Adoption of Katori.

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-1504

ADOPTION OF KATORI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found the mother and

the father unfit to parent their child and terminated their

parental rights to their daughter, Katori. 1 On appeal, the

mother and the father separately challenge the judge's finding

of parental unfitness, contending that it is not supported by

clear and convincing evidence. The mother also argues that the

judge erred in concluding that the Department of Children and

Families ("the department" or "DCF") made reasonable efforts to

reunify her and the child. She also argues that the judge

relied on stale information, failing to consider the positive

steps she had taken to address her deficiencies as a parent.

The father argues that the judge erred in admitting certain

1 A pseudonym.
hearsay statements included in documentary evidence while

unfairly denying his rebuttal evidence. The father also takes

issue with the judge's reliance on a criminal charge in which

the father was found not guilty and on an open criminal charge

relating to a charge of witness intimidation. We affirm.

Background. We recount the relevant facts from the judge's

well-documented and thoughtful findings, reserving certain

details for later discussion. The mother has six children; she

shares three daughters with the father, including Katori. The

father has five children, including the three he shares with the

mother. Both the mother and the father have a long history with

the department prior to the birth of Katori, who was born on

February 9, 2020 and was removed from their custody two days

after her birth. 2 The mother's and the father's parental rights

have been terminated as to two of the three children they share.

The mother's parental rights have also been terminated as to one

of her older children such that she has custody of only one

daughter. The father's parental rights also have been

terminated as to his daughter from another relationship

(Katori's half-sister); he has custody of none of his children.

2 Both parents had been involved with the department years
before they met one another; father had supported allegations of
physical abuse of his oldest child and mother had supported
allegations of neglect of three of her children.

2
Both the mother and the father suffer from mental health

issues, and each has a history of substance misuse. The mother

has been diagnosed with posttraumatic stress disorder (PTSD),

anxiety, depression, and borderline personality disorder. In

the past the mother has been addicted to cocaine and admitted to

using cocaine while pregnant with her older daughter, and later

became addicted to Adderall and Klonopin. The father reported

being diagnosed with attention deficit disorder (ADD), attention

deficit hyperactivity disorder (ADHD), bipolar disorder, mild

Tourette's Syndrome, depression, and anxiety. The father also

has a history of housing instability and has not been employed

full time since 2010. The father has admitted to a history of

cocaine and alcohol use, but denies alcohol abuse.

The mother and the father dated in 2014, separated in 2015,

and then reunited and married in 2016. Their relationship was

marred by domestic violence and turmoil. There also is a

history of domestic violence in the mother's past relationships.

The father denied being physically abusive to the mother but did

admit to being verbally and mentally abusive.

As a couple, the parents have been the subject of numerous

reports alleging neglect and abuse under G. L. c. 119, § 51A

("51A reports") and investigations under G. L. c. 119, § 51B

("51B reports). In 2014, allegations of neglect of the mother's

three children were supported when the mother left the children

3
with her parents and, by doing so, exposed them to domestic

violence. In 2017, allegations of neglect were supported when

the mother approached one of the children as if to strike her,

and the child fell off the bed and was injured.

In June and July of 2018, a series of 51A reports were

filed alleging physical abuse by the father and neglect by the

mother of the mother and father's two daughters and the father's

daughter, Katori's half-sister. Videotape depicted the father

choking, punching, and knocking down the half-sister and

threatening her and the mother. Another videotape depicted the

father choking the mother and banging her head against the wall

in the presence of several of the children. 3

In addition, a July 2018 51A report alleged that the half-

sister had revealed that the mother had punched the half-sister

on her thighs and arms, leaving bruises; pushed her into

furniture; and that the half sister had witnessed the mother

hitting other half-siblings and the family dog. It also alleged

that the half-sister had made suicidal statements to the father,

who never took steps to have her evaluated by appropriate crisis

professionals. Ultimately, the father was charged criminally

with assault and battery when the half-sister disclosed that the

3 In one of the 51A reports, the mother admitted to the
social worker that the father had choked the half-sister.

4
father had punched, slapped, and pushed her head into a

refrigerator, and that she required staples to stop the

bleeding. He was later acquitted.

The children were removed from the home on June 21, 2018.

The department remained involved with the mother and the father

throughout 2019,investigating abuse and neglect allegations as

well as implementing action plans to assist the family. In

April of 2022, however, the mother and father's parental rights

of the two other children they shared were terminated.

