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-936
ADOPTION OF VIGGO (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother, the father, and Viggo, the older of the
parents' two children, appeal from the decrees of the Juvenile
Court, which terminated both parents' rights with respect to
their two children, committed the children to the custody of the
Department of Children and Families (department), and approved
the department's adoption plan. 2 After review of the record and
consideration of the parties' arguments, we affirm.
Background. The department assumed custody of the children
just after the younger child was born exposed to multiple
substances (heroin, fentanyl, and cocaine) in December 2018.
The children spent more than a year in foster care before being
returned to the mother and the father. During that year, the
younger child experienced numerous medical issues, including
1 Adoption of Alicia. The children's names are pseudonyms.
2 Alicia, the younger child, advocates for affirmance of the
decrees.
tightness and tremors in her arms and legs, gastrointestinal
problems, sensory issues, repeated bronchitis, breathing
problems, and chronic ear infections resulting from a
compromised immune system. The older child, five years old at
the time of removal, shifted from foster home to foster home due
to behavioral issues, which included obsession with violent
video games, swearing, inappropriate conversations with younger
children, and food hoarding. He also had significant tooth
decay requiring extensive dental work under anesthesia.
After the parents had engaged in services for some time,
the department returned the children to the home of the mother
and the father in January 2020. In March 2020, the department
ceased in-person home visits due to the COVID-19 pandemic. In
May 2020, a department social worker observed the younger child
(for the first time after her return to the mother and the
father) and noted a significant decline in her appearance,
urging the parents to take the child to her pediatrician. The
following month, June 2020, the younger child's pediatrician
recommended that the child be immediately transported to Hasbro
Children's Hospital. At Hasbro, it was discovered that the
younger child had significant weight loss, her skin appeared
translucent with bruises and lacerations all over her body, her
hair was brittle and balding, and she had hematomas on both ears
and bone fractures in her arm and leg.
2
Doctors at Hasbro found the younger child's injuries to be
inconsistent with accident. In particular, the hematomas on the
ears, one pediatrician opined, would have resulted from blunt
force trauma inflicted to the head. The pediatrician further
opined that the fractures to the arm and leg would have been
painful, causing the child to cry out, and that the weight loss
and deterioration of skin and hair were the result of severe
malnutrition. The parents indicated that the younger child's
weight loss was due to the fact that she was not adjusting to
solid food well. Both parents suggested that the older child,
who was six years old at the time, could have inflicted the
injuries on the younger child. The parents had no explanation
for why they did not seek medical attention earlier except that
they did not like the pediatrician. The trial judge credited
the medical diagnoses and opinions regarding the younger child's
injuries.
Thereafter, the younger child was placed back into her
previous foster home, and the older child (after a number of
interim arrangements) was also placed into a foster home. Both
children improved significantly after being removed from the
mother and the father. The following month, in July 2020, the
mother and the father were both criminally charged with child
endangerment.
3
Discussion. 1. Termination of parental rights. The
mother, the father, and the older child each contend that the
judge erred in terminating parental rights. Before terminating
parental rights, a judge must first find by clear and convincing
evidence that the parent is currently unfit to raise the child.
See Adoption of Nancy, 443 Mass. 512, 515 (2005); Adoption of
Posy, 94 Mass. App. Ct. 748, 750-751 (2019). Unfitness is
determined "by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993). See
Adoption of Carlos, 413 Mass. 339, 348 (1992). In order to make
the subsequent determination about termination, the judge must
also find by clear and convincing evidence that "the child's
best interests will be served by terminating the legal relation
between parent and child." Adoption of Ilona, 459 Mass. 53, 59
(2011).
Here, the judge's conclusion that the department had
sustained its burden of proving by clear and convincing evidence
that both parents were and would remain unfit to raise both
children was amply supported in the record. See Custody of
Eleanor, 414 Mass. 795, 802 (1993) (factual findings must be
supported by record evidence and will not be overturned unless
clearly erroneous). The judge's careful and thorough decision
4
derived directly from the testimony and documentary evidence
before the court, which the judge was within her discretion to
credit. See Adoption of Nancy, 443 Mass. at 515, citing
Adoption of Quentin, 424 Mass. 882, 886 (1997) (it is judge's
prerogative to evaluate witness credibility and to weigh
evidence).
