Adoption of Remiah.

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-645

ADOPTION OF REMIAH.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees entered in

the Juvenile Court, terminating their parental rights as to

their daughter, Remiah (child). On appeal, both parents argue

that the judge failed to apply the correct legal standard to

determine the parents' unfitness. The mother also asserts that

the judge erred in (1) considering findings of fact from a prior

care and protection matter involving the mother's older

children, (2) finding her unfit, and (3) leaving to the

discretion of the child's legal custodians the question of any

posttermination and postadoption visitation between the mother

and the child in addition to one visit per year. Additionally,

the father argues that the judge erred in (1) considering his

juvenile record, (2) finding he had not meaningfully engaged in

his action plan tasks and finding him unfit, and (3) failing to

1 A pseudonym.
make findings regarding the best interest of the child. After

careful review of the record and consideration of the judge's

findings, we affirm.

Background. We summarize briefly the findings of fact

entered by the judge, which must stand absent clear error. The

child, born in May 2020, is the mother's third child and the

first with the father. The mother has previously been involved

in care and protection proceedings that resulted in the

termination of her parental rights with respect to her two older

children.

Shortly after losing custody of her older children in 2019,

the mother began a relationship with the father and moved into

an apartment owned by his parents. The father, then sixteen

years old, was committed to the Department of Youth Services

until he turned eighteen but lived in his parents' home across

the street from the mother's apartment.2

The Department of Children and Families (department) became

involved with the child in May 2020, when the child was born

premature and substance exposed to marijuana. The department

received a G. L. c. 119, § 51A report (51A report) of neglect of

the child, and the mother tested positive for marijuana at the

2 The father turned eighteen in June 2020, approximately a
month after the child was born.

2
hospital. The hospital discharged the child to the father and

paternal grandparents.

In May or June 2020, the mother was hospitalized for

alcohol poisoning. The mother was combative, and police had to

hold her down so medical personnel could sedate her on the way

to the hospital. In June 2020, the mother attacked hospital

staff. Police were called and, again, assisted medical

personnel in sedating the mother.

The mother and the father continued their relationship and

continued to live across the street from one another, with the

father spending some nights at the mother's apartment. The

paternal grandparents provided child care when the father worked

and supervised the mother's twice daily visits with the child.

The mother's relationship with the father included

significant incidents of domestic violence, beginning after the

child's birth and continuing to three months before trial. The

mother called the police repeatedly, resulting in six police

responses between October 2020 and September 2021. On two

occasions in the fall of 2020, police found the mother with

injuries, including to her hand, knee, and face, some of which

she attributed to the father. In November 2020, the department

received a 51A report alleging parental neglect of the child.

The report included medical records showing that the mother

received a series of injuries resulting from domestic violence,

3
resulting in stitches in October 2020 and an orbital fracture in

November 2020.

In response to this report, the department removed the

child from the father's home. The mother initially told

hospital staff that the father had caused the orbital fracture

but subsequently told them that it had been his sister. When

asked by the department, both parents denied any physical

violence but admitted verbally arguing. The mother denied that

the father or his sister had ever hit her and denied making any

such statement to medical staff.

The 911 calls and police responses continued after the

removal of the child. In December 2020, the mother called 911

due to an argument with the father. In May 2021, the mother

called the police after an argument with the father, reporting

that the father's family chased her down the street, and that

she defended herself with a taser. In November 2021, police

received an abandoned 911 call from the mother, who subsequently

insisted that it was an accidental dial and that she did not

need service. In December 2021, police responded to a call from

the maternal grandmother, stating that she received a text

message from the mother that the father had hit her face.

Responding to the call, police observed a small red mark on the

left side of her face. The father told police that the mother

had started the fight and that she had injured his mouth.

4
Later that day, the mother obtained an abuse prevention

order. In her affidavit, the mother stated that the father had

shown up at the apartment drunk, called her names, and demanded

that she leave, and when she refused, he threatened to get his

sister to beat her up. She further claimed that earlier that

month, the father had woken her up, verbally abused her, and

threated her; he also threatened to have his sister beat her up

and to beat up the mother's brother. Additionally, she wrote in

her affidavit that the father had previously smacked her across

the face, choked her, and "threatened her with his mother,

father, and sister," who, the mother again claimed, had caused

her orbital fracture.

