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-303
ADOPTION OF FERDINAND.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree of the Juvenile Court
finding her unfit to parent her son, Ferdinand (child), and
terminating her parental rights as to the child.2 She also
appeals from the judge's decision denying posttermination and
postadoption visitation with the child. She argues that (1)
there was a lack of clear and convincing evidence to support the
termination of her parental rights; (2) the judge improperly
shifted the burden to her "to prove her mental fitness"; (3) the
judge abused her discretion by crediting statements of the
father, given the father's abuse of the mother; and (4) the
judge's decision denying posttermination and postadoption
visitation was arbitrary and capricious. We affirm the decree
but vacate the order denying visitation.
1 A pseudonym. 2 The father did not appeal from the termination of his parental rights. Discussion. 1. Evidence supporting termination. The
mother first argues that there was a lack of clear and
convincing evidence to support the termination of her parental
rights because many of the judge's findings were clearly
erroneous and because the judge impermissibly relied on hearsay
evidence. We disagree.
At the outset, we consider the mother's argument that the
judge relied on imbedded hearsay when she relied on statements
made by the hospital social worker, which were contained in
reports filed with the Department of Children and Families (DCF)
pursuant to G. L. c. 119, § 51A (51A reports). DCF identified
the hospital social worker by her first and last name in
exhibits properly admitted at trial, including an affidavit of a
DCF social worker and at least two 51A reports.3 The Supreme
Judicial Court has held that "first- and second-level hearsay
contained within DCF reports and official DCF records is
admissible for statements of primary fact, so long as the
hearsay source is specifically identified in the document and is
available for cross-examination, should the party challenging
the evidence request to do so." Adoption of Luc, 484 Mass. 139,
153 (2020). As such, there was no error in the judge's reliance
3 "51A reports are admissible to 'set the stage' to explain how [DCF] became involved with the family." Adoption of Chad, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).
2 on the 51A reports that clearly identified the hospital social
worker. See id.
"To terminate parental rights to a child and to dispense
with parental consent to adoption, a judge must find by clear
and convincing evidence, based on subsidiary findings proved by
at least a fair preponderance of evidence, that the parent is
unfit to care for the child and that termination is in the
child's best interests." Adoption of Bea, 97 Mass. App. Ct.
416, 421-422 (2020), quoting Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). "In determining whether the best interests
of the children will be served by issuing a decree dispensing
with the need for consent, a court shall consider the ability,
capacity, fitness, and readiness of the child's parents . . ."
(quotation and citation omitted). Adoption of Jacques, supra.
"On appeal, '[w]e give substantial deference to a judge's
decision that termination of a parent's rights is in the best
interest of the child, 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 Bea, supra at 422,
quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).
3 Here, the judge heard from four witnesses4 and reviewed
forty-four exhibits over the course of four days of trial.5 The
exhibits included, inter alia, court activity record information
(CARI) reports for both the mother and the father, an affidavit
from a DCF social worker with knowledge of the child's case,
five court reports authored by a DCF social worker, the child's
hospital records, eleven 51A reports, numerous assessments and
action plans prepared by DCF, and records of the Randolph and
Brockton Police Departments.
These exhibits and testimony were sufficient to support, by
a fair preponderance of the evidence, the judge's findings of
fact, which she described generally in the summary of her
decision:
"Mother and Father have a tumultuous relationship ridden with physical and sexual abuse. . . . Mother has a significant history of substance abuse, mental illness and domestic violence. . . . Mother has not had stable housing suitable for [the child] throughout the pendency of this case and has never demonstrated an ability to maintain a consistently safe home, free from domestic violence. Mother continues to engage in violent relationships, whether romantic or familial. . . . Mother has selectively engaged in services [offered by DCF], attending some programs but refusing to avail herself of others. Any services Mother engaged in have been ineffective. She has never taken responsibility for her actions or acknowledged her issues, but instead blames others."
4 The trial witnesses were (1) the mother; (2) the father; (3) an ongoing social worker employed by DCF; and (4) an adoption social worker employed by DCF. 5 The trial occurred on four nonconsecutive days from March 12,
2021, to July 13, 2021. Witnesses testified on March 12, June 1, and June 3, and closing arguments were heard on July 13.
