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
21-P-1075
ADOPTION OF OBADIAH (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees, issued by a
Juvenile Court judge pursuant to G. L. c. 119, § 26, terminating
the mother's rights to the two children.2 The mother argues that
the judge failed to support his conclusions with "specific and
detailed findings" as to domestic violence in the parents'
relationship. See Adoption of Hugo, 428 Mass. 219, 224 (1998),
cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034
(1999). The father argues that the judge should have stayed the
termination decision to give the mother additional time to prove
that her unfitness was temporary. Because we conclude that the
judge's decision was adequately supported by detailed findings
1 Adoption of Amy. The children's names are pseudonyms. 2 The judge also terminated the father's parental rights to Obadiah. Because the father was not named on Amy's birth certificate and had not been adjudicated her father, the judge terminated the parental rights of "any unknown or unnamed father." The mother and father do not dispute that the father is Amy's father. Neither the father nor the mother appeals the termination of the father's parental rights. and that the judge was not required to delay termination, we
affirm.
Background. In order to address the mother's argument that
the judge's written findings were inadequate, we begin with a
summary of the relevant findings.
The parents' relationship began in 2015. So, too, did the
abuse. By the end of the first year of the relationship, the
mother had obtained her first abuse prevention order against the
father. By the end of the second year, the mother had obtained
her second such order. It was in the third year that the
parents had their first child together, Obadiah. Five months
after Obadiah's birth, the mother fled Texas, where the parents
had lived together, leaving the father behind. She arrived in
Boston with Obadiah on September 21, 2018. A report pursuant to
G. L. c. 119, § 51A (51A report), was filed that same day,
alleging neglect by the mother. The mother told the Department
of Children and Families (department) that she believed the
father had made the 51A report in retaliation for her desertion,
that her relationship with the father had been mentally and
physically abusive, and that she had moved to Boston because she
was tired of fighting with the father. She told the department
that she was "fed up."
But the mother soon returned to the father. From early in
their relationship and through the end of 2018, the parents
2 moved extensively due at least in some measure to domestic
violence: from Florida, to Georgia, to South Carolina, and then
to Texas. Eventually the parents moved to Philadelphia to be
closer to the father's family, and Amy was born in Philadelphia
in July of 2019. But the parents separated once again following
an incident in December of 2019. During an argument, the father
had kicked a door of their residence off its hinges and, as a
result, a police officer had to stand outside the home all night
because there was no longer any door to secure the home. That
same month the mother left the father. She and the two children
returned to Boston, finding placement in a domestic violence
shelter. In January 2020, a 51A report alleging neglect by the
mother was filed due to concerns of drug or alcohol abuse. The
department obtained emergency custody of the children, and in
February they were temporarily placed with a maternal aunt. The
mother was permitted to stay with the maternal aunt and the
children, subject to certain conditions. During the
investigation that followed the children's removal, the mother
told the department that she was a victim of domestic violence.
She told the department that she would never return to a
relationship with the father.
Three months later, the mother returned to the father.
Because the maternal aunt's child suffered from asthma, the
mother was asked to stay home with the children to limit her
3 exposure to Covid-19 during the pandemic. Eventually, the
mother was told that if she left the children and the maternal
aunt's home again, she could not return. Despite the risk of
losing this safe place to live, the mother decided to go out
with her friends. The maternal aunt insisted the mother no
longer stay with her.
The mother then returned to Philadelphia to be with the
father; the children remained in the temporary custody of the
maternal aunt. On July 21, 2020, the aunt relinquished custody
of the children back to the department; she was worried after
having learned that the mother had disclosed the aunt's address
and her custody of the children to the father. The department
placed the children in a foster home, in which the children
remained at the time of trial. At the time of trial, the
maternal aunt visited with them on a weekly basis but was not
interested in adoption; the department was pursing the
children's foster mother as their preadoptive resource.
In the months that followed her departure from the maternal
aunt's home, the mother attended a virtual parenting class, and
the mother and the father jointly completed a coparenting course
that they mistakenly referred to as couples therapy.
The mother and the father were again briefly separated
following an incident in August of 2020, when the father left
the mother in Atlantic City, New Jersey, after an argument. The
4 mother testified that she was "jumped" by a group of women after
the father left her. The mother returned to Massachusetts and
attempted to secure a shelter placement. This placement was
denied; the judge found that the mother had two previous
evictions from shelters for combativeness and for providing a
shelter's location to the father in violation of the shelter's
rules.
After a week or two, the mother returned to the father.
She told the department that she was living on her own in
Philadelphia and was not in a relationship with the father.
Based on this information, the department pursued a possible
placement of the children with the mother but subsequently
discovered that the mother continued to live with the father.