Two days after Katori's birth, a 51A report was filed

alleging that the child was at risk of neglect and physical

abuse. The department investigated and found that although

Katori had been in the home for only three hours, she smelled

severely like smoke and urine, and a dirty pack and play that

was filled with clothes, belts, tools, and other unsafe items

was the planned sleeping location for Katori. The department

supported allegations of neglect by the mother and the father

due to the significant history of allegations of abuse, neglect,

and domestic violence, and removed Katori from the home.

Although the initial plan was for permanency through

reunification, the goal later changed to adoption.

Trial occurred on January 10, 2023, and continued for six

non-consecutive days concluding on April 13, 2023. The trial

judge heard from seven witnesses and 108 exhibits were

5
introduced into evidence. In a detailed written decision, the

judge made 291 findings of fact and 45 conclusions of law,

finding that the parents had not meaningfully participated in

their action plans or otherwise addressed their histories of

substance misuse, domestic violence, and abuse and neglect of

their older children such that the judge could conclude that

they would provide acceptable care for Katori. The judge found

that the parents failed to demonstrate improved parenting skills

or an understanding of the potential impacts of domestic

violence on Katori should she be returned to them. The judge

concluded that the mother and the father were unfit and that the

child's best interests were served by the termination of

parental rights.

Discussion. 1. Standard of review. "To terminate parental

rights to a child, the judge must find, by clear and convincing

evidence, that the parent is unfit and that the child's 'best

interests will be served by terminating the legal relation

between parent and child.'" Adoption of Luc, 484 Mass. 139, 144

(2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). The

department bears the burden of proof as to both unfitness and

the child's best interests. See Care & Protection of Erin, 443

Mass. 567, 571 (2005). "While a decision of unfitness must be

supported by clear and convincing evidence, . . . a judge's

findings will be disturbed only if they are clearly erroneous."

6
Adoption of Paula, 420 Mass. 716, 729 (1995). "A finding is

clearly erroneous when there is no evidence to support it, or

when, although there is evidence to support it, the reviewing

court is left with the definite and firm conviction that a

mistake has been committed" (quotation and citation omitted).

Adoption of Rhona, 57 Mass. App. Ct. 479, 482 (2003).

2. Unfitness and termination of parental rights. The

mother and the father each challenge the judge's determination

of unfitness. Parental 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). "It is well established that

exposure to domestic violence works a 'distinctly grievous kind

of harm' on children, . . . and instances of such familial

violence are compelling evidence for a finding of parental

unfitness." Adoption of Talik, 92 Mass. App. Ct. 367, 374

(2017), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).

"A judge may properly consider a parent's decision to remain in

a relationship with an abusive partner in determining parental

fitness." Adoption of Jacob, 99 Mass. App. Ct. 258, 265 (2021).

We need not detail the parents' failings and actions set

forth at length in the judge's comprehensive findings of facts.

The evidence more than supported findings of unfitness of both

7
the mother and the father as both had issues with untreated

substance misuse, mental health, and domestic violence. The

trial judge carefully considered and chronicled the long history

of domestic violence between the mother and the father, and that

at times the violence extended to the older children. The trial

evidence included a videotape of violent physical abuse of

Katori's half-sister by the father while the mother was present

but did not intervene. It also included two videotapes in which

the father violently assaulted the mother in the presence of the

children as well as other documented reports of physical abuse

and neglect of the children. It was appropriate for the judge

to consider the evidence of a decade's worth of abuse that

occurred in the family when determining parental fitness.

"[P]hysical force within the family is both intolerable and too

readily tolerated, and . . . a child who has been either the

victim or the spectator of such abuse suffers a distinctly

grievous kind of harm." Adoption of Garret, 92 Mass. App.

Ct.664, 671 (2018), quoting Custody of Vaughn, 422 Mass. 590,

595 (1996). Further, the judge found that "neither [the mother

or the father] have demonstrated any understanding of how their

perpetuation of a chaotic household filled with dysfunction and

domestic violence impacted their older children and would impact

[Katori] should she be returned to their care."

