ADOPTION OF IVO (And Two Companion Cases).

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-413

ADOPTION OF IVO (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After trial, a Juvenile Court judge found the mother and

father of the three children currently unfit, terminated their

parental rights, and approved the plans proposed by the

Department of Children and Families (department) for the

children's adoption. See G. L. c. 210, § 3. Each parent

appeals, maintaining (1) the evidence was insufficient to prove

that their parental unfitness was not temporary; and (2) the

judge made several clearly erroneous findings. The mother also

contends that the judge abused his discretion by leaving

posttermination and postadoption contact to the discretion of

their legal custodian or adoptive parents. We affirm.

1Adoption of Emily and Adoption of Laura. The children's
names are pseudonyms.
Background. "We recount the relevant facts, reserving

certain details for our discussion." Adoption of Nancy, 443

Mass. 512, 513 (2005). The mother and father are the parents of

Ivo (born 2016), Emily (born 2018), and Laura (born 2021). The

family first became involved with the department in 2017 when a

G. L. c. 119, § 51A, report (51A report) alleged that Ivo was

exposed to domestic violence when the parents had a physical

altercation that required police response and resulted in the

father's being arrested and charged with assault and battery by

means of a dangerous weapon. The mother admitted Ivo was

present during the altercation, but both parents denied that

there were other incidents of domestic violence. The department

eventually closed this case.

The family again became involved with the department in

October 2018, when another 51A report alleged parental neglect

of Ivo because he was exhibiting inappropriate sexualized

behavior, and the mother disclosed to the reporter that Ivo was

exposed to sexual content in the home. The 51A reporter raised

concerns with the mother about Ivo trying to put his hand down

another child's pants, and the mother said that the father

watched pornography around Ivo all the time, and the father hit

her in front of Ivo. The parents later denied these

allegations.

2
During a subsequent 51B investigation, the department

became aware that the father had pending charges for enticing a

child under the age of sixteen and lewd and gross conduct. The

father admitted to the department that Ivo accidentally opened a

pornography site while playing with the father's cell phone, and

Ivo may have witnessed the parents having sex. Both parents

denied having recent physical altercations, and the mother

maintained that the father was not abusive. Due to the family's

history of domestic violence, the father's open case for sexual

misconduct, and the mental health diagnoses of both parents, the

department opened the case for services.

The parents' second child, Emily, was born in December

2018. In February 2019 there was another incident of domestic

violence in the home. The police were called, and the mother

alleged that the father had grabbed her by the neck, and she had

punched him in the eye. The department filed the underlying

care and protection proceedings for Emily and Ivo. The

department sought and was awarded temporary custody of both

children in February 2019, and in January 2020 the department

changed the permanency goal from reunification to adoption.

After Ivo and Emily were removed from the parents' custody,

beginning in early 2019 and continuing until October 2021, the

mother repeatedly represented to the department that she did not

have a relationship with the father and was not in contact with

3
him. The father admitted to department workers that he had

interactions with the mother during this time but denied being

in a relationship with her. The judge did not credit the

parents' denials.

The parents' third child, Laura, was born in December 2021.

The mother had avoided contact with the department before Laura

was born and acknowledged the father's paternity only when her

pregnancy was evident in the month of Laura's birth. The mother

admitted at trial that she had lied about not being in a

relationship with the father. The department obtained custody

of Laura shortly after her birth because of the past domestic

violence between the parents and the removal of the two older

children. Laura's case was incorporated into the family's open

case.

In July 2022, another 51A report was filed, alleging sexual

exploitation of a seventeen year old female by the father. The

juvenile alleged that she was supposed to meet the father for a

job interview, he coerced her into his home, smoked marijuana

with her, then exposed himself to her. The mother was present

and speaking to the juvenile while the father exposed himself.

The subsequent investigation found these allegations were

supported.

In January 2023, the mother and father admitted that they

were in a relationship and again living together. Then, in

4
February 2023 the mother reported to a social worker that,

although she and the father were living together, they were not

in a romantic relationship and had no plans to be in one. The

mother told the department that the father was moving to

Chicago. In March 2023, the mother reported that the father had

moved out of the home. The mother was unable to provide details

about the father's trucking business in Chicago, and the

department was unable to verify that the father had moved out.