4 See Adoption of Bea, 97 Mass. App. Ct. at 421-422. These
findings, in turn, supported the judge's ultimate conclusion:
"At this time, the Court finds there is clear and convincing evidence that Mother is not fit to care for the child, nor will she be in the foreseeable future. The Court also finds that it is in the best interests of [the child] that both Mother's and Father's parental rights be terminated, and that the child finally be afforded permanence, safety, and stability through adoption."
See id.
The mother asserts that the judge's findings of fact are so
riddled with clearly erroneous findings that "[t]here was a lack
of clear and convincing evidence to support a termination of
[her] parental rights." See id. at 421-422. She points to many
alleged inconsistencies in the judge's findings and conclusions.
Without reciting them individually, these alleged
inconsistencies amount to arguments that the evidence adduced at
trial did not support the judge's findings that (1) the mother
has a history of substance abuse that impacted her ability to
care for the child; (2) the mother had previous interactions
with the legal system; (3) the mother failed to obtain
recommended prenatal care; and (4) it was, at times, difficult
to ascertain the mother's compliance with her service plans
(also referred to as action plans). Concluding that there was
indeed sufficient evidence to support these findings, we are not
persuaded.
5 The record at trial was replete with properly admitted
evidence and testimony supporting the judge's conclusion that
the mother had significant issues with substance abuse that
severely impacted her ability to care for the child. The child
was born in June 2019. The 51A report dated June 7, 2019,
stated that the mother had tested positive for norfentanyl6 on
two occasions in April 2019 and at least one of these tests was
further documented in the child's medical records. The child's
medical records also revealed that he was born with neonatal
abstinence syndrome. Although the mother asserts that her
positive test for norfentanyl was the result of skin-to-skin
contact with the father, the judge was free to discredit this
assertion.7 See Adoption of Quentin, 424 Mass. 882, 886 (1997)
("the judge's assessment of the weight of the evidence and the
credibility of the witnesses is entitled to deference"). DCF
also documented an incident that occurred shortly after the
child's birth, in which the mother and the father were observed
leaving the hospital at around 1:30 A.M. and did not return
until 3:15 A.M., at which point they appeared to hospital staff
to be under the influence of narcotics. The following morning,
6 A DCF trial exhibit stated that "when Norfentanyl is present in a urine tox screen, that is indicative of ingestion of fentanyl." 7 A nurse from the mother's obstetrician's office told a DCF
social worker that second-hand exposure to fentanyl cannot cause a positive test for norfentanyl, as the mother claimed.
6 the mother fell asleep while caring for the child. This
evidence, taken together, supported the judge's findings with
respect to the mother's substance abuse and its impact on the
child. See Adoption of Jacques, 82 Mass. App. Ct. at 606.
The mother further argues that the judge erroneously
concluded that she had a "criminal history spanning from 2012-
2020." Her CARI report, which was appropriately entered in
evidence, states that she was charged with shoplifting in 2012
and assault and battery in 2020. Whatever the disposition of
those cases, we discern no error in the judge's characterization
of her undisputed interactions with the criminal justice system
as "[having] a criminal history."8
The mother further challenges the judge's findings that she
did not obtain adequate prenatal care prior to giving birth to
the child. Although the mother claimed to a DCF social worker
during a home visit that she obtained care at a clinic in
Brockton before switching to a different obstetrician's office,
see note 7, supra, the judge was free to discredit that claim.
See Adoption of Quentin, 424 Mass. at 886. A DCF social worker
spoke with a representative of the obstetrician's office, who
told her that the mother was not compliant with her prenatal
8 Evidence before the judge also described several instances when the police intervened in disputes involving the mother and others, including both of the mother's parents and men with whom the mother had relationships.
7 care as she only made four appointments. The mother's
obstetrician told the same worker that the mother did not begin
prenatal care until her twenty-ninth week of pregnancy. The
judge was free to credit statements by the mother's caregivers
and to discredit the mother's contrary assertions.9 See id.
