Adoption of Camilla (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

22-P-240

ADOPTION OF CAMILLA
(and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees entered after trial in the

Probate and Family Court terminating her parental rights.2 At

trial, the mother stipulated that she was unfit but contends

that the judge erred because termination of her parental rights

was not in the children's best interests. She also argues that

the judge failed to ascertain or give sufficient weight to the

children's wishes, and that the judge abused his discretion in

limiting posttermination and postadoption visitation. We

affirm.

1. Background. Camilla was born in 2009 and Ben3 was born

in 2007. The Department of Children and Families (department)

1 Adoption of Ben. The children's names are pseudonyms.
2 The father's parental rights were terminated on February 8,
2018. He did not appeal from that decision.
3 Ben filed a notice of appeal and thereafter resolved his

claims. Ben's motion to dismiss his appeal was allowed by this
court.
first became involved with the family in December 2010, when it

received two reports filed pursuant to G. L. c. 119, § 51A (51A

report), alleging that the children witnessed an incident of

domestic violence between the mother and father. After an

investigation conducted pursuant to G. L. c. 119, § 51B (51B

investigation), the department closed the case because the

mother had obtained a restraining order pursuant to G. L.

c. 209A against the father, and the two were in individual

counseling. Subsequently, another 51A report was filed, again

alleging domestic violence, and during the 51B investigation, an

additional 51A report was filed and screened in, alleging

neglect of the children. This time the department opened the

case for services.

By February 2013, the children were living with the

maternal grandparents pursuant to a caregiver affidavit signed

by the mother. Multiple 51A reports were filed during this time

alleging neglect and both physical and sexual abuse of Camilla

by the maternal grandfather and neglect by the maternal

grandmother. The department returned the children to the

mother's home.

In September 2013, a 51A report was filed alleging neglect

of the children by the mother and the father. The report

alleged that the father was a level three sex offender and lived

in the mother's home in violation of a court order. The report

2
also alleged that the father hid, or the mother lied about where

the father lived, during department visits to the mother's home.

During the 51B investigation, the department learned that Ben

was exhibiting problematic behaviors at school, had sporadic

attendance, and arrived at school tired and hungry. Ben

described fights that he witnessed between his parents including

one in which the mother hit the father in the face. In

addition, the social worker observed Camilla at her day care and

noted that her hair was matted, and that she appeared dirty.

Day care staff reported that Camilla arrived tired and hungry.

Camilla reported that her parents fought a lot, and that she saw

her mother kick her father in the head when the father climbed

through a window.

During this time, numerous 51A reports were filed, many of

which chronicled instances of domestic violence between the

mother and her romantic partners, the mother's substance misuse,

and her mental health struggles. Additional 51A reports alleged

that the mother was under the influence of something when she

met the children from the bus, her new boyfriend used drugs in

front of the children, the mother had homeless people living

with her, and that someone had overdosed in her home. In

addition, 51A reports alleged that the mother forgot to

3
administer Ben's medication, and thereafter, Ben presented at

school as overmedicated.4

In August 2015, the department received another 51A report,

which alleged that the mother's home had been condemned by the

board of health and the mother had attempted suicide; this

report was supported after the department's investigation. The

maternal grandparents obtained temporary guardianship of the

children. In January 2016, the department returned the children

to the mother, but removed them in February after a department

social worker saw the mother buying alcohol at a liquor store.

Thereafter, the department filed a care and protection petition

pursuant to G. L. c. 119, § 24, and the department was awarded

custody of the children. In January 2017, the department filed

a petition seeking to terminate the mother's parental rights

pursuant to G. L. c. 210, § 3. On December 12, 2017, the mother

signed a stipulation agreeing that she was then unfit to parent

the children, and that the children should be placed in the

department's permanent custody. The department withdrew the

petition to terminate the mother's parental rights.

On October 29, 2020, the department filed petitions to

dispense with parental consent to adoption of the children

4 Most of the 51A reports were screened in but some were screened
out on the basis that the family was already being monitored by
the department.

4
pursuant to G. L. c. 210, § 3. At trial, the mother again

stipulated that she was unfit, and that the children should

remain in the permanent custody of the department; she objected,

however, to the termination of her parental rights. After a

trial in June 2021, the judge terminated the mother's parental

rights and ordered posttermination and postadoption visitation.

This appeal followed.

2. Discussion. Best interests of the children. Because

the mother stipulated to unfitness, the sole issue at trial was

whether the termination of her parental rights was in the

children's best interests, and the critical question in that

regard was whether the department produced clear and convincing

evidence that the mother likely would remain unfit in the

future. See Adoption of Ilona, 459 Mass. 53, 59-60 (2011). "We

give substantial deference to the judge's findings of fact and

decision, and will 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 Luc, 484 Mass. 139, 144

(2020), quoting Adoption of Ilona, supra at 59.

