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-821
ADOPTION OF NASSER. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree of a Juvenile Court judge
finding her unfit to parent her son Nasser and terminating her
parental rights. The mother challenges the determination of
unfitness and argues that several of the judge's findings are
clearly erroneous. We affirm.
Background. The mother has been involved with the
Department of Children and Families (department) since 2001.
Nasser is not the mother's only child; she has several older
children that were no longer in her care at the time of trial,
as a result of separate care and protection actions in 2005 and
2014. Both prior petitions were motivated, in part, by the
department's concerns over neglect, exposure to physical and
sexual abuse, mental health problems, inadequate housing, and
domestic violence.
1 A pseudonym. The child was born in June 2015. He spent his first three
years in the mother's care; he has had no contact with the
father. 2 The department filed the instant care and protection
petition in December 2018 (when the child was three) due to
concerns that the mother was not adequately supervising the
child, had ceased services for the child despite his ongoing
needs, and had allowed her eldest son, Brian, 3 access to the
child despite allegations that Brian had sexually assaulted his
younger sister, Mary (another of the mother's children). The
department was granted temporary custody of the child on
December 21, 2018. In October 2019, the department changed the
child's permanency goal from reunification to adoption. In
October of 2021, the father separately agreed to the termination
of his parental rights to the child. After an eight-day trial
between October 2021 and June 2022, the mother was found to be
unfit and her parental rights were terminated. This appeal
followed.
We summarize the judge's key findings, which address
multiple areas of concern.
2 Nasser's father is also the father of some, but not all, of the mother's older children. We refer to him as "the father" throughout this decision.
3 The names of the older children are also pseudonyms.
2 1. Domestic violence. The mother has been in several
relationships involving domestic violence since her first
involvement with the department in 2001. Several of the
mother's previous partners physically and emotionally abused
both the mother and her children. The mother's relationship
with the father was marked by severe domestic violence, often
perpetrated on the children. The mother admitted that she was
unable to recognize the red flags of physical abuse of her
children at the time. The father was charged criminally after
two of the mother's older daughters disclosed that the father
had sexually abused each of them, and had otherwise physically
abused one of them. The mother obtained a lifetime restraining
order against the father in November of 2018, which includes all
of her children.
In addition, two other more recent partners showed signs of
controlling behavior in their relationships with the mother; one
broke into the mother's e-mail account and changed the password,
and the other tried to isolate the mother from friends and
family.
2. Neglect. The mother's conduct demonstrated a pattern
of neglect of her children's safety and needs. Since 2001,
there have been multiple reports pursuant to G. L. c. 119, § 51A
(51A reports), alleging neglect. Many of these 51A reports were
ultimately supported upon investigation.
3 In 2002, a 51A report alleged that the mother neglected her
two eldest sons by disregarding the risk of their exposure to
domestic violence, in particular from her abusive then-partner.
Many subsequent 51A reports expressed concerns over the mother's
failure to protect her children from exposure to domestic
violence, substance abuse, and housing insecurity. Specifically
with respect to the child at issue (Nasser), in 2015, when he
was five months old, a 51A report was filed following a physical
altercation between the mother and her sister. The mother was
holding the child at the time. Thereafter, when the child was
one year old, a 51A report was filed alleging that the mother
drove while intoxicated while the child was in the vehicle.
At the time of trial, there were abiding concerns regarding
the mother's failure to protect the child from Brian, who had
been charged with the sexual abuse of several of his other,
younger siblings. Brian's violent conduct has been a persistent
issue since at least some time in 2005, when a 51A report was
filed alleging that mother failed to provide age-appropriate
supervision for her children after Brian pushed a younger
brother out of a three-story window.
In 2018, several 51A reports were filed concerning Mary's
disclosure of years of sexual abuse by Brian. 4 In September of
4 The mother testified that upon learning of the abuse, she removed her younger children from the maternal grandmother's
4 2018, Brian was criminally charged with incest and rape of a
child. He was released on his own recognizance and, as a
condition of his release, ordered to have no contact with Mary
and no unsupervised contact with any children under the age of
fourteen. Upon Brian's release, the mother agreed to a safety
plan that specified that Brian would not live in the same house
as the child. However, after the mother failed to bring the
child to visit with his siblings later in the fall of 2018, the
department grew concerned that the mother and child were again
residing with Brian. The police conducted a well-being check
and discovered that the mother and child were indeed present
with Brian at the maternal grandmother's house. The mother told
police that while she and the child regularly resided in the
maternal grandmother's home, they slept in a locked room away
from Brian. At trial, the mother admitted the risk that Brian
posed to the child.
