Adoption of Rahkeem.

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-880

ADOPTION OF RAHKEEM.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, the mother and the father appeal from

Juvenile Court decrees finding each of them unfit to parent

their child, Rahkeem, and terminating their parental rights to

Rahkeem. The mother also appeals from the denial of her motion

for a new trial, which argued that (1) Rahkeem's former

temporary custodians should have been afforded counsel at

hearings concerning Rahkeem's removal from, and possible return

to, their custody; and (2) the judge should have mandated

sibling visitation between Rahkeem and his maternal half-

siblings (Jillian, Sam, and Angela).2 We affirm.

Background. We summarize the facts found by the judge

after trial, saving some details for later discussion. Ten

1 A pseudonym.
2 Also pseudonyms.
months before Rahkeem was born, the Department of Children and

Families (DCF) became involved with the mother when a report

pursuant to G. L. c. 119, § 51A (51A report) was filed alleging

neglect of her older children (Jillian, Sam, and Angela). After

an investigation, the report was deemed supported due to mutual

domestic violence between the mother and Filippo,3 who is the

father of Sam and Angela.

The mother became involved with the man who would become

the father of Rahkeem;4 that relationship was fraught with

domestic violence. The father admitted to previous gang

involvement and has a significant criminal history, with

convictions for violent crimes, including armed assault with

intent to murder for which he served a State prison sentence.

At trial, in response to questions about his relationship with

the mother, the father asserted his Fifth Amendment to the

United States Constitution privilege. Throughout the

proceedings, the mother denied or minimized the extent of the

domestic violence in their relationship. She did obtain two

G. L. c. 209A restraining orders against the father, but each

lapsed after two weeks or less.

3 Filippo is also a pseudonym.

4 Hereinafter, all references to "the father" shall be to
Rahkeem's father.

2
The mother has a long history of alcohol misuse, which she

denied or minimized; she would not permit DCF or the court to

verify her participation in substance use disorder treatment.

The mother also has mental health diagnoses including

depression, but would not allow DCF to speak to her clinicians

and concealed from her therapist the extent of her alcohol

consumption and her continuing relationship with the father. In

addition, the mother's housing was unstable.

In February 2018, Rahkeem was born. In the first five

months of Rahkeem's life, the mother failed to bring him to

three medical appointments. In July 2018, a 51A report alleging

neglect of Rahkeem was filed and later supported because of

domestic violence between the mother and the father in the

presence of Rahkeem, Sam, and Jillian. Responding officers saw

several open beer containers and injuries to the mother,

including swelling and blackness to her eye, but she denied that

they were the result of domestic violence.

In October 2018, another 51A report alleging neglect of

Rahkeem was filed and later supported after the mother and the

father were fighting in public and bystanders called the police.

When police arrived, the father was gone; the mother was

intoxicated, her face was bloodied, and she refused to disclose

her name. Rahkeem was nearby in the mother's car. The mother

3
denied that her injuries resulted from domestic violence,

maintaining that she fell down stairs. The mother later

admitted that the father had caused her injuries, which included

a broken nose, and that Rahkeem was crying while the father was

hitting her. A subsequent skeletal survey revealed that Rahkeem

had a skull fracture. The mother later admitted that Rahkeem's

skull fracture likely occurred during a domestic violence

incident while she was holding Rahkeem, though at trial she

denied having said that and claimed that Rahkeem fell from the

bed while her older children were taking care of him or,

alternatively, that Angela had dropped him. During the

investigation, DCF obtained a photograph of Rahkeem lying next

to a handgun; the mother refused to say when it was taken or who

owned the handgun.

DCF filed this care and protection petition and was awarded

temporary custody of Rahkeem.5 Rahkeem was placed in a kinship

5 The petition also alleged that Jillian, Sam, and Angela
were in need of care and protection. In 2019, Jillian reached
age eighteen and was no longer subject to Juvenile Court
jurisdiction; she was dismissed from the case. On the last day
of trial, the mother joined DCF's request for Sam and Angela to
be placed in the permanent custody of Filippo. Decrees issued
finding the mother unfit to parent Sam and Angela and placing
them in the permanent custody of Filippo. The mother filed
notices of appeal from those decrees, but did not enter those
appeals in this court and does not raise in her brief any issues
as to the care and protection of Sam and Angela. In those
circumstances, we do not consider any issues concerning the care
and protection of the mother's older children. We also note

4
foster placement with the mother's great aunt (aunt) and the

aunt's son (cousin). During its custody of Rahkeem, DCF

required that each parent's visits with Rahkeem be supervised

and take place at a DCF office.