Discussion. 1. Legal standard. When making a

determination of a parent's unfitness, "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). The mother and father both cite conclusion of law

no. 2 in contending that the judge erroneously applied the

preponderance standard to conclude that the mother and father

were unfit. Though the mother and father correctly observe that

the judge's conclusion expressed the parents' unfitness by

5
reference to the preponderance of the evidence,3 in context, we

understand the reference instead to reiterate that the

subsidiary findings of fact were adequately supported by a

preponderance of the evidence.4 The remaining conclusions of law

contain numerous correct articulations and applications of the

appropriate legal standards and clearly establish that the

judge's ultimate determination of the parents' unfitness was

based upon clear and convincing evidence. Read in context, we

agree with the department that, to the extent the reference in

conclusion of law no. 2 may be read to recite the wrong standard

for the finding of unfitness, it is properly understood as a

scrivener's error.

2. Termination of the mother's parental rights. a. Prior

care and protection matter. Generally, recent findings from a

3 The judge stated, "It has been proven by at least a fair
preponderance of evidence that each parent, individually and as
coparents, is unfit to care for the child and that their
unfitness is extremely likely to continue into the indefinite
future" (emphasis added).

4 The judge introduced her conclusion by stating the correct
legal standard:

"In a care and protection proceeding, subsidiary factual
findings need only be proved by a fair preponderance of the
evidence, rather than by clear and convincing evidence.
'Taken together, these facts must then prove parental
unfitness, since it is the "critical inquiry," by clear and
convincing evidence.' Care and Protection of Laura, 414
Mass. 788, 793 (1993)."

6
prior care and protection decision are admissible in a later

proceeding "when such findings are relevant and material and

made during a proceeding in which the parent[] had a compelling

incentive to litigate." Adoption of Darla, 56 Mass. App. Ct.

519, 520-521 (2002). The findings in this case regarding the

mother's recent history of unstable mental health and substance

abuse are relevant and material, and the mother had a prior

opportunity and compelling incentive to litigate these issues.5

This case is distinguishable from Care & Protection of

Zita, 455 Mass. 272 (2009). There, a judge improperly relied on

an unsworn petition and facts the judge learned presiding over

earlier cases involving the mother, neither of which were in

evidence. Id. at 279-282. Here, the judge properly admitted

into evidence the findings of another judge in a prior

proceeding terminating the mother's parental rights to her older

children.6 Admission of the findings was not error.

b. Nexus to unfitness. The mother does not dispute the

judge's subsidiary findings regarding her mental health and

5 Indeed, the mother fully litigated these issues. See
Adoption of Zaria, 103 Mass. App. Ct. 1116 (2023) (affirming
termination of mother's parental rights to her older children).

6 The judge considered only so much of the prior findings as
they related to the mother's prior interaction and progress with
the department and primarily relied on the facts dating from the
time the mother became pregnant with the child.

7
substance abuse problems but argues that there was no

significant nexus between them and her parenting ability.

Therefore, she argues, the judge abused her discretion when she

relied on these factors to ultimately find the mother unfit and

terminate her parental rights. We disagree.

Substance abuse during and after pregnancy cannot be the

sole ground for terminating parental rights without evidence

that the parent "provide[d] less than minimally acceptable care"

for the child. Adoption of Katharine, 42 Mass. App. Ct. 25, 31

(1997). See id. at 34 ("we do not think a cocaine habit,

without more, translates automatically into legal unfitness"

[emphasis added]). However, the mother's substance abuse was

not viewed in isolation. The judge relied on it, in conjunction

with domestic violence, mental health challenges, and

inappropriate housing, to support her overall finding of

unfitness. The judge properly considered the mother's substance

abuse along with the other factors contributing to the mother's

inability to care for the child.

Mental disorders are "relevant only to the extent that

[they] affect[] the parents' capacity to assume parental

responsibility." Adoption of Frederick, 405 Mass. 1, 9 (1989).

A parent's "unwillingness to adhere to [the department's]

service plan, which required her to obtain treatment for her

mental health challenges and substance use disorder, is relevant

8
to the determination of unfitness" (quotation and citation

omitted). Adoption of Luc, 484 Mass. 139, 147 (2020). While

the mother sporadically attended therapy from June 2021 to

September 2021, she failed to complete an anger management

program, a longstanding part of her action plans during both

care and protection cases.

