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-757
ADOPTION OF GURPRIT (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial, a Juvenile Court judge found the
mother and father unfit to parent their three children and
terminated their parental rights. The mother, the father, and
two of the children (Gurprit and Jamaal) appeal, arguing that
the Department of Children and Families (DCF) failed to present
clear and convincing evidence of unfitness and that the judge
abused her discretion in terminating the mother's and the
father's parental rights. The mother also challenges the
judge's order on posttermination visitation. We affirm.
Background. We summarize the judge's extensive factual
findings, reserving some details for later discussion. The
mother has been involved with DCF both as a child and as a
1Adoption of Liza and Adoption of Jamaal. The children's names are pseudonyms. mother. She has been diagnosed with posttraumatic stress
disorder (PTSD) and anxiety, which caused her to attempt suicide
twice during her youth and multiple times thereafter, including
during the pendency of this case.
The mother and the father started dating in 2009 when she
was a freshman in high school and he was a sophomore. Their
first child, Gurprit, was born in 2010, and their younger two
children, Liza and Jamaal, were born in 2012 and 2013
respectively. The mother and the father's relationship was
fraught with domestic violence. The father was charged with
assault and battery against the mother while she was pregnant
with Gurprit; less than two years later, he was charged with
assault and battery by means of a dangerous weapon against the
mother. The mother was granted restraining orders against the
father after these incidents. The mother was also the
perpetrator of some of the violence and was later charged with
assault and battery against the father.
DCF first became involved with the family in late 2012 when
the mother filed a report under G. L. c. 119, § 51A (51A report)
against herself, stating that she had physically abused Gurprit
on three occasions. The mother, who was then living in the home
of her great-grandmother, with whom she had a tumultuous
relationship, disclosed that she hit Gurprit because he was
2 aggravating the great-grandmother. After an investigation DCF
supported the allegations.2
Four months later, two 51A reports were filed alleging
medical neglect of Gurprit by the mother. By that time Gurprit
had been diagnosed with a seizure disorder, a heart murmur, and
a cancerous tumor on his kidney, which required surgery,
chemotherapy, and radiation. After an investigation DCF
supported the allegations, finding that the mother failed to
make medical appointments for Gurprit, was not consistently
administering his medications, and was not available to his
medical providers.
In 2014 multiple 51A reports were filed, and supported by
DCF, based on the children's exposure to physical violence
between the father and the mother. During one incident in June
2014, the father punched the mother in the face and pushed
Gurprit off the bed when he tried to intervene, causing him to
hit his head on an open drawer as he fell. The father then
pulled the mother off the bed and punched her again. The father
fled the scene before the police arrived and was arrested and
2 As relevant to this appeal, DCF's regulations provide that a 51A report will be "supported" if "[t]here is reasonable cause to believe a child(ren) was abused or neglected, or was or is at substantial risk of being abused or neglected" and "[t]he action or inactions by the parent(s) . . . place the child(ren) in danger or present substantial risk to the child(ren)'s safety or well-being." 110 Code Mass. Regs. § 4.32(2)(a) (2009).
3 charged with assault and battery the next day. Four months
later, the parents got into another physical altercation while
the children were sleeping. The children woke up, became
scared, and started crying.
In 2015 multiple 51A reports were filed, and supported by
DCF, for medical neglect of Gurprit. On two occasions (in April
and July 2015), Gurprit was found unresponsive and transported
to the hospital, where providers determined that he had
hypoglycemia and was not eating enough. DCF's investigation
also revealed that both parents repeatedly failed to take
Gurprit to his neurology, oncology, and pediatric appointments.
This led to DCF filing a care and protection petition on behalf
of Gurprit on July 10, 2015. On July 30, 2015, Gurprit was
placed in DCF custody.
In September 2015 three 51A reports were filed, and
supported by DCF, for neglect of Liza and Jamaal by the mother.
While the mother left the children unattended, a neighbor's
child kicked and punched Jamaal, causing swelling and bruising
on his face and head, abrasions on his back and knee, and
scratches on his face and chest. Jamaal was transported to the
hospital where a doctor concluded that, contrary to the mother's
account, the extent of Jamaal's injuries indicated that the
assault had lasted for far longer than a few minutes. On
September 10, 2015, DCF filed an emergency care and protection
4 petition on behalf of Liza and Jamaal, and both children were
placed in foster care.