Concerned that the department would remove the child from
her custody, in October of 2018 the mother left Massachusetts
home where she had been living with Brian. However, another 51A report alleged that the mother failed to contact the police until one week after Mary's initial disclosure, and that the mother had allowed her daughters to remain in the maternal grandmother's home with Brian the evening the disclosure was made, despite the department's instructions to return the children to their foster placements. While these allegations were initially supported, upon further review the department ultimately found them not supported.
5 for Ohio, without informing the department. The department
remained unsure of the whereabouts of both the mother and the
child until December of 2018, when the mother produced the child
after the department filed a motion in the Juvenile Court to
compel his production. After a hearing, the judge granted the
department temporary custody of the child. At a February 2019
foster care review, the department determined that the mother
had demonstrated insufficient behavioral changes to mitigate the
risks posed to the child. As a result, in October 2019 the
department changed the child's permanency plan from
reunification to adoption.
3. The child's special needs. Due to concerns over speech
and other developmental delays, the child was assessed for early
intervention services in 2017, at age two. While the child's
daycare provider suggested the child see certain specialized
providers, the mother never acted on these referrals. Rather,
the mother terminated early intervention services and unenrolled
the child from daycare in 2018. In March of 2019, after the
child was removed from the mother's custody, he was referred for
an assessment regarding his special needs, at which time he was
diagnosed with autism. The mother questioned the child's autism
diagnosis and, at trial, admitted that she failed to participate
in the child's evaluation on two occasions despite having been
6 asked to cooperate by providing information about the child's
early life.
Since entering the department's care, the child has
received speech therapy through his individualized education
plan. At the conclusion of trial, the Juvenile Court judge
determined that while the child has shown significant
improvement in speech, motor control, and behavior issues, he
will continue to require multiple special services as he ages.
4. The mother's mental health. The mother was diagnosed
with bipolar disorder in 2007, at which point she admitted to
having homicidal thoughts toward her children. Her disorder has
caused symptoms such as insomnia, excessive sleeping, sadness,
racing thoughts, and depression. She has also been diagnosed
with anxiety and posttraumatic stress disorder (PTSD). The
mother testified that her illnesses have made it difficult to
work and have caused her to miss meetings regarding the child's
care. The mother attempted suicide on two occasions in 2020,
and was hospitalized for over a week after each incident.
5. Unstable housing and employment. At the time of trial,
the mother was unemployed and had begun receiving Social
Security benefits. The mother has moved many times and has
experienced periods of housing instability. In 2008, she was
unable to remain in low-income housing due to numerous police
responses to her residence related to domestic violence. In
7 2014, the family was homeless after they were evicted from their
residence in Rhode Island. Also in 2014, the family, including
six children, lived in a nonoperational van because their past
behavior in shelters rendered them ineligible for continued
access.
After the child was born, the mother predominantly lived
with the maternal grandmother. The mother admitted to leaving
Massachusetts with the child and to residing in Ohio and
Connecticut. Since the child was removed from her care, the
mother has lived with various partners, the maternal
grandmother, and in a housing program called CHANCE. When trial
commenced, the mother was living with the maternal grandmother.
6. The child's preadoptive home. The child was placed in
a preadoptive home in February of 2020. The child's preadoptive
parents have cooperated with his providers, and he has made
significant strides toward achieving his developmental goals.
The child is bonded to his preadoptive parents, turning to them
for help when in need and calling them "mom" and "dad." The
child reported that he wanted to be adopted by his preadoptive
parents.
Discussion. On appeal, the mother challenges the judge's
reliance on the family's history of domestic violence and
certain allegations of her neglect. The mother also argues that
the judge committed clear error in multiple regards, among them
8 (1) improperly relying on a G. L. c. 119, § 51B, report that
first supported but, after further review, ultimately did not
support allegations of the mother's neglect; (2) discrediting
the testimony of the mother's therapist based on her licensure
status; (3) faulting the mother for visiting with Brian; and (4)
concluding that the mother could not sufficiently benefit from
therapy, because she did not inform her therapist that the child
was removed after the department discovered him in the same
residence as Brian. The mother does not, however, challenge
other evidentiary bases for the judge's ultimate finding of
unfitness. These include multiple episodes of neglect of both
the child and his older siblings, persistent mental health
issues spanning many years, and unstable housing and employment.
Accordingly, while we acknowledge that some of the mother's
challenges to the judge's findings have merit, we conclude that
the finding of unfitness is supported based on the substantial
evidence that the mother does not challenge, which is compelling
and which is not materially undermined by the errors to which
the mother points.
1. Standards for determining unfitness. We review a
decision to terminate parental rights for abuse of discretion or
clear error of law. Adoption of Elena, 446 Mass. 24, 30 (2006).
We afford deference to the trial "judge's assessment of the
weight of the evidence and the credibility of the witnesses"
9 (citation omitted). Adoption of Quentin, 424 Mass. 882, 886
(1997). To terminate parental rights, the trial 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). The judge must
consider "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
Quentin, supra, quoting Adoption of Mary, 414 Mass. 705, 711
(1993).
