Adoption of Elisa.

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-252

ADOPTION OF ELISA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the father

was unfit to parent Elisa and that Elisa's best interests would

be served by the termination of his parental rights. The judge

also ordered that the father was entitled to six visits annually

with Elisa. The father appeals from the decrees finding him

unfit and terminating his parental rights, arguing that the

judge gave too little weight to evidence that the father

interacted positively with Elisa during regular visits,

demonstrated his parenting skills by caring for his older child,

and completed many programs and was on a wait list for

specialized therapy to treat his borderline personality

disorder. The father also contends that the judge improperly

considered opinion testimony of a bonding expert that was

1 A pseudonym.
speculative. Concluding that the judge did not abuse her

discretion in weighing the evidence and properly considered the

bonding expert's testimony, we affirm.

Background. We set forth the facts found by the judge

after trial, saving some facts for later discussion.

Between 2007 and 2014, the father was the subject of six

G. L. c. 209A orders issued based on affidavits from four

different women (plaintiffs).2 One of those plaintiffs is the

mother of the father's older child, Jared,3 and one of the 209A

orders, issued in August 2009, was supported by that plaintiff's

affidavit averring that the father had argued with her while she

was holding Jared, and after she put Jared down the father

picked her up by the waist, dropped her, then pinned her in a

corner and yelled in her face calling her names.4 Another of the

209A orders issued in September 2010 on the application of

2 Elisa's mother was not one of those plaintiffs.

3 Also a pseudonym.

4 Jared was then about two months old. The record before us
contains reference to a report dated August 2009 pursuant to
G. L. c. 119, § 51A, alleging neglect of Jared by the father
that was supported. See G. L. c. 119, § 51B. However, neither
that § 51A report nor the report of the related investigation
under § 51B is in the record.

2
Jared's mother on behalf of Jared, and was in effect for about

one month.5

In June 2016, the father was charged with assault and

battery upon a pregnant person; the alleged victim was Elisa's

mother, then pregnant with Elisa. The mother testified that

after she told the father she wanted to end their relationship,

he grabbed her arms forcefully and shook her; picked her up off

the ground and slung her over his shoulder, putting pressure on

her belly; tried to force her into his truck; and wrestled her

phone out of her hand and threw it away. On October 3, 2016, as

part of a plea agreement, that charge was dismissed and the

father admitted to sufficient facts for domestic assault and

battery, which was continued without a finding for one year on

conditions including that he undergo a mental health evaluation.

As a result of an incident on October 10, 2016, just one

week after the father entered that plea agreement, the father

was again charged with assault and battery upon a pregnant

person; this time the alleged victim was his sister. That

charge was continued for about ninety days and then dismissed.

The father admitted that after his pregnant sister went into a

5 The affidavit in support of that 209A order is not in the
record.

3
family member's garage without permission, the father physically

assaulted her.

Elisa was born in December 2016, and due to concerns about

the parents' history of domestic violence and mental health

instability, a report pursuant to G. L. c. 119, § 51A (51A

report) was filed with the Department of Children and Families

(DCF), which instituted care and protection proceedings. In

January 2017, Elisa was placed in the care of her foster

parents, who are maternal relatives and became her preadoptive

parents. In October 2017, DCF changed its goal for Elisa from

reunification with the father and the mother to adoption. The

preadoptive parents have adopted Elisa's maternal half-sister

and are related to a family that has adopted two other maternal

half-siblings of Elisa. The preadoptive parents are committed

to adopting Elisa and maintaining her relationships with the

father, the mother, and Elisa's half-siblings.

At DCF's request, a psychologist evaluated the father and

issued a report in January 2018 recommending that he participate

in a domestic violence program. As a result, between August

2018 and May 2019, the father engaged in a forty-week domestic

violence program.

At a court hearing in April 2019, the father learned that

the mother had agreed to the adoption of Elisa by the

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preadoptive parents and was negotiating an open adoption

agreement. The mother did not attend the hearing because she

was afraid of the father's reaction. The father became very

angry and after the hearing went to the mother's workplace,

where he waited near her car and confronted her. The father

told the mother that the only way she would have a relationship

with Elisa was if the father had custody of Elisa, and demanded

that the mother apologize to him for "siding with DCF." When

the mother tried to drive away, the father put his foot under

her car's left front tire. Concerned that because she was on

probation she would face consequences if she drove over his

foot, the mother started to dial 911, and the father removed his

foot. The judge found that the incident illustrated the

father's inability to handle someone not behaving in a way that

suited him, and his willingness to manipulate people to serve

his own needs. Based on the fact that the incident occurred

during week thirty-seven of a forty-week domestic violence

program, the judge found that the father's "behavior is likely

to continue into the future to a near certitude" and "would

place [Elisa] at imminent risk of serious abuse and neglect."

