MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a judge of the Juvenile Court found the mother unfit to parent her children, Bertram and Conrad, and terminated her parental rights to them. She now appeals, challenging the judges findings and claiming that they failed to establish both her unfitness and that termination was in the childrens best interests by clear and convincing evidence. The mother also argues that the judge improperly shifted the burden of proof. For the reasons that follow, we affirm.
Background. The mother has two children with the father: Bertram, born in December 2016, and Conrad, born in June 2018. The father is not a party to this appeal, as he entered into a stipulation terminating his parental rights.
Throughout her adult life, the mother has been the victim of, and occasionally the aggressor in, incidents of domestic violence. She began dating the father around 2015, and the two engaged in an on-again, off-again relationship marred by incidents of domestic violence. The father was often angry and aggressive with the mother. At times, he became physically abusive. Among other allegations, the mother claimed that the father punched her, kicked her, and threw tools at her; shoved her while she was near a flight of stairs; pushed her into a wall and broke down a door; and smashed her personal property.
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The father also alleged that the mother was the perpetrator of several domestic violence incidents. He claimed that she threatened him, and that on one occasion, while he was getting out of the car the mother was driving, she abruptly “gunned the gas,” causing him to fall and suffer injuries. The mother later became the victim of another relationship involving domestic violence. In 2019, she engaged in a short-lived relationship with a man who pulled a knife on her, slammed her to the ground, and strangled her.
The mother also struggled to maintain stable housing and employment. Outside of an eight-month job as a painter before Bertrams birth, the mother had never obtained formal employment. She remained unemployed and without a source of income at the time of trial. As for her housing, the mother moved among the homes of various family members, friends, and partners. At no point in the childrens lives did she obtain an apartment in her own name.
The Department of Children and Families (department) became involved with the mother and father when a reporter filed a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect shortly after Bertrams birth. The department found that the allegations were supported and identified concerns of domestic violence in the parents’ relationship. A second 51A report, also supported for neglect, was filed several months later. Following that report, the department expressed concerns about the mothers continued contact with the father and about her unstable housing. As a result of these concerns, the department obtained temporary custody of Bertram in May 2017.
The mothers second child, Conrad, was born in June 2018, substance exposed to marijuana. Shortly after his birth, the hospital filed a 51A report,
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and the department filed a care and protection petition in the Juvenile Court for custody.
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Initially, a judge returned Conrad to the mother subject to certain conditions. Conrad was removed from the mothers custody several weeks later, however, after she inappropriately allowed the father to see him outside of the departments supervised visitation. The childrens care and protection petitions were ultimately consolidated in the Juvenile Court.
The mother displayed a lack of cooperation with the department throughout the pendency of the case. The departments action plan required her to engage in parenting classes and domestic violence programming, participate in a psychological evaluation to assess her mental health,
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undergo a substance abuse evaluation,
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work toward achieving stable housing, and reside in a home free of domestic violence. Although the mother attempted to participate in parenting and domestic violence courses, she missed a number of sessions
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and eventually stopped attending.
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She never obtained a mental health or substance abuse screening. The mother likewise failed to secure or work toward securing stable housing. As she had for most of her adulthood, she continued to reside with various friends, family members, and partners for short periods of time. She further refused the departments attempts to facilitate her entry into a domestic violence shelter, instead maintaining that she would only pursue opportunities for subsidized housing. Finally, the mother continued to see the father, and the domestic violence between them persisted.
The termination of parental rights trial was held over seven days between October 2019 and January 2020. A judge of the Juvenile Court ultimately found the mother unfit and determined that the best interests of the children would be served by terminating her parental rights. The principal concerns underlying the judges decision were the mothers unabated housing instability, her relationships marred by domestic violence, and her failure to cooperate with the department.
Discussion. The decision to terminate a parents rights requires a two-part analysis. See Adoption of Garret, 92 Mass. App. Ct. 664, 671 (2018). “First, the judge must determine whether the parent is fit to carry out the duties and responsibilities required of a parent.” Id. The burden rests with the department to prove unfitness by clear and convincing evidence. See Care & Protection of Erin, 443 Mass. 567, 572 (2005).
