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-645
ADOPTION OF REMIAH.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees entered in
the Juvenile Court, terminating their parental rights as to
their daughter, Remiah (child). On appeal, both parents argue
that the judge failed to apply the correct legal standard to
determine the parents' unfitness. The mother also asserts that
the judge erred in (1) considering findings of fact from a prior
care and protection matter involving the mother's older
children, (2) finding her unfit, and (3) leaving to the
discretion of the child's legal custodians the question of any
posttermination and postadoption visitation between the mother
and the child in addition to one visit per year. Additionally,
the father argues that the judge erred in (1) considering his
juvenile record, (2) finding he had not meaningfully engaged in
his action plan tasks and finding him unfit, and (3) failing to
1 A pseudonym. make findings regarding the best interest of the child. After
careful review of the record and consideration of the judge's
findings, we affirm.
Background. We summarize briefly the findings of fact
entered by the judge, which must stand absent clear error. The
child, born in May 2020, is the mother's third child and the
first with the father. The mother has previously been involved
in care and protection proceedings that resulted in the
termination of her parental rights with respect to her two older
children.
Shortly after losing custody of her older children in 2019,
the mother began a relationship with the father and moved into
an apartment owned by his parents. The father, then sixteen
years old, was committed to the Department of Youth Services
until he turned eighteen but lived in his parents' home across
the street from the mother's apartment.2
The Department of Children and Families (department) became
involved with the child in May 2020, when the child was born
premature and substance exposed to marijuana. The department
received a G. L. c. 119, § 51A report (51A report) of neglect of
the child, and the mother tested positive for marijuana at the
2 The father turned eighteen in June 2020, approximately a month after the child was born.
2 hospital. The hospital discharged the child to the father and
paternal grandparents.
In May or June 2020, the mother was hospitalized for
alcohol poisoning. The mother was combative, and police had to
hold her down so medical personnel could sedate her on the way
to the hospital. In June 2020, the mother attacked hospital
staff. Police were called and, again, assisted medical
personnel in sedating the mother.
The mother and the father continued their relationship and
continued to live across the street from one another, with the
father spending some nights at the mother's apartment. The
paternal grandparents provided child care when the father worked
and supervised the mother's twice daily visits with the child.
The mother's relationship with the father included
significant incidents of domestic violence, beginning after the
child's birth and continuing to three months before trial. The
mother called the police repeatedly, resulting in six police
responses between October 2020 and September 2021. On two
occasions in the fall of 2020, police found the mother with
injuries, including to her hand, knee, and face, some of which
she attributed to the father. In November 2020, the department
received a 51A report alleging parental neglect of the child.
The report included medical records showing that the mother
received a series of injuries resulting from domestic violence,
3 resulting in stitches in October 2020 and an orbital fracture in
November 2020.
In response to this report, the department removed the
child from the father's home. The mother initially told
hospital staff that the father had caused the orbital fracture
but subsequently told them that it had been his sister. When
asked by the department, both parents denied any physical
violence but admitted verbally arguing. The mother denied that
the father or his sister had ever hit her and denied making any
such statement to medical staff.
The 911 calls and police responses continued after the
removal of the child. In December 2020, the mother called 911
due to an argument with the father. In May 2021, the mother
called the police after an argument with the father, reporting
that the father's family chased her down the street, and that
she defended herself with a taser. In November 2021, police
received an abandoned 911 call from the mother, who subsequently
insisted that it was an accidental dial and that she did not
need service. In December 2021, police responded to a call from
the maternal grandmother, stating that she received a text
message from the mother that the father had hit her face.
Responding to the call, police observed a small red mark on the
left side of her face. The father told police that the mother
had started the fight and that she had injured his mouth.
4 Later that day, the mother obtained an abuse prevention
order. In her affidavit, the mother stated that the father had
shown up at the apartment drunk, called her names, and demanded
that she leave, and when she refused, he threatened to get his
sister to beat her up. She further claimed that earlier that
month, the father had woken her up, verbally abused her, and
threated her; he also threatened to have his sister beat her up
and to beat up the mother's brother. Additionally, she wrote in
her affidavit that the father had previously smacked her across
the face, choked her, and "threatened her with his mother,
father, and sister," who, the mother again claimed, had caused
her orbital fracture.