The judge found the mother's testimony about her current level

of contact and relationship with the father not credible. The

judge credited the social worker's testimony about previous home

visits and found that the mother and father had a pattern of

misleading the department and remaining in an unhealthy

relationship without engaging in services to address their

domestic violence.

The mother testified at trial that the father was

physically and verbally abusive toward her. She testified that

the physical abuse ended in 2019, but the father continued to be

verbally abusive. The judge credited testimony from various

social workers and found that the allegations of ongoing

intimate partner violence between the mother and father were

substantiated. The father did not attend the trial, and the

judge drew a negative inference from his failure to appear.

5
Discussion. 1. Legal Standard. "In deciding whether to

terminate a parent's rights, a judge must determine whether

there is clear and convincing evidence that the parent is unfit

and, if the parent is unfit, whether the child's best interests

will be served by terminating the legal relation between parent

and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). Clear

and convincing evidence means that "[t]he requisite proof must

be strong and positive; it must be 'full, clear and decisive.'"

Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting

Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997). "We review

the judge's findings with substantial deference, recognizing

[his] discretion to evaluate a witness's credibility and to

weigh the evidence," Adoption of Nancy, 443 Mass. at 515, "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 Ilona, supra.

2. Parental unfitness. "Parental unfitness must be

determined by taking into consideration a parent's character,

temperament, conduct, and capacity to provide for the child in

the same context with the child's particular needs, affections,

and age." Adoption of Mary, 414 Mass. 705, 711 (1993). It is

"appropriate for a judge to consider whether, on the basis of

credible evidence, there is a reasonable likelihood that the

parents' unfitness at the time of trial may be only temporary"

6
(citation omitted). Care & Protection of Zeb, 489 Mass. 783,

788 (2022). "Because childhood is fleeting, a parent's

unfitness is not temporary if it is reasonably likely to

continue for a prolonged or indeterminate period." Adoption of

Ilona, 459 Mass. at 60.

Here, the judge's "specific and detailed findings

demonstrate[] that close attention has been given to the

evidence." Adoption of Quentin, 424 Mass. 882, 886 (1997).2

Given the parents' years'-long effort to mislead the department

about their ongoing intimate relationship, which involved

intimate partner violence, combined with the parents' failure to

acknowledge the effects of that violence on their children, and

the parents' failure to demonstrate "significant improvement" in

meeting the children's needs, "the judge did not clearly err in

finding that [these parents were] unfit and that [their]

unfitness was not temporary." Adoption of Ilona, 459 Mass. at

62.

a. Intimate partner violence. "Violence within a family

is highly relevant to a judge's determination of parental

unfitness and the best interests of the children." Adoption of

2The father also maintains that the judge improperly relied
on his initial findings rather than the detailed subsidiary
findings in terminating the father's parental rights. This
claim is unavailing; the father has not cited any supporting
authority for it. See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019).

7
Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "It is well

documented that witnessing domestic violence, as well as being

one of its victims, has a profound impact on children." Custody

of Vaughn, 422 Mass. 590, 599 (1996). A child who witnesses

"such abuse suffers a distinctly grievous kind of harm." Id. at

595. "The evidence in this case supported the judge's reliance

on domestic violence as a significant factor in deeming the

[parents] unfit." Adoption of Jacob, 99 Mass. App. Ct. 258, 264

(2021).

The judge found that the father had a history of domestic

violence with the mother which negatively affected Ivo and

Emily. The judge found that the father inconsistently engaged

with tasks on his action plan to address his abusive behaviors:

he referred to a batterers assessment as "fucking dumb," he

failed to participate in an anger management group, and he did

not complete a sexual offender's evaluation. Although the

father eventually participated in an intimate partner violence

class and some individual therapy for his anger, the judge found

he had not meaningfully benefited because he continued to have

angry outbursts toward the department and the children after

participating in these services. "[A] judge can consider a

pattern of 'past conduct to predict future ability and

performance.'" Adoption of Ulrich 94 Mass. App. Ct. 668, 676

(2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 269-

8
270 (1990). "[I]nstances of such familial violence are

compelling evidence for a finding of parental unfitness."