If the judge finds that the department has met this burden and there is no “credible evidence supporting a reasonable likelihood that the parent will become fit” in the near future, the judge next assesses whether termination of parental rights is in the best interests of the child. Adoption of Ilona, 459 Mass. 53, 59 (2011). “[T]he ‘parental fitness’ test and the ‘best interests of the child test’ are not mutually exclusive, but ‘rather reflect different degrees of emphasis on the same factors.’ ” Adoption of Garret, 92 Mass. App. Ct. at 671, quoting Care & Protection of Three Minors, 392 Mass. 704, 714 (1984). Factors relevant to this determination include “a parents character, temperament, conduct, and capacity to provide for the child in the same context with the childs particular needs, affections, and age.” Adoption of Garret, supra, quoting Adoption of Mary, 414 Mass. 705, 711 (1993). At bottom, the inquiry is whether these considerations render the parent “so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child” (citation omitted). Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019).
We review decisions to terminate parental rights to ascertain whether the trial judge “abused his discretion or committed a clear error of law.” Adoption of Elena, 446 Mass. 24, 30 (2006). There must be clear and convincing evidence to support the conclusion that the parent is unfit and that termination is in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 515-516 (2005). Further, the judge must “make specific and detailed findings, demonstrating that close attention has been given the evidence.” Adoption of Gregory, 434 Mass. 117, 126 (2001). The trial judges subsidiary findings, which must be supported by a preponderance of the evidence, are entitled to substantial deference, and will not be disturbed unless shown to be clearly erroneous. Id.
1. Factual findings. The mother challenges nine different subsidiary findings by the trial judge as clearly erroneous. Our examination of the record leads us to conclude that she has not shown any reversible errors. Rather, she asks us to reweigh the evidence and substitute our findings for those of the trial judge, which we cannot do. See Adoption of Paula, 420 Mass. 716, 730 (1995) (“We do not sit as a trial court to review de novo the evidence presented by the parties”). Even assuming the judge committed minor errors in rendering the findings at issue, they are inconsequential to the overall determination of unfitness. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).
2. Clear and convincing evidence. The mother next contends that the ultimate findings of unfitness and that termination of her parental rights was in the best interests of the children are not supported by clear and convincing evidence. Here, she focuses our attention on several pieces of countervailing evidence, which she claims are sufficient to undermine the decision.
The mother first points to evidence of her parenting skills, arguing that she is a “loving and caring” parent and that the department recognized her parenting skills during visitations as “quite good.” But both children were removed from the mothers care when they were only a few months old. Therefore, although the judge aptly considered the mothers behavior during visitation,
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he did not have the requisite information to assess or to recognize her parenting capabilities in the ordinary context -- amidst the everyday stresses of life. See Adoption of Seth, 29 Mass. App. Ct. 343, 349 (1990). His failure to do so does not undermine our confidence in the outcome of the case.
The mother also contends that the department failed to make reasonable efforts
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to help her reunite with the children when it limited its attempts to help her secure housing to facilitating her entry into domestic violence shelters instead of subsidized housing programs.
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As an initial matter, this issue is waived because the mother failed to raise it before trial. See Adoption of West, 97 Mass. App. Ct. 238, 242 (2020) (parent must raise claim of inadequate services in timely fashion). Nevertheless, we note that nothing in our precedent requires the department to offer every conceivable service to help a parent resolve a deficiency. It was proper for the department to determine that, because of her recent history of domestic violence incidents, a shelter was the most safe and effective way for the mother to break the cycle of violence and create a stable environment for the children.
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The mother next claims that she took adequate measures to protect herself and the children from the father by obtaining a series of restraining orders and that there was inadequate evidence for the judge to conclude that domestic violence in their relationship inflicted “trauma” on the children, as they were not present for most incidents. The judge recognized the restraining orders obtained by the mother,
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but he was entitled to conclude that they were not enough to keep her from seeing the father or from engaging in other relationships involving domestic violence. As to the effect of this violence on the children, we are unable to discern the specific evidence the judge was referring to when he concluded that the children experienced trauma. Yet, our case law does not suggest that children are traumatized by domestic violence in a family only when they bear witness to it or experience it firsthand, nor does it require them to do so as a prerequisite to termination. See Custody of Vaughn, 422 Mass. 590, 599 (1996); Adoption of Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018). We therefore cannot say that the judges conclusion was clearly erroneous or an abuse of discretion. More importantly, the impact of domestic violence on the children was not the only consideration in the judges domestic violence analysis. The majority of his findings and conclusions in this area, which we deem sufficiently detailed, focused on the amplitude of violence in the mothers relationships and the risk of future harm to the children. See Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021).
Finally, the mother argues that her failure to complete items in her action plan that were not properly tailored to her parenting deficiencies, including therapy, parenting courses, and drug and mental health screenings, should not have been considered as an indication of her unfitness.
