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-483
ADOPTION OF HARRY (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and father each appeal from decrees of the
Juvenile Court terminating their parental rights to their two
children, Harry and John, and approving the adoption plans of
the Department of Children and Families (department). On
appeal, the mother argues that the evidence did not clearly and
convincingly establish that she was unfit, that her unfitness
was not temporary, and that termination was in the children's
best interests. The father does not contest the judge's finding
of his current unfitness, but like the mother, argues that it
was error to conclude that his unfitness was not temporary, and
maintains that termination was not in the best interests of the
children. Both parents also claim that the department failed to
make reasonable efforts to reunify them with the children. We
affirm.
1 Adoption of John. The children's names are pseudonyms. Background. The mother and father are the parents of Harry
(born 2014) and John (born 2016). The children have two older
half-siblings (half-siblings), who are the children of the
mother and her former partner, Alan (a pseudonym). 2 At the time
of trial, the mother was in a relationship with Walter (a
pseudonym).
In May 2018, the department filed the underlying care and
protection petition and obtained emergency custody of the
children based on evidence of substance misuse and domestic
violence in the mother's home. In April 2019, the department's
goal for the children changed from reunification to adoption.
An eight-day trial was held between October and December 2021;
the mother attended only the first four of those days and the
father attended the first two days and the final day. After
hearing testimony from five witnesses, including the mother and
father, and admitting seventy-one exhibits, the judge found the
mother and the father unfit, found that their unfitness was
likely to continue, terminated their parental rights, and
approved the department's proposed adoption plans for the
children. The judge further found that a significant emotional
2 Although all four of the mother's children were the subject of decrees terminating the mother's parental rights, a joint motion to dismiss that portion of the mother's appeal related to the two older children was allowed by this court. Alan is not a party to this appeal.
2 relationship existed between each parent and the children and
separately ordered posttermination visitation between each
parent and the children. 3
Discussion. 1. Termination of mother's rights. a.
Mother's current fitness. "In deciding whether to terminate a
parent's rights, a judge must determine whether there is clear
and convincing evidence that the parent is unfit and, if the
parent is unfit, whether the child's best interests will be
served by terminating the legal relation between parent and
child." Adoption of Ilona, 459 Mass. 53, 59 (2011). Clear and
convincing evidence means that "[t]he requisite proof must be
strong and positive; it must be 'full, clear and decisive.'"
Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting
Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997). "We review
the judge's findings with substantial deference, recognizing her
discretion to evaluate a witness's credibility and to weigh the
evidence," Adoption of Nancy, 443 Mass. 512, 515 (2005), "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, supra.
"Parental unfitness is determined by considering a parent's
character, temperament, conduct, and capacity to provide for the
3 The judge also ordered sibling and postadoption visitation.
3 child's particular needs, affections, and age." Care &
Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).
"Although 'stale information cannot be the basis for a finding
of current parental unfitness . . . [p]rior history . . . has
prognostic value.'" Adoption of Jacques, 82 Mass. App. Ct. 601,
607 (2012), quoting Adoption of George, 27 Mass. App. Ct. 265,
268 (1989). Here, the judge's factual findings as to the
mother's patterns of substance misuse, domestic violence, and
police involvement were not clearly erroneous and supported the
conclusion that she was unfit at the time of trial.
The mother's substance misuse began in the early 1990s and
led to many episodes of neglect. The department first became
involved with the mother in 2008 when a report was filed
pursuant to G. L. c. 119, § 51A (51A report), alleging neglect
of the half-siblings and drug use by the mother and Alan.
Between 2008 and 2014, several more 51A reports were filed
alleging drug use by the mother and Alan. The mother engaged in
methadone treatment from 2003 to 2013, and began Suboxone
treatment in 2013. However, despite the mother's being engaged
in treatment during this timeframe, both children were born
substance exposed; at least five 51A reports were filed between
2014 and 2018 due to the mother's substance misuse or
hospitalization. In March 2018, just prior to the children's
4 removal, the mother was using heroin, cocaine, fentanyl, and
Percocet.
