ADOPTION OF ZARIA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: December 12, 2023
• Docket: 22-P-1000
• Status: Unpublished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-1000

ADOPTION OF ZARIA (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following trial, a Juvenile Court judge concluded that

Zaria and David were in need of care and protection and that the

mother was unfit to parent them. The judge issued decrees

terminating the mother's parental rights, concluding that the

termination was in the children's best interests. 2 On appeal,

the mother claims that the judge made multiple errors in

determining that she was unfit and also erred in terminating her

parental rights where the Department of Children and Families

(department) failed to provide a detailed adoption plan. The

mother further argues that the judge abused her discretion in

leaving posttermination visitation to the discretion of the

department and in failing to order more than two postadoption

visits per year. We affirm.

1 Adoption of David. The children's names are pseudonyms.

2 The father's parental rights also were terminated. He has not appealed. Background. The department became involved with the family

in 2016, before the Zaria reached her first birthday, following

a physical fight between the parents over who should change the

child's diaper. Both parents were criminally charged in

connection with the incident. By the time David was born in

2017, the mother and the father were living with the paternal

grandmother. The mother called the police several times for

assistance in dealing with family conflicts. The mother and the

father later moved into their own apartment but separated in

2018, with the father eventually obtaining an abuse prevention

order against the mother. The mother subsequently lost her

housing, after which she and the children moved around, staying

sometimes with friends and at other times in hotels. The

children were removed from the mother's custody in 2019, after

an incident where the children (then aged three and one-half and

two) were observed leaning out of a second-story window while

the mother slept. Department employees who responded to the

scene found the apartment unsanitary and in disarray. The

children, who were filthy, nonverbal, had scabies, and

subsequently showed signs of food insecurity, were placed in

foster care.

Soon thereafter, the mother moved into an apartment owned

by the parents of her sixteen year old boyfriend. The

relationship with the boyfriend and his family was volatile, and

2 the mother again resorted to calling the police repeatedly to

help her deal with conflicts. In 2020, the mother gave birth to

another child, fathered by the boyfriend, who was at that time

committed to the Department of Youth Services. 3

The mother struggled with posttraumatic stress disorder,

anger issues, and excessive alcohol and drug use. These factors

combined to cause the mother to be found in violent and

dangerous situations, often calling for a police response and

resulting in the mother being sent to the hospital on a number

of occasions to address both her physical and mental health.

The department offered the mother various services to remedy

these problems but her participation was inconsistent and

ultimately her behavior did not change.

Discussion. 1. Unfitness determination. The central

question in a case to terminate parental rights is whether the

parent is unfit, and then if so, whether termination is in the

best interest of the children. See Adoption of Ilona, 459 Mass.

53, 59 (2011). Such findings must be supported "by clear and

convincing evidence, based on subsidiary findings proved by at

least a fair preponderance of evidence." Adoption of Jacques,

82 Mass. App. Ct. 601, 606 (2012). See Adoption of Mary, 414

3 This child was also removed from the mother's custody in a separate care and protection proceeding not at issue in this appeal.

3 Mass. 705, 710-711 (1993). "We give substantial deference to a

judge’s decision . . . 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, supra.

Here, the judge found that the mother was unfit due to her

unstable mental health, history of trauma, alcohol use, anger

issues, tendency to get into violent situations with others, and

unsafe and unstable housing. The judge determined that these

issues demanded all of the mother's care and attention and

prevented her from attending to the significant emotional,

developmental, and educational needs of the children. Although

the mother was offered services to address these issues, they

were not remedied, as demonstrated by the numerous tumultuous

situations the mother was involved in up to the time of trial. 4

4 For example, in October 2019, a razor had to be wrestled away from the mother, who was talking about harming herself due to a breakup with her boyfriend; police responded and sent her to a hospital. In June 2020, after an argument with her boyfriend, the mother became intoxicated and again had to be sent to the hospital, where she became so combative that she had to be sedated. In September 2020, neighbors called the police due to the mother and her boyfriend screaming at each other. In October 2020, police responded to the home due to a complaint about a loud party and were met by the mother, who was covered in blood; she was sent to the hospital by ambulance to treat her lacerations and alcohol intoxication. In November 2020, the mother called 911 to report her boyfriend assaulted her; she was treated at the hospital for an orbital fracture and broken nose and gave multiple conflicting accounts for her injuries. In December 2020, the mother called 911 due to an argument with her boyfriend. In February 2021, the mother was involved in a confrontation between groups of teenagers where objects were

4 The judge concluded that the children would be put at grave risk

if they were returned to the mother and exposed to her "erratic

and dangerous lifestyle."

