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-880
ADOPTION OF RAHKEEM.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, the mother and the father appeal from
Juvenile Court decrees finding each of them unfit to parent
their child, Rahkeem, and terminating their parental rights to
Rahkeem. The mother also appeals from the denial of her motion
for a new trial, which argued that (1) Rahkeem's former
temporary custodians should have been afforded counsel at
hearings concerning Rahkeem's removal from, and possible return
to, their custody; and (2) the judge should have mandated
sibling visitation between Rahkeem and his maternal half-
siblings (Jillian, Sam, and Angela).2 We affirm.
Background. We summarize the facts found by the judge
after trial, saving some details for later discussion. Ten
1 A pseudonym. 2 Also pseudonyms. months before Rahkeem was born, the Department of Children and
Families (DCF) became involved with the mother when a report
pursuant to G. L. c. 119, § 51A (51A report) was filed alleging
neglect of her older children (Jillian, Sam, and Angela). After
an investigation, the report was deemed supported due to mutual
domestic violence between the mother and Filippo,3 who is the
father of Sam and Angela.
The mother became involved with the man who would become
the father of Rahkeem;4 that relationship was fraught with
domestic violence. The father admitted to previous gang
involvement and has a significant criminal history, with
convictions for violent crimes, including armed assault with
intent to murder for which he served a State prison sentence.
At trial, in response to questions about his relationship with
the mother, the father asserted his Fifth Amendment to the
United States Constitution privilege. Throughout the
proceedings, the mother denied or minimized the extent of the
domestic violence in their relationship. She did obtain two
G. L. c. 209A restraining orders against the father, but each
lapsed after two weeks or less.
3 Filippo is also a pseudonym.
4 Hereinafter, all references to "the father" shall be to Rahkeem's father.
2 The mother has a long history of alcohol misuse, which she
denied or minimized; she would not permit DCF or the court to
verify her participation in substance use disorder treatment.
The mother also has mental health diagnoses including
depression, but would not allow DCF to speak to her clinicians
and concealed from her therapist the extent of her alcohol
consumption and her continuing relationship with the father. In
addition, the mother's housing was unstable.
In February 2018, Rahkeem was born. In the first five
months of Rahkeem's life, the mother failed to bring him to
three medical appointments. In July 2018, a 51A report alleging
neglect of Rahkeem was filed and later supported because of
domestic violence between the mother and the father in the
presence of Rahkeem, Sam, and Jillian. Responding officers saw
several open beer containers and injuries to the mother,
including swelling and blackness to her eye, but she denied that
they were the result of domestic violence.
In October 2018, another 51A report alleging neglect of
Rahkeem was filed and later supported after the mother and the
father were fighting in public and bystanders called the police.
When police arrived, the father was gone; the mother was
intoxicated, her face was bloodied, and she refused to disclose
her name. Rahkeem was nearby in the mother's car. The mother
3 denied that her injuries resulted from domestic violence,
maintaining that she fell down stairs. The mother later
admitted that the father had caused her injuries, which included
a broken nose, and that Rahkeem was crying while the father was
hitting her. A subsequent skeletal survey revealed that Rahkeem
had a skull fracture. The mother later admitted that Rahkeem's
skull fracture likely occurred during a domestic violence
incident while she was holding Rahkeem, though at trial she
denied having said that and claimed that Rahkeem fell from the
bed while her older children were taking care of him or,
alternatively, that Angela had dropped him. During the
investigation, DCF obtained a photograph of Rahkeem lying next
to a handgun; the mother refused to say when it was taken or who
owned the handgun.
DCF filed this care and protection petition and was awarded
temporary custody of Rahkeem.5 Rahkeem was placed in a kinship
5 The petition also alleged that Jillian, Sam, and Angela were in need of care and protection. In 2019, Jillian reached age eighteen and was no longer subject to Juvenile Court jurisdiction; she was dismissed from the case. On the last day of trial, the mother joined DCF's request for Sam and Angela to be placed in the permanent custody of Filippo. Decrees issued finding the mother unfit to parent Sam and Angela and placing them in the permanent custody of Filippo. The mother filed notices of appeal from those decrees, but did not enter those appeals in this court and does not raise in her brief any issues as to the care and protection of Sam and Angela. In those circumstances, we do not consider any issues concerning the care and protection of the mother's older children. We also note
4 foster placement with the mother's great aunt (aunt) and the
aunt's son (cousin). During its custody of Rahkeem, DCF
required that each parent's visits with Rahkeem be supervised
and take place at a DCF office.
