NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-413
ADOPTION OF IVO (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trial, a Juvenile Court judge found the mother and
father of the three children currently unfit, terminated their
parental rights, and approved the plans proposed by the
Department of Children and Families (department) for the
children's adoption. See G. L. c. 210, § 3. Each parent
appeals, maintaining (1) the evidence was insufficient to prove
that their parental unfitness was not temporary; and (2) the
judge made several clearly erroneous findings. The mother also
contends that the judge abused his discretion by leaving
posttermination and postadoption contact to the discretion of
their legal custodian or adoptive parents. We affirm.
1Adoption of Emily and Adoption of Laura. The children's names are pseudonyms. Background. "We recount the relevant facts, reserving
certain details for our discussion." Adoption of Nancy, 443
Mass. 512, 513 (2005). The mother and father are the parents of
Ivo (born 2016), Emily (born 2018), and Laura (born 2021). The
family first became involved with the department in 2017 when a
G. L. c. 119, § 51A, report (51A report) alleged that Ivo was
exposed to domestic violence when the parents had a physical
altercation that required police response and resulted in the
father's being arrested and charged with assault and battery by
means of a dangerous weapon. The mother admitted Ivo was
present during the altercation, but both parents denied that
there were other incidents of domestic violence. The department
eventually closed this case.
The family again became involved with the department in
October 2018, when another 51A report alleged parental neglect
of Ivo because he was exhibiting inappropriate sexualized
behavior, and the mother disclosed to the reporter that Ivo was
exposed to sexual content in the home. The 51A reporter raised
concerns with the mother about Ivo trying to put his hand down
another child's pants, and the mother said that the father
watched pornography around Ivo all the time, and the father hit
her in front of Ivo. The parents later denied these
allegations.
2 During a subsequent 51B investigation, the department
became aware that the father had pending charges for enticing a
child under the age of sixteen and lewd and gross conduct. The
father admitted to the department that Ivo accidentally opened a
pornography site while playing with the father's cell phone, and
Ivo may have witnessed the parents having sex. Both parents
denied having recent physical altercations, and the mother
maintained that the father was not abusive. Due to the family's
history of domestic violence, the father's open case for sexual
misconduct, and the mental health diagnoses of both parents, the
department opened the case for services.
The parents' second child, Emily, was born in December
2018. In February 2019 there was another incident of domestic
violence in the home. The police were called, and the mother
alleged that the father had grabbed her by the neck, and she had
punched him in the eye. The department filed the underlying
care and protection proceedings for Emily and Ivo. The
department sought and was awarded temporary custody of both
children in February 2019, and in January 2020 the department
changed the permanency goal from reunification to adoption.
After Ivo and Emily were removed from the parents' custody,
beginning in early 2019 and continuing until October 2021, the
mother repeatedly represented to the department that she did not
have a relationship with the father and was not in contact with
3 him. The father admitted to department workers that he had
interactions with the mother during this time but denied being
in a relationship with her. The judge did not credit the
parents' denials.
The parents' third child, Laura, was born in December 2021.
The mother had avoided contact with the department before Laura
was born and acknowledged the father's paternity only when her
pregnancy was evident in the month of Laura's birth. The mother
admitted at trial that she had lied about not being in a
relationship with the father. The department obtained custody
of Laura shortly after her birth because of the past domestic
violence between the parents and the removal of the two older
children. Laura's case was incorporated into the family's open
case.
In July 2022, another 51A report was filed, alleging sexual
exploitation of a seventeen year old female by the father. The
juvenile alleged that she was supposed to meet the father for a
job interview, he coerced her into his home, smoked marijuana
with her, then exposed himself to her. The mother was present
and speaking to the juvenile while the father exposed himself.
The subsequent investigation found these allegations were
supported.
In January 2023, the mother and father admitted that they
were in a relationship and again living together. Then, in
4 February 2023 the mother reported to a social worker that,
although she and the father were living together, they were not
in a romantic relationship and had no plans to be in one. The
mother told the department that the father was moving to
Chicago. In March 2023, the mother reported that the father had
moved out of the home. The mother was unable to provide details
about the father's trucking business in Chicago, and the
department was unable to verify that the father had moved out.
The judge found the mother's testimony about her current level
of contact and relationship with the father not credible. The
judge credited the social worker's testimony about previous home
visits and found that the mother and father had a pattern of
misleading the department and remaining in an unhealthy
relationship without engaging in services to address their
domestic violence.
The mother testified at trial that the father was
physically and verbally abusive toward her. She testified that
the physical abuse ended in 2019, but the father continued to be
verbally abusive. The judge credited testimony from various
social workers and found that the allegations of ongoing
intimate partner violence between the mother and father were
substantiated. The father did not attend the trial, and the
judge drew a negative inference from his failure to appear.
5 Discussion. 1. Legal Standard. "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
[his] discretion to evaluate a witness's credibility and to
weigh the evidence," Adoption of Nancy, 443 Mass. at 515, "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.
