ADOPTION OF YENZI (And a Companion Case). ( 2024 )

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-1255
ADOPTION OF YENZI (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from decrees entered in the Juvenile Court
terminating his parental rights, the father challenges the trial
judge's finding that he is unfit and the termination of his
parental rights.2 He also assigns error to the judge's failure
to order more than two visits per year of post-termination and
post-adoption visitation for himself and any visitation between
the children and their half-sibling. We affirm.
Background. We briefly summarize the facts found by the
trial judge, noting the limited instances in which the father
challenges the judge's findings as clearly erroneous. Yenzi was
born in June 2016. The mother tested positive for amphetamines
1 Adoption of Kendra. The children's names are pseudonyms.
2The mother filed a notice of appeal but filed no brief.
We consider only arguments advanced by the father.
and buprenorphine during her pregnancy and Yenzi was placed on
neonatal morphine to address her symptoms of Neonatal Abstinence
Syndrome (NAS). Yenzi was placed in the custody of the
Department of Children and Services (department) at birth and
remained in the custody of the department for approximately
eighteen months, until January 2018 when she was returned to the
mother's care. Kendra was born in August 2017. The department
filed a care and protection petition for Kendra, but the mother
maintained custody of Kendra.
The father has three children with a now-deceased woman and
those three children are in the care of their maternal
grandmother. The father does not pay child support and has
never engaged in a primary caretaking role of those children.
The father admitted that he was unable to care for those
children.
The father and mother have five children together including
Yenzi and Kendra. The father has never paid child support for
Yenzi and Kendra. The three older children are in the permanent
guardianship of their maternal grandmother and the father lacked
any insight as to why the children were under a guardianship.
The father has an extensive adult criminal history
beginning in 1991 and continuing through 2019.3 The judge did
3 The father's criminal history includes convictions for
larceny, malicious destruction of property, possession of a
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not credit the defendant's testimony that he had never been
convicted of a crime. The father has had eleven restraining
orders issued against him on behalf of four different women and,
in some instances, his minor children. On April 22, 2019, the
mother obtained a restraining order against the father ordering
him not to abuse her, to have no contact, and stay away and
vacate her residence. He was also ordered to have no contact
with Yenzi and Kendra. The restraining order expired on October
21, 2019.
There has been considerable domestic violence during the
relationship of the mother and the father, including physical
violence and verbal abuse in the presence of Yenzi and Kendra,
which the father minimizes. The April 22, 2019, restraining
order described above was issued to the mother based on an
altercation that took place on April 19, 2019. On that day, the
mother called the police stating that the father was yelling at
her, they ended up on the ground, and she thought the father had
tackled her. Yenzi and Kendra were present during this
incident. Police who responded to the mother's call saw
bruising, swelling, and redness on her arm. Later, the father
firearm without a license, assault and battery by means of a
dangerous weapon, assault and battery on a police officer,
knowingly receiving stolen property, leaving the scene of
property damage, possession to distribute cocaine, and
possession to distribute a class D substance, among others.
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left the mother twenty-five threatening text messages, and the
mother then sought a restraining order against the father. In
her affidavit, the mother stated that the father had been
"mentally, physically, and emotionally abusive for the last six
years or so." The judge did not credit the father's testimony
denying that the restraining order was because he had abused the
mother.
The father engaged in threatening and controlling behavior
of the mother throughout their relationship up to May 2, 2022.
Specific instances include the father breaking the mother's
door, stealing the mother's belongings, trying to run the mother
over, hiding the mother's SCRAM machine,4 and numerous 911 calls
made by the mother regarding the father. On May 2, 2022, during
a three way conversation between the mother, the father, and a
social worker, the father berated the mother for at least three
minutes during which the father called the mother a "child
molester," and other vulgar derogatory terms and said he was
going to "fuck her up." The father denied or minimized the
domestic violence throughout the relationship. Even though he
engaged in anger management classes and completed an intimate
partner abuse education program, the father lacked insight into
domestic violence. Additionally, the court did not credit the
4 "SCRAM" stands for "Secure Continuous Remote Alcohol
Monitor."
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father's testimony that he was never involved in an abusive
relationship or committed any physical violence.
