In Re Adoption of Ulrich

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17-P-922 Appeals Court

ADOPTION OF ULRICH
(and four companion cases1).

No. 17-P-922.

Suffolk. November 8, 2018. - January 9, 2019.

Present: Green, C.J., Meade, & Sacks, JJ.

Adoption, Dispensing with parent's consent. Minor, Adoption.
Parent and Child, Adoption, Dispensing with parent's
consent to adoption. Practice, Civil, Adoption, Assistance
of counsel, Stay of proceedings.

Petitions filed in the Suffolk County Division of the
Juvenile Court Department on December 27, 2012, and March 18,
2013.

The case was heard by Stephen M. Limon, J.

A motion to stay appellate proceedings was considered in
the Appeals Court by Hanlon, J.

Deborah D. Wolf for Sarah & another.
Briana R. Cummings for Ulrich & another.
Robert E. Curtis, Jr., for the mother.
Erin Staab, Assistant Attorney General, for Department of
Children and Families.
Dana C. Chenevert for Ellen.

1 Adoption of Charles; Adoption of Sarah; Adoption of Amy;
and Adoption of Ellen. The children's names are pseudonyms.
 2

GREEN, C.J. The mother (joined on appeal by four of the

children)2 appeals from decrees of the Juvenile Court deeming her

unfit to parent five of her children and terminating her

parental rights.3 The mother further contends that a single

justice of this court erred in denying her motion to stay this

appeal to allow her to pursue a motion for new trial in the

Juvenile Court. We affirm the denial of the mother's motion for

a stay, rejecting the mother's contention that such requests

should presumptively be allowed. In addition, after careful

consideration of the record and the judge's findings, we affirm

the decrees.

Background. The mother has a criminal history dating to

2004, including convictions of assault by means of a dangerous

weapon and assault and battery on a police officer. She has

also been the subject of five abuse prevention orders issued

pursuant to G. L. c. 209A, brought by five different

individuals. On December 27, 2012, the Department of Children

and Families (department) filed a care and protection petition

on behalf of Ulrich (born in 2006), Charles (born in 2008),

2 At trial, all five children supported termination of the
mother's parental rights. On appeal, the four older children
(Ulrich, Charles, Sarah, and Amy) now argue that termination was
improper. Ellen still supports the termination.

3 The judge also terminated the parental rights of the
father; the father did not appeal from that determination.
 3

Sarah (born in 2009), and Amy (born in 2011), after the mother

was arrested for stabbing the father with a pair of scissors on

December 26, 2012.4 The four children were present in the home

during the incident and witnessed the stabbing. On the night of

the incident, the mother admitted to police that she had stabbed

the father.5 The Juvenile Court judge initially granted

temporary custody of the four children to the maternal

grandmother; later, on January 10, 2013, the judge granted

temporary custody to a paternal aunt. However, after evidence

of sexual and physical abuse of at least some of the children

within the paternal aunt's home became apparent, the department

obtained custody of the four children on May 20, 2013.

Ellen was born in March, 2013. In August, 2013, the mother

(believing that the father had engaged in a romantic

relationship with a neighbor's daughter) forced her way into the

neighbor's apartment while making threats and brandishing a

knife. The mother and the neighbor then went to the neighbor's

daughter's house, where the mother attempted to break down the

door. After arriving at the scene, police detected a strong

4 Ellen was added to the petition after she was born in
March, 2013, but remained in the mother's care until August,
2013.

5 While at the hospital after the stabbing, the father told
a social worker that he had cut himself accidentally. At trial
in the present case, the mother denied having stabbed the
father.
 4

odor of alcohol on the mother's breath, and a patfrisk

discovered a seven-inch serrated knife in her pocketbook. The

neighbor identified it as the knife with which the mother

previously had threatened her. Following that incident, Ellen

was removed from the mother's custody.