The mother entered an inpatient drug treatment facility in
April 2018, and, in compliance with the department's action
plan, attended Alcoholics Anonymous meetings and completed an
intensive outpatient program (IOP) around April 2019. The judge
made specific and detailed findings supporting her conclusion
that, although the mother was willing to engage in treatment
services, she struggled to benefit or learn from such efforts.
Notably, the judge found that, after completing the IOP, the
mother was involved in two drug-related encounters with police
between May and June 2019, leading to an arrest and charges of
possession of class B and class C controlled substances.
Further, in June 2019, the mother continued to spend time with
the father, a known drug user, despite acknowledging that
associating with active drug users was a relapse trigger. 4 The
judge was "entitled to consider the evidence of [the mother's]
recent improvements within the context of her earlier and
continuing deficits," Adoption of Jacques, 82 Mass. App. Ct. at
608, and did not err in concluding that the mother lacked
4 The judge did not credit the mother's claim that she had been sober since 2018 and that she did not know the father was using drugs in June 2019. This credibility determination was in the judge's discretion. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984).
5 insight into the impact of substance misuse on herself and the
children. See Adoption of Garrett, 92 Mass. App. Ct. 664, 673-
674 (2018) (finding of unfitness not clearly erroneous where
mother substantially complied with, but did not benefit from,
tasks outlined in service plan).
The mother also has a long history as the victim of
domestic violence. 5 She filed three restraining orders against
Alan and three against the father for domestic violence, and,
between October 2018 and May 2019, had at least five encounters
with police because of calls related to Walter. The judge's
determination that the mother failed to recognize the harm to
the children from being exposed to violence in her intimate
relationships was not clearly erroneous and was based on
evidence of the mother's continuing violent relationship with
Walter and the impact of domestic violence on the children. See
Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015) ("witnessing
domestic violence, as well as being one of its victims, has a
profound impact on children" [citation omitted]). See also
Custody of Vaughn, 422 Mass. 590, 595 (1996) ("a child who has
5 In April 2018, police responded to the mother's home because the father alleged that Alan was "beating" the mother while the children were home. In October 2018, Walter was arrested for domestic assault and battery after "slamming [the mother's] head into a door," and, two days later, was again arrested for violating the resulting G. L. c. 209A abuse prevention order.
6 been either the victim or the spectator of such abuse suffers a
distinctly grievous kind of harm").
The mother has also demonstrated an inability to extricate
herself from relationships punctuated by domestic violence.
Although the mother's action plan tasked her with engaging in
domestic violence support services and being open about the
relationship with Walter, the mother attended support groups
only inconsistently and attempted to conceal her ongoing
relationship with Walter from the department. See Adoption of
Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("Evidence of parents'
refusal to cooperate with the department, including failure to
maintain service plans . . . is relevant to the determination of
unfitness"). In finding the mother unfit, the judge
appropriately considered the mother's pattern of domestic
violence with multiple partners and her attempts to conceal her
ongoing relationship with Walter.
Finally, the judge properly considered the mother's
extensive criminal history, which began in 1991 and included
convictions of, among other things, prostitution and possession
of class B and E controlled substances, in finding that she was
unfit at the time of trial. See Care & Protection of Frank, 409
Mass. 492, 495 (1991) ("evidence of prior convictions may be
properly weighed in the balance [of parental fitness]").
7 b. Mother's future unfitness. In terminating parental
rights, it is also "appropriate for a judge to consider 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" (citation omitted). Care & Protection of
Zeb, 489 Mass. 783, 788 (2022). "Because childhood is fleeting,
a parent's unfitness is not temporary if it is reasonably likely
to continue for a prolonged or indeterminate period." Adoption
of Ilona, 459 Mass. at 60. In light of the mother's
longstanding struggles with substance misuse and domestic
violence, the judge properly determined that the mother's
unfitness was likely to continue into the indefinite future. 6
While we commend the steps the mother took to comply with the
department's action plan, there was ample support for the
conclusion that she lacked insight into her substance misuse and
domestic violence. She continued to misuse drugs and engaged in
6 The mother claims that it was error to admit, over objection, Walter's CARI in evidence. When relevant to parental unfitness, a parent's criminal record is admissible, and judges may "consider the widest range of permissible evidence, including . . . evidence of each parent's present home environment." Adoption of Hugo, 428 Mass. 219, 231 n.21 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). Given the judge's findings that Walter and the mother lived together, had been in a relationship since 2018, and, at one point, were engaged to be married, the judge did not abuse her "broad discretion" in determining that Walter's criminal record was relevant to the home environment. See Nunes v. Duffy, 101 Mass. App. Ct. 460, 462 (2022).
