ADOPTION OF OBADIAH (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

21-P-1075

ADOPTION OF OBADIAH (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees, issued by a

Juvenile Court judge pursuant to G. L. c. 119, § 26, terminating

the mother's rights to the two children.2 The mother argues that

the judge failed to support his conclusions with "specific and

detailed findings" as to domestic violence in the parents'

relationship. See Adoption of Hugo, 428 Mass. 219, 224 (1998),

cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034

(1999). The father argues that the judge should have stayed the

termination decision to give the mother additional time to prove

that her unfitness was temporary. Because we conclude that the

judge's decision was adequately supported by detailed findings

1 Adoption of Amy. The children's names are pseudonyms.
2 The judge also terminated the father's parental rights to
Obadiah. Because the father was not named on Amy's birth
certificate and had not been adjudicated her father, the judge
terminated the parental rights of "any unknown or unnamed
father." The mother and father do not dispute that the father
is Amy's father. Neither the father nor the mother appeals the
termination of the father's parental rights.
and that the judge was not required to delay termination, we

affirm.

Background. In order to address the mother's argument that

the judge's written findings were inadequate, we begin with a

summary of the relevant findings.

The parents' relationship began in 2015. So, too, did the

abuse. By the end of the first year of the relationship, the

mother had obtained her first abuse prevention order against the

father. By the end of the second year, the mother had obtained

her second such order. It was in the third year that the

parents had their first child together, Obadiah. Five months

after Obadiah's birth, the mother fled Texas, where the parents

had lived together, leaving the father behind. She arrived in

Boston with Obadiah on September 21, 2018. A report pursuant to

G. L. c. 119, § 51A (51A report), was filed that same day,

alleging neglect by the mother. The mother told the Department

of Children and Families (department) that she believed the

father had made the 51A report in retaliation for her desertion,

that her relationship with the father had been mentally and

physically abusive, and that she had moved to Boston because she

was tired of fighting with the father. She told the department

that she was "fed up."

But the mother soon returned to the father. From early in

their relationship and through the end of 2018, the parents

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moved extensively due at least in some measure to domestic

violence: from Florida, to Georgia, to South Carolina, and then

to Texas. Eventually the parents moved to Philadelphia to be

closer to the father's family, and Amy was born in Philadelphia

in July of 2019. But the parents separated once again following

an incident in December of 2019. During an argument, the father

had kicked a door of their residence off its hinges and, as a

result, a police officer had to stand outside the home all night

because there was no longer any door to secure the home. That

same month the mother left the father. She and the two children

returned to Boston, finding placement in a domestic violence

shelter. In January 2020, a 51A report alleging neglect by the

mother was filed due to concerns of drug or alcohol abuse. The

department obtained emergency custody of the children, and in

February they were temporarily placed with a maternal aunt. The

mother was permitted to stay with the maternal aunt and the

children, subject to certain conditions. During the

investigation that followed the children's removal, the mother

told the department that she was a victim of domestic violence.

She told the department that she would never return to a

relationship with the father.

Three months later, the mother returned to the father.

Because the maternal aunt's child suffered from asthma, the

mother was asked to stay home with the children to limit her

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exposure to Covid-19 during the pandemic. Eventually, the

mother was told that if she left the children and the maternal

aunt's home again, she could not return. Despite the risk of

losing this safe place to live, the mother decided to go out

with her friends. The maternal aunt insisted the mother no

longer stay with her.

The mother then returned to Philadelphia to be with the

father; the children remained in the temporary custody of the

maternal aunt. On July 21, 2020, the aunt relinquished custody

of the children back to the department; she was worried after

having learned that the mother had disclosed the aunt's address

and her custody of the children to the father. The department

placed the children in a foster home, in which the children

remained at the time of trial. At the time of trial, the

maternal aunt visited with them on a weekly basis but was not

interested in adoption; the department was pursing the

children's foster mother as their preadoptive resource.

In the months that followed her departure from the maternal

aunt's home, the mother attended a virtual parenting class, and

the mother and the father jointly completed a coparenting course

that they mistakenly referred to as couples therapy.

The mother and the father were again briefly separated

following an incident in August of 2020, when the father left

the mother in Atlantic City, New Jersey, after an argument. The

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mother testified that she was "jumped" by a group of women after

the father left her. The mother returned to Massachusetts and

attempted to secure a shelter placement. This placement was

denied; the judge found that the mother had two previous

evictions from shelters for combativeness and for providing a

shelter's location to the father in violation of the shelter's

rules.

After a week or two, the mother returned to the father.

She told the department that she was living on her own in

Philadelphia and was not in a relationship with the father.

Based on this information, the department pursued a possible

placement of the children with the mother but subsequently

discovered that the mother continued to live with the father.

