Adoption of Veronique.

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-692

ADOPTION OF VERONIQUE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case involves a child, Veronique, who was removed from

her mother's custody in November 2018, shortly after she was

born, because, among things, cocaine was found in a test of the

child's meconium, and because of the history of the mother's

abuse of her older children, Jasmin and Skye. 2 The mother

appeals from a decree of the Juvenile Court terminating her

parental rights to Veronique pursuant to G. L. c. 119, § 26 and

G. L. c. 210, § 3, 3 and approving the plan of the Department of

Children and Families (DCF) for the child's adoption by her

current foster family. The mother argues that the judge erred

1 A pseudonym.

2 Also psuedonyms.

3The father's parental rights were also terminated, but he
does not appeal.
in finding that she was unfit and that termination of her

parental rights was in the child's best interests. She also

argues that the judge erred and abused her discretion in failing

to meaningfully evaluate the competing adoption plans. We

affirm.

1. Termination of parental rights. For a child to be

committed to DCF's custody, DCF must prove, "by clear and

convincing evidence, that a parent is currently unfit to further

the best interests of a child." Care & Protection of Erin, 443

Mass. 567, 570 (2005). For termination of parental rights, DCF

must further prove, by clear and convincing evidence, that the

child's best interests are served by the termination of parental

rights. Adoption of Luc, 484 Mass. 139, 144 (2020). On appeal,

a trial judge's findings are entitled to substantial deference;

they "must be left undisturbed absent a showing that they

clearly are erroneous." Care & Protection of Martha, 407 Mass.

319, 327 (1990). In this case, there was clear and convincing

evidence of the mother's unfitness.

a. Domestic violence and abuse and neglect of the mother's

older children. To begin with, the trial judge considered the

mother's history of domestic violence in finding that she was

unfit and that termination of her parental rights was in the

child's best interests. "Violence within a family is highly

relevant to a judge's determination of parental unfitness and

2
the best interests of the child[]. As such, a judge must

consider issues of domestic violence and its effect upon the

child[] as well as a parent's fitness." Adoption of Gillian, 63

Mass. App. Ct. 398, 404 n.6 (2005), citing Care & Protection of

Lillith, 61 Mass. App. Ct. 132, 139 (2004).

Prior to Veronique's birth, there were several allegations

of domestic violence between the mother and her two older

children. The judge found that in 2011, a report was filed

pursuant to G. L. c. 119, § 51A (51A report) alleging that the

mother was intoxicated and verbally abusive to her oldest child,

Jasmin, who was thirteen years old at the time. The reporter

claimed having to separate the mother and Jasmin, as Jasmin

threw a chair at the mother while they were arguing. There was

also an allegation in the report that the mother left Skye, the

one year old middle child, outside for five to ten minutes on

multiple occasions and did not recognize that that was a safety

issue. During DCF's investigation, the mother and Jasmin

confirmed that they had fought, although Jasmin told the

investigator that the mother was not intoxicated, but rather

sick with the flu. As a result of this incident, Jasmin was

removed and, according to the mother, not returned to the

mother's care for approximately one year.

The judge also found that another 51A report was filed in

2014, alleging that the mother frequently had loud fights with

3
Jasmin that involved screaming, swearing, and broken furniture.

The report also alleged that there was ongoing marijuana use in

the home and that the mother would frequently send Skye out to

play unsupervised. During the investigation, the mother and

Jasmin confirmed that they had verbal arguments with

inappropriate language, but said they were working through their

issues and did not have physical altercations. The mother also

stated that the neighbor who had made the report had been

harassing her, and that she had a harassment prevention order

against the neighbor. DCF found the allegations unsupported.

According to the judge’s findings, in 2016, two years

before Veronique's birth, a 51A report alleged that, when the

mother was called to discuss Skye's behavior at school, she told

the reporter that she had "just beat the shit out of her" and

was "ready to give [Skye] up." When Skye, who was six years old

at the time, arrived at school, she informed the reporter that

the mother had hit her with a broom handle. She had open wounds

on her palm, hip, and buttocks, and her body was covered in

bruising and red swollen welts. She was also smelly, not

wearing any underwear, and wore soiled clothing. The next day,

another 51A report was filed alleging that Skye had been

sexually abused by a man who babysat her.

