ADOPTION OF CEILIA (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-39

ADOPTION OF CEILIA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Juvenile Court found the

mother unfit to parent her children, Ceilia and Jane, terminated

her parental rights to both children, and concluded that

adoption of the children by their preadoptive foster parent was

in their best interests. On appeal, the mother claims the judge

abused her discretion by failing to properly consider the

mother's plan of kinship guardianship. The mother also appeals

from the trial judge's denial of a motion for relief from

judgment and a new trial, arguing the judge abused her

discretion in finding there were no extraordinary circumstances

warranting a new trial. We affirm.

1 Adoption of Jane. The children's names are pseudonyms.
1. Background. We summarize the judge's findings of fact,

reserving certain details for later discussion.2 Ceilia was born

in December 2018 and Jane in December 2019. Between December

2019 and January 2020, the Department of Children and Families

(DCF) received five reports under G. L. c. 119, § 51A (51A

reports), alleging neglect of the children. First, in December

2019, a 51A report was filed, and subsequently supported by DCF,

alleging the mother tested positive for marijuana while

pregnant. DCF's investigation revealed the mother was using

marijuana to cope with the murder of the children's father. DCF

found that the children's needs were being met, and the children

remained in the mother's care.

In January 2020, four 51A reports were filed, three of

which were supported by DCF, alleging neglect of the children by

the mother and her then boyfriend. Of note, one January 2020 51A

report, which was supported by DCF, alleged the mother had

medically neglected the children. The children's pediatrician

reported the mother had not attended several of the children's

medical appointments and follow-up visits. When the mother did

attend appointments, she and the children emitted such a strong

2 The trial judge made 216 "specific and detailed" findings
and forty-two conclusions of law in support of her decision to
terminate the mother's parental rights, and the findings
"demonstrate that close attention has been given the evidence."
Custody of Eleanor, 414 Mass. 795, 799 (1993).

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cannabis odor that the medical room had to be aired out prior to

reuse. Concerning Ceilia, the mother did not attend an

appointment for the child's hip dysplasia, nor could it be

confirmed that Ceilia was in a Pavlick harness as required to

address the condition. With respect to Jane, the pediatrician

expressed concerns with her "inconsistent . . . feeding

schedule."

As a result, DCF filed a care and protection petition and

obtained temporary custody of both children in January 2020.

The mother subsequently waived her right to a temporary custody

hearing, and DCF retained temporary custody of the children.

DCF then implemented an action plan for the mother to work

towards reunification with the children. The action plan

required the mother to address concerns pertaining to her

parental fitness, including exposure to violence, unstable and

unsafe housing, domestic violence, marijuana use, and mental

health.

a. The mother's unfitness. At trial, the mother

stipulated to her temporary parental unfitness and acknowledged

the risk of harm to the children emanating from the violence

around her. In fact, the mother's life was often endangered by

encounters with violent individuals from 2019 through March

2022. In March 2019, she fled her apartment after three men

came to her door with a gun looking for another man. In May

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2019, the children's father was stabbed and killed while the

mother and Ceilia were present. In January 2020, individuals

threatened to take the mother's belongings while in her home.

In March 2020, armed individuals entered her home looking for

money and attempted to drag her boyfriend from the apartment.

In July 2020, the mother's new boyfriend was involved in a

drive-by shooting outside her apartment. Following the

shooting, police recovered two handguns and numerous rounds of

ammunition from a safe in the mother's apartment; the safe also

contained records personal to the mother. In January 2021,

police found a gun magazine and shell casings in the mother's

living room. In April 2021, police responded to her address for

reports of a "gunshot victim," and encountered the victim of an

apparent self-inflicted gunshot wound. At trial in May 2022,

the mother testified she was likely to be murdered. Despite the

danger facing the mother, she minimized her involvement in the

violence, claiming not to have knowledge of any of these

incidents while continuing to associate with the individuals

involved.

The violence around the mother contributed to her inability

to obtain safe and stable housing. In her prior housing, as

detailed above, the mother was subjected to a violent home

invasion by individuals familiar to her and her then boyfriend,

she acquiesced to others storing firearms and ammunition, and

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her home was the site of active gunfire. The mother recognized

her residences have not been safe living environments for her

children, but at the start of trial in May 2022, two and one-

half years after DCF was granted custody of the children, she

had not taken any steps to obtain safer housing.

