Adoption of Zendaya. ( 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-1420
ADOPTION OF ZENDAYA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and father appeal from decrees of a Juvenile
Court judge finding the mother and the father unfit to parent
their daughter, Zendaya, 1 and terminating their parental rights.
The father also argues that the judge erred in not granting him
postadoption visitation with the child. We affirm.
Background. We summarize the facts as they were found by
the trial judge. The Department of Children and Families
(department) have been involved with the family since Zendaya
was born in August 2019, substance exposed to suboxone and
norepinephrine.
The mother has not adequately or consistently engaged in
services to better her parenting skills. She has a substance
1 A pseudonym.
misuse history and has demonstrated a pattern of relapsing,
engaging in some services, only to stop engaging in the services
or relapse again. The mother did not consistently engage in
individual therapy or psychiatric services. She has a lack of
insight into her parental shortcomings and mental health.
Throughout the entirety of the case, the mother has never been
able to maintain stability in her housing and at times has been
homeless.
The father has a significant criminal history. He does not
have stable housing or employment. The father has not engaged
in therapy and has failed to work with the department or
consistently engage in any services. The father has not
undergone an evaluation to assess his mental health needs.
The mother and the father have a history of domestic
violence. Over the course of their relationship, the mother and
the father have engaged in serious verbal and physical
altercations, requiring police intervention on numerous
occasions. The mother has persisted in her relationship with
the father despite her acknowledgment of ongoing domestic
violence. The mother has obtained restraining orders against
the father but each time has allowed them to expire or has
violated the restraining order. The mother has demonstrated an
inability to stay away from the father for more than a few weeks
at a time. The father has not engaged in domestic violence
2
services and adamantly denies any violence in his relationship
with the mother.
Discussion. 1. Unfitness and termination of parental
rights. "To terminate parental rights to a child, the judge
must find, by clear and convincing evidence, that the parent is
unfit and that the child's 'best interests will be served by
terminating the legal relation between the parent and child.'"
Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of
Ilona, 459 Mass. 53, 59 (2011). "While a decision of unfitness
must be supported by clear and convincing evidence, . . . a
judge's findings will be disturbed only if they are clearly
erroneous" (citations omitted). Adoption of Paula, 420 Mass.
716, 729 (1995). Whether termination of parental rights is in a
child's best interest is a discretionary decision. See Adoption
of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034(1999). We review the judge's determination of Zendaya's best
interest for abuse of discretion or clear error of law. See id.We discern no error or abuse of discretion in the judge's
conclusions, discussed supra, that the mother and father were
unfit to parent Zendaya and that their unfitness was likely to
continue indefinitely.
The judge's finding of the mother and father's substance
misuse was wholly supported by the record. Substance abuse is a
factor to be assessed in considering a parent's unfitness to the
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extent that it prevents a parent from providing "minimally
acceptable care" to a child. G. L. c. 210, § 3(c)(xii);
Adoption of Zoltan, 71 Mass. App. Ct. 185, 191 (2008). The
mother's substance misuse began in 2005. Her appearance and
behavior from 2021 to 2022 suggested that she was under the
influence of substances. The mother's participation in
treatment was minimal. In February 2021, the mother was
observed under the influence and outside "for extended periods
of time" with Zendaya who was "underdressed for the weather."
The father began using cocaine in approximately 2000 at the age
of twenty-two and over the years has become addicted to Percocet
and heroin. Although the father denied it, his lengthy criminal
history includes drug charges.
The father argues that the judge erred by relying on stale
information to support his conclusion that domestic violence
remained an ongoing problem for the parents. Family violence is
"highly relevant to a judge's determination of parental
unfitness and the best interests of the child[]." Adoption of
Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "[P]hysical
force within the family is both intolerable and too readily
tolerated, and . . . a child who has been either the victim or
the spectator of such abuse suffers a distinctly grievous kind
of harm." Adoption of Garret, 92 Mass. App. Ct. 664, 671
(2018), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).
4
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).
Over the course of their relationship, both parents have
engaged in serious verbal and physical altercations and many of
them have resulted in police involvement. The mother and
father's history of domestic violence, and the persistence in
seeing each other despite their tumultuous relationship were
amply supported by the record. Some of the incidents between
the mother and the father occurred several years ago and others
are more recent, causing mother to enter a domestic violence
shelter in August 2022, several months before the trial. The
record also demonstrates the parents' inability to understand
the effects of domestic violence on Zendaya and their failure to
benefit from programs associated with domestic violence.
