Adoption of Ferdinand.

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-303

ADOPTION OF FERDINAND.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree of the Juvenile Court

finding her unfit to parent her son, Ferdinand (child), and

terminating her parental rights as to the child.2 She also

appeals from the judge's decision denying posttermination and

postadoption visitation with the child. She argues that (1)

there was a lack of clear and convincing evidence to support the

termination of her parental rights; (2) the judge improperly

shifted the burden to her "to prove her mental fitness"; (3) the

judge abused her discretion by crediting statements of the

father, given the father's abuse of the mother; and (4) the

judge's decision denying posttermination and postadoption

visitation was arbitrary and capricious. We affirm the decree

but vacate the order denying visitation.

1 A pseudonym.
2 The father did not appeal from the termination of his parental
rights.
Discussion. 1. Evidence supporting termination. The

mother first argues that there was a lack of clear and

convincing evidence to support the termination of her parental

rights because many of the judge's findings were clearly

erroneous and because the judge impermissibly relied on hearsay

evidence. We disagree.

At the outset, we consider the mother's argument that the

judge relied on imbedded hearsay when she relied on statements

made by the hospital social worker, which were contained in

reports filed with the Department of Children and Families (DCF)

pursuant to G. L. c. 119, § 51A (51A reports). DCF identified

the hospital social worker by her first and last name in

exhibits properly admitted at trial, including an affidavit of a

DCF social worker and at least two 51A reports.3 The Supreme

Judicial Court has held that "first- and second-level hearsay

contained within DCF reports and official DCF records is

admissible for statements of primary fact, so long as the

hearsay source is specifically identified in the document and is

available for cross-examination, should the party challenging

the evidence request to do so." Adoption of Luc, 484 Mass. 139,

153 (2020). As such, there was no error in the judge's reliance

3 "51A reports are admissible to 'set the stage' to explain how
[DCF] became involved with the family." Adoption of Chad, 94
Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28
Mass. App. Ct. 260, 267 (1990).

2
on the 51A reports that clearly identified the hospital social

worker. See id.

"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 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 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.

"On appeal, '[w]e 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 Bea, supra at 422,

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

3
Here, the judge heard from four witnesses4 and reviewed

forty-four exhibits over the course of four days of trial.5 The

exhibits included, inter alia, court activity record information

(CARI) reports for both the mother and the father, an affidavit

from a DCF social worker with knowledge of the child's case,

five court reports authored by a DCF social worker, the child's

hospital records, eleven 51A reports, numerous assessments and

action plans prepared by DCF, and records of the Randolph and

Brockton Police Departments.

These exhibits and testimony were sufficient to support, by

a fair preponderance of the evidence, the judge's findings of

fact, which she described generally in the summary of her

decision:

"Mother and Father have a tumultuous relationship ridden
with physical and sexual abuse. . . . Mother has a
significant history of substance abuse, mental illness and
domestic violence. . . . Mother has not had stable housing
suitable for [the child] throughout the pendency of this
case and has never demonstrated an ability to maintain a
consistently safe home, free from domestic violence.
Mother continues to engage in violent relationships,
whether romantic or familial. . . . Mother has selectively
engaged in services [offered by DCF], attending some
programs but refusing to avail herself of others. Any
services Mother engaged in have been ineffective. She has
never taken responsibility for her actions or acknowledged
her issues, but instead blames others."

4 The trial witnesses were (1) the mother; (2) the father; (3) an
ongoing social worker employed by DCF; and (4) an adoption
social worker employed by DCF.
5 The trial occurred on four nonconsecutive days from March 12,

2021, to July 13, 2021. Witnesses testified on March 12, June
1, and June 3, and closing arguments were heard on July 13.

4
See Adoption of Bea, 97 Mass. App. Ct. at 421-422. These

findings, in turn, supported the judge's ultimate conclusion:

"At this time, the Court finds there is clear and
convincing evidence that Mother is not fit to care for the
child, nor will she be in the foreseeable future. The
Court also finds that it is in the best interests of [the
child] that both Mother's and Father's parental rights be
terminated, and that the child finally be afforded
permanence, safety, and stability through adoption."

