Adoption of Spencer.

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-465

ADOPTION OF SPENCER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and father of Spencer appeal from decrees

entered in the Juvenile Court terminating their parental rights.

The mother contends that the judge's decision to terminate her

parental rights was based on erroneous factual findings and was

not supported by clear and convincing evidence. The father

argues that the judge improperly placed the burden of proof on

him to show that he was fit to assume parental responsibility

for Spencer, that his incarceration status unfairly prejudiced

him and tainted the judge's finding of unfitness, and that

evidence regarding substance abuse and domestic violence was

stale. We affirm.

Background. The Department of Children and Families

(department) commenced these proceedings after receiving

numerous reports of neglect arising from the parents' escalating

1 A pseudonym.
issues of substance abuse and domestic violence. This was not

the mother's first interaction with the department. She first

came to the department's attention in 2006 when the paternal

grandfather of her first child reported neglect caused by

substance abuse and domestic violence.2 The department

determined that the report was unsupported, but for the next

five years the department continued to receive similar reports

of neglect. During this time, the mother admitted that she

struggled to remain sober but denied instances of domestic

violence. Ultimately, that child's paternal grandfather

obtained guardianship, and the case was closed, in 2011.

The mother and Spencer's father started dating in 2013 and

began living together when the mother became pregnant with

Spencer, her second child. The department became involved the

day after Spencer's birth in October 2016. The mother admitted

to using heroin while pregnant, and when Spencer was born he

tested positive for Subutex and the mother tested positive for

Buprenorphine. The department's investigation revealed that the

mother failed to report her drug abuse to her prenatal care

provider and that no drug screens were conducted. Although the

department determined that the mother and father were actively

engaged in treatment, it nonetheless opened a case because of

2 At the time, the mother lived with the first child's father,
who is not Spencer's father.

2
the parents' longstanding history of substance abuse and

relapse.

Following Spencer's birth, the father became jealous,

possessive, and abusive toward the mother. Less than a year

after the department opened the case, an anonymous person filed

a report alleging neglect of Spencer by the father based on

domestic violence. The mother admitted that the father hit her

while she was holding then ten month old Spencer, and the father

also admitted to hitting her. Because of this dispute, the

mother terminated her relationship with the father. They were

not separated for long, however; the mother and Spencer moved

back in with the father after a few months.

Thereafter, another report alleging the parents' neglect

was filed after Quincy police officers found the father and

mother arguing loudly in their vehicle with Spencer in the back

seat. The department's investigation revealed that the parents

were arguing about a text message that the father found on the

mother's cell phone, but the argument was reportedly verbal, and

neither party appeared to be under the influence. The parents

were recommended couples counseling but failed to engage in any

recommended services.

Another incident was reported the following month after the

mother entered a convenience store requesting police assistance.

The mother and father were on their way to the train station

3
with Spencer when they began to argue. During their argument,

the father became so agitated that the mother feared for her

safety. The Weymouth police responded to a call, and the

father, who stated that he had not slept in three days because

he was taking Adderall, was transported by ambulance to

Massachusetts General Hospital. The next day, the mother called

the department, reporting that the father had arrived at her

apartment the night before and tried to get in. She denied

letting him in or any physical abuse, but stated that she asked

a neighbor to call the police. She also stated that Spencer was

home but did not witness anything. The department's

investigation later revealed, and the mother admitted, that she

failed to report that the argument in fact did become physical,

that the father pulled hair out of her head, and that Spencer

was present and exposed to the argument.

After this incident, the mother took steps toward engaging

in domestic violence services by applying for emergency shelter

placement, obtaining housing, and applying for an abuse

prevention order against the father.3 Yet, the mother could not

stay away from the father and ended up losing her housing funds

and getting evicted after an altercation with the father that

3 An abuse prevention order was issued, presumably on an ex parte
basis, but the mother failed to renew it when it expired two
weeks later.

4
required police involvement. The mother admitted to the

department that she did not renew the abuse prevention order

because the father was "a good person and a good father." The

department encouraged the mother to seek domestic violence

services and obtain another restraining order, but the mother

initially rejected such suggestions. A few months later, she

did obtain a three-month restraining order against the father.

Despite the fact the father had been ordered to stay away from

the mother, the two of them were arrested for shoplifting

approximately $1,500 worth of merchandise from a department

store in Hingham.

The mother and father continued to see each other. Not

long after the shoplifting arrest, Spencer's maternal

grandmother called the police to report that the father had been

physically violent against the mother. The police found the

mother at her home with a black eye and bloody nose. The mother

stated that the father, while in Spencer's presence, "head-

butted" her and punched her in the face. She also stated that

the father had strangled her to the point that she thought she

would die. The father, who was present when the police arrived,

stated, "I was probably up for five or six days because of

cocaine," and admitted attacking the mother. He was arrested

and charged with domestic assault and battery, strangulation,

violation of a restraining order, and possession of controlled

5
substances, ultimately resulting in a substantial prison

sentence. The mother, who was pregnant at the time, had to be

transported to the hospital because her eye was so badly

damaged.