The father denied any 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"). The father's failure to
acknowledge and fully address his issues of domestic violence
was relevant to and supports the finding of unfitness. See
Adoption of Carla, 416 Mass. 510, 519-520 (1993). We discern no
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abuse of discretion in the judge's determination that despite
the father's participation in services available to him to learn
about domestic violence, his failure to benefit from those
services left him unfit to parent the children. The judge is
permitted to consider failure to engage in services to support
an unfitness finding. Adoption of Willow, 433 Mass. 636, 645
(2001).
The father also argues that the judge did not adequately
establish a nexus between parents' domestic violence and the
father's fitness. The judge, however, after outlining numerous
violence incidents between the parents, concluded that returning
"custody of the child to either or both parents would place the
child at grievous risk of exposure to domestic violence" which
would harm the child's physical and emotional well-being.
"[N]either agencies responsible for the welfare of children nor
judges sitting on these sorts of custodial questions need to
wait for inevitable disaster to happen." Adoption of Katharine,
42 Mass. App. Ct. 25, 32 (1997).
The judge made "specific and detailed findings" supporting
the conclusion that the mother and father were unfit to parent
Zendaya and that their unfitness was not temporary. 2 Adoption of
2 The father argues that since he had been given physical
custody of his son the court must point to specific evidence as
to why he could be fit to parent his son but not Zendaya. See
Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003). We see no
6
Quentin, 424 Mass. 882, 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"). The
judge properly considered that the mother had engaged in few
action plan tasks and services while she continued to engage in
the same unstable and violent behaviors, while father engaged
minimally in his action plan tasks or services. 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 in her ability to meet the needs of the
child[]" [quotation and citation omitted]). The mother has had
violent and emotional outbursts and has bitten her son on more
than one occasion. "Even where a parent has participated in
programs and services and demonstrated some improvement, we rely
on the trial judge to weigh the evidence in order to determine
whether there is a sufficient likelihood that the parent's
unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60.
The judge considered the mother's efforts to engage in services,
separate herself from the father by moving to a different state,
and stabilize her housing situation by moving from a shelter
merit to this argument where his son was still in the custody of
the department and because he had turned eighteen during the
pendency of this care and protection, the judge made no findings
as to the fitness of the father in regard to his son.
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into a home, but concluded that mother's engagement in services
was "inconsistent at best," and that the time mother had spent
away from father in the months leading up to trial was "not
enough time to convince this Court that Mother has successfully
distanced herself from Father." As for the mother's housing
stability, the judge found that she had not established stable
housing at the time of trial. Although mother did live in an
apartment, she had not yet lived there long enough to
demonstrate a deviation from her previous inability "to maintain
an apartment for more than a few months."
The mother takes issue with the judge's finding that the
department's goal for Zendaya is adoption by her current foster
placement. She argues that this finding is clearly erroneous
because the adoption plan instead indicates that the
department's first placement choice is with Zendaya's maternal
grandmother. While the mother is correct that the grandmother
volunteered as a placement option, the judge explained in his
findings that the grandmother was considered for placement, but
because she currently lives in New Hampshire, an Interstate
Compact on the Placement of Children (ICPC) process must be
completed before Zendaya could be placed at the grandmother's
home. A prior ICPC had been denied with regard to placement of
Zendaya's brother because the grandmother said she could not do
the required classes. The record does not reflect that the
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grandmother's circumstances have changed. These obstacles are
not present with Zendaya's current foster placement. There was
sufficient support in the record for the judge to find that the
department's goal was adoption by Zendaya's current foster
placement.
The mother also argues that the child's position at trial
was that termination was not in her best interests and that
should have been "weighted heavily." The child, however, has
not appealed. Moreover, although a child’s wishes are entitled
to weight, they "are neither decisive nor outcome dispositive .
. . and must be considered against the backdrop of the
[parents’] unfitness." Care and Protection of Vick, 89 Mass.
App. Ct. 704, 710 (2016). The judge did not abuse his
discretion.