See id.

The mother asserts that the judge's findings of fact are so

riddled with clearly erroneous findings that "[t]here was a lack

of clear and convincing evidence to support a termination of

[her] parental rights." See id. at 421-422. She points to many

alleged inconsistencies in the judge's findings and conclusions.

Without reciting them individually, these alleged

inconsistencies amount to arguments that the evidence adduced at

trial did not support the judge's findings that (1) the mother

has a history of substance abuse that impacted her ability to

care for the child; (2) the mother had previous interactions

with the legal system; (3) the mother failed to obtain

recommended prenatal care; and (4) it was, at times, difficult

to ascertain the mother's compliance with her service plans

(also referred to as action plans). Concluding that there was

indeed sufficient evidence to support these findings, we are not

persuaded.

5
The record at trial was replete with properly admitted

evidence and testimony supporting the judge's conclusion that

the mother had significant issues with substance abuse that

severely impacted her ability to care for the child. The child

was born in June 2019. The 51A report dated June 7, 2019,

stated that the mother had tested positive for norfentanyl6 on

two occasions in April 2019 and at least one of these tests was

further documented in the child's medical records. The child's

medical records also revealed that he was born with neonatal

abstinence syndrome. Although the mother asserts that her

positive test for norfentanyl was the result of skin-to-skin

contact with the father, the judge was free to discredit this

assertion.7 See Adoption of Quentin, 424 Mass. 882, 886 (1997)

("the judge's assessment of the weight of the evidence and the

credibility of the witnesses is entitled to deference"). DCF

also documented an incident that occurred shortly after the

child's birth, in which the mother and the father were observed

leaving the hospital at around 1:30 A.M. and did not return

until 3:15 A.M., at which point they appeared to hospital staff

to be under the influence of narcotics. The following morning,

6 A DCF trial exhibit stated that "when Norfentanyl is present in
a urine tox screen, that is indicative of ingestion of
fentanyl."
7 A nurse from the mother's obstetrician's office told a DCF

social worker that second-hand exposure to fentanyl cannot cause
a positive test for norfentanyl, as the mother claimed.

6
the mother fell asleep while caring for the child. This

evidence, taken together, supported the judge's findings with

respect to the mother's substance abuse and its impact on the

child. See Adoption of Jacques, 82 Mass. App. Ct. at 606.

The mother further argues that the judge erroneously

concluded that she had a "criminal history spanning from 2012-

2020." Her CARI report, which was appropriately entered in

evidence, states that she was charged with shoplifting in 2012

and assault and battery in 2020. Whatever the disposition of

those cases, we discern no error in the judge's characterization

of her undisputed interactions with the criminal justice system

as "[having] a criminal history."8

The mother further challenges the judge's findings that she

did not obtain adequate prenatal care prior to giving birth to

the child. Although the mother claimed to a DCF social worker

during a home visit that she obtained care at a clinic in

Brockton before switching to a different obstetrician's office,

see note 7, supra, the judge was free to discredit that claim.

See Adoption of Quentin, 424 Mass. at 886. A DCF social worker

spoke with a representative of the obstetrician's office, who

told her that the mother was not compliant with her prenatal

8 Evidence before the judge also described several instances when
the police intervened in disputes involving the mother and
others, including both of the mother's parents and men with whom
the mother had relationships.

7
care as she only made four appointments. The mother's

obstetrician told the same worker that the mother did not begin

prenatal care until her twenty-ninth week of pregnancy. The

judge was free to credit statements by the mother's caregivers

and to discredit the mother's contrary assertions.9 See id.

