ADOPTION OF YAELIN (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

25-P-273

ADOPTION OF YAELIN (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, a judge issued

decrees finding the mother unfit to parent her two younger

children, terminating her parental rights, and approving the

adoption plan proposed by the Department of Children and

Families (department). On appeal, the mother claims that the

department failed to prove by clear and convincing evidence that

she is unfit or that the termination of her parental rights

served the younger children's best interests, and that the judge

made several erroneous findings that infected the unfitness and

termination determinations. We affirm.

1Adoption of Noah. Having reached the age of majority
during the proceedings, the mother's oldest child, Dani, was
dismissed from the petition, and therefore is not a subject of
this appeal. The children's names are pseudonyms.
Background. We summarize the relevant facts as found by

the judge, who issued comprehensive, detailed findings of fact

and conclusions of law. The oldest child turned eighteen during

trial, and the younger children were eleven and seven. The

department first became involved with the family in 2004 after

receiving a report filed pursuant to G. L. c. 119, § 51A (51A

report2), alleging neglect of Dani. After multiple 51A reports

were filed, Dani was removed from the mother's care three times,

Yaelin was removed twice, and Noah was removed once. At the

time of trial, Yaelin had recently been placed in the same

foster home as Noah.3 Yaelin and Noah both want to be adopted,

and Noah's foster parents are committed to adopting him.4

The children were removed from the mother's custody in

March 2019 due to a constellation of factors including untreated

mental health issues, substance misuse, housing instability,

domestic violence in the home, and the children missing several

school days and doctors' appointments.

2 In total, twenty-six 51A reports were filed and thirteen
G. L. c. 119, § 51B, investigations were conducted.

3 Yaelin was in a child-specific preadoptive placement, but
ongoing behavioral issues escalated, and her foster parents
asked the department to find her a new placement.

4 Noah's foster parents had not made a commitment to adopt
Yaelin when the judge issued her decision.

2
The mother had been in several abusive relationships and

had allowed her partners, and other acquaintances, to live in

her home with the children. Dani was the victim of physical

abuse by her mother's partners and, along with her siblings,

witnessed physical abuse of the mother. After the children's

removal in March 2019, the mother engaged in services

recommended by the department but continued to allow

acquaintances to live in her home, knowingly putting

reunification at risk.

Around May 2020, the mother disclosed to the department

that she was in a relationship with a woman (partner) whom she

had met at a substance abuse treatment program. The two began

living together; although the partner was cooperative with the

department, she was unwilling to participate in family therapy

until the eve of trial. Dani reported that the partner was

occasionally violent and would throw her cellphone when

frustrated with the mother, testimony credited by the judge.

Dani left her placement with the maternal grandmother after

an argument with her and resided with the mother and her partner

from November 2021 to March 2022. When Dani first returned to

her mother's home, things went well, but over time, that

changed. When the partner was upset with Dani, she would yell

at her and take away Dani's cellphone, iPad, and laptop,

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consequently denying her access to her social worker and

attorney. Additionally, Dani slept in the living room of the

mother's apartment and had limited privacy.

On March 28, 2022, the mother took Dani to the hospital

because Dani had threatened to hurt herself. Dani reported that

she felt unsafe at home, and that her mother and partner would

scream at each other and the partner punched a hole in the

apartment wall. Dani felt that the mother did not try to keep

the home safe and ignored Dani when Dani struggled with her

mental health; the mother, the judge found, was unwilling to

believe Dani's concerns were legitimate and failed to respond

appropriately until Dani "was in crisis." Dani did not return

to the mother's home after she was discharged from the hospital.

The judge found that the mother's treatment of Dani was some

evidence of her unfitness to care for the younger children.

Ultimately, the judge found that the department met its

burden, concluding that the mother did not understand the role

her domestic relationships played in affecting her parenting,

and she has continued to prioritize her relationships over her

children. The judge explained that although the mother had

engaged in services, she had not shown that she could implement

the skills she learned, as evidenced by her failed reunification

with Dani. For these reasons, the judge found that

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reunification was not in the best interests of the younger

children, and the mother's unfitness was likely to continue for

the foreseeable future.

Discussion. 1. Standard of review. "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 child's best

interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606

(2012). On appeal, "[w]e give substantial deference to a

judge's decision that termination of a parent's rights is in the

best interest[s] 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).

2. Unfitness. The mother argues that the judge erred in

finding that she was still in a cycle of domestic violence

relationships, was unwilling or unable to engage in family

therapy, was unable to obtain services for her children or meet

their needs, that her housing stability was at risk, and that

she was not in stable recovery from her substance use disorder.

However, these subsidiary findings, included among the judge's

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300 findings of fact and twenty conclusions of law, find ample

support in the record and are not clearly erroneous.5

The mother also contends that the judge erred in unduly

relying on Dani's testimony. We are not persuaded. Although

parental fitness must be assessed for each child, "a judge may

rely upon a parent's past conduct with regard to older children

to support a finding of current unfitness as to a different

child, so long as that evidence is not the sole basis for the

judge's unfitness determination." Adoption of Luc, 484 Mass.