In April 2019, an anonymous 51A report was filed alleging
neglect of Rahkeem because the mother was visiting him at the
home of the aunt and cousin. After an investigation, that 51A
report was unsupported, but concerns were noted that the home
did not meet DCF's standards for a foster placement for reasons
including that Rahkeem did not have his own bedroom.
Rahkeem filed a motion to be placed in the direct,
temporary custody of the aunt and cousin. On May 29, 2019, the
Juvenile Court entered an order granting temporary custody to
the aunt and cousin until September 6, 2019. The conditions of
temporary custody included that each parent's visits with
Rahkeem would occur separately, in a public place, and be
supervised by either the aunt or the cousin. Temporary custody
was extended repeatedly for short intervals ranging from one to
four months. Under the aunt's supervision, the mother was able
to visit Rahkeem multiple times each week. At first the
father's visits also were supervised by the aunt; he did not
that in 2023, Sam reached age eighteen and is no longer subject to Juvenile Court jurisdiction.
5 have a fixed schedule and sometimes weeks went by during which
he did not visit Rahkeem.
Beginning in August 2019, the mother was living in a
domestic violence shelter. She continued to see the father and
to drink alcohol. In November 2019, a 51A report was filed
alleging neglect of Rahkeem, Sam, and Angela by the mother and
the father. The mother had gone to the aunt's home with the
father seeking to take Rahkeem away with her. While the mother
was there, Filippo arrived with Sam and Angela. The mother and
the father engaged in an altercation with Filippo. The aunt
locked the door to her home so that Rahkeem was not exposed to
the altercation. The mother later admitted that at that time
she was drinking a lot.
As a result of the incident and the parents' fighting with
her, the aunt suspended the parents' visits with Rahkeem for
about two months. Both parents blamed the aunt for the
suspension of visits; the father tried to intimidate her, the
mother tried to manipulate her, and both parents threatened her.
The aunt told both the ongoing social worker and the court
investigator that she would be afraid to testify against the
parents, as she feared retaliation from the father if she told
the truth, and so if she were required to testify in front of
the parents, she would lie.
6 At a March 10, 2020, hearing, a Juvenile Court judge
renewed the temporary custody order so that it awarded custody
to only the aunt; subsequent orders also were in her name only.
The judge also amended the conditions of custody so that the
father's visits would be supervised by an independent social
worker. Soon after that hearing, in-person visits were
suspended for several months due to the COVID-19 pandemic. The
father blamed the aunt for the suspension of visits and
threatened to take her to court. Once visits were reinstated,
the father's visits continued to be supervised by the social
worker, but the father did not appear consistently for weekly
visits.
In December 2020, Chelsea police responded to a hotel for a
domestic violence incident between the mother and the father.
The mother was intoxicated and reported that the father had
punched her, knocking out her tooth, but she refused medical
treatment.
Less than a month before trial began, the mother entered a
residential facility for treatment of substance use disorder,
Casa Esperanza. She was continuing to have contact with the
father. After the ongoing social worker arranged for the
mother's visits with Rahkeem to be supervised by Casa Esperanza
staff, the mother had some visits with Rahkeem there.
7 Trial began on January 15, 2021 and continued over twelve
nonconsecutive days. On several occasions in early February
2021, Casa Esperanza staff told the mother that her continued
contact with the father was putting her and other residents at
risk, and if she persisted, she would be asked to leave the
program. The mother was in complete denial about the risk to
her safety. At about this time, the ongoing DCF clinical team
met with the aunt and told her that the mother's visits with
Rahkeem could be supervised by staff at Casa Esperanza, and the
father's visits with Rahkeem were still to be supervised by the
social worker.
As of early March 2021, two days of trial had taken place.
The mother left Casa Esperanza, rescinding her releases so that
DCF could not determine when or why she left. She deceived the
aunt and cousin, telling them that she had completed the Casa
Esperanza program and therefore, she could now have unsupervised
visits with Rahkeem. The aunt needed someone to babysit Rahkeem
while the cousin took her to an appointment for eye surgery on
the morning of March 12. When the aunt told Filippo that she
was planning to leave Rahkeem in the mother's care, Filippo
advised her not to do so because the mother would bring Rahkeem
to the father, which could result in harm to Rahkeem as had
8 happened in the past; the aunt replied that she was "desperate."
