ADOPTION OF ADRIAN (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

24-P-1056

ADOPTION OF ADRIAN (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The three parents involved in this case appeal from decrees

issued by a Juvenile Court judge terminating their parental

rights to two children. We conclude that there was adequate

evidence of parental unfitness for all three parents, based on

all parents' persistent domestic violence, all parents'

inconsistent and inappropriate visitation, substance use issues

for the mother and one of the fathers, and untreated mental

health problems and housing instability for the mother, all of

which placed the children at unacceptable risk. Although the

conduct of the trial was imperfect, the trial judge neither

prejudged the credibility of the witness nor exhibited bias.

1Adoption of Idra. The children's names are pseudonyms.
The children supported the termination of parental rights in the
Juvenile Court and continue to do so on appeal.
Finally concluding that the other issues raised in this appeal

lack merit, we affirm.

1. Background. a. Domestic violence. The father of

Adrian (father 1) and the mother have an "extensive history of

physical and verbal domestic violence." Both have been

perpetrators and victims. The judge's findings in this regard

are well supported by the testimony and records submitted during

the trial. The father of Idra (father 2) has a history of

domestic violence against the mother, to the point where

father 2 was sentenced to eleven months of incarceration for

assault and battery on the mother and her friend while the

mother was pregnant. Again, the judge's findings in this regard

are well-supported by the testimony and records submitted at

trial.

All three parents have not adequately participated in

domestic violence services, despite the recommendations of the

Department of Children and Families (DCF). The mother has

inconsistently sought domestic violence counseling. Throughout

2022, despite repeated referrals and recommendations from

clinicians and DCF, the mother refused to engage in individual

therapy or group trauma-based therapy services. In July 2022,

she reported that she was engaging in an out-of-state virtual

domestic violence group class, but DCF could not confirm her

participation in this program or assess her progress.

2
Similarly, neither father 1 nor father 2 has meaningfully

participated in domestic violence counseling or any intimate

partner abuse education programs despite DCF recommendations.

b. Visitation. During visits, the mother "displayed

indifference" towards the children, arrived unprepared without

"diapers, toys and food," and was often observed "not

interacting" with the children. On two occasions, she appeared

visibly intoxicated when she visited the children. On several

occasions, the mother let Idra wander outside the visiting room

unsupervised.

Father 1's visits with Adrian were frequently limited or

cut short because of his inappropriate behavior. During one

visit, father 1 made "inappropriate, sexual comments" towards a

social worker and, at other visits, used vulgar language in

front of the child. In July 2020, father 1 threatened the

foster parents during a visit. In May 2021, at a supervised

visit, father 1 disparaged DCF social workers in front of the

child. In February 2022, father 1 recorded a TikTok video of

Adrian during a visit in which he stated that Adrian was

"imprisoned" in the DCF office. In May 2022, father 1 appeared

intoxicated during one of his visits.

In July 2020, father 2 contacted DCF and requested

involvement in Idra's case but did not establish paternity until

3
October 2021.2 In March 2021, father 2 received his first action

plan from DCF. Between October 2021 and April 2022, father 2

attended twelve to sixteen visits with the child. His

supervised visits ended, however, in April 2022 when he fled

Massachusetts after violating a bail agreement. Father 2 has

not visited the child since April 2022.

c. Other issues. The mother has struggled with housing

instability since 2001. From 2010 to 2019, she lived with

father 1. In 2020, the mother changed residences several times,

living with numerous different individuals. At the conclusion

of trial, the mother was living with her aunt and "had yet to

obtain stable housing."3

The mother has been diagnosed with bipolar disorder,

depression, post-traumatic stress disorder (PTSD), and alcohol

use disorder. She has not consistently engaged in individual

therapy or a medication regimen despite "numerous

recommendations and referrals" from DCF. The mother has not

engaged in any treatment for her bipolar disorder or sought

psychiatric treatment in over ten years. In August 2017, she

started therapy but was formally discharged from the program in

2 Father 2 was incarcerated at least some of this time.

3 By contrast, father 1 obtained a one-bedroom apartment in
2023.

4
2018. She sought treatment again in March 2020 but participated

in treatment so inconsistently that she had to reenroll in the

program on several occasions. At trial, the mother claimed she

attends virtual group sessions to treat PTSD but her

participation in this program had not been verified.