The department provided the parents with an action plan, and the
mother maintained contact with her department social worker
while in Philadelphia. In May of 2021, the mother was evicted
from the apartment she shared with father in Philadelphia after
the parents obtained protection from abuse orders against each
other in a Philadelphia court. Philadelphia police had been
called to the residence thirteen times that year. The mother
reported that the father had punched her, hit her, pulled her
hair, dragged her on the floor, kicked down her bedroom door,
and asked her for money and sex, at which point she "lost it"
and attacked him. The father reported that mother had
5 previously punched him a few times and that she had thrown a
glass plate at him out of anger, causing him an injury that
required stitches. Following the eviction, the mother moved
back to Massachusetts and began living in a motel. At the time
of trial in July of 2021, the mother was residing in an extended
stay hotel in Boston and had been separated from the father for
two months, their longest period of separation.
The judge concluded that the mother and the father were
unfit and that their unfitness was likely to continue into the
indefinite future because of their extensive history of domestic
violence, their inability to remain separate, their failure to
demonstrate any benefit from services provided by the
department, and the risk to the children of serious parental
neglect.
Discussion. To terminate parental rights, a judge must
"make specific and detailed findings demonstrating that close
attention has been given to the evidence." Adoption of Hugo,
428 Mass. at 224. "While subsidiary findings must be proved by
a fair preponderance of the evidence, taken together these
findings must prove parental unfitness, which is the 'critical
inquiry,' by clear and convincing evidence." Adoption of
Leland, 65 Mass. App. Ct. 580, 583 (2006), quoting Care &
Protection of Laura, 414 Mass. 788, 793 (1993). Next, the judge
must decide whether the "parent's unfitness is such that it
6 would be in the child's best interests to end all legal
relations between parent and child." Adoption of Nancy, 443
Mass. 512, 515 (2005).
The mother does not contend that any of the judge's factual
findings are clearly erroneous but argues that the judge erred
by failing to provide specific, detailed findings about six
issues related to domestic violence in the parents'
relationship. We address them in turn.
First, citing Commonwealth v. Goetzendanner, 42 Mass. App.
Ct. 637, 643 (1997), the mother argues that the judge failed to
consider evidence of battered women's syndrome (BWS). While
evidence of BWS is admissible where relevant in proceedings like
this, none was presented at least explicitly in terms of BWS
below. The judge was not required to consider BWS sua sponte.
To the extent the mother argues that a judge, in a decision
concerning whether or not to terminate parental rights in a case
involving domestic violence, must consider and address in
specific written findings how he or she weighed the victimhood
of the nonviolent parent and that parent's attempts, successful
or otherwise, to escape that relationship, we think the judge's
findings here were more than adequate. A determination by a
judge that unfitness will continue into the indefinite future
involves a predictive judgment. See Adoption of Carlos, 413
Mass. 339, 350 (1992). Here, the judge's conclusion that the
7 mother was likely to repeat her pattern of returning to the
father was fully supported by the evidence.
Second, the mother argues that the judge's findings failed
to credit the mother's efforts to leave the father. We
disagree. The judge's findings sufficiently chronicle the
mother's failed attempts to terminate her relationship with the
father: from her claim in 2018 that she was "fed up" with the
father, to her claim that she never wanted to be in a
relationship with the father again following their separation in
2019, to her claim that she was no longer living with the father
following the Atlantic City incident, to her claim at trial that
"this time was different." The judge addressed these efforts
directly, finding that the mother's claim that "this time was
different" was not credible because before returning to the
father "[e]ach time [the m]other has stated she was done with
the f]ather for good, no longer in a relationship, and she would
not go back," and there was "no credible evidence presented to
suggest that this would change in the future." The judge's
findings were not deficient as to their description of the
mother's failed attempts to leave the father.
Third, the mother argues that the judge failed to consider
that her attempts to escape the father were repeatedly foiled by
a lack of financial resources. However, the judge specifically
found that the mother left a safe place with the children in
8 April 2020 because she would not stop socializing during the
pandemic's first peak, bringing risk to the maternal aunt's
family. The mother's return at that time to the father cannot
be said to be based on having nowhere else to go. Moreover, the
judge did address the mother's lack of resources, finding that
the mother "explained [that] she previously went back to [the
f]ather because she did not have emotional or financial
supports" and that at trial the mother "still [wa]s unable to
identify supports in Massachusetts." The judge was entitled to
consider the impact that the mother's lack of supports and her
unstable home life had on the children. The judge found no
reason to believe anything was different and properly addressed
the reasons behind the mother's inability to leave the father.
Fourth, the mother argues that the judge ignored testimony
that it takes seven attempts for the victim of domestic violence
to escape her abuser. No expert testified to this statistic.
The mother testified that her counsellor told her this. While
the mother argues that this statistic also came from the
department's social worker, the social worker testified on
cross-examination that she did not know there was a number and
had only heard about a number from the mother's therapist.
Regardless, the judge did not err in terminating the mother's
parental rights where he found that the mother had continued to
place her relationship with an abuser before the protection of
9 the children, failed to demonstrate any improvement in that
relationship over the course of five years of domestic violence,
and failed to "recognize[] the impact of domestic violence on
[the children] when they were in the home." The mother was on
her fourth attempt at separation in six years. Having observed
no improvement from the mother, the judge was not required to
wait some indeterminate period of time for the mother to exhaust
a hypothesized final three attempts before terminating her
parental rights. Of course we recognize the difficult
circumstances that may face victims of domestic violence. But
in proceedings relating to parental fitness, the "paramount duty
of courts is to consult the welfare of the child" (citation
omitted). Petition of the Dep't of Pub. Welfare to Dispense
with Consent to Adoption, 383 Mass. 573, 588 (1981).