The evidence showed that the younger child was healthy when
placed with the parents, but deteriorated precipitously while in
her parents' care. In addition to malnutrition so severe that
it affected brain development, there was evidence that the
younger child sustained multiple serious injuries that were
inconsistent with accident. Further, the older child disclosed
physical abuse by the mother and by the father as well as
physical abuse against the mother by the father. The parents
were offered services to remedy their parental shortcomings, but
were largely noncompliant. By the time of trial, the parents
were facing criminal charges alleging intentional abuse of the
children. At no time did the parents take responsibility or
show any insight into how their own behavior put the children at
risk.
a. Expert testimony concerning younger child. The mother
contends that the judge's conclusions about unfitness were
largely drawn from the testimony of a witness who was an expert
in child abuse pediatrics, and that this was error because the
5
expert relied on inaccurate information about the younger
child's weight, wrongly dismissed the mother's explanation for
changing the younger child's diet, and opined, without support,
that the older child could not have caused the younger child's
injuries. The father similarly argues that the judge erred in
holding the parents responsible for the younger child's physical
condition where the evidence suggested that her weight loss was
not readily perceptible and that the older child may have
inflicted the other injuries without the parents' knowledge.
Although there were discrepancies in the medical records
regarding the younger child's weight loss, the records overall
support a conclusion that she suffered significant weight loss
and associated malnutrition. And to the extent that there may
have been alternative causes for the younger child's weight loss
and injuries, these alternatives were explored at trial. As to
any perceived flaws in the expert witness opinions, the parties
were free to cross-examine the witness on those issues and point
out the deficiencies to the judge for her consideration. See
Sacco v. Roupenian, 409 Mass. 25, 30 (1990) (party free to
attack inconsistencies or omissions in factual foundation, as
well as flaws in analytical process through cross-examination to
affect weight of evidence). Ultimately, it was for the judge to
decide the weight and credibility of the evidence presented.
See Adoption of Larry, 434 Mass. 456, 462 (2001). As the
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judge's factual findings regarding the unfitness of both parents
were solidly grounded in the evidence, we do not disturb them.
See Adoption of Helen, 429 Mass. 856, 859 (1999).
b. Independent evidence of abuse and neglect of older
child. The parents and the older child also argue that the
judge erred in terminating parental rights as to the older child
based solely on concerns regarding the neglect and abuse of the
younger child. See Petition of Catholic Charitable Bur. of the
Archdiocese of Boston, Inc., to Dispense with Consent to
Adoption, 395 Mass. 180, 185 n.6 (1985) (parent may be fit to
raise one child but unfit to raise another). Yet, there were
concerns of neglect and abuse of the older child. He exhibited
significant dental, emotional, and behavioral issues when
removed from his parents' care. The older child's own reporting
added to this evidence; he reported being unable to wake up his
mother and having to make his own food. He reported his parents
being "mean" to him and physical abuse, including his mother
suffocating him and his father throwing him and hitting him.
There was ample evidence of abuse and neglect, specific to the
older child.
2. Adverse inference against father. The father contends
that the judge erred in drawing a negative inference from the
fact that he was present at trial but did not testify. He
contends that such an inference can only be drawn if a party
7
refuses to testify, but he never refused as he was not called to
be a witness. To the contrary, in a termination of parental
rights proceeding, which is civil in nature, a negative
inference may be drawn when a party fails to testify under
circumstances where "a case adverse to the interests of the
party affected is presented so that failure of a party to
testify would be a fair subject of comment." Custody of Two
Minors, 396 Mass. 610, 616 (1986). Here, the department
presented such a case adverse to the interests of the father.
The fact that the father had a privilege against self-
incrimination in the pending criminal proceedings he faced, is
of no consequence as the privilege has no application in a
termination proceeding. Cf. id. at 617 (holding privilege
against self-incrimination is not applicable in child custody
case). See Adoption of Cecily, 83 Mass. App. Ct. 719, 727
(2013) (in case terminating mother's parental rights, negative
inference drawn against mother by trial judge appropriate where
mother faced criminal charges arising out of abuse and neglect
of child). There was no error.
