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-202
ADOPTION OF IGGY (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial, a Juvenile Court judge found the
mother unfit to parent her children, terminated her parental
rights, and granted permanent custody of the children to the
Department of Children and Families (DCF). The mother appeals,
arguing that there was not clear and convincing evidence of her
unfitness and that several of the judge's findings of fact were
clearly erroneous. We affirm.
Background. We summarize the judge's findings of fact,
reserving some details for later discussion. The mother, who
was born in 1985, has been diagnosed with generalized anxiety
disorder and major depression order and has a history of
domestic violence in her romantic relationships. When she was
nineteen years old, she married a man who was physically abusive
toward her. The mother became pregnant during the marriage,
1 Adoption of Jasmin. The children's names are pseudonyms. which lasted four years, but had a miscarriage after her husband
hit her in the stomach.
The mother began dating Iggy's father in 2012 and became
pregnant two months later with Iggy, who was born in 2013.
While still living with Iggy's father, the mother became
romantically involved with Jasmin's father. When Iggy's father
learned of this, he became angry and was verbally abusive to the
mother while she was pregnant with Jasmin. Jasmin was born in
2016.2
DCF first became involved with the family in late 2015
after receiving a report pursuant to G. L. c. 119, § 51A (51A
report) alleging neglect of Iggy by his father. The report
alleged specifically that Iggy was seen walking in the hallway
of his apartment building with a red mark on his face and
wearing only a diaper. Although the allegations were not
supported, DCF opened a case for services because of concerns
about Iggy's development.
A little over a year later in January 2017, the mother and
Iggy's father got into a physical fight when she allegedly saw
him rubbing Iggy in his groin area. The mother contacted the
police, and a 51A report was filed alleging sexual abuse of Iggy
by his father. DCF received another 51A report two weeks later
2 The judge made no determination regarding either father's fitness as both passed away prior to her decision.
2 following an incident between the mother and Iggy's father at
the pediatrician's office, during which the mother reported that
Iggy's father was aggressive to her and that she was afraid of
him. The mother obtained a restraining order against Iggy's
father the next day; it was in effect for one year and required
that DCF supervise any visitation between Iggy's father and the
children. Despite this order the mother allowed the children to
see Iggy's father unsupervised on multiple occasions between
February and August 2017.
In August 2017 Iggy disclosed to the mother that his father
had touched him inappropriately. The mother took him to a
pediatrician, who did not find any signs of sexual abuse.
Following Iggy's disclosure, the mother was psychiatrically
hospitalized for five days because she was having thoughts of
harming herself and Iggy's father. While she was hospitalized,
another 51A report was filed when Jasmin's father did not pick
up the children from daycare.
DCF proceeded to take custody of the children and file the
underlying care and protection petitions. At the time, Jasmin
was nine months old but could not sit up on her own. Within a
month of her removal, she began sitting up on her own. When
Iggy was in the mother's care, he often refused to eat foods
3 prepared by her, which she attributed to his autism.3 After he
was removed and placed in foster care, however, Iggy began
eating a variety of foods.
In October 2017 DCF returned the children to the mother's
care with conditions for her to follow, including completing
courses on anger management and parenting. About five months
later, the mother became confrontational and aggressive toward
staff at Jasmin's daycare, which DCF had specifically selected
for Jasmin because it permitted early intervention workers to
come work with her. DCF met with the mother to discuss the
issue and offered to transport Jasmin to the daycare, but the
mother rejected the offer. The daycare ultimately terminated
Jasmin's enrollment when the mother engaged in another
confrontation with the provider and said that she wanted to slap
her.
In April 2018, while at DCF's office, the mother was
involved in a verbal altercation with another woman in front of
the children. A DCF social worker saw the mother taking off her
coat and "pushing forward" toward the other woman. Iggy's
father was holding onto the mother's arm, and Iggy was holding
onto her leg. The social worker intervened and walked the
mother out of the building.
Iggy was evaluated for autism in December 2015 and was 3
later diagnosed with autism. He is high functioning.
4 DCF removed the children for a second time as a result of
this incident. Jasmin was sixteen months old at the time but,
despite her age, did not cry when she was hungry, lacked
strength in her legs, and was not walking or even attempting to
stand on her own. A neurologist attributed her failure to meet
these milestones to environmental neglect. A few months after
her second removal, Jasmin was walking and talking.
Iggy likewise experienced developmental delays. He was
almost five years old at the time of the second removal, but
could not dress or wash himself or brush his teeth. He had also
resumed his refusal to eat while in the mother's care. After a
couple of months in foster care, Iggy had a good appetite, began
eating a variety of foods, and was dressing himself.
DCF devised a plan to reunite the family once the mother
completed additional anger management and parenting courses.