It did not occur to the aunt to ask DCF what to do.
At 7 P.M. on March 11, 2021, the aunt and the cousin left
Rahkeem at a hotel in Chelsea. At 11:45 P.M., police responded
to a report of a fight at the hotel. The mother was in the
hotel room with Rahkeem, then three years old. He had a bloody
gash above his right eye and blood all over his face and shirt.
The mother told police that Rahkeem's injury occurred when she
and her boyfriend were fighting and Rahkeem was pushed; at trial
she denied having said that, but the judge did not credit her
denial. Rahkeem was taken by ambulance to a hospital. A 51A
report was filed against the mother and the father.
At about 9 A.M. on March 12, the DCF emergency response
worker and ongoing social worker arrived at the hotel. The
mother, the father, and Rahkeem were in the hotel room, which
was still in disarray, with multiple beer containers strewn
around and dried blood on the floor and the sheets. Rahkeem was
sitting on the bed with dried blood on his face, eyelashes, and
shirt. When the DCF workers asked why the mother was not at
Casa Esperanza, the mother lied, claiming she had successfully
completed the program. The father and the mother at first
denied the father's identity, intentionally misleading DCF.
9 Then the father screamed, "You can't take my son," and the
mother told him in Spanish to "shut up."
The DCF workers spoke to the aunt, who admitted through a
Spanish interpreter that she had dropped Rahkeem off with his
"mom and dad" the night before so that the mother could babysit
during the aunt's medical appointment. The aunt acknowledged
that her doing so violated the court order requiring that the
parents' visits with Rahkeem be supervised. The aunt admitted
that Rahkeem had visited the mother at the hotel on a previous
occasion and claimed that the ongoing social worker had approved
that visit, which was not true. A 51A report was also filed
against the aunt and later supported.
At an emergency custody hearing on March 15, 2021, see
G. L. c. 119, § 24, the judge vacated the order granting
temporary custody of Rahkeem to the aunt. Two days later, the
father moved for custody of Rahkeem to be awarded to the aunt
and the cousin.6 The judge considered the father's motion in
conjunction with the trial on the merits and permitted the
father to call the aunt and the cousin out of order to testify.
6 That motion is not in the appellate record, but from the transcript we infer that in it the father sought to award custody of Rahkeem to both the aunt and the cousin. At that point, the cousin had not been named as custodian of Rahkeem for more than one year. The five previous temporary custody orders named only the aunt as custodian, including the most recent one dated February 24, 2021.
10 Two months after the removal of Rahkeem from the aunt's
temporary custody, DCF's goal for Rahkeem was changed to
adoption.
After the close of evidence at trial, the judge denied the
father's motion for custody of Rahkeem to be awarded to the aunt
and cousin. On November 15, 2021, decrees entered terminating
the mother's and the father's parental rights to Rahkeem. The
judge ordered that the parents be offered posttermination visits
for limited time periods (unless Rahkeem was placed in a
preadoptive home prior to the expiration of those periods), but
declined to mandate postadoption contact and or visitation
between Rahkeem and either parent, entrusting those decisions to
Rahkeem's guardian or adoptive resource. Both parents appealed.
The mother moved pursuant to Mass. R. Civ. P. 60 (b) (5),
365 Mass. 828 (1974), for a new trial, incorporating by
reference arguments in a separate motion filed by the aunt and
cousin asserting that as temporary custodians they should have
been afforded counsel at the hearings pertaining to Rahkeem's
removal from, and possible return to, their custody. The mother
also argued that the judge should have mandated sibling
visitation between Rahkeem and his three maternal half-siblings
(Jillian, Sam, and Angela). The judge denied the motion for a
11 new trial and request for sibling visitation, and the mother
appealed.
Discussion. 1. Parents' appeals from the termination of
their parental rights. The mother and father concede their
unfitness at the time of trial.7
a. Competing permanency plans. The parents argue that the
judge abused her discretion in declining to adopt their proposed
plans to place Rahkeem either in the custody of the aunt or in
the custody of the aunt and the cousin. We disagree.