The mother has a history of using "alcohol, crack cocaine,

heroin, and opiate-based prescription medication." She tested

positive for cocaine in 2017, after she gave birth to Adrian,

and in 2020, two days before giving birth to Idra.4 The mother

overdosed on three separate occasions from March 2019 to March

2020, including once when she was pregnant with Idra. From 2021

to 2023, she tested positive for opiates on several occasions

and appeared intoxicated in front of police and DCF workers. At

trial, the mother was unable to explain her recent positive drug

tests and seemed not to understand how her substance use

contributed to the removal of the children.

Father 1 has been diagnosed with opioid dependency and

alcohol dependency. In February 2017, when the mother was

pregnant, father 1 overdosed on heroin. Father 1 engaged in

substance use treatment services in 2017 but stopped in 2018.

On March 3, 2021, father 1 was arrested and charged with

possession of narcotics. At trial, he testified that he did not

4 The mother refused to take a drug test when she gave birth
to Idra.

5
believe he had any problems with substance use. None of the

three parents completed the tasks in any of their multiple

action plans.

2. Termination of parental rights. a. 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). Parental unfitness must be 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 Garret, 92 Mass. App. Ct. 664, 671 (2018), quoting

Adoption of Mary, 414 Mass. 705, 711 (1993).

b. Termination of the mother's parental rights. The

mother's persistent involvement in relationships filled with

domestic violence, both as a victim and a perpetrator, is a

significant basis for finding her unfit. See Adoption of Jacob,

99 Mass. App. Ct. 258, 262 (2021) ("Domestic violence may

imperil a child's physical safety and psychological

development"). There were numerous incidents where father 1

struck her and incidents where she struck father 1, including

6
one time with a hammer. She falsely stated that the

relationship ended in 2019, even though she had been observed

kissing and embracing father 1 in 2022. Similarly, she stayed

in a relationship with father 2 despite repeated incidents of

violence by him. She falsely stated at trial that she was not

in contact with father 2.

The mother has failed to address her history of domestic

violence. Despite numerous referrals from DCF, the mother

failed to participate consistently in domestic violence

counseling programs. See Adoption of Zak, 87 Mass. App. Ct.

540, 544 (2015) (parents' lack of engagement with domestic abuse

counseling supported finding of unfitness). Similarly, the

mother's ongoing contact with both father 1 and father 2 is

"probative of her inability to protect herself and her children

from future abuse." See Adoption of Jacob, 99 Mass. App. Ct. at

265.

Furthermore, the mother "displayed inappropriate behavior

in front of or towards the subject children" during supervised

visits. The mother failed to bring diapers or toys for the

children, despite numerous reminders, and "displayed an

unwillingness to engage with her children." She repeatedly

allowed one of the children to wander around unsupervised. The

mother's demonstrated failure to care appropriately for the

children during visits supported a finding of unfitness. See

7
Adoption of Rhona, 63 Mass. App. Ct. 117, 122 (2005) (finding

that mother's lack of engagement with child during visit

contributed to lack of bonding).

In addition, the mother's substance misuse would place the

children at a significant risk of harm. Although the mother

testified that she has been sober since 2013, she has overdosed

three times since then, including while pregnant, and tested

positive for opiates several times between 2021 and 2023. A

history of substance misuse alone is not enough to establish

parental unfitness, but a parent's unwillingness to engage in

treatment is an important consideration. See Adoption of Elena,

446 Mass. 24, 32-33 (2006). Here, the mother engaged only

intermittently in treatment and once appeared intoxicated while

visiting the children. Additionally, the mother does not appear

to understand that her issues with substance misuse affect her

ability to parent. See Adoption of Luc, 484 Mass. 139, 147

(2020) (failing to engage in treatment and not recognizing need

for treatment speaks to parental fitness where it "inhibits

parent's ability to provide minimally acceptable care").

The mother has persistently struggled with housing

instability. She had not had stable housing since 2001 and had

not secured her own stable housing by the time of trial. This

contributed to her unfitness. See Adoption of Anton, 72 Mass.

8
App. Ct. 667, 676 (2008) (inability to secure adequate and

stable housing properly considered in fitness determination).