2. Mental health issues. Next, the mother contends that
the judge improperly shifted the burden of "prov[ing] her mental
fitness" onto her when the judge noted that the mother signed
releases permitting her caregivers to provide only limited
information about her mental health treatment to DCF. She
asserts that she has a statutory right to the confidentiality of
her mental health medical records and that the judge erred by
drawing a negative inference from her refusal, on the advice of
her attorney, to be more forthcoming with respect to her mental
health treatment. She further asserts that DCF had an
obligation to provide her with more active assistance in
obtaining a psychological evaluation. We discern no error.
9 The mother also challenges the judge's finding that "[i]n the Fall of 2019, it was difficult to confirm Mother's compliance with the service plan." Assuming without deciding that the evidence before the judge supported a finding that DCF was aware the mother was in compliance with portions of her service plan at that time, such compliance would not end the inquiry. There was sufficient support for termination of her parental rights for other reasons, including findings with respect to her persistent mental health issues, substance abuse, financial and housing instability, and interactions with law enforcement.
8 "The burden of proof in care and protection cases and
proceedings to dispense with consent to adoption is on the
petitioner to prove current parental unfitness by clear and
convincing evidence." Adoption of Larry, 434 Mass. 456, 470
(2001). "The burden never shifts to the parents." Id.
Here, the burden to prove the mother's mental health issues
was properly placed on DCF. DCF entered evidence showing that
the mother has suffered from a history of posttraumatic stress
disorder, obsessive compulsive disorder, anxiety, depression,
and a chronic sleep disorder.10 The judge was entitled to credit
this evidence and to consider it in her overall evaluation of
the mother's fitness. See Adoption of Jacques, 82 Mass. App.
Ct. at 606. See also Adoption of Bea, 97 Mass. App. Ct. at 422.
DCF provided the mother with ample opportunity to address these
issues through participation in mental health treatment
programs, and the mother could have rebutted DCF's allegations
by showing compliance with these programs or any other efforts
the mother engaged in to address and improve her overall mental
health. There was no error where the judge took note of the
mother's failure to participate in DCF's efforts to address her
10In her brief before this court, the mother cited her sleep disorder as an explanation for why she repeatedly fell asleep while holding the child in the hospital. Of course, credibility determinations are left to the sound discretion of the judge. See Adoption of Quentin, 424 Mass. at 886.
9 mental health challenges as part of its holistic evaluation of
her fitness in the context of mental health treatment. A judge
may permissibly draw an adverse inference from the refusal to
provide mental health treatment records to DCF. See Adoption of
Bea, supra at 419 n.9 (judge drew adverse inference from
mother's refusal to provide results of psychological evaluation
to DCF). Thus, there was no error with respect to any negative
inference drawn from the mother's refusal to sign releases
enabling DCF to monitor her mental health treatment.
The mother's argument with respect to DCF's lack of effort
in helping her to obtain a psychological evaluation is also
unavailing. DCF added engagement in a psychological evaluation
to the mother's action plan dated October 22, 2020. Toward that
end, DCF provided the mother with a referral in order to permit
her to obtain such an evaluation. Thereafter, the mother
reported that she had scheduled an evaluation, however, she did
not sign the requisite release required for DCF to verify her
claim. It was not until March 2021 that the mother signed a
release that was sufficient to permit a DCF social worker to
confer with her mental health provider in order to corroborate,
inter alia, the mother's claims. As a result, the social worker
learned that the mother had not attended her scheduled
evaluation and had not made an appointment for another one
because she claimed difficulty completing the intake forms. The
10 social worker reached out to the mother's provider to attempt to
assist in arranging an appointment, but she was informed that
the provider had dropped the mother as a client.
It is undisputed that "[w]hen a child is removed from his
or her home and placed into the custody of [DCF], the department
is required by statute to make ongoing 'reasonable efforts to
make it possible for the child to return safely to his [or her]
parent or guardian.'" Care & Protection of Rashida, 488 Mass.