Discussion. 1. Legal standard. When making a
determination of a parent's unfitness, "subsidiary findings of
fact must be supported by a preponderance of the evidence, with
the ultimate determination of unfitness based upon clear and
convincing evidence." Adoption of Rhona, 63 Mass. App. Ct. 117,
124 (2005). The mother and father both cite conclusion of law
no. 2 in contending that the judge erroneously applied the
preponderance standard to conclude that the mother and father
were unfit. Though the mother and father correctly observe that
the judge's conclusion expressed the parents' unfitness by
5 reference to the preponderance of the evidence,3 in context, we
understand the reference instead to reiterate that the
subsidiary findings of fact were adequately supported by a
preponderance of the evidence.4 The remaining conclusions of law
contain numerous correct articulations and applications of the
appropriate legal standards and clearly establish that the
judge's ultimate determination of the parents' unfitness was
based upon clear and convincing evidence. Read in context, we
agree with the department that, to the extent the reference in
conclusion of law no. 2 may be read to recite the wrong standard
for the finding of unfitness, it is properly understood as a
scrivener's error.
2. Termination of the mother's parental rights. a. Prior
care and protection matter. Generally, recent findings from a
3 The judge stated, "It has been proven by at least a fair preponderance of evidence that each parent, individually and as coparents, is unfit to care for the child and that their unfitness is extremely likely to continue into the indefinite future" (emphasis added).
4 The judge introduced her conclusion by stating the correct legal standard:
"In a care and protection proceeding, subsidiary factual findings need only be proved by a fair preponderance of the evidence, rather than by clear and convincing evidence. 'Taken together, these facts must then prove parental unfitness, since it is the "critical inquiry," by clear and convincing evidence.' Care and Protection of Laura, 414 Mass. 788, 793 (1993)."
6 prior care and protection decision are admissible in a later
proceeding "when such findings are relevant and material and
made during a proceeding in which the parent[] had a compelling
incentive to litigate." Adoption of Darla, 56 Mass. App. Ct.
519, 520-521 (2002). The findings in this case regarding the
mother's recent history of unstable mental health and substance
abuse are relevant and material, and the mother had a prior
opportunity and compelling incentive to litigate these issues.5
This case is distinguishable from Care & Protection of
Zita, 455 Mass. 272 (2009). There, a judge improperly relied on
an unsworn petition and facts the judge learned presiding over
earlier cases involving the mother, neither of which were in
evidence. Id. at 279-282. Here, the judge properly admitted
into evidence the findings of another judge in a prior
proceeding terminating the mother's parental rights to her older
children.6 Admission of the findings was not error.
b. Nexus to unfitness. The mother does not dispute the
judge's subsidiary findings regarding her mental health and
5 Indeed, the mother fully litigated these issues. See Adoption of Zaria, 103 Mass. App. Ct. 1116 (2023) (affirming termination of mother's parental rights to her older children).
6 The judge considered only so much of the prior findings as they related to the mother's prior interaction and progress with the department and primarily relied on the facts dating from the time the mother became pregnant with the child.
7 substance abuse problems but argues that there was no
significant nexus between them and her parenting ability.
Therefore, she argues, the judge abused her discretion when she
relied on these factors to ultimately find the mother unfit and
terminate her parental rights. We disagree.
Substance abuse during and after pregnancy cannot be the
sole ground for terminating parental rights without evidence
that the parent "provide[d] less than minimally acceptable care"
for the child. Adoption of Katharine, 42 Mass. App. Ct. 25, 31
(1997). See id. at 34 ("we do not think a cocaine habit,
without more, translates automatically into legal unfitness"
[emphasis added]). However, the mother's substance abuse was
not viewed in isolation. The judge relied on it, in conjunction
with domestic violence, mental health challenges, and
inappropriate housing, to support her overall finding of
unfitness. The judge properly considered the mother's substance
abuse along with the other factors contributing to the mother's
inability to care for the child.
Mental disorders are "relevant only to the extent that
[they] affect[] the parents' capacity to assume parental
responsibility." Adoption of Frederick, 405 Mass. 1, 9 (1989).
A parent's "unwillingness to adhere to [the department's]
service plan, which required her to obtain treatment for her
mental health challenges and substance use disorder, is relevant
8 to the determination of unfitness" (quotation and citation
omitted). Adoption of Luc, 484 Mass. 139, 147 (2020). While
the mother sporadically attended therapy from June 2021 to
September 2021, she failed to complete an anger management
program, a longstanding part of her action plans during both
care and protection cases.