Finally, untreated mental disorders that affect a parent's

ability to care for a child may support a finding of parental

unfitness. Adoption of Leonard, 103 Mass. App. Ct. 416, 423

(2023). Here, despite numerous recommendations, the mother has

not meaningfully participated in any treatment that would

address her mental health needs. The mother has not followed a

medicine regimen in over ten years. Additionally, even though

the mother has been diagnosed with PTSD in part because of the

trauma she has suffered through domestic violence, she did not

meaningfully engage in domestic violence support groups or

classes. Instead, the mother continued to maintain unhealthy

relationships with father 1 and father 2. The judge properly

found that the mother's inability to address her mental health

needs or distance herself from unhealthy relationships

contributed to her unfitness.

c. Termination of father 1's parental rights. As stated,

father 1 has an "extensive history of physical and verbal

domestic violence" with the mother. Despite this troubling

history, he refused to engage in domestic violence counseling.

His history of domestic violence is a powerful factor supporting

the finding of parental unfitness. See Adoption of Talik, 92

Mass. App. Ct. 367, 374 (2017) ("instances of such familial

9
violence are compelling evidence for a finding of parental

unfitness").

Father 1 has also failed to engage in substance use

treatment. See Adoption of Elena, 446 Mass. at 32-33. Father 1

has not sought treatment since 2018 despite recommendations from

DCF. Father 1 visited the child while intoxicated and was

arrested for possession of narcotics.

Finally, father 1 frequently behaved inappropriately

towards DCF staff and Adrian during his supervised visits by

making "inappropriate, sexual comments" towards a social worker

during a visit and using vulgar language in front of the child.

Father 1 would frequently talk about case matters and would

disparage DCF and his social worker. In other visits, father 1

claimed the child was "imprisoned" by DCF and threatened the

foster parents. In addition to his behavior towards staff,

father 1 refused to engage in any services that DCF recommended.

Father 1 did not seek substance use treatment after 2018.

Father 1 additionally never meaningfully participated in

domestic violence counseling or education programs. The father

"was given multiple opportunities over the course of years to

demonstrate that [he] could provide [the child] a safe and

stable home, and [he] failed to do so." Adoption of Knox, 102

10
Mass. at 94. We discern no error in the judge's weighing of the

evidence of father 1's fitness.5

4. Judicial conduct. a. Prejudging witness credibility.

It is well established that "the finder of fact must keep an

open mind until all the evidence is presented and both sides

have rested." Adoption of Tia, 73 Mass. App. Ct. 115, 121-122

(2008). If a judge "reaches a decision on an issue of fact

before the testimony of that issue is complete . . . [he] has

deprived the party of [her] right to a full and fair hearing."

Adoption of Georgia, 433 Mass. 62, 64-65 (2000), quoting Preston

v. Peck, 271 Mass. 159, 164 (1930).

At trial, both the mother and father 1 were asked about the

timeline of their relationship. Although the mother and

father 1 each testified that the relationship ended years

before, multiple DCF reports and a police report showed that

their relationship continued until at least 2022. In one

guardian ad litem report, a social worker recounted that the

mother and father 1 were kissing on the steps of the courthouse

in February 2022. The report was admitted into evidence at the

start of trial.

When asked about the report, the mother testified that she

did not kiss father 1 in front of the courthouse. The judge

5 Father 2 does not challenge the termination of his
parental rights on appeal.

11
asked the mother, "You're saying that [the social worker is]

going to come up here and lie about that?" The judge stated,

"it's hard for me to imagine the social worker, who has no gain

in this case whatsoever, is going to come up here and lie under

oath." When the mother stated that the social worker had "lied

about many reports," the judge responded, "we'll see if you can

prove it."

To be sure, these statements were not proper. The judge

could not determine the likely credibility of the social

worker's testimony without hearing it, and a witness should

never be asked to opine on the credibility of another witness's

testimony. See Commonwealth v. Quinn, 469 Mass. 641, 646

(2014); Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 2 (2019);

White v. White, 40 Mass. App. Ct. 132, 142 (1996). Nonetheless,

the judge's statements must be read in context of the entire

trial. See Adoption of Georgia, 433 Mass. at 65 (finding that

judicial conduct was proper when read in context of whole

trial). The judge already had access to the March 2022 guardian

ad litem report. See Adoption of Larry, 434 Mass. 456, 464

(2001) (judge may consider evidence outside of mother's

testimony when determining credibility). It is evident that the

judge's goal was to warn the mother against taking an

unconsidered position before it was too late to turn back.