The father argues that the judge erred by finding that the
father "has failed to . . . engage in any services whatsoever"
when he participated in about ten weeks of an online domestic
violence class, but did not finish the program. While the judge
could have used more precise language, we interpret this
conclusion to mean that he considered father's limited
participation in programming to be insignificant to the extent
that he gave it no weight in his broader analysis of the
father's fitness. A lack of precision in the judge's findings
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does not itself warrant disturbing the judgment. See Custody of
Zia, 50 Mass. App. Ct. 237, 245 (2000). 3
The father also argues that because his action plan tasks
were not sufficiently connected to the alleged deficiencies in
his parenting abilities, the judge should not have taken into
account his failure to complete certain tasks that the father
argues were not relevant to his deficiencies. In particular, he
argues that the judge's finding that he did not engage in
individual therapy should not have counted against him because
the department has not established any issue with the father's
mental health. Treatment of a mental health disorder, however,
is not therapy's only function. In the father's case, the
judge's findings establish that the department tasked father
with engaging in therapy to "focus on de-escalation strategies
as well as insight to his behaviors and how they can negatively
affect his children." This task was relevant to the father's
history of domestic violence and its effect on his children and
his failure to comply with it supported the judge's finding.
2. Postadoption visitation with the father. The power to
order postadoption contact rests within the discretion of the
3 The father similarly disputes the judge's finding that he
lacked stable housing because he stayed at a friend's house in
the months leading up to and during trial. The judge acted
within his discretion in not finding these accommodations to
constitute stable housing.
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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, 753-754 (2009).
We review a judge's decision not to order postadoption
visitation with a parent for abuse of discretion. See Adoption
of Xarissa, 99 Mass. App. Ct. 610, 623-624 (2021). Before
mandating an order of postadoption contact between a child and
parent whose rights have been terminated, a judge must find both
that visitation would be in the child's best interests and that
those interests will not be adequately served by the preadoptive
or adoptive parent's discretion. See Adoption of Cadence, 81
Mass. App. Ct. 162, 168 (2012). 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, 459 Mass.
at 64-65. An order of postadoption contact is more likely in
circumstances where the primary "parent-child relationship in
the child's life remains with the biological parent" and other
adults have not fully assumed that role. Adoption of Vito, 431
Mass. 550, 564 (2000).
Zendaya has remained in the department's custody since 2021
when she was less than two years old. She has resided in the
same home since that time. Zendaya has been doing well and is
up to date medically and with her immunizations. Zendaya has a
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great relationship with her foster parents. When visitation was
available to the parents, their attendance was inconsistent.
The judge acted well within in his discretion in not ordering
postadoptive visitation.
3. Sibling visitation. The father alleges that the judge
erred by failing to issue orders of post adoption visitation
between Zendaya and her brother. 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 rights
with . . . siblings." G. L. c. 119, 26B (b). The statutory
"provisions reflect a legislative determination that the judge
must decide whether and, if so, how sibling visitation is to
occur, . . . [and] also the schedule and conditions of
visitation." Adoption of Rico, 72 Mass. App. Ct. 214, 220-221
(2008), S.C. Adoption of Rico, 453 Mass. 749. See Adoption of
Flavia, 104 Mass. App. Ct. 40, 56-57 (2024).
Putting aside the question whether the father continued to
have standing to seek sibling visitation once his parental
rights were terminated, see Adoption of Zander, 83 Mass. App.
Ct. 363, 367 n.6 (2013), where the judge did not make a finding
that sibling visitation was in the children's best interests,
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there is no obligation to order such contact. 4 See generally
Care & 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"). In these
circumstances, we discern no error in the judge's failure to
make a sibling visitation schedule.
If Zendaya is dissatisfied with not having visitation with
her brother, she can file a motion pursuant to G. L. c. 119,
§ 26B (b) and thereafter if the judge finds it is in the best
interests of Zendaya, then the judge must specify in an order or
orders the form and schedule of such visitation. See Adoption
4 Unlike Adoption of Zander, 83 Mass. App. Ct. 363, 367
(2013), where "[t]he judge acknowledged the necessity of sibling
visitation, but left the timing and frequency of such visits to
the discretion of the adoptive parents," and this court
"remand[ed] for the judge to provide a schedule for
posttermination and postadoption sibling visitation," the judge
here does not appear to have been asked to (and did not) make
findings as to whether such visitation was in the children's
best interests.
13
of Rico, 453 Mass. at 754 n. 12; Adoption of Flavia, 104 Mass.
App. Ct. at 57.
Decrees affirmed.
By the Court (Singh, Hand &
D'Angelo, JJ. 5),
Clerk
Entered: August 14, 2024.
5 The panelists are listed in order of seniority.
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