ADOPTION OF BRAYDEN (And Three 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-503
ADOPTION OF BRAYDEN (and three companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from decrees issued by a judge of the
Juvenile Court finding her unfit and terminating her parental
rights to four of her children. The mother also argues the
judge's order of twice yearly posttermination and postadoption
parent and sibling visitation was an abuse of discretion.2 The
eldest child, Brayden, appeals from the decree terminating the
mother's parental rights to him. We affirm.
Background. We summarize the judge's findings of fact,
supplemented by uncontroverted evidence from the record. The
mother first became involved with the Department of Children and
Families (department) in 2000 when she was six years old, after
she was removed from her parents' custody and her maternal
1 Adoption of Lisa; Adoption of Nicole; and Adoption of Robert.
The children's names are pseudonyms.
2 Brayden's and Lisa's father, who is also Nicole's and Robert's
putative father, did not appeal from the termination of his
parental rights. We refer to him throughout this decision as
"the father."
grandmother was given guardianship. Both of the mother's
parents were drug addicted and she suffered neglect and physical
abuse from them. She was adopted by her maternal grandmother
when she was eleven, but later lived with her paternal
grandmother. The mother became pregnant with Brayden when she
was thirteen and the father was twenty-four years old. The
mother and the father had three other children, Lisa in 2014,
Nicole in 2018, and Robert in 2019.
In 2015, a G. L. c. 119 § 51A, report (51A report) was
filed following the parents' arrest for possession with intent
to distribute a class A substance and conspiracy to violate the
drug laws after police found heroin in the home. The two older
children were removed by the department and eventually placed in
foster care. Custody of both children was returned to the
mother in 2016.
Beginning in May 2019, multiple 51A reports were filed
based on reports of domestic violence, substance abuse, unstable
housing, mental health concerns, and the mother's criminal
activity. The department filed this care and protection
petition in October 2019 due to domestic violence in the home
and was granted temporary custody of the children. At the time,
Brayden was ten years old, Lisa was five years old, Nicole was
ten months old, and Robert was two months old. The judge
2
subsequently granted conditional custody of the children to the
mother.
Over the next year, numerous 51A reports were filed
alleging lack of appropriate supervision, inappropriate
caretakers, educational neglect, and concerns with the mother's
substance abuse. In November 2020, the department conducted an
emergency removal of the children after Lisa was left at school
despite several attempts to reach the mother. The department
filed a motion for custody of the children. At the seventy-two
hour hearing, the parents waived their rights to a temporary
custody hearing.
Following a trial held on January 22, 2021, the judge found
the mother unfit, adjudicated the children to be in need of care
and protection, and granted permanent custody to the department.3
The judge did not terminate the mother's parental rights and
afforded her six months to work toward the department's goal of
reunification.
On August 11, 2021, the department moved for review and
redetermination pursuant to G. L. c. 119, § 26. By then, the
department's goal had changed from reunification to adoption.
The judge held a one-day trial in September 2021 and
approximately one month later, on October 18, 2021, issued
3 The father stipulated to his own parental unfitness.
3
decrees terminating the mother's parental rights to the four
children. On January 19, 2022, the judge issued detailed
findings supporting his conclusions that the mother was
currently unfit to parent the children, her unfitness was likely
to continue into the indefinite future, and the department's
adoption plan for each child served the children's best
interests. See G. L. c. 210, § 3; Adoption of Nancy, 443 Mass.
512, 515-516 (2005). The judge ordered twice per year
posttermination and postadoption parent and sibling visitation.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child and to dispense with
parental consent to adoption, a judge must find by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests" (citation omitted). Adoption of Oren, 96 Mass.
App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and
the 'best interests of the child test' are not mutually
exclusive, but rather 'reflect different degrees of emphasis on
the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,
671 (2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). In making this determination, the judge
considers "the ability, capacity, fitness and readiness of the
child[ren]'s parents as well as the plan proposed by [the
4
department]" (quotations omitted). Adoption of Garret, supra at
675, quoting Adoption of Nancy, 443 Mass. at 515-516. "The
inquiry is whether the parent's deficiencies 'place the child at
serious risk of peril from abuse, neglect, or other activity
harmful to the child'" (citation omitted). Adoption of
Olivette, 79 Mass. App. Ct. 141, 157 (2011). "We give
substantial deference to a judge's decision that termination of
a parent's rights is in the best interest of the child, and
reverse only where the findings of fact are clearly erroneous or
where there is a clear error of law or abuse of discretion."
Adoption of Ilona, 459 Mass. 53, 59 (2011).
The mother argues that the judge erred in his analysis of
the children's best interests by failing to consider evidence of
the bond the children have with her, Brayden's custodial
preferences, and the department's failure to identify
preadoptive placement for the three oldest children. Brayden
contends that the department did not meet its burden to prove by
clear and convincing evidence that termination of the mother's
parental rights was in his best interests based on his age, his
strong bond with the mother, and the "inadequacy" of the
adoption plan. He further asserts that the judge failed to
consider his wishes.4 We disagree.