The trial judge did not abuse her discretion when she
terminated the mother's parental rights. An abuse of discretion
occurs when a judge makes "a clear error of judgment in weighing
the factors relevant to the decision . . . such that the
decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). Considering the robust evidence of
the mother's substance abuse and mental health concerns, the
trial judge did not err when she weighed these factors to find
the mother unfit.7 Further, the trial judge did not rely solely
on these factors. She properly considered the mother's history
of domestic abuse, inappropriate housing, and refusal to
7 "Despite the moral overtones of the statutory term 'unfit,' the judge's decision was not a moral judgment or a determination that the mother and father do not love the child." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). Indeed, the judge specifically found that both parents demonstrated love for the child.
9 cooperate with the department's action plans. We find no error
in judgment in her careful analysis of these relevant factors.
c. Inappropriate housing. Evidence of a parent's failure
to maintain adequate housing and "keep a stable home
environment" is relevant to the unfitness determination.
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987). See Adoption of Anton,
72 Mass. App. Ct. 667, 676 (2008). Moreover, "it is proper for
a judge to consider a parent's living arrangements at the time
of trial despite the fact that the child was not living with her
at that time." Adoption of Virgil, 93 Mass. App. Ct. 298, 303
(2018).
The record supports the judge's determination that the
mother failed to establish appropriate housing. While it is
true that the mother lived in the same apartment for three years
before the trial,8 the length of her tenure was not the source of
the judge's concern. Despite the history of violence between
the mother and the father and his family, the mother continued
to live across the street from the father in an apartment owned
by his family. She did not have a lease and paid rent to the
8 The mother briefly left this apartment for one month in 2021 when she lived with her great uncle. However, she subsequently returned to the apartment owned by the father's parents.
10 father's parents irregularly. The apartment was unclean and in
poor condition, and home visits found a missing stair railing,
excessive trash, minimal food, and a large hole in the ceiling
from a burst pipe. During the department's last home visit, in
March 2022, the mother refused to allow the worker to go
upstairs to view the bedrooms and did not grant subsequent home
visits despite the department's requests.
d. Posttermination and postadoption contact. The power to
order posttermination and postadoption contact rests within the
discretion of the trial judge, who may determine the extent to
which decisions regarding visitation are left to the judgment of
the adoptive family. See Adoption of Rico, 453 Mass. 749, 754
(2009). An order of postadoption contact should be "carefully
and narrowly crafted to address the circumstances giving rise to
the best interests of the child." Adoption of Vito, 431 Mass.
550, 564 (2000). The judge must also weigh any "intrusion that
an order imposes on the rights of the adoptive parents, who are
entitled to the presumption that they will act in their child's
best interest." Adoption of Ilona, 459 Mass. 53, 64-65 (2011).
Considering these relevant factors, we find that the trial judge
did not abuse her discretion in ordering visitation with the
child only once per year.
Although the child was removed from the mother's custody as
an infant, the trial judge concluded that the child "enjoys
11 visits" with her parents and half-siblings and that she
"reciprocates affection," though she "does not demonstrate a
bond beyond a comfortable familiarity with each parent." In any
event, even where a significant bond exists between parent and
child, providing a basis for postadoptive visitation, such an
order is not automatic, and is warranted only where it is in the
best interests of the child. See Adoption of Ilona, 459 Mass.
at 63-64. And an order for a specific minimum number of visits
merely sets a floor, leaving to the adoptive parents the
possibility of additional visits if they would be in the best
interests of the child. See Adoption of Zander, 83 Mass. App.
Ct. 363, 366 (2013). We discern no abuse of discretion in the
order requiring one visit per year.
3. Termination of the father's parental rights.
Termination of parental rights requires "a two-part analysis."
Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge
must find that the parent is presently unfit." Adoption of
Cadence, 81 Mass. App. Ct. 162, 167 (2012). "Second, the judge
must find that 'it would be in the child's best interests to end
all legal relations between parent and child.'" Id., quoting
Adoption of Nancy, supra.
a. The father's unfitness. "Violence within a family is
highly relevant to a judge's determination of parental unfitness
and the best interests of the children." Adoption of Gillian,
12 63 Mass. App. Ct. 398, 404 n.6 (2005). Nor is harm limited to
cases where the child directly witnesses domestic violence.
Adoption of Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018) ("A
parent's willingness to ignore or minimize abusive behavior can
be an indicator of unfitness, regardless of whether the child is
at risk of abuse or witnessing abuse").
