ADOPTION OF BRAYDEN (And Three 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

22-P-503

ADOPTION OF BRAYDEN (and three companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees issued by a judge of the

Juvenile Court finding her unfit and terminating her parental

rights to four of her children. The mother also argues the

judge's order of twice yearly posttermination and postadoption

parent and sibling visitation was an abuse of discretion.2 The

eldest child, Brayden, appeals from the decree terminating the

mother's parental rights to him. We affirm.

Background. We summarize the judge's findings of fact,

supplemented by uncontroverted evidence from the record. The

mother first became involved with the Department of Children and

Families (department) in 2000 when she was six years old, after

she was removed from her parents' custody and her maternal

1 Adoption of Lisa; Adoption of Nicole; and Adoption of Robert.
The children's names are pseudonyms.
2 Brayden's and Lisa's father, who is also Nicole's and Robert's

putative father, did not appeal from the termination of his
parental rights. We refer to him throughout this decision as
"the father."
grandmother was given guardianship. Both of the mother's

parents were drug addicted and she suffered neglect and physical

abuse from them. She was adopted by her maternal grandmother

when she was eleven, but later lived with her paternal

grandmother. The mother became pregnant with Brayden when she

was thirteen and the father was twenty-four years old. The

mother and the father had three other children, Lisa in 2014,

Nicole in 2018, and Robert in 2019.

In 2015, a G. L. c. 119 § 51A, report (51A report) was

filed following the parents' arrest for possession with intent

to distribute a class A substance and conspiracy to violate the

drug laws after police found heroin in the home. The two older

children were removed by the department and eventually placed in

foster care. Custody of both children was returned to the

mother in 2016.

Beginning in May 2019, multiple 51A reports were filed

based on reports of domestic violence, substance abuse, unstable

housing, mental health concerns, and the mother's criminal

activity. The department filed this care and protection

petition in October 2019 due to domestic violence in the home

and was granted temporary custody of the children. At the time,

Brayden was ten years old, Lisa was five years old, Nicole was

ten months old, and Robert was two months old. The judge

2
subsequently granted conditional custody of the children to the

mother.

Over the next year, numerous 51A reports were filed

alleging lack of appropriate supervision, inappropriate

caretakers, educational neglect, and concerns with the mother's

substance abuse. In November 2020, the department conducted an

emergency removal of the children after Lisa was left at school

despite several attempts to reach the mother. The department

filed a motion for custody of the children. At the seventy-two

hour hearing, the parents waived their rights to a temporary

custody hearing.

Following a trial held on January 22, 2021, the judge found

the mother unfit, adjudicated the children to be in need of care

and protection, and granted permanent custody to the department.3

The judge did not terminate the mother's parental rights and

afforded her six months to work toward the department's goal of

reunification.

On August 11, 2021, the department moved for review and

redetermination pursuant to G. L. c. 119, § 26. By then, the

department's goal had changed from reunification to adoption.

The judge held a one-day trial in September 2021 and

approximately one month later, on October 18, 2021, issued

3 The father stipulated to his own parental unfitness.

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decrees terminating the mother's parental rights to the four

children. On January 19, 2022, the judge issued detailed

findings supporting his conclusions that the mother was

currently unfit to parent the children, her unfitness was likely

to continue into the indefinite future, and the department's

adoption plan for each child served the children's best

interests. See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass.

512, 515-516 (2005). The judge ordered twice per year

posttermination and postadoption parent and sibling visitation.

Discussion. 1. Termination of parental rights. "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" (citation omitted). Adoption of Oren, 96 Mass.

App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and

the 'best interests of the child test' are not mutually

exclusive, but rather 'reflect different degrees of emphasis on

the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,

671 (2018), quoting Care & Protection of Three Minors, 392 Mass.

704, 714 (1984). In making this determination, the judge

considers "the ability, capacity, fitness and readiness of the

child[ren]'s parents as well as the plan proposed by [the

4
department]" (quotations omitted). Adoption of Garret, supra at

675, quoting Adoption of Nancy, 443 Mass. at 515-516. "The

inquiry is whether the parent's deficiencies 'place the child at

serious risk of peril from abuse, neglect, or other activity

harmful to the child'" (citation omitted). Adoption of

Olivette, 79 Mass. App. Ct. 141, 157 (2011). "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).

The mother argues that the judge erred in his analysis of

the children's best interests by failing to consider evidence of

the bond the children have with her, Brayden's custodial

preferences, and the department's failure to identify

preadoptive placement for the three oldest children. Brayden

contends that the department did not meet its burden to prove by

clear and convincing evidence that termination of the mother's

parental rights was in his best interests based on his age, his

strong bond with the mother, and the "inadequacy" of the

adoption plan. He further asserts that the judge failed to

consider his wishes.4 We disagree.

