ADOPTION OF ZYGMUNT (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

22-P-997

ADOPTION OF ZYGMUNT (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother is the parent of Zygmunt, Erik, and Luke, and

the father is the parent of Erik and Luke.2 In 2019, the

children were removed from the mother's and father's custody

after a report that the father physically abused Zygmunt. After

trial on the care and protection petition in 2021, a Juvenile

Court judge found the father unfit to parent his children, Erik

and Luke, and the mother unfit to parent her children, Zygmunt,

Erik, and Luke; the judge terminated their parental rights to

their respective children.3 On appeal, both parents argue that

the trial judge abused his discretion and committed clear error

1 Adoption of Erik and Adoption of Luke. The children's names
are pseudonyms.
2 As further described infra, the mother and the father are also

the parents of Michael (a pseudonym), who was born after
Zygmunt, Erik, and Luke were removed from their custody.
Michael is not a part of these proceedings.
3 The mother reported that Zygmunt's father is deceased. The
judge terminated the parental rights of any unknown or unnamed
father of Zygmunt.
by finding that they were each unfit to parent their respective

children. We affirm.

Discussion. 1. Father's appeal. a. Parental unfitness.

i. Standard of review. Before terminating a parent's rights to

a child, a judge must find by clear and convincing evidence that

the parent is unfit. See Adoption of Jacob, 99 Mass. App. Ct.

258, 262 (2021). "'[P]arental unfitness' means 'grievous

shortcomings or handicaps' that put the child's welfare 'much at

hazard.'" Id., quoting Adoption of Katharine, 42 Mass. App. Ct.

25, 28 (1997). In making this determination, "the judge 'may

consider past conduct to predict future ability and

performance.'" Adoption of Jacob, supra, quoting Adoption of

Katharine, supra at 32–33. "When making this determination,

subsidiary findings of fact must be supported by a preponderance

of the evidence, with the ultimate determination of unfitness

based upon clear and convincing evidence." Adoption of Rhona,

63 Mass. App. Ct. 117, 124 (2005). Our review is for an abuse

of discretion or clear error of law. See Adoption of Elena, 446

Mass. 24, 30 (2006).

ii. Father's domestic violence. We are not persuaded by

the father's argument that the Department of Children and

Families (department) failed to show a basis for its ongoing

concerns about his domestic violence and likewise failed to show

a nexus between his history of domestic violence and his ability

2
to parent Erik and Luke. Here, the judge made "detailed and

comprehensive findings on domestic violence" by the father

towards both Zygmunt and the mother. Adoption of Jacob, 99

Mass. App. Ct. at 262, quoting Care & Protection of Lillith, 61

Mass. App. Ct. 132, 139 (2004). The judge found that on at

least two occasions -- one in 2018 and another in 2019 -- the

father used physical violence to discipline Zygmunt.4 In the

first incident, while the family was living in Colorado, the

father hit Zygmunt in the face, giving him a black eye and

leading the mother to send Zygmunt to live with family friends

in Massachusetts based on her concerns about "the unhealthy and

unsafe environment in the . . . home."5 In the second incident,

which occurred while the family was living together in

Massachusetts, Zygmunt was hospitalized after the father grabbed

him by the neck and repeatedly punched him in the face and

abdomen.6 At the termination trial, both parents testified that

Zygmunt was at fault for the altercations with the father. The

judge did not credit that testimony. The mother, too, was a

4 Zygmunt has a learning disability and has been diagnosed with
attention deficit hyperactivity disorder (ADHD), posttraumatic
stress disorder (PTSD), and anxiety. Additionally, as we
discuss below, Zygmunt's communication skills differ from those
of the parents, Erik, and Luke, all of whom experience some
level of hearing impairment.
5 Although the father testified that the incident was an

accident, the judge did not credit that testimony.
6 The father was prosecuted for this abuse and pleaded guilty to

charges of assault and battery on Zygmunt.

