Adoption of June.

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-910

ADOPTION OF JUNE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Juvenile Court found the

mother unfit to parent her daughter, June, terminated the

mother's parental rights, and granted permanent custody of the

child to the Department of Children and Families (DCF). The

mother appeals, arguing that the trial judge (1) abused her

discretion when she relied on clearly erroneous findings and

conclusions of law to find the mother unfit and terminate her

parental rights; (2) abused her discretion when she allowed the

father to cross-examine witnesses after he had stipulated to the

termination of his parental rights; and (3) impermissibly

shifted the burden of proving fitness onto the mother. 2 We

affirm.

1 A pseudonym.
2 The father is not a party to this appeal.
 Background. 3 On the day of June's birth in April 2018, a

report pursuant to G. L. c. 119, § 51A (51A report), was filed

with DCF alleging neglect of June by the mother and citing

concerns about the mother's erratic behavior and positive

marijuana tests during early pregnancy. The allegations were

supported, and a case was opened for services.

Twenty-six days after June's birth, DCF responded to two

51A reports made on the same day. The first alleged that the

mother tossed June in the air when she was too young to support

her own head and attacked the father when he attempted to soothe

the child. The second alleged that the mother continued to toss

June and threatened to throw her in a river, stab her, and stop

feeding her. DCF took emergency custody of the child that day

and later gained temporary custody after the mother waived her

right to a hearing.

DCF created at least three action plans to help the mother

overcome the obstacles preventing her from successfully

parenting June. The first required, among other conditions,

that the mother attend "inter-partner domestic violence

classes," receive counseling and therapy services to address her

mental health concerns, demonstrate her housing stability, and

3 We summarize the relevant facts and procedural history from the
judge's findings, reserving some details for discussion of the
issues.

2
refrain from drug use while caring for June. The second

additionally required the mother to affirmatively seek housing

and confirm her weekly visits with June after she had missed

multiple appointments and arrived late, sometimes up to an hour

after the scheduled start time. The third reiterated existing

requirements. Though the mother intermittently engaged in some

actions required by the plans, she never adequately complied

with DCF's requirements. 4

Eight months after taking emergency custody, DCF changed

June's goal from reunification with her parents to adoption.

The mother and the father were present at the custody trial,

which commenced in 2021. Two days into the trial, the father

stipulated to the termination of his parental rights and

supported DCF's open adoption plan. After the stipulation, the

trial judge allowed the father's counsel to cross-examine

witnesses to establish his position as adverse to the mother

gaining custody of June. After trial, the judge found the

mother unfit and terminated her parental rights. She cited the

mother's history of domestic violence in relationships, drug

abuse, mental health concerns, housing instability, and other

significant factors as reasons for termination.

4 The mother was still seeking housing at the time of trial and
did not have suitable housing for June.

3
 Discussion. 1. Unfitness. The mother argues that the

judge relied on clearly erroneous findings and conclusions of

law about her history with domestic abuse, her substance use,

and her mental health concerns. Further, she contends there was

no significant nexus between these three factors and her

parenting ability to support the ultimate finding of unfitness.

Therefore, she argues, the judge abused her discretion when she

relied on these factors to ultimately find the mother unfit and

terminate her parental rights. We disagree.

a. Challenges to the judge's findings. In deciding

whether to terminate a parent's rights, a judge must determine

whether there is clear and convincing evidence that the parent

is unfit and, if so, whether the child's best interests will be

served by terminating the legal relation between parent and

child. Adoption of Nancy, 443 Mass. 512, 515 (2005). This

court defers to a trial judge's decision to terminate and

"reverse[s] only where the findings of fact are clearly

erroneous or where there is a clear error of law or abuse of

discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). "A

finding is clearly erroneous when there is no evidence to

support it, or when, 'although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

4
committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),

quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).