In July, 2013, Ulrich, who turned ten during the trial,

and Charles, who turned eight during the trial, were both placed

in a residential treatment facility (residential facility). By

the time of trial, Ulrich had been placed in a foster home.

Sarah, nearly seven years old by the end of trial, and Amy, who

turned five years old during trial, were placed together in the

department's foster care in May, 2013. In November, 2013, Sarah

and Amy were placed in separate foster homes. Ellen was placed

in a kinship foster home in February, 2014, where she remained

at the time of trial. We reserve additional details concerning

the individual children's circumstances for our discussion of

the termination decrees concerning each of them.

As part of her service plan, the mother was required to

undergo a psychological evaluation, the results of which were

received by the department on November 7, 2013. The mother was

diagnosed with mood disorder, posttraumatic stress disorder, and

polysubstance dependence. As of November, 2013, the mother had

been working with an in-home therapist and was making some

progress with regard to childhood trauma and her relationship
 5

with the father. In January, 2014, the department referred the

mother to a residential program where she could be reunited with

Sarah, Amy, and Ellen, but the mother chose not to enter that

program. The mother stipulated to her unfitness to parent the

children on March 26, 2014. By March, 2014, the mother's in-

home therapist stated that the mother had been meeting with her

on a weekly basis. In September, 2014, the mother entered a

residential substance abuse treatment facility but was soon

asked to leave after that facility designated her as a safety

risk. By April, 2015, the mother was deemed to be in full

compliance with her service plan and had improved her anger

management and communication skills. She had also completed a

parenting course and engaged in a parenting support group, and

there were no longer substance abuse concerns. After a home

visit on April 2, 2015, the court investigator reported that the

mother's four-bedroom apartment was extremely clean and well

kept, furnished with beds for the children, and was "nothing

short of impressive."6 However, at the time of trial, the mother

had not seen her mental health therapist in several months and

missed a scheduled home visit the week before trial.

Visits between the mother and children ranged from

successful to disastrous. The mother had a successful visit

6 The mother had previously refused a home visit in
December, 2014.
 6

with Sarah, Amy, and Ellen on September 29, 2014. She had

successful visits with Ulrich and Charles individually at the

residential facility on December 16, 2014. She also had

successful visits with Ulrich and Charles individually at the

residential facility on January 30, 2015, and then with Sarah,

Amy, and Ellen together on the same day. On December 23, 2015,

the mother had a Christmas visit with all the children at the

residential facility, which went well.7

However, there were also a number of tumultuous visits. A

June 30, 2014, visit ended with three of the children running

out of the visitation room and several of the children crying.

On July 23, 2014, the mother had a visit with all five children.

At that visit, the children were difficult to handle, several

were running around the visitation area and crying, and Charles

told one of his sisters that he was not going to talk to the

mother "until she changes her attitude." In response, the

mother told Charles, "I am fucking done with you. This is my

last visit with you. I don't want to see you again." After a

social worker cautioned the mother against aiming obscenities at

the children, the mother stated, "Don't tell me about my fucking

kids, you don't have kids, so you don't know." The mother also

7 At one point during this visit, a social worker had to
console the mother after she was found crying in the bathroom.
There was nothing in the record indicating that this negatively
affected the visit for the children.
 7

said, "[T]hese kids aren't [my] issue, let their workers deal

with them, I'm fucking done." Three weeks later the department

informed the mother that her visitation rights would be

suspended as a result of this visit. At that time, the mother

stated that she did not remember anything negative about the

visit, and at trial she testified that she did not swear at the

children, only agreeing with the statement that the visit "got

. . . a little out of control."8

On March 10, 2015, a visit between the mother, Sarah, and

Amy went well until the mother whispered something to the girls

that caused them to cry throughout the entire twenty-minute

return ride to their day care program. On June 12, 2015, the

mother had a visit with Ulrich and Charles, at which Ulrich

became angry with the mother, refused to talk with her, and left

early. A visit with all the children on August 20, 2015, to

celebrate Ulrich's birthday ended with Charles throwing a

tantrum and being carried away by staff members.9 At a visit on

March 3, 2016, after Charles had left the visitation room

crying, the mother pulled him from the arms of a counselor --

8 For a brief time after this visit the department allowed
the mother to visit only with Sarah, Amy, and Ellen.

9 Charles's tantrum occurred after the mother brought him a
pet fish -- without consulting the residential facility and
against its "no pets" policy -- and Charles learned that he
would not be allowed to keep it.
 8