The mother also minimized domestic violence in her home by

the father and a former boyfriend. Domestic violence between

the father and the mother was common, and in a "really bad"

incident of abuse by the father in 2014, the mother "ended up

with two black eyes and a bloody nose." At trial, she blamed

herself for provoking him. Moreover, the mother did not

adequately engage in domestic violence services as required by

her DCF action plan. The mother signed up for individual

classes with a domestic violence treatment center, but she did

not verify her completion of the individual classes nor did she

provide DCF with evidence that she engaged in group classes.

The mother also did not demonstrate insight into how domestic

violence impacted her children. She repeatedly entered into

relationships with violent men and did so at the expense of

creating an unsafe living environment for the children.

The mother also has a history of anxiety and depression and

had not adhered to DCF's action plan to address these

challenges. She was inconsistent with therapy, stopped taking

prescribed medication, and did not complete a substance abuse

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evaluation. The mother's unprescribed use of marijuana caused

her psychiatrist to take her off other medication to avoid her

"double prescribing" herself.

Citing the mother's exposure to violence, inability to

provide a stable and safe home environment, exposure to and

minimization of domestic violence, untreated mental health

concerns, and failure to comply with DCF's action plan and be

honest with DCF, the judge found the mother's unfitness to

parent the children was likely to continue into the indefinite

future.

b. Placement plans. After obtaining temporary custody of

the children, DCF initially evaluated kinship placements with

the paternal grandmother, paternal aunt, and mother's stepmother

(maternal step-grandmother). Following the mother's stipulation

to her temporary unfitness at trial, the judge considered two

primary placement plans: guardianship with the maternal step-

grandmother, the mother's proposed plan; and adoption by the

children's current foster mother, DCF's proposed plan.

The judge found DCF's plan to be in the children's best

interests. In support, the judge noted the children's strong

bond with the foster mother and the nurturing environment of her

home. Both children identified the foster mother as "mom,"

sought her out for comfort, and as of the start of trial in May

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2022, had been living with her for most of their lives.3 The

foster mother ensured both children were meeting developmental

milestones through early intervention and maintained the

children's medical appointments. Ceilia began taking

supplements to treat her anemia and Jane, who previously had

poor weight gain, became on track to achieve a healthier weight.

Regarding the mother's placement plan, the judge expressed

concerns that the maternal step-grandmother, who owned a

construction company, lacked the time and ability to care for

Ceilia and Jane in addition to her own seven children. The

maternal step-grandmother testified that she and her older

children would work together to care for Ceilia and Jane.

However, the maternal step-grandmother had not made a

substantial effort to visit the children while they were in DCF

care, only first visiting them around seven to eight months

after their placement, and there was no evidence that her

children knew Ceilia and Jane. Further, the judge did not

credit the maternal step-grandmother's testimony that she

attended follow-up early intervention appointments with Ceilia

and found her to be evasive when discussing her prior history

with DCF.

3 Ceilia had lived with the foster mother since February
2020, when she was around fourteen months old, and Jane was
placed with the foster mother around the same time when she was
less than two months old.

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2. Discussion. a. Placement. After a determination of

parental unfitness, the judge is required to assess all

placement plans for the children and "determine which placement

will serve the best interests of the child." Adoption of Dora,

52 Mass. App. Ct. 472, 474-475 (2001). The judge's assessment

of each plan must be "even handed," regardless of which party

offered the plan. Adoption of Hugo, 428 Mass. at 226 n.8

(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.

1034 (1999). We review the judge's assessment for abuse of

discretion. See Adoption of Bianca, 91 Mass. App. Ct. 428, 434

(2017).

The mother argues the judge abused her discretion by not

appropriately considering DCF regulations regarding the priority

of kinship placements. This issue was not raised below and is

therefore waived. See Adoption of Willow, 433 Mass. 636, 651

(2001).