8 a series of relationships with violent men. See Adoption of
Cadence, 81 Mass. App. Ct. 162, 168-169 (2012), quoting Care &
Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998) ("These
patterns of behavior would place [the children] 'at serious risk
of peril' from neglect by [the mother] were [they] returned to
[her] custody"). Further, because a "condition which is
reasonably likely to continue for a prolonged indeterminate
period, such as alcohol or drug addiction . . . [that] makes the
parent . . . unlikely to provide minimally acceptable care of
the child is not a temporary condition," the judge did not err
in considering the mother's substance use disorder in
determining that her unfitness was likely to continue
indefinitely 7 (citation omitted). Adoption of Elena, 446 Mass.
24, 31 (2006).
7 The mother argues that the judge erred in drawing a negative inference from her absence from trial, but not from the father's. "[A] trial judge has discretion to determine whether to draw an adverse inference from a parent's absence. . . . In determining whether to exercise that discretion, 'the judge as fact finder' is to consider whether such an inference is 'fair and reasonable based on all the circumstances and evidence before' her." Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014). Here, the mother failed to offer explanations for her absences from the fourth, fifth, and sixth days of trial. Although the mother claimed to be ill on the final day, the judge requested her appearance on Zoom to assess the credibility of her excuse, and the mother did not respond to the request. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) ("It is within the judge's discretion to evaluate the credibility of witnesses and to make his findings of fact accordingly").
9 In light of the foregoing, we see no error in the judge's
conclusion that the mother had "'grievous shortcomings or
handicaps' that put the [children's] welfare 'much at hazard'"
were they returned to her care. Adoption of Uday, 91 Mass. App.
Ct. 51, 55 (2017), quoting Adoption of Katharine, 42 Mass. App.
Ct. 25, 28 (1997).
c. Best interests of the children. "[T]he best interests
analysis . . . requires a court to focus on the various factors
unique to the situation of the individual[s] for whom it must
act." Custody of a Minor, 375 Mass. 733, 753 (1978). "The
standard for parental unfitness and the standard for termination
are not separate and distinct, but 'reflect different degrees of
emphasis on the same factors.'" Adoption of Nancy, 443 Mass. at
515, quoting Petition of the New England Home for Little
Wanderers to Dispense with Consent to Adoption, 367 Mass. 631,
641 (1975). "In determining whether the best interests of the
child will be served by issuing a decree . . . the court . . .
shall also consider the plan proposed by the department or other
agency initiating the petition." G. L. c. 210, § 3 (c). Here,
the judge's findings as to the mother's future unfitness
provided evidentiary support for the determination that
termination was in the best interests of the children due to (1)
the mother's inability to provide a safe environment, and (2)
10 her lack of insight regarding her actions. See Adoption of
Lisette, 93 Mass. App. Ct. 284, 296-297 (2018).
"Stability in the lives of children is important,
particularly in a case that has continued for a long period of
time in the hope that the [parents] could and would successfully
rehabilitate [themselves]." Adoption of Nancy, 443 Mass. at
517. At the time of trial, the department's plan for John was
adoption by his preadoptive family, where he was currently
living. Harry was living in a separate foster home, and that
family was considering whether to adopt him. The department's
plan was adoption by his foster family or recruitment for
adoption. The judge found that both children were doing well in
their placements, with Harry improving in the care of his foster
family. The judge also considered that the children would
maintain consistent contact with their half-siblings, with whom
they share a strong emotional bond. We see no abuse of
discretion.