making physical contact with the counselor -- and brought him

back into the visitation room while he gave the counselor a

"thumbs down" signal. On June 23, 2016 -- one week before trial

began -- the mother ended a visit after thirty-five minutes

because the children were not taking part in an activity she had

organized for them. Additionally, a visit scheduled with the

girls for November 24, 2014, had to be canceled after the mother

failed to confirm the visit on the preceding day.

The trial concerning the mother's and father's parental

rights was held in the summer of 2016, and on November 23, 2016,

the judge issued decrees terminating their parental rights. The

mother appealed.

Discussion. 1. Motion for stay. After the mother's

appeals from the termination decrees entered on our docket, the

mother moved to stay appellate proceedings in order to raise a

claim of ineffective assistance of counsel through a motion for

new trial in the Juvenile Court. A single justice of this court

denied the mother's motion. On appeal from that denial, the

mother contends that the single justice should have allowed her

to pursue the new trial motion in the Juvenile Court, without

regard to a threshold assessment of her prospects for success.

A parent facing termination of parental rights is entitled

to the effective assistance of counsel. See G. L. c. 119, § 29;

Care & Protection of Stephen, 401 Mass. 144, 149-150 (1987). In
 9

assessing a claim of ineffective assistance of counsel in such a

case, we apply the familiar two-part test established in

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Consistent

with the approach taken in criminal cases, "[a]bsent exceptional

circumstances, we do not review claims of ineffective assistance

of counsel for the first time on appeal." Care & Protection of

Stephen, supra at 150. Instead, where a party wishes to pursue

a claim of ineffective assistance of counsel after the case has

entered in an appellate court, the preferred approach is for the

party claiming ineffective assistance to move to stay the appeal

in order to allow prosecution of a motion for new trial in the

trial court. See Commonwealth v. Montgomery, 53 Mass. App. Ct.

350, 353 (2001).

Allowance of a motion to stay is not automatic, however:

"Generally, the issue presented with respect to a motion
for a stay of the appeal is whether the interests of
fairness, balanced with the interests of judicial economy,
best will be served by giving priority to a trial court
resolution of the defendant's new trial motion. Several
factors favor the grant of stays: the possibility that the
motion for a new trial will be allowed; the economy of
consolidating an appeal from the denial of a motion for a
new trial with the direct appeal, see Commonwealth v.
Smith, 384 Mass. 519, 524 (1981); the advantages to the
defendant of such consolidated review of a motion for a new
trial over postappeal review; and the general systemic
benefits of earlier retrials in cases in which a motion for
a new trial is allowed. Among the reasons for a denial of
a request for a stay are the similarities of issues raised
in the motion for a new trial and in the direct appeal, and
a reluctance to delay appellate review when briefing has
been completed and the case has been, or is ready to be,
scheduled for oral argument." (Footnote omitted.)
 10

Id. at 354.

Additional considerations weigh prominently in child

welfare cases, particularly the interest in the speedy

resolution of child custody matters. See Lassiter v. Department

of Social Servs., 452 U.S. 18, 32 (1981); Custody of Two Minors,

396 Mass. 610, 611 n.2 (1986).

Against this background, we discern no error of law or

abuse of discretion in any choice by the single justice to

consider the prospects of the mother's new trial motion for

success in the Juvenile Court if a stay were granted; indeed,

such consideration is entirely consistent with the consideration

of judicial economy identified in Montgomery as a balancing

factor and the interest in prompt resolution of custody.