On appeal, the mother argues that fifteen of the judge's

findings of fact were clearly erroneous. We are not persuaded.

Findings 1, 5, and 6 5 and supplemental finding 51 each concern

the mother's unsafe and unstable housing. These findings were

amply supported by the evidence. Regarding the mother’s

apartment, there was evidence of stairs in disrepair for over

six months, the same stairs the mother claimed to have been the

cause of her own injuries. 6 There was also evidence that the

thrown and one of the teenagers was knocked unconscious by a bottle. In May 2021, the mother called the police because her boyfriend's parents were chasing her down the street, and she was defending herself with a taser. Less than one week before trial, the mother called the police because her boyfriend would not give her a ride home -- he was inside the home drinking alcohol with other minors.

5 The mother also challenges summary finding 6 on the basis that the judge mistakenly quoted the mother's expert as if she were talking about the mother, rather than victims of domestic violence in general. Our review of the finding indicates that the judge accurately referenced the expert's testimony.

6 The mother argues that there was no evidence of the status of the stairs at the time of trial; she contends that the judge's view of the stairs and the rest of the apartment during the mother's audiovisual testimony was not evidence. Even accepting the mother's analogy of the judge's observation to a "view," the judge was within her discretion to use the observation to help her understand the evidence. See Commonwealth v. Gomes, 459 Mass. 194, 199 (2011). The evidence came in the form of the mother testifying that the stairs had not actually been repaired as of the date of trial.

5 mother's housing situation was insecure as the apartment was

owned by the parents of her boyfriend, with whom she had a poor

relationship. Although she had lived there for two years, the

mother had no lease and made inconsistent rent payments. There

was also evidence that the mother was going to be evicted by the

end of the year. According to the mother's own testimony,

shortly before trial her landlords chased her down the street,

and she pulled out a taser to protect herself. See note 4,

supra. There was no error in the judge's findings concerning

the mother's unsafe and unstable housing.

With respect to findings 9 7 and 10 and supplemental finding

55, all of which were based on the judge's observation that the

mother could not to listen to the foster mother testify to the

needs of the children These findings were not so much factual

statements as they were credibility determinations of the

judge's assessment of the mother's reaction to the foster

mother's testimony. As such, we will not disturb them. See

Custody of Eleanor, 414 Mass. 795, 799 (1993) (judge's

assessment of credibility of witnesses entitled to deference).

7 In summary finding 9, the judge stated that the children's medical needs were not being met at the time of their removal from mother; the judge clarified this finding in supplemental finding 24 by stating that the children were up to date medically but that the mother had previously missed several appointments.

6 The mother challenges supplemental findings 2, 9, 10, 11,

14, and 16, claiming that they impermissibly relied on G. L.

c. 119, § 51A (51A report), which were admitted only to "set the

stage," or on nonprimary facts in G. L. c. 119, § 51B, reports.

Although the judge did cite to 51A reports, it is clear that she

was indeed setting the stage. To the extent that the judge

stated she "adopted" the department's conclusions, it appears

that this was a short-hand reference for saying that she came to

the same conclusion as the department based on admissible

primary facts. There was no error.

In supplemental finding 20, the judge stated that the

mother reported that "she has never taken medication for her

mental health issues," citing a report from a court-appointed

investigator that was admitted as an exhibit. According to the

report, the mother stated to the investigator that she "doesn't

take any medication." We acknowledge the discrepancy, but do

not consider it to be significant. Nowhere else in the decision

does the judge comment on the import of the mother taking or not

taking medication for mental health. The thrust of the judge's

decision is that whatever mother did to address her mental

health issues, it was not sufficient to improve her parenting.

The mother also challenges supplemental finding 31 as

erroneous in that, as the mother alleges, the judge found there

was no domestic violence in the mother's relationships.

7 However, the judge did not actually so find; rather, the judge

observed that the mother's relationships "frequently featured

cycles of calm followed by cycles of violent conflict." This

was amply supported by the record; there was no error.

