MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother seeks reversal of a decree terminating her parental rights to her son, Alonzo, maintaining that the judge (i) improperly shifted the burden to the mother to show that she was fit and failed to acknowledge that Alonzos best interests dictated maintaining the parental relationship, (ii) improperly relied on the mothers challenges from substance use, domestic violence, and mental health as bases for termination, in the absence of a demonstrated nexus between those challenges and the mothers ability to parent Alonzo; and (iii) failed to recognize the intrafamilial relationships, including those between Alonzo and his siblings and, consequently, erred by declining to order sibling and maternal visitation posttermination and postadoption. We affirm.
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Background. Alonzo was born substance exposed in 2015. Nine months later, in May 2016, the Department of Children and Families (department) received three reports under G. L. c. 119, § 51A (51A reports) stemming from the mothers alcohol use and domestic violence between her and Alonzos father. One of these reports arose from an incident where the mother was intoxicated, blacked out, and had a “violent meltdown” in the fathers parents home. These reports were supported and Alonzo was removed from his parents custody. In 2017, Alonzo was returned to the father only because of ongoing concerns about the mothers substance use and mental health. From 2017 to 2020, the father had custody of Alonzo and the mother was afforded multiple weekly visits. The mother has not had custody of Alonzo since he was removed in 2016.
The mother has struggled with both cocaine and heroin use; at different times, she reported, she was prescribed methadone and Suboxone for her heroin addiction. Although the mother claimed to have been drug free for many years, the trial judge did not credit the mothers testimony about the extent of the mothers drug use, when she began using cocaine, or the length of her sobriety. The mother also uses marijuana and reported that she had a medical marijuana card.
The mother has been diagnosed with several serious mental health conditions, including major depression, bipolar disorder, panic attacks, unspecified anxiety disorder, and a trauma disorder. The mother maintained that she takes medication to address many of these diagnosed conditions, but the judge did not credit the mothers testimony about her current medications, finding the mother “inconsistent on this point.” Twice (most recently in or around 2015), the mother has been hospitalized because of her mental health.
Although the mother was not employed at the time of trial, she reported having both a certified nurse aide certificate and an estheticians license, and having worked as an esthetician for two years, ten or more years before trial. The mother also reported volunteer work as a recovery coach, hosting an addiction podcast, and working as an advocate for victims of domestic violence. She received Supplemental Security Income benefits, reporting that her parents were involved in receiving her payments and controlling her finances. At the time of trial the mother reported having stable housing in Burlington through a Section 8 voucher.
The department has been involved with the mother for many years, beginning in 2007. In 2018 and 2019, the department filed two 51A reports alleging that the mother was supplying her older daughter (then a young teen) with Xanax without a prescription and with marijuana to smoke with her friends. In early June 2020, a 51A report was filed alleging neglect of Alonzo by both parents. The report was filed after a neighbor called the police to report an argument -- reported by both parents as a verbal altercation, even though both admitted that a water bottle had been thrown -- during which Alonzo was present. Later that same month, the father went to the police station requesting an emergency restraining order against the mother, prompting another 51A report to be filed. That report alleged that the mother had come to the fathers home for a scheduled visit with Alonzo and said that she did not want Alonzo and that Alonzo did not love her, then struck the father several times in Alonzos presence. The reporter saw cuts on the fathers face, corroborating his report of the incident. The father was granted an emergency restraining order for himself and Alonzo.
During a resulting investigation by the department, Alonzo reported that he had told the mother he loved her and she had responded that he did not and had run at him, saying she was going to “smash” him. Alonzo told the reporter that the fathers injuries resulted from the mothers having hit him in the face, which made Alonzo feel scared. The mother later admitted to the reporter that she had hit the father in the face with her fist. The 51A report was supported.
Two months later, in August 2020, another 51A report was filed. This report, which was screened in for an emergency response, arose from an altercation between the parents during which the mother used cocaine and put a lamp cord around her neck, and which culminated in the fathers dragging the mother for a short distance with his car. The mother reported that Alonzo saw this incident. The reporter saw multiple cuts, bruises, and marks on the mothers body; the father was arrested and charged with domestic assault and battery and assault by means of a motor vehicle. At trial, the mother testified that she did not know whether she would consider this incident domestic violence.