Placing the appellate process on hold to allow prosecution of a

fruitless new trial motion in the trial court would serve

neither interest. We accordingly reject the mother's contention

in its broadest form, insofar as it assigns error to the mere

evaluation by the single justice of the likelihood of her motion

for new trial to be successful on its merits.

We likewise discern no error of law or abuse of discretion

by the single justice to the extent she determined that the

mother's claim of ineffective assistance showed an inadequate

prospect for success to justify a stay of appellate proceedings
 11

to allow her to pursue it. The basis of the mother's claim of

ineffective assistance of counsel is the failure of her trial

counsel to call the maternal grandmother as a trial witness, to

offer testimony regarding (1) the 2012 domestic violence

incident that prompted the removal of the four older children

from her custody, and (2) the sexual assault of Ulrich and

Charles in May, 2013, while they were in the care of a paternal

aunt. On the present record we discern no basis on which to

conclude that trial counsel's decision not to call the maternal

grandmother as a witness concerning those two matters "was

manifestly unreasonable when made" (quotation omitted).

Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008).

As a threshold matter, we observe that the mother accused the

maternal grandmother of having fabricated the accusation of

sexual assault against Ulrich and Charles, and that the maternal

grandmother obtained an abuse prevention order against the

mother, pursuant to G. L. c. 209A, in 2011. Accordingly, it

would have been entirely reasonable for trial counsel to decide

not to call the maternal grandmother as a witness in order to

avoid the risk that the department or counsel for the children

might elicit testimony from her on cross-examination that would

be damaging to the mother. That the maternal grandmother had

direct knowledge of a significant instance of abuse does not

establish that she was a critical witness concerning the
 12

children's resulting needs and the mother's ability or inability

to address them.

In any event, the evidence of the mother's unfitness was

overwhelming, without regard to the matters about which the

mother now claims the maternal grandmother should have

testified. It is accordingly unlikely that the decision of

trial counsel about which the mother now complains had any

bearing on the result of the trial. See Adoption of Azziza, 77

Mass. App. Ct. 363, 368 (2010).

We offer one final observation in response to the mother's

protest that she did not fully present the parameters of her

claim of ineffective assistance in her motion for a stay because

she was unaware that she would be required to satisfy the single

justice of the potential merit of her proposed new trial motion.

For the reasons we have described above, we are satisfied that

the present record was adequate to permit the single justice to

conduct an assessment of the mother's claim of ineffective

assistance, despite its limited scope. But we acknowledge that

no published authority has previously expressly recognized a

gatekeeping role of the type we have approved in this opinion

for the single justice, in deciding whether to allow a stay of

appellate proceedings so that a parent in a child welfare case

can pursue a new trial motion in the trial court. In future

cases, parents who seek to stay appellate proceedings in order
 13

to pursue a motion for new trial in the trial court, whether

based on a claim of ineffective assistance of counsel or on

other grounds, should include sufficient evidentiary material

and argument to allow the single justice to make an informed

threshold assessment whether the new trial motion has a

sufficiently strong likelihood of success on the merits to

justify the resulting delay in completion of appellate review.

And the single justice, in performing the gatekeeping role,

should carefully balance the importance of a prompt resolution

of the case with the possible merit of the proposed new trial

motion, while recognizing that applying too stingy a filter

would risk prolonging final resolution even further if a

postappeal new trial motion finds success.

