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-1504
ADOPTION OF KATORI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found the mother and
the father unfit to parent their child and terminated their
parental rights to their daughter, Katori. 1 On appeal, the
mother and the father separately challenge the judge's finding
of parental unfitness, contending that it is not supported by
clear and convincing evidence. The mother also argues that the
judge erred in concluding that the Department of Children and
Families ("the department" or "DCF") made reasonable efforts to
reunify her and the child. She also argues that the judge
relied on stale information, failing to consider the positive
steps she had taken to address her deficiencies as a parent.
The father argues that the judge erred in admitting certain
1 A pseudonym. hearsay statements included in documentary evidence while
unfairly denying his rebuttal evidence. The father also takes
issue with the judge's reliance on a criminal charge in which
the father was found not guilty and on an open criminal charge
relating to a charge of witness intimidation. We affirm.
Background. We recount the relevant facts from the judge's
well-documented and thoughtful findings, reserving certain
details for later discussion. The mother has six children; she
shares three daughters with the father, including Katori. The
father has five children, including the three he shares with the
mother. Both the mother and the father have a long history with
the department prior to the birth of Katori, who was born on
February 9, 2020 and was removed from their custody two days
after her birth. 2 The mother's and the father's parental rights
have been terminated as to two of the three children they share.
The mother's parental rights have also been terminated as to one
of her older children such that she has custody of only one
daughter. The father's parental rights also have been
terminated as to his daughter from another relationship
(Katori's half-sister); he has custody of none of his children.
2 Both parents had been involved with the department years before they met one another; father had supported allegations of physical abuse of his oldest child and mother had supported allegations of neglect of three of her children.
2 Both the mother and the father suffer from mental health
issues, and each has a history of substance misuse. The mother
has been diagnosed with posttraumatic stress disorder (PTSD),
anxiety, depression, and borderline personality disorder. In
the past the mother has been addicted to cocaine and admitted to
using cocaine while pregnant with her older daughter, and later
became addicted to Adderall and Klonopin. The father reported
being diagnosed with attention deficit disorder (ADD), attention
deficit hyperactivity disorder (ADHD), bipolar disorder, mild
Tourette's Syndrome, depression, and anxiety. The father also
has a history of housing instability and has not been employed
full time since 2010. The father has admitted to a history of
cocaine and alcohol use, but denies alcohol abuse.
The mother and the father dated in 2014, separated in 2015,
and then reunited and married in 2016. Their relationship was
marred by domestic violence and turmoil. There also is a
history of domestic violence in the mother's past relationships.
The father denied being physically abusive to the mother but did
admit to being verbally and mentally abusive.
As a couple, the parents have been the subject of numerous
reports alleging neglect and abuse under G. L. c. 119, § 51A
("51A reports") and investigations under G. L. c. 119, § 51B
("51B reports). In 2014, allegations of neglect of the mother's
three children were supported when the mother left the children
3 with her parents and, by doing so, exposed them to domestic
violence. In 2017, allegations of neglect were supported when
the mother approached one of the children as if to strike her,
and the child fell off the bed and was injured.
In June and July of 2018, a series of 51A reports were
filed alleging physical abuse by the father and neglect by the
mother of the mother and father's two daughters and the father's
daughter, Katori's half-sister. Videotape depicted the father
choking, punching, and knocking down the half-sister and
threatening her and the mother. Another videotape depicted the
father choking the mother and banging her head against the wall
in the presence of several of the children. 3
In addition, a July 2018 51A report alleged that the half-
sister had revealed that the mother had punched the half-sister
on her thighs and arms, leaving bruises; pushed her into
furniture; and that the half sister had witnessed the mother
hitting other half-siblings and the family dog. It also alleged
that the half-sister had made suicidal statements to the father,
who never took steps to have her evaluated by appropriate crisis
professionals. Ultimately, the father was charged criminally
with assault and battery when the half-sister disclosed that the
3 In one of the 51A reports, the mother admitted to the social worker that the father had choked the half-sister.
4 father had punched, slapped, and pushed her head into a
refrigerator, and that she required staples to stop the
bleeding. He was later acquitted.
The children were removed from the home on June 21, 2018.
The department remained involved with the mother and the father
throughout 2019,investigating abuse and neglect allegations as
well as implementing action plans to assist the family. In
April of 2022, however, the mother and father's parental rights
of the two other children they shared were terminated.