Alonzo entered the departments care and custody and was placed with a paternal aunt; from early August 2020 to June 2021, the departments goal for Alonzo was reunification with his family. In October 2020 and in July 2021, the mother received similar action plans from the department, each of which ran for six months. Between the dates of those action plans, the mother used cocaine. Although the mothers first action plan called for her to “ensure that [Alonzo] is always being supervised and in the care of a safe and appropriate caregiver,” the mother testified that Alonzo lived with the father for over three months during which the mother had concerns about the fathers drug use. The mother did not inform the department about her concerns. In August 2021, she used cocaine and other nonprescribed substances in direct violation of her second action plan.
Both the 2020 and 2021 action plans tasked the mother with engaging in therapeutic supports to address the domestic violence in her relationship with the father, understanding the impact of her actions on Alonzo, engaging in and verifying substance abuse treatment, and refraining from using nonprescribed substances. The mother did not adhere to these requirements. She relapsed on alcohol and was involuntarily committed to a Womens Recovery from Addictions Program (WRAP) operated by the Department of Mental Health after threatening to hurt herself and her sister; many times she tested positive for nonprescribed and illegal drugs and she was admitted to a detoxification program at the end of October 2021. Her substance use continued after this admission.
Discussion. “To terminate parental rights to a child and to dispense with parental 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 childs best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). In terminating parental rights, “it is appropriate for a judge to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent[s] unfitness at the time of trial may be only temporary” (citation omitted). Care & Protection of Zeb, 489 Mass. 783, 788 (2022). “Because childhood is fleeting, a parents unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, 459 Mass. 53, 60 (2011). “A judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child.” Adoption of Elena, 446 Mass. 24, 33 (2006).
“We review the judges findings with substantial deference, recognizing her discretion to evaluate a witnesss credibility and to weigh the evidence,” Adoption of Nancy, 443 Mass. 512, 515 (2005), “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, 459 Mass. at 59.
1. Burden shifting and current fitness. Beginning with the undisputed principle that the department has -- and maintains -- the burden of proving parental unfitness, see Adoption of Lisette, 93 Mass. App. Ct. 284, 293 (2018), the mother contests twenty-one “findings” by the trial judge contained within her conclusions of law, maintaining they show that the judge improperly shifted this burden to her, and that a retrial is therefore required.
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She also maintains the department failed to present evidence of the mothers current unfitness. We are not persuaded.
The mother carefully parses the judges conclusions of law, selecting twenty-one sentences in which the trial judge commented on, among other things, whether the mother has demonstrated insight or progress in addressing her mental health, substance misuse, and other challenges; shown an ability to provide a safe environment for Alonzo; or provided the department with requested (or required) evidence of her compliance with action plan tasks and goals. Read as a whole, the judges 222 findings of fact and thirty-eight conclusions of law do not support the burden transfer concern. See Adoption of Flavia, 104 Mass. App. Ct. 40, 52 (2024).
In evaluating a parents fitness, a judge considers “a parents character, temperament, conduct, and capacity to provide for the childs particular needs, affections, and age.” Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). Action plans are aimed at “evaluating a parents fitness, while at the same time ensuring the safety of the child.” Adoption of Yalena, 100 Mass. App. Ct. 542, 549-550 (2021). “Evidence of parents refusal to cooperate with the department, including failure to maintain service plans ․ is relevant to the determination of unfitness.” Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).
Of the twenty-one challenged statements, all but three of them relate to the mothers failure to comply with her action plan tasks. The challenged statements in conclusions of law 5, 7, 8, 9, 11, 13, 15, 17, 20, 29, as well as the two challenged statements in the summary, evidence the trial judges assessment of the mothers present unfitness, measuring the mothers progress in the areas identified by the department as requiring improvement. This was not improper. See, e.g., Adoption of Elena, 446 Mass. at 31-33 (judges determination of mothers future unfitness based largely on her failure to deal effectively with her long history of drug misuse not clearly erroneous); Adoption of Carlos, 413 Mass. 339, 350 (1992) (in determining whether unfitness is temporary, judge may consider evidence that provides “reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her childs best interests”); Adoption of Yvonne, 99 Mass. App. Ct. 574, 579-580 (2021) (judge properly considered mothers history of failing to address “how domestic violence affected her parenting” in assessing her present and future fitness).
