by seven different attorneys.
Thereafter, the department, counsel for the mother, and
counsel for the father submitted proposed questions. The judge
conducted the questioning. After each child was questioned, the
court took a recess, and the judge asked counsel to confer with
their clients and to submit any additional questions. At the
close of each child's testimony and after the recesses, the
judge asked additional questions of each child.
We recognize that "[d]ue process concerns and fundamental
fairness require that a parent have an opportunity effectively
to rebut adverse allegations concerning child-rearing
capabilities, especially in a proceeding that can terminate all
legal parental rights." Adoption of Luc, 484 Mass. at 152,
quoting Adoption of Mary, 414 Mass. 705, 710 (1993). This
includes the opportunity to conduct reasonable, "effective
cross-examination," and we assume, without deciding, that this
right presumptively includes the ability to cross-examine the
witnesses directly, rather than through written questions asked
by a judge.16 We further recognize that the parents' arguments
16"Effective cross-examination" will generally involve the opportunity to question the witness directly and to follow up in real time. Variance from this process will require unusual circumstances, and findings by the judge. Cf. Adoption of Roni, 56 Mass. App. Ct. at 57 ("[A]ny order limiting parties' access to, or participation in, any portion of the proceedings [should]
16 go not only to the children's court room testimony, but also to
the admissibility under the Luc criteria of the children's
hearsay statements in the department's reports. See Adoption of
Luc, supra at 152-153.
Here, however, the parents' due process and related
arguments regarding the limits on cross-examination do not
establish reversible error. First, the arguments have not been
properly preserved for our review. Prior to the taking of
evidence, while the judge was working out a process, the parents
did raise some objections. As to the procedure of written
questions, the parents stated that written questions "do[] not
allow for follow-up, do[] not allow for spontaneity." The
parents did not, however, specifically argue that the judge was
violating a due process right to have counsel question the
children directly. Further, neither the father nor the mother
objected at the conclusion of the children's testimony, nor did
they, for example, make an offer of proof as to what evidence
they believed they could have adduced if they had been allowed
to question the children directly.
Moreover, the parents have not provided an adequate record
to review the claimed error. The record before us does not
be narrowly tailored to the particular protection required in the circumstances, explained by the judge and supported by explicit findings").
17 include the contents of the judge's conversations with the
parties during the recesses, and neither parent sought to
reconstruct the record on that point. As a result, we do not
know of particular questions that were requested during the
recesses but not asked.17 At most, the father argues on appeal
that the parents were unable to explore the children's potential
biases and suggestibility. However, the children were asked
several questions on that topic.18
Finally, and relatedly, the parents have not shown how they
were prejudiced by the process here. As noted, they have not
shown that they had additional questions to ask, or what facts
they could reasonably have anticipated establishing through
cross-examination that could have had a material impact on the
proceedings. The children's testimony primarily involved the
issue of domestic violence, but the evidence of unfitness,
detailed above, involved far more than domestic violence. Thus,
17There was a conversation on the record after the recess following Conrad's testimony where the judge responded that she had asked a question already and that she was "not going to ask anything that's based on regular cross. It's got to be based on the direct." However, we have no record of the questions to which the judge was referring.
18As to the absence of expert evidence supporting the judge's procedure, while "[a]n order allowing a child to testify outside the presence of [his or] her parents to avoid trauma should ordinarily be supported by an explicit finding to that effect," Adoption of Roni, 56 Mass. App. Ct. at 55, (and the judge made such a finding here), our courts have not required expert testimony to support the type of order at issue.
18 even if the judge's reliance on the children's testimony and
hearsay statements was error (and we do not hold that it was),
it was not prejudicial in light of the other overwhelming
evidence concerning the mother's and the father's unfitness.
Decrees affirmed.
By the Court (Sacks, Englander & Grant, JJ.19),
Clerk
Entered: January 10, 2025.
19 The panelists are listed in order of seniority.