12
The judge's actions later in the trial demonstrated that he

did, in fact, keep an open mind. When DCF's counsel asked

father 1 about the same events outside the courthouse, the judge

sustained father 1's counsel's objection, stating father 1 "has

clearly said he did not embrace or kiss [the mother] and if [the

social worker] saw something different, we'll hear from him, and

the Court will determine credibility." Accordingly, despite the

judge's inartful words, he kept an open mind about the matter

until he heard from all of the witnesses. In this context, the

judge's comments did not "reflect premature conclusions, but

rather, preliminary thoughts on witness credibility." Adoption

of Doretta, 101 Mass. App. Ct. 582, 596 (2022).

b. Judicial bias. "It is well established that a judge in

this Commonwealth may question witnesses to clarify and develop

evidence and to avert perjury." Commonwealth v. Watkins, 63

Mass. App. Ct. 69, 74 (2005). "A judge may properly participate

in the questioning of a witness so long as the questioning is

not partisan in nature." Commonwealth v. Lucien, 440 Mass. 658,

664 (2004). Generally, "we have not favored except in

extenuating circumstances the takeover of questioning by a judge

during the course of trial." Adoption of Norbert, 83 Mass. App.

Ct. 542, 547 (2013), quoting Commonwealth v. Campbell, 371 Mass.

40, 45 (1976).

13
Here, DCF was asking the mother about her twin sister's

calling the police to report that father 1 had assaulted the

mother. The mother reported that her sister "was on drugs" at

the time but could not provide the date. She then started

testifying about a conversation she had with her sister and

identified it as occurring on March 19, 2019. The judge asked

the mother how she could remember a conversation from 2019 when

she "didn't remember something five minutes ago from six months

ago." When the mother confirmed that she "remembered most" of

her conversations with her sister, the judge then asked the

mother a number of questions seeking details about March 19,

2019.

Although the judge's frustration with the mother's

testimony is understandable, this line of questioning strayed

from clarification to impeachment. See Adoption of Norbert, 83

Mass. App. Ct. at 546. The mother, however, raised no objection

nor asked for the judge's recusal or any lesser corrective

action. See Adoption of Flora, 60 Mass. App. Ct. 334, 340 n.10

(2004) ("We recognize that ordinarily issues not raised at trial

are not considered on appeal absent special circumstances").6

6 Further, as we have previously held, "there is no basis
for reviewing unpreserved errors in a care and protection case
for a substantial risk of a miscarriage of justice." Adoption
of Doretta, 101 Mass. App. Ct. at 592 n.6.

14
Even if this issue had been properly preserved, we discern

no prejudice. The judge did not limit the mother's attorney's

questioning of witnesses. The mother was not prevented from

presenting relevant evidence nor did the judge solicit

inadmissible evidence. See Adoption of Norbert, 83 Mass. App.

Ct. at 547. The testimony in question was about a minor point.

Moreover, the evidence of the mother's unfitness was strong.

"Because the record contains ample support for the judge's

detailed (and uncontested) findings, which, in turn,

unequivocally support the judge's determination that the

termination of parental rights serves the best interests of the

children, we conclude that the error was harmless." Id. at 548.

See Adoption of Tia, 73 Mass. App. Ct. at 124 ("the evidence in

this case so substantially supported the judge's findings and

conclusion that the mistakes do not warrant reversal").

6. Father 1's other claims.7 Father 1 argues that the

trial court improperly considered hearsay evidence. "Service

plans, case reviews and foster care reviews kept as records of

[DCF] are admissible, with some limitations, as records of a

public agency." Adoption of Vidal, 56 Mass. App. Ct. 916, 916

(2002). These records fall under the hearsay exception that

7 Father 1, through appellate counsel, raises three
additional issues in his reply brief under Commonwealth v.
Moffett, 383 Mass. 201, 208 (1981), and Care & Protection of
Valerie, 403 Mass. 317, 318 (1988).

15
authorizes "admission [of] statements of primary fact, so long

as the hearsay source is specifically identified in the report

and is available for cross-examination, should the party

challenging the evidence request to do so." Adoption of Luc,

484 Mass. at 154. This rule also applies to police reports even

if no charges were brought or convictions secured. See Care &

Protection of Frank, 409 Mass. 492, 494, 497 (1991) (police

report properly admitted even though criminal charge were

dismissed).