By the time of trial, the father had not engaged in most of
his action plan tasks and he initially refused to allow a home
visit. The father lacked insight into his need to engage in
therapy and has not benefitted from the therapy in which he has
participated. The father challenges as clearly erroneous the
judge's finding that domestic violence "permeated" the
relationship between the mother and the father and the judge's
finding that the children were exposed to verbal abuse by the
father against the mother.
Discussion. 1. Father's unfitness. a. Standard of
review. After trial, the judge prepared "specific and detailed
findings" supporting the conclusion that the father was unfit to
parent the children and that his unfitness was not temporary.
Adoption of Quentin, 424 Mass. 882, 886, 888 (1997). See
Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018) (judge
must "find that the current parental unfitness is not a
temporary condition"). We review a decision to terminate
parental rights for abuse of discretion or clear error of law.
Adoption of Elena, 446 Mass. 24, 30 (2006). We afford deference
to the trial "judge's assessment of the weight of the evidence
and the credibility of the witnesses" (citation omitted).
Adoption of Quentin, 424 Mass. 882, 886 (1997). To terminate
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parental rights, the trial 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).
b. Father's factual challenges. The father claims that
the judge's findings that that domestic violence "permeated" the
parents' relationship and exposed the children to "verbal abuse"
were clearly erroneous. He submits that this characterization
was erroneous because no violent incidents occurred within two
years of the trial. The judge, however, was evaluating the
parents' entire relationship, which has lasted "at least ten
years." The decline in violence in the period before the trial
did not preclude the judge from finding that domestic violated
permeated the parents' relationship as a whole. The record also
supports the judge's finding that the children were exposed to
verbal abuse. An April 2019 report pursuant to G. L. c. 51A,
for example, details an incident in which the father antagonized
and yelled at the mother in the presence of one of the children.
The father also claims that the judge's findings of fact,
are misleading and not even-handed. See Adoption of Imelda, 72
Mass. App. Ct. 354, 365 (2008). The judge did credit that the
father was consistent with his therapy throughout June and July
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2020, he completed a psychological evaluation in 2021, and he
completed an anger management course and domestic violence
training program. Although it is true that the judge ultimately
found that the father did not benefit from these services, that
finding turned on credibility determinations and viewed as a
whole, the judge's findings and conclusions do not simply ignore
evidence favorable to the father. See Adoption of Anton, 72
Mass. App. Ct. 667, 673 (2008), quoting Adoption of Helen, 429
Mass. 856, 859 (1999) ("The judge's findings are both 'specific
and detailed,' demonstrating, as we required, that close
attention was given to the evidence" [footnote omitted]).5 We
discern no abuse of discretion.
c. Domestic violence. The father argues that the evidence
of his role in domestic violence was insufficient to support the
judge's conclusion that he was permanently unfit. Additionally,
he claims that the judge considered past domestic violence and
did not consider any progress he had made prior to trial.
Domestic violence is "highly relevant to a judge's determination
5 The father claims that the judge drew an adverse inference
against him due to English not being his primary language. This
issue was not raised below and it is waived. See Adoption of
Gregory, 434 Mass. 117, 120 n.1 (2001). Even were the issue not
waived, we find no support to this argument. The father was
represented by counsel and at no time did the father or the
attorney request the assistance of an interpreter. The father
communicated with the department through the course of several
care and protection proceedings.
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of parental unfitness." Adoption of Gillian, 63 Mass. App. Ct.
398, 404 n.6 (2005). This court has clarified that a parent's
improvements in addressing domestic violence do "not preclude
consideration of past behavior as a means of predicting the
likely future." Care & Protection of Olga, 57 Mass. App. Ct.
821, 830 (2003). The judge's findings about the father's
history of domestic violence, minimization of that violence,
inability to understand the effects of domestic violence on the
children, and failure to benefit from programs designed to
address domestic violence, were all amply supported by the
record. Although the father presented differing testimony at
trial, the judge repeatedly did not find him credible on those
issues. See Adoption of Nancy, 443 Mass. 512, 515 (2005).
The father also minimized the domestic violence in the
family. See 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").
Additionally, some of the domestic violence incidents took place
in front of the children. "It is well established that exposure
to domestic violence works a 'distinctly grievous kind of harm'
on children" that can include imperiling their physical safety
and psychological development. Adoption of Talik, 92 Mass. App.
