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
22-P-735
ADOPTION OF SUZANNE (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial that spanned thirty nonconsecutive days,2
a judge of the Juvenile Court issued decrees terminating the
mother and father's parental rights to two of their children,
Suzanne and Amy, and ordering two posttermination and
postadoption visits per year.3 The father appeals from the
termination of his rights with respect to both children, arguing
that (1) the trial judge failed to assess his parental fitness
as it existed at the time of the trial, and (2) the trial judge
improperly relied on the father's noncompliance with his action
plan in finding him unfit and terminating his parental rights.4
1 Adoption of Amy. The children's names are pseudonyms. 2 The trial, which occurred during the COVID-19 pandemic, was conducted via the Internet-based video platform Zoom. 3 The mother and father also shared two younger sons; the mother
and father stipulated as to their unfitness with respect to the boys during the trial. The father also has an older son who reached the age of majority prior to trial and is thus no longer party to this appeal. 4 The mother also appealed from the termination of her parental
rights with respect to Suzanne and Amy but passed away during Suzanne also appeals from (1) the termination of her father's
parental rights as to her, arguing that the record lacks clear
and convincing evidence that termination is currently in her
best interest, and (2) the trial judge's order limiting
posttermination and postadoption visitation to two visits per
year, arguing that the order is not in her best interests. We
address each of these arguments in turn and, discerning no
error, affirm the decrees.
Discussion. 1. Termination of parental rights. The
father first contends that the trial judge erred in terminating
his parental rights because she failed to properly assess his
parental fitness as it existed at the time the trial ended, as
opposed to at the time the children were first removed from his
care. We are not persuaded.
At the outset, "we note that prior history does have
prognostic value." Adoption of Carla, 416 Mass. 510, 517
(1993). Although it is true that a finding of unfitness cannot
be based on stale information, there was no error in the trial
judge's consideration of the father's treatment of Suzanne and
Amy at the time of removal as part of her overall assessment of
the father's fitness so long as that treatment spoke to the
father's current unfitness. See id. With this understanding,
the pendency of this appeal. Amy initially appealed from the visitation order but withdrew that appeal at oral argument.
2 we turn to consider whether sufficient evidence was adduced at
trial to permit the trial judge to find that the father was
unfit and that his parental rights should be terminated, and
conclude that there was.
"To terminate parental rights to a child and dispense with
consent to adoption, a 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 Bea, 97 Mass. App. Ct. 416, 421-422
(2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606
(2012). "In determining whether the best interests of the
children will be served by issuing a decree dispensing with the
need for consent, a court shall consider the ability, capacity,
fitness, and readiness of the child's parents . . ." (quotation
and citation omitted). Adoption of Jacques, supra. "We give
substantial deference to a judge's decision that termination of
a parent's rights is in the best interest of the child, and
reverse only where the findings of fact are clearly erroneous or
where there is a clear error of law or abuse of discretion."5
5 At times throughout his argument, the father asserts that some of the trial judge's factual findings are stale or erroneous. The father takes particular issue with the trial judge's findings regarding his participation in visits with the children and his engagement in family therapy. These assertions amount to an effort to reargue the evidence. We discern no factual
3 Adoption of Patty, 489 Mass. 630, 637 (2022), quoting Adoption
of Ilona, 459 Mass. 53, 59 (2011).
Here, we conclude that there was ample evidence supporting
the termination of the father's parental rights. Chiefly,
reports issued pursuant to G. L. c. 119, § 51A (51A reports), in
addition to testimony at trial, permitted the trial judge to
conclude that both Suzanne and Amy had been sexually abused
while in the parents' custody.6 There was further evidence
suggesting that the father's son, the girls' older half-brother,
was the perpetrator of the abuse. The father was resistant to
acknowledging the possibility that the older brother abused the
girls, and as part of the action plan to regain custody of the
children, the Department of Children and Families (DCF) required
him, among other things, to "understand . . . who is appropriate
to have around the kids . . . [and] safe adults to help assist
with caretaking." He was further required to "explore his
belief system around his daughters having been sexually abused
by his son as well as his son's needs and risk and how he can
finding that is clearly erroneous or otherwise unsupported, and where evidence at trial conflicted, "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference" (citation omitted). Adoption of Quentin, 424 Mass. 882, 886 (1997). 6 The 51A reports were admitted to "'set the stage' to explain
how the department became involved with the family." Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).
4 ensure safety for his children."7 These requirements were
necessary to ensure that the father could protect Suzanne and
Amy from further sexual abuse. Testimony at trial reasonably
supported the trial judge's findings that the father
insufficiently progressed towards these goals and was therefore
ill-equipped to protect the girls from further abuse.