Here the evidence of the mother's unfitness falls into
several categories -- neglect, exposure of her children to
domestic violence, mental health issues, and unstable housing
and employment.
a. Neglect. In evaluating parental fitness, the judge may
"rely upon prior patterns of ongoing, repeated, serious parental
neglect." Adoption of Kimberly, 414 Mass. 526, 529 (1993),
quoting Adoption of Diane, 400 Mass. 196, 204 (1987). However,
reliance on such evidence is only proper "to the extent that
[it] has relevance to current parental fitness." Adoption of
Cesar, 67 Mass. App. Ct. 708, 712 (2006).
10 Here, the documented history of the mother's neglect is
substantial. In the months following the child's birth, 51A
reports were filed containing allegations of the mother's
neglect of the child on two occasions; one involving a physical
altercation between the mother and her sister while the mother
was holding the child in her arms, and the second involving the
mother's alleged operation of a vehicle while intoxicated while
the child was inside. The mother also never followed through
after the child's daycare provider made referrals to providers,
amidst growing concerns regarding the child's speech and
behavioral development. In 2018, despite the mother's knowledge
of such concerns, she terminated early intervention services and
unenrolled the child from daycare. At various points, the
mother questioned the child's autism diagnosis and failed to
cooperate effectively in his treatment. Furthermore, the mother
failed to keep the child away from Brian, despite the
acknowledged risk that Brian posed to the child. After Brian's
release following charges of rape, and after agreeing to a
safety plan that prohibited the mother from residing with the
child in Brian's place of abode, the mother returned to a
residence shared with Brian.
The mother takes issue with the judge's reliance on what
she alleges is stale evidence of her neglect of the older
children. However, judges "may rely upon a parent's past
11 conduct with regard to older children to support a finding of
current unfitness as to a different child." Adoption of Luc,
484 Mass. 139, 145 (2020). Indeed, the governing statute states
that "the court shall consider" whether a "member of the
immediate family of the child has been abused or neglected as a
result of the acts or omissions of one or both parents" and any
"severe or repetitive conduct of a physically, emotionally or
sexually abusive or neglectful nature . . . toward another child
in the home." G. L. c. 210, § 3 (c) (ii) & (ix).
The mother failed to protect several of her older children
from threats posed by the father and by Brian. Several of the
older children were sexually and physically abused by the
father, sometimes with the mother present. In 2005, Brian
pushed a younger sibling out of a three-story window while they
were under the mother's care. During visits with the mother,
Brian sexually abused Mary, without the mother's knowledge. The
mother also allowed two of her daughters to remain overnight in
a residence where Brian was present, after Mary had disclosed
sexual abuse by Brian.
b. Domestic violence. Domestic violence is "highly
relevant to a judge's determination of parental unfitness."
Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005).
This court has clarified that a parent's improvements in
addressing domestic violence do "not preclude consideration of
12 past behavior as a means of predicting the likely future." Care
& Protection of Olga, 57 Mass. App. Ct. 821, 830 (2003).
The mother has a long history of choosing partners that
proved abusive both to her and to her children. She admitted
that in the past she was unable to recognize the red flags of
physical abuse of her children. The mother argues that while
she may have been unable to appropriately address the risk of
domestic violence in the past, two of her recent relationships
show an improvement in her ability to choose less dangerous
partners. The judge considered both relationships and found
that both partners showed signs of controlling behavior. It was
appropriate for the judge to consider these partners'
controlling behavior in evaluating whether the child is at risk
of exposure to domestic violence in the future. See Adoption of
Jacob, 99 Mass. App. Ct. 258, 264 (2021) (controlling and
threatening behavior toward mother, including confiscating her
cell phone, was relevant to judge's finding of unfitness).
c. Mental health issues. A parent's mental health is
relevant to a determination of their fitness if the issues
"affect[] the parents' capacity to assume parental
responsibility, and ability to deal with a child's special
needs." Adoption of Frederick, 405 Mass. 1, 9 (1989). The
mother has been diagnosed with bipolar disorder, PTSD, and
anxiety. The mother's issues have made it difficult for her to
13 work, and she admits that her illnesses have made it challenging
to attend meetings concerning the care of the child. The mother
also attempted suicide twice in the year before the trial began,
which led to hospitalizations of over one week.
d. Unstable housing and employment. Chronic unemployment
and an inability to maintain stable housing may be considered in
determining parental fitness. See Adoption of Azziza, 77 Mass.
App. Ct. 363, 365 (2010); Care & Protection of Lillith, 61 Mass.
App. Ct. 139, 136 (2004) (frequent moving with child was
properly considered in evaluating parental fitness).