3
victim of the father's domestic violence; the judge found that

the father "frequently" forced the mother to have sex with

him.7, 8

Additionally, the fact that the father pleaded guilty to

assault and battery of Zygmunt and "accepted" court-ordered

punishment does not render erroneous the judge's findings that

the father neither accepted responsibility for his actions nor

benefited from the available treatment. Despite the father's

having pleaded guilty to the criminal charges, the judge found

that the father continued to blame Zygmunt for initiating the

disputes between the two of them. Additionally, the judge's

findings reflect that although the father engaged in counselling

intended to address his use of physical punishment on the

children, he refused to acknowledge that domestic violence

applied to children at all and never identified a plan for

disciplining the children without physical force. See Adoption

7 Indeed, the judge implicitly found that the mother's and
father's youngest child, Michael, see note 2, supra, was
conceived as a result of the father's forced sex with the
mother. The father was charged with raping the mother, but the
charges were later dismissed at the mother's request.
8 The father's undeveloped argument about the impact of "outside

influences" impeding his ability to meet Zygmunt's needs does
not persuade us otherwise. Specifically, the father argues that
(1) the friends to whom the mother gave temporary guardianship
of Zygmunt after father's abuse required Zygmunt's
hospitalization attempted to undermine his relationship with
Zygmunt; and (2) the department "did nothing [after the
children's removal from the father and mother] to address
Father's relationship with Zygmunt."

4
of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting Petitions

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

Adoption, 399 Mass. 279, 289 (1987) ("The [parent's] inability

to consistently attend, complete, and benefit from classes

required by [their] service plan is 'relevant to the

determination of unfitness'").

Furthermore, the absence of any finding that the father

abused Erik and Luke does not, as the father contends, negate

the existence of the requisite nexus between the father's

domestic violence against the mother and Zygmunt and his ability

to parent Erik and Luke. Domestic violence in the home "has a

profound impact on children," whether or not the children at

issue are themselves direct victims of abuse.9 Custody of

Vaughn, 422 Mass. 590, 599 (1996) See Care & Protection of

Lillith, 61 Mass. App. Ct. at 141. Here, the judge made

properly supported findings that the father had only

inconsistently engaged in services intended to improve his anger

management skills and understanding of domestic violence, and

failed to benefit from those services in which he did

participate. The scarcity of evidence of the father's past

9 Any argument that Erik and Luke did not witness the domestic
violence against the mother and Zygmunt is unpersuasive because
"[a] parent's willingness to ignore or minimize abusive behavior
can be an indicator of 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).

5
abuse of other family members did not prohibit the judge from

considering the evidence of his abuse of Zygmunt and the mother

in assessing the father's fitness as to Erik and Luke. "A judge

. . . need not wait for disaster to happen but may rely upon

past patterns of parental neglect or misconduct in determining

current or future fitness." Adoption of Virgil, 93 Mass. App.

Ct. 298, 301 (2018). We discern neither abuse of discretion nor

other error in the judge's reliance on evidence of the father's

domestic violence in assessing the father's fitness to parent

Erik and Luke. See Adoption of Garret, 92 Mass. App. Ct. 664,

673-674 (2018) (judge warranted in concluding parent's failure

to benefit from services under department plan rendered parent

unfit).

iii. Best interests assessment. For substantially the

reasons we have just discussed, we are not persuaded by the

father's argument that the judge erred in evaluating his

parental fitness and the best interests of Erik and Luke

collectively, rather than individually. We acknowledge that

"[p]arental 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 Luc,

484 Mass. 139, 144 (2020), quoting Adoption of Mary, 414 Mass.

705, 711 (1993), and to that extent, must be "child-specific."

6
Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004). We

recognize that Zygmunt, whom the judge found to have suffered

from the defendant's physical abuse at least twice, was on

different footing as to the father when compared to his half-

brothers, Erik and Luke. First, Erik and Luke are the father's

biological children while Zygmunt is his stepchild. Second,

like the father (and the mother), Erik and Luke are hard of

hearing and communicated primarily using American Sign Language

(ASL); Zygmunt, by contrast, is a hearing child, who

communicates verbally, as well as through ASL.10 Third, Zygmunt

has been diagnosed with a learning disability, ADHD, PTSD, and

anxiety. Erik and Luke do not experience such issues, but Erik,

particularly, has specialized and chronic medical needs.

