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-997
ADOPTION OF ZYGMUNT (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother is the parent of Zygmunt, Erik, and Luke, and
the father is the parent of Erik and Luke.2 In 2019, the
children were removed from the mother's and father's custody
after a report that the father physically abused Zygmunt. After
trial on the care and protection petition in 2021, a Juvenile
Court judge found the father unfit to parent his children, Erik
and Luke, and the mother unfit to parent her children, Zygmunt,
Erik, and Luke; the judge terminated their parental rights to
their respective children.3 On appeal, both parents argue that
the trial judge abused his discretion and committed clear error
1 Adoption of Erik and Adoption of Luke. The children's names are pseudonyms. 2 As further described infra, the mother and the father are also
the parents of Michael (a pseudonym), who was born after Zygmunt, Erik, and Luke were removed from their custody. Michael is not a part of these proceedings. 3 The mother reported that Zygmunt's father is deceased. The judge terminated the parental rights of any unknown or unnamed father of Zygmunt. by finding that they were each unfit to parent their respective
children. We affirm.
Discussion. 1. Father's appeal. a. Parental unfitness.
i. Standard of review. Before terminating a parent's rights to
a child, a judge must find by clear and convincing evidence that
the parent is unfit. See Adoption of Jacob, 99 Mass. App. Ct.
258, 262 (2021). "'[P]arental unfitness' means 'grievous
shortcomings or handicaps' that put the child's welfare 'much at
hazard.'" Id., quoting Adoption of Katharine, 42 Mass. App. Ct.
25, 28 (1997). In making this determination, "the judge 'may
consider past conduct to predict future ability and
performance.'" Adoption of Jacob, supra, quoting Adoption of
Katharine, supra at 32–33. "When making this determination,
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). Our review is for an abuse
of discretion or clear error of law. See Adoption of Elena, 446
Mass. 24, 30 (2006).
ii. Father's domestic violence. We are not persuaded by
the father's argument that the Department of Children and
Families (department) failed to show a basis for its ongoing
concerns about his domestic violence and likewise failed to show
a nexus between his history of domestic violence and his ability
2 to parent Erik and Luke. Here, the judge made "detailed and
comprehensive findings on domestic violence" by the father
towards both Zygmunt and the mother. Adoption of Jacob, 99
Mass. App. Ct. at 262, quoting Care & Protection of Lillith, 61
Mass. App. Ct. 132, 139 (2004). The judge found that on at
least two occasions -- one in 2018 and another in 2019 -- the
father used physical violence to discipline Zygmunt.4 In the
first incident, while the family was living in Colorado, the
father hit Zygmunt in the face, giving him a black eye and
leading the mother to send Zygmunt to live with family friends
in Massachusetts based on her concerns about "the unhealthy and
unsafe environment in the . . . home."5 In the second incident,
which occurred while the family was living together in
Massachusetts, Zygmunt was hospitalized after the father grabbed
him by the neck and repeatedly punched him in the face and
abdomen.6 At the termination trial, both parents testified that
Zygmunt was at fault for the altercations with the father. The
judge did not credit that testimony. The mother, too, was a
4 Zygmunt has a learning disability and has been diagnosed with attention deficit hyperactivity disorder (ADHD), posttraumatic stress disorder (PTSD), and anxiety. Additionally, as we discuss below, Zygmunt's communication skills differ from those of the parents, Erik, and Luke, all of whom experience some level of hearing impairment. 5 Although the father testified that the incident was an
accident, the judge did not credit that testimony. 6 The father was prosecuted for this abuse and pleaded guilty to
charges of assault and battery on Zygmunt.