In February 2016 the mother obtained a restraining order
against the father. The father had repeatedly stalked and
threatened to kill the mother after she said that she no longer
wanted to be with him. In April 2016 the father was arrested
for violating the restraining order and held for six months
after a dangerousness hearing. In June 2017 the mother was
granted another restraining order against the father after he
threatened to kill her and the children. From 2016 to July
2019, the father had no contact with the children and did not
provide any support to the mother.
Meanwhile, after the children were removed, the mother
engaged in her action plan tasks, including individual therapy,
supportive care, and parenting work. As a result the children
were reunified with the mother between June and September 2017
and custody was returned to her in December 2017. At that time
the mother was living with her wife, Ana, whom she had recently
married. The children remained in the mother's custody for only
one year, during which time multiple 51A reports were filed
alleging neglect of the children by the mother. Gurprit
reported to the DCF social worker that he saw the mother and Ana
fight twice and that on one of those occasions the mother
threatened Ana with a wrench. Jamaal reported that the mother
5 and Ana screamed and hit each other when they were mad, and all
three children stated that the mother told them not to tell
anyone what was happening in the home. DCF supported the
allegations of neglect and further supported a 51A report
alleging that the mother abused Gurprit by hitting him on the
back of his neck with enough force to leave a bruise.
In December 2018 the mother asked DCF to put the children
in foster care because she had nowhere to live and was unable to
care for them. DCF took custody and then filed the underlying
care and protection petition on December 19, 2018. In July 2019
the father became aware of the petition through newspaper
publication and contacted his attorney.
The children experienced difficulties transitioning to
foster care. Gurprit engaged in self-injurious behavior, made
homicidal statements, watched video recordings on YouTube about
suicide, and attempted to drown another foster child in the
bathtub. After he broke multiple chairs at school, he was
admitted to a community-based acute treatment (CBAT) unit at St.
Ann's Home in Methuen, where his behavior improved. Liza and
Jamaal also had multiple behavioral outbursts necessitating
placements in several different foster homes. Each was also
admitted at one point in 2019 to a CBAT unit at the Walker Home
in Needham.
6 DCF planned to reunify Jamaal with the father in October
2020. At the last minute, however, the father cancelled the
reunification, stating that his living situation had become
unstable because he had an argument with his then live-in
girlfriend. Following this failed reunification, Jamaal's
mental health deteriorated. He attempted suicide and was
admitted to a hospital where he was restrained and medicated
with an antipsychotic. Jamaal, who was seven years old at the
time, stated that he was "sad not to go live with dad" and that
"nobody wants me."
After the children's second removal, the mother continued
to experience volatility in her relationships and housing
instability and also began drinking heavily while smoking
marijuana often, which she continued to do until at least 2021.3
In May 2019 the mother and Ana had a physical altercation,
resulting in the mother's arrest for assault and battery and
incarceration for thirty days. The mother and Ana reunited a
few months later, but their relationship continued to be marked
by violence. From January 2019 to January 2021, the mother's
housing situation remained unstable, as did her employment. She
3 To the extent Gurprit and Jamaal challenge the judge's factual findings regarding the mother's alcohol and marijuana use, we conclude that the findings are supported by the mother's testimony and are not clearly erroneous. See Adoption of Ilona, 459 Mass. 53, 59 (2011).
7 was fired from one job in 2019 for an undisclosed reason and
from another in 2020 for calling a coworker a "dog."
In late 2020 the mother moved into a shelter with the hopes
of reunifying with Jamaal. In January 2021 DCF placed Jamaal
with the mother, but their reunification lasted less than six
months. During this time Jamaal was often falling asleep at
school because the mother was bringing him with her to work at
night; he also made homicidal and suicidal statements at school,
which led to his hospitalization. In April 2021 the mother and
Ana had a physical altercation at the shelter, which Jamaal
witnessed.