The judge explicitly considered the parents' nominations of
the aunt and the cousin as caretakers. In doing so, the judge
considered the testimony of the aunt and the cousin, much of
which she did not credit. In particular, the judge noted
inconsistencies between their testimony about leaving Rahkeem at
the hotel and the mother's testimony about the same event. The
judge also had in evidence a report of a home screening of the
aunt and the cousin. In addition, the judge considered DCF's
adoption plan, which noted that Rahkeem was "well-bonded" to the
aunt. The adoption plan set forth several possible kinship
As stated, neither parent contests the judge's findings as 7
to their unfitness. Based on our review of the overwhelming evidence of domestic violence and its impact on Rahkeem, we would find no merit to any such claims. See Adoption of Jacob, 99 Mass. App. Ct. 258, 264-265 (2021). See also Custody of Vaughn, 422 Mass. 590, 599 (1996).
12 placements -- which did not include the aunt or the
cousin -- and the alternative of recruitment of a preadoptive
foster home.8
The judge found that the aunt "loves" Rahkeem, but credited
DCF's concern that the aunt and the cousin were unable to keep
Rahkeem safe. Crediting the testimony of the ongoing social
worker, the judge found that the aunt was not a suitable
placement because "[i]t was [the aunt]'s decision to allow
Mother and [Father] to have unsupervised contact with [Rahkeem],
which led to the injury of the child," and the aunt was easily
manipulated by the parents. In addition, the judge found not
credible the aunt's testimony that she had followed the
recommendations of an early intervention worker to help Rahkeem
overcome his delays in speech and gross motor skills. The judge
concluded that placement of Rahkeem with the aunt and the cousin
would not be in the child's best interests because it "would
expose [Rahkeem] to the parents['] untreated substance abuse and
ongoing domestic violence." We discern no abuse of discretion
in the judge's determination that the aunt and the cousin were
not a suitable placement based on those findings of fact.
8 The judge concluded that the adoption plan was sufficiently developed, and we concur. See Adoption of Paula, 420 Mass. 716, 722 n.7 (1995); Adoption of Gertrude, 99 Mass. App. Ct. 817, 823 (2021).
13 The mother argues that the judge abused her discretion by
declining to order posttermination or postadoption visitation
between Rahkeem and the aunt and the cousin. "A 'judge who
finds parental unfitness to be established has broad discretion
to determine what is in a child's best interests with respect to
custody and visitation with biological family members
thereafter.'" Adoption of Ursa, 103 Mass. App. Ct. 558, 571
(2023), quoting Adoption of Rico, 453 Mass. 749, 756 (2009)
(rejecting mother's argument that judge should have ordered
visitation between children and grandmother). We discern no
such abuse of discretion.
b. Best interests of the child. The father argues that
the judge erred in terminating his parental rights to Rahkeem,
contending that the findings as to the best interests of the
child were "legally insufficient." The father does not contest
the accuracy of the findings that the judge did make concerning
the parents' unfitness and the best interests of the child.
Rather, the father argues that the judge's findings were clearly
erroneous because they ignored evidence of the feasibility of
placing Rahkeem with the aunt, which would not have required
termination of the father's parental rights. We are not
persuaded. As discussed above, the judge did not abuse her
discretion in concluding that the aunt was not a suitable
14 placement because she was unable to keep Rahkeem safe from harm
that occurred during unsupervised contact with the father. For
the same reason, the judge did not abuse her discretion in
concluding that termination of the father's parental rights was
in the best interests of the child. See Adoption of Nancy, 443
Mass. 512, 519 (2005).
2. Motion for a new trial. a. Rights to counsel of aunt
and cousin. The mother argues that the judge should have
granted her a new trial, contending that the rights to counsel
of the aunt and cousin were violated at the emergency custody
hearing and at the portions of trial at which the judge
considered whether to place Rahkeem in their custody. The
mother points to G. L. c. 119, § 29, which provides that at all
hearings in child custody proceedings to which DCF is a party,
"the parent, guardian or custodian of the child . . . shall have
and be informed of the right to counsel" (emphasis added).9 The
mother also relies on Care & Protection of Manuel, 428 Mass.
527, 530 (1998), which noted that a District Court judge had
appointed counsel for a temporary custodian at an emergency
custody hearing. But "allusions to the discretionary decision
9 Of course, as mentioned above, see note 6, supra, as of the emergency custody hearing, the cousin had not been Rahkeem's custodian for more than one year.
15 of a single trial judge do not amount to a rule" requiring such
appointment. Adoption of Jacob, 99 Mass. App. Ct. 258, 270 n.16
(2021) (trial judge's discretionary decision to permit
guardianship petitioners full access to care and protection
proceedings did not amount to rule requiring access in all
cases).
