ADOPTION OF KASEM (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-947
ADOPTION OF KASEM (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a Juvenile Court judge terminated the
mother's parental rights regarding her two sons, Kasem and
Timothy (first and second sons), and terminated the father's
parental rights regarding the second son. The father of the
second son did not appeal. On appeal, the mother and the first
son contend, among other things, that the Department of Children
and Families (department) failed to demonstrate, by clear and
convincing evidence, that the mother was an unfit parent, and
that the trial judge erred when considering posttermination and
postadoption visitation. We affirm.
Background. The mother gave birth to three children, a
first son in 2014 (by a father now deceased), a daughter in 2017
1 Adoption of Timothy. The children's names are pseudonyms.
(by a father who was not a party in this case), and a second son
in 2019 (by her husband, hereinafter, the father or the
husband). In 2017, the mother and the father married and lived
together with the first son and the daughter. The mother had
concerns about the father's mental health, had disagreements and
arguments with him, and believed that it was not safe to be with
him. The father physically abused the mother.
A series of incidents brought the family to the attention
of the police and the department. Specifically, in late 2017,
police officers responded to the family residence because the
mother and the father had been involved in an argument. The
father voluntarily left the residence. About six months later,
police officers returned to the residence where the mother
reported that the father struck her in the face with a closed
fist. After this incident, the mother allowed the father to
return home after he apologized. In October 2018, the mother
and the father had an argument in the residence, and the police
responded. She acknowledged being afraid of the father but did
not request a restraining order.
In December 2018, the department took custody of the first
son and the daughter following reports of abuse. The first son
presented to the hospital with a bruise above his eye and dried
blood in his nose. He alleged that the father disciplined him
with cold showers and held him upside down, while he screamed,
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and caused a nosebleed. He later told a court investigator that
the father "is a monster" who hit him, and that his mother also
slapped him in the face. According to an affidavit of a
department emergency response worker, the mother and the father
admitted that the father held the first son upside down and the
child suffered a nosebleed, but they attributed the incident to
horseplay. The first son also told the worker that his mother
slapped him in the face "when she was 'frustrated.'" Following
an examination of the daughter at the hospital, medical
personnel recommended additional tests to rule out internal
injuries, but the mother left the hospital with the daughter
against medical advice. After initiating emergency removal, the
department filed a care and protection petition on behalf of
both children; the first son has remained in department custody,
and the daughter has been committed to the custody of her
biological father following the mother's stipulation to
unfitness.
While the petition was pending, the department attempted to
contact the mother in September 2019 after receiving a report
that a neighbor heard a baby crying all night in the family
residence. The mother, having given birth to the second son
weeks earlier, refused to cooperate with the department's
attempt to schedule a home visit. On October 25, 2019,
department workers went to the home and received no response
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after knocking on the door. They returned the next day and
informed the mother that the department would be taking
emergency custody of the second son. Shortly thereafter, the
department filed a second care and protection petition on behalf
of the second son and has maintained custody of him.
Initially with a goal of reunification, the department
developed a series of family action plans and monitored the
mother's progress in meeting goals related to her capacity to
parent the children. On April 19, 2020, the mother sent the
department's ongoing social worker an e-mail message asking him
to stop contacting her. She refused to meet with the ongoing
social worker and refused home visits. By early 2021, the
department's goals for both sons ultimately changed to adoption.
In August 2021, a trial commenced on the petitions seeking to
terminate parental rights but was continued for mediation.
After an unsuccessful mediation and further trial, on October
31, 2022, the judge ordered the entry of decrees terminating the
mother's parental rights as to both sons. The first son has
lived with his paternal grandmother since January 2019, and the
second son has lived with his foster mother since May 2021.
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
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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). "In determining whether the best interests
of the children will be served by issuing a decree dispensing
with the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "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). "[D]issatisfaction with the judge's weighing of the
evidence" is not a sufficient basis to warrant relief on appeal.
Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
The judge exhaustively considered the factors set forth in
G. L. c. 119, § 26, and G. L. c. 210, § 3 (c), including the
best interest of the child, in making her decision. Of
particular note, the judge concluded that the mother (1) failed
to engage consistently to address her shortcomings, (2) refused
to communicate with the department social worker, (3) presented
as disruptive and combative during parenting group sessions, (4)
refused to take responsibility for her role in the removal of
her children, (5) failed to make positive improvement in her
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parenting skills, (6) maintained inconsistent visitation with
the children, (7) failed to accept responsibility for harm that
befell the children, (8) failed to make substantial progress
toward addressing her mental health issues, (9) failed to
address a history of interpersonal violence, (10) lacked insight
into her parental shortcomings, and (11) lacked insight into the
needs of the children. We discern no error or abuse of
discretion and conclude that the evidence presented support for
the judge's findings and termination decision. See Adoption of
Jacques, 82 Mass. App. Ct. at 606-609.
We disagree with the mother's and the first son's
contention that the judge found her unfit "simply because she
relies on public assistance" or lacked "adequate financial
resources." This contention is at odds with the judge's
comprehensive findings and conclusions as well as the judge's
cautionary note that she "considered the evidence in the
aggregate, and ha[d] not given conclusive weight to any single
component standing alone." Furthermore, the judge did not
examine the mother's financial health in a vacuum; she
considered it as a factor in assessing whether the home provided
by the mother constituted a "stable, continuous environment"
that serves the best interests of the children. Custody of a
Minor (No. 1), 377 Mass. 876, 882 (1979). The judge reasoned
that the mother, who relied on government assistance for income,
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was ambivalent about the father returning home after completing
a period of incarceration, and she lacked an insight into the
financial strain of managing a home as a single parent with two
young children.
We also disagree with the contention that the judge failed
to consider the mother's efforts to comply with the department's
action plans as well as her participation in group therapy,
individual therapy, and remedial programs. To the contrary, the
record shows that the judge expressly found the mother "has made
more positive progress towards service engagement throughout
this case than [the father]. Since June 2021, she has been
consistently engaged in individual therapy, per reports from her
therapist, and has been engaged in parenting classes." While
acknowledging that the mother engaged in services at times, the
judge found that the mother ultimately did not "demonstrate a
positive improvement in parenting skills as a result of her
engagement in services." See Adoption of Paula, 420 Mass. 716,
730 (1995) (absent evidence that services have "appreciably
improved" capacity to meet needs of children, mere participation
in services does not equate with fitness).
While the mother and the first son maintain that there was
no nexus between the mother's mental health issues and her
ability to care for her children, the record permitted, but did
not compel, such an inference. The mother suffered from a
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variety of cognitive and mental health diagnoses, including
learning disability, attention hyperactivity disorder, dyslexia,
depression, anxiety, bipolar disorder, and posttraumatic stress
disorder. At trial, the mother admitted she "sometimes" had
difficulty understanding; she was not taking her medication
around the time the children were removed from the home; she
knew at the time of removal that she suffered from untreated
depression, anxiety, and a bipolar disorder; she decided to
start taking her medication when she developed a hope to
"better" herself; her medication "[p]uts her in bed but it helps
[her]"; and she had comprehension problems during the trial
(despite medication and therapy). In her findings, the judge
noted that the mother "has not been able to control her
behavior" and was "combative, disruptive, and yelling" during
various parenting classes and required individual therapy.
Also, after completing these classes, the mother still lacked
insight into her own responsibility for the harm that befell her
children (e.g., minimizing disciplining her children as nothing
more than a "little tap") as well as insight into the impact of
domestic violence on the children (e.g., appearing ambivalent
about abusive husband returning home and changing her testimony
about whether her husband ever struck her). The mother also
lacked an "understanding of her children's needs" and proved
unable or unwilling to address the issues that led to the
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removal of the children from her home. Thus, the record
supported a nexus between the mother's persistent cognitive and
mental health issues and her capacity to assume parental
responsibility. See Adoption of Frederick, 405 Mass. 1, 9
(1989).
