ADOPTION OF SUZANNE (And a Companion Case).

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-735

              ADOPTION OF SUZANNE (and a companion case1).

               MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

       Following a trial that spanned thirty nonconsecutive days,2

 a judge of the Juvenile Court issued decrees terminating the

 mother and father's parental rights to two of their children,

 Suzanne and Amy, and ordering two posttermination and

 postadoption visits per year.3         The father appeals from the

 termination of his rights with respect to both children, arguing

 that (1) the trial judge failed to assess his parental fitness

 as it existed at the time of the trial, and (2) the trial judge

 improperly relied on the father's noncompliance with his action

 plan in finding him unfit and terminating his parental rights.4


 1 Adoption of Amy. The children's names are pseudonyms.
 2 The trial, which occurred during the COVID-19 pandemic, was
 conducted via the Internet-based video platform Zoom.
 3 The mother and father also shared two younger sons; the mother

 and father stipulated as to their unfitness with respect to the
 boys during the trial. The father also has an older son who
 reached the age of majority prior to trial and is thus no longer
 party to this appeal.
 4 The mother also appealed from the termination of her parental

 rights with respect to Suzanne and Amy but passed away during
Suzanne also appeals from (1) the termination of her father's

parental rights as to her, arguing that the record lacks clear

and convincing evidence that termination is currently in her

best interest, and (2) the trial judge's order limiting

posttermination and postadoption visitation to two visits per

year, arguing that the order is not in her best interests.        We

address each of these arguments in turn and, discerning no

error, affirm the decrees.

     Discussion.     1.   Termination of parental rights.   The

father first contends that the trial judge erred in terminating

his parental rights because she failed to properly assess his

parental fitness as it existed at the time the trial ended, as

opposed to at the time the children were first removed from his

care.   We are not persuaded.

     At the outset, "we note that prior history does have

prognostic value."    Adoption of Carla, 416 Mass. 510, 517

(1993).   Although it is true that a finding of unfitness cannot

be based on stale information, there was no error in the trial

judge's consideration of the father's treatment of Suzanne and

Amy at the time of removal as part of her overall assessment of

the father's fitness so long as that treatment spoke to the

father's current unfitness.     See id.   With this understanding,



the pendency of this appeal. Amy initially appealed from the
visitation order but withdrew that appeal at oral argument.


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we turn to consider whether sufficient evidence was adduced at

trial to permit the trial judge to find that the father was

unfit and that his parental rights should be terminated, and

conclude that there was.

     "To terminate parental rights to a child and dispense with

consent to adoption, a judge must find by clear and convincing

evidence, based on subsidiary findings proved by at least a fair

preponderance of evidence, that the parent is unfit to care for

the child and that termination is in the child's best

interests."   Adoption of Bea, 97 Mass. App. Ct. 416, 421-422

(2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606

(2012).   "In determining whether the best interests of the

children will be served by issuing a decree dispensing with the

need for consent, a court shall consider the ability, capacity,

fitness, and readiness of the child's parents . . ." (quotation

and citation omitted).     Adoption of Jacques, supra.   "We give

substantial deference to a judge's decision that termination of

a parent's rights is in the best interest of the child, and

reverse only where the findings of fact are clearly erroneous or

where there is a clear error of law or abuse of discretion."5


5 At times throughout his argument, the father asserts that some
of the trial judge's factual findings are stale or erroneous.
The father takes particular issue with the trial judge's
findings regarding his participation in visits with the children
and his engagement in family therapy. These assertions amount
to an effort to reargue the evidence. We discern no factual


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Adoption of Patty, 489 Mass. 630, 637 (2022), quoting Adoption

of Ilona, 459 Mass. 53, 59 (2011).

     Here, we conclude that there was ample evidence supporting

the termination of the father's parental rights.     Chiefly,

reports issued pursuant to G. L. c. 119, § 51A (51A reports), in

addition to testimony at trial, permitted the trial judge to

conclude that both Suzanne and Amy had been sexually abused

while in the parents' custody.6   There was further evidence

suggesting that the father's son, the girls' older half-brother,

was the perpetrator of the abuse.     The father was resistant to

acknowledging the possibility that the older brother abused the

girls, and as part of the action plan to regain custody of the

children, the Department of Children and Families (DCF) required

him, among other things, to "understand . . . who is appropriate

to have around the kids . . . [and] safe adults to help assist

with caretaking."   He was further required to "explore his

belief system around his daughters having been sexually abused

by his son as well as his son's needs and risk and how he can




finding that is clearly erroneous or otherwise unsupported, and
where evidence at trial conflicted, "the judge's assessment of
the weight of the evidence and the credibility of the witnesses
is entitled to deference" (citation omitted). Adoption of
Quentin, 424 Mass. 882, 886 (1997).
6 The 51A reports were admitted to "'set the stage' to explain

how the department became involved with the family." Adoption
of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody
of Michel, 28 Mass. App. Ct. 260, 267 (1990).