In April 2019, an anonymous 51A report was filed alleging

neglect of Rahkeem because the mother was visiting him at the

home of the aunt and cousin. After an investigation, that 51A

report was unsupported, but concerns were noted that the home

did not meet DCF's standards for a foster placement for reasons

including that Rahkeem did not have his own bedroom.

Rahkeem filed a motion to be placed in the direct,

temporary custody of the aunt and cousin. On May 29, 2019, the

Juvenile Court entered an order granting temporary custody to

the aunt and cousin until September 6, 2019. The conditions of

temporary custody included that each parent's visits with

Rahkeem would occur separately, in a public place, and be

supervised by either the aunt or the cousin. Temporary custody

was extended repeatedly for short intervals ranging from one to

four months. Under the aunt's supervision, the mother was able

to visit Rahkeem multiple times each week. At first the

father's visits also were supervised by the aunt; he did not

that in 2023, Sam reached age eighteen and is no longer subject
to Juvenile Court jurisdiction.

5
have a fixed schedule and sometimes weeks went by during which

he did not visit Rahkeem.

Beginning in August 2019, the mother was living in a

domestic violence shelter. She continued to see the father and

to drink alcohol. In November 2019, a 51A report was filed

alleging neglect of Rahkeem, Sam, and Angela by the mother and

the father. The mother had gone to the aunt's home with the

father seeking to take Rahkeem away with her. While the mother

was there, Filippo arrived with Sam and Angela. The mother and

the father engaged in an altercation with Filippo. The aunt

locked the door to her home so that Rahkeem was not exposed to

the altercation. The mother later admitted that at that time

she was drinking a lot.

As a result of the incident and the parents' fighting with

her, the aunt suspended the parents' visits with Rahkeem for

about two months. Both parents blamed the aunt for the

suspension of visits; the father tried to intimidate her, the

mother tried to manipulate her, and both parents threatened her.

The aunt told both the ongoing social worker and the court

investigator that she would be afraid to testify against the

parents, as she feared retaliation from the father if she told

the truth, and so if she were required to testify in front of

the parents, she would lie.

6
At a March 10, 2020, hearing, a Juvenile Court judge

renewed the temporary custody order so that it awarded custody

to only the aunt; subsequent orders also were in her name only.

The judge also amended the conditions of custody so that the

father's visits would be supervised by an independent social

worker. Soon after that hearing, in-person visits were

suspended for several months due to the COVID-19 pandemic. The

father blamed the aunt for the suspension of visits and

threatened to take her to court. Once visits were reinstated,

the father's visits continued to be supervised by the social

worker, but the father did not appear consistently for weekly

visits.

In December 2020, Chelsea police responded to a hotel for a

domestic violence incident between the mother and the father.

The mother was intoxicated and reported that the father had

punched her, knocking out her tooth, but she refused medical

treatment.

Less than a month before trial began, the mother entered a

residential facility for treatment of substance use disorder,

Casa Esperanza. She was continuing to have contact with the

father. After the ongoing social worker arranged for the

mother's visits with Rahkeem to be supervised by Casa Esperanza

staff, the mother had some visits with Rahkeem there.

7
Trial began on January 15, 2021 and continued over twelve

nonconsecutive days. On several occasions in early February

2021, Casa Esperanza staff told the mother that her continued

contact with the father was putting her and other residents at

risk, and if she persisted, she would be asked to leave the

program. The mother was in complete denial about the risk to

her safety. At about this time, the ongoing DCF clinical team

met with the aunt and told her that the mother's visits with

Rahkeem could be supervised by staff at Casa Esperanza, and the

father's visits with Rahkeem were still to be supervised by the

social worker.

As of early March 2021, two days of trial had taken place.

The mother left Casa Esperanza, rescinding her releases so that

DCF could not determine when or why she left. She deceived the

aunt and cousin, telling them that she had completed the Casa

Esperanza program and therefore, she could now have unsupervised

visits with Rahkeem. The aunt needed someone to babysit Rahkeem

while the cousin took her to an appointment for eye surgery on

the morning of March 12. When the aunt told Filippo that she

was planning to leave Rahkeem in the mother's care, Filippo

advised her not to do so because the mother would bring Rahkeem

to the father, which could result in harm to Rahkeem as had

8
happened in the past; the aunt replied that she was "desperate."