The record supports the judge's findings and conclusions

regarding the mother's history of domestic abuse. The father

abused her on at least fifteen occasions during their two-year

relationship, including one incident where the father tackled

and choked the mother while she held June. Despite recurrent

violence, resolutions to leave, and multiple restraining orders

taken out by the father and the mother against each other, both

continued abusive contact. This pattern of behavior supports

the judge's conclusion that the mother had an "ongoing inability

to distance herself from [the] [f]ather." Three months into the

mother's next relationship, the police responded to an

altercation between her and her partner when both were

intoxicated and in a "yelling match." Given this evidence of at

least three years of domestic abuse within the mother's personal

relationships, we see no error in the judge's characterization

of these experiences as "a history of domestic violence

relationships." 5

5 The mother challenges the trial judge's finding that she began
dating an individual named "Kool-Aid." This finding is
immaterial because the judge never relied upon it to conclude
that the mother had a "history of domestic violence
relationships."

5
 The information in the record establishes the mother's

substance abuse and supports the conclusion that she was unable

to "appropriately reflect" on her history of substance abuse.

In addition to testing positive for marijuana during the first

two months of pregnancy, the mother admitted to continued use of

the drug after June's birth. After the child's removal, the

mother engaged in underage drinking on at least one occasion

which warranted police intervention. The trial judge was not

presented with evidence that the mother had addressed her

previous substance abuse issues, and therefore did not err in

drawing her conclusion. See Adoption of Mario, 43 Mass. App.

Ct. 767, 771 (1997). This court is not left with the "definite

and firm conviction" that the trial judge made a mistake.

Adoption of Larry, 434 Mass. at 462.

Finally, the judge did not err in concluding that the

mother "ha[d] not taken the necessary steps to regulate her

mental health" and that she denied her mental health concerns.

The mother was diagnosed with ADHD, PTSD, anxiety, depression,

and dyslexia. She consulted a therapist on-and-off for three

years but stopped after her pregnancy. She failed consistently

to attend therapy and counseling sessions -- requirements set by

her three action plans -- and did not attend any sessions

between October 2021 and February 2022. At the time of trial,

she refused to acknowledge her mental health concerns and

6
believed she was stable. Her mental health diagnoses, coupled

with her unwillingness to address or even acknowledge them,

support the trial judge's conclusions.

b. Nexus to unfitness. The mother contends that there was

no significant nexus between her parenting ability and the three

factors discussed supra. Therefore, she argues, the trial judge

abused her discretion when she relied on them to ultimately find

the mother unfit and terminate her parental rights. We

disagree.

"It is well documented that witnessing domestic violence,

as well as being one of its victims, has a profound impact on

children." Custody of Vaughn, 422 Mass. 590, 599 (1996); Care &

Protection of Lillith, 61 Mass. App. Ct. 132, 141 (2004)

("witnessing domestic violence is itself a 'grievous' harm"). A

parent's inability to end their relationship with their abuser

bears on their ability to protect their child from further

exposure to abuse. See Adoption of Mary, 414 Mass. 705, 711

(1993). As discussed, June was exposed to recurrent domestic

violence between the mother and the father. Despite attending a

domestic violence course, the mother could not recognize herself

as an aggressor or victim in this cycle of abuse. The trial

judge did not "need to wait for inevitable disaster to happen"

when June would witness domestic violence again. Adoption of

Katharine, 42 Mass. App. Ct. 25, 32 (1997). We agree with the

7
judge that the mother's inability to recognize, navigate, and

remove herself from domestic abuse situations demonstrated her

inability to parent June and "keep the subject child safe and

the home free from domestic violence."

Substance abuse during and after pregnancy cannot be the

sole ground for terminating parental rights without evidence

that the parent "provide[d] less than minimally acceptable care"

for the child. Adoption of Katharine, 42 Mass. App. Ct. at 31.

See id. at 34 ("we do not think a cocaine habit, without more,

translates automatically into legal unfitness. . ." [emphasis

added]). While the trial judge did not expressly connect the

mother's continued substance abuse to her inability to provide

care for June, here, the mother's substance abuse was not viewed

in isolation. The judge relied on it, in conjunction with

domestic violence, mental health concerns, and housing

instability, to support her over-all finding of unfitness.