In June 2021 the mother became agitated at shelter staff
during an unsupervised visit with Liza. The mother met with a
DCF social worker and told him that she had many issues with the
shelter and wanted to stay at a hotel. When the social worker
said he would have to take Jamaal if the mother did not return
to the shelter, the mother fled with Jamaal. Liza became very
upset and started crying. After speaking with the police, the
mother met the social worker at a police station, where the
situation escalated. The mother yelled at the officers that
they would have to put a bullet in her head in order to take
Jamaal, reached for their guns, and threatened to commit
"suicide by cop." The mother was holding Jamaal, who was crying
and yelling at her to calm down and listen to the officers.
8 Eight officers were required to restrain the mother and carry
her to an ambulance. Jamaal, who was significantly traumatized
by this incident, was returned to foster care but soon placed in
a CBAT unit at St. Ann's Home after he punched his foster
parents, locked himself in the bathroom, and tried to jump out
the window. About five months later, the mother tried to commit
suicide and was involuntarily hospitalized. In October 2021 DCF
changed its goal for the children from reunification to
adoption.
At the time of trial in mid-2022, Gurprit was in fifth
grade and had recently transitioned to a group home at St. Ann's
Home. He had diagnoses of PTSD, attention deficit disorder
(ADD)/attention deficit hyperactivity disorder (ADHD),
adjustment disorder with disturbance of conduct, and an
unspecified depressive disorder. He was taking various
medications and required support to manage his emotional
outbursts, but had a strong bond with the staff at St. Ann's
Home and was making progress in therapy. Liza was living in a
foster home that she had been in since 2020.4 She was enrolled
in third grade at a therapeutic school but had improved to such
an extent that she was ready to enter a public school. She had
diagnoses of ADD/ADHD and oppositional defiant disorder and was
4 After the trial concluded, Liza's foster placement "disrupted," and she was placed at St. Ann's Home.
9 attending weekly meetings with her school counselor while on
waitlists for therapy. Jamaal was in second grade at the St.
Ann's Home residential school, where he still behaved
aggressively despite weekly therapy. He had diagnoses of an
unspecified trauma and stressor disorder, disruptive mood
dysregulation disorder, and ADD/ADHD. DCF had not yet
identified a preadoptive home for the children, but the adoption
worker testified that she was confident in her ability to find a
home based on her success in placing children with similar needs
in the past.
Discussion. 1. Unfitness. Before terminating a parent's
rights, the judge must first determine whether there is "clear
and convincing evidence, based on subsidiary findings proved by
at least a fair preponderance of evidence, that the parent is
currently unfit to care for the child." Adoption of Jacques, 82
Mass. App. Ct. 601, 606 (2012). "[T]he idea of 'parental
unfitness' means 'grievous shortcomings or handicaps' that put
the child's welfare 'much at hazard.'" Adoption of Katharine,
42 Mass. App. Ct. 25, 28 (1997), quoting Petition of the New
England Home for Little Wanderers to Dispense with Consent to
Adoption, 367 Mass. 631, 646 (1975). "Parental unfitness is
determined by considering a parent's character, temperament,
conduct, and capacity to provide for the child's particular
10 needs, affections, and age." Care & Protection of Vick, 89
Mass. App. Ct. 704, 706 (2016).
We discern no error in the judge's determination that DCF
met its burden of establishing the mother's unfitness. The
mother has a history of significant domestic violence in her
relationships, both as a victim and as a perpetrator, and the
children were often exposed or directly subjected to the
violence. By the time of trial, the mother and Ana were
separated, but remained married. The mother did not participate
consistently in domestic violence services, and the judge found
that she had not gained insight into the serious impact that
domestic violence had on the children. The mother's failure to
address her history with domestic violence demonstrated her
inability to prioritize the children's welfare and safety. See
Custody of Vaughn, 422 Mass. 590, 595 (1996) (witnessing
domestic violence is itself "a distinctly grievous kind of
harm"); Adoption of Paula, 420 Mass. 716, 729-730 (1995)
(finding of unfitness supported by evidence that mother was
unable to comprehend effect of abuse on children and
participation in services had not appreciably improved her
parenting capacity).
The mother also had serious mental health and anger
management issues that she failed to address. She reported
having suicidal thoughts in the weeks leading up to trial but
11 was not in treatment and did not have a psychiatrist.