4 Neither the mother nor Brayden appear to contest the judge's
finding that the mother is currently unfit.

5
The mother's unfitness resulted from a "constellation of

factors." Adoption of Greta, 431 Mass. 577, 588 (2000). Her

relationship with the father was punctuated by repeated episodes

of domestic violence witnessed by the children. During the

pendency of the care and protection case, the mother continued

to engage in relationships with partners who physically abused

her and encouraged her use of drugs, including opiates and

cocaine.5 See Adoption of Bianca, 91 Mass. App. Ct. 428, 432

(2017) (judge may properly consider effects of domestic

violence, substance use, and instability on ability to form bond

with children). The mother also has struggled with substance

abuse since she was a young teenager. At trial, she testified

that she used cocaine one month prior while pregnant with her

fifth child. The mother also accidentally burned down her home

after starting a fire in the fireplace using paper, children's

coloring books, and children's socks as tinder. The judge did

not credit the mother's denial that she was using substances or

medications on the day of the fire. See id. The mother has

been diagnosed with bipolar disorder, depression, anxiety, and

posttraumatic stress disorder. Her mental health issues twice

required psychiatric hospitalization while this case was

5 While the children were in the mother's conditional custody,
multiple 51A reports were filed concerning the father's
presence, violence, and substance use in the home, as well as
the mother's new boyfriend selling drugs from the home.

6
pending. See Adoption of Frederick, 405 Mass. 1, 9 (1989)

("Mental disorder is relevant only to the extent it affects

parents' capacity to assume parental responsibility"). At the

time of trial, the mother did not have stable housing. See

Petitions of the Dep't of Social Servs. to Dispense with Consent

to Adoption, 399 Mass. 279, 289 (1987) (lack of "stable home

environment" valid consideration in unfitness determination).

Moreover, when given conditional custody of the children in

2019, the mother failed to comply with the stipulations that she

permit only caretakers authorized by the department to care for

the children, participate in comprehensive mental health

treatment, ensure the children attended school and day care

daily, ensure the children were not exposed to anyone under the

influence of substances, and refrain from contact with the

father. Furthermore, she was charged with disorderly conduct

and, in a separate case, with crimes including assault and

battery by means of a dangerous weapon, assault and battery,

malicious destruction of property, and resisting arrest.

Even after the department interceded, the mother failed

consistently to participate in services and treatment to address

the issues that caused the removal of her children. See

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("The mother's

lack of meaningful participation in recommended services was

also relevant to the question of her fitness"). When asked at

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trial why she needed to be hospitalized, the mother testified,

"because of everything I endured," "your guess is as good as

mine," and she "guess[ed]" that medical professionals "believed

[she] needed to be there."

We agree with the judge's determination that the mother

"lacked insight" into why she was hospitalized and about the

neglectful conditions she created for the children when she had

conditional custody of them. The judge found that her

inconsistency with services demonstrated a "lackadaisical

attitude" that would impede her ability to be a "consistent

force in the children's lives" and that the mother "cannot meet

the basic needs of these four children." We are mindful of the

challenges the mother has faced since she was a child and the

irony that many of them began when she was in the custody of the

department. However, regardless of the underlying causes of the

mother's circumstances, we discern no abuse of discretion in the

judge's determination that her unfitness would "continue

undiminished into the foreseeable future," and therefore

termination of her rights was in the children's best interests.

See Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012)

("Where there is evidence that a parent's unfitness is not

temporary, the judge may properly determine that the child's

welfare would be best served by ending all legal relations

between parent and child").

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a. The children's bond with the mother. We are not

persuaded by the argument that the judge did not consider the

bond between the children and the mother when determining that

termination of her parental rights was in their best interests.

The judge recognized the children's relationship with the

mother, and specifically referenced the department social

worker's testimony that Brayden "would struggle without visits

with Mother." We are satisfied on the record in this case that

the judge did not abuse his discretion by weighing this evidence

and concluding that despite this bond, termination of the

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

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

b. Adoption plans. "In determining the best interests of

the child, the judge must consider, among other things, 'the

plan proposed by the department.'" Adoption of Varik, 95 Mass.

App. Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c). "The

law does not require that the adoption plan be fully developed

in order to support a termination order, but it must provide

sufficient information about the prospective adoptive placement

so that the judge may properly evaluate the suitability of the

department's proposal" (quotations omitted). Id., quoting

Adoption of Willow, 433 Mass. 636, 652 (2001). Although the

three oldest children were not in preadoptive placements at the

time of trial, the judge properly considered the department's

9
adoption plans for those children as adoption through

recruitment.6 See Care & Protection of Three Minors, 392 Mass.

at 717. "[P]articularly in a case that has continued for a long

period of time in the hope that the [parents] could and would

successfully rehabilitate [themselves] . . . children deserve

permanence and stability." Adoption of Nancy, 443 Mass. at 517.