Father 1 also raises the issue of ineffective assistance of

counsel. Trial counsel is ineffective if "the 'behavior of

counsel [fell] measurably below that which might be expected

from an ordinary fallible lawyer,'" and "'[counsel's conduct]

has likely deprived the defendant of an otherwise available

substantial ground of defence.'" Care & Protection of

Georgette, 439 Mass. 28, 33 (2003), quoting Commonwealth v.

Safarian, 366 Mass. 89, 96 (1974). "Absent exceptional

circumstances, we do not review claims of ineffective assistance

of counsel for the first time on appeal." In re Stephen, 401

Mass. 144, 150 (1987). Aside from suggesting that counsel

should have objected to nonspecific "evidence," the father

provides no description of what counsel should have done

differently or demonstration that it would have affected the

16
outcome of the case. Accordingly, he has failed to demonstrate

that he received ineffective assistance of counsel.

Finally, father 1 questions the jurisdiction of the

Juvenile Court in this proceeding. Under G. L. c. 119, §§ 24,

26 (b) (4); G. L. c. 218, § 59; G. L. c. 209B; and G. L. c. 210,

§ 3, the Juvenile Courts of Massachusetts have jurisdiction over

care and protection cases and termination of parental rights

cases within their respective districts. The Supreme Judicial

Court has held that, "[w]here a child 'is not receiving adequate

care and protection, the department [(DCF)] may file a petition

. . . to summons the child's parent "to show cause why the child

should not be committed to the custody of the department or why

any other appropriate order should not be made."'" Care &

Protection of Jaylen, 493 Mass. 798, 802-803 (2024), quoting

Care & Protection of Zeb, 489 Mass. 783, 785 (2022). Contrary

to father 1's argument, his case was decided by a duly-appointed

Juvenile Court judge, not an administrative judge. Whatever

natural rights father 1 has, the Juvenile Court has jurisdiction

over the custody of children living in Massachusetts and the

determination whether the parents are currently fit to parent

their children and whether the best interests of the child

require termination of parental rights. Custody of Victoria,

473 Mass. 64, 68-70 (2015). Accord G. L. c. 209B, § 2 (a) (1).

17
7. Posttermination visitation by father 2. "The decision

whether to grant posttermination visitation is within the

judge's sound discretion." Adoption of Cecily, 83 Mass. App.

719, 727-728 (2013). A two-part inquiry informs a judge's

decision to order visitation: "First, is visitation in the

child's best interest? Second, in cases where a family is ready

to adopt the child, is an order of visitation necessary to

protect the child's best interest, or may decisions regarding

visitation be left to the judgment of the adoptive family?"

Adoption of Ilona, 459 Mass. 53, 63 (2011). To determine

whether visitation is in the child's best interest, the judge

will consider "whether there is 'a significant, existing bond

with the biological parent' whose rights have been terminated."

Id. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563

(2000).

Here, the judge ordered that father 2 be provided with

annual reports about Idra's progress but did not mandate

visitation. We discern no abuse of discretion as the judge

properly concluded that there was no evidence of an existing

emotional bond between father 2 and Idra, and the record reveals

no "other circumstances of the actual personal relationship of

the child and the biological parent." See Adoption of Rico, 453

Mass. 749, 759 (2009), quoting Adoption of Vito, 431 Mass. at

562. Father 2 started visiting the child only in March 2021,

18
when she was fourteen months old. In total, father 2 visited

Idra twelve to sixteen times before he fled the state. By the

time of trial, father 2 had not visited the child in over a

year.

Father 2 argues that DCF offered him an open adoption

agreement with posttermination visits]. The judge, however, was

not bound by DCF's position or opinions, but rather had to

exercise his own discretion in deciding whether to order

posttermination visits. See Adoption of Terrence, 57 Mass. App.

Ct. 832, 839 (2003). The purpose of posttermination visitation

is not for the benefit of the child's biological parents, but

"to assist the child as [she] negotiates, often at a very young

age, the tortuous path from one family to another." Adoption of

Vito, 431 Mass. at 564-65. Considering the amount of time that

the child has spent with her preadoptive family compared to the

time spent with father 2, the judge acted within his discretion

19
in finding that ordering additional visits with father 2 will

not aid in this transition.

Decrees affirmed.

By the Court (Ditkoff,
D'Angelo & Wood, JJ.8),

Clerk

Entered: December 19, 2025.

8 The panelists are listed in order of seniority.

20