ADOPTION OF GRAYSON (And Two Companion Cases). ( 2023 )

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-1051
ADOPTION OF GRAYSON (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found the father and
the mother unfit to parent their children Grayson, born in 2015,
Amy, born in 2016, and Alan, born in 2018 (collectively, the
three children), and terminated their parental rights to the
three children. Both parents argue on appeal that their due
process rights were violated when, as a result of the COVID-19
pandemic, the judge conducted the trial via the Internet-based
video conferencing platform Zoom (Zoom), contending that she did
so without safeguards later recommended in Adoption of Patty,
489 Mass. 630, 645-648 (2022). Both parents further argue that
the judge was biased against them. The father also contends
that the judge improperly admitted certain statements of
children contained in documentary evidence including reports of
the Department of Children and Families (DCF) pursuant to G. L.
1 Adoption of Amy, and Adoption of Alan. The children's names
are pseudonyms.
c. 119, § 51B (51B reports), as permitted by Adoption of Luc,
484 Mass. 139, 152-153 (2020). Finally, the mother argues that
the judge erred in finding her unfit. We affirm.
Background. In 2013, before the three children were born,
DCF became involved with the mother after reports pursuant to
G. L. c. 119, § 51A (51A reports), were filed and later
substantiated as to neglect of two of her older children, Mary
and Susan.2 As a result, Mary and Susan remained in the custody
of DCF for several years, and DCF generated service plans for
the mother, which were amended to include the three children
after they were born. The mother was diagnosed with bipolar
disorder and posttraumatic stress disorder (PTSD), but in 2011
stopped taking medication for those conditions.3
In November 2016, a 51A report was filed alleging neglect
of both Grayson, then one year old, and Amy, then three months
old, after police and the family's DCF ongoing social worker
responded to the hotel where the mother and father were living
with those two children.4 The mother reported that she and the
father had engaged in a verbal argument. At trial, the father
2 These children's names are also pseudonyms. The mother's
parental rights as to them are not at issue here. The father
here is not their father.
3 At trial, the mother testified that she then was taking
medication for bipolar disorder and PTSD.
4 During the first year of Grayson's life, two 51A reports were
filed alleging neglect, but both were unsupported.
2
testified that the mother was "very erratic, very violent,
throwing things . . . , being very vulgar, very disruptive."
DCF created a safety plan under which the father would be the
caretaker for Grayson and Amy while the mother went to a
hospital for an evaluation. However, shortly after arriving at
the hospital, the mother left and later refused to attend an
outpatient program because day care was not available for
Grayson and Amy. When a DCF investigator reminded the father
that he was supposed to be acting as the caretaker for Grayson
and Amy, the father raised his voice, asked to speak to a
supervisor, and hung up the telephone.
In April 2017, a 51A report was filed that was later
substantiated to the extent that it alleged that during a visit,
Mary and Susan were subjected to neglect by both the father and
the mother. During the investigation, Susan disclosed that the
father disciplined her and Mary by requiring them to hold a
"plank" position until he said they could stop. The father
admitted to DCF that he disciplined Mary and Susan by requiring
them to perform "planking," and he testified at trial that they
"enjoy[ed] doing it." The mother also testified that the father
disciplined Mary and Susan with planking.
By mid-2017, both the mother and the father had fully
completed the tasks set on DCF's most recent service plan.
Beginning in June 2017, Mary, then six years old, and Susan,
3
then four, lived with the mother, the father, Grayson, and Amy.
At that time, DCF's family action plan included tasks that both
the father and the mother engage actively in mental health
counselling to address their personal trauma history and how it
affected their parenting skills. Both the father and the mother
later claimed to be engaged in individual counselling but did
not provide DCF with sufficient information to verify their
participation. DCF also provided the parents with a parenting
aide, but the parents fired her and would not allow her access
to their home.
In September 2017, 51A reports were filed alleging physical
abuse of Mary, Susan, and Amy by the father, and neglect of
those children and Grayson as a result of witnessing domestic
violence in the home. During the ensuing investigation, both
Mary and Susan disclosed to DCF that the father hit them with a
belt, and Mary reported that the father covered Amy's mouth to
stop her from crying. Susan disclosed that she once saw the
father push the mother onto a bed, and Mary disclosed that the
father and the mother mostly used words to fight but sometimes
used their hands. The mother agreed to abide by a DCF safety
plan including that she would refrain from physical discipline;
the father refused to sign the safety plan.