The judge concluded that the father "continues to deny the
domestic violence between himself and [the m]other, which is
clearly evidenced in other credible portions of the record," and
"has not sufficiently engaged in domestic violence education or
treatment as a batterer and does not have any insight as to what
domestic violence is." These findings are supported by police
reports and medical records showing signs of the mother's abuse.
Though the father presented a different account at trial, the
judge did not find him credible. See Adoption of Nancy, 443
Mass. at 515 (noting trial judge has "discretion to evaluate a
witness's credibility and to weigh the evidence").
Additionally, the father failed to adequately engage with
the department, allowing the judge to conclude that the father
was not progressing toward becoming fit. Although the
department scheduled monthly visits for the father in July,
August, and September of 2021, he either failed to attend or
canceled each one. The father refused to allow a social worker
into his home during a visit in December 2021. Despite being
13 part of his action plan from the beginning, the father only
began anger management classes near the start of the trial. We
find no error in the judge's determination of unfitness.
b. The father's juvenile record. The judge did not err by
referencing the father's juvenile record.9 The father's counsel
did not object to the admission of the police records
documenting the father's delinquency history. Any objection is
therefore waived, and the judge was permitted to consider the
"full probative force" of the evidence (citation omitted).
Adoption of Kimberly, 414 Mass. 526, 534-535 (1993) (failure to
object to proffered evidence at trial results in waiver of
objection).10
c. Best interest of the child. The trial judge made
detailed findings about the fitness of the child's parents, the
child's needs, and the suitability of the child's adoptive home.
9 The judge's findings made only passing references to the father's juvenile record. Even if the admission of the father's juvenile record was erroneous, any error would be harmless as those findings were "not central to the ultimate conclusion of unfitness." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
10To the extent that the father also argues that the judge erred by finding that he had a significant criminal "record" as an adult, as the judge found, an abuse prevention order issued against the father three months before trial, and there were "multiple police responses throughout the pendency of the case." In determining parental fitness, the judge was entitled to consider the father's criminal conduct and history, even though it did not lead to an arrest or conviction. See Care & Protection of Frank, 409 Mass. 492, 496-497 (1991).
14 The evidence demonstrated that the mother and the father
struggled with substance abuse, and there were frequent police
visits as well as significant evidence of domestic violence
perpetrated by the father. Furthermore, the trial court found
that the child was "thriving" in her preadoptive home and was
"healthy and developmentally on target," had formed a strong
bond with her foster parents, and was in a "loving, secure,
nurturing home."
"In determining the best interests of the child, the judge
must consider, among other things, 'the plan proposed by the
department.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770
(2019), quoting G. L. c. 210, § 3 (c). A placement plan does
not need to be "'fully developed' in order to support a
termination order, but it must provide 'sufficient information
about the prospective adoptive placement "so that the judge may
properly evaluate the suitability of the department's
proposal."'" Adoption of Varik, supra, quoting Adoption of
Willow, 433 Mass. 636, 652 (2001). "In determining the
sufficiency of the plan, the judge may consider evidence and
testimony presented at trial regarding unfitness and the child's
best interests, in addition to the written plan." Adoption of
Varik, supra, citing Adoption of Willow, supra at 653.
In October 2021, the department filed a report under G. L.
c. 119, § 29B (29B plan), stating that the child was in a
15 preadoptive placement with the permanency goal of adoption. On
November 2, 2021, the judge approved the child's placement
through adoption in accordance with the 29B plan. The mother
filed an objection to the permanency plan, but the father did
not. Additionally, a department social worker testified at
length about the child's placement and the adoption plan.
Accordingly, the trial court’s determination that termination
was in the child's best interests with consideration of the
adoption plan was not an abuse of discretion.
Conclusion. The judge did not err in admitting the
findings from the prior care and protection proceedings and the
police records documenting the father's juvenile delinquency
history into evidence. Moreover, she properly considered
evidence of domestic violence in the father's relationship with
the mother, the mother's substance abuse and mental health
concerns, and both parents' inconsistent engagement with
services. We conclude that the judge did not abuse her
discretion in finding the parents unfit or in concluding the
16 termination of the parents' parental rights to be in the best
interests of the child.
Decrees affirmed.
By the Court (Green, C.J., Desmond & Hershfang, JJ.11),
Assistant Clerk
Entered: June 17, 2024.
11 The panelists are listed in order of seniority.