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-1000
ADOPTION OF ZARIA (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following trial, a Juvenile Court judge concluded that
Zaria and David were in need of care and protection and that the
mother was unfit to parent them. The judge issued decrees
terminating the mother's parental rights, concluding that the
termination was in the children's best interests. 2 On appeal,
the mother claims that the judge made multiple errors in
determining that she was unfit and also erred in terminating her
parental rights where the Department of Children and Families
(department) failed to provide a detailed adoption plan. The
mother further argues that the judge abused her discretion in
leaving posttermination visitation to the discretion of the
department and in failing to order more than two postadoption
visits per year. We affirm.
1 Adoption of David. The children's names are pseudonyms.
2 The father's parental rights also were terminated. He has not
appealed.
Background. The department became involved with the family
in 2016, before the Zaria reached her first birthday, following
a physical fight between the parents over who should change the
child's diaper. Both parents were criminally charged in
connection with the incident. By the time David was born in
2017, the mother and the father were living with the paternal
grandmother. The mother called the police several times for
assistance in dealing with family conflicts. The mother and the
father later moved into their own apartment but separated in
2018, with the father eventually obtaining an abuse prevention
order against the mother. The mother subsequently lost her
housing, after which she and the children moved around, staying
sometimes with friends and at other times in hotels. The
children were removed from the mother's custody in 2019, after
an incident where the children (then aged three and one-half and
two) were observed leaning out of a second-story window while
the mother slept. Department employees who responded to the
scene found the apartment unsanitary and in disarray. The
children, who were filthy, nonverbal, had scabies, and
subsequently showed signs of food insecurity, were placed in
foster care.
Soon thereafter, the mother moved into an apartment owned
by the parents of her sixteen year old boyfriend. The
relationship with the boyfriend and his family was volatile, and
2
the mother again resorted to calling the police repeatedly to
help her deal with conflicts. In 2020, the mother gave birth to
another child, fathered by the boyfriend, who was at that time
committed to the Department of Youth Services. 3
The mother struggled with posttraumatic stress disorder,
anger issues, and excessive alcohol and drug use. These factors
combined to cause the mother to be found in violent and
dangerous situations, often calling for a police response and
resulting in the mother being sent to the hospital on a number
of occasions to address both her physical and mental health.
The department offered the mother various services to remedy
these problems but her participation was inconsistent and
ultimately her behavior did not change.
Discussion. 1. Unfitness determination. The central
question in a case to terminate parental rights is whether the
parent is unfit, and then if so, whether termination is in the
best interest of the children. See Adoption of Ilona, 459 Mass.
53, 59 (2011). Such findings must be supported "by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence." Adoption of Jacques,
82 Mass. App. Ct. 601, 606 (2012). See Adoption of Mary, 414
3 This child was also removed from the mother's custody in a
separate care and protection proceeding not at issue in this
appeal.
3
Mass. 705, 710-711 (1993). "We give substantial deference to a
judge’s decision . . . and reverse 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, supra.
Here, the judge found that the mother was unfit due to her
unstable mental health, history of trauma, alcohol use, anger
issues, tendency to get into violent situations with others, and
unsafe and unstable housing. The judge determined that these
issues demanded all of the mother's care and attention and
prevented her from attending to the significant emotional,
developmental, and educational needs of the children. Although
the mother was offered services to address these issues, they
were not remedied, as demonstrated by the numerous tumultuous
situations the mother was involved in up to the time of trial. 4
4 For example, in October 2019, a razor had to be wrestled away
from the mother, who was talking about harming herself due to a
breakup with her boyfriend; police responded and sent her to a
hospital. In June 2020, after an argument with her boyfriend,
the mother became intoxicated and again had to be sent to the
hospital, where she became so combative that she had to be
sedated. In September 2020, neighbors called the police due to
the mother and her boyfriend screaming at each other. In
October 2020, police responded to the home due to a complaint
about a loud party and were met by the mother, who was covered
in blood; she was sent to the hospital by ambulance to treat her
lacerations and alcohol intoxication. In November 2020, the
mother called 911 to report her boyfriend assaulted her; she was
treated at the hospital for an orbital fracture and broken nose
and gave multiple conflicting accounts for her injuries. In
December 2020, the mother called 911 due to an argument with her
boyfriend. In February 2021, the mother was involved in a
confrontation between groups of teenagers where objects were
4
The judge concluded that the children would be put at grave risk
if they were returned to the mother and exposed to her "erratic
and dangerous lifestyle."
