ADOPTION OF IGGY (And a Companion Case).

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-202

ADOPTION OF IGGY (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, a Juvenile Court judge found the

mother unfit to parent her children, terminated her parental

rights, and granted permanent custody of the children to the

Department of Children and Families (DCF). The mother appeals,

arguing that there was not clear and convincing evidence of her

unfitness and that several of the judge's findings of fact were

clearly erroneous. We affirm.

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

reserving some details for later discussion. The mother, who

was born in 1985, has been diagnosed with generalized anxiety

disorder and major depression order and has a history of

domestic violence in her romantic relationships. When she was

nineteen years old, she married a man who was physically abusive

toward her. The mother became pregnant during the marriage,

1 Adoption of Jasmin. The children's names are pseudonyms.
which lasted four years, but had a miscarriage after her husband

hit her in the stomach.

The mother began dating Iggy's father in 2012 and became

pregnant two months later with Iggy, who was born in 2013.

While still living with Iggy's father, the mother became

romantically involved with Jasmin's father. When Iggy's father

learned of this, he became angry and was verbally abusive to the

mother while she was pregnant with Jasmin. Jasmin was born in

2016.2

DCF first became involved with the family in late 2015

after receiving a report pursuant to G. L. c. 119, § 51A (51A

report) alleging neglect of Iggy by his father. The report

alleged specifically that Iggy was seen walking in the hallway

of his apartment building with a red mark on his face and

wearing only a diaper. Although the allegations were not

supported, DCF opened a case for services because of concerns

about Iggy's development.

A little over a year later in January 2017, the mother and

Iggy's father got into a physical fight when she allegedly saw

him rubbing Iggy in his groin area. The mother contacted the

police, and a 51A report was filed alleging sexual abuse of Iggy

by his father. DCF received another 51A report two weeks later

2 The judge made no determination regarding either father's
fitness as both passed away prior to her decision.

2
following an incident between the mother and Iggy's father at

the pediatrician's office, during which the mother reported that

Iggy's father was aggressive to her and that she was afraid of

him. The mother obtained a restraining order against Iggy's

father the next day; it was in effect for one year and required

that DCF supervise any visitation between Iggy's father and the

children. Despite this order the mother allowed the children to

see Iggy's father unsupervised on multiple occasions between

February and August 2017.

In August 2017 Iggy disclosed to the mother that his father

had touched him inappropriately. The mother took him to a

pediatrician, who did not find any signs of sexual abuse.

Following Iggy's disclosure, the mother was psychiatrically

hospitalized for five days because she was having thoughts of

harming herself and Iggy's father. While she was hospitalized,

another 51A report was filed when Jasmin's father did not pick

up the children from daycare.

DCF proceeded to take custody of the children and file the

underlying care and protection petitions. At the time, Jasmin

was nine months old but could not sit up on her own. Within a

month of her removal, she began sitting up on her own. When

Iggy was in the mother's care, he often refused to eat foods

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prepared by her, which she attributed to his autism.3 After he

was removed and placed in foster care, however, Iggy began

eating a variety of foods.

In October 2017 DCF returned the children to the mother's

care with conditions for her to follow, including completing

courses on anger management and parenting. About five months

later, the mother became confrontational and aggressive toward

staff at Jasmin's daycare, which DCF had specifically selected

for Jasmin because it permitted early intervention workers to

come work with her. DCF met with the mother to discuss the

issue and offered to transport Jasmin to the daycare, but the

mother rejected the offer. The daycare ultimately terminated

Jasmin's enrollment when the mother engaged in another

confrontation with the provider and said that she wanted to slap

her.

In April 2018, while at DCF's office, the mother was

involved in a verbal altercation with another woman in front of

the children. A DCF social worker saw the mother taking off her

coat and "pushing forward" toward the other woman. Iggy's

father was holding onto the mother's arm, and Iggy was holding

onto her leg. The social worker intervened and walked the

mother out of the building.

Iggy was evaluated for autism in December 2015 and was
3

later diagnosed with autism. He is high functioning.

4
DCF removed the children for a second time as a result of

this incident. Jasmin was sixteen months old at the time but,

despite her age, did not cry when she was hungry, lacked

strength in her legs, and was not walking or even attempting to

stand on her own. A neurologist attributed her failure to meet

these milestones to environmental neglect. A few months after

her second removal, Jasmin was walking and talking.

Iggy likewise experienced developmental delays. He was

almost five years old at the time of the second removal, but

could not dress or wash himself or brush his teeth. He had also

resumed his refusal to eat while in the mother's care. After a

couple of months in foster care, Iggy had a good appetite, began

eating a variety of foods, and was dressing himself.

DCF devised a plan to reunite the family once the mother

completed additional anger management and parenting courses.