3 victim of the father's domestic violence; the judge found that
the father "frequently" forced the mother to have sex with
him.7, 8
Additionally, the fact that the father pleaded guilty to
assault and battery of Zygmunt and "accepted" court-ordered
punishment does not render erroneous the judge's findings that
the father neither accepted responsibility for his actions nor
benefited from the available treatment. Despite the father's
having pleaded guilty to the criminal charges, the judge found
that the father continued to blame Zygmunt for initiating the
disputes between the two of them. Additionally, the judge's
findings reflect that although the father engaged in counselling
intended to address his use of physical punishment on the
children, he refused to acknowledge that domestic violence
applied to children at all and never identified a plan for
disciplining the children without physical force. See Adoption
7 Indeed, the judge implicitly found that the mother's and father's youngest child, Michael, see note 2, supra, was conceived as a result of the father's forced sex with the mother. The father was charged with raping the mother, but the charges were later dismissed at the mother's request. 8 The father's undeveloped argument about the impact of "outside
influences" impeding his ability to meet Zygmunt's needs does not persuade us otherwise. Specifically, the father argues that (1) the friends to whom the mother gave temporary guardianship of Zygmunt after father's abuse required Zygmunt's hospitalization attempted to undermine his relationship with Zygmunt; and (2) the department "did nothing [after the children's removal from the father and mother] to address Father's relationship with Zygmunt."
4 of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting Petitions
of the Dep't of Social Servs. To Dispense with Consent to
Adoption, 399 Mass. 279, 289 (1987) ("The [parent's] inability
to consistently attend, complete, and benefit from classes
required by [their] service plan is 'relevant to the
determination of unfitness'").
Furthermore, the absence of any finding that the father
abused Erik and Luke does not, as the father contends, negate
the existence of the requisite nexus between the father's
domestic violence against the mother and Zygmunt and his ability
to parent Erik and Luke. Domestic violence in the home "has a
profound impact on children," whether or not the children at
issue are themselves direct victims of abuse.9 Custody of
Vaughn, 422 Mass. 590, 599 (1996) See Care & Protection of
Lillith, 61 Mass. App. Ct. at 141. Here, the judge made
properly supported findings that the father had only
inconsistently engaged in services intended to improve his anger
management skills and understanding of domestic violence, and
failed to benefit from those services in which he did
participate. The scarcity of evidence of the father's past
9 Any argument that Erik and Luke did not witness the domestic violence against the mother and Zygmunt is unpersuasive because "[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." Adoption of Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018).
5 abuse of other family members did not prohibit the judge from
considering the evidence of his abuse of Zygmunt and the mother
in assessing the father's fitness as to Erik and Luke. "A judge
. . . need not wait for disaster to happen but may rely upon
past patterns of parental neglect or misconduct in determining
current or future fitness." Adoption of Virgil, 93 Mass. App.
Ct. 298, 301 (2018). We discern neither abuse of discretion nor
other error in the judge's reliance on evidence of the father's
domestic violence in assessing the father's fitness to parent
Erik and Luke. See Adoption of Garret, 92 Mass. App. Ct. 664,
673-674 (2018) (judge warranted in concluding parent's failure
to benefit from services under department plan rendered parent
unfit).
iii. Best interests assessment. For substantially the
reasons we have just discussed, we are not persuaded by the
father's argument that the judge erred in evaluating his
parental fitness and the best interests of Erik and Luke
collectively, rather than individually. We acknowledge that
"[p]arental unfitness must be 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 Luc,
484 Mass. 139, 144 (2020), quoting Adoption of Mary, 414 Mass.
705, 711 (1993), and to that extent, must be "child-specific."
6 Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004). We
recognize that Zygmunt, whom the judge found to have suffered
from the defendant's physical abuse at least twice, was on
different footing as to the father when compared to his half-
brothers, Erik and Luke. First, Erik and Luke are the father's
biological children while Zygmunt is his stepchild. Second,
like the father (and the mother), Erik and Luke are hard of
hearing and communicated primarily using American Sign Language
(ASL); Zygmunt, by contrast, is a hearing child, who
communicates verbally, as well as through ASL.10 Third, Zygmunt
has been diagnosed with a learning disability, ADHD, PTSD, and
anxiety. Erik and Luke do not experience such issues, but Erik,
particularly, has specialized and chronic medical needs.