3. Rejection of maternal grandmother as adoption resource
for older child. The parents challenge the judge's decision to
place the older child in the department's custody, rather than
with his maternal grandmother. The judge recognized the
significance of the older child's relationship with the maternal
8
grandmother, but determined that it was not in the best interest
of the older child to be placed with her because she lacked
insight regarding the reasons that the children were placed into
the department's care. Her minimization of the trauma, neglect,
and abuse the children endured gave the judge concern that the
maternal grandmother would not be able to respect boundaries
placed on the parents' contact with the children. We cannot say
that the judge's rejection of the parents' proposed adoption
plan in favor of the department's plan was an abuse of
discretion. See Adoption of Jacob, 99 Mass. App. Ct. 258, 272-
273 (2021).
4. Posttermination visitation. Lastly, the mother, the
father, and the older child challenge the judge's rulings
concerning posttermination contact. The judge found that
ordering posttermination visitation was not in the children's
best interest, but rather concluded that the children's
respective caretakers should make all future visitation
decisions. Similarly, the judge declined to issue a specific
order regarding sibling visitation, concluding that while the
siblings enjoyed positive interactions during their visits, the
children's adoptive parents and custodians would be in the best
position to gauge the extent to which visitation was in their
best interests posttermination.
9
Once a parent is established as unfit, the decision whether
to grant posttermination visits is within the judge’s
discretion. See Adoption of John, 53 Mass. App. Ct. 431, 439
(2001). The decision should be based on the best interest of
the child. See Adoption of Ilona, 459 Mass. at 63.
Notwithstanding the father's argument as to his positive
relationship and bond with the older child, the judge made no
finding of such a bond. See id. at 63-64 (in determining best
interests, judge should consider, among other factors, whether
there is significant existing bond between child and biological
parent). Particularly given the no contact order in place
issued by a judge in the criminal case, there was no abuse of
discretion in the judge's decision not to order visitation
between the father and the older child.
Although the judge did order posttermination visitation
between the mother and the older child, the mother and the older
child argue that the judge erred in limiting the contact, in
giving the department discretion to further reduce the
visitation, and in declining to order post-adoption visitation.
However, the purpose of posttermination and postadoption
visitation is not to strengthen the bond between the biological
parents and the child but rather to ease the child's transition
to another home. See Adoption of Vito, 431 Mass. 550, 564-565
(2000). "[A] judge must balance the benefit to the child . . .
10
with the intrusion that an order imposes on the rights of the
adoptive parents." Adoption of Ilona, 459 Mass. at 64. The
judge determined that the older child was likely to have
changing needs, given his trauma history and treatment, such
that it may be necessary to reduce visits if deemed advisable by
the child's therapist. Similarly, those same anticipated
changing needs made it inadvisable to order postadoption
visitation. Under the circumstances, we cannot say it was an
abuse of discretion to give the department discretion to reduce
visitation under set circumstances and to leave postadoption
contact to the discretion of the adoptive family. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of
discretion is when decision falls outside of range of reasonable
alternatives).
The older child argues that the judge erred in declining to
issue a formal order of sibling visitation with the younger
child. General Law c. 119, § 26B (b) (§ 26B [b]), requires the
court, as well as the department, to ensure that a child placed
in foster care have access to visitation with siblings, to the
extent reasonable and practical and based upon the best
interests of the child. In this case, as the judge found, the
older child did have visitation with his sibling consistently
throughout the proceeding. The judge further found that the
department would continue to maintain the contact as long as it
11
was clinically appropriate. There is nothing in the record to
suggest otherwise. Under the circumstances, the judge was not
required to make a specific order regarding sibling visitation.
See Adoption of Garret, 92 Mass. App. Ct. 664, 681 (2018) (where
department is permitted to manage sibling visitation pursuant to
§ 26B [b], no error in judge's failure to make visitation
orders). 3
Decrees affirmed.
By the Court (Rubin, Singh &
Hershfang, JJ. 4),
Assistant Clerk
Entered: January 5, 2024.
3 Any arguments raised by the parents and the older child but not
mentioned in this decision "have not been overlooked. We find
nothing in them that requires discussion." Commonwealth v.
Sosa, 493 Mass. 104, 124 n.12 (2023), quoting Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
4 The panelists are listed in order of seniority.
12