Finally, the mother challenges conclusion of law 23, in

which the judge applied the G. L. c. 210, § 3 (c), factors,

claiming that the judge erroneously found that factors iii, vii,

and x were relevant. The mother contends that factor iii

(failure to maintain significant and meaningful contact with the

child) and x (willful failure to visit the child) were not

relevant because she had maintained contact and had visited the

children Whether the judge should have categorized these

factors as relevant or not, she did conclude that the mother

maintained contact with the children. As to factor vii (child's

bond with substitute caretaker), the mother contends that it was

error for the judge to find this factor relevant since,

regardless of the bond, it would eventually have to be broken

because the foster parent was not going to adopt the children.

The judge used this factor to comment on the bond between the

foster mother and the children. We see nothing that suggests

the judge used this factor, or the other two challenged factors,

as a basis for termination. There was no error.

We have carefully reviewed the challenged findings and

conclude that the record evidence supported those findings by a

8 preponderance of the evidence. See Adoption of Jacques, 82

Mass. App. Ct. at 606. Moreover, the unchallenged findings

alone establish clearly and convincingly that the mother is

unfit and that termination is in the best interests of the

children. There was no abuse of discretion.

2. Adoption plan. The mother argues that the judge erred

in terminating her parental rights in the absence of a detailed

adoption plan. While G. L. c. 210, § 3, mandates that the judge

review and consider the adoption plan proposed by the

department, see Adoption of Hugo, 428 Mass. 219, 226 (1998),

cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034

(1999), "[t]he adoption plan need not be fully developed to

support a termination order." Adoption of Willow, 433 Mass.

636, 652 (2001). See Adoption of Vito, 431 Mass. 550, 568 n.28.

Instead we look to determine whether the adoption plan

"provide[d] sufficient information about the prospective

adoptive placement 'so that the judge may properly evaluate the

suitability of the department's proposal.'" Adoption of Willow,

supra at 652-653, quoting Adoption of Vito, supra.

Here, at the time of trial, the department had not

identified an adoptive placement for the children. "[T]he

absence of imminent adoption prospects does not, by itself,

invalidate a decision to terminate parental rights." Adoption

of Jacques, 82 Mass. App. Ct. at 610. See Adoption of Vito, 431

9 Mass. at 568 n.28. However, the adoption social worker

testified both to the department's intent to keep the children

together and to the characteristics and qualifications that the

department sought in any prospective preadoptive family. In

particular, the department aimed to find a family that could

understand and advocate for the children's educational and

physical needs, ideally a two-parent home where the family would

commit to postadoption visitation by the mother; additionally,

the foster mother would be involved in the transition of the

children to a preadoptive home. In this case, the judge had

sufficient information to approve the adoption plan.

3. Posttermination and postadoption visits. The mother

argues that the judge abused her discretion in leaving

posttermination visitation to the discretion of the department

and ordering only two postadoption visits per year. She

suggests monthly posttermination visits and quarterly

postadoption visits would serve the best interests of the

children.

Once a parent is established as unfit, the decision whether

to grant posttermination and postadoption visits is within the

judge’s discretion. See Adoption of John, 53 Mass. App. Ct.

431, 430 (2001). The decision should be based on the best

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

The purpose of posttermination and postadoption visitation is

10 not to strengthen the bond between parent and child but rather

to ease the child's transition to another home. See Adoption of

Vito, 431 Mass. at 564-565. With regard to postadoption

visitation, "[a] judge must balance the benefit to the child

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

the adoptive parents." Adoption of Ilona, supra at 64.

Here, the judge found that there was a bond between the

mother and the children and so ordered a minimum of two

postadoption visits per year. The judge left frequency of

posttermination visits to the discretion of the department so

that visits could be tapered leading up to adoption. Although

the mother is concerned that the department will not allow more

than the minimum two visits per year set out by the judge, there

is nothing in the record to suggest that the department will act

contrary to the best interests of the children with respect to

visitation with the mother. Additionally, the mother has not

demonstrated that the judge's decision to order postadoption

visits twice a year, rather than quarterly, amounted to an abuse

of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185

11 n.27 (2014) (abuse of discretion is when decision falls outside

of range of reasonable alternatives).

Decrees affirmed.

By the Court (Vuono, Singh & Englander, JJ. 8),

Clerk

Entered: December 12, 2023.

8 The panelists are listed in order of seniority.