The department provided the parents with an action plan, and the

mother maintained contact with her department social worker

while in Philadelphia. In May of 2021, the mother was evicted

from the apartment she shared with father in Philadelphia after

the parents obtained protection from abuse orders against each

other in a Philadelphia court. Philadelphia police had been

called to the residence thirteen times that year. The mother

reported that the father had punched her, hit her, pulled her

hair, dragged her on the floor, kicked down her bedroom door,

and asked her for money and sex, at which point she "lost it"

and attacked him. The father reported that mother had

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previously punched him a few times and that she had thrown a

glass plate at him out of anger, causing him an injury that

required stitches. Following the eviction, the mother moved

back to Massachusetts and began living in a motel. At the time

of trial in July of 2021, the mother was residing in an extended

stay hotel in Boston and had been separated from the father for

two months, their longest period of separation.

The judge concluded that the mother and the father were

unfit and that their unfitness was likely to continue into the

indefinite future because of their extensive history of domestic

violence, their inability to remain separate, their failure to

demonstrate any benefit from services provided by the

department, and the risk to the children of serious parental

neglect.

Discussion. To terminate parental rights, a judge must

"make specific and detailed findings demonstrating that close

attention has been given to the evidence." Adoption of Hugo,

428 Mass. at 224. "While subsidiary findings must be proved by

a fair preponderance of the evidence, taken together these

findings must prove parental unfitness, which is the 'critical

inquiry,' by clear and convincing evidence." Adoption of

Leland, 65 Mass. App. Ct. 580, 583 (2006), quoting Care &

Protection of Laura, 414 Mass. 788, 793 (1993). Next, the judge

must decide whether the "parent's unfitness is such that it

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would be in the child's best interests to end all legal

relations between parent and child." Adoption of Nancy, 443

Mass. 512, 515 (2005).

The mother does not contend that any of the judge's factual

findings are clearly erroneous but argues that the judge erred

by failing to provide specific, detailed findings about six

issues related to domestic violence in the parents'

relationship. We address them in turn.

First, citing Commonwealth v. Goetzendanner, 42 Mass. App.

Ct. 637, 643 (1997), the mother argues that the judge failed to

consider evidence of battered women's syndrome (BWS). While

evidence of BWS is admissible where relevant in proceedings like

this, none was presented at least explicitly in terms of BWS

below. The judge was not required to consider BWS sua sponte.

To the extent the mother argues that a judge, in a decision

concerning whether or not to terminate parental rights in a case

involving domestic violence, must consider and address in

specific written findings how he or she weighed the victimhood

of the nonviolent parent and that parent's attempts, successful

or otherwise, to escape that relationship, we think the judge's

findings here were more than adequate. A determination by a

judge that unfitness will continue into the indefinite future

involves a predictive judgment. See Adoption of Carlos, 413

Mass. 339, 350 (1992). Here, the judge's conclusion that the

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mother was likely to repeat her pattern of returning to the

father was fully supported by the evidence.

Second, the mother argues that the judge's findings failed

to credit the mother's efforts to leave the father. We

disagree. The judge's findings sufficiently chronicle the

mother's failed attempts to terminate her relationship with the

father: from her claim in 2018 that she was "fed up" with the

father, to her claim that she never wanted to be in a

relationship with the father again following their separation in

2019, to her claim that she was no longer living with the father

following the Atlantic City incident, to her claim at trial that

"this time was different." The judge addressed these efforts

directly, finding that the mother's claim that "this time was

different" was not credible because before returning to the

father "[e]ach time [the m]other has stated she was done with

the f]ather for good, no longer in a relationship, and she would

not go back," and there was "no credible evidence presented to

suggest that this would change in the future." The judge's

findings were not deficient as to their description of the

mother's failed attempts to leave the father.

Third, the mother argues that the judge failed to consider

that her attempts to escape the father were repeatedly foiled by

a lack of financial resources. However, the judge specifically

found that the mother left a safe place with the children in

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April 2020 because she would not stop socializing during the

pandemic's first peak, bringing risk to the maternal aunt's

family. The mother's return at that time to the father cannot

be said to be based on having nowhere else to go. Moreover, the

judge did address the mother's lack of resources, finding that

the mother "explained [that] she previously went back to [the

f]ather because she did not have emotional or financial

supports" and that at trial the mother "still [wa]s unable to

identify supports in Massachusetts." The judge was entitled to

consider the impact that the mother's lack of supports and her

unstable home life had on the children. The judge found no

reason to believe anything was different and properly addressed

the reasons behind the mother's inability to leave the father.

Fourth, the mother argues that the judge ignored testimony

that it takes seven attempts for the victim of domestic violence

to escape her abuser. No expert testified to this statistic.

The mother testified that her counsellor told her this. While

the mother argues that this statistic also came from the

department's social worker, the social worker testified on

cross-examination that she did not know there was a number and

had only heard about a number from the mother's therapist.

Regardless, the judge did not err in terminating the mother's

parental rights where he found that the mother had continued to

place her relationship with an abuser before the protection of

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the children, failed to demonstrate any improvement in that

relationship over the course of five years of domestic violence,

and failed to "recognize[] the impact of domestic violence on

[the children] when they were in the home." The mother was on

her fourth attempt at separation in six years. Having observed

no improvement from the mother, the judge was not required to

wait some indeterminate period of time for the mother to exhaust

a hypothesized final three attempts before terminating her

parental rights. Of course we recognize the difficult

circumstances that may face victims of domestic violence. But

in proceedings relating to parental fitness, the "paramount duty

of courts is to consult the welfare of the child" (citation

omitted). Petition of the Dep't of Pub. Welfare to Dispense

with Consent to Adoption, 383 Mass. 573, 588 (1981).