Two days after Katori's birth, a 51A report was filed
alleging that the child was at risk of neglect and physical
abuse. The department investigated and found that although
Katori had been in the home for only three hours, she smelled
severely like smoke and urine, and a dirty pack and play that
was filled with clothes, belts, tools, and other unsafe items
was the planned sleeping location for Katori. The department
supported allegations of neglect by the mother and the father
due to the significant history of allegations of abuse, neglect,
and domestic violence, and removed Katori from the home.
Although the initial plan was for permanency through
reunification, the goal later changed to adoption.
Trial occurred on January 10, 2023, and continued for six
non-consecutive days concluding on April 13, 2023. The trial
judge heard from seven witnesses and 108 exhibits were
5 introduced into evidence. In a detailed written decision, the
judge made 291 findings of fact and 45 conclusions of law,
finding that the parents had not meaningfully participated in
their action plans or otherwise addressed their histories of
substance misuse, domestic violence, and abuse and neglect of
their older children such that the judge could conclude that
they would provide acceptable care for Katori. The judge found
that the parents failed to demonstrate improved parenting skills
or an understanding of the potential impacts of domestic
violence on Katori should she be returned to them. The judge
concluded that the mother and the father were unfit and that the
child's best interests were served by the termination of
parental rights.
Discussion. 1. Standard of review. "To terminate parental
rights to a child, the judge must find, by clear and convincing
evidence, that the parent is unfit and that the child's 'best
interests will be served by terminating the legal relation
between parent and child.'" Adoption of Luc, 484 Mass. 139, 144
(2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). The
department bears the burden of proof as to both unfitness and
the child's best interests. See Care & Protection of Erin, 443
Mass. 567, 571 (2005). "While a decision of unfitness must be
supported by clear and convincing evidence, . . . a judge's
findings will be disturbed only if they are clearly erroneous."
6 Adoption of Paula, 420 Mass. 716, 729 (1995). "A finding is
clearly erroneous when there is no evidence to support it, or
when, although there is evidence to support it, the reviewing
court is left with the definite and firm conviction that a
mistake has been committed" (quotation and citation omitted).
Adoption of Rhona, 57 Mass. App. Ct. 479, 482 (2003).
2. Unfitness and termination of parental rights. The
mother and the father each challenge the judge's determination
of unfitness. Parental unfitness is "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 well established that
exposure to domestic violence works a 'distinctly grievous kind
of harm' on children, . . . and instances of such familial
violence are compelling evidence for a finding of parental
unfitness." Adoption of Talik, 92 Mass. App. Ct. 367, 374
(2017), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).
"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. 258, 265 (2021).
We need not detail the parents' failings and actions set
forth at length in the judge's comprehensive findings of facts.
The evidence more than supported findings of unfitness of both
7 the mother and the father as both had issues with untreated
substance misuse, mental health, and domestic violence. The
trial judge carefully considered and chronicled the long history
of domestic violence between the mother and the father, and that
at times the violence extended to the older children. The trial
evidence included a videotape of violent physical abuse of
Katori's half-sister by the father while the mother was present
but did not intervene. It also included two videotapes in which
the father violently assaulted the mother in the presence of the
children as well as other documented reports of physical abuse
and neglect of the children. It was appropriate for the judge
to consider the evidence of a decade's worth of abuse that
occurred in the family when determining parental fitness.
"[P]hysical force within the family is both intolerable and too
readily tolerated, and . . . a child who has been either the
victim or the spectator of such abuse suffers a distinctly
grievous kind of harm." Adoption of Garret, 92 Mass. App.
Ct.664, 671 (2018), quoting Custody of Vaughn, 422 Mass. 590,
595 (1996). Further, the judge found that "neither [the mother
or the father] have demonstrated any understanding of how their
perpetuation of a chaotic household filled with dysfunction and
domestic violence impacted their older children and would impact
[Katori] should she be returned to their care."
