Adoption of Iza.

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

24-P-934

ADOPTION OF IZA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal relates to the welfare of a child we refer to

as Iza. In 2018, a judge of the Juvenile Court found the mother

unfit and awarded permanent custody of Iza to the Department of

Children and Families (department), but did not terminate the

mother's parental rights. Following a review and

redetermination proceeding in 2023, another judge of the

Juvenile Court found the mother unfit and terminated her

parental rights. The mother now appeals from the 2023 decree,

arguing that (1) the department failed to stabilize her family

over three generations, (2) the Juvenile Court lacked personal

jurisdiction, (3) there was not clear and convincing evidence at

trial that she was not merely temporarily unfit, and (4) the

judge abused his discretion by terminating her parental rights

1 A pseudonym.
because she shared a bond with Iza and a reasonable alternative

to termination existed. We affirm.

Background. The mother does not challenge the subsidiary

findings of fact, and we summarize the relevant findings and

uncontested facts from the record, reserving some facts for

later discussion. See Adoption of Garret, 92 Mass. App. Ct.

664, 666 & n.7 (2018). Iza was born in April 2014. The

department became involved with her welfare in October 2015,

after her leg was broken in an altercation between the mother

and another adult. In April 2016, before Iza reached the age of

two, the department initiated a care and protection action as to

Iza and her siblings.2 The department was granted temporary

custody of Iza, who was placed in foster care and then with her

maternal grandmother.

In 2018, after a nine-day trial, a judge of the Juvenile

Court found the mother unfit to parent Iza. In part, the judge

found that the mother repeatedly entered into relationships

where she and her romantic partners were aggressors in domestic

violence, exposed her children to that domestic violence, and

continued to exercise poor judgment in inviting individuals

2 Iza had two siblings at the time, and the department was
granted temporary custody of each child in 2016. By the time of
the review and redetermination trial, the mother had five
children, none of whom were in her custody. However, this
appeal pertains only to Iza.

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against whom she had restraining orders into her home. The

judge also found that the mother's housing had been unstable for

the majority of the case and that she left a shelter program

after failing to abide by the rules.3 The judge awarded the

department permanent custody, granted the mother weekly

visitation due to her "strong bond with the child," and approved

the department's dual planning goals of reunification or

adoption. The 2018 decree was affirmed on appeal.

The review and redetermination proceeding took place over

several nonconsecutive dates in 2023. The findings from the

prior proceedings were properly admitted as an exhibit and

considered by the judge. See Adoption of Simone, 427 Mass. 34,

43-44 (1998). The judge allowed the mother's motion to attend

trial virtually, except when she was to testify, to accommodate

her anxiety. However, the mother appeared virtually for only

one trial date and failed to appear on all others. The mother

did not testify, and the judge properly drew a negative

inference. See Adoption of Talik, 92 Mass. App. Ct. 367, 371

(2017).

At the conclusion of the review and redetermination

proceeding, the judge found that the mother was unfit and that

3 The judge also considered and made findings regarding the
mother's mental health but concluded that her mental health was
not itself a reason to find her unfit.

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her "unfitness [was] not merely a temporary condition,"

terminated her parental rights, and approved the department's

permanency plan for Iza -- that she be adopted by her maternal

grandmother. The judge also found that Iza shared a bond with

the mother and ordered four annual supervised visits and the

provision of annual updates about Iza to the mother.

The judge made 128 subsidiary findings of fact focused on

the events following the conclusion of the 2018 proceeding. See

Care & Protection of Erin, 443 Mass. 567, 570 (2005) ("In review

and redetermination hearings, the judge . . . builds on findings

established in the preceding stages. The proper focus of

inquiry . . . is on those facts that have undergone some

metamorphosis since the previous order or are newly developed"

[quotation and citations omitted]). The subsidiary findings

show that the mother was assigned several specific tasks by the

department as part of a family action plan, which was updated

many times prior to the review and redetermination trial. These

tasks were intended to address deficiencies in the mother's

parenting, including those which formed the basis of the 2018

finding of unfitness. Pursuant to the family action plan, the

mother was to continue working with her therapist to address,

among other things, her pattern of unhealthy relationships; to

meet with a domestic violence counselor for ongoing education

and support; to abide by restraining orders; to obtain stable

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housing; to attend anger management classes; to attend all

visits with Iza, court dates, and foster care reviews; and to

complete various other tasks. The mother failed to complete

many of these tasks, and the judge concluded that her "parental

shortcomings will continue undiminished" because the mother was

"unable or unwilling to utilize offered services intended to

mitigate the risk of neglect to [Iza]." To the extent that she

complied with the department's assigned tasks, she did not

always gain insights or parenting improvements as a result.

