Adoption of Cameron.

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

22-P-1229

ADOPTION OF CAMERON. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered in the Juvenile

Court terminating her parental rights to her son, Cameron, who

was born in May 2019. Cameron appeals from the order granting

the mother posttermination and postadoption visitation. 2 We

affirm the termination of the mother's parental rights and

vacate the order for posttermination and postadoption visitation

between the mother and Cameron.

Background. At the time of removal, the mother and the

putative father 3 (father) lived together with eight week old

1 A pseudonym.
2 The Department of Children and Families does not join Cameron's
appeal of the visitation and instead notes that Cameron can
return to the trial court and request a modification of that
order.
3 The judge treated the putative father as the biological father

of Cameron for most of the case, but removed him from the case
on March 3, 2020, after he failed to establish paternity.
Cameron's legal father, as listed on his birth certificate, is
the mother's former husband. The legal father denied paternity,
noting that he was abroad, serving in the military, at the time
Cameron was conceived. On May 8, 2021, the legal father was
Cameron and the father's two year old son, Kevin, and three year

old daughter, Nora, from another relationship.

The mother and all three children came to the attention of

the Department of Children and Families (department) on July 4,

2019, when Nora was admitted to the hospital with injuries to

her genital area consistent with penetrative sexual assault, and

the department received a G. L. c. 119, § 51A, report (51A

report). The department filed a care and protection petition

under G. L. c. 119, § 24, and was granted emergency temporary

custody of Cameron and his half-siblings, Kevin and Nora. While

there was no evidence that Cameron or Kevin had been abused, the

department was concerned for the safety of all three of the

children in the home.

The trial judge found that the events leading to the

department's involvement unfolded in the following manner. On

July 4, 2019, the mother fed the children lunch and put them

down for a nap before leaving to run errands. Approximately ten

to fifteen minutes later, the father sent a text message to the

mother that Nora had been injured. The mother instructed the

father to clean the wound and said she would be home soon to

evaluate the situation. When the mother returned to the home

served in hand with a notice of the custody proceedings, but he
did not appear at any hearings. His parental rights were
terminated; he has not appealed.

2
approximately three minutes later, she found the father

squatting over Nora, who was naked and bleeding from the vagina

on the bathroom floor. The bleeding was so extensive that the

mother had to wipe the area multiple times before she could see

there was a substantial tear in Nora's vaginal opening.

Other than stating that he had found Nora upstairs "laying

there bleeding," the father did not explain what happened. The

mother did not call emergency services and left Cameron and

Kevin in the father's care while she took Nora to the hospital.

The father and the mother claimed that Nora had scratched

herself in the genitals; however, hospital staff found dirt but

no blood under Nora's fingernails.

That evening, the mother asked the father how Nora had been

injured. The father stated that he did not know because he was

outside mowing the lawn when the injury occurred. The mother

did not go up to the second floor of the apartment or inspect

Nora's room until after the police searched the apartment on

July 5, 2019. The mother claimed she never saw any evidence of

blood anywhere in the apartment other than on a towel in the

bathroom.

On July 19, 2019, the mother told the department that she

believed Nora's injuries were a "straddle injury" from falling

on a railing while attempting to climb over her bed. The mother

3
claimed the injuries resulted from the father's negligent

supervision.

On July 25, 2019, the father was arrested and, on October

17, 2019, was indicted on charges related to the alleged sexual

abuse of Nora. The mother moved out of the home she had shared

with the father and rented a room in the apartment house where

the father's grandparents (great-grandparents) lived. The

mother visited the father in jail and attended two or three of

his court dates.

The department's concerns centered on the mother's ability

to protect Cameron, considering the mother's inconsistent

statements regarding how Nora was injured and her reluctance to

believe the father had assaulted Nora even after he had been

indicted. In conversations with the department social worker

assigned to this case from July 2019 to January 2020, the mother

continued to resist acknowledging that the father assaulted

Nora, even when the social worker told the mother there was a

medical report that confirmed Nora was sexually assaulted. In

October 2019, the mother told the department social worker that,

absent deoxyribonucleic acid (DNA) evidence, she would not

believe the father had sexually assaulted Nora.

On August 12, 2019, the father was released on bail and

placed on house arrest with a global positioning system monitor,

and he moved in with the great-grandparents. Based on her

4
residence, the mother was required to walk by the father's

apartment to exit and enter the building and often passed him

sitting on the porch. The mother stated she continued to live

in the building because she did not feel safe in a shelter. The

mother refused to move to New York to live with her mother.