Reunification occurred in March 2019, and DCF put two parent

aides in place to support the mother. Two months later, the

mother reported to the police that she had attempted suicide

three times following the recent passing of Iggy's father.

Around the same time, Iggy appeared at school with a cut on his

nose, prompting DCF to remove the children for a third and final

time. Iggy told the DCF social worker that the mother had

gotten angry and thrown something at him; he also reported that

the mother hit him and Jasmin when she was upset and that

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Jasmin's father also hit him. The mother insisted that Iggy was

lying and tried to convince him to tell the social worker that

another child had hit him with a stick at the park.

At a review and planning conference in June 2019, the

mother continued to state that Iggy was lying. Both she and

Jasmin's father denied Iggy's allegations of physical abuse and

domestic violence. Following the conference DCF changed the

children's goals to adoption.

While visits between the children and the mother were

mostly positive, the mother behaved inappropriately on a few

occasions. For example, one visit in 2018 was terminated early

when the mother became irate after Iggy ate food that she had

brought; the mother claimed that Iggy would not be eating it if

he was being properly fed in his foster home. During another

visit at the foster mother's home in December 2020, the mother

again insisted to Iggy that a child at the park had caused the

injury to his nose. When Iggy became upset and repeatedly said

that was not what happened, the mother told him not to lie and

stated that she was in the situation she was in because of his

lying. About a month later, the foster mother told the mother

that she had to cancel a visit because her pastor had died and

she was upset. The mother became angry and said that the pastor

was not God and that the foster mother should not be upset.

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At the start of trial in mid-2021, the children had been in

the same kinship foster placement for almost one year. Iggy

eats everything that his foster mother prepares for him and with

her help is doing well in school. The foster parents are able

to work with Iggy's educators and service providers to meet his

special needs surrounding his autism diagnosis. Jasmin's

mobility issues have greatly improved because of the efforts of

her foster family. She enjoys dancing with her cousins and

other activities and has an expansive vocabulary.

Both children have bonded with their foster parents and the

other children in the foster home. DCF's plan for the children

is adoption by the foster parents, which the children support.

The judge found this plan to be in the children's best interests

and further ordered posttermination and postadoption visits

between the children and the mother at least twice a year.

Discussion. 1. Sufficiency of evidence. "To terminate

parental rights to a child and dispense with 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." Adoption of Jacques, 82 Mass. App. Ct. 601, 606

(2012). "Parental unfitness is determined by considering a

parent's character, temperament, conduct, and capacity to

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provide for the child's particular needs, affections, and age."

Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).

We accord "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).

Here, we see no error in the judge's determination that DCF

met its burden of establishing the mother's unfitness by clear

and convincing evidence. The mother's unfitness resulted from a

"constellation of factors." Adoption of Greta, 431 Mass. 577,

588 (2000). She had a pattern of volatility and poor anger

management, having lashed out on many occasions against service

providers, DCF workers, the foster mother, strangers, and, most

notably, Iggy. See Adoption of Diane, 400 Mass. 196, 204 (1987)

(judge can "rely upon prior patterns of ongoing, repeated,

serious parental neglect, abuse, and misconduct in determining

current unfitness"). While the mother completed several anger

management and parenting classes and went to therapy, the judge

found that she did not show meaningful improvement or gain

insight from these services. She instead continued to display

aggression and confrontational behavior that diminished her

ability to effectively parent the children. See Guardianship of

a Minor, 1 Mass. App. Ct. 392, 396 (1973), quoting Richards v.

8
Forrest, 278 Mass. 547, 552 (1932) ("Violence of temper, . . .

or inability or indisposition to control unparental traits of

character or conduct, might constitute unfitness").

Moreover, as found by the judge, the mother was unable to

cultivate an environment that allowed the children to thrive

under her care. Both children experienced serious developmental

delays while in the mother's care, which were remedied after

their removals. After Iggy entered foster care, his eating

issues improved, new and varied foods were introduced to his

diet, and he started dressing himself. After Jasmin entered

foster care, she made significant gains in her development,

learning how to sit on her own, walk, and talk. A neurologist

attributed Jasmin's lagging development in these areas to

environmental neglect. That both children made relatively rapid

improvements after being removed from the mother's custody was

evidence that she could not meet their needs with respect to

promoting their positive development. See Petition of Catholic

Charitable Bur. of the Archdiocese of Boston, Inc., to Dispense

with Consent to Adoption, 395 Mass. 180, 187 (1985) (judge

properly compared evidence of child's condition while with

parent to condition postremoval).