On appeal, the mother argues that fifteen of the judge's
findings of fact were clearly erroneous. We are not persuaded.
Findings 1, 5, and 6 5 and supplemental finding 51 each concern
the mother's unsafe and unstable housing. These findings were
amply supported by the evidence. Regarding the mother’s
apartment, there was evidence of stairs in disrepair for over
six months, the same stairs the mother claimed to have been the
cause of her own injuries. 6 There was also evidence that the
thrown and one of the teenagers was knocked unconscious by a
bottle. In May 2021, the mother called the police because her
boyfriend's parents were chasing her down the street, and she
was defending herself with a taser. Less than one week before
trial, the mother called the police because her boyfriend would
not give her a ride home -- he was inside the home drinking
alcohol with other minors.
5 The mother also challenges summary finding 6 on the basis that
the judge mistakenly quoted the mother's expert as if she were
talking about the mother, rather than victims of domestic
violence in general. Our review of the finding indicates that
the judge accurately referenced the expert's testimony.
6 The mother argues that there was no evidence of the status of
the stairs at the time of trial; she contends that the judge's
view of the stairs and the rest of the apartment during the
mother's audiovisual testimony was not evidence. Even accepting
the mother's analogy of the judge's observation to a "view," the
judge was within her discretion to use the observation to help
her understand the evidence. See Commonwealth v. Gomes, 459
Mass. 194, 199 (2011). The evidence came in the form of the
mother testifying that the stairs had not actually been repaired
as of the date of trial.
5
mother's housing situation was insecure as the apartment was
owned by the parents of her boyfriend, with whom she had a poor
relationship. Although she had lived there for two years, the
mother had no lease and made inconsistent rent payments. There
was also evidence that the mother was going to be evicted by the
end of the year. According to the mother's own testimony,
shortly before trial her landlords chased her down the street,
and she pulled out a taser to protect herself. See note 4,
supra. There was no error in the judge's findings concerning
the mother's unsafe and unstable housing.
With respect to findings 9 7 and 10 and supplemental finding
55, all of which were based on the judge's observation that the
mother could not to listen to the foster mother testify to the
needs of the children These findings were not so much factual
statements as they were credibility determinations of the
judge's assessment of the mother's reaction to the foster
mother's testimony. As such, we will not disturb them. See
Custody of Eleanor, 414 Mass. 795, 799 (1993) (judge's
assessment of credibility of witnesses entitled to deference).
7 In summary finding 9, the judge stated that the children's
medical needs were not being met at the time of their removal
from mother; the judge clarified this finding in supplemental
finding 24 by stating that the children were up to date
medically but that the mother had previously missed several
appointments.
6
The mother challenges supplemental findings 2, 9, 10, 11,
14, and 16, claiming that they impermissibly relied on G. L.
c. 119, § 51A (51A report), which were admitted only to "set the
stage," or on nonprimary facts in G. L. c. 119, § 51B, reports.
Although the judge did cite to 51A reports, it is clear that she
was indeed setting the stage. To the extent that the judge
stated she "adopted" the department's conclusions, it appears
that this was a short-hand reference for saying that she came to
the same conclusion as the department based on admissible
primary facts. There was no error.
In supplemental finding 20, the judge stated that the
mother reported that "she has never taken medication for her
mental health issues," citing a report from a court-appointed
investigator that was admitted as an exhibit. According to the
report, the mother stated to the investigator that she "doesn't
take any medication." We acknowledge the discrepancy, but do
not consider it to be significant. Nowhere else in the decision
does the judge comment on the import of the mother taking or not
taking medication for mental health. The thrust of the judge's
decision is that whatever mother did to address her mental
health issues, it was not sufficient to improve her parenting.
The mother also challenges supplemental finding 31 as
erroneous in that, as the mother alleges, the judge found there
was no domestic violence in the mother's relationships.
7
However, the judge did not actually so find; rather, the judge
observed that the mother's relationships "frequently featured
cycles of calm followed by cycles of violent conflict." This
was amply supported by the record; there was no error.