In particular, the mother did not complete the domestic

violence education assigned by the department and continued to

be involved in physical altercations with romantic partners and

others, as both a victim and alleged perpetrator, at least some

of which led to police responses, arrests, and restraining

orders, including restraining orders where the mother was the

defendant. In addition, the mother continued to face housing

instability, lived in five different locations in 2019 alone,

and was unhoused during this proceeding. She also failed to

complete the anger management course assigned by the department

and threatened and harassed department and adoption workers. On

one occasion, she followed an adoption worker out of a court

house parking lot down several streets, holding her cell phone

camera while revving her engine. She failed to consistently

visit with Iza, and at one visit she did attend in 2022, the

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department was required to intervene when she grabbed Iza's arm

and would not let go. Additionally, the mother did not attend

all court dates and foster care reviews, including trial dates

for the review and redetermination proceeding. Finally, the

mother had diagnoses of posttraumatic stress disorder, anxiety,

and learning disabilities, yet she had not consistently

participated in mental health treatment intended to address the

department's protective concerns. The judge concluded that the

mother's need for mental health treatment and her limited

participation in such treatment since December 2018 "affect[ed]

[her] capacity to assume parental responsibility" for Iza.

At the close of evidence, Iza was nine years old. Other

than a brief attempted reunification in 2017, she had been in

the department's custody since around the age of two. She was

thriving in the care of her maternal grandmother, with whom she

had resided since 2018 and who was committed to adopting her.

She reported to the adoption worker that she wanted to stay with

her grandmother. She was anxious about the prospect of being

removed from her grandmother's care. The judge found that Iza's

placement with her grandmother was "consistent with [her] best

interests, without protective concerns."

Discussion. "In deciding whether to terminate a parent's

rights, a judge must determine whether there is clear and

convincing evidence that the parent is unfit and, if the parent

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is unfit, whether 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). "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."

Id.

"The concepts of parental fitness and a child's best

interests are not separate and distinct but, instead, are

cognate and connected steps that reflect different degrees of

emphasis on the same factors" (quotations and citation omitted).

Adoption of Flavia, 104 Mass. App. Ct. 40, 45 (2024). In

determining a child's best interests, a judge must decide

whether "the parent's unfitness at the time of trial may only be

temporary" before taking the "extreme step" of terminating the

parent's rights (citations omitted). Adoption of Ilona, 459

Mass. at 59. However, a finding that unfitness is only

temporary "must rest on credible evidence supporting a

reasonable likelihood that the parent will become fit, not on a

'faint hope'" (citation omitted). Id.

1. The department's duty to stabilize the family. Iza,

unfortunately, is in the third consecutive generation of her

family to be in the care and custody of the department. The

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mother argues on appeal that the department failed to stabilize

her family over the course of decades, and therefore the

termination decree must be vacated. Although we are not

unsympathetic to the obstacles the mother has faced since

childhood, or her mother before her, her contention here does

not rise to the level of appellate argument and will not be

reviewed by this court. See Mass. R. A. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019); Adoption of Zak, 90 Mass.

App. Ct. 840, 842 n.4 (2017). See also Adoption of Ilona, 459

Mass. at 61 (even where department failed to make reasonable

efforts to prevent removal, judge must still rule in child's

best interests); Adoption of Mario, 43 Mass. App. Ct. 767, 774

(1997) (department's duty to preserve family contingent on

parent's fulfillment of own responsibilities).

2. Personal jurisdiction. The mother argues for the first

time on appeal that the Juvenile Court lacked personal

jurisdiction. This issue is waived. See Carey v. New England

Organ Bank, 446 Mass. 270, 285 (2006) (issue not raised or

argued below waived on appeal). See also Lamarche v. Lussier,

65 Mass. App. Ct. 887, 889 (2006) (personal jurisdiction defense

waived by participation in judicial proceedings).