After this incident, the department determined that Spencer

was in need of care and protection, filed the instant petition,

and was granted custody. Spencer was placed with a foster

mother, who is the preadoptive parent.

The department developed service plans for the mother and

the father that targeted the skills they would need to care for

Spencer. At the time, the father was being held at a house of

correction, so the department met with the father there to

review the service plan. He did not want Spencer to visit him

while he was incarcerated, and although he had the ability to do

so, he failed to communicate with Spencer, or the department,

for the remainder of his prison term.

The mother complied with her service plan. She was granted

weekly supervised visits with Spencer, which she always

attended, and she worked with the department to follow its

recommendations. Due to her compliance with her service plan

and cooperation with the department, Spencer was placed back

into the mother's care after nine months. The following month,

however, the department received a report alleging neglect of

Spencer arising out of another shoplifting incident. This time

6
the police responded to a convenience store where the mother had

allowed Spencer to climb on the shelves to distract the clerk

while she attempted to carry stolen merchandise out of the

store. The department conducted an unannounced home visit,

during which the social worker found a discrepancy in the pill

count of the mother's Subutex prescription and new track marks

on the mother's arms. The mother denied that the marks were

track marks, but had no explanation for their origin. The

department again removed Spencer from the mother's care and

placed him back with the foster mother. The department

subsequently discovered an unreported police response and

relapse that had occurred before Spencer was returned to the

mother's care. The report stated that the mother was found

passed out in the driver's seat of a car in a parking lot and

that white powder residue and an uncapped hypodermic needle were

found in the front seat area. The department held a permanency

planning conference and changed Spencer's permanency goal to

adoption. After the department changed its permanency goal for

Spencer, the mother failed to stay sober. She was found

unconscious due to an overdose and had to be revived with

Narcan. She failed to report this incident to the department

and denied it when confronted, claiming that it was her sister

who had overdosed. The mother also reported receiving services

when she was not and failed to report a domestic disturbance

7
involving a former boyfriend because she hoped it would "slip

through the cracks."

After trial, the judge found that the department had

demonstrated, by clear and convincing evidence, that the mother

and the father were both unfit to parent Spencer and that his

best interests would be served by termination of their parental

rights. The judge committed Spencer to the permanent custody of

the department and ordered that the mother have bimonthly visits

with Spencer prior to adoption and two yearly visits thereafter.

The judge denied the father's request for posttermination and

postadoption visits. Both parents appeal.

Discussion. 1. The mother's appeal. The judge concluded

that the mother's persistent problems with domestic violence,

substance abuse, lack of stable housing, and lack of stable

employment rendered her an unfit parent, and that these

shortcomings would continue into the future. The mother

contends that the judge erred by not crediting her compliance

with her service plans, and that several of the judge's findings

were not supported by the evidence.

"In determining whether to dispense with parental consent

to adoption, a judge must 'evaluate whether the [parent is] able

to assume the duties and responsibilities required of a parent

and whether dispensing with the need for parental consent will

be in the best interests of the children.'" Adoption of Nancy,

8
443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass.

705, 710 (1993). See G. L. c. 210, § 3; Adoption of Jacques, 82

Mass. App. Ct. 601, 606 (2012). The judge must conduct a two-

part analysis: the judge must first determine "parental

unfitness by clear and convincing evidence," and "[a]fter

ascertaining unfitness, the judge must determine whether . . .

it would be in the child's best interests to end all legal

relations between parent and child." Adoption of Nancy, supra

at 515. The two inquiries "are not separate and distinct, but

'reflect different degrees of emphasis on the same factors.'"

Id., quoting Petition of the New England Home for Little

Wanderers to Dispense with Consent to Adoption, 367 Mass. 631,

641 (1975). "We 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 Ilona, 459 Mass. 53,

59 (2011).

Although the mother claims that the judge ignored

substantial documentary and testimonial evidence of her

compliance with services, the judge acknowledged in her

conclusions of law that the mother "ha[d] recently made some

positive gains." The judge continued, however, to note that

"the length of time has been at Spencer's expense. Spencer

9
deserves and requires permanency. Mother's shortcomings are

likely to continue undiminished into the future." The judge was

not required to find that the mother was fit simply because she

started to make some positive gains. See Care & Protection of

Olga, 57 Mass. App. Ct. 821, 830 (2003) ("progress does not

preclude consideration of past behavior as a means of predicting

the likely future"); Adoption of Lorna, 46 Mass. App. Ct. 134,

143 (1999) ("judge was not obliged to believe that the parenting

skills of the mother . . . had improved simply because of [her]

recent cooperation with the department").