It did not occur to the aunt to ask DCF what to do.

At 7 P.M. on March 11, 2021, the aunt and the cousin left

Rahkeem at a hotel in Chelsea. At 11:45 P.M., police responded

to a report of a fight at the hotel. The mother was in the

hotel room with Rahkeem, then three years old. He had a bloody

gash above his right eye and blood all over his face and shirt.

The mother told police that Rahkeem's injury occurred when she

and her boyfriend were fighting and Rahkeem was pushed; at trial

she denied having said that, but the judge did not credit her

denial. Rahkeem was taken by ambulance to a hospital. A 51A

report was filed against the mother and the father.

At about 9 A.M. on March 12, the DCF emergency response

worker and ongoing social worker arrived at the hotel. The

mother, the father, and Rahkeem were in the hotel room, which

was still in disarray, with multiple beer containers strewn

around and dried blood on the floor and the sheets. Rahkeem was

sitting on the bed with dried blood on his face, eyelashes, and

shirt. When the DCF workers asked why the mother was not at

Casa Esperanza, the mother lied, claiming she had successfully

completed the program. The father and the mother at first

denied the father's identity, intentionally misleading DCF.

9
Then the father screamed, "You can't take my son," and the

mother told him in Spanish to "shut up."

The DCF workers spoke to the aunt, who admitted through a

Spanish interpreter that she had dropped Rahkeem off with his

"mom and dad" the night before so that the mother could babysit

during the aunt's medical appointment. The aunt acknowledged

that her doing so violated the court order requiring that the

parents' visits with Rahkeem be supervised. The aunt admitted

that Rahkeem had visited the mother at the hotel on a previous

occasion and claimed that the ongoing social worker had approved

that visit, which was not true. A 51A report was also filed

against the aunt and later supported.

At an emergency custody hearing on March 15, 2021, see

G. L. c. 119, § 24, the judge vacated the order granting

temporary custody of Rahkeem to the aunt. Two days later, the

father moved for custody of Rahkeem to be awarded to the aunt

and the cousin.6 The judge considered the father's motion in

conjunction with the trial on the merits and permitted the

father to call the aunt and the cousin out of order to testify.

6 That motion is not in the appellate record, but from the
transcript we infer that in it the father sought to award
custody of Rahkeem to both the aunt and the cousin. At that
point, the cousin had not been named as custodian of Rahkeem for
more than one year. The five previous temporary custody orders
named only the aunt as custodian, including the most recent one
dated February 24, 2021.

10
Two months after the removal of Rahkeem from the aunt's

temporary custody, DCF's goal for Rahkeem was changed to

adoption.

After the close of evidence at trial, the judge denied the

father's motion for custody of Rahkeem to be awarded to the aunt

and cousin. On November 15, 2021, decrees entered terminating

the mother's and the father's parental rights to Rahkeem. The

judge ordered that the parents be offered posttermination visits

for limited time periods (unless Rahkeem was placed in a

preadoptive home prior to the expiration of those periods), but

declined to mandate postadoption contact and or visitation

between Rahkeem and either parent, entrusting those decisions to

Rahkeem's guardian or adoptive resource. Both parents appealed.

The mother moved pursuant to Mass. R. Civ. P. 60 (b) (5),

365 Mass. 828 (1974), for a new trial, incorporating by

reference arguments in a separate motion filed by the aunt and

cousin asserting that as temporary custodians they should have

been afforded counsel at the hearings pertaining to Rahkeem's

removal from, and possible return to, their custody. The mother

also argued that the judge should have mandated sibling

visitation between Rahkeem and his three maternal half-siblings

(Jillian, Sam, and Angela). The judge denied the motion for a

11
new trial and request for sibling visitation, and the mother

appealed.

Discussion. 1. Parents' appeals from the termination of

their parental rights. The mother and father concede their

unfitness at the time of trial.7

a. Competing permanency plans. The parents argue that the

judge abused her discretion in declining to adopt their proposed

plans to place Rahkeem either in the custody of the aunt or in

the custody of the aunt and the cousin. We disagree.