Evidence of the mother's past unfitness (something she

stipulated to twice in these proceedings) is relevant to the

determination of the children's best interests because a

"pattern of parental neglect or misconduct" may be considered

"in determining future fitness and the likelihood of harm to the

5
child[ren]." Adoption of Elena, 446 Mass. 24, 33 (2006). Here,

the record is replete with evidence that the mother's

relationships were permeated with domestic violence, she

struggled with substance misuse, and did not follow through with

the recommended treatment.5 The judge properly considered this

evidence in assessing whether termination of the mother's

parental rights was in the children's best interests. See

Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997).

The evidence supporting the mother's unfitness included

being the victim of and perpetrating domestic violence. See

Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015) ("witnessing

domestic violence, as well as being one of its victims, has a

profound impact on children" [quotation and citation omitted]).

See also Custody of Vaughn, 422 Mass. 590, 595 (1996) ("a child

who has been either the victim or the spectator of such abuse

suffers a distinctly grievous kind of harm"). It also included

the mother's struggle with substance use disorder,6 see Adoption

of Helen, 429 Mass. 856, 860 (1999) ("unsuccessful attempts to

5 Notably, the mother does not allege that any of the findings of
fact are erroneous.
6 The mother began misusing alcohol and drugs at age thirteen.

In August 2012, the mother agreed to seek treatment after two
51A reports were filed. Between 2015 and 2017, the mother
relapsed on heroin multiple times. Although she was prescribed
Suboxone, the mother began purchasing it "off the street" when
the prescription ran out. The mother was asked to leave two
different substance misuse treatment facilities for violating
the programs' rules.

6
address . . . substance [mis]use" properly considered in

termination proceedings), and her failure to follow through with

recommended treatment,7 see Adoption of Luc, 484 Mass. at 147.

The evidence of the mother's conduct demonstrated that she

was either continuing to experience issues or failing to

acknowledge and address them. Because the judge is permitted to

use "past conduct, medical history, and present events to

predict future ability and performance as a parent," Care &

Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998), we

discern no clear error or abuse of discretion in his

determination that the mother's longstanding issues were likely

to continue in the future such that termination of her parental

rights was in the children's best interests. See Adoption of

Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) ("It is in the best

interests of Gwendolyn to have 'parents' who can and who will,

on a consistent, longterm basis, assume all parental

responsibilities and who can provide Gwendolyn with the stable

and continuous care and nurturing she needs and will continue to

need as a child"). This is particularly true where the children

7 Throughout this litigation, the mother struggled to attend
substance misuse treatment as required by the department. At
trial, the mother testified that she had been sober for five and
one-half years, however, a urine test on the second day of trial
was positive for numerous substances. The mother admitted that
she had used crack cocaine, Klonopin, and heroin in the days
prior. Thereafter, the mother did not attend the last day of
trial.

7
each have special needs.8 See Adoption of Frederick, 405 Mass.

1, 9 (1989).

The mother's claim that the judge did not ascertain or

properly weigh the children's wishes is belied by the record.

The judge noted that Camilla is "very connected" to her foster

parents and "very bonded" to the mother and did not wish to be

adopted.9 While a judge should consider the children's wishes,

their views are not decisive, nor outcome determinative. See

Adoption of Nancy, 443 Mass. 512, 518 (2005). To the extent

that the mother contends that Camilla should have been called as

a witness or that the judge should have spoken to her in

chambers, this argument is made for the first time on appeal and

is therefore waived. See White v. White, 40 Mass. App. Ct. 132,

133 (1996). Moreover, the mother does not have standing to

challenge the strategy of Camilla's counsel. See Adoption of

Mary, 414 Mass. 705, 713 (1993).

8 Ben is diagnosed with posttraumatic stress disorder, reactive-
attachment disorder, ADHD, major depressive disorder, and
generalized anxiety disorder. He has attempted suicide twice,
in 2019 and 2020. At the time of trial, Ben was living at a
residential program for adolescents with complex trauma and
behavioral issues, where his behavior has improved greatly.
Prior to her current placement, Camilla spent one hundred days
in a residential treatment program because she struggled with
her significant behavioral and emotional needs. In her current
placement Camilla has improved substantially.
9 We note that on appeal, Camilla supports the termination of the

mother's parental rights and the order of posttermination and
postadoption visitation.

8
Posttermination and postadoption visitation. "Once it is

established that a parent is unfit, the decision whether to

grant postadoption [or posttermination] visits must be left to

the sound discretion of the trial judge. The judge's discretion

is not, however, unfettered, but must be grounded in the over-

all best interests of the child, based on emotional bonding and

other circumstances of the actual personal relationship of the

child and the biological parent, not in the rights of the

biological parent nor the legal consequences of their natural

relation" (quotations and citations omitted). Adoption of

Terrence, 57 Mass. App. Ct. 832, 839 (2003). Here, the judge

considered the children's bonds with the mother and ordered that

the mother have, at a minimum, three visits per year. We

discern no clear error or abuse of discretion in the judge's

order.

Decrees affirmed.

By the Court (Blake, Walsh &
Hershfang, JJ.10),

Clerk

Entered: July 14, 2023.

10 The panelists are listed in order of seniority.

9