None of these differences, however, impacted the judge's

overarching conclusion that the father was unable to manage his

own anger or appreciate the fact or impact of his domestic

violence, and thus unfit to parent Erik and Luke or to care for

Zygmunt. This is not a case in which the father's ability to

parent depended on the individual needs of each child; rather,

it depended on his own ability to care for the children without

resorting to physical punishment or exposing them to domestic

violence. Here, where all members of the family were exposed to

10Although the father argues that Zygmunt "doesn't understand
sign language," the record does not support that contention.

7
the risk of physical abuse, we discern no error in the judge's

consideration of the three children as a group. See Adoption of

Nancy, 443 Mass. 512, 516 (2005) ("Although it would be better

practice specifically to state the reasons that termination is

in the child's best interest, such specificity is not

required").

b. Reasonable efforts. The father's challenge to the

department's reasonable efforts to provide services to

accommodate the parents' hearing issues was not raised with the

department before trial, and so it is waived.11 See Adoption of

West, 97 Mass. App. Ct. 238, 244 (2020). Even if that were not

the case, we would not be persuaded that the department's

handling of either visitation or the children's placement with

preadoptive parents not fluent in ASL, the parents' primary

means of communication, warrants reversal. See G. L. c. 119,

§ 29C ("A determination by the court that reasonable efforts

were not made shall not preclude the court from making any

appropriate order conducive to the child's best interest"). See

also Adoption of Franklin, 99 Mass. App. Ct. 787, 797-798 (2021)

(although department clearly violated its own regulations

regarding visitation, "it does not follow that the father is

11The same is true for the father's argument based on the
agreement between the Department of Justice and the department
or the department's subsequent issuance of Disability Policy
#2022-01.

8
entitled to reversal of the decrees terminating his parental

rights").

i. Visitation. After the children were removed from the

parents' custody in early March 2019, the mother was offered

regular in-person visits with the children. In late August

2019, when she moved to Indiana with the father, her visits were

decreased to monthly. By contrast, the father was denied

visitation with Erik and Luke until August 2019 for reasons that

were "unclear" to the judge; however, once the parents moved to

Indiana, he was also permitted monthly visits with his

children.12 Later, the department incorrectly restricted the

parents to virtual visits despite an easing of the COVID-19

protocols for in-person visits. Still, although we recognize

some significant missteps in the department's handling of the

parents' visitation opportunities, we are not persuaded that

these missteps warrant reversal because the key to the family's

reunification was not improvements in the parents' ability to

communicate or bond with the children, but rather the parents'

ability to recognize and eliminate the risk to the children

12We agree with the father that the denial of visitation was in
violation of 110 Code Mass. Regs. § 7.128 (2008), which requires
that the matter be brought before a judge before parental visits
are terminated, and that the judge make "specific findings
demonstrating that parental visits will harm the child or the
public welfare."

9
created by the father's domestic violence.13, 14 See Adoption of

Franklin, 99 Mass. App. Ct. at 798 ("To address whether

[reversal] is appropriate, we need to examine the grounds on

which the judge determined the father to be unfit and terminated

his parental rights, and what role, if any, the absence of

visitation . . . played in those decisions).

ii. Preadoptive placements. We are likewise unpersuaded

that by placing the children with foster families who were not

fluent in ASL, the department "actively engineered the breakdown

of the parental relationship" between the father and Erik and

Luke. Although Luke's foster mother is not fluent in ASL, she

does have some training and was taking additional sign language

training at the time of trial, and she used both ASL and verbal

speech with Luke. Additionally, Luke's foster mother advocated

for him to be enrolled in the READS Academy hard of hearing

13 This is not to say that we condone the department's failure to
follow its own policies, or that we have ignored the particular
impact of physical separation between these parents and these
children where the family communicated primarily by nonverbal
means. Our conclusion is only that to the extent that the
department erred in depriving the family of in-person visits,
the error did not go to the heart of the judge's concerns about
the parents' unfitness.
14 At the time of trial, the father had not completed the

domestic violence classes required as part of the department's
action plans. The judge found that "[the father] justified his
non-compliance because [Zygmunt] is a child and domestic
violence is between adults." Likewise, he had not engaged in
anger management services and had not completed a batterer's
intervention program.