8
As to the father's unfitness, the evidence of abuse in the

records and depicted in the videotape evidence amply supported

the judge's findings that the father physically abused the

mother and the half-sister. Although the father offered

explanations that he grabbed the mother by the neck because she

was attempting to swallow a large amount of pills and that his

grabbing of the half-sister was play fighting rather than real

violence, the judge was not required to credit these

explanations. Nor was the judge required to accept the father's

explanation that, on a different occasion, he did not punch the

half-sister and bang her head into the refrigerator but rather

that the child slipped in the kitchen and accidentally hit her

head. And, although the mother denied that the father was

physically violent towards her or the children, the judge "was

not obliged to believe the mother's testimony" (citation

omitted). Custody of Eleanor, 414 Mass. 795, 800 (1993). The

judge made numerous findings, none of which are contested,

describing an environment in which the father was physically and

verbally abusive to the mother and both the mother and the

father were physically and verbally abusive to, and neglectful

of their children. The father failed to meaningfully engage in

the department's plan to address his deficiencies. For example,

he refused engage in a substance misuse program, and, since

2021, has failed to engage with an individual counselor. The

9
father first admitted and then later denied being physically

abusive to the mother and the children and engaged in domestic

violence programming only geared toward being a victim and not a

perpetrator of domestic violence. At times, the father refused

to allow the department to conduct home visits, failed to gain

insight into his behaviors after attending a father's group, and

failed to have meaningful interaction with Katori during

supervised visitation.

The mother claims that, while she may have had

shortcomings, the judge failed to consider her current fitness

and instead relied upon past incidents of neglect and abuse.

Specifically, the mother argues that instead of basing a

decision based upon the significant changes she had made in her

life, the judge ignored or did not properly consider her

sobriety, stable employment, and engagement in domestic violence

programming. We disagree, as many of the mother's arguments

"amount to no more than a disagreement with the judge's weighing

of the evidence and credibility determinations regarding

witnesses." Adoption of Don, 435 Mass. 158, 166 (2001).

Contrary to the mother's claim, the judge did not ignore

evidence favorable to the mother. The judge acknowledged that

the mother had engaged in some treatment and that she was now

employed full-time. The judge also credited the mother with

being "overall consistent" in her attendance at visits with

10
Katori. However, despite a self-reported sobriety date of 2019,

the mother did not provide drug screens or prepare a relapse

prevention plan to support her claim of sobriety. Moreover,

while the mother had participated in individual therapy until

2021, she had not reengaged in therapy despite a referral by the

department. The judge did fairly consider what the mother had

accomplished, but, "[e]ven where a parent has participated in

programs and services and demonstrated some improvement, we rely

on the trial judge to weigh the evidence in order to determine

whether there is a sufficient likelihood that the parent's

unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60.

See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019)

(parent's failure to benefit from services "relevant to the

determination of unfitness" [citation omitted]). In making the

determination of unfitness, the judge did not err in concluding

that the mother's failure to engage in and complete treatment

for the very issues that resulted in her separation from her

child (domestic violence, substance misuse, lack of parenting

skills, untreated mental health) supported the conclusion that

the Katori would be subject to abuse and neglect if she were

reunited with the mother.

In short, both parents had significant shortcomings, and

neither parent took sufficient steps to change their behavior.

The evidence was clear and convincing and amply supported the

11
judge's determination that both the mother and the father were

unfit to parent Katori and that their unfitness was not

temporary.

3. Reasonable efforts. For the first time on appeal, the

mother claims that the department failed to take reasonable

steps to reunify her with Katori. "Before seeking to terminate

parental rights, [the department] must make 'reasonable efforts'

aimed at restoring the child to the care of the . . . parents"

(citation omitted). Adoption of Uday, 91 Mass. App. Ct. 51, 53

(2017). A judge's decision that the department has made

reasonable efforts will not be overturned unless it is clearly

erroneous. Adoption of Ilona, 459 Mass. at 62. "It is well-

established that a parent must raise a claim of inadequate

services in a timely manner." Adoption of West, 97 Mass. App.

Ct. 238, 242 (2020), quoting Adoption of Daisy, 77 Mass. App.

Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). The time to

make such a claim is either when the parenting plan is adopted

or when the parent receives the services. See Adoption of West,

supra.

The mother did not raise her claim of inadequate services

in a timely fashion as she had filed a "no reasonable efforts"

motion in the trial court but withdrew it just two weeks later.