2. Unfitness and the children's best interests. A

person's right to parent her child can be terminated only if a

judge determines that she is unfit and that termination is in

the best interests of the child. See Adoption of Nancy, 443

Mass. 512, 514 (2005). "These twin determinations are not

separate and distinct but, instead, are 'cognate and connected

steps' that 'reflect different degrees of emphasis on the same

factors.'" Adoption of Malik, 84 Mass. App. Ct. 436, 438

(2013), quoting Adoption of Cesar, 67 Mass. App. Ct. 708, 712-

713 (2006). "[P]arental unfitness must be proved by clear and

convincing evidence," Adoption of Rhona, 57 Mass. App. Ct. 479,
 14

488 (2003), and we review the judge's determination of the

child's best interests for an abuse of discretion. Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P.

v. George P., 526 U.S. 1034 (1999). "Subsidiary findings must

be supported by a preponderance of the evidence, Adoption of

Helen, 429 Mass. 856, 859 (1999), and none of the findings will

be disturbed unless clearly erroneous. Adoption of Greta, 431

Mass. 577, 587 (2000). Custody of Eleanor, 414 Mass. 795, 799

(1993). We review the judge's findings with substantial

deference, recognizing [his] discretion to evaluate a witness's

credibility and to weigh the evidence. Adoption of Quentin, 424

Mass. 882, 886 (1997)." Adoption of Nancy, supra at 515.

The judge's subsidiary findings of fact amply support his

determination that the mother was unfit to parent each of the

children separately and together.10 The record shows that the

mother had a difficult time managing her anger and that this

issue had a significant effect on the children. See

Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973)

("Violence of temper . . . might constitute unfitness"). The

four oldest children involved in this appeal were removed from

the mother's care after she stabbed the father during an

10We note that, while the judge's findings support the
termination of parental rights as to the children individually
and together, the mother was seeking to reunify with all five of
the children at the same time.
 15

argument, and the youngest child was removed after the mother

threatened a neighbor with a knife and then attempted to break

down a woman's door because she suspected that the father was

being unfaithful. The mother was also asked to leave a

substance abuse treatment facility because she was deemed to be

a safety risk. Additionally, the mother displayed an aggressive

attitude with the children and counselors at a number of visits,

including one incident where she shouted obscenities at one of

the children along with telling him that "I don't want to see

you again." At the same visit, after becoming frustrated with

the children, the mother stated, "[T]hese kids aren't [my]

issue, let their workers deal with them, I'm fucking done." See

Adoption of Adam, 23 Mass. App. Ct. 922, 923 (1986) (negative

statements directed at child can be evidence of parental

unfitness). Contrary to the mother's contention that this

evidence concerning her temper is stale and not an indication of

her current or future fitness, a judge can consider a pattern of

"past conduct to predict future ability and performance."

Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990). Here,

the judge did not err in using the mother's repeated prior

conduct to predict her future interactions with the children.

Furthermore, although the mother did engage in some of the

services offered by the department and was at one point fully

compliant with her service plan, mere participation in the
 16

services does not render a parent fit "without evidence of

appreciable improvement in her ability to meet the needs of the

child[ren]." Adoption of Terrence, 57 Mass. App. Ct. 832, 835-

836 (2003). See Adoption of Jacques, 82 Mass. App. Ct. 601, 608

(2012) ("judge was entitled to consider the evidence of [the

mother's] recent improvements within the context of her earlier

and continuing deficits"). At trial, the mother was unable to

confirm that she completed an anger management course. She also

had not attended therapy during the months leading up to trial.

She was not attending a domestic violence program at the time of

trial and had not provided her social worker with any

certificate of completion from a prior domestic violence

program. Nor did her actions indicate that her parenting

abilities were improved by the classes she did attend. The

mother's inability to consistently attend, complete, and benefit

from classes required by her service plan is "relevant to the

determination of unfitness." Petitions of the Dept. of Social

Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289

(1987). See G. L. c. 210, § 3 (c) (ii).

The evidence also shows that the mother minimized -- and

often completely denied -- the existence of extremely troubling

conditions affecting the children. After being confronted with

evidence that Ulrich and Charles were sexually abused while in

the care of a paternal aunt, the mother denied that any such
 17

conduct occurred and stated that the allegations were concocted

by the maternal grandmother. When told of the allegations that

several of the children were being physically abused in the

paternal aunt's home, the mother failed to investigate or take

any other action simply because she had no proof that the

allegations were true, even though "she had a suspicion someone

may have hit" one of the children.11 See G. L. c. 210, § 3 (c)

(viii). She also refused to acknowledge at trial that Charles

was having gender identity issues, stating that he "may have"

issues and that she wasn't "too sure because he still identifies

himself as a boy." All of this evidence clearly and

convincingly establishes that the mother was unfit to parent the

children. See Adoption of Rhona, 57 Mass. App. Ct. at 488.

