Adoption of Keneisha.

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

23-P-653

ADOPTION OF KENEISHA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

mother unfit to parent her daughter, Keneisha,1 and entered a

decree terminating her parental rights to the child.2 In this

appeal, the mother challenges the judge's determination of her

unfitness as well as the termination of her parental rights. We

affirm.

Background. The Department of Children and Families

(department) initiated the underlying care and protection

proceedings, the second such action relating to the child, in

November 2021.3 In response to a report of neglect under G. L.

1 A pseudonym.

2Prior to trial, the father stipulated to a finding of
unfitness and to the termination of his parental rights to
Keneisha. He is not a party to this appeal.

3The first action had been dismissed in 2020 after the
department placed the child with the father.
c. 119, § 51A, and the father's report about an interaction with

the mother at his home, the department assumed custody of

Keneisha and established a kinship placement for her where she

remained at the time of trial. It is undisputed that Keneisha

has extensive medical, developmental, and behavioral needs. The

department's goal changed in July 2022 from reunification to

permanency through guardianship with Keneisha's kinship

resource, to which the mother agreed. By October 2022, however,

the department's goal had become adoption. The mother did not

agree to this plan, and the case went to trial approximately one

month later, in November 2022.

Discussion. "To terminate parental rights to a child, the

judge must find, by clear and convincing evidence, that the

parent is unfit and that the child's 'best interests will be

served by terminating the legal relation between parent and

child.'" Adoption of Luc, 484 Mass. 139, 144 (2020), quoting

Adoption of Ilona, 459 Mass. 53, 59 (2011). "While a decision of

unfitness must be supported by clear and convincing evidence, a

judge's findings will be disturbed only if they are clearly

erroneous" (citation omitted). Adoption of Paula, 420 Mass.

716, 729 (1995). "Moreover, the judge's assessment of the

weight of the evidence and the credibility of the witnesses is

entitled to deference." Custody of Eleanor, 414 Mass. 795, 799

(1993). Whether termination of parental rights is in a child's

2
best interests is a discretionary decision. See Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034

(1999).

1. Mother's failure to benefit from services. We discern

no abuse of discretion in the judge's determination that despite

the mother's willingness to participate in many of the services

available to her to improve her parenting skills, her failure to

benefit from those services left her unfit to parent Keneisha.4

The judge noted that the mother had taken many parenting

courses, been open to help from a parent support worker, and

engaged in individual therapy.5 Despite the mother's

participation in these services, however, the judge found that

4 Nor do we agree with the mother's contentions, each of
which is unsupported by any citation to the record, that the
judge improperly relied on the "feelings" of the department's
ongoing social worker "that Mother had not benefited from
services."

5 The judge did not, however, find that the that mother had
made efforts to meet all parts of her action plan. In
particular, the judge found that the mother had not completed an
anger management program. While the mother testified that her
failure to satisfy that action plan requirement was the result
of her being repeatedly waitlisted for suitable programs, the
judge did not credit that testimony. Additionally, the mother
dismissed domestic violence services as unnecessary "because she
could recognize the warning signs on her own." These findings
were relevant to the judge's determination of the mother's
parental fitness. See Adoption of Yvonne, 99 Mass. App. Ct.
574, 577–578 (2021), quoting Adoption of Jacob, 99 Mass. App.
Ct. 258, 262 (2021) ("Because '[d]omestic violence may imperil a
child's physical safety and psychological development . . .
evidence of domestic violence is relevant to a judge's
determination of parental fitness'").

3
the mother had not gained the necessary insights into Keneisha's

needs to provide minimally-adequate parenting for her. For

example, the judge found that notwithstanding the mother's

completion of "an impressive number of parenting classes," as of

the time of trial, she remained unable to adapt her parenting

approach, and particularly her rigid disciplinary style, to

Keneisha's complex developmental and behavioral needs. See

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

"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"). The judge found that

although the mother maintained an apartment, the apartment's

clutter made it inaccessible and the conditions within were

unsanitary. See Care & Protection of Vick, 89 Mass. App. Ct.

704, 706 (2016) (cleanliness of parent's home appropriate factor

for consideration in determination of parent's fitness). The

judge heard evidence that despite a history of domestic abuse

and anger management concerns, the mother failed to avail

herself of relevant services offered by the department and

continued to engage in inappropriate and violent behavior to

others -- including her mother, a former partner, Keneisha's

preadoptive parents, department workers, and Keneisha herself --

up until the time of trial. See Adoption of Ulrich, 94 Mass.

