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-252
ADOPTION OF ELISA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the father
was unfit to parent Elisa and that Elisa's best interests would
be served by the termination of his parental rights. The judge
also ordered that the father was entitled to six visits annually
with Elisa. The father appeals from the decrees finding him
unfit and terminating his parental rights, arguing that the
judge gave too little weight to evidence that the father
interacted positively with Elisa during regular visits,
demonstrated his parenting skills by caring for his older child,
and completed many programs and was on a wait list for
specialized therapy to treat his borderline personality
disorder. The father also contends that the judge improperly
considered opinion testimony of a bonding expert that was
1 A pseudonym. speculative. Concluding that the judge did not abuse her
discretion in weighing the evidence and properly considered the
bonding expert's testimony, we affirm.
Background. We set forth the facts found by the judge
after trial, saving some facts for later discussion.
Between 2007 and 2014, the father was the subject of six
G. L. c. 209A orders issued based on affidavits from four
different women (plaintiffs).2 One of those plaintiffs is the
mother of the father's older child, Jared,3 and one of the 209A
orders, issued in August 2009, was supported by that plaintiff's
affidavit averring that the father had argued with her while she
was holding Jared, and after she put Jared down the father
picked her up by the waist, dropped her, then pinned her in a
corner and yelled in her face calling her names.4 Another of the
209A orders issued in September 2010 on the application of
2 Elisa's mother was not one of those plaintiffs.
3 Also a pseudonym.
4 Jared was then about two months old. The record before us contains reference to a report dated August 2009 pursuant to G. L. c. 119, § 51A, alleging neglect of Jared by the father that was supported. See G. L. c. 119, § 51B. However, neither that § 51A report nor the report of the related investigation under § 51B is in the record.
2 Jared's mother on behalf of Jared, and was in effect for about
one month.5
In June 2016, the father was charged with assault and
battery upon a pregnant person; the alleged victim was Elisa's
mother, then pregnant with Elisa. The mother testified that
after she told the father she wanted to end their relationship,
he grabbed her arms forcefully and shook her; picked her up off
the ground and slung her over his shoulder, putting pressure on
her belly; tried to force her into his truck; and wrestled her
phone out of her hand and threw it away. On October 3, 2016, as
part of a plea agreement, that charge was dismissed and the
father admitted to sufficient facts for domestic assault and
battery, which was continued without a finding for one year on
conditions including that he undergo a mental health evaluation.
As a result of an incident on October 10, 2016, just one
week after the father entered that plea agreement, the father
was again charged with assault and battery upon a pregnant
person; this time the alleged victim was his sister. That
charge was continued for about ninety days and then dismissed.
The father admitted that after his pregnant sister went into a
5 The affidavit in support of that 209A order is not in the record.
3 family member's garage without permission, the father physically
assaulted her.
Elisa was born in December 2016, and due to concerns about
the parents' history of domestic violence and mental health
instability, a report pursuant to G. L. c. 119, § 51A (51A
report) was filed with the Department of Children and Families
(DCF), which instituted care and protection proceedings. In
January 2017, Elisa was placed in the care of her foster
parents, who are maternal relatives and became her preadoptive
parents. In October 2017, DCF changed its goal for Elisa from
reunification with the father and the mother to adoption. The
preadoptive parents have adopted Elisa's maternal half-sister
and are related to a family that has adopted two other maternal
half-siblings of Elisa. The preadoptive parents are committed
to adopting Elisa and maintaining her relationships with the
father, the mother, and Elisa's half-siblings.
At DCF's request, a psychologist evaluated the father and
issued a report in January 2018 recommending that he participate
in a domestic violence program. As a result, between August
2018 and May 2019, the father engaged in a forty-week domestic
violence program.
At a court hearing in April 2019, the father learned that
the mother had agreed to the adoption of Elisa by the
4 preadoptive parents and was negotiating an open adoption
agreement. The mother did not attend the hearing because she
was afraid of the father's reaction. The father became very
angry and after the hearing went to the mother's workplace,
where he waited near her car and confronted her. The father
told the mother that the only way she would have a relationship
with Elisa was if the father had custody of Elisa, and demanded
that the mother apologize to him for "siding with DCF." When
the mother tried to drive away, the father put his foot under
her car's left front tire. Concerned that because she was on
probation she would face consequences if she drove over his
foot, the mother started to dial 911, and the father removed his
foot. The judge found that the incident illustrated the
father's inability to handle someone not behaving in a way that
suited him, and his willingness to manipulate people to serve
his own needs. Based on the fact that the incident occurred
during week thirty-seven of a forty-week domestic violence
program, the judge found that the father's "behavior is likely
to continue into the future to a near certitude" and "would
place [Elisa] at imminent risk of serious abuse and neglect."