The mother raises concerns that termination of her rights

places Brayden at risk of becoming a legal orphan. See Adoption

of Ramona, 61 Mass. App. Ct. 260, 265 (2004). While Brayden was

at the age where he could withhold his consent for adoption, see

G. L. c. 210, § 2, the judge found that at times Brayden

expressed that he did not want to return to the mother's care,

despite also indicating that he wanted to go home because "he

missed his friends . . . and the life he could have had if his

parents had not messed it up for him."

In addition to his contention that termination of the

mother's parental rights was not in his best interests because

he had a strong bond with her, Brayden asserts that he does not

wish to be adopted, and, in any event, the department's adoption

plan for him was inadequate. "A judge should consider the

wishes of the children in making custodial determinations, and

those wishes are entitled to weight in custody proceedings"

6 The youngest child's adoption plan called for adoption by his
current foster parents.

10
(quotation and citation omitted). Adoption of Nancy, 443 Mass.

at 518. However, a child's views are "neither decisive . . .

nor outcome determinative." Id. Here, the judge carefully

considered Brayden's age, his bond with the mother, opinions

about whether he wanted to return home, and testimony about what

would be best for Brayden's well-being. See Adoption of Garret,

92 Mass. App. Ct. at 675-676. The judge also weighed the

testimony of the adoption social worker that Brayden's

behavioral needs necessitated a two-parent home that provides

him with structure and outdoor activities and that Brayden did

not want to be placed with his siblings. Compare Adoption of

Varik, 95 Mass. App. Ct. at 771. Moreover, the department's

written plan for Brayden expressed "various recruitment actions

that the department had already taken and further actions it

would take." Adoption of Gertrude, 99 Mass. App. Ct. 817, 823

(2021).

We therefore discern no abuse of discretion in the judge's

conclusion that termination of the mother's parental rights

coupled with the department's adoption plan were in the

children's, and more particularly Brayden's, best interests.

See Adoption of Willow, 433 Mass. at 653.7

7 The other children do not challenge the department's adoption
plans.

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2. Visitation. a. Parental visitation. The mother

requests a visitation order that "allows for regular and

frequent visitation with [Brayden], [Lisa], and [Nicole], and

reasonable visitation with [Robert]." Brayden maintains that,

in the event the decree terminating the mother's rights to him

is affirmed, the case should be remanded to increase the amount

of posttermination contact between him and the mother.

"In terminating parental rights pursuant to G. L. c. 210,

§ 3, the Juvenile Court judge has equitable authority to order

visitation between a child and a biological parent where such

contact is in the best interests of the child." Adoption of

Garret, 92 Mass. App. Ct. at 679. "Whether such contact in any

given case is wise is a matter that should be left to the

discretion of the judge." Youmans v. Ramos, 429 Mass. 774, 783

(1999). "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, 459 Mass. at

65.

Here, the judge found that a significant bond existed

between the children and the mother, and it would be in the

children's best interests to maintain posttermination and

postadoption visitation with the mother two times per year. In

ordering such visitation, the judge considered Brayden's request

12
to visit the mother twice per year. We discern no abuse of

discretion. Cf. Adoption of Rico, 453 Mass. 749, 759 (2009).

b. Sibling visitation. Brayden contends that the judge

abused his discretion in ordering two sibling visits per year,

leaving additional visitation at the discretion of the

department, preadoptive placements, or postadoptive placements,

because at the time of trial the children had weekly visits and

were not in permanent placements.8 See G. L. c. 119, § 26B. We

review an order regarding sibling visitation for abuse of

discretion. See Care & Protection of Jamison, 467 Mass. 269,

280 (2014).

The judge ordered that sibling visits "shall include but

not be limited to visits in the months of June and December at a

time and a place agreed to by the pre-adoptive and post-adoptive

parties or the [department] if no[] such parties have

materialized." The judge's order of two visits per year was a

minimum, not a cap on visitation. Accordingly, there was no

8 The mother joins Brayden's argument regarding sibling visits.
However, she is precluded by G. L. c. 119, § 26B (c), from
raising the sibling visitation issue on appeal because the
Juvenile Court has entered a decree dispensing with her consent
to adoption. See Adoption of Zander, 83 Mass. App. Ct. 363, 367
n.6 (2013).

13
abuse of discretion in the judge's sibling visitation order.

See Adoption of Garret, 92 Mass. App. Ct. at 681.

Decrees affirmed.

By the Court (Englander,
Grant & Brennan, JJ.9),

Clerk

Entered: June 7, 2023.

9 The panelists are listed in order of seniority.

14