None of these differences, however, impacted the judge's
overarching conclusion that the father was unable to manage his
own anger or appreciate the fact or impact of his domestic
violence, and thus unfit to parent Erik and Luke or to care for
Zygmunt. This is not a case in which the father's ability to
parent depended on the individual needs of each child; rather,
it depended on his own ability to care for the children without
resorting to physical punishment or exposing them to domestic
violence. Here, where all members of the family were exposed to
10Although the father argues that Zygmunt "doesn't understand sign language," the record does not support that contention.
7 the risk of physical abuse, we discern no error in the judge's
consideration of the three children as a group. See Adoption of
Nancy, 443 Mass. 512, 516 (2005) ("Although it would be better
practice specifically to state the reasons that termination is
in the child's best interest, such specificity is not
required").
b. Reasonable efforts. The father's challenge to the
department's reasonable efforts to provide services to
accommodate the parents' hearing issues was not raised with the
department before trial, and so it is waived.11 See Adoption of
West, 97 Mass. App. Ct. 238, 244 (2020). Even if that were not
the case, we would not be persuaded that the department's
handling of either visitation or the children's placement with
preadoptive parents not fluent in ASL, the parents' primary
means of communication, warrants reversal. See G. L. c. 119,
§ 29C ("A determination by the court that reasonable efforts
were not made shall not preclude the court from making any
appropriate order conducive to the child's best interest"). See
also Adoption of Franklin, 99 Mass. App. Ct. 787, 797-798 (2021)
(although department clearly violated its own regulations
regarding visitation, "it does not follow that the father is
11The same is true for the father's argument based on the agreement between the Department of Justice and the department or the department's subsequent issuance of Disability Policy #2022-01.
8 entitled to reversal of the decrees terminating his parental
rights").
i. Visitation. After the children were removed from the
parents' custody in early March 2019, the mother was offered
regular in-person visits with the children. In late August
2019, when she moved to Indiana with the father, her visits were
decreased to monthly. By contrast, the father was denied
visitation with Erik and Luke until August 2019 for reasons that
were "unclear" to the judge; however, once the parents moved to
Indiana, he was also permitted monthly visits with his
children.12 Later, the department incorrectly restricted the
parents to virtual visits despite an easing of the COVID-19
protocols for in-person visits. Still, although we recognize
some significant missteps in the department's handling of the
parents' visitation opportunities, we are not persuaded that
these missteps warrant reversal because the key to the family's
reunification was not improvements in the parents' ability to
communicate or bond with the children, but rather the parents'
ability to recognize and eliminate the risk to the children
12We agree with the father that the denial of visitation was in violation of 110 Code Mass. Regs. § 7.128 (2008), which requires that the matter be brought before a judge before parental visits are terminated, and that the judge make "specific findings demonstrating that parental visits will harm the child or the public welfare."
9 created by the father's domestic violence.13, 14 See Adoption of
Franklin, 99 Mass. App. Ct. at 798 ("To address whether
[reversal] is appropriate, we need to examine the grounds on
which the judge determined the father to be unfit and terminated
his parental rights, and what role, if any, the absence of
visitation . . . played in those decisions).
ii. Preadoptive placements. We are likewise unpersuaded
that by placing the children with foster families who were not
fluent in ASL, the department "actively engineered the breakdown
of the parental relationship" between the father and Erik and
Luke. Although Luke's foster mother is not fluent in ASL, she
does have some training and was taking additional sign language
training at the time of trial, and she used both ASL and verbal
speech with Luke. Additionally, Luke's foster mother advocated
for him to be enrolled in the READS Academy hard of hearing
13 This is not to say that we condone the department's failure to follow its own policies, or that we have ignored the particular impact of physical separation between these parents and these children where the family communicated primarily by nonverbal means. Our conclusion is only that to the extent that the department erred in depriving the family of in-person visits, the error did not go to the heart of the judge's concerns about the parents' unfitness. 14 At the time of trial, the father had not completed the
domestic violence classes required as part of the department's action plans. The judge found that "[the father] justified his non-compliance because [Zygmunt] is a child and domestic violence is between adults." Likewise, he had not engaged in anger management services and had not completed a batterer's intervention program.