Fifth, the mother argues that the judge failed to consider
her participation in counselling and action plan tasks. But the
judge specifically found that neither parent had "demonstrated
any benefit from their engagement in these services," noting
that despite such engagement the mother continued her
relationship with the father and returned to the father after he
abandoned her in Atlantic City.
Sixth, the mother argues that the judge failed to make
specific and detailed findings as to how the domestic violence
in the mother's relationship negatively impacted the children.
10 "Requiring the courts to make explicit findings about the effect
of the violence on the child and the appropriateness of the
custody award in light of that effect will serve to keep these
matters well in the foreground of the judges' thinking."
Custody of Vaughn, 422 Mass. 590, 599-600 (1996). Here, the
negative impact on the children was adequately captured by the
judge's findings. The judge found that the children were
exposed to domestic violence on two occasions. First, the judge
found that the mother and father had an altercation in a car,
with both children present. Second, the judge found that the
children were present when the father kicked the door to the
apartment off its hinges. The mother and children were then
forced to spend the night in an apartment without a door, with a
police officer guarding the entrance to their home. "It is well
established that exposure to domestic violence works a
'distinctly grievous kind of harm' on children." Adoption of
Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of
Vaughn, supra at 595. The judge also found that, because of the
domestic violence, the children were constantly forced to move
to new States. Additionally, the judge's finding that neither
parent appreciated the impact of domestic violence on the
children supports his conclusion that return of the children to
the mother would place the children at risk of continued
11 neglect. The judge sufficiently documented the impact of
domestic violence on the children.
Finally, the mother relies on Adoption of Imelda, 72 Mass.
App. Ct. 354, 363 (2008), throughout her argument, suggesting
that she should not be found unfit where the mother in Imelda
was not found to be unfit. Imelda is not applicable here. In
Imelda, the court vacated the termination decree and remanded to
the Juvenile Court for further proceedings after concluding that
the trial judge had failed to make findings as to concerns of
domestic violence in the adoptive home, failed to grant a
continuance where the mother lacked representation during the
best interests portion of the trial, and failed to consider
whether the mother would be likely to improve in the future --
instead relying on the mother's absence from trial and her
failure to comply with the department's service plans. See id.
at 366-367. Here there were no concerns as to domestic violence
in the adoptive home, there were no issues as to legal
representation, and the judge directly addressed whether the
mother was likely to improve based on her history and inability
to separate from the father.
The judge's conclusion that the mother's inability to
benefit from services and separate from the father rendered her
unfitness likely to continue into the indefinite future was
supported by specific and detailed findings.
12 The father does not appeal the termination of his own
parental rights and argues only that the judge should have
allowed the mother additional time to demonstrate that her
unfitness was only temporary. As a preliminary matter, we may
"decline to address allegations of error raised by the father
having relevance only to the fitness of the mother." Adoption
of Paula, 420 Mass. 716, 723 n.8 (1995). In any event, the
father's argument is without merit.
Quoting L.L. v. Commonwealth, the father argues that the
judge's decision was an abuse of discretion because a delay of
termination was within the range of reasonable alternatives.
See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014)
("Borrowing from other courts, we think it more accurate to say
that a judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made 'a clear error of
judgment in weighing' the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives" [citation omitted]). The father's argument
reverses the standard. The father's burden was not merely to
show that a delay was within the range of reasonable
alternatives, but rather to show that the judge's decision was
not. As the language of L.L. spells out, the grant of
discretion to the lower court anticipates that in any case there
may exist more than one outcome deserving affirmance by this
13 court. Even assuming that a delay was within the range of
reasonable alternatives, that would not require the conclusion
that the judge's decision, forgoing such a delay, fell outside
the range.
Here, the judge's decision was not an abuse of discretion.
As detailed above, it was adequately supported by his findings
that the mother had failed to show improvement in the ways
described above over the course of the case, continued to choose
the father over the children, and traded the opportunity to live
a stable life with the children in April of 2020 for a chance to
go out with her friends.
The father argues that this court should reverse because
waiting six months is a small sacrifice when compared to the
permanence of termination. Discretion is afforded to trial
judges specifically because they are tasked with engaging in a
difficult, fact-dependent analysis that the father would have
this court undertake instead. Nothing in the record provides
this court with the basis to undo the judge's determination that
the children had waited long enough. Indeed, the children had
waited their entire lives for the mother to separate from the
father. As such, the judge's refusal to delay termination did
not constitute an abuse of discretion. See Adoption of Xarina,
14 93 Mass. App. Ct. 800, 803 (2018) ("it is unfair to leave a
child in limbo indefinitely").
Decrees affirmed.
By the Court (Rubin, Shin & Ditkoff, JJ.3),
Clerk
Entered: February 13, 2023.
3 The panelists are listed in order of seniority.