App. Ct. 668, 676 (2019) (mother's difficulty "managing her

4
anger" relevant to fitness). Finally, the judge found that the

mother experienced ongoing mental health instability that

briefly affected her ability to be present for Keneisha.6 See

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("Physical

unavailability of the parent to provide day to day care for the

child . . . [is] relevant evidence of unfitness").

2. Mother's current and future unfitness. After trial,

the judge prepared "specific and detailed findings" supporting

her conclusion that the mother was unfit to parent Keneisha and

that her unfitness was not temporary. Adoption of Quentin, 424

Mass. 882, 888 (1997). See Adoption of Virgil, 93 Mass. App.

Ct. 298, 301 (2018) (judge must "find that the current parental

unfitness is not a temporary condition"). Those findings

include, as we have discussed, that the mother availed herself

of services but failed to benefit from them, as demonstrated by

her ongoing inability to manage her anger, provide a sanitary

home for Keneisha, or suit her parenting and disciplinary

approaches to Keneisha's particular and complex needs. We think

that considered in their entirety, those findings and

conclusions established by clear and convincing evidence that

6 To the extent that the mother challenges any of these
findings as clearly erroneous, she fails in her brief to
identify them in any detail.

5
the mother was unfit at the time of trial to parent Keneisha and

that the mother's unfitness was not temporary.

The mother's final challenges to the judge's concerns about

her ongoing inability to provide appropriate housing for

Keneisha and continuing involvement with issues of domestic

violence do not change our view. As to housing, the mother

contends, and we infer that the judge found, that the mother had

lived in the same apartment for approximately six years before

trial. This finding is not, as the mother suggests, in tension

with the judge's additional finding that at the time of trial

the apartment was unsanitary or with the finding that the mother

was on the verge of being evicted. Although we might have

chosen different words to summarize the point made in conclusion

of law 127 -- stating instead that the mother had a history of

housing instability and, after a period of relative stability,

was at the time of trial again planning a move that would

distance her from her "support network" -- the judge's findings

are not clearly erroneous and do not conflict with the

conclusions she drew from them. Even if we were to conclude

otherwise, we would not be persuaded that such a conflict would

7 "Mother has a penchant for moving to a new area to improve
her access to housing and services. This pattern has not been
effective, nor would it be beneficial to the child's need for
stability in light of her deficits."

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be fatal to the judge's conclusion that the mother was unfit and

likely to remain so. This is because the judge's conclusion

rested not solely on the mother's past inability to maintain an

apartment for the child, but on her current and continuing

inability to maintain an appropriate -- that is, safe and

sanitary -- place for Keneisha to live.8

The judge's concerns about the mother's ongoing involvement

with domestic violence and her inability to manage her anger are

well-supported by the record. The mother's focus on the

evidence of her break with one abusive former partner as proof

that she had gained insight into "her prior poor choices" is too

narrow; it excludes other evidence that the judge could and did

credit about the mother's ongoing violence toward other close

contacts. The judge properly considered not only the mother's

history as a victim of domestic violence, see Adoption of Carla,

416 Mass. 510, 517 (1993) ("prior history does have prognostic

value" in assessing parental fitness), but also recent episodes

in which the mother was the aggressor in incidents involving

both a recent partner and her own mother.9 See Adoption of

8 The mother does not challenge as erroneous the judge's
findings about the conditions of the apartment, including the
presence of standing water in a bathtub, the presence of dirt
soaked with bleach, and the existence of noxious odors.

9 The judge also found that the mother had slapped the child
once when the child was a toddler.

7
Xarissa, 99 Mass. App. Ct. 610, 618–619 (2021) (parent's

experience as both victim and perpetrator of domestic violence

relevant to judge's assessment of parental fitness). To the

extent the mother argues on appeal that the department failed to

make reasonable efforts to address the impact of domestic

violence in the lives of the mother and Keneisha, she did not

raise those issues before the trial judge, and they are

therefore waived. See Adoption of West, 97 Mass. App. Ct. 238,

242 (2020).

Decree affirmed.

By the Court (Meade, Neyman &
Hand, JJ.10),

Assistant Clerk

Entered: April 19, 2024.

10 The panelists are listed in order of seniority.

8