Adoption of Zak

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13-P-780 Appeals Court

ADOPTION OF ZAK (and two companion cases1).

No. 13-P-780.

Norfolk. December 10, 2014. - June 19, 2015.

Present: Katzmann, Hanlon, & Maldonado, JJ.

Adoption, Parent's consent, Dispensing with parent's consent,
Visitation rights. Parent and Child, Adoption, Dispensing
with parent's consent to adoption. Minor, Adoption,
Visitation rights. Practice, Civil, Adoption.

Petitions filed in the Norfolk County Division of the
Juvenile Court Department on May 19, 2010, and September 9,
2011.

The cases were heard by Dana Gershengorn, J.

Sherrie Krasner for the father.
Deborah Sirotkin Butler for the mother.
Kari B. Kipf-Horstmann, Assistant Attorney General, for
Department of Children and Families.
Ann Belmelli O'Connor for Zak.
Yvette L. Kruger for Carol & another.

1
Adoption of Carol and Adoption of Nick. The children's
names are pseudonyms.
 2

MALDONADO, J. The mother and father separately appeal from

Juvenile Court decrees terminating their parental rights. In

addition, the judge ordered posttermination and postadoption

visitation for both parents.2 The father and mother contend that

the termination of their parental rights lacked evidentiary

support. They also argue that the judge erred in denying

placement of the children either with the mother's aunt or

father's mother. Finally, the mother, but not the father,

challenges the terms of posttermination and postadoption

visitation. She asserts that the children's best interests

favors more than the three yearly visits the judge ordered.

Carol and Nick cross-appeal. They contest the judge's

orders for posttermination and postadoption visitation, arguing

that there should be no postadoption visitation, and assert that

the judge erred in failing to consider the effect on the

children of domestic violence as it relates to those visits.

Having in mind the trial judge's careful and thorough

findings of fact and rulings of law, we conclude that the judge

did not abuse her discretion in terminating the mother and

father's parental rights, or in refusing to place the children

2
The mother is the biological parent of the three children.
The father is the biological father of Carol and Nick. Zak's
biological father is unknown. The judge terminated Zak's
unknown father's parental rights. The judge did not order
visitation with Zak's stepfather.
 3

either with their maternal great-aunt or paternal grandmother;

we therefore affirm those portions of the decrees. However, we

vacate the posttermination and postadoption visitation orders

and remand for further consideration and specific findings

regarding whether posttermination and postadoption visitation is

in the children's best interests, given the domestic violence

that they have witnessed.

1. Termination of parental rights. The mother and father

assert that the termination of their parental rights was based

upon a single 2006 incident of domestic violence.3 They contend

that, aside from this single violent attack, the record supports

only a pattern of loud arguing and no other violence. They note

that they present with no other serious shortcomings, such as a

history of incarceration, mental illness, or substance abuse;

therefore, they complain, the termination of their parental

rights lacks record support. We disagree.

"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 the evidence, that the parent

is unfit to care for the child and that termination is in the

3
In 2006, the father was taken from the home and arrested
for assault and battery on the mother. This incident occurred
in the presence of Zak and Carol.
 4

child's best interests." Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). "Unless shown to be clearly erroneous, we do

not disturb the judge's findings, which are entitled to

substantial deference." Id. at 606-607.

Here, contrary to the mother's and father's assertions, the

judge found, and the record supports, significantly more

incidents of domestic violence and harm to the children than the

single 2006 incident that the mother and father admit

occurred.4,5 For example, in January, 2008, police responded to

the mother and father's apartment after receiving a call for an

early morning incident of domestic disturbance. Upon arrival,

the police heard a woman screaming, "He is hitting me." Two

hours later, police returned to the home after the father called

them again; they found the apartment in disarray. Police were

again called to the home on August 3 and August 8 of that year

for reports of domestic disturbances. The police reported to

the residence at approximately 3:00 A.M. on August 8. The

4
At trial, counsel for the parents argued that it was
improper to admit certain records produced by the Department of
Children and Families (department), including police reports and
court interview records; the judge allowed their motions in part
and denied them in part. On appeal, neither the mother nor the
father challenges the judge's findings on the ground that they
rely on excluded or excludable evidence.
5
We do not list here all incidents of domestic violence
that the judge credited, but merely a sampling of the evidence
that rebuts the parents' claims of error.
 5

father said the mother was "out of control" and had run out of

the apartment naked. Police found that a glass had been smashed

against a wall and broken glass remained shattered on the

apartment floor. Zak and Carol were in the home at that time.

On February 17, 2010, at about 2 A.M., police were called

again to the mother and father's apartment for a domestic

disturbance. When a downstairs neighbor spoke to the police, he

reported that it sounded like the male in the apartment was

"beating" the female. The father was arrested for assault and

battery,6 and, as he was being removed from the apartment, he

admonished the mother, "Tell them I didn't hit you." The mother

was found in a closet with a shirt over her head. She told the

police that the father had pushed her; she had bruises on her

person. Again, Carol and Zak were present during the incident.