The family action plan developed by the department for the

mother included the following tasks: obtain safe and stable

housing; meet with her social worker monthly; maintain healthy

relationships; participate in domestic violence services and

counselling, individual therapy, and parenting classes; sign

releases; attend supervised visits with Cameron; have no phone

contact with the father during visitation; create a

reunification and child care plan; and express in writing why

Cameron was removed from her care and how her actions

contributed to his removal.

On December 9, 2019, the department changed the case goal

from reunification to adoption. Multiple foster care review

panels found that the mother failed to enroll in individual

therapy and to provide the department with a reunification plan

and that she continued to struggle to acknowledge why Cameron

had been removed from her care.

In June or July 2020, the mother began a romantic

relationship with a new man (boyfriend). In the fall of 2020,

the boyfriend moved in with the mother. The boyfriend did not

5
contribute financially to the household and moved from job to

job. Within two months of cohabitating, the mother and

boyfriend were engaged to be married. The mother included the

boyfriend as a potential coparent for Cameron on at least one of

the reunification plans she submitted and asked the department

to assess him. The boyfriend never attended the mother's

visitation with Cameron. In May 2021, the mother ended her

relationship with the boyfriend after she found evidence that he

had been unfaithful.

Discussion. "In deciding whether to terminate a parent's

rights, a judge must determine whether there is clear and

convincing evidence that the parent is unfit and, if the parent

is unfit, whether the child's best interests will be served by

terminating the legal relation between parent and child."

Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017), quoting

Adoption of Ilona, 459 Mass. 53, 59 (2011). "We give

substantial deference to the judge's decision to terminate

parental rights '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 Talik, 92 Mass. App. Ct.

367, 370 (2017), quoting Adoption of Ilona, supra.

1. Fitness. A parent's ability to adequately protect a

child from harm is relevant to determining parental fitness.

See Adoption of Jacob, 99 Mass. App. Ct. 258, 265 (2021) (judge

6
may consider parent's decision to remain in relationship with

abusive partner when determining fitness); Adoption of Anton, 72

Mass. App. Ct. 667, 673-675 (2008) (parent's failure to protect

child from sex offender relevant in determining fitness).

The mother argues that the department did not meet its

burden to prove parental unfitness by clear and convincing

evidence. We disagree. The judge considered the required

factors set forth in G. L. c. 210, § 3 (c), and found factors

(ii), (v), (vi), (vii), (viii), (ix), and (xii) applicable to

her determination that the mother was unfit. The mother's

unfitness resulted not simply from the July 4 incident but from

a "constellation of factors." Adoption of Greta, 431 Mass. 577,

588 (2000).

First, the evidence at trial showed that the mother was

unwilling to accept that Nora had been sexually assaulted, and

she thereafter remained unable or unwilling to accept the

father's likely role in the assault, despite substantial

evidence to the contrary and the absence of a plausible

alternative explanation. 4

4 The mother disputes the judge's characterization of her
testimony at trial, arguing that the judge conflated the
mother's testimony responding to questions about her prior
beliefs about the father's guilt with her beliefs at the time of
trial. To the contrary, the judge did not credit the mother's
testimony that she came to believe six months before the trial
that the father assaulted Nora. That credibility determination
was, of course, squarely within the province of the trial judge

7
For at least three months after the assault, the mother

continued to suggest that Nora's injuries were caused by either

self-scratching or a "straddle injury" from falling onto her bed

railing. At trial, the mother acknowledged that neither of

those explanations was reasonable considering Nora's injuries.

At least six months after the assault, the mother stated that

she could not be sure of the father's guilt unless she saw DNA

evidence.

Despite observing the severity of Nora's injuries, the

mother chose to leave Cameron and Kevin alone in the father's

care while she took Nora to the hospital, and she accepted his

claims that he did not know what happened to Nora.

The record supports the judge's finding that the mother

failed to properly investigate how such an injury to a child

could occur in her home. The mother did not go into Nora's room

after returning from the hospital, did not attempt to find the

pull-up diaper or any of the clothes Nora had been wearing the

day of the assault, nor did she ask the father where the clothes

went.

as finder of fact. See Commonwealth v. Bohannon, 376 Mass. 90,
94 (1978). Inasmuch as the mother's challenge to the judge's
findings rests on the mother's discredited testimony, it is
unavailing.