On October 9, 2017, a 51A report was filed alleging
physical abuse of Mary by the father, after Mary disclosed to
4
her attorney that a bruise on her hip was caused when the father
pushed her to the ground. During the ensuing investigation, an
additional 51A report was filed alleging neglect of all four
children, and DCF filed care and protection petitions.
The next day, October 10, 2017, DCF workers and police went
to the home to take emergency custody of Grayson, then two and
one-half years old, and Amy, then fourteen months old.5 For over
two hours, the father refused to open the door, yelling that the
DCF workers could be arrested for kidnapping. To a police
officer, the father stated that Mary sustained the bruise when
she hit her hip on a doorway while he was "tossing the racks."6
At trial, the mother testified that the father did "toss the
racks" by throwing mattresses on the floor when beds were not
made properly.
On October 31, 2017, the mother obtained a G. L. c. 209A
order (209A order) against the father requiring that he refrain
from abusing her, not contact her, and stay at least fifty yards
away from her.7 A week later, the mother requested that the 209A
5 Mary and Susan were also taken into emergency DCF custody, but
they were removed from their schools.
6 The 51B report included a police officer's description of a
military term that applies when a superior officer inspects a
subordinate's bunk and determines that it is not made to the
proper standard, and the superior "tosses the rack" by making a
mess of the bunk and requiring the subordinate to remake it.
7 The mother's affidavit in support of that 209A order is not in
the record.
5
order be modified to remove the no-contact and stayaway
provisions, averring, "I would like to go back to my house," "I
also feel I was being pushed by DCF to [apply] for the order,"
and "I have also found out that we are expect[ing] in . . .
2018."
In November 2017, Grayson and Amy were placed in what
became their preadoptive home.
In late 2017 and early 2018, 51A reports were filed after
Mary and Susan, who were in a foster placement separate from the
three children, made additional disclosures that included
physical abuse by the father of Grayson and Amy and witnessing
domestic violence by the father of the mother. Mary disclosed
that the father hit Grayson on the head and hit Amy on the head
and the buttocks. Mary also disclosed that she saw the father
hit the mother with a belt, his hands, and a toy. During
investigation of those allegations, the father admitted that he
used to show the children a belt as a deterrent, and he once
used it on Mary. The father also admitted that Grayson "has
been spanked once."
In February 2018, DCF filed an emergency motion to suspend
the father's visits with Grayson and Amy. When the father moved
to compel weekly visitation, a Juvenile Court judge appointed a
guardian ad litem (visitation GAL) to investigate the facts and
circumstances pertaining to the father's visits. A judge also
6
appointed a guardian ad litem from the Court Appointed Special
Advocates for Children Project (CASA GAL) for Grayson and Amy.
In the spring of 2018, Alan was born. Two days later, DCF
filed a care and protection petition on his behalf. Alan was
placed in the same home as Grayson and Amy.
DCF continued to schedule visits between both parents and
the three children. The mother attended the visits
consistently, but the father did not attend at least one
scheduled visit, and three visits were cancelled because the
father insisted on recording the visits with a body camera.
Throughout 2018, Grayson and Amy displayed adverse
reactions before or after visits with each parent and began
seeing a trauma therapist. Those reactions became more serious
over time, and included both children having diarrhea, crying
and screaming uncontrollably, and clinging to the preadoptive
mother. Amy also experienced panic attacks during diaper
changes: she would cover her eyes and her legs would either go
limp or be tightly kept together. During visits with the
mother, Grayson would defecate and then insist that a social
worker, and not the mother, take him to the bathroom. All three
children had difficulty interacting with the mother and would
gravitate or cling to the social worker.
On June 18, 2018, the father video-recorded DCF personnel
without their knowledge and posted the video on a social media
7
website. In a voicemail, the father threatened that he would be
"coming after" a DCF supervisor, he could "find her address,"
and "I promise you there is going to be backlash." As a result,
DCF reassigned the family's case to a new team, and sent the
father a no-trespass order prohibiting him from coming to the
DCF office unless he had an appointment. DCF also instituted a
requirement that the father's visitation take place at a DCF
office on days when a police detail was present. Because of
concerns about domestic violence, DCF scheduled the parents'
visits separately.