The father's noncompliance with other portions of the
action plan further supported termination of his parental
rights. At the time the children were removed from his custody,
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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
22-P-735
ADOPTION OF SUZANNE (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial that spanned thirty nonconsecutive days,2
a judge of the Juvenile Court issued decrees terminating the
mother and father's parental rights to two of their children,
Suzanne and Amy, and ordering two posttermination and
postadoption visits per year.3 The father appeals from the
termination of his rights with respect to both children, arguing
that (1) the trial judge failed to assess his parental fitness
as it existed at the time of the trial, and (2) the trial judge
improperly relied on the father's noncompliance with his action
plan in finding him unfit and terminating his parental rights.4
1 Adoption of Amy. The children's names are pseudonyms. 2 The trial, which occurred during the COVID-19 pandemic, was conducted via the Internet-based video platform Zoom. 3 The mother and father also shared two younger sons; the mother
and father stipulated as to their unfitness with respect to the boys during the trial. The father also has an older son who reached the age of majority prior to trial and is thus no longer party to this appeal. 4 The mother also appealed from the termination of her parental
rights with respect to Suzanne and Amy but passed away during Suzanne also appeals from (1) the termination of her father's
parental rights as to her, arguing that the record lacks clear
and convincing evidence that termination is currently in her
best interest, and (2) the trial judge's order limiting
posttermination and postadoption visitation to two visits per
year, arguing that the order is not in her best interests. We
address each of these arguments in turn and, discerning no
error, affirm the decrees.
Discussion. 1. Termination of parental rights. The
father first contends that the trial judge erred in terminating
his parental rights because she failed to properly assess his
parental fitness as it existed at the time the trial ended, as
opposed to at the time the children were first removed from his
care. We are not persuaded.
At the outset, "we note that prior history does have
prognostic value." Adoption of Carla, 416 Mass. 510, 517
(1993). Although it is true that a finding of unfitness cannot
be based on stale information, there was no error in the trial
judge's consideration of the father's treatment of Suzanne and
Amy at the time of removal as part of her overall assessment of
the father's fitness so long as that treatment spoke to the
father's current unfitness. See id. With this understanding,
the pendency of this appeal. Amy initially appealed from the visitation order but withdrew that appeal at oral argument.
2 we turn to consider whether sufficient evidence was adduced at
trial to permit the trial judge to find that the father was
unfit and that his parental rights should be terminated, and
conclude that there was.
"To terminate parental rights to a child and dispense with
consent to adoption, a 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 Bea, 97 Mass. App. Ct. 416, 421-422
(2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606
(2012). "In determining whether the best interests of the
children will be served by issuing a decree dispensing with the
need for consent, a court shall consider the ability, capacity,
fitness, and readiness of the child's parents . . ." (quotation
and citation omitted). Adoption of Jacques, supra. "We give
substantial deference to a judge's decision that termination of
a parent's rights is in the best interest of the child, and
reverse only where the findings of fact are clearly erroneous or
where there is a clear error of law or abuse of discretion."5
5 At times throughout his argument, the father asserts that some of the trial judge's factual findings are stale or erroneous. The father takes particular issue with the trial judge's findings regarding his participation in visits with the children and his engagement in family therapy. These assertions amount to an effort to reargue the evidence. We discern no factual
3 Adoption of Patty, 489 Mass. 630, 637 (2022), quoting Adoption
of Ilona, 459 Mass. 53, 59 (2011).
Here, we conclude that there was ample evidence supporting
the termination of the father's parental rights. Chiefly,
reports issued pursuant to G. L. c. 119, § 51A (51A reports), in
addition to testimony at trial, permitted the trial judge to
conclude that both Suzanne and Amy had been sexually abused
while in the parents' custody.6 There was further evidence
suggesting that the father's son, the girls' older half-brother,
was the perpetrator of the abuse. The father was resistant to
acknowledging the possibility that the older brother abused the
girls, and as part of the action plan to regain custody of the
children, the Department of Children and Families (DCF) required
him, among other things, to "understand . . . who is appropriate
to have around the kids . . . [and] safe adults to help assist
with caretaking." He was further required to "explore his
belief system around his daughters having been sexually abused
by his son as well as his son's needs and risk and how he can
finding that is clearly erroneous or otherwise unsupported, and where evidence at trial conflicted, "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference" (citation omitted). Adoption of Quentin, 424 Mass. 882, 886 (1997). 6 The 51A reports were admitted to "'set the stage' to explain
how the department became involved with the family." Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).
4 ensure safety for his children."7 These requirements were
necessary to ensure that the father could protect Suzanne and
Amy from further sexual abuse. Testimony at trial reasonably
supported the trial judge's findings that the father
insufficiently progressed towards these goals and was therefore
ill-equipped to protect the girls from further abuse.