8
Moreover, the mother did not end her relationship with the

father for nearly three weeks after the July 4 incident, visited

him in jail on two occasions, and attended two or three of his

court hearings. The mother lived in the same building where the

father lived for nine months after he was released on bail.

A trial judge has "discretion to evaluate a witness's

credibility and to weigh the evidence." Adoption of Nancy, 443

Mass. 512, 515 (2005). The judge did not credit the mother's

testimony that she now believed the father sexually assaulted

Nora. Likewise, the judge was entitled to disbelieve the

department social worker's opinion that the mother's attitude

toward the father appeared to have changed in January 2021.

The mother's inability to accept that the father likely

assaulted Nora created a risk that she would not protect Cameron

from the father or other household members posing similar risk

of abuse. 5

Taken as a whole, the record evidence amply supports the

judge's findings and determination that the mother is unfit to

care for Cameron. 6

5 The department's concern extended to the mother's ongoing
inability to make prudent judgments about the romantic partners
she brought into Cameron's life. The mother's subsequent
relationship with the boyfriend showed that her poor judgment
was not confined to her relationship with the father.
6 We note that "[d]espite the moral overtones of the statutory

term 'unfit,' the judge's decision was not a moral judgment or a
determination that the mother . . . [does] not love the child"

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2. Termination of parental rights. "After ascertaining

unfitness, the judge must determine whether the parent's

unfitness is such that it would be in the child's best interests

to end all legal relations between parent and child." Adoption

of Nancy, 443 Mass. at 515. "[A] judge considering termination

also must consider the child's unqualified right to permanency

and stability and cannot hinge predictions of future fitness

determinations on a 'faint hope' that the parent will become fit

at some indeterminate time." Care & Protection of Zeb, 489

Mass. 783, 789 (2022), quoting Adoption of Ilona, 459 Mass. at

59-60.

Considering the mother's continuing tendency to enter

significant relationships without appreciating the potential

risk to Cameron, the judge acted within her discretion in

terminating the mother's parental rights. There was no

indication in the record that the mother's inability to identify

the risk to her child posed by her choice of inappropriate

romantic partners was temporary or would subside in the

foreseeable future. Compare Adoption of Carlos, 413 Mass. 339,

350-351 (1992) (declining to terminate parental rights where

judge found mother's parental unfitness could be resolved with

additional time).

(citation omitted). Adoption of Bea, 97 Mass. App. Ct. 416, 417
n.2 (2020).

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3. Posttermination and postadoption visitation. The

Supreme Judicial Court has "repeatedly recognized the equitable

authority of a judge to order visitation between a child and a

parent whose parental rights have been terminated, where such

visitation is in the child's best interest." Adoption of Ilona,

459 Mass. at 63. Review of a judge's order concerning

posttermination and postadoption visitation is for "abuse of

discretion or clear error of law." Adoption of Zander, 83 Mass.

App. Ct. 363, 364 (2013).

Cameron argues that the judge abused his discretion in

ordering posttermination and postadoption visitation. We agree.

"[T]he first question . . . a judge should consider . . .

[is] whether there is a 'significant bond existing with the

biological parent." Adoption of Ilona, 459 Mass. at 63-64,

quoting Adoption of Vito, 431 Mass. 550, 563 (2009).

Cameron was only eight weeks old at the time he was placed

with the preadoptive mother. We do not discount the mother's

consistent history of positive visitation with Cameron.

However, such visits are insufficient to create a significant

bond that overcomes Cameron's interest in stability with his

adoptive family. See Adoption of Greta, 431 Mass. at 578, 580-

581 (finding insufficient evidence of significant bond between

mother and child despite four years of regular visitation).

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We accordingly conclude that the judge abused her

discretion in ordering posttermination and postadoption

visitation with the mother. See Adoption of John, 53 Mass. App.

Ct. at 439 (2001).

For the foregoing reasons, that portion of the decree

terminating the mother's parental rights to Cameron is affirmed.

The order providing the mother with posttermination and

postadoption visitation is vacated. We remand the case to the

Juvenile Court and direct that the order be modified consistent

with this memorandum and order. 7

So ordered.

By the Court (Green, C.J.,
Blake & Henry, JJ. 8),

Assistant Clerk

Entered: March 4, 2024.

8 The panelists are listed in order of seniority.

12