ADOPTION OF VIGGO (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: January 5, 2024
• Docket: 22-P-0936
• Status: Unpublished

Opinion

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-936

ADOPTION OF VIGGO (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, the father, and Viggo, the older of the

parents' two children, appeal from the decrees of the Juvenile

Court, which terminated both parents' rights with respect to

their two children, committed the children to the custody of the

Department of Children and Families (department), and approved

the department's adoption plan. 2 After review of the record and

consideration of the parties' arguments, we affirm.

Background. The department assumed custody of the children

just after the younger child was born exposed to multiple

substances (heroin, fentanyl, and cocaine) in December 2018.

The children spent more than a year in foster care before being

returned to the mother and the father. During that year, the

younger child experienced numerous medical issues, including

1 Adoption of Alicia. The children's names are pseudonyms. 2 Alicia, the younger child, advocates for affirmance of the decrees. tightness and tremors in her arms and legs, gastrointestinal

problems, sensory issues, repeated bronchitis, breathing

problems, and chronic ear infections resulting from a

compromised immune system. The older child, five years old at

the time of removal, shifted from foster home to foster home due

to behavioral issues, which included obsession with violent

video games, swearing, inappropriate conversations with younger

children, and food hoarding. He also had significant tooth

decay requiring extensive dental work under anesthesia.

After the parents had engaged in services for some time,

the department returned the children to the home of the mother

and the father in January 2020. In March 2020, the department

ceased in-person home visits due to the COVID-19 pandemic. In

May 2020, a department social worker observed the younger child

(for the first time after her return to the mother and the

father) and noted a significant decline in her appearance,

urging the parents to take the child to her pediatrician. The

following month, June 2020, the younger child's pediatrician

recommended that the child be immediately transported to Hasbro

Children's Hospital. At Hasbro, it was discovered that the

younger child had significant weight loss, her skin appeared

translucent with bruises and lacerations all over her body, her

hair was brittle and balding, and she had hematomas on both ears

and bone fractures in her arm and leg.

2 Doctors at Hasbro found the younger child's injuries to be

inconsistent with accident. In particular, the hematomas on the

ears, one pediatrician opined, would have resulted from blunt

force trauma inflicted to the head. The pediatrician further

opined that the fractures to the arm and leg would have been

painful, causing the child to cry out, and that the weight loss

and deterioration of skin and hair were the result of severe

malnutrition. The parents indicated that the younger child's

weight loss was due to the fact that she was not adjusting to

solid food well. Both parents suggested that the older child,

who was six years old at the time, could have inflicted the

injuries on the younger child. The parents had no explanation

for why they did not seek medical attention earlier except that

they did not like the pediatrician. The trial judge credited

the medical diagnoses and opinions regarding the younger child's

injuries.

Thereafter, the younger child was placed back into her

previous foster home, and the older child (after a number of

interim arrangements) was also placed into a foster home. Both

children improved significantly after being removed from the

mother and the father. The following month, in July 2020, the

mother and the father were both criminally charged with child

endangerment.

3 Discussion. 1. Termination of parental rights. The

mother, the father, and the older child each contend that the

judge erred in terminating parental rights. Before terminating

parental rights, a judge must first find by clear and convincing

evidence that the parent is currently unfit to raise the child.

See Adoption of Nancy, 443 Mass. 512, 515 (2005); Adoption of

Posy, 94 Mass. App. Ct. 748, 750-751 (2019). Unfitness is

determined "by taking into consideration 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 Mary, 414 Mass. 705, 711 (1993). See

Adoption of Carlos, 413 Mass. 339, 348 (1992). In order to make

the subsequent determination about termination, the judge must

also find by clear and convincing evidence that "the child's

best interests will be served by terminating the legal relation

between parent and child." Adoption of Ilona, 459 Mass. 53, 59

(2011).

Here, the judge's conclusion that the department had

sustained its burden of proving by clear and convincing evidence

that both parents were and would remain unfit to raise both

children was amply supported in the record. See Custody of

Eleanor, 414 Mass. 795, 802 (1993) (factual findings must be

supported by record evidence and will not be overturned unless

clearly erroneous). The judge's careful and thorough decision

4 derived directly from the testimony and documentary evidence

before the court, which the judge was within her discretion to

credit. See Adoption of Nancy, 443 Mass. at 515, citing

Adoption of Quentin, 424 Mass. 882, 886 (1997) (it is judge's

prerogative to evaluate witness credibility and to weigh

evidence).