Reunification occurred in March 2019, and DCF put two parent
aides in place to support the mother. Two months later, the
mother reported to the police that she had attempted suicide
three times following the recent passing of Iggy's father.
Around the same time, Iggy appeared at school with a cut on his
nose, prompting DCF to remove the children for a third and final
time. Iggy told the DCF social worker that the mother had
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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-202
ADOPTION OF IGGY (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial, a Juvenile Court judge found the
mother unfit to parent her children, terminated her parental
rights, and granted permanent custody of the children to the
Department of Children and Families (DCF). The mother appeals,
arguing that there was not clear and convincing evidence of her
unfitness and that several of the judge's findings of fact were
clearly erroneous. We affirm.
Background. We summarize the judge's findings of fact,
reserving some details for later discussion. The mother, who
was born in 1985, has been diagnosed with generalized anxiety
disorder and major depression order and has a history of
domestic violence in her romantic relationships. When she was
nineteen years old, she married a man who was physically abusive
toward her. The mother became pregnant during the marriage,
1 Adoption of Jasmin. The children's names are pseudonyms. which lasted four years, but had a miscarriage after her husband
hit her in the stomach.
The mother began dating Iggy's father in 2012 and became
pregnant two months later with Iggy, who was born in 2013.
While still living with Iggy's father, the mother became
romantically involved with Jasmin's father. When Iggy's father
learned of this, he became angry and was verbally abusive to the
mother while she was pregnant with Jasmin. Jasmin was born in
2016.2
DCF first became involved with the family in late 2015
after receiving a report pursuant to G. L. c. 119, § 51A (51A
report) alleging neglect of Iggy by his father. The report
alleged specifically that Iggy was seen walking in the hallway
of his apartment building with a red mark on his face and
wearing only a diaper. Although the allegations were not
supported, DCF opened a case for services because of concerns
about Iggy's development.
A little over a year later in January 2017, the mother and
Iggy's father got into a physical fight when she allegedly saw
him rubbing Iggy in his groin area. The mother contacted the
police, and a 51A report was filed alleging sexual abuse of Iggy
by his father. DCF received another 51A report two weeks later
2 The judge made no determination regarding either father's fitness as both passed away prior to her decision.
2 following an incident between the mother and Iggy's father at
the pediatrician's office, during which the mother reported that
Iggy's father was aggressive to her and that she was afraid of
him. The mother obtained a restraining order against Iggy's
father the next day; it was in effect for one year and required
that DCF supervise any visitation between Iggy's father and the
children. Despite this order the mother allowed the children to
see Iggy's father unsupervised on multiple occasions between
February and August 2017.
In August 2017 Iggy disclosed to the mother that his father
had touched him inappropriately. The mother took him to a
pediatrician, who did not find any signs of sexual abuse.
Following Iggy's disclosure, the mother was psychiatrically
hospitalized for five days because she was having thoughts of
harming herself and Iggy's father. While she was hospitalized,
another 51A report was filed when Jasmin's father did not pick
up the children from daycare.
DCF proceeded to take custody of the children and file the
underlying care and protection petitions. At the time, Jasmin
was nine months old but could not sit up on her own. Within a
month of her removal, she began sitting up on her own. When
Iggy was in the mother's care, he often refused to eat foods
3 prepared by her, which she attributed to his autism.3 After he
was removed and placed in foster care, however, Iggy began
eating a variety of foods.
In October 2017 DCF returned the children to the mother's
care with conditions for her to follow, including completing
courses on anger management and parenting. About five months
later, the mother became confrontational and aggressive toward
staff at Jasmin's daycare, which DCF had specifically selected
for Jasmin because it permitted early intervention workers to
come work with her. DCF met with the mother to discuss the
issue and offered to transport Jasmin to the daycare, but the
mother rejected the offer. The daycare ultimately terminated
Jasmin's enrollment when the mother engaged in another
confrontation with the provider and said that she wanted to slap
her.
In April 2018, while at DCF's office, the mother was
involved in a verbal altercation with another woman in front of
the children. A DCF social worker saw the mother taking off her
coat and "pushing forward" toward the other woman. Iggy's
father was holding onto the mother's arm, and Iggy was holding
onto her leg. The social worker intervened and walked the
mother out of the building.
Iggy was evaluated for autism in December 2015 and was 3
later diagnosed with autism. He is high functioning.
4 DCF removed the children for a second time as a result of
this incident. Jasmin was sixteen months old at the time but,
despite her age, did not cry when she was hungry, lacked
strength in her legs, and was not walking or even attempting to
stand on her own. A neurologist attributed her failure to meet
these milestones to environmental neglect. A few months after
her second removal, Jasmin was walking and talking.