10
preschool program where he was learning ASL. Erik, on the other

hand, wears hearing aids and was receiving speech and

occupational therapy in school; it is unclear from the record

whether Erik's foster parents understand or use ASL with him

regularly.15 In other words, where the foster families pursued

ASL services and exposed each child to ASL relative to that

child's individual language needs, even where the parents do not

feel the services were adequate, we are not persuaded that the

department violated the parents' rights.

Furthermore, even if we were to conclude that the

placements were not conducive to, or even barriers to, the

department's stated goal of reunification, we are satisfied that

the judge correctly determined that termination of the father's

parental rights was in the best interests of Erik and Luke. See

Adoption of Ilona, 459 Mass. 53, 61 (2011). As the judge found,

the root of the father's unfitness was his inability to

acknowledge and appreciate the impact of his domestic violence

on the children's well-being, not challenges in communicating

with them. See Adoption of Franklin, 99 Mass. App. Ct. at 799.

2. Mother's appeal. a. Parental unfitness. i. Failure

to protect children from father. We do not agree with the

mother's contention that the judge's finding no. 223 -- "the

15When Erik arrived at the foster home, the foster parents used
"baby" signs to communicate with him.

11
mother's plan to protect the children from [the father] should

reunification occur [is] insufficient, leaving all three

children at grievous risk [of becoming] a victim of and/or

exposed to domestic violence" -- was clearly erroneous. The

evidence at trial supported the judge's findings by at least a

fair preponderance of the evidence, see Adoption of Xarina, 93

Mass. App. Ct. 800, 802 (2018), that the father abused both

Zygmunt and the mother herself, and that the mother was aware

that the father posed a risk to all of the children in the home.

In late 2018 the mother was sufficiently concerned about the

risk of ongoing harm to Zygmunt that she sent him to live with

temporary guardians in Massachusetts. The following year, the

mother told the department that "she didn't want [the father] to

[see] the kids again until he had calmed down so that he would

not hurt them."

Despite the mother's evident awareness of the danger the

father posed to the family, the judge's findings support the

conclusion that she consistently denied or minimized that risk,

blaming Zygmunt and his "lies" for the father's criminal

prosecution and characterizing the father's forcing her to have

sex as a "miscommunication." Although she was made aware of the

department's concern for her safety and that of the children,

and offered services and education on domestic violence and

appropriate parenting, the mother did not take full advantage of

12
the services offered and did not benefit from those she engaged

in. The judge found that "[the mother] demonstrates little

awareness and appreciation for the domestic violence of [the

father] [toward] herself and the children" and that as a result,

the family "remain[ed] at risk for violence in the home."

Further, the mother signaled her intention to stay with the

father notwithstanding his violence toward her and Zygmunt. In

February 2020, just after the father's charges for abusing

Zygmunt were resolved, the mother married the father. The judge

found that the mother viewed the father as "the only person that

she had in her life" and that she intended to stay with him.16

The mother does not challenge any of these findings as clearly

erroneous.

We are not persuaded that the evidence of the father's

domestic violence and anger management issues was stale, see

Adoption of Diane, 400 Mass. 196, 204 (1987); we likewise

consider it sufficiently detailed to support the judge's

subsidiary findings concerning the mother's ability to protect

16Tellingly, the father does not challenge the judge's findings
that although the mother testified that she did not want the
father to supervise Zygmunt "because she wants Zygmunt to be
safe and not to be hurt again," and her safety plan for the
family included taking the children to a friend's house when the
father became angry "until such time as [the father] regained
self-control and it was safe to return home," the mother's plan
for childcare while she was at work would have left the children
in the father's care. Again, the mother does not dispute these
findings.