Finally, the mother challenges conclusion of law 23, in
which the judge applied the G. L. c. 210, § 3 (c), factors,
claiming that the judge erroneously found that factors iii, vii,
and x were relevant. The mother contends that factor iii
(failure to maintain significant and meaningful contact with the
child) and x (willful failure to visit the child) were not
relevant because she had maintained contact and had visited the
children Whether the judge should have categorized these
factors as relevant or not, she did conclude that the mother
maintained contact with the children. As to factor vii (child's
bond with substitute caretaker), the mother contends that it was
error for the judge to find this factor relevant since,
regardless of the bond, it would eventually have to be broken
because the foster parent was not going to adopt the children.
The judge used this factor to comment on the bond between the
foster mother and the children. We see nothing that suggests
the judge used this factor, or the other two challenged factors,
as a basis for termination. There was no error.
We have carefully reviewed the challenged findings and
conclude that the record evidence supported those findings by a
8
preponderance of the evidence. See Adoption of Jacques, 82
Mass. App. Ct. at 606. Moreover, the unchallenged findings
alone establish clearly and convincingly that the mother is
unfit and that termination is in the best interests of the
children. There was no abuse of discretion.
2. Adoption plan. The mother argues that the judge erred
in terminating her parental rights in the absence of a detailed
adoption plan. While G. L. c. 210, § 3, mandates that the judge
review and consider the adoption plan proposed by the
department, see Adoption of Hugo, 428 Mass. 219, 226 (1998),
cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034
(1999), "[t]he adoption plan need not be fully developed to
support a termination order." Adoption of Willow, 433 Mass.
636, 652 (2001). See Adoption of Vito, 431 Mass. 550, 568 n.28.
Instead we look to determine whether the adoption plan
"provide[d] sufficient information about the prospective
adoptive placement 'so that the judge may properly evaluate the
suitability of the department's proposal.'" Adoption of Willow,
supra at 652-653, quoting Adoption of Vito, supra.
Here, at the time of trial, the department had not
identified an adoptive placement for the children. "[T]he
absence of imminent adoption prospects does not, by itself,
invalidate a decision to terminate parental rights." Adoption
of Jacques, 82 Mass. App. Ct. at 610. See Adoption of Vito, 431
9
Mass. at 568 n.28. However, the adoption social worker
testified both to the department's intent to keep the children
together and to the characteristics and qualifications that the
department sought in any prospective preadoptive family. In
particular, the department aimed to find a family that could
understand and advocate for the children's educational and
physical needs, ideally a two-parent home where the family would
commit to postadoption visitation by the mother; additionally,
the foster mother would be involved in the transition of the
children to a preadoptive home. In this case, the judge had
sufficient information to approve the adoption plan.
3. Posttermination and postadoption visits. The mother
argues that the judge abused her discretion in leaving
posttermination visitation to the discretion of the department
and ordering only two postadoption visits per year. She
suggests monthly posttermination visits and quarterly
postadoption visits would serve the best interests of the
children.
Once a parent is established as unfit, the decision whether
to grant posttermination and postadoption visits is within the
judge’s discretion. See Adoption of John, 53 Mass. App. Ct.
431, 430 (2001). The decision should be based on the best
interests of the child. See Adoption of Ilona, 459 Mass. at 63.
The purpose of posttermination and postadoption visitation is
10
not to strengthen the bond between parent and child but rather
to ease the child's transition to another home. See Adoption of
Vito, 431 Mass. at 564-565. With regard to postadoption
visitation, "[a] judge must balance the benefit to the child
. . . with the intrusion that an order imposes on the rights of
the adoptive parents." Adoption of Ilona, supra at 64.
Here, the judge found that there was a bond between the
mother and the children and so ordered a minimum of two
postadoption visits per year. The judge left frequency of
posttermination visits to the discretion of the department so
that visits could be tapered leading up to adoption. Although
the mother is concerned that the department will not allow more
than the minimum two visits per year set out by the judge, there
is nothing in the record to suggest that the department will act
contrary to the best interests of the children with respect to
visitation with the mother. Additionally, the mother has not
demonstrated that the judge's decision to order postadoption
visits twice a year, rather than quarterly, amounted to an abuse
of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185
11
n.27 (2014) (abuse of discretion is when decision falls outside
of range of reasonable alternatives).
Decrees affirmed.
By the Court (Vuono, Singh &
Englander, JJ. 8),
Clerk
Entered: December 12, 2023.
8 The panelists are listed in order of seniority.
12