2. Mental health issues. Next, the mother contends that

the judge improperly shifted the burden of "prov[ing] her mental

fitness" onto her when the judge noted that the mother signed

releases permitting her caregivers to provide only limited

information about her mental health treatment to DCF. She

asserts that she has a statutory right to the confidentiality of

her mental health medical records and that the judge erred by

drawing a negative inference from her refusal, on the advice of

her attorney, to be more forthcoming with respect to her mental

health treatment. She further asserts that DCF had an

obligation to provide her with more active assistance in

obtaining a psychological evaluation. We discern no error.

9 The mother also challenges the judge's finding that "[i]n the
Fall of 2019, it was difficult to confirm Mother's compliance
with the service plan." Assuming without deciding that the
evidence before the judge supported a finding that DCF was aware
the mother was in compliance with portions of her service plan
at that time, such compliance would not end the inquiry. There
was sufficient support for termination of her parental rights
for other reasons, including findings with respect to her
persistent mental health issues, substance abuse, financial and
housing instability, and interactions with law enforcement.

8
"The burden of proof in care and protection cases and

proceedings to dispense with consent to adoption is on the

petitioner to prove current parental unfitness by clear and

convincing evidence." Adoption of Larry, 434 Mass. 456, 470

(2001). "The burden never shifts to the parents." Id.

Here, the burden to prove the mother's mental health issues

was properly placed on DCF. DCF entered evidence showing that

the mother has suffered from a history of posttraumatic stress

disorder, obsessive compulsive disorder, anxiety, depression,

and a chronic sleep disorder.10 The judge was entitled to credit

this evidence and to consider it in her overall evaluation of

the mother's fitness. See Adoption of Jacques, 82 Mass. App.

Ct. at 606. See also Adoption of Bea, 97 Mass. App. Ct. at 422.

DCF provided the mother with ample opportunity to address these

issues through participation in mental health treatment

programs, and the mother could have rebutted DCF's allegations

by showing compliance with these programs or any other efforts

the mother engaged in to address and improve her overall mental

health. There was no error where the judge took note of the

mother's failure to participate in DCF's efforts to address her

10In her brief before this court, the mother cited her sleep
disorder as an explanation for why she repeatedly fell asleep
while holding the child in the hospital. Of course, credibility
determinations are left to the sound discretion of the judge.
See Adoption of Quentin, 424 Mass. at 886.

9
mental health challenges as part of its holistic evaluation of

her fitness in the context of mental health treatment. A judge

may permissibly draw an adverse inference from the refusal to

provide mental health treatment records to DCF. See Adoption of

Bea, supra at 419 n.9 (judge drew adverse inference from

mother's refusal to provide results of psychological evaluation

to DCF). Thus, there was no error with respect to any negative

inference drawn from the mother's refusal to sign releases

enabling DCF to monitor her mental health treatment.

The mother's argument with respect to DCF's lack of effort

in helping her to obtain a psychological evaluation is also

unavailing. DCF added engagement in a psychological evaluation

to the mother's action plan dated October 22, 2020. Toward that

end, DCF provided the mother with a referral in order to permit

her to obtain such an evaluation. Thereafter, the mother

reported that she had scheduled an evaluation, however, she did

not sign the requisite release required for DCF to verify her

claim. It was not until March 2021 that the mother signed a

release that was sufficient to permit a DCF social worker to

confer with her mental health provider in order to corroborate,

inter alia, the mother's claims. As a result, the social worker

learned that the mother had not attended her scheduled

evaluation and had not made an appointment for another one

because she claimed difficulty completing the intake forms. The

10
social worker reached out to the mother's provider to attempt to

assist in arranging an appointment, but she was informed that

the provider had dropped the mother as a client.

It is undisputed that "[w]hen a child is removed from his

or her home and placed into the custody of [DCF], the department

is required by statute to make ongoing 'reasonable efforts to

make it possible for the child to return safely to his [or her]

parent or guardian.'" Care & Protection of Rashida, 488 Mass.

217, 218 (2021), quoting G. L. c. 119, § 29C. "Its duty,

however, [is] contingent upon the mother's fulfillment of her

own parental responsibilities." Adoption of Mario, 43 Mass.