13
the children from the father's violence. See Custody of Vaughn,

422 Mass. App. Ct. at 599-600 (requiring courts to make explicit

findings as to effect of domestic violence on child"). See also

Adoption of Elena, 446 Mass. at 31-32 ("There was ample evidence

that the children would suffer if returned to the custody of

their mother" where "[t]he mother was unable to stand up to her

abusers when the abuse was directed at her, and she was

ineffectual at intervening on behalf of her children when the

abuse was directed at them"). The mother's inability or

unwillingness to extricate herself from the father despite his

history of abusing both Zygmunt and her was relevant to the

mother's ability to protect the subject children from grievous

harm. See Adoption of Lisette, 93 Mass. App. Ct. 284, 293-294

(2018). The fact that the judge did not find that Erik or Luke

had been the direct victims of abuse is, as we have discussed,

not a basis on which to vacate the decrees. See id. at 294

n.15; Adoption of Katharine, 42 Mass. App. Ct. at 32-33 (judges

need not "wait for inevitable disaster to happen" and "may

consider past conduct to predict future ability and

performance").

ii. Mother's parenting of Michael. In 2019, shortly after

the mother and the father moved to Indiana, the mother gave

birth to Michael, their third child together. The mother's

argument that the judge abused his discretion by failing to

14
consider her success in caring for Michael, is unavailing.

Although Michael lived in Indiana with the parents, and was not

a party to this action, the judge did consider the limited

evidence about the mother's ability to care for him. The judge

noted that Indiana child protective services had been involved

with Michael and the parents after Michael's birth and that

custody of Michael had remained with the parents. The judge

also took into account the testimony of Michael's aunt

indicating that she had never seen the parents "be physical" in

disciplining him. Notably, however, the mother testified and

the judge found that although the mother sometimes felt it

necessary to leave her own house when the father became angry

"until . . . it was safe to return home," she would only

sometimes take Michael with her; at other times, despite her

safety concerns, she left the sleeping Michael with the angry

father. We are satisfied that the judge considered the limited

evidence of the mother's fitness to care for Michael in reaching

his conclusion about her unfitness to care for Zygmunt, Erik,

and Luke. Cf. Adoption of Linus, 73 Mass. App. Ct. 815, 820-821

(2009).

iii. Visitation. The mother did not raise her concerns

about limited visitation in the trial court. Although the issue

is therefore waived, we nonetheless address it. See Adoption of

West, 97 Mass. App. Ct. at 244-245. We have noted our concerns

15
about the department's failure to provide the parents with the

opportunity for in-person visits at the earliest opportunity.

As we have discussed, supra, however, where the judge's primary

concern in this case was the parents' inability to appreciate

the impact of the father's domestic violence on the family, or

the risk to all the children presented by the father's inability

to manage his anger, the limits imposed on the parents'

opportunity to interact with the children did not, in our view,

contribute to the judge's determination of the parents'

unfitness. See Adoption of Franklin, 99 Mass. App. Ct. at 797-

798. Specifically, as to the mother, we discern no basis to

conclude that in-person contact with the three children would

have raised the mother's awareness of the risks presented by the

father's violence or prompted her to take additional steps to

protect the children from those risks. Indeed, the fact that

she continued to leave Michael with the father even when she

felt her own safety was threatened underscores the point.

iv. Child-specific fitness determinations. For

essentially the reasons we have discussed in connection with the

father's appeal, we are unpersuaded that the judge abused his

discretion in failing to consider separately the mother's

fitness to parent each of the three children. The key elements

of the mother's unfitness here -- her inability to appreciate

the risks presented to all family members by the father's

16
violence and her unwillingness or inability to protect the

children from those risks -- do not vary with the needs or

abilities of the individual children. The judge implicitly

found that the father was a risk to all three children, and that

the mother's failure to acknowledge the impact of the father's

domestic violence prevented her from adequately protecting any

of the children. We discern no abuse of discretion in the

judge's conclusions.

Decrees affirmed.

By the Court (Vuono, Milkey &
Hand, JJ.17),

Assistant Clerk

Entered: February 9, 2024.

17 The panelists are listed in order of seniority.

17