Roughly two hours later, police were called again to the

apartment. The mother, Carol, and Zak met the police outside

the apartment. The mother claimed that the father had kicked

them out of the apartment, and "physically pushed [Zak] out of

the apartment." The father was then arrested for assault and

battery.

In November, 2011, the mother requested and obtained a

G. L. c. 209A abuse prevention order against the father. In the

affidavit supporting the order, the mother affirmed that she

6
He ultimately was not convicted.
 6

"was scared for [her] life." In February of 2012, the mother

asked to have the order vacated; however, in March, 2012, one

month later and only two months before trial, she obtained a

second c. 209A order. At that time, the mother stated that she

did not "feel safe." Over time, the mother has gone to domestic

violence shelters with the children and has fled with the

children to her aunt's house late in the evening. The trial

judge did not credit either the mother's or father's

minimization of these incidents.

The judge also found the children had been the subject of

physical violence. Zak testified that both parents had beaten

him with a belt. Zak also testified that, on one occasion, the

father struck him, causing him to fall back and hit a bedframe.

Zak testified that he was scared when his parents argued, and he

stated that he was "done with the fighting." Carol stated to a

court investigator that she feels "sad and scared" when her

parents argue and fight, and that the scariest fighting is when

"they push and fight." Both children have been diagnosed with

posttraumatic stress disorder.

On this record, we see no error in the judge's finding of a

pattern of violence and verbally abusive behavior that affected

the children adversely. See, e.g., Care & Protection of

Lillith, 61 Mass. App. Ct. 132, 137-142 (2004). "It is well

documented that witnessing domestic violence, as well as being
 7

one of its victims, has a profound impact on children." Custody

of Vaughn, 422 Mass. 590, 599 (1996). "[A] child who has been

either the victim or the spectator of such abuse suffers a

distinctly grievous kind of harm." Id. at 595. See Loebel v.

Loebel, 77 Mass. App. Ct. 740, 748 (2010).7

Moreover, the harm that domestic violence and unrest caused

the children was not the only factor rendering the mother and

father unfit. The judge found that "[b]oth parents have failed

to consistently participate or engage in services" "offered

. . . by the Department [of Children and Families

(department)]," and that "the parents' behaviors have not

changed" from the services they did receive. See, e.g.,

Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("refusal

to cooperate with the department . . . is relevant to the

determination of unfitness"). For instance, after attending a

batterer's program, the father claimed to have learned that he

7
"The effects of abuse on the child include, but are not
limited to, 'the child is afraid of the abusive parent; the
child is having problems with his or her performance at school;
the child has exhibited regressive behavior; the child has
problems with peer or family relationships; the child has been
experiencing nightmares and sleep disturbances; the child has
frightening memories from witnessing the abuse, the child
exhibited extreme distress at the time of the incident from
witnessing the abuse; or, the child has exhibited hostile or
aggressive behavior toward others.' Commentary to § 12:05A of
the Guidelines for Judicial Practice: Abuse Prevention
Proceedings (2014)." K.A. v. T.R., 86 Mass. App. Ct. 554, 560
n.12 (2014).
 8

"is not a batterer." The father "has not benefitted in any

significant way from therapy"; his "work with [his therapist] on

Father's issues of power and control is not complete," nor is

his "work with [his therapist] on conflict resolution between

Father and Mother." The mother, in her own words, did not

"follow up with [individual] counseling." By the time of trial,

the mother was not partaking in domestic violence services, nor

was she attempting to engage in those services. The judge also

found that "the Mother was lying to the [department's] workers

about her contact with, and relationship with," the father, and

that she "was being dishonest with her therapist."

In addition, the parents demonstrated other concerning

behaviors during visits with their children while the children

were in foster care. Both the father and mother failed to

appear at visits or showed up late to visits, which resulted in

those visits being cancelled after the children had already

arrived at the visitation center. The mother and father also

left visits early. During one visit in 2010, after Carol

urinated on herself, the mother took her to a restroom, pulled

down her pants, and stated she observed black marks in her

vaginal area, prompting the agency to call the police because

the mother believed Carol was being sexually abused. The

subsequent doctor's examination showed no signs of abuse.

During another visit in 2012, while holding Nick, the father
 9

said, "Let me see your penis, I haven't seen you in a long

time," and looked down his pants. During yet another 2012

visit, the father allegedly struck or tapped Nick on the face

for refusing to take water, which resulted in the department

filing a G. L. c. 119, § 51A, report against the father. The

judge's subsidiary findings of fact amply support her decision

to find the parents unfit and to terminate their parental

rights.

2. Placement of the children with family members. The

mother contends that the children's best interests favors

placement with her aunt -- the children's biological great-aunt.

The father argues for family placement with either his mother

(their biological grandmother) or their maternal great-aunt.