The judge explicitly considered the parents' nominations of

the aunt and the cousin as caretakers. In doing so, the judge

considered the testimony of the aunt and the cousin, much of

which she did not credit. In particular, the judge noted

inconsistencies between their testimony about leaving Rahkeem at

the hotel and the mother's testimony about the same event. The

judge also had in evidence a report of a home screening of the

aunt and the cousin. In addition, the judge considered DCF's

adoption plan, which noted that Rahkeem was "well-bonded" to the

aunt. The adoption plan set forth several possible kinship

As stated, neither parent contests the judge's findings as
7

to their unfitness. Based on our review of the overwhelming
evidence of domestic violence and its impact on Rahkeem, we
would find no merit to any such claims. See Adoption of Jacob,
99 Mass. App. Ct. 258, 264-265 (2021). See also Custody of
Vaughn, 422 Mass. 590, 599 (1996).

12
placements -- which did not include the aunt or the

cousin -- and the alternative of recruitment of a preadoptive

foster home.8

The judge found that the aunt "loves" Rahkeem, but credited

DCF's concern that the aunt and the cousin were unable to keep

Rahkeem safe. Crediting the testimony of the ongoing social

worker, the judge found that the aunt was not a suitable

placement because "[i]t was [the aunt]'s decision to allow

Mother and [Father] to have unsupervised contact with [Rahkeem],

which led to the injury of the child," and the aunt was easily

manipulated by the parents. In addition, the judge found not

credible the aunt's testimony that she had followed the

recommendations of an early intervention worker to help Rahkeem

overcome his delays in speech and gross motor skills. The judge

concluded that placement of Rahkeem with the aunt and the cousin

would not be in the child's best interests because it "would

expose [Rahkeem] to the parents['] untreated substance abuse and

ongoing domestic violence." We discern no abuse of discretion

in the judge's determination that the aunt and the cousin were

not a suitable placement based on those findings of fact.

8 The judge concluded that the adoption plan was
sufficiently developed, and we concur. See Adoption of Paula,
420 Mass. 716, 722 n.7 (1995); Adoption of Gertrude, 99 Mass.
App. Ct. 817, 823 (2021).

13
The mother argues that the judge abused her discretion by

declining to order posttermination or postadoption visitation

between Rahkeem and the aunt and the cousin. "A 'judge who

finds parental unfitness to be established has broad discretion

to determine what is in a child's best interests with respect to

custody and visitation with biological family members

thereafter.'" Adoption of Ursa, 103 Mass. App. Ct. 558, 571

(2023), quoting Adoption of Rico, 453 Mass. 749, 756 (2009)

(rejecting mother's argument that judge should have ordered

visitation between children and grandmother). We discern no

such abuse of discretion.

b. Best interests of the child. The father argues that

the judge erred in terminating his parental rights to Rahkeem,

contending that the findings as to the best interests of the

child were "legally insufficient." The father does not contest

the accuracy of the findings that the judge did make concerning

the parents' unfitness and the best interests of the child.

Rather, the father argues that the judge's findings were clearly

erroneous because they ignored evidence of the feasibility of

placing Rahkeem with the aunt, which would not have required

termination of the father's parental rights. We are not

persuaded. As discussed above, the judge did not abuse her

discretion in concluding that the aunt was not a suitable

14
placement because she was unable to keep Rahkeem safe from harm

that occurred during unsupervised contact with the father. For

the same reason, the judge did not abuse her discretion in

concluding that termination of the father's parental rights was

in the best interests of the child. See Adoption of Nancy, 443

Mass. 512, 519 (2005).

2. Motion for a new trial. a. Rights to counsel of aunt

and cousin. The mother argues that the judge should have

granted her a new trial, contending that the rights to counsel

of the aunt and cousin were violated at the emergency custody

hearing and at the portions of trial at which the judge

considered whether to place Rahkeem in their custody. The

mother points to G. L. c. 119, § 29, which provides that at all

hearings in child custody proceedings to which DCF is a party,

"the parent, guardian or custodian of the child . . . shall have

and be informed of the right to counsel" (emphasis added).9 The

mother also relies on Care & Protection of Manuel, 428 Mass.

527, 530 (1998), which noted that a District Court judge had

appointed counsel for a temporary custodian at an emergency

custody hearing. But "allusions to the discretionary decision

9 Of course, as mentioned above, see note 6, supra, as of
the emergency custody hearing, the cousin had not been Rahkeem's
custodian for more than one year.

15
of a single trial judge do not amount to a rule" requiring such

appointment. Adoption of Jacob, 99 Mass. App. Ct. 258, 270 n.16

(2021) (trial judge's discretionary decision to permit

guardianship petitioners full access to care and protection

proceedings did not amount to rule requiring access in all

cases).