The evidence showed that the younger child was healthy when

placed with the parents, but deteriorated precipitously while in

her parents' care. In addition to malnutrition so severe that

it affected brain development, there was evidence that the

younger child sustained multiple serious injuries that were

inconsistent with accident. Further, the older child disclosed

physical abuse by the mother and by the father as well as

physical abuse against the mother by the father. The parents

were offered services to remedy their parental shortcomings, but

were largely noncompliant. By the time of trial, the parents

were facing criminal charges alleging intentional abuse of the

children. At no time did the parents take responsibility or

show any insight into how their own behavior put the children at

risk.

a. Expert testimony concerning younger child. The mother

contends that the judge's conclusions about unfitness were

largely drawn from the testimony of a witness who was an expert

in child abuse pediatrics, and that this was error because the

5 expert relied on inaccurate information about the younger

child's weight, wrongly dismissed the mother's explanation for

changing the younger child's diet, and opined, without support,

that the older child could not have caused the younger child's

injuries. The father similarly argues that the judge erred in

holding the parents responsible for the younger child's physical

condition where the evidence suggested that her weight loss was

not readily perceptible and that the older child may have

inflicted the other injuries without the parents' knowledge.

Although there were discrepancies in the medical records

regarding the younger child's weight loss, the records overall

support a conclusion that she suffered significant weight loss

and associated malnutrition. And to the extent that there may

have been alternative causes for the younger child's weight loss

and injuries, these alternatives were explored at trial. As to

any perceived flaws in the expert witness opinions, the parties

were free to cross-examine the witness on those issues and point

out the deficiencies to the judge for her consideration. See

Sacco v. Roupenian, 409 Mass. 25, 30 (1990) (party free to

attack inconsistencies or omissions in factual foundation, as

well as flaws in analytical process through cross-examination to

affect weight of evidence). Ultimately, it was for the judge to

decide the weight and credibility of the evidence presented.

See Adoption of Larry, 434 Mass. 456, 462 (2001). As the

6 judge's factual findings regarding the unfitness of both parents

were solidly grounded in the evidence, we do not disturb them.

See Adoption of Helen, 429 Mass. 856, 859 (1999).

b. Independent evidence of abuse and neglect of older

child. The parents and the older child also argue that the

judge erred in terminating parental rights as to the older child

based solely on concerns regarding the neglect and abuse of the

younger child. See Petition of Catholic Charitable Bur. of the

Archdiocese of Boston, Inc., to Dispense with Consent to

Adoption, 395 Mass. 180, 185 n.6 (1985) (parent may be fit to

raise one child but unfit to raise another). Yet, there were

concerns of neglect and abuse of the older child. He exhibited

significant dental, emotional, and behavioral issues when

removed from his parents' care. The older child's own reporting

added to this evidence; he reported being unable to wake up his

mother and having to make his own food. He reported his parents

being "mean" to him and physical abuse, including his mother

suffocating him and his father throwing him and hitting him.

There was ample evidence of abuse and neglect, specific to the

older child.

2. Adverse inference against father. The father contends

that the judge erred in drawing a negative inference from the

fact that he was present at trial but did not testify. He

contends that such an inference can only be drawn if a party

7 refuses to testify, but he never refused as he was not called to

be a witness. To the contrary, in a termination of parental

rights proceeding, which is civil in nature, a negative

inference may be drawn when a party fails to testify under

circumstances where "a case adverse to the interests of the

party affected is presented so that failure of a party to

testify would be a fair subject of comment." Custody of Two

Minors, 396 Mass. 610, 616 (1986). Here, the department

presented such a case adverse to the interests of the father.

The fact that the father had a privilege against self-

incrimination in the pending criminal proceedings he faced, is

of no consequence as the privilege has no application in a

termination proceeding. Cf. id. at 617 (holding privilege

against self-incrimination is not applicable in child custody

case). See Adoption of Cecily, 83 Mass. App. Ct. 719, 727

(2013) (in case terminating mother's parental rights, negative

inference drawn against mother by trial judge appropriate where

mother faced criminal charges arising out of abuse and neglect

of child). There was no error.