The remaining three challenged statements relate to the mothers failure to demonstrate her “parenting capacity.” The findings here provided necessary context for these challenged statements. Contrast Care & Protection of Ian, 46 Mass. App. Ct. 615, 616-618 (1999). The trial judge noted the mothers failure to follow aspects of her action plan designed to address her substance use and mental health disorders, acquire and maintain stable housing and employment, and address the domestic violence in her relationship with Alonzos father.
As in Adoption of Luc, 484 Mass. 139, 146 n.17 (2020), the concern “is not that the mother has mental health challenges, but that those challenges remained largely unaddressed,” to the childs detriment, and the judge properly considered the mothers history of failing to address “how domestic violence affected her parenting” in assessing her present and future fitness. Adoption of Yvonne, 99 Mass. App. Ct. at 579-580. Acknowledging the mothers failure to address known challenges is not burden shifting. Our review of the record leads us to conclude that the judges finding that the mother was currently unfit to further Alonzos welfare and best interests was supported by clear and convincing evidence.
2. Nexus between the mothers challenges and her ability to provide minimally acceptable care to Alonzo. The mother maintains that the trial judge erred because, in focusing on the mothers mental health, substance misuse, and domestic violence challenges, the judge “ignored” the absence of any evidence establishing a “nexus” between these challenges and the mothers ability to parent Alonzo. The mother is correct that “parental unfitness means grievous shortcomings or handicaps that put the childs welfare much at hazard,” (quotations and citation omitted), Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997), and that “[e]ndangerment of the child from abuse, neglect, or other activity harmful to the children must be in the picture.” Id.
We discern no error in the trial judges determination that the mothers serious challenges adversely affected her ability to provide minimal care for Alonzo. Alonzos experience with his mother was intertwined with his witnessing domestic violence between the mother and the father, including episodes where (1) the mother hit the father in the face and “moved aggressively toward” Alonzo, (2) the father dragged the mother with his car, and (3) the mother struck the father several times in the face. Alonzo told a social worker that he felt “scared” by witnessing the domestic violence. “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). A child who witnesses “such abuse suffers a distinctly grievous kind of harm.” Id. at 595. See Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015); Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005) (“Violence within a family is highly relevant to a judges determination of parental unfitness and the best interests of the children”).
We also view as adequate the trial judges findings connecting the mothers longstanding substance use disorders and mental health issues with her inability to parent Alonzo. For months in 2021, while Alonzo was living with the father, the mother was using cocaine and knew that the father had also relapsed, was having outbursts and “acting paranoid,” and yet she did not inform the department about her concerns. The first time the parents lost custody of Alonzo, it was because the mother was drunk and “blacked out,” and had a “violent meltdown” in the fathers parents house. Three 51A reports about the mothers alcohol use were filed and supported, including one episode where the mother was said to have assaulted the father while she was drunk. Additionally, the mother admitted that, during the car-dragging incident, she used cocaine while Alonzo was present and knew it was inappropriate to do so. These facts amply support a conclusion that the mothers substance use and mental health challenges have “caused [her] to provide less than minimally acceptable care” of Alonzo. See Adoption of Katharine, 42 Mass. App. Ct. at 31.
3. Likelihood of future fitness and the best interests of Alonzo. In determining that the mothers unfitness was unlikely to be temporary, the trial court was permitted to consider the mothers extensive record of involvement with the department, her inability to make sustained gains against her alcohol and substance use disorders, her denial of domestic violence in her relationship with the father, and her intermittent efforts to address her mental health challenges. We discern no clear error in the judges finding. See Adoption of Ilona, 459 Mass. at 62; Adoption of Carlos, 413 Mass. 339, 350 (1992).
The mother maintains that even if she was unfit at the time of trial, termination of her parental rights at that time was neither mandated nor in Alonzos best interests. During trial, the mother sought six more months “to prove herself, have more sober time, and gain employment.”