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ensure safety for his children."7    These requirements were

necessary to ensure that the father could protect Suzanne and

Amy from further sexual abuse.   Testimony at trial reasonably

supported the trial judge's findings that the father

insufficiently progressed towards these goals and was therefore

ill-equipped to protect the girls from further abuse.

     The father's noncompliance with other portions of the

action plan further supported termination of his parental

rights.   At the time the children were removed from his custody,

they displayed poor personal hygiene, including, in Amy's case,

symptoms of untreated head lice.8    Furthermore, the father and

mother did not bring their children, including the subject

children here, to necessary medical appointments, nor did they




7 The father argues that he was improperly required by DCF to
acknowledge that his older son sexually abused Suzanne and Amy.
Contrary to his assertion, he was not required to do so, but
rather, merely required to consider the possibility and explore
ways he could protect his daughters from the threat of sexual
abuse. The cases cited by the father in support of his position
can be readily distinguished because, in each, DCF required the
parent to acknowledge that a specific person abused their
children. See Adoption of Carlos, 413 Mass. 339, 346 (1992);
Adoption of Yalena, 100 Mass. App. Ct. 542, 549-550 (2021).
Here, the father was not required to acknowledge that his older
son abused his daughters, but, rather, merely acknowledge the
possibility of such abuse.
8 The evidence was also enough to support a finding that the

children's hygiene was so poor that one of Suzanne and Amy's
younger siblings had an untreated diaper rash that was
"blistering and oozing with a significant amount of clearish
liquid and blood." At one point, a caregiver observed feces on
that child's right ear.


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adequately communicate with care providers or supervise their

children's medication and medical needs.9   These deficiencies

placed the girls at risk of harm and supported the trial judge's

finding that "[Suzanne] and [Amy] have been continuously placed

at risk as a result of Mother and Father's grievous

shortcomings."   The action plan tasks were intended to help the

father improve his parental fitness.10   Instead of availing

himself of the resources provided by DCF intended to help him

address these issues, the father did not satisfactorily

participate in therapy or home visits intended to help him

improve his parenting skills.   These issues further supported

the trial judge's conclusion that the father was unfit and that

termination of parental rights was in the children's best

interests.11   See Adoption of Varik, 95 Mass. App. Ct. 762, 773-


9 There was a family history of seizures, and at least four
missed medical appointments were intended to address these
concerns regarding several of the children.
10 The father argues that his noncompliance with his action plan

should not support the termination of his parental rights
because the issues his plan was meant to address were not
sufficiently severe. Where sexual abuse and medical neglect are
implicated, however, we are not persuaded that the judge abused
her discretion in considering the father's noncompliance as part
of her analysis. See Adoption of Jacques, 82 Mass. App. Ct. at
606. See also Adoption of Quentin, 424 Mass. at 886.
11 Suzanne argues that we should conclude that termination of the

father's parental rights was not in her best interests, in part
because, as a nine year old at the end of the trial, she is
statistically unlikely to be adopted. While we are sympathetic
to the difficult realities faced by foster children with respect
to adoptive placements, we decline to conclude that those
difficulties here rise to the level necessary to overcome the


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774 (2019) ("the judge was warranted in concluding that there

were 'grievous shortcomings' in the father's efforts to parent

. . . that would not be remedied in the foreseeable future, and

that justified the termination of the father's parental

rights").

    2.     Visitation.   "A judge may decline to order postadoption

visitation, or 'may order limited postadoption contact,

including visitation, between a child and a biological parent

where such contact is currently in the best interests of the

child.'"    Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004),

quoting Adoption of Vito, 431 Mass. 550, 553 (2000).     "An order

for postadoption contact is grounded in the over-all best

interests of the child, based on emotional bonding and other

circumstances of the actual personal relationship of the child

and the biological parent, not in the rights of the biological

parent nor the legal consequences of their natural relation"

(quotation omitted).     Adoption of Saul, supra.   "Appellate

review of a judge's denial of a request for postadoption

visitation is under the abuse of discretion standard."      Id. at




father's severe deficiencies with respect to protecting Suzanne
from further abuse and ensuring she receives such medical care
as may be necessary. See Adoption of Bea, 97 Mass. App. Ct. at
421-422. See also Adoption of Varik, 95 Mass. App. Ct. 762,
773-774 (2019).


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555, quoting Adoption of Nicole, 40 Mass. App. Ct. 259, 264

(1996).

       Here, we discern no abuse of discretion in the trial

judge's decision to grant two posttermination and postadoption

visits per year.    The record contained evidence reflecting that,

while Suzanne enjoyed the visits, they were often chaotic.       The

father, while attending visits regularly, was often unengaged

during the visits and made excessive use of his cell phone.

Although Suzanne argues that she enjoys the visits, a DCF social

worker testified that the father's behavior often caused the

children to become upset.       Given this evidence, we discern no

abuse of discretion in the trial judge's assessment that two

visits per year are in the best interests of the children.

                                        Decrees affirmed.

                                        By the Court (Green, C.J.,
                                          Desmond & Hand, JJ.12),



                                        Clerk


Entered:    October 26, 2023.




12   The panelists are listed in order of seniority.


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