4 Neither the mother nor Brayden appear to contest the judge's
finding that the mother is currently unfit.
5
The mother's unfitness resulted from a "constellation of
factors." Adoption of Greta, 431 Mass. 577, 588 (2000). Her
relationship with the father was punctuated by repeated episodes
of domestic violence witnessed by the children. During the
pendency of the care and protection case, the mother continued
to engage in relationships with partners who physically abused
her and encouraged her use of drugs, including opiates and
cocaine.5 See Adoption of Bianca, 91 Mass. App. Ct. 428, 432
(2017) (judge may properly consider effects of domestic
violence, substance use, and instability on ability to form bond
with children). The mother also has struggled with substance
abuse since she was a young teenager. At trial, she testified
that she used cocaine one month prior while pregnant with her
fifth child. The mother also accidentally burned down her home
after starting a fire in the fireplace using paper, children's
coloring books, and children's socks as tinder. The judge did
not credit the mother's denial that she was using substances or
medications on the day of the fire. See id. The mother has
been diagnosed with bipolar disorder, depression, anxiety, and
posttraumatic stress disorder. Her mental health issues twice
required psychiatric hospitalization while this case was
5 While the children were in the mother's conditional custody,
multiple 51A reports were filed concerning the father's
presence, violence, and substance use in the home, as well as
the mother's new boyfriend selling drugs from the home.
6
pending. See Adoption of Frederick, 405 Mass. 1, 9 (1989)
("Mental disorder is relevant only to the extent it affects
parents' capacity to assume parental responsibility"). At the
time of trial, the mother did not have stable housing. See
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987) (lack of "stable home
environment" valid consideration in unfitness determination).
Moreover, when given conditional custody of the children in
2019, the mother failed to comply with the stipulations that she
permit only caretakers authorized by the department to care for
the children, participate in comprehensive mental health
treatment, ensure the children attended school and day care
daily, ensure the children were not exposed to anyone under the
influence of substances, and refrain from contact with the
father. Furthermore, she was charged with disorderly conduct
and, in a separate case, with crimes including assault and
battery by means of a dangerous weapon, assault and battery,
malicious destruction of property, and resisting arrest.
Even after the department interceded, the mother failed
consistently to participate in services and treatment to address
the issues that caused the removal of her children. See
Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("The mother's
lack of meaningful participation in recommended services was
also relevant to the question of her fitness"). When asked at
7
trial why she needed to be hospitalized, the mother testified,
"because of everything I endured," "your guess is as good as
mine," and she "guess[ed]" that medical professionals "believed
[she] needed to be there."
We agree with the judge's determination that the mother
"lacked insight" into why she was hospitalized and about the
neglectful conditions she created for the children when she had
conditional custody of them. The judge found that her
inconsistency with services demonstrated a "lackadaisical
attitude" that would impede her ability to be a "consistent
force in the children's lives" and that the mother "cannot meet
the basic needs of these four children." We are mindful of the
challenges the mother has faced since she was a child and the
irony that many of them began when she was in the custody of the
department. However, regardless of the underlying causes of the
mother's circumstances, we discern no abuse of discretion in the
judge's determination that her unfitness would "continue
undiminished into the foreseeable future," and therefore
termination of her rights was in the children's best interests.
See Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012)
("Where there is evidence that a parent's unfitness is not
temporary, the judge may properly determine that the child's
welfare would be best served by ending all legal relations
between parent and child").
8
a. The children's bond with the mother. We are not
persuaded by the argument that the judge did not consider the
bond between the children and the mother when determining that
termination of her parental rights was in their best interests.
The judge recognized the children's relationship with the
mother, and specifically referenced the department social
worker's testimony that Brayden "would struggle without visits
with Mother." We are satisfied on the record in this case that
the judge did not abuse his discretion by weighing this evidence
and concluding that despite this bond, termination of the
mother's parental rights was in the children's best interests.
See Adoption of Vito, 431 Mass. 550, 562 (2000).
b. Adoption plans. "In determining the best interests of
the child, the judge must consider, among other things, 'the
plan proposed by the department.'" Adoption of Varik, 95 Mass.
App. Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c). "The
law does not require that the adoption plan be fully developed
in order to support a termination order, but it must provide
sufficient information about the prospective adoptive placement
so that the judge may properly evaluate the suitability of the
department's proposal" (quotations omitted). Id., quoting
Adoption of Willow, 433 Mass. 636, 652 (2001). Although the
three oldest children were not in preadoptive placements at the
time of trial, the judge properly considered the department's
9
adoption plans for those children as adoption through
recruitment.6 See Care & Protection of Three Minors, 392 Mass.
at 717. "[P]articularly in a case that has continued for a long
period of time in the hope that the [parents] could and would
successfully rehabilitate [themselves] . . . children deserve
permanence and stability." Adoption of Nancy, 443 Mass. at 517.