Adoption of Talik, 92 Mass. App. Ct. 367, 374 (2017).

With respect to the mother, "[a] judge may properly

consider a parent's decision to remain in a relationship with an

abusive partner in determining parental fitness." Adoption of

Jacob, 99 Mass. App. Ct. at 265. During the department's

various investigations, the mother denied any continued violence

in her relationship with the father. She testified that she

learned in classes that domestic violence is detrimental to

children, but she nonetheless resumed or continued her

relationship with the father after she attended these classes.

While the father was allowed only supervised visits with the

children, the mother allowed him to visit with the children

during her unsupervised visits and lied to the department about

her ongoing relationship with him. The judge was not required

to believe the mother's claim that she had separated herself

from the father and from the cycle of domestic violence, see

Adoption of Anton, 72 Mass. App. Ct. 667, 675 (2008), and

reasonably concluded that the parents lied to hide their ongoing

relationship.

The judge also found that the mother was present while the

father exposed himself to a minor. "A parent's willingness to

ignore or minimize abusive behavior can be an indicator of

9
unfitness, regardless of whether the child is at risk of abuse

or witnessing abuse." Adoption of Lisette, 93 Mass. App. Ct.

284, 294 n.15 (2018).

"The judge properly considered [the parents'] continued

failure to address how domestic violence affected [their]

parenting" when evaluating their parental fitness. Adoption of

Yvonne, 99 Mass. App. Ct. 574, 579-580 (2021). "[T]he

[parents'] consistent failure to address these issues supported

the judge's conclusion that [their] unfitness would continue

indefinitely." Adoption of Xarissa, 99 Mass. App. Ct. 610, 619

(2021).

b. Action plan participation. Both parents maintain that

the judge failed to credit their engagement in the action plans

set out by the department. "Even where a parent has

participated in programs and services and demonstrated some

improvement, we rely on the trial judge to weigh the evidence in

order to determine whether there is sufficient likelihood that

the parent's unfitness is temporary." Adoption of Ilona, 459

Mass. at 59-60.

The department created various action plans for both

parents. The judge credited the father's participation in some

programs and therapy, including his completing six weeks of an

intimate partner violence program, but found that he otherwise

avoided the department and court throughout much of the case.

10
The father inconsistently showed up for visits with the

children, struggled to manage the children's behavior, and

failed to follow department instructions at visits. The father

also blamed Ivo's behavioral issues on the department. The

judge further found that the father was hostile and aggressive

toward department workers, foster parents, and the children on

several occasions. See Adoption of Rhona, 63 Mass. App. Ct.

117, 126 (2005) (parent's lack of cooperation with DCF was

"relevant to the determination of unfitness").

The judge credited the mother's engagement in her action

plan, including her participation in individual counselling and

parenting classes. But he found that her relationship with

father "in part shape[d] her level of engagement with the

[d]epartment." At visits, the mother struggled to control Ivo's

behavior and to care for all the children at the same time.

"[M]ere participation in the services [recommended by the

department] does not render a parent fit 'without evidence of

appreciable improvement in [their] ability to meet the needs of

the child[ren].'" Adoption of Ulrich, 94 Mass. App. Ct. at 677,

quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836

(2003).

The judge's conclusion that, despite the mother's

attendance at classes on domestic violence and parenting, she

did not disengage from a violent relationship with the father

11
was well grounded in the evidence. The father's minimal

engagement with his action plan similarly failed to result in

appreciable improvement in his ability to meet the children's

needs, as the judge appropriately found.

