Adoption of Marrek. ( 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-1126
ADOPTION OF MARREK.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial that spanned three consecutive days, a
judge of the Juvenile Court found the mother unfit to assume
parental responsibility for her son, Marrek, terminated her
parental rights, and approved the Department of Children and
Families' (department) proposed adoption plan which provided for
adoption by the child's maternal grandmother (grandmother).2 The
trial judge also found that visits with the mother were in the
child's best interests and ordered supervised monthly
posttermination and postadoption visits. Any additional
visitation time was left to the sole discretion of the
1 A pseudonym.
2This appeal arises from a second review and
redetermination trial held via Zoom on February 22-24, 2022.
Following the first review and redetermination trial, held over
nonconsecutive days in the summer of 2019, a trial judge found
the mother unfit but did not terminate her parental rights.
Previously, the mother stipulated to a finding that she was
unfit on October 2, 2018.
grandmother, the child's legal custodian. The mother appeals,
arguing that (1) the trial judge's finding of unfitness was
erroneous because it relied on stale evidence and was
unsupported by clear and convincing evidence, and (2) the trial
judge abused her discretion by terminating the mother's parental
rights where guardianship was a viable option and the mother's
positive trajectory demonstrated the likelihood of her future
fitness. We address each of these arguments in turn and,
discerning no error, affirm the decree.
Discussion. 1. Fitness and termination of parental
rights. The mother first argues that the trial judge failed to
properly assess her parental fitness as it existed at the time
of trial but instead relied on stale evidence such as her
previous mental health challenges and her criminal record. The
argument is unavailing.
"To terminate parental rights to a child and to dispense
with 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." Adoption of Bea, 97 Mass. App. Ct. 416, 421-
422 (2020), quoting Adoption of Jacques, 82 Mass. App. Ct. 601,
606 (2012). "In determining whether the best interests of the
children will be served by issuing a decree dispensing with the
2
need for consent, a court shall consider the ability, capacity,
fitness, and readiness of the child's parents . . ." (quotation
and citation omitted). Adoption of Jacques, supra. "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 Patty, 489 Mass. 630, 637 (2022), quoting Adoption
of Ilona, 459 Mass. 53, 59 (2011).
Importantly, although "a finding of current unfitness
cannot be based on stale information . . . prior history does
have prognostic value." Adoption of Carla, 416 Mass. 510, 517
(1993). Indeed, "[w]here a person's character is itself in
issue, as a parent's character generally is in custody or
adoption cases, courts have usually held that it may be proved
by evidence of specific acts of misconduct bearing on
character."3 Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989).
Accordingly, there was no error in the trial judge's
consideration of the mother's past mental health difficulties
3 The mother argues that the trial judge contradicted her
posttrial ruling on the mother's motion in limine by including
in the findings two incidents from 2002 and 2003, before the
mother became a parent. Assuming without deciding that this was
an error, leaving aside these two incidents, the trial judge's
decree is still fully supported by the record.
3
and criminal history4 as part of the overall assessment of the
mother's fitness so long as that conduct spoke to the mother's
current fitness.5 See id.Here, sufficient evidence was adduced at trial to support a
finding by clear and convincing evidence that the mother was
unfit. The trial judge considered the mother's ongoing and past
mental health challenges and concluded that she "remain[ed]
mentally unstable in that she [was] unable to demonstrably
ascertain when she [was] experiencing a mental health decline
and continue[d] to minimize her past behavior/signs of
decompensation."
To reach this conclusion, the trial judge relied in part on
testimony from a department social worker, who testified that in
4 The mother also argues that the trial judge erroneously
considered dispositions on the mother's CARI contrary to the
judge's ruling that the mother's CARI would be admissible but
"limited to CWOFs and convictions." However, the trial judge's
findings regarding the mother's criminal history largely relied
on exhibits 9 and 10, which are records from the Holyoke and
Northampton police departments. The two instances in which the
trial judge considered dispositions on the mother's CARI that
were not CWOFs or convictions related to two restraining orders,
one that was independently supported by the mother's testimony
and another that was supported by police department records.
5 The mother submits that the trial judge could only
properly consider evidence after the first review and
redetermination trial that concluded on July 10, 2019, where the
judge found the mother to be unfit but did not terminate her
parental rights. However, "a judge may rely upon a parent's
past conduct . . . so long as that evidence is not the sole
basis for the judge's unfitness determination." Adoption of
Luc, 484 Mass. 139, 145 (2020).
4
April 2018 she had to cancel a parent-child visit when the
mother grew angry with her after she asked the mother if she was
taking her medication. When the social worker attempted to
speak with the mother further, the mother "charged" at her but
was prevented from taking further action by another staff
member. The social worker also testified she observed the
mother in a "manic" state on multiple occasions from January
2018 through August 2018, a period of time when the mother would
visit the department office without an appointment and would
voluntarily divulge previous traumatic experiences to department
employees.
Additionally, the trial judge was presented with evidence
that the mother was hospitalized three times between 2018 and
2020, including once for a week in January of 2018 when she
received inpatient mental health services. In 2019, the mother
also entered mental health treatment for four or five days after
a conversation with the social worker resulted in the mother
agreeing to a mental health evaluation.6 On September 25, 2020,
the grandmother took the mother to the hospital following an
argument the mother had with her aunt that resulted in the
6 The mother testified that she only agreed to go to the
hospital because the social worker mentioned that she would
discuss reunification with the mother if she sought treatment.