In May 2019, psychologist Dr. Jennifer M. Laney evaluated
the father and issued a report diagnosing him with borderline
personality disorder, which manifests in an "intense fear of
5 rejection or threat to his primary attachment relationship" that
makes him prone, when emotionally dysregulated, "to
inappropriate, intense anger" and "transient, stress related
paranoid ideation" resulting in "[f]rantic efforts to avoid
abandonment." The judge found that Dr. Laney's diagnosis
"precisely describes" the father's pattern of problematic
behavior, and "shed[s] light on the apparent ineffectiveness" of
the forty-week domestic violence program and individual therapy
in which the father had previously engaged. Dr. Laney
recommended that the father undergo dialectical behavior therapy
(DBT), an evidence-based treatment for borderline personality
disorder that teaches emotional regulation skills using
individual, group, and telephone coaching. DCF requested that
the father undergo DBT and supplied him with referrals for DBT
providers.
Between July and November 2019, the father sent more than
one hundred text messages to the mother, some using terms of
endearment and others insulting and belittling her. The mother
initially blocked his messages, then changed her phone number to
keep him from contacting her. Based on the father's testimony,
the judge found that the father minimized "the dozens and dozens
of text messages he sent to Mother in short periods of time that
ranged from friendly to vicious." The judge found that the
6 father's unrealistic perception of those attempts at contact was
"a manifestation of his mental illness," and did not credit his
assessment of the events.
In October 2019 and again in November 2021, the father
stipulated that Elisa remained in need of care and protection
and that he was then unfit to parent Elisa. Throughout the six
years that the case was pending, the father visited Elisa
regularly for one- to two-hour supervised visits.
The case was tried over five consecutive days in October
2022, when Elisa was almost six years old. The judge credited
the testimony of Dr. Allison Bell, the child's bonding expert,
that the father's borderline personality disorder prevents him
from prioritizing Elisa's needs over his own. As of trial, the
father had not begun DBT treatment for his borderline
personality disorder. The judge concluded that the father was
unfit to parent Elisa, that his unfitness as a parent was likely
to continue, and that termination of his parental rights was in
Elisa's best interests.
Discussion. 1. Judge's consideration of the father's
strengths. "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
7 parent is unfit to care for the child and that termination is in
the child's best interests" (citation omitted). Adoption of
Yalena, 100 Mass. App. Ct. 542, 549 (2021). The father argues
that in finding him currently unfit to parent Elisa, the judge
ignored evidence of his strengths as a parent, and as a result
the judge's findings were not based on clear and convincing
evidence. See Adoption of a Minor (No. 2), 367 Mass. 684, 688
(1975) ("Troublesome facts, pointing to a conclusion contrary to
that reached by [DCF] or the judge, are to be faced rather than
ignored"). The father contends that the judge did not
sufficiently weigh the evidence of the father's positive
interactions with Elisa during their visits, his acceptable
parenting of Jared, and his completion of programs. We consider
each argument in turn.
a. Father's appropriate behavior during visits. The
father argues that the judge gave insufficient weight to
evidence that he regularly visited Elisa and interacted
appropriately with her. The judge did consider evidence that
for nearly six years before trial the father engaged in twice-
monthly supervised visits with Elisa. The judge found that the
father was "prepared, engaging, thoughtful and kind" with Elisa,
and that Elisa "has a caring, loving connection with Father,
though she does not identify him as her primary caretaker."
8 The father argues that the judge should have credited the
2019 report of his bonding expert that during his visits with
Elisa the father showed effective parenting skills. Instead,
the judge credited the trial testimony of Dr. Bell, who
explained that supervised visits in a DCF office or a public
place like a park or museum were not necessarily indicative of
long-term parenting, because during those visits the father
virtually never had to discipline Elisa or engage in her
developmental process.
The judge also considered it significant that the father
repeatedly refused to allow DCF access to his home to do a home
assessment. When one social worker tried to, among other
interactions, schedule visits at the home, the father reacted,
as the judge found, "with anger, foul language, personal
attacks, and sometimes outright rage." The father testified
that he would not allow social workers on this case access to
his home unless DCF changed its goal for Elisa to reunification.
