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
25-P-273
ADOPTION OF YAELIN (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge issued
decrees finding the mother unfit to parent her two younger
children, terminating her parental rights, and approving the
adoption plan proposed by the Department of Children and
Families (department). On appeal, the mother claims that the
department failed to prove by clear and convincing evidence that
she is unfit or that the termination of her parental rights
served the younger children's best interests, and that the judge
made several erroneous findings that infected the unfitness and
termination determinations. We affirm.
1Adoption of Noah. Having reached the age of majority during the proceedings, the mother's oldest child, Dani, was dismissed from the petition, and therefore is not a subject of this appeal. The children's names are pseudonyms. Background. We summarize the relevant facts as found by
the judge, who issued comprehensive, detailed findings of fact
and conclusions of law. The oldest child turned eighteen during
trial, and the younger children were eleven and seven. The
department first became involved with the family in 2004 after
receiving a report filed pursuant to G. L. c. 119, § 51A (51A
report2), alleging neglect of Dani. After multiple 51A reports
were filed, Dani was removed from the mother's care three times,
Yaelin was removed twice, and Noah was removed once. At the
time of trial, Yaelin had recently been placed in the same
foster home as Noah.3 Yaelin and Noah both want to be adopted,
and Noah's foster parents are committed to adopting him.4
The children were removed from the mother's custody in
March 2019 due to a constellation of factors including untreated
mental health issues, substance misuse, housing instability,
domestic violence in the home, and the children missing several
school days and doctors' appointments.
2 In total, twenty-six 51A reports were filed and thirteen G. L. c. 119, § 51B, investigations were conducted.
3 Yaelin was in a child-specific preadoptive placement, but ongoing behavioral issues escalated, and her foster parents asked the department to find her a new placement.
4 Noah's foster parents had not made a commitment to adopt Yaelin when the judge issued her decision.
2 The mother had been in several abusive relationships and
had allowed her partners, and other acquaintances, to live in
her home with the children. Dani was the victim of physical
abuse by her mother's partners and, along with her siblings,
witnessed physical abuse of the mother. After the children's
removal in March 2019, the mother engaged in services
recommended by the department but continued to allow
acquaintances to live in her home, knowingly putting
reunification at risk.
Around May 2020, the mother disclosed to the department
that she was in a relationship with a woman (partner) whom she
had met at a substance abuse treatment program. The two began
living together; although the partner was cooperative with the
department, she was unwilling to participate in family therapy
until the eve of trial. Dani reported that the partner was
occasionally violent and would throw her cellphone when
frustrated with the mother, testimony credited by the judge.
Dani left her placement with the maternal grandmother after
an argument with her and resided with the mother and her partner
from November 2021 to March 2022. When Dani first returned to
her mother's home, things went well, but over time, that
changed. When the partner was upset with Dani, she would yell
at her and take away Dani's cellphone, iPad, and laptop,
3 consequently denying her access to her social worker and
attorney. Additionally, Dani slept in the living room of the
mother's apartment and had limited privacy.
On March 28, 2022, the mother took Dani to the hospital
because Dani had threatened to hurt herself. Dani reported that
she felt unsafe at home, and that her mother and partner would
scream at each other and the partner punched a hole in the
apartment wall. Dani felt that the mother did not try to keep
the home safe and ignored Dani when Dani struggled with her
mental health; the mother, the judge found, was unwilling to
believe Dani's concerns were legitimate and failed to respond
appropriately until Dani "was in crisis." Dani did not return
to the mother's home after she was discharged from the hospital.
The judge found that the mother's treatment of Dani was some
evidence of her unfitness to care for the younger children.
Ultimately, the judge found that the department met its
burden, concluding that the mother did not understand the role
her domestic relationships played in affecting her parenting,
and she has continued to prioritize her relationships over her
children. The judge explained that although the mother had
engaged in services, she had not shown that she could implement
the skills she learned, as evidenced by her failed reunification
with Dani. For these reasons, the judge found that
4 reunification was not in the best interests of the younger
children, and the mother's unfitness was likely to continue for
the foreseeable future.
Discussion. 1. Standard of review. "To terminate
parental rights to a child and to dispense with parental 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 Jacques, 82 Mass. App. Ct. 601, 606
(2012). On appeal, "[w]e give substantial deference to a
judge's decision that termination of a parent's rights is in the
best interest[s] 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." Adoption of Ilona, 459
Mass. 53, 59 (2011).
2. Unfitness. The mother argues that the judge erred in
finding that she was still in a cycle of domestic violence
relationships, was unwilling or unable to engage in family
therapy, was unable to obtain services for her children or meet
their needs, that her housing stability was at risk, and that
she was not in stable recovery from her substance use disorder.
However, these subsidiary findings, included among the judge's
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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
25-P-273
ADOPTION OF YAELIN (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge issued
decrees finding the mother unfit to parent her two younger
children, terminating her parental rights, and approving the
adoption plan proposed by the Department of Children and
Families (department). On appeal, the mother claims that the
department failed to prove by clear and convincing evidence that
she is unfit or that the termination of her parental rights
served the younger children's best interests, and that the judge
made several erroneous findings that infected the unfitness and
termination determinations. We affirm.