The trial judge did not abuse her discretion when she

terminated the mother's parental rights. An abuse of discretion

occurs when a judge makes "a clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014). Considering the robust evidence of

the mother's substance abuse and mental health concerns, the

trial judge did not err when she weighed these factors to find

the mother unfit.7 Further, the trial judge did not rely solely

on these factors. She properly considered the mother's history

of domestic abuse, inappropriate housing, and refusal to

7 "Despite the moral overtones of the statutory term
'unfit,' the judge's decision was not a moral judgment or a
determination that the mother and father do not love the child."
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
Indeed, the judge specifically found that both parents
demonstrated love for the child.

9
cooperate with the department's action plans. We find no error

in judgment in her careful analysis of these relevant factors.

c. Inappropriate housing. Evidence of a parent's failure

to maintain adequate housing and "keep a stable home

environment" is relevant to the unfitness determination.

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

to Adoption, 399 Mass. 279, 289 (1987). See Adoption of Anton,

72 Mass. App. Ct. 667, 676 (2008). Moreover, "it is proper for

a judge to consider a parent's living arrangements at the time

of trial despite the fact that the child was not living with her

at that time." Adoption of Virgil, 93 Mass. App. Ct. 298, 303

(2018).

The record supports the judge's determination that the

mother failed to establish appropriate housing. While it is

true that the mother lived in the same apartment for three years

before the trial,8 the length of her tenure was not the source of

the judge's concern. Despite the history of violence between

the mother and the father and his family, the mother continued

to live across the street from the father in an apartment owned

by his family. She did not have a lease and paid rent to the

8 The mother briefly left this apartment for one month in
2021 when she lived with her great uncle. However, she
subsequently returned to the apartment owned by the father's
parents.

10
father's parents irregularly. The apartment was unclean and in

poor condition, and home visits found a missing stair railing,

excessive trash, minimal food, and a large hole in the ceiling

from a burst pipe. During the department's last home visit, in

March 2022, the mother refused to allow the worker to go

upstairs to view the bedrooms and did not grant subsequent home

visits despite the department's requests.

d. Posttermination and postadoption contact. The power to

order posttermination and postadoption contact rests within the

discretion of the trial judge, who may determine the extent to

which decisions regarding visitation are left to the judgment of

the adoptive family. See Adoption of Rico, 453 Mass. 749, 754

(2009). An order of postadoption contact should be "carefully

and narrowly crafted to address the circumstances giving rise to

the best interests of the child." Adoption of Vito, 431 Mass.

550, 564 (2000). The judge must also weigh any "intrusion that

an order imposes on the rights of the adoptive parents, who are

entitled to the presumption that they will act in their child's

best interest." Adoption of Ilona, 459 Mass. 53, 64-65 (2011).

Considering these relevant factors, we find that the trial judge

did not abuse her discretion in ordering visitation with the

child only once per year.

Although the child was removed from the mother's custody as

an infant, the trial judge concluded that the child "enjoys

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visits" with her parents and half-siblings and that she

"reciprocates affection," though she "does not demonstrate a

bond beyond a comfortable familiarity with each parent." In any

event, even where a significant bond exists between parent and

child, providing a basis for postadoptive visitation, such an

order is not automatic, and is warranted only where it is in the

best interests of the child. See Adoption of Ilona, 459 Mass.

at 63-64. And an order for a specific minimum number of visits

merely sets a floor, leaving to the adoptive parents the

possibility of additional visits if they would be in the best

interests of the child. See Adoption of Zander, 83 Mass. App.

Ct. 363, 366 (2013). We discern no abuse of discretion in the

order requiring one visit per year.

3. Termination of the father's parental rights.

Termination of parental rights requires "a two-part analysis."

Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge

must find that the parent is presently unfit." Adoption of

Cadence, 81 Mass. App. Ct. 162, 167 (2012). "Second, the judge

must find that 'it would be in the child's best interests to end

all legal relations between parent and child.'" Id., quoting

Adoption of Nancy, supra.

a. The father's unfitness. "Violence within a family is

highly relevant to a judge's determination of parental unfitness

and the best interests of the children." Adoption of Gillian,

12
63 Mass. App. Ct. 398, 404 n.6 (2005). Nor is harm limited to

cases where the child directly witnesses domestic violence.