2. Termination of father's parental rights. a. Father's
future unfitness. On appeal, the father does not challenge his
fitness at the time of trial but argues that the judge erred in
finding that his unfitness would likely continue. We are not
persuaded. The judge had ample evidence to support her finding
that the father's extensive history of substance misuse, his
criminal history, pattern of perpetuating domestic violence,
11 mental health struggles, and inability to regulate his emotions
indicated that his unfitness would continue indefinitely.
The father began abusing prescription medication in 2009,
and at the time of the children's removal, was "dabbling" in
methamphetamine. Although his drug screens presented "no
concerns" in the year after the removal, the father relapsed in
the spring of 2019. He tested positive for cocaine in May 2019,
purchased methamphetamine in the mother's home in May 2019, had
"glassy eyes" during a family visit in June 2019, and admitted
to having relapsed on cocaine and fentanyl in June 2019.
Despite numerous stays in residential drug treatment facilities
between June 2020 and February 2021, the father continued to use
drugs in April 2021 and during trial. Accordingly, there was
ample support for the finding that the father lacked insight
into his substance misuse and that his unfitness was likely to
continue. See Adoption of Elena, 446 Mass. at 31.
The father's criminal history dates to 1987 and includes
convictions of assault and battery by means of a dangerous
weapon, possession and distribution of controlled substances,
larceny, criminal harassment, trespassing, and resisting arrest.
As a result of his criminal activity, the father's life has been
punctuated by periods of incarceration during which he did not
visit with or speak to the children, including from August 2019
to October 2019, February 2020 to March 2020, and June 2021 to
12 September 2021. 8 See Care & Protection of Frank, 409 Mass. at
495; Adoption of Frederick, 405 Mass. 1, 7 (1989) (judge may
consider "lengthy separation between a parent and child" in
making best interests determination). The judge's findings
illustrated that the father's criminal history affected his
ability to be present in the children's lives and supported the
determination that his unfitness would likely continue
indefinitely. See Adoption of Ilona, 459 Mass. at 60.
The judge also correctly considered the father's pattern of
domestic violence against women, including the mother. Between
1993 and 2018, the father was the subject of restraining orders
filed by at least five different women. During June and August
2019, the father was involved in a domestic dispute and was
reported for knocking a woman unconscious, sexually assaulting,
and threatening her. Cf. Adoption of Carlos, 413 Mass. 339, 350
(1992) (in determining whether unfitness is temporary, judge may
consider evidence that provides "reason to believe that a parent
will correct a condition or weakness that currently disables the
parent from serving his or her child's best interests").
8 The evidence amply supported the judge's findings that the father had not seen the children in person in two years, that Harry was "triggered" by video calls with the father, and that the father made "inappropriate" comments to the children. In making the best interests determination, the judge was entitled to weigh the evidence as she saw fit, and "[w]e do not sit as a trial court to review de novo the evidence presented by the parties." Adoption of Paula, 420 Mass. 71, 730 (1995).
13 In addition, the judge identified concerns about the
father's ability to manage his emotional and mental health. The
father testified that, despite his efforts at anger management,
his temper sometimes got the best of him. The father yelled at,
swore at, and hung up on the social worker, and was described as
"combative" and "argumentative" during phone calls with the
department.
Despite having been diagnosed with attention deficit
hyperactivity disorder and bipolar disorder, the father had been
inconsistent with his mental health services since his 2019
relapse. See Adoption of Luc, 484 Mass. 139, 146-147 (2020).
Here, the concern was "not that the [father] has mental health
challenges, but that those challenges remained largely
unaddressed," to the children's detriment. Id. at 146 n.17.
See Adoption of Frederick, 405 Mass. at 9 (parent's mental
disorder relevant to extent it affects parent's capacity to
assume parental responsibility). Although the father made
positive efforts with respect to his action plan prior to the
department's goal change, he was unable to verify that he was
seeing a psychiatrist at the time of trial. Especially when
considered in combination with the judge's findings that the
father "fail[ed] . . . to take responsibility for his behaviors"
and "blam[ed] others," this evidence further supports the
14 judge's conclusion that the father's unfitness was likely to
continue.
b. Best interests of children. In finding that
termination of the father's parental rights was in the best
interests of the children, the judge properly considered the
father's "ability, capacity, fitness, and readiness," as well as
the department's plans for the children. G. L. c. 210, § 3 (c).