Fifth, the mother argues that the judge failed to consider

her participation in counselling and action plan tasks. But the

judge specifically found that neither parent had "demonstrated

any benefit from their engagement in these services," noting

that despite such engagement the mother continued her

relationship with the father and returned to the father after he

abandoned her in Atlantic City.

Sixth, the mother argues that the judge failed to make

specific and detailed findings as to how the domestic violence

in the mother's relationship negatively impacted the children.

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"Requiring the courts to make explicit findings about the effect

of the violence on the child and the appropriateness of the

custody award in light of that effect will serve to keep these

matters well in the foreground of the judges' thinking."

Custody of Vaughn, 422 Mass. 590, 599-600 (1996). Here, the

negative impact on the children was adequately captured by the

judge's findings. The judge found that the children were

exposed to domestic violence on two occasions. First, the judge

found that the mother and father had an altercation in a car,

with both children present. Second, the judge found that the

children were present when the father kicked the door to the

apartment off its hinges. The mother and children were then

forced to spend the night in an apartment without a door, with a

police officer guarding the entrance to their home. "It is well

established that exposure to domestic violence works a

'distinctly grievous kind of harm' on children." Adoption of

Talik, 92 Mass. App. Ct. 367, 374 (2017), quoting Custody of

Vaughn, supra at 595. The judge also found that, because of the

domestic violence, the children were constantly forced to move

to new States. Additionally, the judge's finding that neither

parent appreciated the impact of domestic violence on the

children supports his conclusion that return of the children to

the mother would place the children at risk of continued

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neglect. The judge sufficiently documented the impact of

domestic violence on the children.

Finally, the mother relies on Adoption of Imelda, 72 Mass.

App. Ct. 354, 363 (2008), throughout her argument, suggesting

that she should not be found unfit where the mother in Imelda

was not found to be unfit. Imelda is not applicable here. In

Imelda, the court vacated the termination decree and remanded to

the Juvenile Court for further proceedings after concluding that

the trial judge had failed to make findings as to concerns of

domestic violence in the adoptive home, failed to grant a

continuance where the mother lacked representation during the

best interests portion of the trial, and failed to consider

whether the mother would be likely to improve in the future --

instead relying on the mother's absence from trial and her

failure to comply with the department's service plans. See id.

at 366-367. Here there were no concerns as to domestic violence

in the adoptive home, there were no issues as to legal

representation, and the judge directly addressed whether the

mother was likely to improve based on her history and inability

to separate from the father.

The judge's conclusion that the mother's inability to

benefit from services and separate from the father rendered her

unfitness likely to continue into the indefinite future was

supported by specific and detailed findings.

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The father does not appeal the termination of his own

parental rights and argues only that the judge should have

allowed the mother additional time to demonstrate that her

unfitness was only temporary. As a preliminary matter, we may

"decline to address allegations of error raised by the father

having relevance only to the fitness of the mother." Adoption

of Paula, 420 Mass. 716, 723 n.8 (1995). In any event, the

father's argument is without merit.

Quoting L.L. v. Commonwealth, the father argues that the

judge's decision was an abuse of discretion because a delay of

termination was within the range of reasonable alternatives.

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

("Borrowing from other courts, we think it more accurate to say

that a judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made 'a clear error of

judgment in weighing' the factors relevant to the decision, such

that the decision falls outside the range of reasonable

alternatives" [citation omitted]). The father's argument

reverses the standard. The father's burden was not merely to

show that a delay was within the range of reasonable

alternatives, but rather to show that the judge's decision was

not. As the language of L.L. spells out, the grant of

discretion to the lower court anticipates that in any case there

may exist more than one outcome deserving affirmance by this

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court. Even assuming that a delay was within the range of

reasonable alternatives, that would not require the conclusion

that the judge's decision, forgoing such a delay, fell outside

the range.

Here, the judge's decision was not an abuse of discretion.

As detailed above, it was adequately supported by his findings

that the mother had failed to show improvement in the ways

described above over the course of the case, continued to choose

the father over the children, and traded the opportunity to live

a stable life with the children in April of 2020 for a chance to

go out with her friends.

The father argues that this court should reverse because

waiting six months is a small sacrifice when compared to the

permanence of termination. Discretion is afforded to trial

judges specifically because they are tasked with engaging in a

difficult, fact-dependent analysis that the father would have

this court undertake instead. Nothing in the record provides

this court with the basis to undo the judge's determination that

the children had waited long enough. Indeed, the children had

waited their entire lives for the mother to separate from the

father. As such, the judge's refusal to delay termination did

not constitute an abuse of discretion. See Adoption of Xarina,

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93 Mass. App. Ct. 800, 803 (2018) ("it is unfair to leave a

child in limbo indefinitely").

Decrees affirmed.

By the Court (Rubin, Shin &
Ditkoff, JJ.3),

Clerk

Entered: February 13, 2023.

3 The panelists are listed in order of seniority.

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