In May 2019, psychologist Dr. Jennifer M. Laney evaluated

the father and issued a report diagnosing him with borderline

personality disorder, which manifests in an "intense fear of

5
rejection or threat to his primary attachment relationship" that

makes him prone, when emotionally dysregulated, "to

inappropriate, intense anger" and "transient, stress related

paranoid ideation" resulting in "[f]rantic efforts to avoid

abandonment." The judge found that Dr. Laney's diagnosis

"precisely describes" the father's pattern of problematic

behavior, and "shed[s] light on the apparent ineffectiveness" of

the forty-week domestic violence program and individual therapy

in which the father had previously engaged. Dr. Laney

recommended that the father undergo dialectical behavior therapy

(DBT), an evidence-based treatment for borderline personality

disorder that teaches emotional regulation skills using

individual, group, and telephone coaching. DCF requested that

the father undergo DBT and supplied him with referrals for DBT

providers.

Between July and November 2019, the father sent more than

one hundred text messages to the mother, some using terms of

endearment and others insulting and belittling her. The mother

initially blocked his messages, then changed her phone number to

keep him from contacting her. Based on the father's testimony,

the judge found that the father minimized "the dozens and dozens

of text messages he sent to Mother in short periods of time that

ranged from friendly to vicious." The judge found that the

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father's unrealistic perception of those attempts at contact was

"a manifestation of his mental illness," and did not credit his

assessment of the events.

In October 2019 and again in November 2021, the father

stipulated that Elisa remained in need of care and protection

and that he was then unfit to parent Elisa. Throughout the six

years that the case was pending, the father visited Elisa

regularly for one- to two-hour supervised visits.

The case was tried over five consecutive days in October

2022, when Elisa was almost six years old. The judge credited

the testimony of Dr. Allison Bell, the child's bonding expert,

that the father's borderline personality disorder prevents him

from prioritizing Elisa's needs over his own. As of trial, the

father had not begun DBT treatment for his borderline

personality disorder. The judge concluded that the father was

unfit to parent Elisa, that his unfitness as a parent was likely

to continue, and that termination of his parental rights was in

Elisa's best interests.

Discussion. 1. Judge's consideration of the father's

strengths. "To terminate parental rights to a child and to

dispense with parental 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

7
parent is unfit to care for the child and that termination is in

the child's best interests" (citation omitted). Adoption of

Yalena, 100 Mass. App. Ct. 542, 549 (2021). The father argues

that in finding him currently unfit to parent Elisa, the judge

ignored evidence of his strengths as a parent, and as a result

the judge's findings were not based on clear and convincing

evidence. See Adoption of a Minor (No. 2), 367 Mass. 684, 688

(1975) ("Troublesome facts, pointing to a conclusion contrary to

that reached by [DCF] or the judge, are to be faced rather than

ignored"). The father contends that the judge did not

sufficiently weigh the evidence of the father's positive

interactions with Elisa during their visits, his acceptable

parenting of Jared, and his completion of programs. We consider

each argument in turn.

a. Father's appropriate behavior during visits. The

father argues that the judge gave insufficient weight to

evidence that he regularly visited Elisa and interacted

appropriately with her. The judge did consider evidence that

for nearly six years before trial the father engaged in twice-

monthly supervised visits with Elisa. The judge found that the

father was "prepared, engaging, thoughtful and kind" with Elisa,

and that Elisa "has a caring, loving connection with Father,

though she does not identify him as her primary caretaker."

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The father argues that the judge should have credited the

2019 report of his bonding expert that during his visits with

Elisa the father showed effective parenting skills. Instead,

the judge credited the trial testimony of Dr. Bell, who

explained that supervised visits in a DCF office or a public

place like a park or museum were not necessarily indicative of

long-term parenting, because during those visits the father

virtually never had to discipline Elisa or engage in her

developmental process.

The judge also considered it significant that the father

repeatedly refused to allow DCF access to his home to do a home

assessment. When one social worker tried to, among other

interactions, schedule visits at the home, the father reacted,

as the judge found, "with anger, foul language, personal

attacks, and sometimes outright rage." The father testified

that he would not allow social workers on this case access to

his home unless DCF changed its goal for Elisa to reunification.