3. Sufficiency of the evidence. The mother also argues

that the evidence was insufficient to support a finding that her

unfitness was not merely temporary. We disagree. The judge

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properly considered the mother's failure to complete and comply

with the directives of the department, see Adoption of Rhona, 63

Mass. App. Ct. 117, 126 (2005) (failure to cooperate with

department relevant to fitness); her long-standing pattern of

relationships infused with domestic violence and her failure to

protect Iza from exposure to such violence, see Adoption of

Jacob, 99 Mass. App. Ct. 258, 262 (2021) (domestic violence

relevant to fitness); her continuing housing instability, see

Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020) (lack of

stable home relevant to fitness); her aggressive conduct toward

the child and department workers, see Adoption of Ulrich, 94

Mass. App. Ct. 668, 676 (2019) (difficulty managing anger

relevant to fitness); and the mother's mental health concerns,

see Care & Protection of Lillith, 61 Mass. App. Ct. 132, 134-135

(2004) (mental health issues relevant to fitness).

Additionally, the judge considered the nonexclusive list of

fourteen statutory factors relevant in determining a parent's

unfitness under G. L. c. 210, § 3, and found that ten were

applicable, each of which weighed in favor of finding the mother

unfit. Furthermore, the judge properly considered Iza's

preference to remain with her maternal grandmother. See

Adoption of Rhona, supra. Accordingly, the judge did not err in

finding the mother unfit.

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Given the mother's failure to improve her parenting in the

five years between the 2018 and 2023 decrees, it was also

reasonable for the judge to conclude that the possibility that

the mother may become fit was merely a "faint hope," not

supported by credible evidence (citation omitted). Adoption of

Ilona, 459 Mass. at 59. The judge appropriately considered

"past conduct to predict future ability and performance"

(citation omitted). Adoption of Yvonne, 99 Mass. App. Ct. 574,

579 (2021). Here, although the mother averred at trial that she

was not currently in a relationship, she nonetheless failed to

address how domestic violence affected her parenting because she

failed to complete the domestic violence education recommended

by the department and had continued to be involved with partners

with whom she had a history of domestic violence. She likewise

continued to engage in behaviors demonstrating an inability to

manage her anger or to place the needs of Iza over her own

emotions, such as threatening department workers and grabbing

Iza's arm when she was upset during a supervised visit.

The mother argues on appeal that her unfitness flows from

her lack of housing assistance through the department and from

interruptions to services available to her because of the COVID-

19 pandemic. This contention is unpersuasive. The mother was

provided with housing assistance, but these services were

terminated due to the mother's "noncompliance and lack of

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follow-up." Similarly, there is little or no nexus in the

record between the COVID-19 pandemic and the mother's

participation in services. For example, the mother received

telehealth counseling in 2020 during the pandemic. Likewise,

the mother began to participate in other services in 2021 and

stopped participating thereafter.

At bottom, the mother's argument that the recurring causes

of her unfitness are resolvable is unavailing because the

"mother's rights are secondary to the child's best interests,"

and the findings here support the judge's conclusion that the

mother's unfitness is "reasonably likely to continue for a

prolonged or indeterminate period." Adoption of Ilona, 459

Mass. at 61.

4. Iza's best interests. Finally, the mother argues that

it was not in Iza's best interests to terminate the mother's

parental rights because "a reasonable alternative existed" and

because she shared a bond with Iza. Specifically, the mother

argues that the judge should have allowed her more time to

resolve the issues underlying her unfitness and that a

guardianship, in lieu of an adoption, would still protect Iza's

best interests should the mother remain unfit. We disagree.

Where the judge properly found that the mother was unfit and

that her unfitness was not temporary, and where Iza was thriving

in her grandmother's care, the termination of the mother's

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rights was not an abuse of discretion. See Adoption of Ilona,

459 Mass. at 62. The fact that the judge could arguably have

made a different decision does not render the decision he did

make "outside the range of reasonable alternatives." L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Nor did Iza's bond with the mother preclude the termination

of the mother's rights in this case, because Iza's "present or

future welfare demand[ed] it." Adoption of Carlos, 413 Mass.

339, 350 (1992). The judge properly accounted for the parent-

child bond by ordering visitation between the mother and Iza.

See Adoption of Franklin, 99 Mass. App. Ct. 787 (2021).

Decree affirmed.

By the Court (Desmond,
Sacks & Brennan, JJ.4),

Clerk

Entered: June 27, 2025.

4 The panelists are listed in order of seniority.

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