The mother further contends that several of the judge's

factual findings were clearly erroneous. "A finding is clearly

erroneous [and thus not supported by evidence] when there is no

evidence to support it, or when, 'although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993),

quoting Building Inspector of Lancaster v. Sanderson, 372 Mass.

157, 160 (1977). The mother claims that the judge erroneously

concluded that she struggled to maintain stable accessible

housing; that she was resistant, uncooperative, and inconsistent

with the department; and that she continued to engage in a

pattern of relationships ridden with domestic violence. The

evidence, however, strongly supported the judge's decision.

10
While the mother is correct that the department did not

consider housing to be an issue, the judge's conclusion that the

mother lacked stable housing was fully supported. The mother

repeatedly had to move back to the maternal grandmother's home

because, on at least two occasions, she was evicted from her own

apartment due to domestic violence incidents. Moreover, the

mother's inconsistent and unsuccessful attempts to comply with

services are well documented. The judge found not only that the

mother failed to comply with services, but also that she lied

about receiving such services.

Concerning the domestic violence, the mother claims that

her past history did not represent her current ability to parent

Spencer and that she had cut all ties with the father. The

judge, however, reasonably concluded that the mother failed to

effectively address her domestic violence victimization, which,

the record reveals, profoundly affected the mother, as well as

Spencer. The mother's relationship with the father of her first

child was fraught with domestic violence, which contributed to

her losing custody of that child. The mother subsequently

engaged in a relationship with Spencer's father, and although

domestic violence characterized their relationship from the

beginning, the mother continued to allow the father into her and

Spencer's life. Ultimately, the father had to be arrested

following a "vicious" attack against her. After the mother cut

11
all ties with the father, she started dating someone else who

had a history of domestic violence and a permanent abuse

prevention order against him,4 and at least one domestic

disturbance between them required police intervention.

The judge found that "[b]oth Mother and Father have

criminal histories that have rendered them unavailable due to

incarceration." The mother also argues that the judge erred in

concluding that incarceration rendered her unavailable to parent

Spencer because she was never incarcerated after Spencer's

birth. While the mother is correct that this finding was

erroneous with respect to her, the mother did continue to engage

in criminal conduct after Spencer was born. Moreover, the

finding regarding the mother's incarceration was not central to

the judge's ultimate conclusion. Even without this finding, the

mother's unfitness has clear and convincing evidentiary support.

See Care & Protection of Olga, 57 Mass. App. Ct. at 825;

Petition of the Catholic Charitable Bureau of the Archdiocese of

Boston, Inc., to Dispense with Consent to Adoption, 18 Mass.

App. Ct. 656, 662 (1984).

Finally, the mother argues that even if unfitness was

proven, the judge erred in terminating her parental rights

4 Showing little appreciation for how domestic violence might
affect her fitness as a parent, at trial the mother stated,
"It's not my business if my ex-boyfriend has a lifetime
restraining order against him."

12
because of her strong bond with Spencer. We discern no abuse of

discretion in the judge's determination that the mother's

longstanding issues with substance abuse, domestic violence, and

providing a stable home environment were likely to continue in

the future such that termination of parental rights was in

Spencer's best interests. "It is in the best interests of

[Spencer] to have [a parent] who can and who will, on a

consistent longterm basis, assume all parental responsibilities

and who can provide [Spencer] with the stable and continuous

care and nurturing [he] needs and will continue to need as a

child." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136

(1990).

2. The father's appeal. a. Burden shifting. The father

argues that rather than placing the burden of proof on the

department to establish by clear and convincing evidence that he

was unfit, the judge shifted the burden to him to "demonstrate"

fitness. He points to three instances in the judge's

conclusions of law where she stated that the parents had failed

to "demonstrate" insight into Spencer's needs, that they had a

care plan, or that they had "the ability, fitness and readiness

. . . to assume parental responsibility," and to two instances

where the judge said that there was "no evidence" of a bond

between the father and Spencer. Due process and fundamental

fairness require that the department meet its burden of proof

13
when seeking to terminate parental rights. See Adoption of

Parker, 77 Mass. App. Ct. 619, 623 (2010). Given the liberty

interests at stake, "it is never permissible to shift the burden

of proof to the respondent parent. Care & Protection of Ian, 46

Mass. App. Ct. 615, 619 (1999)." Care & Protection of Erin, 443

Mass. 567, 571 (2005).