2. Parental unfitness. "Parental unfitness must be
determined by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993). It is
"appropriate for a judge to consider whether, on the basis of
credible evidence, there is a reasonable likelihood that the
parents' unfitness at the time of trial may be only temporary"
6 (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.
Here, the judge's "specific and detailed findings
demonstrate[] that close attention has been given to the
evidence." Adoption of Quentin, 424 Mass. 882, 886 (1997).2
Given the parents' years'-long effort to mislead the department
about their ongoing intimate relationship, which involved
intimate partner violence, combined with the parents' failure to
acknowledge the effects of that violence on their children, and
the parents' failure to demonstrate "significant improvement" in
meeting the children's needs, "the judge did not clearly err in
finding that [these parents were] unfit and that [their]
unfitness was not temporary." Adoption of Ilona, 459 Mass. at
62.
a. Intimate partner violence. "Violence within a family
is highly relevant to a judge's determination of parental
unfitness and the best interests of the children." Adoption of
2The father also maintains that the judge improperly relied on his initial findings rather than the detailed subsidiary findings in terminating the father's parental rights. This claim is unavailing; the father has not cited any supporting authority for it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
7 Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "It is well
documented that witnessing domestic violence, as well as being
one of its victims, has a profound impact on children." Custody
of Vaughn, 422 Mass. 590, 599 (1996). A child who witnesses
"such abuse suffers a distinctly grievous kind of harm." Id. at
595. "The evidence in this case supported the judge's reliance
on domestic violence as a significant factor in deeming the
[parents] unfit." Adoption of Jacob, 99 Mass. App. Ct. 258, 264
(2021).
The judge found that the father had a history of domestic
violence with the mother which negatively affected Ivo and
Emily. The judge found that the father inconsistently engaged
with tasks on his action plan to address his abusive behaviors:
he referred to a batterers assessment as "fucking dumb," he
failed to participate in an anger management group, and he did
not complete a sexual offender's evaluation. Although the
father eventually participated in an intimate partner violence
class and some individual therapy for his anger, the judge found
he had not meaningfully benefited because he continued to have
angry outbursts toward the department and the children after
participating in these services. "[A] judge can consider a
pattern of 'past conduct to predict future ability and
performance.'" Adoption of Ulrich 94 Mass. App. Ct. 668, 676
(2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 269-
8 270 (1990). "[I]nstances of such familial violence are
compelling evidence for a finding of parental unfitness."
Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017).
With respect to the mother, "[a] judge may properly
consider a parent's decision to remain in a relationship with an
abusive partner in determining parental fitness." Adoption of
Jacob, 99 Mass. App. Ct. at 265. During the department's
various investigations, the mother denied any continued violence
in her relationship with the father. She testified that she
learned in classes that domestic violence is detrimental to
children, but she nonetheless resumed or continued her
relationship with the father after she attended these classes.
While the father was allowed only supervised visits with the
children, the mother allowed him to visit with the children
during her unsupervised visits and lied to the department about
her ongoing relationship with him. The judge was not required
to believe the mother's claim that she had separated herself
from the father and from the cycle of domestic violence, see
Adoption of Anton, 72 Mass. App. Ct. 667, 675 (2008), and
reasonably concluded that the parents lied to hide their ongoing
relationship.
The judge also found that the mother was present while the
father exposed himself to a minor. "A parent's willingness to
ignore or minimize abusive behavior can be an indicator of
9 unfitness, regardless of whether the child is at risk of abuse
or witnessing abuse." Adoption of Lisette, 93 Mass. App. Ct.
284, 294 n.15 (2018).
"The judge properly considered [the parents'] continued
failure to address how domestic violence affected [their]
parenting" when evaluating their parental fitness. Adoption of
Yvonne, 99 Mass. App. Ct. 574, 579-580 (2021). "[T]he
[parents'] consistent failure to address these issues supported
the judge's conclusion that [their] unfitness would continue
indefinitely." Adoption of Xarissa, 99 Mass. App. Ct. 610, 619
b. Action plan participation. Both parents maintain that
the judge failed to credit their engagement in the action plans
set out by the department. "Even where a parent has
participated in programs and services and demonstrated some
improvement, we rely on the trial judge to weigh the evidence in
order to determine whether there is sufficient likelihood that
the parent's unfitness is temporary." Adoption of Ilona, 459
Mass. at 59-60.
The department created various action plans for both
parents. The judge credited the father's participation in some
programs and therapy, including his completing six weeks of an
intimate partner violence program, but found that he otherwise
avoided the department and court throughout much of the case.
10 The father inconsistently showed up for visits with the
children, struggled to manage the children's behavior, and
failed to follow department instructions at visits. The father
also blamed Ivo's behavioral issues on the department. The
judge further found that the father was hostile and aggressive
toward department workers, foster parents, and the children on
several occasions. See Adoption of Rhona, 63 Mass. App. Ct.
117, 126 (2005) (parent's lack of cooperation with DCF was
"relevant to the determination of unfitness").