1Adoption of Noah. Having reached the age of majority during the proceedings, the mother's oldest child, Dani, was dismissed from the petition, and therefore is not a subject of this appeal. The children's names are pseudonyms. Background. We summarize the relevant facts as found by
the judge, who issued comprehensive, detailed findings of fact
and conclusions of law. The oldest child turned eighteen during
trial, and the younger children were eleven and seven. The
department first became involved with the family in 2004 after
receiving a report filed pursuant to G. L. c. 119, § 51A (51A
report2), alleging neglect of Dani. After multiple 51A reports
were filed, Dani was removed from the mother's care three times,
Yaelin was removed twice, and Noah was removed once. At the
time of trial, Yaelin had recently been placed in the same
foster home as Noah.3 Yaelin and Noah both want to be adopted,
and Noah's foster parents are committed to adopting him.4
The children were removed from the mother's custody in
March 2019 due to a constellation of factors including untreated
mental health issues, substance misuse, housing instability,
domestic violence in the home, and the children missing several
school days and doctors' appointments.
2 In total, twenty-six 51A reports were filed and thirteen G. L. c. 119, § 51B, investigations were conducted.
3 Yaelin was in a child-specific preadoptive placement, but ongoing behavioral issues escalated, and her foster parents asked the department to find her a new placement.
4 Noah's foster parents had not made a commitment to adopt Yaelin when the judge issued her decision.
2 The mother had been in several abusive relationships and
had allowed her partners, and other acquaintances, to live in
her home with the children. Dani was the victim of physical
abuse by her mother's partners and, along with her siblings,
witnessed physical abuse of the mother. After the children's
removal in March 2019, the mother engaged in services
recommended by the department but continued to allow
acquaintances to live in her home, knowingly putting
reunification at risk.
Around May 2020, the mother disclosed to the department
that she was in a relationship with a woman (partner) whom she
had met at a substance abuse treatment program. The two began
living together; although the partner was cooperative with the
department, she was unwilling to participate in family therapy
until the eve of trial. Dani reported that the partner was
occasionally violent and would throw her cellphone when
frustrated with the mother, testimony credited by the judge.
Dani left her placement with the maternal grandmother after
an argument with her and resided with the mother and her partner
from November 2021 to March 2022. When Dani first returned to
her mother's home, things went well, but over time, that
changed. When the partner was upset with Dani, she would yell
at her and take away Dani's cellphone, iPad, and laptop,
3 consequently denying her access to her social worker and
attorney. Additionally, Dani slept in the living room of the
mother's apartment and had limited privacy.
On March 28, 2022, the mother took Dani to the hospital
because Dani had threatened to hurt herself. Dani reported that
she felt unsafe at home, and that her mother and partner would
scream at each other and the partner punched a hole in the
apartment wall. Dani felt that the mother did not try to keep
the home safe and ignored Dani when Dani struggled with her
mental health; the mother, the judge found, was unwilling to
believe Dani's concerns were legitimate and failed to respond
appropriately until Dani "was in crisis." Dani did not return
to the mother's home after she was discharged from the hospital.
The judge found that the mother's treatment of Dani was some
evidence of her unfitness to care for the younger children.
Ultimately, the judge found that the department met its
burden, concluding that the mother did not understand the role
her domestic relationships played in affecting her parenting,
and she has continued to prioritize her relationships over her
children. The judge explained that although the mother had
engaged in services, she had not shown that she could implement
the skills she learned, as evidenced by her failed reunification
with Dani. For these reasons, the judge found that
4 reunification was not in the best interests of the younger
children, and the mother's unfitness was likely to continue for
the foreseeable future.
Discussion. 1. Standard of review. "To terminate
parental rights to a child and to dispense with parental 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 Jacques, 82 Mass. App. Ct. 601, 606
(2012). On appeal, "[w]e give substantial deference to a
judge's decision that termination of a parent's rights is in the
best interest[s] 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." Adoption of Ilona, 459
Mass. 53, 59 (2011).
2. Unfitness. The mother argues that the judge erred in
finding that she was still in a cycle of domestic violence
relationships, was unwilling or unable to engage in family
therapy, was unable to obtain services for her children or meet
their needs, that her housing stability was at risk, and that
she was not in stable recovery from her substance use disorder.
However, these subsidiary findings, included among the judge's
5 300 findings of fact and twenty conclusions of law, find ample
support in the record and are not clearly erroneous.5
The mother also contends that the judge erred in unduly
relying on Dani's testimony. We are not persuaded. Although
parental fitness must be assessed for each child, "a judge may
rely upon a parent's past conduct with regard to older children
to support a finding of current unfitness as to a different
child, so long as that evidence is not the sole basis for the
judge's unfitness determination." Adoption of Luc, 484 Mass.
139, 145 (2020). Past parental conduct is relevant to current
parental fitness where the evidence supports a continuing
pattern of the conduct which has led to the removal of other
children "and the [past] conduct was not too remote." Adoption
of Larry, 434 Mass. 465, 469 (2001).