In mid-2018, DCF's goals for each of the three children
changed from reunification with the father and the mother to
adoption. Each of the three children has special needs.
Grayson has autism, PTSD, anxiety, and attention deficit
hyperactivity disorder. Amy has experienced suspected seizure
activity, episodes of anxiety and aggression, and panic attacks.
Alan has been diagnosed with cerebral palsy and as being on the
autism spectrum.
At a November 2018 hearing concerning visitation with Mary
and Susan, the mother testified that the father hit her in front
of the children and that she was aware that he was hurting the
children. In a January 2019 affidavit in support of a 209A
order, the mother averred that during the summer of 2017, the
father "hit me in front of my children" and "has thrown me on
8
the bed in front of my children." Nevertheless, the mother
continued to have contact with the father.
Based on his investigation, the visitation GAL recommended
that the father's visits with Grayson and Amy be discontinued.8
In May or June of 2019, DCF administratively suspended the
father's visits with Grayson and Amy, and then moved for court
approval of the suspension, which was allowed. The father's
visits with Alan continued, although he voluntarily missed
visits with Alan for several months in a row throughout 2019 and
2020, and during the COVID-19 pandemic he refused to use
videoconferencing for visits.
During the spring and summer of 2020, the mother visited or
stayed at the father's home on several occasions. In November
2020, the mother gave birth to a child whose father was another
man against whom the mother had a 209A order based on
allegations of domestic violence.9
In a January 2021 affidavit in support of a 209A order, the
mother averred that in the past the father had choked, hit, and
pushed her. At the related hearing, the mother testified that
8 The visitation GAL later updated that report, recommending that
both parents' parental rights be terminated without visitation.
9 That child was subsequently placed in the same foster home as
Grayson, Amy, and Alan. The mother's parental rights as to that
child are not at issue here.
9
the father had beaten her to within an inch of her life, and
that she was aware that he had sexually abused the children.
Psychologist Richard Stewart, Ph.D., evaluated the bonds
between each of the three children and the preadoptive parents.
The judge credited Dr. Stewart's opinion that "there was an
important, significant attachment-bond between all three
children and the pre-adoptive parents," and that any
interruption or termination of those bonds would place the
children "at risk of immediate emotional distress and
significant future maladjustment." A guardian ad litem (GAL
evaluator) appointed to evaluate the case concluded that neither
the father nor the mother had demonstrated the ability to
correct their issues, including those concerning mental health,
domestic violence, and physical abuse, making it unlikely that
either would be able to care for the three children.
After eleven nonconsecutive days of trial between March 23
and June 11, 2021, the judge issued decrees terminating the
father's and the mother's parental rights to each of the three
children and declining to order posttermination visitation. The
judge subsequently issued 313 findings of fact and forty-two
conclusions of law, "demonstrating, as we require, that close
attention was given to the evidence." Adoption of Don, 435
Mass. 158, 165 (2001). Both parents appealed.
10
Discussion. "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
Yalena, 100 Mass. App. Ct. 542, 549 (2021). DCF bears the
burden of proof as to both parental unfitness and best
interests. See Care & Protection of Erin, 443 Mass. 567, 571
(2005). Because termination of parental rights is an "extreme
step, . . . it is appropriate for a judge to consider whether,
on the basis of credible evidence, there is a reasonable
likelihood that the parent's unfitness at the time of trial may
be only temporary" (citation omitted). Care & Protection of
Zeb, 489 Mass. 783, 788 (2022). "Because childhood is fleeting,
a parent's unfitness is not temporary if it is reasonably likely
to continue for a prolonged or indeterminate period." Id.,quoting Adoption of Ilona, 459 Mass. 53, 60 (2011).
1. Safeguards recommended in Adoption of Patty. Both
parents argue that their due process rights were violated when
the judge conducted the trial via Zoom without sufficiently
adhering to the safeguards later announced in Adoption of Patty,
489 Mass. at 645-647. See Vazquez Diaz v. Commonwealth, 487
Mass. 336, 342 (2021). DCF and the three children argue that
11
the mother waived this claim by failing to bring to the judge's
attention any difficulties she was having with Zoom. We need
not decide whether she waived the claim, because our review of
the trial record shows that the judge carefully protected both
parents' due process rights and was sufficiently anticipated and
implemented what the court later recommended in Adoption of
Patty. Although technical difficulties occasionally arose, the
judge made appropriate allowances, and neither parent's rights
were prejudiced.
