Adoption of Marrek.

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-1126

ADOPTION OF MARREK.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial that spanned three consecutive days, a

judge of the Juvenile Court found the mother unfit to assume

parental responsibility for her son, Marrek, terminated her

parental rights, and approved the Department of Children and

Families' (department) proposed adoption plan which provided for

adoption by the child's maternal grandmother (grandmother).2 The

trial judge also found that visits with the mother were in the

child's best interests and ordered supervised monthly

posttermination and postadoption visits. Any additional

visitation time was left to the sole discretion of the

1 A pseudonym.

2This appeal arises from a second review and
redetermination trial held via Zoom on February 22-24, 2022.
Following the first review and redetermination trial, held over
nonconsecutive days in the summer of 2019, a trial judge found
the mother unfit but did not terminate her parental rights.
Previously, the mother stipulated to a finding that she was
unfit on October 2, 2018.
grandmother, the child's legal custodian. The mother appeals,

arguing that (1) the trial judge's finding of unfitness was

erroneous because it relied on stale evidence and was

unsupported by clear and convincing evidence, and (2) the trial

judge abused her discretion by terminating the mother's parental

rights where guardianship was a viable option and the mother's

positive trajectory demonstrated the likelihood of her future

fitness. We address each of these arguments in turn and,

discerning no error, affirm the decree.

Discussion. 1. Fitness and termination of parental

rights. The mother first argues that the trial judge failed to

properly assess her parental fitness as it existed at the time

of trial but instead relied on stale evidence such as her

previous mental health challenges and her criminal record. The

argument is unavailing.

"To terminate parental rights to a child and to dispense

with consent to adoption, a judge must find by clear and

convincing evidence, based on subsidiary findings proved by at

least a fair preponderance of evidence, that the parent is unfit

to care for the child and that termination is in the child's

best interests." Adoption of Bea, 97 Mass. App. Ct. 416, 421-

422 (2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601,

606 (2012). "In determining whether the best interests of the

children will be served by issuing a decree dispensing with the

2
need for consent, a court shall consider the ability, capacity,

fitness, and readiness of the child's parents . . ." (quotation

and citation omitted). Adoption of Jacques, supra. "We give

substantial deference to a judge's decision that termination of

a parent's rights is in the best interest of the child, 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 Patty, 489 Mass. 630, 637 (2022), quoting Adoption

of Ilona, 459 Mass. 53, 59 (2011).

Importantly, although "a finding of current unfitness

cannot be based on stale information . . . prior history does

have prognostic value." Adoption of Carla, 416 Mass. 510, 517

(1993). Indeed, "[w]here a person's character is itself in

issue, as a parent's character generally is in custody or

adoption cases, courts have usually held that it may be proved

by evidence of specific acts of misconduct bearing on

character."3 Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989).

Accordingly, there was no error in the trial judge's

consideration of the mother's past mental health difficulties

3 The mother argues that the trial judge contradicted her
posttrial ruling on the mother's motion in limine by including
in the findings two incidents from 2002 and 2003, before the
mother became a parent. Assuming without deciding that this was
an error, leaving aside these two incidents, the trial judge's
decree is still fully supported by the record.

3
and criminal history4 as part of the overall assessment of the

mother's fitness so long as that conduct spoke to the mother's

current fitness.5 See id.

Here, sufficient evidence was adduced at trial to support a

finding by clear and convincing evidence that the mother was

unfit. The trial judge considered the mother's ongoing and past

mental health challenges and concluded that she "remain[ed]

mentally unstable in that she [was] unable to demonstrably

ascertain when she [was] experiencing a mental health decline

and continue[d] to minimize her past behavior/signs of

decompensation."

To reach this conclusion, the trial judge relied in part on

testimony from a department social worker, who testified that in

4 The mother also argues that the trial judge erroneously
considered dispositions on the mother's CARI contrary to the
judge's ruling that the mother's CARI would be admissible but
"limited to CWOFs and convictions." However, the trial judge's
findings regarding the mother's criminal history largely relied
on exhibits 9 and 10, which are records from the Holyoke and
Northampton police departments. The two instances in which the
trial judge considered dispositions on the mother's CARI that
were not CWOFs or convictions related to two restraining orders,
one that was independently supported by the mother's testimony
and another that was supported by police department records.

5 The mother submits that the trial judge could only
properly consider evidence after the first review and
redetermination trial that concluded on July 10, 2019, where the
judge found the mother to be unfit but did not terminate her
parental rights. However, "a judge may rely upon a parent's
past conduct . . . so long as that evidence is not the sole
basis for the judge's unfitness determination." Adoption of
Luc, 484 Mass. 139, 145 (2020).

4
April 2018 she had to cancel a parent-child visit when the

mother grew angry with her after she asked the mother if she was

taking her medication. When the social worker attempted to

speak with the mother further, the mother "charged" at her but

was prevented from taking further action by another staff

member. The social worker also testified she observed the

mother in a "manic" state on multiple occasions from January

2018 through August 2018, a period of time when the mother would

visit the department office without an appointment and would

voluntarily divulge previous traumatic experiences to department

employees.

