ADOPTION OF KASEM (And a Companion Case).

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

23-P-947

ADOPTION OF KASEM (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge terminated the

mother's parental rights regarding her two sons, Kasem and

Timothy (first and second sons), and terminated the father's

parental rights regarding the second son. The father of the

second son did not appeal. On appeal, the mother and the first

son contend, among other things, that the Department of Children

and Families (department) failed to demonstrate, by clear and

convincing evidence, that the mother was an unfit parent, and

that the trial judge erred when considering posttermination and

postadoption visitation. We affirm.

Background. The mother gave birth to three children, a

first son in 2014 (by a father now deceased), a daughter in 2017

1 Adoption of Timothy. The children's names are pseudonyms.
(by a father who was not a party in this case), and a second son

in 2019 (by her husband, hereinafter, the father or the

husband). In 2017, the mother and the father married and lived

together with the first son and the daughter. The mother had

concerns about the father's mental health, had disagreements and

arguments with him, and believed that it was not safe to be with

him. The father physically abused the mother.

A series of incidents brought the family to the attention

of the police and the department. Specifically, in late 2017,

police officers responded to the family residence because the

mother and the father had been involved in an argument. The

father voluntarily left the residence. About six months later,

police officers returned to the residence where the mother

reported that the father struck her in the face with a closed

fist. After this incident, the mother allowed the father to

return home after he apologized. In October 2018, the mother

and the father had an argument in the residence, and the police

responded. She acknowledged being afraid of the father but did

not request a restraining order.

In December 2018, the department took custody of the first

son and the daughter following reports of abuse. The first son

presented to the hospital with a bruise above his eye and dried

blood in his nose. He alleged that the father disciplined him

with cold showers and held him upside down, while he screamed,

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and caused a nosebleed. He later told a court investigator that

the father "is a monster" who hit him, and that his mother also

slapped him in the face. According to an affidavit of a

department emergency response worker, the mother and the father

admitted that the father held the first son upside down and the

child suffered a nosebleed, but they attributed the incident to

horseplay. The first son also told the worker that his mother

slapped him in the face "when she was 'frustrated.'" Following

an examination of the daughter at the hospital, medical

personnel recommended additional tests to rule out internal

injuries, but the mother left the hospital with the daughter

against medical advice. After initiating emergency removal, the

department filed a care and protection petition on behalf of

both children; the first son has remained in department custody,

and the daughter has been committed to the custody of her

biological father following the mother's stipulation to

unfitness.

While the petition was pending, the department attempted to

contact the mother in September 2019 after receiving a report

that a neighbor heard a baby crying all night in the family

residence. The mother, having given birth to the second son

weeks earlier, refused to cooperate with the department's

attempt to schedule a home visit. On October 25, 2019,

department workers went to the home and received no response

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after knocking on the door. They returned the next day and

informed the mother that the department would be taking

emergency custody of the second son. Shortly thereafter, the

department filed a second care and protection petition on behalf

of the second son and has maintained custody of him.

Initially with a goal of reunification, the department

developed a series of family action plans and monitored the

mother's progress in meeting goals related to her capacity to

parent the children. On April 19, 2020, the mother sent the

department's ongoing social worker an e-mail message asking him

to stop contacting her. She refused to meet with the ongoing

social worker and refused home visits. By early 2021, the

department's goals for both sons ultimately changed to adoption.

In August 2021, a trial commenced on the petitions seeking to

terminate parental rights but was continued for mediation.

After an unsuccessful mediation and further trial, on October

31, 2022, the judge ordered the entry of decrees terminating the

mother's parental rights as to both sons. The first son has

lived with his paternal grandmother since January 2019, and the

second son has lived with his foster mother since May 2021.

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

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parent is unfit to care for the child and that termination is in

the child's best interests." Adoption of Jacques, 82 Mass. App.

Ct. 601, 606 (2012). "In determining whether the best interests

of the children will be served by issuing a decree dispensing

with the need for consent, a 'court shall consider the ability,

capacity, fitness and readiness of the child's parents.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.

c. 210, § 3 (c). "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." Adoption of Ilona, 459 Mass. 53,

59 (2011). "[D]issatisfaction with the judge's weighing of the

evidence" is not a sufficient basis to warrant relief on appeal.

Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

The judge exhaustively considered the factors set forth in

G. L. c. 119, § 26, and G. L. c. 210, § 3 (c), including the

best interest of the child, in making her decision. Of

particular note, the judge concluded that the mother (1) failed

to engage consistently to address her shortcomings, (2) refused

to communicate with the department social worker, (3) presented

as disruptive and combative during parenting group sessions, (4)

refused to take responsibility for her role in the removal of

her children, (5) failed to make positive improvement in her

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parenting skills, (6) maintained inconsistent visitation with

the children, (7) failed to accept responsibility for harm that

befell the children, (8) failed to make substantial progress

toward addressing her mental health issues, (9) failed to

address a history of interpersonal violence, (10) lacked insight

into her parental shortcomings, and (11) lacked insight into the

needs of the children. We discern no error or abuse of

discretion and conclude that the evidence presented support for

the judge's findings and termination decision. See Adoption of

Jacques, 82 Mass. App. Ct. at 606-609.

We disagree with the mother's and the first son's

contention that the judge found her unfit "simply because she

relies on public assistance" or lacked "adequate financial

resources." This contention is at odds with the judge's

comprehensive findings and conclusions as well as the judge's

cautionary note that she "considered the evidence in the

aggregate, and ha[d] not given conclusive weight to any single

component standing alone." Furthermore, the judge did not

examine the mother's financial health in a vacuum; she

considered it as a factor in assessing whether the home provided

by the mother constituted a "stable, continuous environment"

that serves the best interests of the children. Custody of a

Minor (No. 1), 377 Mass. 876, 882 (1979). The judge reasoned

that the mother, who relied on government assistance for income,

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was ambivalent about the father returning home after completing

a period of incarceration, and she lacked an insight into the

financial strain of managing a home as a single parent with two

young children.

We also disagree with the contention that the judge failed

to consider the mother's efforts to comply with the department's

action plans as well as her participation in group therapy,

individual therapy, and remedial programs. To the contrary, the

record shows that the judge expressly found the mother "has made

more positive progress towards service engagement throughout

this case than [the father]. Since June 2021, she has been

consistently engaged in individual therapy, per reports from her

therapist, and has been engaged in parenting classes." While

acknowledging that the mother engaged in services at times, the

judge found that the mother ultimately did not "demonstrate a

positive improvement in parenting skills as a result of her

engagement in services." See Adoption of Paula, 420 Mass. 716,

730 (1995) (absent evidence that services have "appreciably

improved" capacity to meet needs of children, mere participation

in services does not equate with fitness).

While the mother and the first son maintain that there was

no nexus between the mother's mental health issues and her

ability to care for her children, the record permitted, but did

not compel, such an inference. The mother suffered from a

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variety of cognitive and mental health diagnoses, including

learning disability, attention hyperactivity disorder, dyslexia,

depression, anxiety, bipolar disorder, and posttraumatic stress

disorder. At trial, the mother admitted she "sometimes" had

difficulty understanding; she was not taking her medication

around the time the children were removed from the home; she

knew at the time of removal that she suffered from untreated

depression, anxiety, and a bipolar disorder; she decided to

start taking her medication when she developed a hope to

"better" herself; her medication "[p]uts her in bed but it helps

[her]"; and she had comprehension problems during the trial

(despite medication and therapy). In her findings, the judge

noted that the mother "has not been able to control her

behavior" and was "combative, disruptive, and yelling" during

various parenting classes and required individual therapy.

Also, after completing these classes, the mother still lacked

insight into her own responsibility for the harm that befell her

children (e.g., minimizing disciplining her children as nothing

more than a "little tap") as well as insight into the impact of

domestic violence on the children (e.g., appearing ambivalent

about abusive husband returning home and changing her testimony

about whether her husband ever struck her). The mother also

lacked an "understanding of her children's needs" and proved

unable or unwilling to address the issues that led to the

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removal of the children from her home. Thus, the record

supported a nexus between the mother's persistent cognitive and

mental health issues and her capacity to assume parental

responsibility. See Adoption of Frederick, 405 Mass. 1, 9

(1989).