Throughout the proceedings, although the mother engaged in some
individual therapy, her participation in services was largely
inconsistent. She did not engage in anger management education,
despite her history of lashing out at romantic partners, DCF
workers, shelter staff, coworkers, and family members, including
the children themselves. See Guardianship of a Minor, 1 Mass.
App. Ct. 392, 396 (1973), quoting Richards v. Forrest, 278 Mass.
547, 552 (1932) ("Violence of temper . . . might constitute
unfitness"). As the judge found, the mother's volatile behavior
"alienates all potential sources of support in raising her
children."
This constellation of factors in turn diminished the
mother's ability to effectively parent the children and provide
them with a safe home environment. The mother has not had
stable housing since 2015, which the judge found was directly
attributable to her struggles with anger management and
unaddressed mental health issues. The mother's frequent
physical and verbal altercations with shelter staff and people
with whom she was living often required the mother and the
children to seek alternative housing, causing the children
substantial trauma and leaving them homeless on several
occasions. The judge further found a direct correlation between
the mother's neglect of the children and their struggles with
12 their own mental health. Even by the time of trial, however,
the mother could not accurately identify the children's
diagnoses, answer questions about their medications, or describe
their educational needs. See Adoption of Oliver, 28 Mass. App.
Ct. 620, 625 (1990) (mother properly found unfit where she had
little understanding of child's substantial needs). All of this
evidence taken together clearly and convincingly established
that the mother is unfit.
Clear and convincing evidence also supported the judge's
determination that the father is unfit. As discussed, the
father's relationship with the mother was marked by extensive
domestic violence, which often occurred in front of the children
or involved them. See Custody of Vaughn, 422 Mass. at 595.
When the mother tried to end their relationship in 2016, the
father threatened violence against her and the children. He
then effectively abandoned the children for three years, despite
knowing that the mother was not providing them with a safe and
stable home environment. See Adoption of Scott, 59 Mass. App.
Ct. 274, 275 n.3 (2003) (finding of unfitness supported by
evidence that mother left child "with inappropriate caretakers
for extended periods").
Even after the father reentered the children's lives in
July 2019, he showed that he placed his "own needs above those
of the children." Adoption of Daniel, 58 Mass. App. Ct. 195,
13 202 (2003). Although DCF was willing to try reunifying the
father with Jamaal, the father cancelled the reunification at
the last minute, causing Jamaal to suffer extreme emotional
harm. And, like the mother, the father had little insight into
the children's substantial needs. He could not articulate any
of the children's diagnoses, medications, or educational needs
and was unwilling to seek out this information from the
children's therapists, educators, and medical providers. He was
also inconsistent with services and was unable to secure stable
housing throughout the pendency of the case. Furthermore, at
trial, the father took the position that custody of the children
should be returned to the mother while he would help with
childcare. The judge was thus warranted in concluding that the
father saw himself as a "last resort" for the children and that
he was "not willing to step up and be a full time parent." This
evidence clearly and convincingly establishes the father's
unfitness. See Adoption of Holly, 432 Mass. 680, 690 (2000)
(father properly found unfit where he lacked insight into
children's needs and could not articulate concrete plan to care
for them).5
5 The father assigns error to a number of the judge's subsidiary findings. We have reviewed each of his challenges and conclude that they "take issue with the judge's assessment of credibility and the weight of the evidence, to which we accord substantial deference." Adoption of Peggy, 436 Mass.
14 We are unpersuaded by the appellants' arguments that the
evidence of the parents' unfitness was stale. The judge had
evidence before her that, even at the time of trial, the parents
lacked insight into how their behavior affected the children and
did not understand the children's resulting significant needs.
As the judge found, the parents had not participated
consistently in services and had not "sufficiently dealt with
their anger management so as to prevent future harm to the . . .
children." See Adoption of Flavia, 104 Mass. App. Ct. 40, 49
(2024) ("the parents' significant history of domestic violence
was not stale even though the relationship had improved by the
time of trial, because in their testimony both parents denied
and minimized the abuse and its effects on all three children").