During DCF's investigation of these reports, Skye told the

investigator that the mother hit her with a broken broom and

4
punched her, causing a tooth to fall out. She also stated that

she had been locked in her room the night before, was not

allowed to eat or drink, and could not leave the room except to

use the restroom. She was taken to the hospital, where she

denied any sexual abuse. At the hospital, Skye wet the bed and

urinated on herself at least four times. Skye was removed from

the mother's care and was placed in a program, where she stated

that her babysitter had touched her inappropriately several

times, although she later denied the sexual abuse when speaking

to an investigator. The program in which Skye was placed

reported that she had lice. The mother denied that Skye had

lice and denied ever hitting her. Jasmin reported that Skye had

had a hair barrette in her mouth and when the mother removed it,

Skye's tooth also came out. DCF workers observed no locks on

the outside of any of the home's bedrooms. DCF found the

allegations of sexual abuse unsupported but found the

allegations of neglect and physical abuse by the mother

supported. The mother's parental rights to Skye were

subsequently terminated in 2019.

The mother was charged with domestic assault and battery,

to which she pleaded guilty, according to her own testimony.

When questioned about the incident at trial, the mother stated,

"the teacher had lied and said I hit my daughter, and I did not

do it." Later in the trial, when she was asked about the charge

5
again, she stated, "I remember that false lie, yes." The mother

stated during trial that she did not want to talk about her

older children, which the judge found to be indicative of the

mother’s "general pattern of avoidance when things are

challenging for her."

In addition to the allegations that the mother was abusive

toward her two older children, the mother also had a history of

domestic violence with Veronique's father. The judge found that

the mother's relationship with the child's father, which the

mother described as "on and off" and "hot and cold," ended

shortly after the child's birth. The mother alleged that the

father was physically and mentally abusive towards her, and that

she was concerned for her safety a few times during that

relationship. The judge found that the mother had a harassment

prevention order against the father between March 2018 and March

2019. The mother testified that she last had contact with the

father in spring 2020, but the judge did not credit this

testimony, as it contradicted a DCF social worker's testimony

that, according to the mother, she was last in contact with the

father in spring 2021.

During the mother's testimony, she repeatedly stated that

she did not want to talk about the father. The judge found this

to be "indicative of Mother's tendency to avoid topics with

which she is uncomfortable," and was concerned that it meant

6
that the mother was "unwilling[] to reflect on such topics in a

manner that would allow Mother to learn from her history and

demonstrate growth."

The mother argues that the judge's conclusion that she has

not distanced herself from domestic violence concerns is

inconsistent with the finding that she has not spoken with the

father for more than half a year. Relatedly, she contends that,

for the same reason, there is no evidence that the child would

be at risk of domestic violence. We do not find either of the

judge's conclusions to be clearly erroneous. The mother has

shown an inability or unwillingness to discuss concerns

regarding domestic violence, which indicates that she has not

meaningfully reflected on how domestic violence has impacted her

and could again in the future. This is also evidenced by the

judge’s finding that, at trial, the mother was unable to define

a "healthy relationship" beyond making the tautological

statement that it is "not an unhealthy relationship."

Additionally, the judge did not credit the mother's testimony

that she had not seen the father for one and a half years,

instead crediting the social worker's testimony that it had been

only six months.

The mother asserts that the judge's discussion of her 2016

conviction of assault and battery improperly relied on stale

evidence, for which she cites Adoption of Ramona, 61 Mass. App.

7
Ct. 260, 264-266 (2004). The mother is correct that "a

determination of unfitness must be based on current evidence,"

and that "the judge is required to assess whether a parent is

currently fit." Id. at 264. In Ramona, this court vacated the

termination of the mother's parental rights to two of the

subject children, id. at 266, as the "bulk" of the judge's

findings of the mother's unfitness regarding those two children

"rested upon events occurring more than two years prior to

trial, even though recent evidence of the mother's parenting was

available." Id. at 264. However, Ramona is distinguishable

from the case at hand, as the 2016 conviction played only a

small role in the judge's conclusions, and the judge relied

mostly on other, more current information in finding the mother

unfit. Furthermore, the multiple allegations of domestic

violence against the two older children indicated a pattern of

behavior, which the court may consider, see id., and that may

have prognostic value. Finally, the mother's denial regarding

the physical and verbal abuse of her children and her inability

or unwillingness to discuss them demonstrate that the mother has

not taken responsibility for her actions, including those

leading to her conviction.

b. Mental health. Mental health concerns are also

relevant to a determination of parental unfitness if they

"affect[] the parents' capacity to assume parental

8
responsibility." Adoption of Frederick, 405 Mass. 1, 9 (1989).