10 preschool program where he was learning ASL. Erik, on the other
hand, wears hearing aids and was receiving speech and
occupational therapy in school; it is unclear from the record
whether Erik's foster parents understand or use ASL with him
regularly.15 In other words, where the foster families pursued
ASL services and exposed each child to ASL relative to that
child's individual language needs, even where the parents do not
feel the services were adequate, we are not persuaded that the
department violated the parents' rights.
Furthermore, even if we were to conclude that the
placements were not conducive to, or even barriers to, the
department's stated goal of reunification, we are satisfied that
the judge correctly determined that termination of the father's
parental rights was in the best interests of Erik and Luke. See
Adoption of Ilona, 459 Mass. 53, 61 (2011). As the judge found,
the root of the father's unfitness was his inability to
acknowledge and appreciate the impact of his domestic violence
on the children's well-being, not challenges in communicating
with them. See Adoption of Franklin, 99 Mass. App. Ct. at 799.
2. Mother's appeal. a. Parental unfitness. i. Failure
to protect children from father. We do not agree with the
mother's contention that the judge's finding no. 223 -- "the
15When Erik arrived at the foster home, the foster parents used "baby" signs to communicate with him.
11 mother's plan to protect the children from [the father] should
reunification occur [is] insufficient, leaving all three
children at grievous risk [of becoming] a victim of and/or
exposed to domestic violence" -- was clearly erroneous. The
evidence at trial supported the judge's findings by at least a
fair preponderance of the evidence, see Adoption of Xarina, 93
Mass. App. Ct. 800, 802 (2018), that the father abused both
Zygmunt and the mother herself, and that the mother was aware
that the father posed a risk to all of the children in the home.
In late 2018 the mother was sufficiently concerned about the
risk of ongoing harm to Zygmunt that she sent him to live with
temporary guardians in Massachusetts. The following year, the
mother told the department that "she didn't want [the father] to
[see] the kids again until he had calmed down so that he would
not hurt them."
Despite the mother's evident awareness of the danger the
father posed to the family, the judge's findings support the
conclusion that she consistently denied or minimized that risk,
blaming Zygmunt and his "lies" for the father's criminal
prosecution and characterizing the father's forcing her to have
sex as a "miscommunication." Although she was made aware of the
department's concern for her safety and that of the children,
and offered services and education on domestic violence and
appropriate parenting, the mother did not take full advantage of
12 the services offered and did not benefit from those she engaged
in. The judge found that "[the mother] demonstrates little
awareness and appreciation for the domestic violence of [the
father] [toward] herself and the children" and that as a result,
the family "remain[ed] at risk for violence in the home."
Further, the mother signaled her intention to stay with the
father notwithstanding his violence toward her and Zygmunt. In
February 2020, just after the father's charges for abusing
Zygmunt were resolved, the mother married the father. The judge
found that the mother viewed the father as "the only person that
she had in her life" and that she intended to stay with him.16
The mother does not challenge any of these findings as clearly
erroneous.
We are not persuaded that the evidence of the father's
domestic violence and anger management issues was stale, see
Adoption of Diane, 400 Mass. 196, 204 (1987); we likewise
consider it sufficiently detailed to support the judge's
subsidiary findings concerning the mother's ability to protect
16Tellingly, the father does not challenge the judge's findings that although the mother testified that she did not want the father to supervise Zygmunt "because she wants Zygmunt to be safe and not to be hurt again," and her safety plan for the family included taking the children to a friend's house when the father became angry "until such time as [the father] regained self-control and it was safe to return home," the mother's plan for childcare while she was at work would have left the children in the father's care. Again, the mother does not dispute these findings.