Thus, this is a case where "[p]rior history . . . has prognostic
value." Adoption of Jacques, 82 Mass. App. Ct. at 607, quoting
Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). The
parents engaged in a decade-long pattern of volatility,
instability, and neglect of the children and showed no
meaningful improvement through participation in services. DCF's
690, 702 (2002). We see no basis on which to disturb the judge's view of the evidence. In addition, we need not reach Gurprit's and Jamaal's claim that the judge impermissibly shifted the burden of proof to the father, as they do not support the claim with adequate discussion. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
15 attempts to reunify the mother with the children failed, as did
its attempt to reunify the father with Jamaal. The judge was
entitled to rely on this past history, which had continuing
vitality, in assessing the parents' fitness. See Adoption of
Ulrich, 94 Mass. App. Ct. 668, 676 (2019) ("a judge can consider
a pattern of past conduct to predict future ability and
performance" [quotation and citation omitted]).
2. Termination. Once a parent is found unfit, the judge
must then determine whether the child's best interests will be
served by terminating the parent's legal relationship with the
child. See Adoption of Nancy, 443 Mass. 512, 515 (2005). We
accord "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 Ilona, 459 Mass. 53, 59 (2011).
Here, the judge was within her discretion to find that the
mother's and the father's unfitness was not temporary and that
termination was in the children's best interests, in light of
each parent's failure to meaningfully address the issues that
led to the children's removal, as discussed above. See Adoption
of Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a
parent's unfitness is not temporary if it is reasonably likely
to continue for a prolonged or indeterminate period"). Contrary
16 to Gurprit's and Jamaal's argument, the judge did consider their
desire for reunification but was warranted in concluding that
DCF's plan of adoption offered the best hope for their future
stability and success. See Adoption of Nancy, 443 Mass. at 518.
(children's wishes in custody determinations should be
considered by judge but are "neither decisive . . . nor outcome
determinative"). Nor are we persuaded by the mother's argument
that DCF's plan was unrealistic because it "was simply not
viable" to identify a single adoptive resource for all three
children. The judge expressly credited the adoption worker's
testimony that she was confident she could find a home where the
children could live together, given her past success in locating
homes for children with similar needs. We defer to the judge's
assessment of witness credibility. See Adoption of Larry, 434
Mass. 456, 462 (2001).
3. Visitation. Following entry of the termination
decrees, the judge scheduled additional evidentiary hearings to
address visitation. Meanwhile, both parents continued to have
visits with the children. After the hearings, which were held
in early 2023, the judge ordered that the mother have four
posttermination visits per year, while affording the father
monthly posttermination visitation. The judge deferred entering
an order on postadoption visitation until adoptive resources
were identified for the children.
17 The mother challenges the judge's decision to order only
quarterly posttermination visitation, arguing that the judge
should have credited the opinion of the mother's expert witness
that monthly visitation would be appropriate.6 Whether "to order
posttermination or postadoption visits is left to the judge's
discretion." Adoption of West, 97 Mass. App. Ct. 238, 247
(2020). We discern no abuse of discretion here. The mother's
expert had not interviewed the children in over one year. The
expert therefore had not spoken with the children after the
mother's posttermination visit in November 2022, which, as the
judge found, was "disastrous" and "resulted in police
intervention and a significant disruption" for the children.
Indeed, the visit ended with "all three children having to be
taken by ambulance from the DCF office to be crisis screened at
the hospital," where Liza had to be physically and chemically
restrained. In light of this evidence, the judge's decision to
limit the mother's posttermination visits to four times per year
was well within her discretion. For the same reason, we see no
merit to the mother's argument that the judge abused her
discretion by affording the father more frequent visits.
6 While this appeal was pending, DCF filed a motion in the Juvenile Court to modify the posttermination visitation order. Because the motion has not yet been resolved, we address the visitation issues as they currently stand.
18 Finally, we are unpersuaded by the mother's claim that the
judge should have made an order for postadoption visitation.
The judge appropriately reserved that issue for further hearing
after the identification of preadoptive homes for the children.
See Adoption of Jacques, 82 Mass. App. Ct. at 610.
Decrees affirmed.
By the Court (Shin, Grant & Smyth, JJ.7),
Clerk
Entered: August 20, 2024.
7 The panelists are listed in order of seniority.