The judge found that the mother has been diagnosed with post-

traumatic stress disorder (PTSD), anxiety, and depression, and

that she does not currently take medications to treat any of

these disorders. According to the judge’s findings, when the

mother was pregnant with the child, she was hospitalized for

psychiatric reasons, and she told the hospital that if she left

and something happened to her, the hospital would be liable.

The mother denied that she told the hospital that she would harm

herself. The judge found that later, while in the hospital

during and after Veronique's birth, the mother exhibited manic

talking and she asked to tape mittens to the child's hands.

Due to its concerns regarding the mother's mental health,

DCF's action plan for the mother required her to complete a

psychiatric evaluation, engage in therapy, and apply for

services through the Department of Mental Health (DMH). The

mother reported that she had completed a psychiatric evaluation,

although she did not recall when that occurred and DCF has not

received confirmation of any such evaluation. The mother later

attended a single visit with a psychiatrist pursuant to her

action plan and stated that she was told that follow-up

appointments were not needed and that the recommendation was for

her to remain in counseling. The judge found that the mother

was unable to offer insight as to why DCF had requested that she

9
see a psychiatrist. The mother began therapy in December 2018,

switching therapists in September 2021. The mother has not

signed releases, so DCF has been unable to confirm the mother's

engagement in therapy. Despite that, the judge found that the

mother attended therapy consistently for two years. The judge

did not credit the mother's testimony that she applied for DMH

services but that a DCF social worker told her that she did not

need that service, so she did not follow up.

Despite her engagement with mental health services, at

trial, the mother was unable to define a "healthy relationship"

when asked. She then stated that she did not feel like

answering those questions. The mother also testified that she

does not struggle with her depression or PTSD because "life goes

on." The judge found that the mother "has a pattern of saying

she does not recall things or does not want to talk about things

that she does not wish to discuss," and as noted above, that

this behavior is "indicative of Mother's general pattern of

avoidance when things are challenging for her." The judge also

found that the mother "was unable to demonstrate progress

regarding her mental health [and] failed to show growth or apply

skills learned in therapy to her life." The judge was

appropriately concerned that the mother's lack of progress or

focus on her mental health were "worrisome indications that

10
Mother is not prepared to appropriately care for the subject

child."

The mother argues that the judge’s finding that she "does

not engage in any preventative care for her mental health

concerns" was clearly erroneous, because the judge also found

that she was attending therapy. While it may have been error

for the judge to state that the mother did not engage in any

preventative mental health care, DCF has been unable to confirm

the mother's engagement in treatment due to her unwillingness to

sign releases. Because the judge acknowledged multiple times

that the mother had been attending therapy for two years and

took that into consideration in making her decision, we conclude

that any error in the challenged finding was harmless.

The mother also contends that it was impermissibly

speculative for the judge to conclude that she has not addressed

her mental health diagnoses because she denied that she

"struggles" with them. We disagree. The judge did not rely

solely on that statement from the mother's testimony, but rather

also considered the mother's inability or unwillingness to

testify regarding topics that upset her, as well as her refusal

to sign releases, which would have allowed DCF to verify whether

or not the mother was progressing in therapy and whether her

psychiatrist believed that she needed medication to

appropriately deal with her mental health diagnoses.

11
Relatedly, the mother challenges the judge's conclusion

that she has "failed to learn from . . . services" as she

addresses her mental health in counseling. Contrary to the

mother's argument, this finding is not contradictory to the

judge's finding that the mother has engaged in therapy; rather,

it implicitly recognizes that she is engaging in services such

as therapy, but concludes that those services have not been

effective. The judge's conclusion that the mother has not

adequately addressed her mental health issues is supported by

the evidence.

c. Physical health. A parent's failure to seek medical

treatment for herself can result in danger to the child. See

Petition of the Dep't of Social Servs. to Dispense with Consent

to Adoption, 16 Mass. App. Ct. 965, 965 (1983). The mother has

been diagnosed with kidney shrinkage, her left kidney does not

function, and she has a low immune system due to low white blood

cell count. The judge found that the mother has a kidney

doctor, but she does not have a treatment plan and does not see

the kidney doctor for regular appointments, instead going only

when she feels she needs to. At trial, the mother did not

remember when she last saw her kidney doctor. She does,

however, see a primary care doctor for an annual checkup and if

she feels sick.