The mother waived this argument by failing to raise it at

trial. See Adoption of Ursa, 103 Mass. App. Ct. at 570.

Indeed, at the emergency custody hearing, the mother's position

conflicted with a return of custody to the aunt. When counsel

for DCF informed the judge that social workers involved in the

emergency removal were present and ready to testify, the judge

asked for the position of the mother, who was present, and her

counsel stated that the mother "would like to go forward with

the trial . . . to get custody returned to her."10 The mother

never argued at trial that the aunt or the cousin had a

statutory right to counsel, and so she waived the issue.11 Cf.

10Asked for the position of the father, who was not
present, his counsel replied that as of the previous hearing,
the father's position "was that the child should be in the
custody of the Mother or else in the custody of [the aunt]."
Two days later, when the father moved to place Rahkeem in the
custody of the aunt and cousin, the mother now took the position
that she was "fully supportive" of the father's motion. At
trial the mother asked for Rahkeem to be placed with the aunt.

11We do not reach DCF's argument that the disjunctive "or"
in G. L. c. 119, § 29, should be read to mean that only one of

16
Adoption of Jacob, 99 Mass. App. Ct. at 266 n.11 (noting that

mother and child both stated at trial that grandparents should

not be present during care and protection proceedings but argued

converse on appeal).

b. Sibling visitation. The judge ordered that Rahkeem

"shall continue to have regular visitation with his siblings,

Angela and Sam, within the parameters established by [Filippo]

and [DCF]." The mother contends that the judge should have

allowed her motion for a new trial to the extent that it sought

mandatory sibling visitation between Rahkeem and his three

maternal half-siblings, Jillian, Sam, and Angela.

Putting aside the question whether the mother continued to

have standing to seek sibling visitation on Rahkeem's behalf

once her parental rights were terminated, see Adoption of

Franklin, 99 Mass. App. Ct. 787, 803-805 (2021), we discern no

abuse of discretion in the judge's ruling that Rahkeem's

continued regular visitation with Angela and Sam was to take

place "within the parameters established by [Filippo] and

[DCF]." The judge properly left such issues as the frequency

and duration of sibling visits to the children's legal

custodians. See G. L. c. 119, § 26B (b). See also Adoption of

the three categories of caretaker -– parent, guardian, or
custodian – in any given case is entitled to counsel.

17
Garret, 92 Mass. App. Ct. 664, 680-681 (2018). The judge was

not required to dictate the terms of those visits, particularly

because she heard and credited evidence that the mother had not

only manipulated the aunt into giving her unsupervised access to

Rahkeem, but also manipulated family members into giving her

access to Angela and Sam, who did not want to see her.12

c. Disrupted placement. The mother contends, as she

asserted at argument on the motion for a new trial, that the

decree adopting DCF's permanency plan was no longer "equitable"

because of the recent disruption of a kinship placement of

Rahkeem. The judge heard the arguments of counsel as to the

reasons why the kinship placement was unsuccessful, and by

denying the motion for a new trial rejected the mother's

argument. We discern no abuse of discretion in the judge's

implicit ruling that the unsuccessful kinship placement did not

undermine the grounds supporting the decree. Cf. Adoption of

Cesar, 67 Mass. App. Ct. 708, 712-713 (2006) (mother's

significant improvements after trial did not render finding of

12The judge noted that in October 2020 the mother persuaded
the aunt to arrange a supposedly coincidental encounter between
the mother and Angela, who did not want to see the mother, and
that the mother arranged a similar encounter with Sam using the
maternal grandmother as a go-between. The mother admitted at
trial that she arranged those encounters and that she did not
regret doing so, which the judge found, evidenced the mother's
placing her own needs above those of her children and her
continued lack of insight into their feelings.

18
unfitness stale). But see Adoption of Franklin, 99 Mass. App.

Ct. at 792-793, 806-807 (remanding for reconsideration of

posttermination visitation between father and preteen child who

wanted visits, where adoption placement with siblings had been

disrupted due to child's mental illness and child had been in

institutional care for almost two years).

Conclusion. Accordingly, we affirm the decrees and the

order denying the mother's posttrial motion.

So ordered.

By the Court (Henry, Grant &
D'Angelo, JJ.13),

Assistant Clerk

Entered: June 3, 2024.

13 The panelists are listed in order of seniority.

19