While drug use alone would not have been enough to support

termination, the judge did not err when considering it with the

other factors contributing to the mother's inability to care for

June.

Mental disorders are "relevant only to the extent that

[they] affect[] the parents' capacity to assume parental

responsibility." Adoption of Frederick, 405 Mass. 1, 9 (1989).

A parent's "unwillingness to adhere to DCF's service plan, which

8
required [the parent] to obtain treatment for her mental health

challenges and substance use disorder, is 'relevant to the

determination of unfitness.'" Adoption of Luc, 484 Mass. 139,

147 (2020), quoting Petitions of the Dep't of Social Servs. to

Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).

At the time of trial, the mother was no longer taking medication

to manage her mental health disorders. She failed to attend

counseling and therapy sessions, services required by DCF so

that she might care for June at a future date. We agree with

the trial judge that the "[m]other's inability to take

responsibility for herself, her actions, and her mental health,"

demonstrated through her failure to address or acknowledge her

mental health concerns, indicates that the "[m]other is unfit to

assume parental responsibility for the subject child."

The trial judge did not abuse her discretion when she

terminated the mother's parental rights. An abuse of discretion

occurs when a judge makes "a clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014). Given the robust evidence of the

mother's domestic abuse, substance abuse, and mental health

concerns, the trial judge did not err when she weighed these

factors to find the mother unfit. Further, the trial judge did

9
not rely solely on these three factors. She properly considered

the mother's housing instability, her refusal to cooperate with

DCF's action plans, and the length of separation between the

mother and June. 6 We find no error in judgment in her careful

analysis of these relevant factors.

2. Father's continued participation at trial. The mother

argues that the trial judge abused her discretion by allowing

the father to advance his position against the mother at trial

after he had already stipulated to the termination of his

parental rights. We disagree.

Though a parent who has terminated parental rights does not

have a right "to determine the child's future," a judge may

exercise their discretion to allow the parent to participate at

trial. Adoption of Malik, 84 Mass. App. Ct. 436, 438, 441

(2013) (parent who had stipulated to termination of her parental

rights allowed to participate in permanency hearing to determine

which of two adoption plans was in child's best interests).

Allowing the father to advance his position was not a "clear

error of judgment" but rather a reasoned decision made to help

the judge determine which outcome -- DCF's open adoption plan or

custody with the mother -- was in the best interests of June.

6 The trial judge properly weighed and considered factors ii,
iii; v; vi; vii; viii; and xii, pursuant to G. L. c. 210,
§ 3 (c).

10
L.L., 470 Mass. at 185 n.27. See Malik, 84 Mass. App. Ct. at

440-441.

3. Burden of proof. The mother claims the trial judge

impermissibly shifted the burden of proving parental fitness

onto her by stating in the findings that the mother failed to

"demonstrate fitness" and "demonstrate that she will make the

necessary changes to address her domestic violence, housing

stability, and mental health." We disagree.

The judge made clear that she understood the burden of

proving unfitness was on DCF. Indeed, her pertinent finding in

this regard was, "This Court finds that [DCF] has demonstrated,

by clear and convincing evidence, that [m]other is currently

unfit and has remained unfit to parent the subject child."

Despite the handful of references upon which the mother relies,

in context, the judge did not shift the burden of proof. 7 See

Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003)

(declining to interpret judge's out-of-context statements, such

as "has not demonstrated that she is capable of caring for" and

7 We are not persuaded by the mother's argument that "the judge's
view of certain aspects of the record, particularly those
related to [m]other's compliance with action plans" placed "an
even greater burden [on her] to demonstrate her fitness."

11
"has demonstrated little change in her situation or behavior,"

as burden-shifting language).

Decree affirmed.

By the Court (Henry,
Desmond & Englander, JJ. 8),

Clerk

Entered: August 23, 2023.

8 The panelists are listed in order of seniority.

12