Additionally, the judge found, on clear and convincing

evidence, that it was in the best interests of each child to

terminate the mother's parental rights. See Adoption of Ilona,

459 Mass. 53, 59 (2011). Ulrich had been diagnosed with

attention deficit hyperactivity disorder and posttraumatic

stress disorder, and he had been hospitalized several times for

aggressive and self-harming behavior. Ulrich's substantial

11The mother argues that these incidents should not be used
as evidence demonstrating her unfitness, as the children were
not in her care when they occurred. However, the issue bearing
on her unfitness is not that the abuse occurred, but her
inaction after learning of it.
 18

mental health issues were often exacerbated by visits or

telephone calls from the mother. He required stability, and

after his placement in the residential facility, his performance

in school improved dramatically. At the time of trial, Ulrich

had been placed in the foster home of a former residential

facility employee and was happy there. After his placement he

displayed a strong bond with his foster mother. The department

approved the foster home as an adoptive placement for Ulrich.

Charles "suffered from 'clinically significant' levels of

anxiety and depression, [and has been] diagnosed with

posttraumatic stress disorder." He also demonstrated "confusion

about his gender," had "difficulty deescalating," and struggled

in chaotic environments. He required the stability of a two-

parent home with no other children in order to ensure that he

would receive the attention that he needed to cope with the

trauma he has experienced. The mother's decision to yell and

swear at Charles, her failure to acknowledge his mental health

issues, and her failure to consistently attend services all

reflect negatively on her ability to ensure that Charles would

be afforded the environment he needs. The department's

permanency plan for Charles is to recruit a preadoptive home for

him.

Sarah also had been diagnosed with mental health issues,

including posttraumatic stress disorder and reactive attachment
 19

disorder. She had difficulties controlling her anger and had

ongoing tantrums in school and at home when she did not get her

way. While being driven to visits with her family, Sarah

relayed incidents of domestic violence between the mother and

the father to social workers. She had been receiving services

from a behavioral specialist since February, 2014, and sometime

before February, 2015, began attending a therapy program for

children who have witnessed violence. At the time of trial

Sarah remained in the same foster home where she had been for

over two years. This home provided her with a great deal of

affection, care, and support. Sarah expressed a strong bond

with her entire foster family, and her foster mother was eager

to help Sarah with her therapy. The department had approved her

foster mother as an adoptive parent.

Amy was less than two years old when she was removed from

her parents' care and showed fewer symptoms of mental health

problems than her older siblings. She exhibited anger issues

when she was younger, but by the time of trial she had developed

good coping skills and was fitting in well at school. Amy was

placed in a foster home in November, 2013. At the time of

trial, she had been living in the same foster home for over two

years, was happy and comfortable in the home, showed a

significant bond with her foster mother, and had an affectionate

relationship with the other members of her foster family. Sarah
 20

and Amy were able to visit one another, and their foster

families have relied upon each other to watch both girls when

necessary. Amy's foster home was approved by the department as

a preadoptive home.

Ellen was only a few months old when she was removed from

her parents' custody and displayed none of the mental health

issues exhibited by her older siblings. Three years old at the

time of trial, she had been placed in a kinship foster home, and

the mother testified at trial that the foster home provided the

type of environment that Ellen required. She exhibited a strong

bond with the foster family and was happy and healthy at the

time of trial. She received early intervention services, and

her foster family had shown a willingness to participate in

visits with Sarah's and Amy's foster families. The department

approved this foster home as Ellen's preadoptive home.