c. Other evidence of unfitness. The judge also considered

other evidence relevant to unfitness including (1) both parents'

criminal conduct, see Care & Protection of Frank, 409 Mass. 492,

495 (1991) (judge properly considered parent's criminal conduct

as relevant to unfitness); (2) the parents' inability to

recognize or manage Ivo and Emily's emotional needs and

behavioral issues, see Adoption of Paula, 420 Mass. 716, 730

(1995) (participation in services "had not appreciably improved

[the mother's] capacity to 'meet the complex emotional and

physical needs of her children'"); and (3) the stability of the

parents' employment and living arrangements, see Adoption of

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

interests of [the children] to have 'parents' who can and who

will, on a consistent, long term basis, assume all parental

responsibilities and who can provide [the children] with the

stable and continuous care and nurturing [they] need[] and will

continue to need").3 "[A]lthough the judge's findings on

3 Both parents maintained that certain findings were clearly
erroneous, but most of these challenges "amount to no more than
a disagreement with the judge's weighing of the evidence and

12
[certain] points may have been erroneous, the judge's over-all

conclusion of parental unfitness is fully supported by the

record." Adoption of Helen, 429 Mass. 856, 860 (1999).

A "judge is not required to grant [a parent] an indefinite

opportunity for reform." Adoption of Cadence, 81 Mass. App. Ct.

162, 169 (2012). See Adoption of Nancy, 443 Mass. at 517.

Given the "fleeting" nature of childhood and the judge's

findings, supported by the record, that the parents did not make

substantial progress to acknowledge and address the domestic

abuse in the years between losing custody of the older children

and trial, we conclude that the judge paid careful attention to

the evidence and therefore did not abuse his discretion. See

Adoption of Ilona, 459 Mass. at 60.

3. Posttermination and postadoption visitation. The

mother maintains it was error to leave future contact between

the parents and children in the discretion of the legal

custodian. "A trial judge's decision whether to order

credibility determinations regarding the witnesses." Adoption
of Don, 435 Mass 158, 166 (2001). To the extent the judge erred
by drawing a negative inference from mother's nonattendance at
one day of trial -- a matter as to which the record is ambiguous
and the judge's knowledge superior to ours -- or misidentified
to whom the mother lied and for how long, these errors were "not
central to the ultimate conclusion of unfitness" when the
primary concerns were the parents' failure to address the
ongoing intimate partner violence and their ongoing, deliberate
deception of the department. Care & Protection of Olga, 57
Mass. App. Ct. 821, 825 (2003).

13
visitation between a child and a parent whose parental rights

have been terminated is reviewed for an abuse of discretion."

Adoption of Xarissa, 99 Mass. App. Ct. at 623-624. In

determining whether such visitation is in a child's best

interests, the judge must consider whether the child has a

"significant, existing bond with the biological parent" and

whether "the child has formed strong, nurturing bonds" with a

preadoptive family. Adoption of Ilona, 459 Mass. at 63-64,

quoting Adoption of Vito, 431 Mass. 550, 563 (2000). "A judge

should issue an order of visitation only if such an order, on

balance, is necessary to protect the child[ren]'s best

interest[s]." Adoption of Ilona, supra.

The judge's findings recognized the mother's continued

relationship and contact with the children. The judge found

that Ivo still experienced behavioral challenges in his foster

care placement but was participating in trauma therapy while the

department sought a placement that supported his needs. Emily

and Laura have been out of the mother's care since they were

infants, and there was testimony that the children are

"adapting" to the preadoptive home and the children seemed

"happy [and] comfortable."

"There is no reason to question the presumption that [the

children's] preadoptive parents will act in [their] best

interest[s]" in determining whether continued visitation with

14
the mother is in their best interests; "nor is there any

compelling reason requiring that a visitation order be entered

in order to protect the best interests of the child[ren]."

Adoption of Ilona, 459 Mass. at 66. "Stability in the lives of

children is important, particularly in a case that has continued

for a long period of time in the hope that the [parents] could

and would successfully rehabilitate [themselves]." Adoption of

Nancy, 443 Mass. at 517. "The judge therefore did not abuse his

discretion in leaving the issue of visitation to the sound

judgment of the [legal custodians] who will be in the best

position to gauge whether such visits continue to serve the

[children's] best interest[s]." Adoption of Ilona, supra.

Decrees affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.4),

Clerk

Entered: March 11, 2025.

4 The panelists are listed in order of seniority.

15