8 As to the father's unfitness, the evidence of abuse in the
records and depicted in the videotape evidence amply supported
the judge's findings that the father physically abused the
mother and the half-sister. Although the father offered
explanations that he grabbed the mother by the neck because she
was attempting to swallow a large amount of pills and that his
grabbing of the half-sister was play fighting rather than real
violence, the judge was not required to credit these
explanations. Nor was the judge required to accept the father's
explanation that, on a different occasion, he did not punch the
half-sister and bang her head into the refrigerator but rather
that the child slipped in the kitchen and accidentally hit her
head. And, although the mother denied that the father was
physically violent towards her or the children, the judge "was
not obliged to believe the mother's testimony" (citation
omitted). Custody of Eleanor, 414 Mass. 795, 800 (1993). The
judge made numerous findings, none of which are contested,
describing an environment in which the father was physically and
verbally abusive to the mother and both the mother and the
father were physically and verbally abusive to, and neglectful
of their children. The father failed to meaningfully engage in
the department's plan to address his deficiencies. For example,
he refused engage in a substance misuse program, and, since
2021, has failed to engage with an individual counselor. The
9 father first admitted and then later denied being physically
abusive to the mother and the children and engaged in domestic
violence programming only geared toward being a victim and not a
perpetrator of domestic violence. At times, the father refused
to allow the department to conduct home visits, failed to gain
insight into his behaviors after attending a father's group, and
failed to have meaningful interaction with Katori during
supervised visitation.
The mother claims that, while she may have had
shortcomings, the judge failed to consider her current fitness
and instead relied upon past incidents of neglect and abuse.
Specifically, the mother argues that instead of basing a
decision based upon the significant changes she had made in her
life, the judge ignored or did not properly consider her
sobriety, stable employment, and engagement in domestic violence
programming. We disagree, as many of the mother's arguments
"amount to no more than a disagreement with the judge's weighing
of the evidence and credibility determinations regarding
witnesses." Adoption of Don, 435 Mass. 158, 166 (2001).
Contrary to the mother's claim, the judge did not ignore
evidence favorable to the mother. The judge acknowledged that
the mother had engaged in some treatment and that she was now
employed full-time. The judge also credited the mother with
being "overall consistent" in her attendance at visits with
10 Katori. However, despite a self-reported sobriety date of 2019,
the mother did not provide drug screens or prepare a relapse
prevention plan to support her claim of sobriety. Moreover,
while the mother had participated in individual therapy until
2021, she had not reengaged in therapy despite a referral by the
department. The judge did fairly consider what the mother had
accomplished, but, "[e]ven 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 a sufficient likelihood that the parent's
unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60.
See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019)
(parent's failure to benefit from services "relevant to the
determination of unfitness" [citation omitted]). In making the
determination of unfitness, the judge did not err in concluding
that the mother's failure to engage in and complete treatment
for the very issues that resulted in her separation from her
child (domestic violence, substance misuse, lack of parenting
skills, untreated mental health) supported the conclusion that
the Katori would be subject to abuse and neglect if she were
reunited with the mother.
In short, both parents had significant shortcomings, and
neither parent took sufficient steps to change their behavior.
The evidence was clear and convincing and amply supported the
11 judge's determination that both the mother and the father were
unfit to parent Katori and that their unfitness was not
temporary.
3. Reasonable efforts. For the first time on appeal, the
mother claims that the department failed to take reasonable
steps to reunify her with Katori. "Before seeking to terminate
parental rights, [the department] must make 'reasonable efforts'
aimed at restoring the child to the care of the . . . parents"
(citation omitted). Adoption of Uday, 91 Mass. App. Ct. 51, 53
(2017). A judge's decision that the department has made
reasonable efforts will not be overturned unless it is clearly
erroneous. Adoption of Ilona, 459 Mass. at 62. "It is well-
established that a parent must raise a claim of inadequate
services in a timely manner." Adoption of West, 97 Mass. App.
Ct. 238, 242 (2020), quoting Adoption of Daisy, 77 Mass. App.
Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). The time to
make such a claim is either when the parenting plan is adopted
or when the parent receives the services. See Adoption of West,
supra.
The mother did not raise her claim of inadequate services
in a timely fashion as she had filed a "no reasonable efforts"
motion in the trial court but withdrew it just two weeks later.
However, even if the claim had been preserved, the claim must
fail on the facts of this case. Here, the department created
12 six separate action plans designed to facilitate the mother in
changing her approach to parenting her child, including
addressing the pattern of domestic abuse she had suffered and
appreciating its harmful impact on her children. The mother has
failed to articulate how, even though she did not avail herself
of most of the services offered, the department has failed to
provide reasonable efforts at reunification. 4 In short, there
was no error in the judge's determination that the department
made reasonable efforts.