We discern no abuse of discretion in the judge's weighing

the evidence of the father's appropriate behavior during

supervised visits. "This decidedly is not a case where the

judge failed to confront 'troublesome facts.'" Adoption of

Knox, 102 Mass. App. Ct. 84, 94 (2023).

9
b. Father's parenting of the older child. The father

argues that the judge gave insufficient weight to evidence that

the father's older child, Jared, thirteen years old at the time

of trial, had lived with the father for about ten months before

trial.6 The father contends that because no 51A reports were

filed during that time, his parenting of Jared was acceptable,

and the judge should have credited his testimony that he was

engaged in Jared's medical care and education.

The father told the DCF ongoing social worker that Jared

was stable in the father's home, but DCF could not verify that

because, as mentioned above, the father refused to allow DCF

social workers into his home to do a home assessment. In

addition, the father refused to sign releases so that DCF social

workers on this case could access Jared's medical and school

records. Asked at trial if Jared has any special needs or

mental health diagnoses, the father said no. Questioned

specifically about whether Jared has attention deficit

6 The judge noted that Jared came to live with the father in
a city in Hampden County "apparently because the Worcester
division of [DCF] was involved with [Jared], his mother, and
stepfather." The father testified that he and Jared's mother
reached a custody agreement in the Probate and Family Court.
The record before us contains no documentation from either DCF
or the Probate and Family Court about the circumstances of
Jared's placement with the father. In those circumstances, we
draw no inference that either DCF or the Probate and Family
Court determined that the father was fit to parent Jared.

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hyperactivity disorder, posttraumatic stress disorder,

oppositional defiant disorder, depression, and anxiety, the

father admitted that Jared had each of those diagnoses. The

father also admitted that under his care Jared was not seeing a

therapist; the father testified that clinicians had not returned

his calls and Jared was on wait lists. The father testified

that Jared had "mood swings" like a "typical[] teenager," and

their interactions sometimes escalated to shouting. From the

evidence of the father's relationship with Jared, the judge

concluded that if Elisa were placed in the father's custody she

would experience "denial or forced minimization of her needs,

followed by no real intervention, treatment, or support, and as

she got older, shouting matches."

We discern no abuse of discretion in the judge's

concluding, based on the evidence of the father's parenting of

Jared, that the father would not be a fit parent for Elisa. See

Adoption of Rhona, 63 Mass. App. Ct. 117, 129 (2005) (judge may

"assess prognostic evidence derived from prior patterns of

parental neglect or misconduct in determining future fitness and

the likelihood of harm to the child" [quotation and citation

omitted]).

Moreover, even if the father's parenting of Jared were

exemplary -- a conclusion we do not reach based on the

11
incomplete record before us -- a parent may be fit to parent one

child but not another. See Adoption of Flavia, 104 Mass. App.

Ct. 40, 42, 52 (2024) (mother's reunification with eleven year

old who had lived for five years in residential treatment center

did not undermine analysis supporting her unfitness to parent

six year old twins who had lived in preadoptive home for two

years). See also Adoption of Cesar, 67 Mass. App. Ct. 708, 712

(2006). One important difference between Jared and Elisa was

that Elisa had been with her preadoptive parents since birth,

which would likely mean, as Dr. Bell testified and as discussed

below, that Elisa's trauma if separated from them would be

particularly acute.

c. Father's lack of DBT treatment. The father argues that

the judge gave insufficient weight to the programs he had

completed, including the forty-week domestic violence program.

We discern no abuse of discretion in the judge's weighing the

evidence of the father's programming, including his failure to

engage in DBT treatment.

Nearly three and one-half years before trial, Dr. Laney

diagnosed the father with borderline personality disorder and

recommended that he participate in DBT treatment. Although the

judge credited most of Dr. Laney's report, the judge declined to

credit the recommendation that the father could participate in

12
DBT "while he has custody of his daughter, [Elisa]." The judge

concluded that Dr. Laney "minimize[d] the physical violence

Father has engaged in with at least [five] different women,"

perhaps because she did not have access to the records of the

209A orders, and "focused more on Father's need for treatment

than [Elisa]'s health, safety, and emotional welfare."

The judge found that the father "has dabbled in therapy"

but had not yet engaged with a clinician skilled in DBT, and his

personality disorder was "virtually untreated." From evidence

that the father had been asked to engage in DBT for years but

had not yet begun it as of trial, the judge concluded that the

father had a "hollow commitment" to treatment and posed an

"imminent threat to [Elisa] if she were to be in his care and

custody." The judge credited Dr. Bell's testimony that

borderline personality disorder is particularly difficult to

treat because the illness causes the patient to misinterpret

others' actions as attacks or abandonment, leading to "panic-

driven" overreactions. The judge also credited Dr. Bell's

testimony that, even if the father were to begin

"wholeheartedly" engaging in DBT, the effect of treatment "would

not begin for a matter of years."