The father moved for an in-person trial, which the judge
denied, ruling that trial would be conducted via Zoom. Before
trial began, the judge informed the parents that if either of
them needed an opportunity to speak to counsel, "you have that
opportunity. Just let me know."10 See Adoption of Patty, 489
Mass. at 645-646 ("An explanation of what a breakout room is and
how it can be requested and used during a trial should be part
of the instructions provided before the commencement of a
virtual trial"). The judge explained what the parties should do
in the case of technical difficulties: "[I]f you are trying to
talk and you don't think I can hear you . . . , just raise your
10During trial, the judge at one point used the Zoom breakout
room to permit the mother to have a private conference with her
attorney. On several occasions, the judge took breaks to permit
the father to communicate with his counsel by telephone. The
father also communicated with counsel during trial by text
message.
12
hand and let me know that you need something." Contrast id. at
647 ("If discussions had occurred in advance of the hearing, the
parties and the court might have been better prepared to enact a
troubleshooting plan to try to overcome the technological issues
that presented"). During trial, the judge also told the lawyers
that they could use the screen-share function on the Zoom video
conferencing platform to show documents to witnesses. See id.
at 646 (describing Zoom screen-share function).
In those circumstances, the judge acted within her
discretion in choosing to conduct the trial via Zoom, as
permitted by the orders of the Supreme Judicial Court and
Standing Order 1-21 of the Juvenile Court then in effect. See
Adoption of Patty, 489 Mass. at 642. The safeguards that the
judge described and monitored throughout the trial ensured that
the parents' due process rights were protected. See id.
("assuming the safeguards outlined . . . are provided and
monitored, a termination trial conducted via an Internet-based
video conferencing platform when, because of the COVID-19
pandemic, in-person proceedings are not possible without
jeopardizing the health and safety of the public, is not a per
se violation of a parent's right to meaningfully participate").
The father argues that his due process rights were violated
by conducting the trial on Zoom because he did not have access
to the exhibits during his testimony as he would at an in-person
13
trial. We agree with the judge that any difficulty the father
had in reviewing documents arose from his failure to make
himself available for his testimony in a private place with
access to the documents that were in his possession. On the
first day of trial, the father accessed the Zoom trial from his
workplace in a warehouse in Ohio. The father was the first
witness called by DCF, and during direct examination repeatedly
testified that he could not remember events because he did not
have documents in front of him. Questioned by the mother's
counsel about the possibility of using the Zoom screen-sharing
function, the judge stated that she would not permit it then
because the father was not in a private location. As
recommended in Adoption of Patty, 489 Mass. at 646, the judge
confirmed that the father's counsel had given him copies of all
of the documents and other exhibits.11 After the judge told both
parents that they needed to appear for the trial in places where
each of them could be alone and on video, the father renewed his
motion for an in-person trial, which the judge denied. The
father then left the Zoom video conference, and so trial resumed
with direct examination of the mother. The father briefly
11Redactions were required by statutes including G. L. c. 119,
§ 51E. See Brantley v. Hampden Div. of Probate & Family Court
Dep't, 457 Mass. 172, 188 n.22 (2010). Although the record does
not establish with certainty that the father received redacted
copies of certain exhibits, the father makes no specific
argument on appeal with respect to those exhibits.
14
reappeared during the mother's testimony, and then logged off.
For the remainder of the day, the judge interrupted the mother's
testimony periodically to ask if the father was in the Zoom
waiting room and to instruct his counsel to try to reach him by
text message.
On the second day of trial, the father moved to continue
the trial because of his work responsibilities, which the judge
denied.12 Just after the judge denied the motion, the father
stated, "I'm going to excuse myself from proceeding," and then
abruptly logged off. The trial continued, during which the
judge interrupted the mother's testimony every ten minutes and
determined that the father was not the Zoom waiting room. The
father's counsel told the judge that she had informed the father
by text message that the judge was doing so, and that the father
had instructed counsel to renew his request for a continuance
every ten minutes. The judge found that the father was
"willfully not joining this trial," rather than absent as a
result of any technical difficulty.