Here, Dani's testimony about the failed reunification three
months before trial was evidence of the mother's most recent
parenting, including the missed opportunity to demonstrate
improvement, as well as the mother's continuing parenting
5 Even if the judge's finding that the mother did not engage in parenting classes was clearly erroneous, the error was not central to the ultimate conclusion of unfitness or the termination decisions. See Adoption of Ilian, 91 Mass. App. Ct. 727, 730 (2017). Indeed, as we noted above, the judge acknowledged the mother's substantial compliance with her service plan tasks, but found, with support in the record, that the mother had been unable to implement the skills she had gained.
6 deficits. Although the mother argued that Dani's testimony was
not credible, a judge's finding on witness credibility is
"quintessentially the domain of the trial judge [so that (her)]
assessment is close to immune from reversal on appeal except on
the most compelling of showings." Prenaveau v. Prenaveau, 81
Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38
Mass. App. Ct. 531, 536 (1995). The judge was in the best
position to determine credibility, and did not err in crediting
Dani's testimony. See id.
The mother next argues that the finding that she is still
in a relationship that involves domestic violence is erroneous
because the only evidence of current abuse is Dani's testimony.
Family violence is relevant to a judge's determination of
parental unfitness because "witnessing domestic violence, as
well as being one of its victims, has a profound impact on
children." Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015),
quoting Custody of Vaughn, 422 Mass. 590, 599 (1996). While it
is true that "[i]solated problems in the past or stale
information cannot be a basis for a determination of current
parental unfitness" (citation omitted), Adoption of Rhona, 57
Mass. App. Ct. 479, 487 (2003), past incidents of neglect may be
considered "to predict future ability and performance."
Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997). The
7 judge properly considered the mother's pattern of abusive
relationships and Dani's eyewitness account of what occurred
recently in the mother's home.
Dani's testimony was not the sole basis of the judge's
unfitness determination. The judge also found that the mother's
partner had no interest in family therapy, and although the
mother did show a willingness, family therapy would not be
useful without the partner. The judge also found that the
mother's failure to act when Dani told her that she was
struggling with her mental health was evidence that the mother
was unable to meet the needs of the children.
Additionally, the judge found that while the mother's
housing had stabilized, her financial reliance on her partner
for most living expenses, given their "tumultuous at best"
relationship, raised concerns about the risk of future housing
instability. The judge did not credit the mother's testimony
that she became sober in December 2020 as it conflicted with her
treatment records and her partner's testimony. Although the
mother had been substance free since January 2022, the judge
found that she was unable to maintain consistent and candid
reporting about her substance misuse or to plan for the
children's safety in the event of relapse, which, the judge
found, had occurred during the pendency of the case. The
8 judge's findings that the mother remained unfit to parent Yaelin
and Noah at the time of trial and that the unfitness was likely
to continue indefinitely were well supported by the subsidiary
findings.
3. Best interests of the children. The termination of
parental rights must be in the best interests of the children,
which "requires a court to focus on the various factors unique
to the situation of the individual[s] for whom it must act."
Custody of a Minor, 375 Mass. 733, 753 (1978). "In determining
whether the best interests of the child[ren] will be served by
issuing a decree dispensing with the need for consent" to
adoption, "the court shall consider the ability, capacity,
fitness and readiness of the child[ren]'s parents . . . to
assume parental responsibility, and shall also consider the plan
proposed by the department . . . ." G. L. c. 210, § 3 (c).
The judge found that although the mother participated in
some services, ultimately, her parenting skills were not
improved to the point that she was able to "assume parental
responsibility" of Yaelin and Noah. As an example, during
supervised visits, the mother was repeatedly asked by the
department to not bring certain food items due to the children's
medical issues, but chose not to follow those directives.
During one visit, the mother told Noah it was okay for him to
9 eat an item on the prohibited foods list, leading to postvisit
vomiting. Noah often had behavioral struggles before and after
visits. Indeed, Noah's teacher noticed a change in his behavior
on days that he visited the mother. And, Yaelin experienced
anxiety and would become physically ill before visits.
The children's emotional health has improved since their
removal. Yaelin has shown improved behavior and pride in
herself. Noah's behavior and development have also improved.
The judge properly took "into account the child[ren]'s condition
while living with [their] mother as contrasted with [their]
development after removal from her care." Adoption of Terrence,
57 Mass. App. Ct. 832, 835 (2003).
Although the mother has made some strides, the evidence
supports the judge's conclusion that, since March 2019, the
mother has been "unable to properly parent these children," and
has failed to demonstrate the understanding and commitment that
would be required to do so. The children want to be adopted and
are entitled to permanency. While a child's preference is not
10 dispositive, it is a factor the judge can consider. See
Adoption of Nancy, 443 Mass. 512, 518 (2005).
Decrees affirmed.
By the Court (Blake, C.J., Henry & Hershfang, JJ.6),
Clerk
Entered: November 18, 2025.
6 The panelists are listed in order of seniority.