The father's noncompliance with other portions of the
action plan further supported termination of his parental
rights. At the time the children were removed from his custody,
they displayed poor personal hygiene, including, in Amy's case,
symptoms of untreated head lice.8 Furthermore, the father and
mother did not bring their children, including the subject
children here, to necessary medical appointments, nor did they
7 The father argues that he was improperly required by DCF to acknowledge that his older son sexually abused Suzanne and Amy. Contrary to his assertion, he was not required to do so, but rather, merely required to consider the possibility and explore ways he could protect his daughters from the threat of sexual abuse. The cases cited by the father in support of his position can be readily distinguished because, in each, DCF required the parent to acknowledge that a specific person abused their children. See Adoption of Carlos, 413 Mass. 339, 346 (1992); Adoption of Yalena, 100 Mass. App. Ct. 542, 549-550 (2021). Here, the father was not required to acknowledge that his older son abused his daughters, but, rather, merely acknowledge the possibility of such abuse. 8 The evidence was also enough to support a finding that the
children's hygiene was so poor that one of Suzanne and Amy's younger siblings had an untreated diaper rash that was "blistering and oozing with a significant amount of clearish liquid and blood." At one point, a caregiver observed feces on that child's right ear.
5 adequately communicate with care providers or supervise their
children's medication and medical needs.9 These deficiencies
placed the girls at risk of harm and supported the trial judge's
finding that "[Suzanne] and [Amy] have been continuously placed
at risk as a result of Mother and Father's grievous
shortcomings." The action plan tasks were intended to help the
father improve his parental fitness.10 Instead of availing
himself of the resources provided by DCF intended to help him
address these issues, the father did not satisfactorily
participate in therapy or home visits intended to help him
improve his parenting skills. These issues further supported
the trial judge's conclusion that the father was unfit and that
termination of parental rights was in the children's best
interests.11 See Adoption of Varik, 95 Mass. App. Ct. 762, 773-
9 There was a family history of seizures, and at least four missed medical appointments were intended to address these concerns regarding several of the children. 10 The father argues that his noncompliance with his action plan
should not support the termination of his parental rights because the issues his plan was meant to address were not sufficiently severe. Where sexual abuse and medical neglect are implicated, however, we are not persuaded that the judge abused her discretion in considering the father's noncompliance as part of her analysis. See Adoption of Jacques, 82 Mass. App. Ct. at 606. See also Adoption of Quentin, 424 Mass. at 886. 11 Suzanne argues that we should conclude that termination of the
father's parental rights was not in her best interests, in part because, as a nine year old at the end of the trial, she is statistically unlikely to be adopted. While we are sympathetic to the difficult realities faced by foster children with respect to adoptive placements, we decline to conclude that those difficulties here rise to the level necessary to overcome the
6 774 (2019) ("the judge was warranted in concluding that there
were 'grievous shortcomings' in the father's efforts to parent
. . . that would not be remedied in the foreseeable future, and
that justified the termination of the father's parental
rights").
2. Visitation. "A judge may decline to order postadoption
visitation, or 'may order limited postadoption contact,
including visitation, between a child and a biological parent
where such contact is currently in the best interests of the
child.'" Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004),
quoting Adoption of Vito, 431 Mass. 550, 553 (2000). "An order
for postadoption contact is grounded in the over-all best
interests of the child, based on emotional bonding and other
circumstances of the actual personal relationship of the child
and the biological parent, not in the rights of the biological
parent nor the legal consequences of their natural relation"
(quotation omitted). Adoption of Saul, supra. "Appellate
review of a judge's denial of a request for postadoption
visitation is under the abuse of discretion standard." Id. at
father's severe deficiencies with respect to protecting Suzanne from further abuse and ensuring she receives such medical care as may be necessary. See Adoption of Bea, 97 Mass. App. Ct. at 421-422. See also Adoption of Varik, 95 Mass. App. Ct. 762, 773-774 (2019).
7 555, quoting Adoption of Nicole, 40 Mass. App. Ct. 259, 264
(1996).
Here, we discern no abuse of discretion in the trial
judge's decision to grant two posttermination and postadoption
visits per year. The record contained evidence reflecting that,
while Suzanne enjoyed the visits, they were often chaotic. The
father, while attending visits regularly, was often unengaged
during the visits and made excessive use of his cell phone.
Although Suzanne argues that she enjoys the visits, a DCF social
worker testified that the father's behavior often caused the
children to become upset. Given this evidence, we discern no
abuse of discretion in the trial judge's assessment that two
visits per year are in the best interests of the children.
Decrees affirmed.
By the Court (Green, C.J., Desmond & Hand, JJ.12),
Clerk
Entered: October 26, 2023.
12 The panelists are listed in order of seniority.