139, 145 (2020). Past parental conduct is relevant to current

parental fitness where the evidence supports a continuing

pattern of the conduct which has led to the removal of other

children "and the [past] conduct was not too remote." Adoption

of Larry, 434 Mass. 465, 469 (2001).

Here, Dani's testimony about the failed reunification three

months before trial was evidence of the mother's most recent

parenting, including the missed opportunity to demonstrate

improvement, as well as the mother's continuing parenting

5 Even if the judge's finding that the mother did not engage
in parenting classes was clearly erroneous, the error was not
central to the ultimate conclusion of unfitness or the
termination decisions. See Adoption of Ilian, 91 Mass. App. Ct.
727, 730 (2017). Indeed, as we noted above, the judge
acknowledged the mother's substantial compliance with her
service plan tasks, but found, with support in the record, that
the mother had been unable to implement the skills she had
gained.

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deficits. Although the mother argued that Dani's testimony was

not credible, a judge's finding on witness credibility is

"quintessentially the domain of the trial judge [so that (her)]

assessment is close to immune from reversal on appeal except on

the most compelling of showings." Prenaveau v. Prenaveau, 81

Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38

Mass. App. Ct. 531, 536 (1995). The judge was in the best

position to determine credibility, and did not err in crediting

Dani's testimony. See id.

The mother next argues that the finding that she is still

in a relationship that involves domestic violence is erroneous

because the only evidence of current abuse is Dani's testimony.

Family violence is relevant to a judge's determination of

parental unfitness because "witnessing domestic violence, as

well as being one of its victims, has a profound impact on

children." Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015),

quoting Custody of Vaughn, 422 Mass. 590, 599 (1996). While it

is true that "[i]solated problems in the past or stale

information cannot be a basis for a determination of current

parental unfitness" (citation omitted), Adoption of Rhona, 57

Mass. App. Ct. 479, 487 (2003), past incidents of neglect may be

considered "to predict future ability and performance."

Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997). The

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judge properly considered the mother's pattern of abusive

relationships and Dani's eyewitness account of what occurred

recently in the mother's home.

Dani's testimony was not the sole basis of the judge's

unfitness determination. The judge also found that the mother's

partner had no interest in family therapy, and although the

mother did show a willingness, family therapy would not be

useful without the partner. The judge also found that the

mother's failure to act when Dani told her that she was

struggling with her mental health was evidence that the mother

was unable to meet the needs of the children.

Additionally, the judge found that while the mother's

housing had stabilized, her financial reliance on her partner

for most living expenses, given their "tumultuous at best"

relationship, raised concerns about the risk of future housing

instability. The judge did not credit the mother's testimony

that she became sober in December 2020 as it conflicted with her

treatment records and her partner's testimony. Although the

mother had been substance free since January 2022, the judge

found that she was unable to maintain consistent and candid

reporting about her substance misuse or to plan for the

children's safety in the event of relapse, which, the judge

found, had occurred during the pendency of the case. The

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judge's findings that the mother remained unfit to parent Yaelin

and Noah at the time of trial and that the unfitness was likely

to continue indefinitely were well supported by the subsidiary

findings.

3. Best interests of the children. The termination of

parental rights must be in the best interests of the children,

which "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 determining

whether the best interests of the child[ren] will be served by

issuing a decree dispensing with the need for consent" to

adoption, "the court shall consider the ability, capacity,

fitness and readiness of the child[ren]'s parents . . . to

assume parental responsibility, and shall also consider the plan

proposed by the department . . . ." G. L. c. 210, § 3 (c).

The judge found that although the mother participated in

some services, ultimately, her parenting skills were not

improved to the point that she was able to "assume parental

responsibility" of Yaelin and Noah. As an example, during

supervised visits, the mother was repeatedly asked by the

department to not bring certain food items due to the children's

medical issues, but chose not to follow those directives.

During one visit, the mother told Noah it was okay for him to

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eat an item on the prohibited foods list, leading to postvisit

vomiting. Noah often had behavioral struggles before and after

visits. Indeed, Noah's teacher noticed a change in his behavior

on days that he visited the mother. And, Yaelin experienced

anxiety and would become physically ill before visits.

The children's emotional health has improved since their

removal. Yaelin has shown improved behavior and pride in

herself. Noah's behavior and development have also improved.

The judge properly took "into account the child[ren]'s condition

while living with [their] mother as contrasted with [their]

development after removal from her care." Adoption of Terrence,

57 Mass. App. Ct. 832, 835 (2003).

Although the mother has made some strides, the evidence

supports the judge's conclusion that, since March 2019, the

mother has been "unable to properly parent these children," and

has failed to demonstrate the understanding and commitment that

would be required to do so. The children want to be adopted and

are entitled to permanency. While a child's preference is not

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dispositive, it is a factor the judge can consider. See

Adoption of Nancy, 443 Mass. 512, 518 (2005).

Decrees affirmed.

By the Court (Blake, C.J.,
Henry & Hershfang, JJ.6),

Clerk

Entered: November 18, 2025.

6 The panelists are listed in order of seniority.

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