The father never resumed testifying, and thus was never
cross-examined by counsel for the children, the mother, or his
own counsel. If he had sought to clarify something in the
exhibits or to have access to them when he testified, he could
12The father sought to appeal the denial of the continuance,
which was denied by a single justice of this court.
15
have instructed his own lawyer to recall him and cross-examine
him.13 His failure to do so did not amount to a violation of his
due process rights. Contrast Adoption of Patty, 489 Mass. at
646 (self-represented mother participating in Zoom trial by
telephone wanted to use "paperwork" in mounting her defense, but
lacked understanding of how to do so).
2. Alleged bias of judge. Both parents argue that the
judge showed bias against them and in favor of DCF. The mother
contends that the judge showed favoritism to DCF by permitting
DCF's counsel to "interrupt" witnesses' testimony, and the
father contends that the judge was unfair in forming the opinion
early in the trial that he was "a very frustrating witness."
Setting aside the question whether the mother preserved
this issue below, from our review of the trial record, we
conclude that the judge did not display bias for or against any
party. On the contrary, "[t]he judge acted with due regard for
all parties in a professional, respectful, and judicious way."
Adoption of Querida, 94 Mass. App. Ct. 771, 776 (2019). See
Care & Protection of Doretta, 101 Mass. App. Ct. 584, 594-595
(2022). To the extent that the judge occasionally provided
13On the fifth day of trial, April 28, 2021, the judge allowed
the motion to withdraw filed by the father's counsel, and for
the remainder of trial, that attorney acted as standby counsel.
The judge later stated that if the father decided to call
himself as a witness, she would permit him to testify in
narrative form.
16
DCF's counsel with reminders or suggestions, she also did so for
the father's counsel and for the father when he was representing
himself, as well as for the mother's counsel. Contrast Adoption
of Norbert, 83 Mass. App. Ct. 542, 546 (2013) (judge improperly
"assumed an active role" and asked many more questions than did
the attorneys combined). At the end of the trial, the judge
told the lawyers how grateful she was for their "stellar" work
in the case, praising the father's standby counsel as "the MVP."
3. Admission of children's statements in DCF reports. The
father contends that the judge erred in admitting certain
statements of children contained in the documentary evidence,
including 51B reports and reports of the CASA GAL. The father
moved in limine to exclude or redact those statements, and the
judge denied the motion, ruling them admissible as "statements
of primary fact" because "the hearsay source[s] w[ere]
specifically identified in the document[s] and [were] available
for cross-examination, should the party challenging the evidence
request to do so." Adoption of Luc, 484 Mass. at 154. The
father argues that this put him in an untenable position:
either call the children as witnesses and cause them additional
trauma, or forego calling them and have an adverse inference
drawn against him. The father made no such argument to the
judge, and thus it is waived. In any event, we are not
persuaded.
17
The judge scrupulously followed the evidence doctrine
applicable in care and protection proceedings set forth in
Adoption of Luc, 484 Mass. at 153. See Care & Protection of
Doretta, 101 Mass. App. Ct. at 591. See also Mass. G. Evid.
§ 1115(b)(2)(B) (2023). Essentially, the father asks us to
carve an exception out of Adoption of Luc when the hearsay
statements were made by children. In enunciating the doctrine,
the Supreme Judicial Court plainly anticipated that it would
apply to statements of children contained in DCF reports. In
Adoption of Luc, supra at 152, the court cited Care & Protection
of Leo, 38 Mass. App. Ct. 237, 241-242 (1995), in which this
court ruled admissible hearsay statements of a child contained
in DCF investigator's report so long as the father had the
opportunity to call the child as a witness. We decline to treat
the hearsay statements of children differently from those of any
other witness.
Moreover, almost all of the statements of children admitted
pursuant to Adoption of Luc were those of Mary and Susan, who
are not the father's children, and so calling them as witnesses
would not have harmed any parent-child bond. The only
statements of any of the three children that were admitted
against him were two statements of Grayson.14 The first was
14The judge also admitted Amy's therapist's testimony that Amy
said she did not want to go to visits with the mother because
18
contained in a CASA GAL report that the father had moved to
exclude, relating that Grayson had said that his "butt hurts"
and the father "hurt me." The judge did not err in admitting
that statement under the Adoption of Luc doctrine. See Mass. G.