3. Rejection of maternal grandmother as adoption resource

for older child. The parents challenge the judge's decision to

place the older child in the department's custody, rather than

with his maternal grandmother. The judge recognized the

significance of the older child's relationship with the maternal

8 grandmother, but determined that it was not in the best interest

of the older child to be placed with her because she lacked

insight regarding the reasons that the children were placed into

the department's care. Her minimization of the trauma, neglect,

and abuse the children endured gave the judge concern that the

maternal grandmother would not be able to respect boundaries

placed on the parents' contact with the children. We cannot say

that the judge's rejection of the parents' proposed adoption

plan in favor of the department's plan was an abuse of

discretion. See Adoption of Jacob, 99 Mass. App. Ct. 258, 272-

273 (2021).

4. Posttermination visitation. Lastly, the mother, the

father, and the older child challenge the judge's rulings

concerning posttermination contact. The judge found that

ordering posttermination visitation was not in the children's

best interest, but rather concluded that the children's

respective caretakers should make all future visitation

decisions. Similarly, the judge declined to issue a specific

order regarding sibling visitation, concluding that while the

siblings enjoyed positive interactions during their visits, the

children's adoptive parents and custodians would be in the best

position to gauge the extent to which visitation was in their

best interests posttermination.

9 Once a parent is established as unfit, the decision whether

to grant posttermination visits is within the judge’s

discretion. See Adoption of John, 53 Mass. App. Ct. 431, 439

(2001). The decision should be based on the best interest of

the child. See Adoption of Ilona, 459 Mass. at 63.

Notwithstanding the father's argument as to his positive

relationship and bond with the older child, the judge made no

finding of such a bond. See id. at 63-64 (in determining best

interests, judge should consider, among other factors, whether

there is significant existing bond between child and biological

parent). Particularly given the no contact order in place

issued by a judge in the criminal case, there was no abuse of

discretion in the judge's decision not to order visitation

between the father and the older child.

Although the judge did order posttermination visitation

between the mother and the older child, the mother and the older

child argue that the judge erred in limiting the contact, in

giving the department discretion to further reduce the

visitation, and in declining to order post-adoption visitation.

However, the purpose of posttermination and postadoption

visitation is not to strengthen the bond between the biological

parents and the child but rather to ease the child's transition

to another home. See Adoption of Vito, 431 Mass. 550, 564-565

(2000). "[A] judge must balance the benefit to the child . . .

10 with the intrusion that an order imposes on the rights of the

adoptive parents." Adoption of Ilona, 459 Mass. at 64. The

judge determined that the older child was likely to have

changing needs, given his trauma history and treatment, such

that it may be necessary to reduce visits if deemed advisable by

the child's therapist. Similarly, those same anticipated

changing needs made it inadvisable to order postadoption

visitation. Under the circumstances, we cannot say it was an

abuse of discretion to give the department discretion to reduce

visitation under set circumstances and to leave postadoption

contact to the discretion of the adoptive family. See L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of

discretion is when decision falls outside of range of reasonable

alternatives).

The older child argues that the judge erred in declining to

issue a formal order of sibling visitation with the younger

child. General Law c. 119, § 26B (b) (§ 26B [b]), requires the

court, as well as the department, to ensure that a child placed

in foster care have access to visitation with siblings, to the

extent reasonable and practical and based upon the best

interests of the child. In this case, as the judge found, the

older child did have visitation with his sibling consistently

throughout the proceeding. The judge further found that the

department would continue to maintain the contact as long as it

11 was clinically appropriate. There is nothing in the record to

suggest otherwise. Under the circumstances, the judge was not

required to make a specific order regarding sibling visitation.

See Adoption of Garret, 92 Mass. App. Ct. 664, 681 (2018) (where

department is permitted to manage sibling visitation pursuant to

§ 26B [b], no error in judge's failure to make visitation

orders). 3

Decrees affirmed.

By the Court (Rubin, Singh & Hershfang, JJ. 4),

Assistant Clerk

Entered: January 5, 2024.

3 Any arguments raised by the parents and the older child but not mentioned in this decision "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 4 The panelists are listed in order of seniority.