217, 218 (2021), quoting G. L. c. 119, § 29C. "Its duty,
however, [is] contingent upon the mother's fulfillment of her
own parental responsibilities." Adoption of Mario, 43 Mass.
App. Ct. 767, 774 (1997). Where the mother missed a scheduled
psychological exam, failed to schedule a makeup exam, and waited
at least four months to sign the release necessary to permit DCF
to monitor her compliance with this portion of the family action
plan, we discern no wrongdoing on the part of DCF, see Adoption
of Mario, supra, nor did the judge err in considering the
mother's noncompliance as part of an overall evaluation of the
mother's fitness, see Adoption of Jacques, 82 Mass. App. Ct. at
606.
3. Father's testimony. Additionally, the mother argues
that the judge's decision to credit the father's testimony with
respect to the nature of his relationship with the mother was
arbitrary and capricious because the father had a documented
11 history of domestic violence involving the mother and displayed
forceful and erratic behavior during his testimony. She further
asserts that the judge erred in failing to acknowledge that she
had ended her relationship with the father and in failing to
recognize the difficult and cyclical nature of violent domestic
relationships generally. As the mother's argument here
continues to dispute the validity of the judge's factual
findings, we "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 Bea, 97 Mass. App. Ct. at
422, quoting Adoption of Ilona, 459 Mass. at 59. Again, we
discern no error.
There can be no doubt that the mother and the father shared
a relationship rife with domestic violence. One of the most
serious instances of alleged violence occurred in August 2020.
Unsurprisingly, the mother and the father provided conflicting
testimony as to the events of the episode, in which the mother
asserts she was kidnapped and raped by the father, and the
father asserts the mother remained with him consensually and
threatened to harm herself. The mother was unable to provide an
explanation as to how the father was able to locate her at the
start of the incident and repeatedly refused to provide police
with access to a possible corroborating witness. A hotel guest
saw the mother chase the father out of a hotel room, and the
12 mother was observed hanging onto the father's car door as he
attempted to drive away. The judge noted that the father was
convicted of kidnapping, assault by means of a dangerous weapon,
and violating a restraining order. However, she credited the
father's testimony that the incident began when the mother
initiated contact with him. Given these facts, we discern no
error in the judge's assessment of the mother's and the father's
credibility regarding the competing testimony. See Adoption of
Quentin, 424 Mass. at 886.
4. Visitation. Finally, the mother challenges the judge's
decision not to order posttermination or postadoption contact
with the child.
Following the trial, on July 29, 2021, the judge issued an
"Order of Adjudication and Issuance of Decrees," in which she
found "[t]hat, given the lack of an identified adoptive resource
at this time, it is in the child's best interest to maintain
contact with his mother," and ordered "post termination contact
of a minimum of two visits per year between mother and child."
On October 28, 2021, however, the judge issued her "Findings,
Adjudication, Commitment Orders, and Order to Issue Decrees,"
finding, inter alia,
"no evidence to suggest visits with Mother would be in [the child's] best interest. The Court finds that Mother's lack of cooperation with the Department, refusal to consistently engage in or benefit from services, failure to acknowledge substance abuse issues, housing instability, and
13 inconsistency in visitation with [the child] are significant factors in concluding that post- termination/post-adoption contact is not in [the child's] best interest."
On the record before us, we are unable to reconcile the
discrepancy in the judge's July 29 and October 28 decisions.11
Contrast Adoption of Edgar, 67 Mass. App. Ct. 368, 372-373
(2006) (judge's revised order denying visitation reflected
"changed circumstances and evolving best interests" of
children). We therefore remand for a clarification of the
posttermination and postadoption order of visitation. In light
of the passage of time, the judge may take additional evidence
to determine the current best interests of the child.
Conclusion. The decree is affirmed. The order of
posttermination and postadoption visitation is vacated and the
matter is remanded for further proceedings consistent with this
memorandum and order.
So ordered.
By the Court (Meade, Desmond & Hand, JJ.12),
Clerk
Entered: July 21, 2023.
11 The judge recognized in both decisions that as of the end of the trial, there was no preadoptive home for the child. 12 The panelists are listed in order of seniority.