Evid. § 1115(c)(3) (doctrine applies to CASA reports). The
judge's findings did not quote that statement, but merely
inferred from it that in October 2018, Grayson "began disclosing
possible sexual abuse," without concluding that the father was
the perpetrator. Thus, that statement was not particularly
prejudicial. Further, it was to a considerable degree
corroborated by the father's admission to DCF that Grayson
"ha[d] been spanked once."
The second statement of Grayson admitted under Adoption of
Luc was in a 51B report documenting that on August 4, 2020,
Grayson told a DCF staff person that the father put his fingers
and his penis in Grayson's "bum."15 The father moved in limine
to exclude that statement, which the judge denied. The judge
noted that she considered that statement of Grayson as permitted
under Adoption of Luc, 484 Mass. at 154. She did not err.
the mother "was not nice." The judge noted that she did not
consider that statement for its truth, but only for Amy's state
of mind.
15 The judge did allow the father's requests to exclude similar
statements of Grayson to his therapist and the preadoptive
mother.
19
As for the statements of Mary and Susan, those too were
properly admitted under Adoption of Luc, 484 Mass. at 154.16
Further, those two girls' statements about the father's use of
"planking" as discipline, his "tossing the racks," and his
hitting them with a belt were cumulative of other evidence
including the father's own statements to DCF and both parents'
trial testimony. See id. at 148 (judge's findings relying on
hearsay were "largely cumulative" of testimony). Similarly, the
statements of Mary and Susan about witnessing domestic violence
by the father against the mother were cumulative of the mother's
trial testimony, her averments in affidavits in support of 209A
orders, and her testimony at 209A hearings, as testified to by
witnesses present at those hearings. See id. It was within the
judge's purview to credit the mother's testimony about the
domestic violence perpetrated on her by the father. See
Adoption of Querida, 94 Mass. App. Ct. at 778. Merely because
on other occasions the mother had denied its occurrence did not
preclude the judge from crediting her testimony that it did
happen.
16Some statements of Mary and Susan admitted under the doctrine
of Adoption of Luc alleged sexual abuse of them by the father.
The judge noted that sexual abuse was not an "essential element"
of her finding as to the father's unfitness to parent the three
children. See Care & Protection of Laura, 414 Mass. 788, 793-
794 (1993).
20
Moreover, the evidence of the father's unfitness was
strong.17 The judge concluded that DCF had proven by clear and
convincing evidence the father's physical abuse of Grayson and
his neglect of Grayson and Amy. The judge also considered the
likelihood that Grayson and Amy had witnessed domestic violence
the father had inflicted on the mother, and noted that the
father never took any course related to domestic violence and
invoked his privilege under the Fifth Amendment to the United
States Constitution when asked about harming the mother. The
judge further concluded that the father's untreated mental
health issues, his character and temperament, and his failure to
address his parental shortcomings rendered him unfit to parent
the three children. Based on her own observations of the father
at trial, the judge found that he was "uncooperative, abrasive,
and controlling."
4. Mother's unfitness. The mother argues that the judge
erred in finding her unfit to parent the three children. The
mother contends that the judge failed to adequately consider the
progress she made, including having a 209A order in place
against the father at the time of trial. The judge declined to
credit the mother's testimony that she had not spoken to the
father since she obtained a fourth 209A order against him three
17The father does not contest the sufficiency of evidence of his
unfitness.
21
months before trial began. We do not disturb the judge's
credibility determinations on appeal. See Adoption of Querida,
94 Mass. App. Ct. at 778.
The judge did credit the testimony of the DCF supervisor
that the mother's mental health issues affected her ability to
keep her children safe for reasons including her inability to
tell the truth, to maintain safe relationships, and to work
through her own trauma and recognize her children's trauma. See
Adoption of Luc, 484 Mass. at 146-147 (failure to recognize need
for or to engage consistently in treatment is relevant to
determination of unfitness). The judge's findings as to the
mother's failure to protect her children from domestic violence
were amply supported by the record. See Custody of Vaughn, 422
Mass. 590, 599 (1996). See also Adoption of Jacob, 99 Mass.
App. Ct. 258, 262-263 (2021).
Conclusion. Accordingly, the decrees terminating the
father's and the mother's parental rights to each of the three
children are affirmed.
So ordered.
By the Court (Sacks, Grant &
Smyth, JJ.18),
Clerk
Entered: July 28, 2023.
18 The panelists are listed in order of seniority.
22