12
While the mother's physical ailment does not indicate that

she is unfit to care for her child, it raises a concern that the

mother may not be vigilant about her child's healthcare needs.

That inference is supported by the fact that there were

previously concerns about the unmet healthcare needs of the

mother's two older children, and that her prenatal care during

her pregnancy with Veronique was inconsistent. 4

d. Substance abuse. Substance abuse is a relevant

consideration in a determination of unfitness only where it

interferes with a parent's ability to provide minimally

acceptable care of the child. Adoption of Katharine, 42 Mass.

App. Ct. 25, 31 (1997). In this case, Veronique was born on

November 1, 2018. A 51A report alleged that the child's

meconium tested positive for cocaine, which is to say she was

born substance exposed. The mother reported that she had used

cocaine and marijuana beginning in the summer of 2018, but had

stopped when she learned that she was pregnant, although she

claimed that was relatively late in the pregnancy. Though the

judge did not make a finding on the point, there was evidence

that the mother had her first prenatal care appointment in May

4 Jasmin is now an adult, but when she was a child, she was
removed from the mother's care on multiple occasions. Skye was
removed from the mother's care in 2016 and the mother's parental
rights to her were terminated in 2019.

13
2018, and at another appointment in August, she refused to

submit a urine screen, stating she might not be "clean."

After the child's removal, which occurred only five days

after her birth, there were further 51A reports filed alleging,

among other things, that the mother was using drugs. The mother

testified that she had not used cocaine or any substances other

than alcohol since giving birth. As part of the mother's action

plan, DCF did not require that the mother provide drug screens,

but did require her to complete a substance abuse evaluation,

provide DCF with a copy of the evaluation, and follow all

recommendations. The mother claims that she completed a

substance use evaluation and that she was not diagnosed with a

substance use disorder. She did not provide DCF with

documentation of any such evaluation. The judge found that the

mother was unable to appropriately reflect on her history of

substance abuse, causing the judge concern that the mother might

continue to struggle with substance abuse in the future,

especially as the mother "was unable to demonstrate an

understanding that a history of substance use requires ongoing

efforts to remain sober."

The mother argues that the evidence does not establish a

nexus between any alleged substance abuse and any harm to the

child, which is required under Adoption of Katharine, 42 Mass.

App. Ct. at 31, where the termination of parental rights turns

14
on substance abuse. Here it did not. The mother is correct

that the judge said in one conclusion of law that "Mother has a

history of domestic violence, mental health concerns, and

substance abuse." However, a close reading of the judge's

decision makes clear that the primary concerns the judge had in

finding the mother unfit to parent the subject child were the

mother's mental health and her history of domestic violence,

both as a victim and as a perpetrator with respect to her older

children. Additionally, to the extent the judge discussed

substance abuse in her conclusions of law, she addressed only

the fact that the mother denied and did not "take responsibility

for her history of substance abuse concerns." This was just one

part of the judge's assessment that, if the mother did not view

"introspection as important" –- including about her mental and

physical health (and that of her children), domestic violence,

and her physical abuse of her older child -– she would be unable

to demonstrate growth and assure the safety of her children.

Indeed, the mother's failure to recognize and address past

concerns, including through noncooperation with DCF and refusal

to allow it to access her home, is a primary theme of the

judge's assessment of her fitness. Thus, for example, in

discussing whether the mother benefited from services, the judge

concluded that the mother's unfitness was shown by her

"inability to demonstrate that she will make the necessary

15
changes to address domestic violence, substance abuse, and

mental health."

Nonetheless, given the gravity of the mother's other

unaddressed concerns and clear and convincing evidence of

unfitness, even if this use of the mother's substance abuse was

in error under Adoption of Katharine, any error was harmless.

e. Best interests. Finally, the mother argues that the

judge erred in concluding that termination would be in the

child's best interests. Much of this argument relies on the

claimed errors of fact we addressed above, and the claim that

the mother's criminal history was stale. The mother also argues

that the judge was required to find the mother had distanced

herself from domestic violence, and the child faced no risk of

domestic violence, since the mother had not had contact with

father for six months at the time of trial. This argument has

no merit, as the judge's findings on those matters were not

clearly erroneous. The mother also argues it was error for the

judge to find it would be detrimental for the child to return to

the mother due to her bond with her foster family, as there were

no findings that the mother would not be able to alleviate the

harm that would ensue. But the judge's findings about the

mother's lack of insight and inability to parent certainly

suffice.