There was no burden shifting. The judge's memorandum of

decision made clear that she understood that the burden of

proving unfitness was on the department. Indeed, her pertinent

finding in this regard was, "Following trial, this Court finds

that the Department has demonstrated, by clear and convincing

evidence, that Mother and Father are both unfit to parent the

child." The department presented abundant evidence of the

father's unfitness, and the judge's extensive findings show

careful attention to the evidence. The judge found that the

father had a history of mental illness, a long history of

substance abuse, a substantial criminal record, and that the

father was abusive against the mother. In context, despite the

handful of references on which the father relies, the judge did

not shift the burden of proof. See Adoption of Terrence, 57

Mass. App. Ct. 832, 836 (2003) (judge's repeated uses of phrase

"has not demonstrated" "were summations of the evidence

presented; read in context, they plainly do not refer to the

ultimate burden of proof resting on the mother").

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b. The father's unfitness. "We 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 Ilona, 459

Mass. at 59.

The father argues that the judge placed undue emphasis on

his past incarceration. We disagree. Although the judge found

that the father was incarcerated for most of Spencer's short

lifetime, and "compelled absence of a parent by reason of

incarceration" may be taken into account, Adoption of Nicole, 40

Mass. App. Ct. 259, 261 (1996), this finding was not central to

the judge's ultimate conclusion of unfitness. See Care &

Protection of Olga, 57 Mass. App. Ct. at 825. The overwhelming

thrust of the judge's findings attributed the father's unfitness

to his history of domestic violence, substance abuse, and his

lack of engagement in services.

The father also contends that the evidence of his substance

abuse and his role as a perpetrator of domestic violence was

stale. The judge properly considered this evidence. See

Adoption of Elena, 446 Mass. 24, 33 (2006) ("A judge properly

may consider a pattern of parental neglect or misconduct in

determining future fitness and the likelihood of harm to the

child"); Custody of Two Minors, 396 Mass. 610, 621 (1986) ("The

15
court is permitted to assess prognostic evidence derived from

prior patterns of parental neglect or misconduct in determining

future fitness and the likelihood of harm to the child"). The

father had an extensive history of substance abuse and domestic

violence. The father began drinking sporadically at age

fifteen. At age twenty-four, he was prescribed oxycodone after

a car accident and became addicted. By age twenty-six, he began

using heroin and, ultimately, developed an addiction. He

continued his use of heroin until approximately age thirty-nine.

Likewise, the judge found that the father had an extensive

history of domestic violence. The father was the defendant in

nine G. L. c. 209A petitions brought by four different

plaintiffs (three of the nine petitions were filed by the

mother).

In addition, the father claims that the evidence did not

demonstrate a nexus between his substance abuse, domestic

violence, and his ability to parent. To the contrary, the

record shows a strong link among these factors. On two

documented occasions, the police were called because the father

hit the mother in Spencer's presence. Both times, he blamed his

conduct on drug use, once stating that he had not slept for

three days because he was using Adderall, another time stating

that he had not slept for five or six days because he was using

cocaine. Clearly substance abuse played a substantial role in

16
the father's violence against the mother and Spencer's exposure

to it.

The father misconstrues Custody of Vaughn, 422 Mass. 590,

599 (1996), to argue that the judge erred by failing to make

"detailed and comprehensive findings" regarding the effect of

domestic violence on Spencer. Judges are required to make such

findings before granting custody to a parent who committed acts

of domestic violence. "Where evidence of domestic violence is a

factor contributing to a judge's decision to find a parent unfit

or to terminate parental rights, however, the judge's findings

need not be any more detailed or comprehensive than is required

for any other factual findings supporting such determinations."

Adoption of Yvonne, 99 Mass. App. Ct. 574, 578-579 (2021).

Finally, the father argues that he was present in Spencer's

life, had a bond with him, and that the judge should at least

have ordered posttermination visitation. We discern no error or

abuse of discretion. The evidence supported the judge's finding

that the father had no relationship with Spencer. While the

father may have been "present" for the first two years of

Spencer's life, for part of that time the parents lived apart

and the father was under court order to stay away. His presence

in Spencer's life terminated as the result of his own actions:

he was arrested and sentenced to prison for assault and battery

and strangulation of the mother. The father at first declined

17
to have Spencer visit him while he was incarcerated, then did

not respond to the department social worker's monthly efforts to

reach him and made no effort to contact Spencer for three years.

See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001)

(department's "obligation to work with the mother was contingent

upon her own obligation to fulfill various parental

responsibilities, including . . . maintaining regular contact

with [the department] and [child]"). The judge properly

determined that posttermination visitation was not in Spencer's

best interests. See Adoption of Vito, 431 Mass. 550, 562 (2000)

("an order for postadoption contact is 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").

Decrees affirmed.

By the Court (Green, C.J.,
Rubin & Massing, JJ.5),

Clerk

Entered: April 13, 2023.

5 The panelists are listed in order of seniority.

18