The judge credited the mother's engagement in her action
plan, including her participation in individual counselling and
parenting classes. But he found that her relationship with
father "in part shape[d] her level of engagement with the
[d]epartment." At visits, the mother struggled to control Ivo's
behavior and to care for all the children at the same time.
"[M]ere participation in the services [recommended by the
department] does not render a parent fit 'without evidence of
appreciable improvement in [their] ability to meet the needs of
the child[ren].'" Adoption of Ulrich, 94 Mass. App. Ct. at 677,
quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836
(2003).
The judge's conclusion that, despite the mother's
attendance at classes on domestic violence and parenting, she
did not disengage from a violent relationship with the father
11 was well grounded in the evidence. The father's minimal
engagement with his action plan similarly failed to result in
appreciable improvement in his ability to meet the children's
needs, as the judge appropriately found.
c. Other evidence of unfitness. The judge also considered
other evidence relevant to unfitness including (1) both parents'
criminal conduct, see Care & Protection of Frank, 409 Mass. 492,
495 (1991) (judge properly considered parent's criminal conduct
as relevant to unfitness); (2) the parents' inability to
recognize or manage Ivo and Emily's emotional needs and
behavioral issues, see Adoption of Paula, 420 Mass. 716, 730
(1995) (participation in services "had not appreciably improved
[the mother's] capacity to 'meet the complex emotional and
physical needs of her children'"); and (3) the stability of the
parents' employment and living arrangements, see Adoption of
Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) ("It is in the best
interests of [the children] to have 'parents' who can and who
will, on a consistent, long term basis, assume all parental
responsibilities and who can provide [the children] with the
stable and continuous care and nurturing [they] need[] and will
continue to need").3 "[A]lthough the judge's findings on
3 Both parents maintained that certain findings were clearly erroneous, but most of these challenges "amount to no more than a disagreement with the judge's weighing of the evidence and
12 [certain] points may have been erroneous, the judge's over-all
conclusion of parental unfitness is fully supported by the
record." Adoption of Helen, 429 Mass. 856, 860 (1999).
A "judge is not required to grant [a parent] an indefinite
opportunity for reform." Adoption of Cadence, 81 Mass. App. Ct.
162, 169 (2012). See Adoption of Nancy, 443 Mass. at 517.
Given the "fleeting" nature of childhood and the judge's
findings, supported by the record, that the parents did not make
substantial progress to acknowledge and address the domestic
abuse in the years between losing custody of the older children
and trial, we conclude that the judge paid careful attention to
the evidence and therefore did not abuse his discretion. See
Adoption of Ilona, 459 Mass. at 60.
3. Posttermination and postadoption visitation. The
mother maintains it was error to leave future contact between
the parents and children in the discretion of the legal
custodian. "A trial judge's decision whether to order
credibility determinations regarding the witnesses." Adoption of Don, 435 Mass 158, 166 (2001). To the extent the judge erred by drawing a negative inference from mother's nonattendance at one day of trial -- a matter as to which the record is ambiguous and the judge's knowledge superior to ours -- or misidentified to whom the mother lied and for how long, these errors were "not central to the ultimate conclusion of unfitness" when the primary concerns were the parents' failure to address the ongoing intimate partner violence and their ongoing, deliberate deception of the department. Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
13 visitation between a child and a parent whose parental rights
have been terminated is reviewed for an abuse of discretion."
Adoption of Xarissa, 99 Mass. App. Ct. at 623-624. In
determining whether such visitation is in a child's best
interests, the judge must consider whether the child has a
"significant, existing bond with the biological parent" and
whether "the child has formed strong, nurturing bonds" with a
preadoptive family. Adoption of Ilona, 459 Mass. at 63-64,
quoting Adoption of Vito, 431 Mass. 550, 563 (2000). "A judge
should issue an order of visitation only if such an order, on
balance, is necessary to protect the child[ren]'s best
interest[s]." Adoption of Ilona, supra.
The judge's findings recognized the mother's continued
relationship and contact with the children. The judge found
that Ivo still experienced behavioral challenges in his foster
care placement but was participating in trauma therapy while the
department sought a placement that supported his needs. Emily
and Laura have been out of the mother's care since they were
infants, and there was testimony that the children are
"adapting" to the preadoptive home and the children seemed
"happy [and] comfortable."
"There is no reason to question the presumption that [the
children's] preadoptive parents will act in [their] best
interest[s]" in determining whether continued visitation with
14 the mother is in their best interests; "nor is there any
compelling reason requiring that a visitation order be entered
in order to protect the best interests of the child[ren]."
Adoption of Ilona, 459 Mass. at 66. "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. "The judge therefore did not abuse his
discretion in leaving the issue of visitation to the sound
judgment of the [legal custodians] who will be in the best
position to gauge whether such visits continue to serve the
[children's] best interest[s]." Adoption of Ilona, supra.
Decrees affirmed.
By the Court (Vuono, Singh & Hershfang, JJ.4),
Clerk
Entered: March 11, 2025.
4 The panelists are listed in order of seniority.