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The mother is correct that judges must give less weight to a parents failure to complete service plan items that “do not appear related to any clearly identified deficiencies.” Adoption of Yale, 65 Mass. App. Ct. 236, 242 (2005). After reviewing the judges decision, we are satisfied that he did not “place great significance, much less dispositive weight” on these failures. Id. The judge instead properly considered them in their larger context as evidence of the mothers lack of cooperation, inability to provide the children with a stable home environment, and neglectful parenting.
In sum, we are satisfied that the judge adequately assessed all the evidence before him, including the evidence favorable to the mother. Although the mother disputes the manner in which the judge weighed much of this evidence, we see no basis for disturbing his view of it. See Adoption of Don, 435 Mass. 158, 166 (2001).
3. Burden of proof.
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Because the mother failed to obtain mental health or substance abuse screenings, the department did not put forth evidence of these issues at trial. The mother now contends that the judge shifted the burden of proof to her in response to this lack of evidence, requiring her to disprove that she had a mental health or substance use disorder. We disagree.
The judges decision reflects an understanding that the burden of proof remained at all times with the department to prove that the mother was unfit. See Adoption of Larry, 434 Mass. 456, 470 (2001); Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003). Not only did he explicitly state the standard, but his analysis and conclusions confirm that he applied it in reaching his decision. See Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992) (“it is presumed that the judge as a trier of fact applies correct legal principles”).
Moreover, the department amply satisfied its burden without putting forth evidence of the mothers substance use or mental health, and neither concern was paramount to the judges decision. Rather, it was mothers overall lack of cooperation with the department and failure to comply with the departments plans that formed a central basis of the decision. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) (“Evidence of [a parents] refusal to cooperate with the department, including failure to maintain service plans ․ is relevant to the determination of unfitness); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) (“It is in the best interest of [the child] to have ‘parents’ who can and who will, on a consistent, long-term basis, assume all parental responsibilities and who can provide [the child] with the stable and continuous care and nurturing [he] needs and will continue to need as a child”). There was no error.
Decrees affirmed.
FOOTNOTES
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. Over the years, the mother obtained five separate restraining orders against the father.
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. The department later determined that the report was supported.
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. At this time the department remained concerned with the mothers unaddressed housing instability and domestic violence issues.
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. The mother was diagnosed with mental health issues as a child, and the department sought information about her current mental condition to evaluate the services she might need.
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. The department believed that the mother might have a substance use problem as a result of Conrads prenatal exposure to marijuana. However, the mothers social worker never observed the mother under the influence, nor did the social worker receive any other indication that the mother had a substance use problem.
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. The mother claimed that she missed a number of appointments because of transportation issues.
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. The mothers social worker at the time of the trial testified that the mother had recently sought to reengage in services but had not yet done so.
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. The judge described the mothers behavior as “appropriate.”
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. “When ․ terminating parental rights, a judge must determine whether the department has complied with its duty to make ‘reasonable efforts ․ to prevent or eliminate the need for removal from the home.” Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. “Reasonable efforts is generally understood to include ‘accessible, available, and culturally appropriate services that are designed to improve the capacity of families to provide safe and stable homes for their children and to ensure that parents and other family members ․ are making progress on case plan goals” (quotations and citation omitted). Care & Protection of Rashida, 488 Mass. 217, 219 (2021), S.C., 489 Mass. 128 (2022).
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. The judge did not consider whether the department made reasonable efforts in this specific situation but did conclude that it made reasonable efforts throughout the case as a whole. The mother does not challenge his conclusion on appeal.
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. Testimony at trial established that the department planned to help mother secure an apartment after she received services and programming from a shelter.
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. The judge went on to recognize instances in which the mother dismissed certain orders, did not seek orders, or had contact with the father despite the existence of an order.
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. The mother also argues that the department failed to prove she was suffering from mental health or substance abuse conditions. We address this issue in the context of her argument about the burden of proof below.
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. The mother also contends that the departments removal of Conrad violated G. L. c. 94G, § 7 (d), which prohibits removal of a child on “the sole or primary basis” of marijuana use without evidence that those activities “creat[e] an unreasonable danger to the safety of a minor child.” The mother properly concedes that she did not raise this issue in the Juvenile Court, and we see no merit in the mothers arguments that we should consider the issue as an exceptional circumstance nonetheless because the proceedings implicate her due process rights or because she raises a novel argument. See Adoption of Mary, 414 Mass. at 712; Adoption of Yalena, 100 Mass. App. Ct. 542, 555 (2021). In any event, there is little reason to believe that the mothers marijuana use was the “sole or primary basis” for the removal, G. L. c. 94G, § 7 (d), and we agree with the department that, “by virtue of the final determination of parental unfitness following a full trial, the question is largely moot.” Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002).