4. Evidentiary rulings. The father contends that the
judge erred in admitting multilevel hearsay contained in the
department's report relating to the abuse of Katori's half-
sister. At trial, the department introduced a DCF report in
which half-sister admitted that she lied at the father's
criminal trial when she testified that the father did not hit
her. In the report, the half-sister confirms that the father
had in fact hit her but that the father had threatened to reduce
his visitation time with her if she did not testify at trial
that the two were play-fighting. The father's trial counsel
attempted to introduce the trial transcript of the criminal
To the extent that mother suggests that the department 4
acted too quickly in removing Katori without making "reasonable efforts" to keep mother and child together, this issue is not properly before us as it was not raised at the emergency removal hearing.
13 trial in which the half-sister testified that the father did not
abuse her. The trial judge denied the admission of this
evidence, but specifically told counsel that the evidence could
be admitted if the half-sister was called to testify. The
hearsay statement contained in the DCF report was admissible
because the hearsay statement was from a person who was both
identified and available for cross-examination. See Adoption of
Luc, 484 Mass. at 152. The trial judge properly admitted the
hearsay evidence and then guided counsel for the father how to
properly introduce the evidence that half-sister had testified
at a criminal proceeding that the father had not assault her.
The judge was correct in ruling that the trial transcripts from
the criminal trial were not admissible to rebut the DCF report,
but that the testimony was admissible if counsel called the
half-sister to testify. The father chose not to call the half-
sister and cannot now complain about his trial strategy. To the
extent that the father claims that the Supreme Judicial Court,
in Adoption of Luc, supra, improperly shifted the burden of
proof from the department to the parents by allowing the
department to engage in an unchecked "document dump," we are
unpersuaded.
5. Criminal history of the father. Finally, the father
claims that the trial judge erred in (1) relying on criminal
charges that he assaulted the half-sister because he was found
14 not guilty of those charges, and (2) relying on open charges of
intimidation of a witness because the judge mistakenly believed
the charge involved intimidation of the half-sister.
First, the father has offered no relevant caselaw to
support his position that a finding of not guilty in a criminal
trial requires a judge to ignore the underlying factual evidence
that may be relevant to a determination of parental fitness. In
fact, the cases cited by the father are inapposite. See Care &
Protection of Frank, 409 Mass. 492, 494 (1991) (testimony of a
police officer and a police report detailing observations of
mother's conduct properly admitted even though one of two
criminal charges was dismissed). In Care & Protection of Frank,
supra at 496, the mother also objected to the admission of a
police report describing her as intoxicated and boisterous, and
describing the apartment as 'a complete mess,' because the
report constituted "evidence of criminal conduct" used to prove
the mother's unfitness. The Supreme Judicial Court disagreed.
Even if the police report contained evidence of uncharged
criminal conduct, the court decided that it was still admissible
because it contained personal observations by a police officer
relevant to the mother's parental fitness. Id. at 497-498. In
sum, our cases do not prohibit a judge from assessing underlying
conduct that forms the basis of a criminal prosecution if it
bears on the determination of fitness. Furthermore, given the
15 multitude of factors the judge considered when determining the
father's ability to parent his child, the father's single
criminal charge did not play a prominent factor in the analysis.
Lastly, the father argues that the judge erred in finding
that, at the time of trial, the father had an open charge of
intimidating half-sister by pressuring her to lie at his
criminal trial. In fact, the open intimidation of a witness
charge was not related to half-sister and this one particular
finding of fact is in error. However, this one error does not
result in the nullification of 290 other findings of fact which
were properly found by the judge. In particular, the judge
credited evidence that the father had intimidated the half-
sister to lie at his criminal trial, and that half-sister later
recanted this testimony and again asserted that the father had
physically abused her and threatened her. The judge's fleeting
reference to an open charge of witness intimidation and mistaken
16 connection to the half-sister, when considered in light of all
of the factual findings, was harmless.
Decrees affirmed.
By the Court (Meade, Walsh & Smyth, JJ. 5),
Clerk
Entered: December 11, 2024.
5 The panelists are listed in order of seniority.