Adoption of Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018) ("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").

The judge concluded that the father "continues to deny the

domestic violence between himself and [the m]other, which is

clearly evidenced in other credible portions of the record," and

"has not sufficiently engaged in domestic violence education or

treatment as a batterer and does not have any insight as to what

domestic violence is." These findings are supported by police

reports and medical records showing signs of the mother's abuse.

Though the father presented a different account at trial, the

judge did not find him credible. See Adoption of Nancy, 443

Mass. at 515 (noting trial judge has "discretion to evaluate a

witness's credibility and to weigh the evidence").

Additionally, the father failed to adequately engage with

the department, allowing the judge to conclude that the father

was not progressing toward becoming fit. Although the

department scheduled monthly visits for the father in July,

August, and September of 2021, he either failed to attend or

canceled each one. The father refused to allow a social worker

into his home during a visit in December 2021. Despite being

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part of his action plan from the beginning, the father only

began anger management classes near the start of the trial. We

find no error in the judge's determination of unfitness.

b. The father's juvenile record. The judge did not err by

referencing the father's juvenile record.9 The father's counsel

did not object to the admission of the police records

documenting the father's delinquency history. Any objection is

therefore waived, and the judge was permitted to consider the

"full probative force" of the evidence (citation omitted).

Adoption of Kimberly, 414 Mass. 526, 534-535 (1993) (failure to

object to proffered evidence at trial results in waiver of

objection).10

c. Best interest of the child. The trial judge made

detailed findings about the fitness of the child's parents, the

child's needs, and the suitability of the child's adoptive home.

9 The judge's findings made only passing references to the
father's juvenile record. Even if the admission of the father's
juvenile record was erroneous, any error would be harmless as
those findings were "not central to the ultimate conclusion of
unfitness." Care & Protection of Olga, 57 Mass. App. Ct. 821,
825 (2003).

10To the extent that the father also argues that the judge
erred by finding that he had a significant criminal "record" as
an adult, as the judge found, an abuse prevention order issued
against the father three months before trial, and there were
"multiple police responses throughout the pendency of the case."
In determining parental fitness, the judge was entitled to
consider the father's criminal conduct and history, even though
it did not lead to an arrest or conviction. See Care &
Protection of Frank, 409 Mass. 492, 496-497 (1991).

14
The evidence demonstrated that the mother and the father

struggled with substance abuse, and there were frequent police

visits as well as significant evidence of domestic violence

perpetrated by the father. Furthermore, the trial court found

that the child was "thriving" in her preadoptive home and was

"healthy and developmentally on target," had formed a strong

bond with her foster parents, and was in a "loving, secure,

nurturing home."

"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). A placement plan does

not need to 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."'" Adoption of Varik, supra, quoting Adoption of

Willow, 433 Mass. 636, 652 (2001). "In determining the

sufficiency of the plan, the judge may consider evidence and

testimony presented at trial regarding unfitness and the child's

best interests, in addition to the written plan." Adoption of

Varik, supra, citing Adoption of Willow, supra at 653.

In October 2021, the department filed a report under G. L.

c. 119, § 29B (29B plan), stating that the child was in a

15
preadoptive placement with the permanency goal of adoption. On

November 2, 2021, the judge approved the child's placement

through adoption in accordance with the 29B plan. The mother

filed an objection to the permanency plan, but the father did

not. Additionally, a department social worker testified at

length about the child's placement and the adoption plan.

Accordingly, the trial court’s determination that termination

was in the child's best interests with consideration of the

adoption plan was not an abuse of discretion.

Conclusion. The judge did not err in admitting the

findings from the prior care and protection proceedings and the

police records documenting the father's juvenile delinquency

history into evidence. Moreover, she properly considered

evidence of domestic violence in the father's relationship with

the mother, the mother's substance abuse and mental health

concerns, and both parents' inconsistent engagement with

services. We conclude that the judge did not abuse her

discretion in finding the parents unfit or in concluding the

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termination of the parents' parental rights to be in the best

interests of the child.

Decrees affirmed.

By the Court (Green, C.J.,
Desmond & Hershfang, JJ.11),

Assistant Clerk

Entered: June 17, 2024.

11 The panelists are listed in order of seniority.

17