Ct. 367, 374 (2017).
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The father argues that the judge abused his discretion by
focusing on stale instances of domestic violence perpetrated by
the father against the mother. We are unpersuaded. The father
was physically abusive to the mother causing pain and bruising
to her shoulder and forearm. Additionally, the mother detailed
a six-year history of verbal abuse and the father's egregious
and demeaning verbal tirade during a conversation with the
mother took place in May 2022, one month after the trial was
scheduled to begin.
d. Father's failure to benefit from services. We discern
no abuse of discretion in the judge's determination that,
despite the father's participation in many of the services
available to him to learn about domestic violence and improve
parenting skills, his failure to benefit from those services
left him unfit to parent the children. Adoption of Ulrich, 94
Mass. App. Ct. 668, 677 (2019) (parent's inability to benefit
from classes relevant to unfitness determination).
2. Posttermination and postadoption visitation with the
father. The judge ordered visitation with the father two times
per year subsequent to any adoption or guardianship of the
children. The power to order posttermination and postadoption
contact rests within the discretion of the trial judge. See
Adoption of Rico, 453 Mass. 749, 756 (2009). Where, as here,
"an adoptive family is available and postadoption visitation is
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sought, '[a] judge should issue an order of visitation only if
such an order, on balance, is necessary to protect the child's
best interest.'" Adoption of Cadence, 81 Mass. App. Ct. 162,
167-168 (2012), quoting Adoption of Ilona, 459 Mass. 53, 65
(2011). "The judge may properly decline to order visitation
when the adoptive parent's discretion to make decisions
regarding contact will adequately serve the child's best
interests." Adoption of Cadence, supra at 168. The judge must
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,
supra, at 64-65.
The judge's determination that the visitation order was in
the children's best interests was an appropriate exercise of her
discretion. The father struggled with insight into the effect
that his promises and demands were having on the children and
the difficult time the children were having with the father's
visits. The judge credited the expert testimony that Yenzi's
symptoms of anxiety had reduced since visits with the mother and
the father had decreased. Even where a bond exists between a
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
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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 and permissibly balancing the
children's interests with the rights of the preadoptive family.
See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013). We
discern no abuse of discretion in the order requiring two visits
per year.
3. Sibling visitation. The father alleges that the judge
erred by failing to issue orders of visitation between Yenzi and
Kendra and their half-brother, Josh.6 If siblings are separated
through adoption, a judge "shall whenever reasonable and
practical and based upon the best interests of the child, ensure
that children . . . shall have access to and visitation with
siblings." G. L. c. 119, 26B (b). The judge's order should
specify whether sibling visitation is in child's best interests
and if so, specify the form and schedule of such visitation.
Adoption of Rico, 453 Mass. at 753 n. 12.
Where the judge did not make a finding that sibling
visitation was in the children's best interests, there is no
obligation to order such contact.7 See generally Care &
6 A pseudonym.
7 The judge here does not appear to have been asked to make
findings as to whether such visitation was in the children's
best interests. Cf. Adoption of Zander, 83 Mass. App. Ct. 363,
367 (2013) (where "judge acknowledged the necessity of sibling
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Protection of Jamison, 467 Mass. 269, 284 (2014) ("the 'best
interests of the child' standard does not establish a
presumption in favor of sibling visitation"). "The standard
permits visitation only where the petitioning child has
demonstrated by a preponderance of the evidence that visitation
would serve the best interests of each sibling subject to a
visitation order." Id. In these circumstances, we discern no
error in the judge's failure to make a sibling visitation
schedule. If the children are dissatisfied with not having
visitation with their half-sibling, they can file a motion
pursuant to G. L. c. 119, § 26B (b). See Adoption of Rico, 453
Mass. at 757; Adoption of Flavia, 104 Mass. App. Ct. 40, 56, 57
(2024).
Decrees affirmed.
By the Court (Singh, Hand &
D'Angelo, JJ.8),
Clerk
Entered: July 30, 2024.
visitation, but left the timing and frequency of such visits to
the discretion of the adoptive parents" this court remanded for
judge to provide schedule for posttermination and postadoption
sibling visitation).
8 The panelists are listed in order of seniority.
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