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As an initial matter, the judge did not credit the mothers claim that she was sober, and this credibility determination was well within the judges prerogative. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). Second, “[s]tability in the lives of children is important, particularly in a case that has continued for a long period of time in the hope that the [mother] could and would successfully rehabilitate [herself].” Adoption of Nancy, 443 Mass. at 517. Alonzo was seven years old at the time of trial and had last been in his mothers custody when he was one. Even if the mother had made strides -- which would be difficult to reconcile with the trial judges findings of fact -- it was within the judges discretion to weigh the evidence of any such improvements “within the context of the mothers earlier and continuing deficits.” See Adoption of Jacques, 82 Mass. App. Ct. at 608. See also Adoption of Carlos, 413 Mass. at 350.
“[T]he best interest analysis ․ requires a court to focus on the various factors unique to the situation of the individual[s] for whom it must act.” Custody of a Minor, 375 Mass. 733, 753 (1978). In making the best interest determination, the judge was entitled to weigh the evidence as she saw fit, and “[w]e do not sit as a trial court to review de novo the evidence presented by the parties.” Adoption of Paula, 420 Mass. 716, 730 (1995). We discern no clear error or abuse of discretion in the judges conclusion that termination of the mothers parental rights was in Alonzos best interests. See id. at 728.
4. Visitation. The mother also maintains that the trial judge failed adequately to consider Alonzos sibling relationships when considering sibling visitation pursuant to G. L. c. 119, § 26B (b), and that she should have ordered posttermination and postadoption visits between the mother and Alonzo. Alonzos best interests also lie at the core of these determinations. “[A] judge 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 Vito, 431 Mass. 550, 553 (2000). Such an order “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.” Id. at 562.
“[A] judicial order for postadoption contact may be warranted where the evidence readily points to significant, existing bonds between the child and a biological parent, such that a court order abruptly disrupting that relationship would run counter to the childs best interests.” Adoption of Vito, 431 Mass. at 563. “The purpose of such contact is not to strengthen the bonds between the child and his biological mother or father, but to assist the child as he negotiates, often at a very young age, the tortuous path from one family to another.” Id. at 564-565. The decision whether to order visitation is discretionary. See Adoption of Garret, 92 Mass. App. Ct. 664, 679 (2018). Even where a judge finds a basis supporting visitation, an order of visitation is not required. See, e.g., Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 137-139 (1990).
The trial judge considered the nature of a bond between the mother and Alonzo and concluded that “no significant relationship exist[ed]” between the two. We discern no abuse of discretion in this ruling when it is tested against the well-supported findings of fact.
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Furthermore, the judges ruling does not preclude any future visitation between Alonzo and the mother but rather leaves it to the discretion of the department and the adoptive parents. See Adoption of Gwendolyn, 29 Mass. App. Ct. at 138-139. This was not error.
We also discern no abuse of discretion in the judges decision not to order posttermination and postadoption sibling visitation.
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The record included scant evidence of a relationship between Alonzo and his older sisters, with the trial judge noting only that the sisters participated in some of the mothers visits with Alonzo and that he had a “positive relationship” with them, “although he does not see them regularly.” Nothing about this sole finding, or the evidence about the relationships between Alonzo and these sisters, with whom he has never shared a home, required the judge to order contact. See Adoption of Ilona, 459 Mass. at 66 (no abuse of discretion in leaving visitation to judgment of adoptive parents where no compelling reason for visitation order).
Decree affirmed.
FOOTNOTES
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. The father signed an open adoption agreement before trial and did not appeal from the decree terminating his parental rights.
3
. The mother does not challenge as clearly erroneous any of the judges findings of fact.
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. We are not persuaded by the mothers contention that the judge erred in relying on the fact that she did not have custody of Alonzo. Unlike the judge in Bezio v. Patenaude, 381 Mass. 563 (1980), here the trial judge made findings as to the mothers current ability to parent Alonzo; concluding that those findings were adequately supported in the record, we see no error.
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. We are also unpersuaded by the mothers argument that the fathers entering into an open adoption agreement had the effect of requiring the trial judge to consider whether it was in Alonzos best interests for her to order visits with the mother.
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. Because we conclude that, on this record, the judge did not err in declining to order sibling visitation, we need not address whether the mother had standing to raise this claim. See G. L. c. 119, § 26B (b).