The mother also admitted, however, that she was being treated in
the "psych unit" to regulate her bipolar disorder medication.
5
mother leaving her aunt's home without a shirt and with her
pants on inside out. The grandmother, who arrived at the aunt's
home soon after the altercation occurred, testified that the
mother appeared "confused" and looked as though she was
experiencing a mental health episode. The mother stated that
she was not properly dressed because her aunt made her leave the
home when she was taking a shower. She also denied experiencing
mental health issues during this incident and testified that she
was only treated in the hospital for a finger injury. However,
the trial judge credited the grandmother's testimony that when
the mother arrived at the hospital, she was treated in a mental
health unit.7
To be clear, the trial judge did not credit a large portion
of the mother's testimony throughout the trial, including her
testimony regarding the incident on March 18, 2017, that led to
the child's removal.8 The trial judge found that the mother's
testimony regarding that incident was "remarkably different"
7 While the mother argues that the grandmother's testimony
was self-serving, the trial judge's assessment that the
grandmother's testimony was credible is entitled to deference.
See Custody of Eleanor, 414 Mass. 795, 799 (1993).
8 The trial judge also cited the mother's history of
domestic disturbances and interpersonal conflicts that remained
ongoing after the child's removal and resulted in a numerous
instances of police contact. Notably, the trial judge did not
credit much of the mother's testimony regarding many of these
incidents.
6
from the records presented by the department and the police and
that she continued to downplay the mental health challenges she
was experiencing. For example, the mother denied talking to
herself or hearing voices telling her to walk away from the
police. She further testified that she and the child were
outside in the cold weather to view the St. Patrick's Day parade
and that they both lacked proper clothing because the child's
father threw their jackets into a puddle. The trial judge also
did not credit the mother's testimony asserting that when the
child's paternal grandmother picked the child up from the police
station, the paternal grandmother removed the child's diaper to
cover the child in feces, hid supplies that the mother had given
her, and called the department to make false reports about the
mother.
Furthermore, Dr. Jennifer Laney, a clinical psychologist
whom the mother hired to perform a psychological evaluation,
testified that the mother engaged in "positive impression
management" and that she "probably minimized struggles that
she's having." Dr. Laney's also testified that the mother
failed to give a full account of her previous drug use or
criminal history to Dr. Laney to complete her evaluation.9
9 Dr. Laney also performed a substance use screen on the
mother that reflected a high probability of substance use
disorder. This aligns with the mother's substance use history,
which included the use of PCP.
7
In totality, the mother's lack of candor at trial regarding
her previous mental health challenges, including her efforts to
blame others and minimize her struggles, supports the trial
judge's conclusion that the mother continued to lack insight
into her mental health issues and was unable to ascertain when
she was experiencing mental health decline. The mother's three
hospitalizations following the removal incident, as well trial
testimony from the social worker and the grandmother, supports
the trial judge's findings that the mother lacked the
temperament or mental stability to provide for the child's
needs. As such, the trial judge's conclusion that the mother
remained unfit and that her parental rights should be terminated
was supported by clear and convincing evidence. See Adoption of
Bea, 97 Mass. App. Ct. at 421-422.
2. Adoption plan and the mother's future fitness. The
mother also argues that the trial judge abused her discretion by
terminating the mother's parental rights where guardianship was
a viable option and the mother's positive trajectory
demonstrated the likelihood of her future fitness. We disagree.
"In choosing among placement plans, it falls to the sound
discretion of the trial judge to determine what is in the best
interests of the child, and our review on appeal is one of
substantial deference." Adoption of Bianca, 91 Mass. App. Ct.
428, 434 (2017) (quotation and citation omitted). "The best
8
interests of a child is a question that presents the trial judge
with a classic example of a discretionary decision . . . [where]
much must be left to the trial judge's experience and judgment."
Adoption of Hugo, 428 Mass. 219, 225 (1998) (quotations and
citations omitted), cert. denied sub nom. Hugo P. v. George P.,
526 U.S. 1034 (1999).
Here, the trial judge found that the child's need for
emotional stability, structure, and routine were all served by
adoption by the grandmother, who had provided the child with
care and a stable living environment for nearly all of his life.
The trial judge also concluded that adoption rather than
guardianship would provide the child with needed permanency by
preventing the mother from challenging the child's guardianship
in the Probate and Family Court as she has done with her two
older children who are under the guardianship of the grandmother
and who continued to live with the grandmother at the time of
trial. Additionally, although the mother has complied with her
action plan tasks, as explained above, the trial judge did not
err in concluding that the mother's "mental health remain[ed] a
significant barrier to reunification," and that she had not
significantly benefited from her participation in services.
Accordingly, we discern no abuse in discretion in the trial
9
judge's determination that adoption was in the child's best
interests.10
Decree affirmed.
By the Court (Rubin,
Desmond & Singh, JJ.11),
Clerk
Entered: October 3, 2024.
10The trial judge also properly evaluated the adoption plan
proposed by the department. See Adoption of Dora, 52 Mass. App.
Ct. 472, 474 (2001) (trial judge must review proposed adoption
plan before terminating parental rights).
11 The panelists are listed in order of seniority.
10