This evidence firmly supports the judge's conclusion that

the mother was unfit to parent each child and that it was in the

best interests of each child for the mother's parental rights to

be terminated. See Adoption of Nancy, 443 Mass. at 514;

Adoption of Hugo, 428 Mass. at 225.

3. Other issues. The four older children raise several

additional arguments contesting the termination of the mother's

parental rights. We find each of these arguments unpersuasive

and address each briefly.
 21

Sarah and Amy (girls) challenge the judge's determination

that it was in their best interests to have the mother's

parental rights terminated despite the fact that the permanency

plan did not provide for their placement in the same adoptive

home, as suggested by their department adoption assessments.

Contrary to the girls' contention, however, the department is

not bound to follow that assessment. Nor is the department

required to wait to place the girls in a specific kind of

placement, particularly when they had already been living with

their foster families for a significant time and had created

strong bonds with the foster families, and where the department

had already designated those foster placements as preadoptive

homes. The judge made findings concerning the bond between the

girls, indicating that this bond was taken into account in the

determination of their best interests. Moreover, there is no

indication in the record that a preadoptive home accommodating

both girls was available. The judge's decision to agree with

the department's recommendation was not "outside the bounds of

reasonable alternatives" and therefore not an abuse of

discretion. Adoption of Mariano, 77 Mass. App. Ct. 656, 660

(2010). See Adoption of Garret, 92 Mass. App. Ct. 664, 675

(2018).

The girls also contend that the judge improperly relied on

evidence from a separate care and protection case regarding a
 22

child the mother gave birth to in January, 2016,12 and a

department letter that should not have been admitted in

evidence. Assuming without deciding that it was improper for

the judge to consider this evidence, we discern no prejudice to

the mother or the girls, as the remaining evidence

overwhelmingly supports -- by clear and convincing evidence --

that the mother was unfit as to the girls and that termination

was in their best interests. See Adoption of Astrid, 45 Mass.

App. Ct. 538, 546-547 (1998) (no prejudice where judge would

have reached same result).

Ulrich and Charles argue that it was not in their best

interests to terminate the mother's parental rights as to them,

emphasizing that recent events show that the mother's parenting

abilities have improved. Ulrich also points to the fact that

his proposed adoption plan was disrupted after the entry of the

decrees. In these circumstances, we do not consider events that

occurred after the entry of the decrees, and we see no error in

the judge's decision to terminate the mother's parental rights.

Contrast Adoption of Cesar, 67 Mass. App. Ct. at 716 (decree

12With regard to evidence concerning the mother's care and
protection case as to that child, its inclusion was just as
likely to help the mother's argument as it was to hurt it. The
same judge who presided over the case at hand dismissed that
care and protection proceeding, declining to find the mother
unfit to parent that child even when that child had serious
medical issues.
 23

vacated to allow further proceedings in trial court in light of

child's removal from preadoptive home before decree was

entered).13

Charles argues that the judge should not have terminated

the mother's parental rights as to him because the department's

permanency plan at the time of the trial -- recruitment of an

adoptive family -- did not require such termination. The judge

found that Charles "has made progress in the stability that has

been provided by the [residential facility]; that progress can

be best solidified through the department's efforts to locate a

permanent adoptive family for him when he is ready." We see no

abuse of discretion in the judge's approval of the department's

permanency plan for Charles. See Adoption of Nancy, 443 Mass.

at 517 (children "deserve permanence and stability"); Adoption

of Dora, 52 Mass. App. Ct. 472, 477 (2001) (termination decree

"may issue even if a specific adoptive family has not been

identified").

Conclusion. The decrees are affirmed. The order of the

single justice denying the motion for a stay of appeal is also

affirmed.

13We note that a child in the custody of the department is
entitled to annual permanency hearings "to determine and
periodically review thereafter the permanency plan for the
child. . . . The court shall consult with the child in an age-
appropriate manner about the permanency plan developed for the
child." G. L. c. 119, § 29B.
 24

So ordered.