13 the children from the father's violence. See Custody of Vaughn,
422 Mass. App. Ct. at 599-600 (requiring courts to make explicit
findings as to effect of domestic violence on child"). See also
Adoption of Elena, 446 Mass. at 31-32 ("There was ample evidence
that the children would suffer if returned to the custody of
their mother" where "[t]he mother was unable to stand up to her
abusers when the abuse was directed at her, and she was
ineffectual at intervening on behalf of her children when the
abuse was directed at them"). The mother's inability or
unwillingness to extricate herself from the father despite his
history of abusing both Zygmunt and her was relevant to the
mother's ability to protect the subject children from grievous
harm. See Adoption of Lisette, 93 Mass. App. Ct. 284, 293-294
(2018). The fact that the judge did not find that Erik or Luke
had been the direct victims of abuse is, as we have discussed,
not a basis on which to vacate the decrees. See id. at 294
n.15; Adoption of Katharine, 42 Mass. App. Ct. at 32-33 (judges
need not "wait for inevitable disaster to happen" and "may
performance").
ii. Mother's parenting of Michael. In 2019, shortly after
the mother and the father moved to Indiana, the mother gave
birth to Michael, their third child together. The mother's
argument that the judge abused his discretion by failing to
14 consider her success in caring for Michael, is unavailing.
Although Michael lived in Indiana with the parents, and was not
a party to this action, the judge did consider the limited
evidence about the mother's ability to care for him. The judge
noted that Indiana child protective services had been involved
with Michael and the parents after Michael's birth and that
custody of Michael had remained with the parents. The judge
also took into account the testimony of Michael's aunt
indicating that she had never seen the parents "be physical" in
disciplining him. Notably, however, the mother testified and
the judge found that although the mother sometimes felt it
necessary to leave her own house when the father became angry
"until . . . it was safe to return home," she would only
sometimes take Michael with her; at other times, despite her
safety concerns, she left the sleeping Michael with the angry
father. We are satisfied that the judge considered the limited
evidence of the mother's fitness to care for Michael in reaching
his conclusion about her unfitness to care for Zygmunt, Erik,
and Luke. Cf. Adoption of Linus, 73 Mass. App. Ct. 815, 820-821
(2009).
iii. Visitation. The mother did not raise her concerns
about limited visitation in the trial court. Although the issue
is therefore waived, we nonetheless address it. See Adoption of
West, 97 Mass. App. Ct. at 244-245. We have noted our concerns
15 about the department's failure to provide the parents with the
opportunity for in-person visits at the earliest opportunity.
As we have discussed, supra, however, where the judge's primary
concern in this case was the parents' inability to appreciate
the impact of the father's domestic violence on the family, or
the risk to all the children presented by the father's inability
to manage his anger, the limits imposed on the parents'
opportunity to interact with the children did not, in our view,
contribute to the judge's determination of the parents'
unfitness. See Adoption of Franklin, 99 Mass. App. Ct. at 797-
798. Specifically, as to the mother, we discern no basis to
conclude that in-person contact with the three children would
have raised the mother's awareness of the risks presented by the
father's violence or prompted her to take additional steps to
protect the children from those risks. Indeed, the fact that
she continued to leave Michael with the father even when she
felt her own safety was threatened underscores the point.
iv. Child-specific fitness determinations. For
essentially the reasons we have discussed in connection with the
father's appeal, we are unpersuaded that the judge abused his
discretion in failing to consider separately the mother's
fitness to parent each of the three children. The key elements
of the mother's unfitness here -- her inability to appreciate
the risks presented to all family members by the father's
16 violence and her unwillingness or inability to protect the
children from those risks -- do not vary with the needs or
abilities of the individual children. The judge implicitly
found that the father was a risk to all three children, and that
the mother's failure to acknowledge the impact of the father's
domestic violence prevented her from adequately protecting any
of the children. We discern no abuse of discretion in the
judge's conclusions.
Decrees affirmed.
By the Court (Vuono, Milkey & Hand, JJ.17),
Assistant Clerk
Entered: February 9, 2024.
17 The panelists are listed in order of seniority.