There were also several occasions when the mother displayed

a troubling lack of insight into the needs of her children. For

example, the mother allowed Iggy's father to visit the children

9
unsupervised multiple times in violation of a restraining order,

despite Iggy's claims that his father had touched him

inappropriately. More recently, the mother accused Iggy of

lying about how he received the injury to his nose, repeatedly

asked him to change his story, and blamed him for the situation

she was in. Contrary to the mother's assertion, the judge found

this evidence relevant not because the mother denied

responsibility for Iggy's injury, but because "[r]egardless of

how the [injury] was caused," she could not "as [the] parent

. . . moderate her behavior"; instead, she "kept re-igniting

[Iggy's] distress by insisting that [he] lied," causing him to

suffer "enormous emotional dysregulation." The judge properly

weighed this in the balance as it showed the mother's lack of

insight and that she was willing to place "her own needs above

those of the children." Adoption of Daniel, 58 Mass. App. Ct.

195, 202 (2003).

Taken together, the judge's findings supported her ultimate

determination that there was clear and convincing evidence of

the mother's unfitness. We are unpersuaded by the mother's

arguments that the evidence of her unfitness was stale, as

"[p]rior history . . . has prognostic value." Adoption of

Jacques, 82 Mass. App. Ct. at 607, quoting Adoption of George,

27 Mass. App. Ct. 265, 268 (1989). The mother has exhibited a

pattern of volatility and neglect of her children despite

10
participation in services and, although the children were twice

returned to her care, was still unable to provide for their

needs, resulting in both children suffering serious

developmental delays. See Adoption of Ulrich, 94 Mass. App. Ct.

668, 677 (2019) ("mere participation in the services does not

render a parent fit without evidence of appreciable improvement"

[quotation and citation omitted]); Adoption of Jenna, 33 Mass.

App. Ct. 739, 744 (1992) ("prior parental conduct is deemed

relevant in assessing the parent's capacity and ability to care

for the child"). The children's improvement after entering

foster care and their strong bond with their preadoptive family

further supported the judge's determination. See Petition of

the Catholic Charitable Bur. of the Archdiocese of Boston, Inc.,

to Dispense with Consent to Adoption, 395 Mass. at 187; Adoption

of Daniel, 58 Mass. App. Ct. at 202-203.

For substantially the same reasons, we conclude that the

judge did not abuse her discretion in finding that terminating

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

interests. The children are entitled to stability. Where

reunification was attempted twice and was unsuccessful, "it is

only fair to the children to say, at some point, 'enough.'"

Adoption of Nancy, 443 Mass. 512, 517 (2005).

2. Challenges to factual findings. After considering

numerous exhibits and the testimony of multiple witnesses, the

11
judge made 150 findings of fact and forty conclusions of law

that "are both specific and detailed, demonstrating, as we

require, that close attention was given to the evidence."

Adoption of Don, 435 Mass. 158, 165 (2001). The mother claims,

however, that several of the judge's factual findings are

clearly erroneous. We agree that there was no direct evidence

to support one of the judge's findings -- that the mother

reported "hearing voices" when she was hospitalized in August

2017.4 But even assuming that this finding was clearly

erroneous, the error was harmless because it "relate[d] only

marginally, if at all, to the judge's ultimate conclusion of

unfitness." Adoption of Peggy, 436 Mass. 690, 702 (2002).

The mother's remaining arguments, while framed as clear-

error challenges to the judge's subsidiary findings, are more

aptly characterized as challenges to the judge's credibility

assessments and weighing of the evidence. For instance, the

mother takes issue with the judge's findings discrediting some

of the opinions of the mother's expert witness. It is within a

judge's discretion, however, to reject an expert's opinion "in

4 The judge based this finding on a negative inference she
drew from the mother's refusal to answer a question about
whether she told hospital staff that she was "hearing voices."
But the mother's counsel objected to the question on the ground
that it was seeking privileged information, and it is unclear
how the judge ruled on the objection because that portion of the
transcript is inaudible.

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whole or in part," and no showing has been made that the judge

abused her discretion in doing so here. L.L. v. Commonwealth,

470 Mass. 169, 183 (2014), quoting Commonwealth v. O'Brien, 423

Mass. 841, 854 (1996). Nor do we see any basis for overturning

the judge's assessment of the weight of the evidence, to which

we give deference.5 See Custody of Eleanor, 414 Mass. 795, 799

(1993).

To the extent we have not specifically addressed any of the

mother's arguments, all of which we have reviewed, we see no

additional basis to warrant overturning the judge's decision.

Decrees affirmed.

By the Court (Rubin, Blake &
Shin, JJ.6),

Assistant Clerk

Entered: April 4, 2024.

5 In particular, we are unpersuaded by the mother's
arguments that the weight of the evidence does not support the
judge's findings that the mother's "alienating behavior would
likely impede her ability to work with . . . service providers,"
that the mother lacked insight into the needs of the children,
and that she "would be unable to address" the children's special
needs in the future.

6 The panelists are listed in order of seniority.

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