The mother and the first son also take issue with certain

subsidiary findings by the judge regarding the mother's

participation in domestic violence therapy. We agree that the

mother quite commendably engaged in domestic violence therapy,

but the judge's concern centered around her "inconsistent" trial

testimony related to domestic violence and future contact with

her husband. This inconsistency suggested "a level of

uncertainty" regarding whether the mother would allow the father

back into the lives of the children and created "serious

concerns about the potential for harm to the children." Also,

despite engaging in therapy, the mother lacked "any insight into

how the history of domestic abuse in the home might have

impacted the children." Thus, we do not read the judge's

findings as disregarding the mother's participation in therapy

or otherwise indicating that the department did not make

reasonable efforts to provide such therapy.

The record does not indicate that the judge disregarded the

mother's potential to regain fitness, the first son's wishes, or

the adequacy of the department's permanency plan. The judge's

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view of the evidence caused her to expressly reject the

possibility that "the parent's unfitness at the time of trial

may be only temporary." Adoption of Carlos, 413 Mass. 339, 350

(1992). The judge concluded that the mother's unfitness "is

likely to continue into the future to a near certitude" in light

of many of the factors discussed above. The judge also had

before her evidence of the first son's affection for his mother

and his desire for his family to live together, but such views

are not "decisive" or "outcome determinative" in the overall

best interest analysis. See Adoption of Nancy, 443 Mass. at

518. While the department did not submit a written adoption

plan, the extensive evidence at trial, including the testimony

of the social worker about the first son and the adoptive parent

was "sufficiently detailed to permit the judge to evaluate the

type of adoptive parents and home environment proposed and

consider whether the proposal is best suited to meet the

specific needs of the child." Adoption of Varik, 95 Mass. App.

Ct. 762, 770-771 (2019).

For the first time on appeal, the mother and the first son

contend that the judge should not have considered some

information contained in reports filed under G. L. c. 119, § 51A

(51A reports), as well as information related to reports that

were substantiated but later reversed by the department. As we

read the record, the parties agreed to the trial exhibits during

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a lobby conference and premarked them during later discussions

on the record. The discussions during that lobby conference

have not been preserved as part of the record before us. See

Adoption of Quan, 470 Mass. 1013, (2104) (it was incumbent on

appellant "to provide a record adequate for appellate review").

See also Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611

(2019) (record includes transcript of proceedings); Mass. R. A.

P. 8 (c), as appearing in 481 Mass. 1611 (2019) (when transcript

is unavailable, statement of evidence or proceedings may be

substituted). At one point during the recorded discussions,

counsel for the mother raised a concern about an exhibit, and

the judge responded, "File a motion in limine." Discussion then

continued with the marking of exhibits. To the extent the

mother and the first son have not waived any objections, the

judge's findings and conclusions comport with the limited

evidentiary use of 51A reports. See Mass. G. Evid. § 1115

(2024). To the extent the mother and the first son are claiming

that the department's reversal of substantiated reports

precludes the judge from making her own determination of the

facts based upon other admissible evidence, we disagree. "[T]he

use of such evidence was not precluded by principles of

collateral estoppel." Adoption of Lorna, 46 Mass. App. Ct. 134,

141 (1999). As the department concedes, the judge erred by

referring to a 2017 51A report as "supported" when that

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determination was later reversed after an administrative fair

hearing. That erroneous finding, out of 235 findings of fact,

concerned background information that led to the department's

involvement and had no bearing whatsoever on the judge's legal

conclusions.

Finally, we decline to remand for further consideration of

posttermination or postadoption contact. As to the mother, the

judge concluded that "some post-termination and post-adoption

contact could be in the children's interest" provided she

"conduct[s] visits in a manner that is not stressful for the

children and adheres to the best practices for interacting with

each child given his special needs." We discern no abuse of

discretion by the judge entrusting the particulars of

visitation, posttermination, to the department, and

postadoption, to the adoptive parents, who have bonded with the

children and have provided nurturing homes. See Adoption of

Ilona, 459 Mass. at 66. As to sibling contact, the judge did in

fact order the department to continue to provide the first son

with sibling visitation posttermination; and we discern no error

in the judge's deferral to the adoptive parents to set the

parameters for such contact postadoption, especially given the

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current ongoing visitation among the siblings.

Decrees affirmed.

By the Court (Blake, Walsh &
Hodgens, JJ.2),

Clerk

Entered: October 8, 2024.

2 The panelists are listed in order of seniority.

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