We discern no abuse of discretion in the judge's weighing

the father's failure to begin DBT treatment for his borderline

13
personality disorder. See Adoption of Leonard, 103 Mass. App.

Ct. 419, 423 (2023) (no error in finding that mother's untreated

mental health issues endangered child). The judge was not

required to credit the father's testimony that his reasons for

not having begun DBT were beyond his control, including that DCF

had not provided him with referrals; he had contacted multiple

agencies and was on wait lists; and that he was "in the process"

of doing "pieces" of DBT with his current therapist, who he

acknowledged might not be sufficiently qualified in DBT to meet

DCF's requirement. See Adoption of Jacob, 99 Mass. App. Ct.

258, 259, 265-266 (2021) (mother's failure to address mental

health issues, including her borderline personality disorder,

that impacted her ability to care for child was relevant factor

in fitness determination).

2. Testimony of bonding expert. Finally, the father

argues that the judge abused her discretion in ruling to admit

the testimony of Elisa's bonding expert, Dr. Bell, about the

risk of harm to Elisa if placed in the father's care. The

father contends that Dr. Bell's opinion was impermissibly

speculative and went to the ultimate issue in the case. We are

not persuaded.

Pursuant to G. L. c. 210, § 3 (c) (vii), the judge was

required to consider whether Elisa "has formed a strong,

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positive bond" with her preadoptive parents, which "has existed

for a substantial portion of [her] life," whether the forced

removal of Elisa from that home would "likely cause serious

psychological harm to [Elisa,] and [whether] the [father] lacks

the capacity to meet the special needs of [Elisa] upon removal."

See Adoption of Rhona, 63 Mass. App. Ct. at 126 (bond between

child and preadoptive parents must be assessed in context of

harm to child from removal and biological parent's ability to

address that harm). See also Adoption of Katharine, 42 Mass.

App. Ct. 25, 29-30 & n.9 (1997) (as amended in 1992, § 3 [c]

directs judges to give weight to child's psychological bond with

substitute caretaker as factor in fitness assessment).

After a voir dire, the judge ruled to permit Dr. Bell to

testify as an expert in psychology, specifically bonding,

personality and mood disorders and their treatment, and their

impact on parenting. When Elisa's counsel asked for Dr. Bell's

opinion on the risk of harm to Elisa if she were placed in the

custody of the father, the father objected on the ground that

the question called for speculation, and the judge overruled the

objection. Dr. Bell testified that if Elisa were removed from

her preadoptive home she "would in effect become a child with

special needs" that would require "an extraordinarily skilled

level of parenting" to respond to her emotional distress and

15
angry outbursts. When Dr. Bell testified that in her opinion

the father due to his mental health issues did not have the

capacity to adequately parent Elisa, the judge sustained the

father's objection and struck the testimony on the ground that

it went to the ultimate issue. At another point, when counsel

for the mother asked if ceasing visits with the father would be

more traumatic for Elisa than removal from the preadoptive

family, the judge sustained the father's objection, ruling that

"the point is dangerously close to a comparative parenting

analysis." See Guardianship of Estelle, 70 Mass. App. Ct. 575,

580 (2007) ("we do not transfer a child from his or her parent

to other custodians merely because the latter may provide a more

advantageous environment for the child's upbringing").

Crediting Dr. Bell's testimony, the judge found that "to

remove this healthy, well-adjusted Child from a family setting

where all her needs are being met and place her in a setting

where her needs may be ignored, or worse yet, met with

aggressive opposition, would in fact create a child with a host

of social, emotional, and mental health needs that Father is

woefully unprepared to meet." We conclude that the judge

appropriately applied G. L. c. 210, § 3 (c) (vii), in

determining the father's unfitness as a parent to Elisa. See

16
Adoption of Rhona, 63 Mass. App. Ct. at 127-129.

Conclusion. We conclude that the judge had before her

ample clear and convincing evidence on which to base her finding

that the father was unfit to parent Elisa, that his unfitness as

a parent was likely to continue, and that termination of his

parental rights was in Elisa's best interests.

Decrees affirmed.

By the Court (Rubin,
Massing & Grant, JJ.7),

Clerk

Entered: October 23, 2024.

7 The panelists are listed in order of seniority.

17