However, even if the claim had been preserved, the claim must

fail on the facts of this case. Here, the department created

12
six separate action plans designed to facilitate the mother in

changing her approach to parenting her child, including

addressing the pattern of domestic abuse she had suffered and

appreciating its harmful impact on her children. The mother has

failed to articulate how, even though she did not avail herself

of most of the services offered, the department has failed to

provide reasonable efforts at reunification. 4 In short, there

was no error in the judge's determination that the department

made reasonable efforts.

4. Evidentiary rulings. The father contends that the

judge erred in admitting multilevel hearsay contained in the

department's report relating to the abuse of Katori's half-

sister. At trial, the department introduced a DCF report in

which half-sister admitted that she lied at the father's

criminal trial when she testified that the father did not hit

her. In the report, the half-sister confirms that the father

had in fact hit her but that the father had threatened to reduce

his visitation time with her if she did not testify at trial

that the two were play-fighting. The father's trial counsel

attempted to introduce the trial transcript of the criminal

To the extent that mother suggests that the department
4

acted too quickly in removing Katori without making "reasonable
efforts" to keep mother and child together, this issue is not
properly before us as it was not raised at the emergency removal
hearing.

13
trial in which the half-sister testified that the father did not

abuse her. The trial judge denied the admission of this

evidence, but specifically told counsel that the evidence could

be admitted if the half-sister was called to testify. The

hearsay statement contained in the DCF report was admissible

because the hearsay statement was from a person who was both

identified and available for cross-examination. See Adoption of

Luc, 484 Mass. at 152. The trial judge properly admitted the

hearsay evidence and then guided counsel for the father how to

properly introduce the evidence that half-sister had testified

at a criminal proceeding that the father had not assault her.

The judge was correct in ruling that the trial transcripts from

the criminal trial were not admissible to rebut the DCF report,

but that the testimony was admissible if counsel called the

half-sister to testify. The father chose not to call the half-

sister and cannot now complain about his trial strategy. To the

extent that the father claims that the Supreme Judicial Court,

in Adoption of Luc, supra, improperly shifted the burden of

proof from the department to the parents by allowing the

department to engage in an unchecked "document dump," we are

unpersuaded.

5. Criminal history of the father. Finally, the father

claims that the trial judge erred in (1) relying on criminal

charges that he assaulted the half-sister because he was found

14
not guilty of those charges, and (2) relying on open charges of

intimidation of a witness because the judge mistakenly believed

the charge involved intimidation of the half-sister.

First, the father has offered no relevant caselaw to

support his position that a finding of not guilty in a criminal

trial requires a judge to ignore the underlying factual evidence

that may be relevant to a determination of parental fitness. In

fact, the cases cited by the father are inapposite. See Care &

Protection of Frank, 409 Mass. 492, 494 (1991) (testimony of a

police officer and a police report detailing observations of

mother's conduct properly admitted even though one of two

criminal charges was dismissed). In Care & Protection of Frank,

supra at 496, the mother also objected to the admission of a

police report describing her as intoxicated and boisterous, and

describing the apartment as 'a complete mess,' because the

report constituted "evidence of criminal conduct" used to prove

the mother's unfitness. The Supreme Judicial Court disagreed.

Even if the police report contained evidence of uncharged

criminal conduct, the court decided that it was still admissible

because it contained personal observations by a police officer

relevant to the mother's parental fitness. Id. at 497-498. In

sum, our cases do not prohibit a judge from assessing underlying

conduct that forms the basis of a criminal prosecution if it

bears on the determination of fitness. Furthermore, given the

15
multitude of factors the judge considered when determining the

father's ability to parent his child, the father's single

criminal charge did not play a prominent factor in the analysis.

Lastly, the father argues that the judge erred in finding

that, at the time of trial, the father had an open charge of

intimidating half-sister by pressuring her to lie at his

criminal trial. In fact, the open intimidation of a witness

charge was not related to half-sister and this one particular

finding of fact is in error. However, this one error does not

result in the nullification of 290 other findings of fact which

were properly found by the judge. In particular, the judge

credited evidence that the father had intimidated the half-

sister to lie at his criminal trial, and that half-sister later

recanted this testimony and again asserted that the father had

physically abused her and threatened her. The judge's fleeting

reference to an open charge of witness intimidation and mistaken

16
connection to the half-sister, when considered in light of all

of the factual findings, was harmless.

Decrees affirmed.

By the Court (Meade, Walsh &
Smyth, JJ. 5),

Clerk

Entered: December 11, 2024.

5 The panelists are listed in order of seniority.

17