The mother raises concerns that termination of her rights
places Brayden at risk of becoming a legal orphan. See Adoption
of Ramona, 61 Mass. App. Ct. 260, 265 (2004). While Brayden was
at the age where he could withhold his consent for adoption, see
G. L. c. 210, § 2, the judge found that at times Brayden
expressed that he did not want to return to the mother's care,
despite also indicating that he wanted to go home because "he
missed his friends . . . and the life he could have had if his
parents had not messed it up for him."
In addition to his contention that termination of the
mother's parental rights was not in his best interests because
he had a strong bond with her, Brayden asserts that he does not
wish to be adopted, and, in any event, the department's adoption
plan for him was inadequate. "A judge should consider the
wishes of the children in making custodial determinations, and
those wishes are entitled to weight in custody proceedings"
6 The youngest child's adoption plan called for adoption by his
current foster parents.
10
(quotation and citation omitted). Adoption of Nancy, 443 Mass.
at 518. However, a child's views are "neither decisive . . .
nor outcome determinative." Id. Here, the judge carefully
considered Brayden's age, his bond with the mother, opinions
about whether he wanted to return home, and testimony about what
would be best for Brayden's well-being. See Adoption of Garret,
92 Mass. App. Ct. at 675-676. The judge also weighed the
testimony of the adoption social worker that Brayden's
behavioral needs necessitated a two-parent home that provides
him with structure and outdoor activities and that Brayden did
not want to be placed with his siblings. Compare Adoption of
Varik, 95 Mass. App. Ct. at 771. Moreover, the department's
written plan for Brayden expressed "various recruitment actions
that the department had already taken and further actions it
would take." Adoption of Gertrude, 99 Mass. App. Ct. 817, 823
(2021).
We therefore discern no abuse of discretion in the judge's
conclusion that termination of the mother's parental rights
coupled with the department's adoption plan were in the
children's, and more particularly Brayden's, best interests.
See Adoption of Willow, 433 Mass. at 653.7
7 The other children do not challenge the department's adoption
plans.
11
2. Visitation. a. Parental visitation. The mother
requests a visitation order that "allows for regular and
frequent visitation with [Brayden], [Lisa], and [Nicole], and
reasonable visitation with [Robert]." Brayden maintains that,
in the event the decree terminating the mother's rights to him
is affirmed, the case should be remanded to increase the amount
of posttermination contact between him and the mother.
"In terminating parental rights pursuant to G. L. c. 210,
§ 3, the Juvenile Court judge has equitable authority to order
visitation between a child and a biological parent where such
contact is in the best interests of the child." Adoption of
Garret, 92 Mass. App. Ct. at 679. "Whether such contact in any
given case is wise is a matter that should be left to the
discretion of the judge." Youmans v. Ramos, 429 Mass. 774, 783
(1999). "A judge should issue an order of visitation only if
such an order, on balance, is necessary to protect the
child[ren]'s best interest[s]." Adoption of Ilona, 459 Mass. at
65.
Here, the judge found that a significant bond existed
between the children and the mother, and it would be in the
children's best interests to maintain posttermination and
postadoption visitation with the mother two times per year. In
ordering such visitation, the judge considered Brayden's request
12
to visit the mother twice per year. We discern no abuse of
discretion. Cf. Adoption of Rico, 453 Mass. 749, 759 (2009).
b. Sibling visitation. Brayden contends that the judge
abused his discretion in ordering two sibling visits per year,
leaving additional visitation at the discretion of the
department, preadoptive placements, or postadoptive placements,
because at the time of trial the children had weekly visits and
were not in permanent placements.8 See G. L. c. 119, § 26B. We
review an order regarding sibling visitation for abuse of
discretion. See Care & Protection of Jamison, 467 Mass. 269,
280 (2014).
The judge ordered that sibling visits "shall include but
not be limited to visits in the months of June and December at a
time and a place agreed to by the pre-adoptive and post-adoptive
parties or the [department] if no[] such parties have
materialized." The judge's order of two visits per year was a
minimum, not a cap on visitation. Accordingly, there was no
8 The mother joins Brayden's argument regarding sibling visits.
However, she is precluded by G. L. c. 119, § 26B (c), from
raising the sibling visitation issue on appeal because the
Juvenile Court has entered a decree dispensing with her consent
to adoption. See Adoption of Zander, 83 Mass. App. Ct. 363, 367
n.6 (2013).
13
abuse of discretion in the judge's sibling visitation order.
See Adoption of Garret, 92 Mass. App. Ct. at 681.
Decrees affirmed.
By the Court (Englander,
Grant & Brennan, JJ.9),
Clerk
Entered: June 7, 2023.
9 The panelists are listed in order of seniority.
14