Iggy likewise experienced developmental delays. He was
almost five years old at the time of the second removal, but
could not dress or wash himself or brush his teeth. He had also
resumed his refusal to eat while in the mother's care. After a
couple of months in foster care, Iggy had a good appetite, began
eating a variety of foods, and was dressing himself.
DCF devised a plan to reunite the family once the mother
completed additional anger management and parenting courses.
Reunification occurred in March 2019, and DCF put two parent
aides in place to support the mother. Two months later, the
mother reported to the police that she had attempted suicide
three times following the recent passing of Iggy's father.
Around the same time, Iggy appeared at school with a cut on his
nose, prompting DCF to remove the children for a third and final
time. Iggy told the DCF social worker that the mother had
gotten angry and thrown something at him; he also reported that
the mother hit him and Jasmin when she was upset and that
5 Jasmin's father also hit him. The mother insisted that Iggy was
lying and tried to convince him to tell the social worker that
another child had hit him with a stick at the park.
At a review and planning conference in June 2019, the
mother continued to state that Iggy was lying. Both she and
Jasmin's father denied Iggy's allegations of physical abuse and
domestic violence. Following the conference DCF changed the
children's goals to adoption.
While visits between the children and the mother were
mostly positive, the mother behaved inappropriately on a few
occasions. For example, one visit in 2018 was terminated early
when the mother became irate after Iggy ate food that she had
brought; the mother claimed that Iggy would not be eating it if
he was being properly fed in his foster home. During another
visit at the foster mother's home in December 2020, the mother
again insisted to Iggy that a child at the park had caused the
injury to his nose. When Iggy became upset and repeatedly said
that was not what happened, the mother told him not to lie and
stated that she was in the situation she was in because of his
lying. About a month later, the foster mother told the mother
that she had to cancel a visit because her pastor had died and
she was upset. The mother became angry and said that the pastor
was not God and that the foster mother should not be upset.
6 At the start of trial in mid-2021, the children had been in
the same kinship foster placement for almost one year. Iggy
eats everything that his foster mother prepares for him and with
her help is doing well in school. The foster parents are able
to work with Iggy's educators and service providers to meet his
special needs surrounding his autism diagnosis. Jasmin's
mobility issues have greatly improved because of the efforts of
her foster family. She enjoys dancing with her cousins and
other activities and has an expansive vocabulary.
Both children have bonded with their foster parents and the
other children in the foster home. DCF's plan for the children
is adoption by the foster parents, which the children support.
The judge found this plan to be in the children's best interests
and further ordered posttermination and postadoption visits
between the children and the mother at least twice a year.
Discussion. 1. Sufficiency of evidence. "To terminate
parental rights to a child and dispense with 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 Jacques, 82 Mass. App. Ct. 601, 606
(2012). "Parental unfitness is determined by considering a
parent's character, temperament, conduct, and capacity to
7 provide for the child's particular needs, affections, and age."
Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).
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, we see no error in the judge's determination that DCF
met its burden of establishing the mother's unfitness by clear
and convincing evidence. The mother's unfitness resulted from a
"constellation of factors." Adoption of Greta, 431 Mass. 577,
588 (2000). She had a pattern of volatility and poor anger
management, having lashed out on many occasions against service
providers, DCF workers, the foster mother, strangers, and, most
notably, Iggy. See Adoption of Diane, 400 Mass. 196, 204 (1987)
(judge can "rely upon prior patterns of ongoing, repeated,
serious parental neglect, abuse, and misconduct in determining
current unfitness"). While the mother completed several anger
management and parenting classes and went to therapy, the judge
found that she did not show meaningful improvement or gain
insight from these services. She instead continued to display
aggression and confrontational behavior that diminished her
ability to effectively parent the children. See Guardianship of
a Minor, 1 Mass. App. Ct. 392, 396 (1973), quoting Richards v.
8 Forrest, 278 Mass. 547, 552 (1932) ("Violence of temper, . . .
or inability or indisposition to control unparental traits of
character or conduct, might constitute unfitness").
Moreover, as found by the judge, the mother was unable to
cultivate an environment that allowed the children to thrive
under her care. Both children experienced serious developmental
delays while in the mother's care, which were remedied after
their removals. After Iggy entered foster care, his eating
issues improved, new and varied foods were introduced to his
diet, and he started dressing himself. After Jasmin entered
foster care, she made significant gains in her development,
learning how to sit on her own, walk, and talk. A neurologist
attributed Jasmin's lagging development in these areas to
environmental neglect. That both children made relatively rapid
improvements after being removed from the mother's custody was
evidence that she could not meet their needs with respect to
promoting their positive development. See Petition of Catholic
Charitable Bur. of the Archdiocese of Boston, Inc., to Dispense
with Consent to Adoption, 395 Mass. 180, 187 (1985) (judge
properly compared evidence of child's condition while with
parent to condition postremoval).