16
Given all of the above, we conclude that there was clear

and convincing evidence supporting the trial judge's conclusion

not only that the mother was unfit to parent the child, but that

termination of the mother's parental rights was in the child's

best interests.

2. Placement. In addition to her challenges to

termination, the mother argues that the trial judge erred in

failing to perform a meaningful evaluation of two competing

adoption plans. When DCF and a parent put forward different

adoption plans, the judge must consider both and "determine

which placement will serve the best interests of the child."

Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). In

deciding between two competing adoption plans, the judge must

"'meaningfully . . . evaluate' what is proposed to be done for

the child." Id. at 475, quoting Adoption of Lars, 46 Mass. App.

Ct. 30, 31 (1998), S.C., 431 Mass. 1151 (2000). Such an

evaluation must be "even handed," regardless of which party

offered the plan. Adoption of Hugo, 428 Mass. 219, 226 n.8

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

1034 (1999).

This appeal was stayed to allow DCF to file in the trial

court a "Motion to Reopen the Proceedings for Additional

Evidence and Further Findings on the Best Interest of the

Child," including an updated DCF proposed adoption plan. The

17
motion was allowed, and after taking additional evidence, the

trial judge found DCF's plan to be in the child's best interest.

When Veronique was removed, she was originally placed with

one foster family, but a few months later, in March 2019, she

was placed with her current foster family, and she has lived

with them since. The foster family was approved as a

preadoptive resource in June 2020. A relative applied to be a

preadoptive resource, but withdrew in 2020 due to family

concerns. In October 2020, the child's great aunt came forward

as a kinship placement for the child, and she expressed an

interest in becoming a preadoptive resource. In October 2020,

the mother moved to transfer the child's placement to a kinship

placement, but the court declined to remove the child from her

foster placement. The great aunt submitted her application in

February 2021, and DCF referred her to a private agency for a

home study in March 2021. In October 2021, the great aunt

submitted a background check to the private agency, and the home

study was approved in January 2022. This process took longer

than usual due to an extensive waitlist resulting from the

COVID-19 pandemic. The great aunt lives with her three

grandchildren, and if the child were placed with them, she would

share a room with the fourteen year old granddaughter.

In March 2022, DCF held an area clinical review team (ACRT)

meeting to determine which adoption plan was in the child's best

18
interests. After the ACRT meeting, in which DCF reviewed home

studies from both placements and considered the length of time

the child had been with the foster family, her attachment and

connection with the family, her developmental growth, and the

foster family's openness to safe and appropriate involvement

with the child's biological family, DCF determined that the

child should remain with her foster family.

The great aunt claims that she attempted to reach out to

the DCF social worker on three occasions, but did not get a

response. The judge found that the great aunt may have called a

phone number associated with DCF, but that the social worker did

not receive any messages from the great aunt. The judge also

found that the great aunt's "minimal efforts to contact [the

social worker] over the course of two years indicate a lack of

commitment to developing a relationship with and taking custody

of [the child]." The great aunt visited the child a few times

via Zoom and a few times in person when she was permitted to

participate in the mother's visits. According to the DCF social

worker, the great aunt had not had any contact with the child

"since before November 2021." The great aunt testified that she

did not have the bond with the child that she would have liked

to have. Based on this and, among other factors, the evidence

of the child's "loving" bond with her foster family, the judge

19
concluded that adoption by the child's foster family was in her

best interests.

The mother argues on appeal that the child's bond with her

foster family was the decisive factor in the judge's decision

and, as such, the judge was required, pursuant to Adoption of

Katharine, 42 Mass. App. Ct. at 30-31, to address whether the

child would be harmed by the severance of those bonds and

whether that harm could be alleviated. However, the mother

fails to recognize that Adoption of Katharine involved the

decision to terminate parental rights, not the decision between

two competing adoption plans. Id. at 27. The standard for

termination of parental rights requires a stricter analysis

because parents have a constitutional right, albeit not

absolute, to maintain custody of their children. See id. See

also Care & Protection of Erin, 443 Mass. at 570. A kinship

placement with a relative who is not a parent, such as the great

aunt in this case, differs because there is no constitutional

right involved. See Adoption of Jacob, 99 Mass. App. Ct. 258,

268 (2021). Therefore, the considerations in Adoption of

Katharine are not required for an evaluation of two competing

adoption plans, even if one of the plans involves a kinship

placement.