The mother waived this argument by failing to raise it at
trial. See Adoption of Ursa, 103 Mass. App. Ct. at 570.
Indeed, at the emergency custody hearing, the mother's position
conflicted with a return of custody to the aunt. When counsel
for DCF informed the judge that social workers involved in the
emergency removal were present and ready to testify, the judge
asked for the position of the mother, who was present, and her
counsel stated that the mother "would like to go forward with
the trial . . . to get custody returned to her."10 The mother
never argued at trial that the aunt or the cousin had a
statutory right to counsel, and so she waived the issue.11 Cf.
10Asked for the position of the father, who was not present, his counsel replied that as of the previous hearing, the father's position "was that the child should be in the custody of the Mother or else in the custody of [the aunt]." Two days later, when the father moved to place Rahkeem in the custody of the aunt and cousin, the mother now took the position that she was "fully supportive" of the father's motion. At trial the mother asked for Rahkeem to be placed with the aunt.
11We do not reach DCF's argument that the disjunctive "or" in G. L. c. 119, § 29, should be read to mean that only one of
16 Adoption of Jacob, 99 Mass. App. Ct. at 266 n.11 (noting that
mother and child both stated at trial that grandparents should
not be present during care and protection proceedings but argued
converse on appeal).
b. Sibling visitation. The judge ordered that Rahkeem
"shall continue to have regular visitation with his siblings,
Angela and Sam, within the parameters established by [Filippo]
and [DCF]." The mother contends that the judge should have
allowed her motion for a new trial to the extent that it sought
mandatory sibling visitation between Rahkeem and his three
maternal half-siblings, Jillian, Sam, and Angela.
Putting aside the question whether the mother continued to
have standing to seek sibling visitation on Rahkeem's behalf
once her parental rights were terminated, see Adoption of
Franklin, 99 Mass. App. Ct. 787, 803-805 (2021), we discern no
abuse of discretion in the judge's ruling that Rahkeem's
continued regular visitation with Angela and Sam was to take
place "within the parameters established by [Filippo] and
[DCF]." The judge properly left such issues as the frequency
and duration of sibling visits to the children's legal
custodians. See G. L. c. 119, § 26B (b). See also Adoption of
the three categories of caretaker -– parent, guardian, or custodian – in any given case is entitled to counsel.
17 Garret, 92 Mass. App. Ct. 664, 680-681 (2018). The judge was
not required to dictate the terms of those visits, particularly
because she heard and credited evidence that the mother had not
only manipulated the aunt into giving her unsupervised access to
Rahkeem, but also manipulated family members into giving her
access to Angela and Sam, who did not want to see her.12
c. Disrupted placement. The mother contends, as she
asserted at argument on the motion for a new trial, that the
decree adopting DCF's permanency plan was no longer "equitable"
because of the recent disruption of a kinship placement of
Rahkeem. The judge heard the arguments of counsel as to the
reasons why the kinship placement was unsuccessful, and by
denying the motion for a new trial rejected the mother's
argument. We discern no abuse of discretion in the judge's
implicit ruling that the unsuccessful kinship placement did not
undermine the grounds supporting the decree. Cf. Adoption of
Cesar, 67 Mass. App. Ct. 708, 712-713 (2006) (mother's
significant improvements after trial did not render finding of
12The judge noted that in October 2020 the mother persuaded the aunt to arrange a supposedly coincidental encounter between the mother and Angela, who did not want to see the mother, and that the mother arranged a similar encounter with Sam using the maternal grandmother as a go-between. The mother admitted at trial that she arranged those encounters and that she did not regret doing so, which the judge found, evidenced the mother's placing her own needs above those of her children and her continued lack of insight into their feelings.
18 unfitness stale). But see Adoption of Franklin, 99 Mass. App.
Ct. at 792-793, 806-807 (remanding for reconsideration of
posttermination visitation between father and preteen child who
wanted visits, where adoption placement with siblings had been
disrupted due to child's mental illness and child had been in
institutional care for almost two years).
Conclusion. Accordingly, we affirm the decrees and the
order denying the mother's posttrial motion.
So ordered.
By the Court (Henry, Grant & D'Angelo, JJ.13),
Assistant Clerk
Entered: June 3, 2024.
13 The panelists are listed in order of seniority.