We discern no abuse of discretion in the judge's weighing
the evidence of the father's appropriate behavior during
supervised visits. "This decidedly is not a case where the
judge failed to confront 'troublesome facts.'" Adoption of
Knox, 102 Mass. App. Ct. 84, 94 (2023).
9 b. Father's parenting of the older child. The father
argues that the judge gave insufficient weight to evidence that
the father's older child, Jared, thirteen years old at the time
of trial, had lived with the father for about ten months before
trial.6 The father contends that because no 51A reports were
filed during that time, his parenting of Jared was acceptable,
and the judge should have credited his testimony that he was
engaged in Jared's medical care and education.
The father told the DCF ongoing social worker that Jared
was stable in the father's home, but DCF could not verify that
because, as mentioned above, the father refused to allow DCF
social workers into his home to do a home assessment. In
addition, the father refused to sign releases so that DCF social
workers on this case could access Jared's medical and school
records. Asked at trial if Jared has any special needs or
mental health diagnoses, the father said no. Questioned
specifically about whether Jared has attention deficit
6 The judge noted that Jared came to live with the father in a city in Hampden County "apparently because the Worcester division of [DCF] was involved with [Jared], his mother, and stepfather." The father testified that he and Jared's mother reached a custody agreement in the Probate and Family Court. The record before us contains no documentation from either DCF or the Probate and Family Court about the circumstances of Jared's placement with the father. In those circumstances, we draw no inference that either DCF or the Probate and Family Court determined that the father was fit to parent Jared.
10 hyperactivity disorder, posttraumatic stress disorder,
oppositional defiant disorder, depression, and anxiety, the
father admitted that Jared had each of those diagnoses. The
father also admitted that under his care Jared was not seeing a
therapist; the father testified that clinicians had not returned
his calls and Jared was on wait lists. The father testified
that Jared had "mood swings" like a "typical[] teenager," and
their interactions sometimes escalated to shouting. From the
evidence of the father's relationship with Jared, the judge
concluded that if Elisa were placed in the father's custody she
would experience "denial or forced minimization of her needs,
followed by no real intervention, treatment, or support, and as
she got older, shouting matches."
We discern no abuse of discretion in the judge's
concluding, based on the evidence of the father's parenting of
Jared, that the father would not be a fit parent for Elisa. See
Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005) (judge may
"assess prognostic evidence derived from prior patterns of
parental neglect or misconduct in determining future fitness and
the likelihood of harm to the child" [quotation and citation
omitted]).
Moreover, even if the father's parenting of Jared were
exemplary -- a conclusion we do not reach based on the
11 incomplete record before us -- a parent may be fit to parent one
child but not another. See Adoption of Flavia, 104 Mass. App.
Ct. 40, 42, 52 (2024) (mother's reunification with eleven year
old who had lived for five years in residential treatment center
did not undermine analysis supporting her unfitness to parent
six year old twins who had lived in preadoptive home for two
years). See also Adoption of Cesar, 67 Mass. App. Ct. 708, 712
(2006). One important difference between Jared and Elisa was
that Elisa had been with her preadoptive parents since birth,
which would likely mean, as Dr. Bell testified and as discussed
below, that Elisa's trauma if separated from them would be
particularly acute.
c. Father's lack of DBT treatment. The father argues that
the judge gave insufficient weight to the programs he had
completed, including the forty-week domestic violence program.
We discern no abuse of discretion in the judge's weighing the
evidence of the father's programming, including his failure to
engage in DBT treatment.
Nearly three and one-half years before trial, Dr. Laney
diagnosed the father with borderline personality disorder and
recommended that he participate in DBT treatment. Although the
judge credited most of Dr. Laney's report, the judge declined to
credit the recommendation that the father could participate in
12 DBT "while he has custody of his daughter, [Elisa]." The judge
concluded that Dr. Laney "minimize[d] the physical violence
Father has engaged in with at least [five] different women,"
perhaps because she did not have access to the records of the
209A orders, and "focused more on Father's need for treatment
than [Elisa]'s health, safety, and emotional welfare."
The judge found that the father "has dabbled in therapy"
but had not yet engaged with a clinician skilled in DBT, and his
personality disorder was "virtually untreated." From evidence
that the father had been asked to engage in DBT for years but
had not yet begun it as of trial, the judge concluded that the
father had a "hollow commitment" to treatment and posed an
"imminent threat to [Elisa] if she were to be in his care and
custody." The judge credited Dr. Bell's testimony that
borderline personality disorder is particularly difficult to
treat because the illness causes the patient to misinterpret
others' actions as attacks or abandonment, leading to "panic-
driven" overreactions. The judge also credited Dr. Bell's
testimony that, even if the father were to begin
"wholeheartedly" engaging in DBT, the effect of treatment "would
not begin for a matter of years."