There were also several occasions when the mother displayed
a troubling lack of insight into the needs of her children. For
example, the mother allowed Iggy's father to visit the children
9 unsupervised multiple times in violation of a restraining order,
despite Iggy's claims that his father had touched him
inappropriately. More recently, the mother accused Iggy of
lying about how he received the injury to his nose, repeatedly
asked him to change his story, and blamed him for the situation
she was in. Contrary to the mother's assertion, the judge found
this evidence relevant not because the mother denied
responsibility for Iggy's injury, but because "[r]egardless of
how the [injury] was caused," she could not "as [the] parent
. . . moderate her behavior"; instead, she "kept re-igniting
[Iggy's] distress by insisting that [he] lied," causing him to
suffer "enormous emotional dysregulation." The judge properly
weighed this in the balance as it showed the mother's lack of
insight and that she was willing to place "her own needs above
those of the children." Adoption of Daniel, 58 Mass. App. Ct.
195, 202 (2003).
Taken together, the judge's findings supported her ultimate
determination that there was clear and convincing evidence of
the mother's unfitness. We are unpersuaded by the mother's
arguments that the evidence of her unfitness was stale, as
"[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 mother has exhibited a
pattern of volatility and neglect of her children despite
10 participation in services and, although the children were twice
returned to her care, was still unable to provide for their
needs, resulting in both children suffering serious
developmental delays. See Adoption of Ulrich, 94 Mass. App. Ct.
668, 677 (2019) ("mere participation in the services does not
render a parent fit without evidence of appreciable improvement"
[quotation and citation omitted]); Adoption of Jenna, 33 Mass.
App. Ct. 739, 744 (1992) ("prior parental conduct is deemed
relevant in assessing the parent's capacity and ability to care
for the child"). The children's improvement after entering
foster care and their strong bond with their preadoptive family
further supported the judge's determination. See Petition of
the Catholic Charitable Bur. of the Archdiocese of Boston, Inc.,
to Dispense with Consent to Adoption, 395 Mass. at 187; Adoption
of Daniel, 58 Mass. App. Ct. at 202-203.
For substantially the same reasons, we conclude that the
judge did not abuse her discretion in finding that terminating
the mother's parental rights was in the children's best
interests. The children are entitled to stability. Where
reunification was attempted twice and was unsuccessful, "it is
only fair to the children to say, at some point, 'enough.'"
Adoption of Nancy, 443 Mass. 512, 517 (2005).
2. Challenges to factual findings. After considering
numerous exhibits and the testimony of multiple witnesses, the
11 judge made 150 findings of fact and forty conclusions of law
that "are both specific and detailed, demonstrating, as we
require, that close attention was given to the evidence."
Adoption of Don, 435 Mass. 158, 165 (2001). The mother claims,
however, that several of the judge's factual findings are
clearly erroneous. We agree that there was no direct evidence
to support one of the judge's findings -- that the mother
reported "hearing voices" when she was hospitalized in August
2017.4 But even assuming that this finding was clearly
erroneous, the error was harmless because it "relate[d] only
marginally, if at all, to the judge's ultimate conclusion of
unfitness." Adoption of Peggy, 436 Mass. 690, 702 (2002).
The mother's remaining arguments, while framed as clear-
error challenges to the judge's subsidiary findings, are more
aptly characterized as challenges to the judge's credibility
assessments and weighing of the evidence. For instance, the
mother takes issue with the judge's findings discrediting some
of the opinions of the mother's expert witness. It is within a
judge's discretion, however, to reject an expert's opinion "in
4 The judge based this finding on a negative inference she drew from the mother's refusal to answer a question about whether she told hospital staff that she was "hearing voices." But the mother's counsel objected to the question on the ground that it was seeking privileged information, and it is unclear how the judge ruled on the objection because that portion of the transcript is inaudible.
12 whole or in part," and no showing has been made that the judge
abused her discretion in doing so here. L.L. v. Commonwealth,
470 Mass. 169, 183 (2014), quoting Commonwealth v. O'Brien, 423
Mass. 841, 854 (1996). Nor do we see any basis for overturning
the judge's assessment of the weight of the evidence, to which
we give deference.5 See Custody of Eleanor, 414 Mass. 795, 799
(1993).
To the extent we have not specifically addressed any of the
mother's arguments, all of which we have reviewed, we see no
additional basis to warrant overturning the judge's decision.
Decrees affirmed.
By the Court (Rubin, Blake & Shin, JJ.6),
Assistant Clerk
Entered: April 4, 2024.
5 In particular, we are unpersuaded by the mother's arguments that the weight of the evidence does not support the judge's findings that the mother's "alienating behavior would likely impede her ability to work with . . . service providers," that the mother lacked insight into the needs of the children, and that she "would be unable to address" the children's special needs in the future.
6 The panelists are listed in order of seniority.