At the time of trial the mother was unemployed. The mother
has also been unable to maintain stable housing throughout much
of her involvement with the department. She has lived in
shelters, has been homeless, has lived with abusive partners,
and has relied on her mother to shelter her. She has been
evicted from low-income housing due to domestic violence-related
police responses to her residence. Immediately prior to the
child entering the department's custody, the mother fled the
Commonwealth and resided in both Ohio and Connecticut, all
without informing the department of her or the child's
whereabouts.
In view of the foregoing, the judge's finding of unfitness
is well supported by the evidence.
14 2. The mother's allegations of error by the judge. In
addition to the arguments discussed above, the mother contends
that the judge erred in several other respects. We consider
below those arguments that merit further discussion. While the
mother's arguments regarding certain of the judge's findings and
conclusions have merit, such challenges do not warrant our
disturbance of the judge's ultimate finding of unfitness.
a. Discrediting the testimony of the mother's therapist.
The mother began seeing a new therapist, Stephanie Hill, in
2020. Hill testified on the mother's behalf at trial, but the
judge found that Hill was not a licensed therapist within the
Commonwealth and thus, that she was not "an adequate mental
health professional capable of assisting [the] [m]other in
treating her mental health issues." Hill testified that while
she holds herself out as a counsellor, she does not currently
have a license in Massachusetts. The mother contends that it
was error for the judge to discredit Hill's testimony based on
her licensure status, and that this prejudiced the mother
because it contributed to findings that the mother failed to
adequately address her mental health issues. We note that the
relevant language of the department's action plan stated that
the mother agreed to "engage in individual counselling to
address and process her traumas, losses, and history of domestic
violence." It did not stipulate that the mother was to see a
15 therapist licensed in Massachusetts. Where the department was
apparently aware of the therapist the mother was seeing and made
no objection, it was inappropriate to criticize the mother for
her choice of therapist and to discredit Hill's testimony on the
basis that she was not licensed as of the time of trial. 5
b. Faulting the mother for visiting with Brian. A
parent's "refusal . . . to maintain service plans, visitation
schedules, and counseling programs designed to strengthen the
family unit are relevant to the determination of unfitness."
Petitions of Dep't of Social Servs. to Dispense with Consent to
Adoption, 399 Mass. 279, 289 (1987). The department's safety
plan, to which mother agreed, stated that she could not reside
with the child in the same place as Brian. Nevertheless, in
conducting a well-being check police found the mother and the
child present with Brian at the maternal grandmother's house.
Citing this episode, among other evidence, the judge concluded
that the mother is unable to set boundaries with Brian and that
this causes instability in the child's life. While this
conclusion was well grounded the judge went further, and also
faulted the mother for "fail[ing] to take a side" between Mary
5 The mother makes a related argument concerning the judge's failure to qualify another of her witnesses, Julie Montminy, PhD, as an expert witness. There was no error as to Dr. Montminy, however, because the mother's counsel had explicitly stated that she would not be proffering Dr. Montminy as an expert witness.
16 and Brian after Mary disclosed Brian's sexual abuse, and of
"desir[ing] to continue a relationship with Brian." The mother
argues that in faulting her for visiting with Brian, the judge
effectively asked her to choose between two of her children.
While it was proper for the judge to consider the mother's
noncompliance with a safety plan designed to protect the
interests of the child, nothing in the record indicates that the
plan prohibited the mother from maintaining her own relationship
with Brian. Accordingly, it was inappropriate to give weight to
the mother's desire to remain connected with another of the
children in finding her unfit to parent the child.
c. Reliance on unsupported allegations in 51A reports. In
finding the mother unfit, the judge also relied on allegations
in several 51A reports, including that the mother delayed in
informing the department of her daughter's disclosure of sexual
abuse by Brian and that she failed to heed the department's
instruction that she bring her daughters back to their foster
placement on the evening of the disclosure. The mother argues
that it was error for the judge to rely on these allegations
because, while they were initially supported, they were
ultimately found unsupported upon review. We agree that the
judge's reliance on the unsupported allegations was improper.
d. Faulting the mother for failing to disclose certain
facts to her therapist. Finally, the judge faulted the mother
17 for failing to disclose during therapy that the child had been
removed from her custody after the department discovered him
present with Brian in the maternal grandmother's home in
violation of the family's safety plan. The judge did not
explain his reasoning in this regard, or why the nondisclosure
evidenced an inability to benefit from therapy.
18 Conclusion. In sum, the judge found that the mother had
engaged in serious neglect, and had significant and recurring
problems with domestic violence, mental illness, housing and
employment. Although the judge's decision was not without
error, as discussed above, those errors do not materially
undermine the judge's other findings and fundamental concerns.
The decree is affirmed.
So ordered.
By the Court (Englander, Hand & Brennan, JJ. 6),
Assistant Clerk
Entered: May 15, 2024.
6 The panelists are listed in order of seniority.