Additionally, the trial judge was presented with evidence

that the mother was hospitalized three times between 2018 and

2020, including once for a week in January of 2018 when she

received inpatient mental health services. In 2019, the mother

also entered mental health treatment for four or five days after

a conversation with the social worker resulted in the mother

agreeing to a mental health evaluation.6 On September 25, 2020,

the grandmother took the mother to the hospital following an

argument the mother had with her aunt that resulted in the

6 The mother testified that she only agreed to go to the
hospital because the social worker mentioned that she would
discuss reunification with the mother if she sought treatment.
The mother also admitted, however, that she was being treated in
the "psych unit" to regulate her bipolar disorder medication.

5
mother leaving her aunt's home without a shirt and with her

pants on inside out. The grandmother, who arrived at the aunt's

home soon after the altercation occurred, testified that the

mother appeared "confused" and looked as though she was

experiencing a mental health episode. The mother stated that

she was not properly dressed because her aunt made her leave the

home when she was taking a shower. She also denied experiencing

mental health issues during this incident and testified that she

was only treated in the hospital for a finger injury. However,

the trial judge credited the grandmother's testimony that when

the mother arrived at the hospital, she was treated in a mental

health unit.7

To be clear, the trial judge did not credit a large portion

of the mother's testimony throughout the trial, including her

testimony regarding the incident on March 18, 2017, that led to

the child's removal.8 The trial judge found that the mother's

testimony regarding that incident was "remarkably different"

7 While the mother argues that the grandmother's testimony
was self-serving, the trial judge's assessment that the
grandmother's testimony was credible is entitled to deference.
See Custody of Eleanor, 414 Mass. 795, 799 (1993).

8 The trial judge also cited the mother's history of
domestic disturbances and interpersonal conflicts that remained
ongoing after the child's removal and resulted in a numerous
instances of police contact. Notably, the trial judge did not
credit much of the mother's testimony regarding many of these
incidents.

6
from the records presented by the department and the police and

that she continued to downplay the mental health challenges she

was experiencing. For example, the mother denied talking to

herself or hearing voices telling her to walk away from the

police. She further testified that she and the child were

outside in the cold weather to view the St. Patrick's Day parade

and that they both lacked proper clothing because the child's

father threw their jackets into a puddle. The trial judge also

did not credit the mother's testimony asserting that when the

child's paternal grandmother picked the child up from the police

station, the paternal grandmother removed the child's diaper to

cover the child in feces, hid supplies that the mother had given

her, and called the department to make false reports about the

mother.

Furthermore, Dr. Jennifer Laney, a clinical psychologist

whom the mother hired to perform a psychological evaluation,

testified that the mother engaged in "positive impression

management" and that she "probably minimized struggles that

she's having." Dr. Laney's also testified that the mother

failed to give a full account of her previous drug use or

criminal history to Dr. Laney to complete her evaluation.9

9 Dr. Laney also performed a substance use screen on the
mother that reflected a high probability of substance use
disorder. This aligns with the mother's substance use history,
which included the use of PCP.

7
In totality, the mother's lack of candor at trial regarding

her previous mental health challenges, including her efforts to

blame others and minimize her struggles, supports the trial

judge's conclusion that the mother continued to lack insight

into her mental health issues and was unable to ascertain when

she was experiencing mental health decline. The mother's three

hospitalizations following the removal incident, as well trial

testimony from the social worker and the grandmother, supports

the trial judge's findings that the mother lacked the

temperament or mental stability to provide for the child's

needs. As such, the trial judge's conclusion that the mother

remained unfit and that her parental rights should be terminated

was supported by clear and convincing evidence. See Adoption of

Bea, 97 Mass. App. Ct. at 421-422.

2. Adoption plan and the mother's future fitness. The

mother also argues that the trial judge abused her discretion by

terminating the mother's parental rights where guardianship was

a viable option and the mother's positive trajectory

demonstrated the likelihood of her future fitness. We disagree.

"In choosing among placement plans, it falls to the sound

discretion of the trial judge to determine what is in the best

interests of the child, and our review on appeal is one of

substantial deference." Adoption of Bianca, 91 Mass. App. Ct.

428, 434 (2017) (quotation and citation omitted). "The best

8
interests of a child is a question that presents the trial judge

with a classic example of a discretionary decision . . . [where]

much must be left to the trial judge's experience and judgment."

Adoption of Hugo, 428 Mass. 219, 225 (1998) (quotations and

citations omitted), cert. denied sub nom. Hugo P. v. George P.,

526 U.S. 1034 (1999).

Here, the trial judge found that the child's need for

emotional stability, structure, and routine were all served by

adoption by the grandmother, who had provided the child with

care and a stable living environment for nearly all of his life.

The trial judge also concluded that adoption rather than

guardianship would provide the child with needed permanency by

preventing the mother from challenging the child's guardianship

in the Probate and Family Court as she has done with her two

older children who are under the guardianship of the grandmother

and who continued to live with the grandmother at the time of

trial. Additionally, although the mother has complied with her

action plan tasks, as explained above, the trial judge did not

err in concluding that the mother's "mental health remain[ed] a

significant barrier to reunification," and that she had not

significantly benefited from her participation in services.

Accordingly, we discern no abuse in discretion in the trial

9
judge's determination that adoption was in the child's best

interests.10

Decree affirmed.

By the Court (Rubin,
Desmond & Singh, JJ.11),

Clerk

Entered: October 3, 2024.

10The trial judge also properly evaluated the adoption plan
proposed by the department. See Adoption of Dora, 52 Mass. App.
Ct. 472, 474 (2001) (trial judge must review proposed adoption
plan before terminating parental rights).

11 The panelists are listed in order of seniority.

10