We discern no abuse of discretion in the judge's weighing
the father's failure to begin DBT treatment for his borderline
13 personality disorder. See Adoption of Leonard, 103 Mass. App.
Ct. 419, 423 (2023) (no error in finding that mother's untreated
mental health issues endangered child). The judge was not
required to credit the father's testimony that his reasons for
not having begun DBT were beyond his control, including that DCF
had not provided him with referrals; he had contacted multiple
agencies and was on wait lists; and that he was "in the process"
of doing "pieces" of DBT with his current therapist, who he
acknowledged might not be sufficiently qualified in DBT to meet
DCF's requirement. See Adoption of Jacob, 99 Mass. App. Ct.
258, 259, 265-266 (2021) (mother's failure to address mental
health issues, including her borderline personality disorder,
that impacted her ability to care for child was relevant factor
in fitness determination).
2. Testimony of bonding expert. Finally, the father
argues that the judge abused her discretion in ruling to admit
the testimony of Elisa's bonding expert, Dr. Bell, about the
risk of harm to Elisa if placed in the father's care. The
father contends that Dr. Bell's opinion was impermissibly
speculative and went to the ultimate issue in the case. We are
not persuaded.
Pursuant to G. L. c. 210, § 3 (c) (vii), the judge was
required to consider whether Elisa "has formed a strong,
14 positive bond" with her preadoptive parents, which "has existed
for a substantial portion of [her] life," whether the forced
removal of Elisa from that home would "likely cause serious
psychological harm to [Elisa,] and [whether] the [father] lacks
the capacity to meet the special needs of [Elisa] upon removal."
See Adoption of Rhona, 63 Mass. App. Ct. at 126 (bond between
child and preadoptive parents must be assessed in context of
harm to child from removal and biological parent's ability to
address that harm). See also Adoption of Katharine, 42 Mass.
App. Ct. 25, 29-30 & n.9 (1997) (as amended in 1992, § 3 [c]
directs judges to give weight to child's psychological bond with
substitute caretaker as factor in fitness assessment).
After a voir dire, the judge ruled to permit Dr. Bell to
testify as an expert in psychology, specifically bonding,
personality and mood disorders and their treatment, and their
impact on parenting. When Elisa's counsel asked for Dr. Bell's
opinion on the risk of harm to Elisa if she were placed in the
custody of the father, the father objected on the ground that
the question called for speculation, and the judge overruled the
objection. Dr. Bell testified that if Elisa were removed from
her preadoptive home she "would in effect become a child with
special needs" that would require "an extraordinarily skilled
level of parenting" to respond to her emotional distress and
15 angry outbursts. When Dr. Bell testified that in her opinion
the father due to his mental health issues did not have the
capacity to adequately parent Elisa, the judge sustained the
father's objection and struck the testimony on the ground that
it went to the ultimate issue. At another point, when counsel
for the mother asked if ceasing visits with the father would be
more traumatic for Elisa than removal from the preadoptive
family, the judge sustained the father's objection, ruling that
"the point is dangerously close to a comparative parenting
analysis." See Guardianship of Estelle, 70 Mass. App. Ct. 575,
580 (2007) ("we do not transfer a child from his or her parent
to other custodians merely because the latter may provide a more
advantageous environment for the child's upbringing").
Crediting Dr. Bell's testimony, the judge found that "to
remove this healthy, well-adjusted Child from a family setting
where all her needs are being met and place her in a setting
where her needs may be ignored, or worse yet, met with
aggressive opposition, would in fact create a child with a host
of social, emotional, and mental health needs that Father is
woefully unprepared to meet." We conclude that the judge
appropriately applied G. L. c. 210, § 3 (c) (vii), in
determining the father's unfitness as a parent to Elisa. See
16 Adoption of Rhona, 63 Mass. App. Ct. at 127-129.
Conclusion. We conclude that the judge had before her
ample clear and convincing evidence on which to base her finding
that the father was unfit to parent Elisa, that his unfitness as
a parent was likely to continue, and that termination of his
parental rights was in Elisa's best interests.
Decrees affirmed.
By the Court (Rubin, Massing & Grant, JJ.7),
Clerk
Entered: October 23, 2024.
7 The panelists are listed in order of seniority.