Even if the issue was not waived, the judge acted within

her discretion in considering and rejecting kinship placement

options. Judges are entitled to deference when they assess the

credibility of witnesses and weigh evidence. See Petition of

Dep't of Social Servs. to Dispense with Consent to Adoption, 397

Mass. 659, 670 (1986). Here, the judge's assessment that the

maternal step-grandmother was not a credible witness contributed

to the judge's other concerns about the maternal step-

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grandmother's ability to care for the children. Moreover, after

thoroughly considering all the evidence, the judge found the

children were thriving in their foster home and had already

established a strong bond with their foster mother that exceeded

their bond with the maternal step-grandmother. The judge was

therefore within her discretion in concluding placement with the

foster mother was in the best interests of the children.

b. Denial of motion for relief from judgment. In

termination of parental rights cases, a judge reviewing a motion

filed pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),4

must decide whether posttrial events amount to "extraordinary

circumstances . . . [suggesting] that modification of the decree

would serve the child's best interests." Adoption of Cesar, 67

Mass. App. Ct. 708, 716 (2006). "A judge's denial of . . . a

rule 60(b) motion is within her discretion and is entitled to

great deference by a reviewing court." Adoption of Gillian, 63

Mass. App. Ct. 398, 411 (2005). We give special deference to

the decision of a judge who, as here, was also the trial judge.

See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996). The

decision "will not be reversed on appeal except on a showing, by

4 "We look to rule 60(b) by analogy and as a cogent standard
because the Massachusetts Rules of Civil Procedure do not apply
to proceedings to dispense with consent to adoption." Adoption
of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011).

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clear and convincing evidence, that the judge abused her

discretion." Adoption of Gillian, supra.

One month after the trial concluded, in August 2022, the

mother moved to a family shelter approximately ninety miles away

from her prior residence. In January 2023, the mother gave

birth to her third daughter. In an affidavit provided by the

mother, the family shelter's director provided support for the

mother's motion. The director reported, inter alia, that the

mother had been compliant with shelter rules and had

demonstrated that she was a nurturing mother to her new

daughter. The director also endorsed the mother's ability to

parent her other children should they be returned to her care

while in the shelter.

The mother argues the judge abused her discretion denying

her motion for relief from judgment and for a new trial because

she had sufficiently resolved her unstable and dangerous living

environment (and was parenting an infant) "mere months" after

the trial concluded. She contends the instability and violence

in her living environment were the primary reasons she was found

unfit and therefore her relocation warrants a new trial. We

disagree. The judge found the mother unfit for several other

well-supported reasons, including her exposure to and

minimization of domestic violence and association with

individuals engaged in violence, not seeking adequate mental

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health support, and not addressing her substance abuse; all of

these deficiencies persisted for multiple years.

In arguing the judge abused her discretion, the mother's

reliance on Adoption of Theodore, 36 Mass. App. Ct. 355 (1994),

is misplaced. In that case, a mother was found unfit to parent

her children due to her minimization of the father's abusive

behavior against their children and herself. See id. at 356-

357. Over one and one-half years after her trial, the mother

filed a motion for reconsideration that was supported by an

affidavit stating she had divorced her husband and was entirely

independent of him. See id. at 357-358. The judge denied the

motion without an evidentiary hearing. See id. at 358. On

appeal, the court remanded the matter for an evidentiary hearing

after concluding that the mother had resolved the single issue

supporting her unfitness by divorcing the father and engaging in

domestic violence services. See id. at 358-359. Here, in

contrast, several issues supported the mother's unfitness, and

even after her relocation and successful parenting of a newborn,

multiple parental shortcomings remained unresolved. See

Adoption of Franklin, 99 Mass. App. Ct. 787, 805 (2021) (motion

for relief from judgment denied because "evidence of the

[parent]'s unfitness at the time of trial was overwhelming, and

the subsequent improvements in [their] situation comparatively

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modest"). Therefore, the judge did not abuse her discretion in

denying the motion.

Decrees affirmed.

Order denying motion for
relief from judgment and
for a new trial affirmed.

By the Court (Massing, Hand &
Smyth, JJ.5),

Clerk

Entered: October 17, 2024.

5 The panelists are listed in order of seniority.

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