The mother next contends that the judge's evaluation of the

competing adoption plans could not have been meaningful without

20
expert opinion as to the child's needs and any potential harm

she would suffer if removed from her foster family. The mother

contends that there was no clinical input at the ACRT meeting.

The DCF social worker testified at first that he could not

remember who was at the meeting other than "[m]yself, the area

clinical manager, [and] my supervisor." He stated that the

people who conducted the foster family's home study were not

present at the ACRT meeting, nor was anyone from the private

agency who had met with the great aunt. He later testified that

there were more than three people at the meeting, but he could

not remember who else was there. He did respond in the negative

when asked whether there was "clinical input specific to how

[the great aunt] could deal with the unique needs of [the child]

transitioning to her home."

In support of her argument, the mother again cites Adoption

of Katharine, which is inapplicable for the reasons stated

above. DCF correctly notes that several cases have affirmed a

choice between competing adoption plans, including cases

choosing a foster placement over a kinship placement, without

the requirement of expert opinion. See, e.g., Adoption of

Jacob, 99 Mass. App. Ct. at 272; Adoption of Ilian, 91 Mass.

App. Ct. 727, 731-732 (2017). Even in the context of

termination of parental rights, which, as noted above, requires

stricter analysis due to the constitutional rights at stake,

21
expert opinion regarding the child's bonds with the foster

family is not required in all cases. See, e.g., Adoption of

Daniel, 58 Mass. App. Ct. 195, 202-203 (2003).

Finally, the mother argues that DCF failed to follow its

own regulations regarding kinship placements, and for that

reason the judge should not have adopted the ACRT's reasoning.

We first note that the judge did not rely wholly on the ACRT's

reasoning. Although the judge did consider DCF's conclusions

from the ACRT meeting, she also considered testimony from the

DCF social worker, the child's foster mother, and the great

aunt.

We cannot address the claim of the DCF's alleged failure to

comply with its own regulations. It appears to have been raised

below in the motion to transfer the child to kinship placement,

but when the mother's counsel withdrew, the judge withdrew that

motion without prejudice to refiling by successor counsel. The

mother's successor counsel never refiled the motion or sought

other remedies. No request for a ruling was made, and no

factual determinations concerning the regulations have been made

in the trial court. In these circumstances, the issue has not

been preserved for review. See Adoption of Jenna, 33 Mass. App.

Ct. 739, 740-741 (1992).

In any event, even a failure by DCF to follow its own

regulations would not be dispositive in the decision between two

22
competing adoption plans, as the judge must always rule in the

child's best interest. Adoption of Ilona, 459 Mass. 53, 61

(2011) (holding that even where DCF failed to make reasonable

efforts to prevent or eliminate need for removal pursuant to

G. L. c. 119, § 29C, judge must rule in child's best interests).

Thus, even if DCF had "deliberately attempted to thwart the

applications of the child's relatives," of which there is no

evidence here, "frustration with the department does not justify

an inappropriate placement," which would amount to "penalizing

the child." Adoption of Irene, 54 Mass. App. Ct. 613, 623

(2002).

DCF was not required to place the child with the great aunt

in 2020 when the great aunt came forward, more than a year and a

half after the placement of the child with her current foster

parents. To the extent it is challenged, there was no abuse of

discretion or other error of law in the judge's withdrawal,

without prejudice at the time of counsel's withdrawal, of the

2020 motion by the mother for a kinship placement. Nor was

there any abuse of discretion or clear error of law in the

judge's decision that DCF's adoption plan, which will place the

child permanently with the foster family with whom she has lived

23
since she was less than four months old, was in the child's best

interests.

Decree, as modified by the
judge's April 20, 2023,
supplemental findings of
fact, conclusions of law,
and order, affirmed.

By the Court (Rubin,
Englander & D'Angelo, JJ. 5),

Clerk

Entered: August 14, 2024.

5 The panelists are listed in order of seniority.

24