We see no error in the judge's conclusion that the children's
best interests would be served by terminating the father's
parental rights. The judge found that the father was unable to
maintain consistency, stability, and safety for the children
based on evidence that the father relapsed and was arrested on
multiple occasions during the pendency of this action; was
untruthful with the department about his treatment and housing;
had multiple periods of noncontact with the department and his
children; and continued to blame the department for the lack of
reunification with the children. The judge also found that both
children were improving in their placements. See Adoption of
Oren, 96 Mass. App. Ct. 842, 846-847 (2020). The judge was not
required to grant the father an "indefinite opportunity to
reform," and considering the evidence that this unfitness was
not temporary, "the judge . . . properly determine[d] that the
child's welfare would be best served by ending all legal
15 relations between parent and child." Adoption of Cadence, 81
Mass. App. Ct. at 169.
The father contends that Harry's behavioral problems
worsened in the department's care and that, because the
department had not identified a preadoptive home for him, it was
not in his best interests to terminate the father's parental
rights. This argument is at odds with the judge's finding that
Harry was doing well and was in a potential preadoptive
placement. See Adoption of Ilona, 459 Mass. at 59 (appellate
courts give "substantial deference" to decision that termination
of parent's rights is in child's best interests, and "reverse
only where findings of fact are clearly erroneous"). A fully
formed adoption plan need not be developed before a parent's
rights are terminated, so long as there is "sufficient
information about the prospective adoptive placement so that the
judge may properly evaluate the suitability of the department's
proposal" (quotation and citation omitted). Adoption of Willow,
433 Mass. 636, 652 (2001).
3. Reasonable efforts. In deciding whether a parent's
unfitness is merely temporary, "[a] judge may consider the
department's failure to make reasonable efforts [to reunify the
parent and child]." Adoption of Ilona, 459 Mass. at 61. On
appeal, both parents argue that the department failed to make
reasonable efforts at reunification. "It is well-established
16 that a parent must raise a claim of inadequate services in a
timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781
(2010), S.C., 460 Mass. 72 (2011). "The parent should assert
the claim 'either when the parenting plan is adopted, when [s]he
receives those services, or shortly thereafter.'" Adoption of
West, 97 Mass. App. Ct. 238, 242 (2020), quoting Adoption of
Gregory, 434 Mass. 117, 124 (2001). "A parent cannot raise a
claim of inadequate services for the first time on appeal, as
the department would not have had the opportunity to address
it." Adoption of West, supra at 242. Because the mother did
not raise her reasonable efforts claim before trial, it is
waived on appeal. Even were the mother's claim not waived,
there was ample evidence supporting the judge's determination
that the department met its obligations and "complied with its
duty to make 'reasonable efforts . . . to prevent or eliminate
the need for removal [of the child] from the home.'" Adoption
of Ilona, supra, quoting G. L. c. 119, § 29C.
We will treat the father's claim as having been raised in
the trial court because the judge explicitly found that the
father raised concerns that the department was not doing
anything to support him and or reunify the children with him.
For approximately one year, the department's goal was
reunification of the children with the mother and father. The
department provided the father with referrals to therapy and to
17 group programs and assigned him a parent partner for support
with his substance misuse and mental health issues. The father
was progressing on his action plan but failed to meet with the
department regularly for home visits, and he tested positive for
substances in 2019.
Despite being willing to engage in services, both parents
struggled to benefit from those services or show insight into
their behavior and its effect on the children. Based on both
the mother's and the father's failure to demonstrate lasting
benefits from the services the department provided them, we see
no abuse of discretion in the judge's conclusion that reasonable
efforts had been made at reunification. See Adoption of Mario,
43 Mass. App. Ct. 767, 774 (1997) (department's duty to
"preserve the biological ties between [a parent] and child" but
that duty is "contingent upon [a parent's] fulfillment of [his]
own parental responsibilities").
Decrees affirmed.
By the Court (Blake, Walsh & Hershfang, JJ. 9),
Clerk
Entered: August 2, 2023.
9 The panelists are listed in order of seniority.