App. Ct. 767, 774 (1997). Where the mother missed a scheduled

psychological exam, failed to schedule a makeup exam, and waited

at least four months to sign the release necessary to permit DCF

to monitor her compliance with this portion of the family action

plan, we discern no wrongdoing on the part of DCF, see Adoption

of Mario, supra, nor did the judge err in considering the

mother's noncompliance as part of an overall evaluation of the

mother's fitness, see Adoption of Jacques, 82 Mass. App. Ct. at

606.

3. Father's testimony. Additionally, the mother argues

that the judge's decision to credit the father's testimony with

respect to the nature of his relationship with the mother was

arbitrary and capricious because the father had a documented

11
history of domestic violence involving the mother and displayed

forceful and erratic behavior during his testimony. She further

asserts that the judge erred in failing to acknowledge that she

had ended her relationship with the father and in failing to

recognize the difficult and cyclical nature of violent domestic

relationships generally. As the mother's argument here

continues to dispute the validity of the judge's factual

findings, we "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 Bea, 97 Mass. App. Ct. at

422, quoting Adoption of Ilona, 459 Mass. at 59. Again, we

discern no error.

There can be no doubt that the mother and the father shared

a relationship rife with domestic violence. One of the most

serious instances of alleged violence occurred in August 2020.

Unsurprisingly, the mother and the father provided conflicting

testimony as to the events of the episode, in which the mother

asserts she was kidnapped and raped by the father, and the

father asserts the mother remained with him consensually and

threatened to harm herself. The mother was unable to provide an

explanation as to how the father was able to locate her at the

start of the incident and repeatedly refused to provide police

with access to a possible corroborating witness. A hotel guest

saw the mother chase the father out of a hotel room, and the

12
mother was observed hanging onto the father's car door as he

attempted to drive away. The judge noted that the father was

convicted of kidnapping, assault by means of a dangerous weapon,

and violating a restraining order. However, she credited the

father's testimony that the incident began when the mother

initiated contact with him. Given these facts, we discern no

error in the judge's assessment of the mother's and the father's

credibility regarding the competing testimony. See Adoption of

Quentin, 424 Mass. at 886.

4. Visitation. Finally, the mother challenges the judge's

decision not to order posttermination or postadoption contact

with the child.

Following the trial, on July 29, 2021, the judge issued an

"Order of Adjudication and Issuance of Decrees," in which she

found "[t]hat, given the lack of an identified adoptive resource

at this time, it is in the child's best interest to maintain

contact with his mother," and ordered "post termination contact

of a minimum of two visits per year between mother and child."

On October 28, 2021, however, the judge issued her "Findings,

Adjudication, Commitment Orders, and Order to Issue Decrees,"

finding, inter alia,

"no evidence to suggest visits with Mother would be in [the
child's] best interest. The Court finds that Mother's lack
of cooperation with the Department, refusal to consistently
engage in or benefit from services, failure to acknowledge
substance abuse issues, housing instability, and

13
inconsistency in visitation with [the child] are
significant factors in concluding that post-
termination/post-adoption contact is not in [the child's]
best interest."

On the record before us, we are unable to reconcile the

discrepancy in the judge's July 29 and October 28 decisions.11

Contrast Adoption of Edgar, 67 Mass. App. Ct. 368, 372-373

(2006) (judge's revised order denying visitation reflected

"changed circumstances and evolving best interests" of

children). We therefore remand for a clarification of the

posttermination and postadoption order of visitation. In light

of the passage of time, the judge may take additional evidence

to determine the current best interests of the child.

Conclusion. The decree is affirmed. The order of

posttermination and postadoption visitation is vacated and the

matter is remanded for further proceedings consistent with this

memorandum and order.

So ordered.

By the Court (Meade,
Desmond & Hand, JJ.12),

Clerk

Entered: July 21, 2023.

11 The judge recognized in both decisions that as of the end of
the trial, there was no preadoptive home for the child.
12 The panelists are listed in order of seniority.

14