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