We review the judge's placement determination for abuse of

discretion. See Adoption of Hugo, 428 Mass. 219, 225-226

(1998). "A biological and/or a cultural match between child and

caretaker is a desirable aim; but it is a single factor among

many. It cannot be permitted to generate a placement decision

that is not otherwise in the child's best interests." Adoption

of Irene, 54 Mass. App. Ct. 613, 622-623 (2002). Here, the

judge explicitly credited the testimony of Zak that the mother's

aunt "struck the children." Moreover, based on the aunt's

"passivity in the face of overwhelming information about the

violence in the parents' relationship," including her failure to
 10

acknowledge the existence of domestic violence between the

mother and father, the judge reasonably found that the aunt was

incapable of shielding the children from the mother and father's

violence. We agree with the judge's conclusion that the

"children need and deserve a placement free of all violence."

Accordingly, we see no abuse of discretion in denying placement

to maternal great-aunt despite her familial and cultural

connections to the children.8,9 See id. at 622 ("the grandmother

8
The mother also contends that "were [the mother's aunt]
and the mother not women of color, [the mother's] three children
would have been placed with [the aunt]." The mother cites no
evidentiary support for this argument, and therefore it does not
rise to the level of appellate argument. See Mass. R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975); Adams v. Adams, 459
Mass. 361, 392 (2011).
9
The mother also contends that the children, at the time of
the judge's decision, were at risk of becoming "legal orphans"
if the mother's rights were terminated and the children were not
placed with family members, because no other adoptive home had
yet to be identified at the time of trial. The judge did not
abuse her discretion on this basis. "Although a factor, the
absence of imminent adoption prospects does not, by itself,
invalidate a decision to terminate parental rights." Adoption
of Jacques, 82 Mass. App. Ct. 601, 610 (2012). The judge did
not abuse her discretion, as the judge found that the children's
needs for "permanence and stability" would not be met by
familial placements. Id. See Adoption of Nancy, 443 Mass. 512,
516-518 & n.7 (2005).

Counsel for the department and for the children also
represented at oral argument and in a letter submitted after
argument that this issue was moot because all the children have
been placed together in a preadoptive home that is a cultural
match. Counsel for the mother moved to strike these statements
as they are outside the record, and asked us to consider only
that evidence before the judge at the time her decision was
made. We do not consider this information, but nevertheless are
 11

may turn out to be a nominal custodian with the real force in

Irene's life being" her mother).

The judge likewise did not abuse her discretion in deciding

against placement with paternal grandmother. Id. at 622. The

father's mother testified, and the judge found, that "she has

never set boundaries in the past with Father," and,

significantly, that she "is unable or unwilling to accept that

Father has engaged in a violent relationship with Mother. . . ."

As the judge reasoned, this record engenders "no faith that

[the] paternal grandmother would be able or willing to

adequately safeguard the children from the parents' violent

relationship."

3. Visitation. The mother asserts the judge erred in

ordering only a minimal three visits per year. Conversely,

Carol and Nick argue that the children's exposure to the mother

and the father's violent relationship militates against an order

for posttermination visits. Relying on Custody of Vaughn, 422

Mass. 590 (1996), the children contend that the judge erred in

failing to make specific findings regarding the impact of

domestic violence on the appropriateness of posttermination

visitation. We agree.

satisfied, under all of the circumstances of this case, that the
judge committed no abuse of discretion in declining to place the
children with family, even when there was no other preadoptive
home identified at that time.
 12

Here, the judge made explicit findings that the children

had been exposed to a pattern of domestic violence that had

affected them adversely, devoting an entire section in her

memorandum to that topic. However, when ordering

posttermination visits, she made no mention of the history of

domestic violence in the family, its impact on the children, or

whether, notwithstanding that history, it was in the best

interests of these children to have postadoption visitation with

their biological parents. "Domestic violence is an issue too

fundamental and frequently recurring to be dealt with only by

implication." Vaughn, supra at 599. See Maalouf v. Saliba, 54

Mass. App. Ct. 547, 551 (2002), where we reversed an order of

the Probate and Family Court on the ground that the record was

"unclear whether [the judge] considered the safety and well-

being of the children in granting . . . visitation" to a father

who had "resorted to physical violence on four occasions . . . .

[The judge also had] concluded that the mother had suffered

abuse at the hands of the father." That case addressed

specifically the requirements of G. L. c. 208, § 31A, which does

not, on its face, apply to this termination of parental rights

case. Nonetheless, we conclude that its reasoning provides a

useful and important framework for considering posttermination,

postadoption visitation orders as well.
 13

Accordingly, we vacate the order for posttermination visits

and remand the matter to the trial judge for consideration and

findings whether, in light of the history of domestic violence

witnessed by the children, in addition to all other relevant

factors, posttermination and postadoption visits are in the

children's best interests.10 See Adoption of Helen, 429 Mass.

856, 863 (1999) ("While posttermination visitation may be

allowed, the proper focus is on the best interests of the

child").

So ordered.

10
We note that, on remand, the judge is not prevented from
considering changed circumstances since the date of the original
issuance of the decree, such as whether the children have been
placed in a preadoptive home. Adoption of Vito, 431 Mass. 550,
557 n.15 (2000) ("a judge . . . . may revisit the question of
postadoption contact, if necessary, for the best interests of
the child due to changed circumstances."). See Adoption of
Gwendolyn, 29 Mass. App. Ct. 130, 139 (judge properly left
matter of visitation in hands of adoptive parents).