The mother and the first son also take issue with certain
subsidiary findings by the judge regarding the mother's
participation in domestic violence therapy. We agree that the
mother quite commendably engaged in domestic violence therapy,
but the judge's concern centered around her "inconsistent" trial
testimony related to domestic violence and future contact with
her husband. This inconsistency suggested "a level of
uncertainty" regarding whether the mother would allow the father
back into the lives of the children and created "serious
concerns about the potential for harm to the children." Also,
despite engaging in therapy, the mother lacked "any insight into
how the history of domestic abuse in the home might have
impacted the children." Thus, we do not read the judge's
findings as disregarding the mother's participation in therapy
or otherwise indicating that the department did not make
reasonable efforts to provide such therapy.
The record does not indicate that the judge disregarded the
mother's potential to regain fitness, the first son's wishes, or
the adequacy of the department's permanency plan. The judge's
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view of the evidence caused her to expressly reject the
possibility that "the parent's unfitness at the time of trial
may be only temporary." Adoption of Carlos, 413 Mass. 339, 350
(1992). The judge concluded that the mother's unfitness "is
likely to continue into the future to a near certitude" in light
of many of the factors discussed above. The judge also had
before her evidence of the first son's affection for his mother
and his desire for his family to live together, but such views
are not "decisive" or "outcome determinative" in the overall
best interest analysis. See Adoption of Nancy, 443 Mass. at
518. While the department did not submit a written adoption
plan, the extensive evidence at trial, including the testimony
of the social worker about the first son and the adoptive parent
was "sufficiently detailed to permit the judge to evaluate the
type of adoptive parents and home environment proposed and
consider whether the proposal is best suited to meet the
specific needs of the child." Adoption of Varik, 95 Mass. App.
Ct. 762, 770-771 (2019).
For the first time on appeal, the mother and the first son
contend that the judge should not have considered some
information contained in reports filed under G. L. c. 119, § 51A
(51A reports), as well as information related to reports that
were substantiated but later reversed by the department. As we
read the record, the parties agreed to the trial exhibits during
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a lobby conference and premarked them during later discussions
on the record. The discussions during that lobby conference
have not been preserved as part of the record before us. See
Adoption of Quan, 470 Mass. 1013, (2104) (it was incumbent on
appellant "to provide a record adequate for appellate review").
See also Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611(2019) (record includes transcript of proceedings); Mass. R. A.
P. 8 (c), as appearing in 481 Mass. 1611 (2019) (when transcript
is unavailable, statement of evidence or proceedings may be
substituted). At one point during the recorded discussions,
counsel for the mother raised a concern about an exhibit, and
the judge responded, "File a motion in limine." Discussion then
continued with the marking of exhibits. To the extent the
mother and the first son have not waived any objections, the
judge's findings and conclusions comport with the limited
evidentiary use of 51A reports. See Mass. G. Evid. § 1115
(2024). To the extent the mother and the first son are claiming
that the department's reversal of substantiated reports
precludes the judge from making her own determination of the
facts based upon other admissible evidence, we disagree. "[T]he
use of such evidence was not precluded by principles of
collateral estoppel." Adoption of Lorna, 46 Mass. App. Ct. 134,
141 (1999). As the department concedes, the judge erred by
referring to a 2017 51A report as "supported" when that
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determination was later reversed after an administrative fair
hearing. That erroneous finding, out of 235 findings of fact,
concerned background information that led to the department's
involvement and had no bearing whatsoever on the judge's legal
conclusions.
Finally, we decline to remand for further consideration of
posttermination or postadoption contact. As to the mother, the
judge concluded that "some post-termination and post-adoption
contact could be in the children's interest" provided she
"conduct[s] visits in a manner that is not stressful for the
children and adheres to the best practices for interacting with
each child given his special needs." We discern no abuse of
discretion by the judge entrusting the particulars of
visitation, posttermination, to the department, and
postadoption, to the adoptive parents, who have bonded with the
children and have provided nurturing homes. See Adoption of
Ilona, 459 Mass. at 66. As to sibling contact, the judge did in
fact order the department to continue to provide the first son
with sibling visitation posttermination; and we discern no error
in the judge's deferral to the adoptive parents to set the
parameters for such contact postadoption, especially given the
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current ongoing visitation among the siblings.
Decrees affirmed.
By the Court (Blake, Walsh &
Hodgens, JJ.2),
Clerk
Entered: October 8, 2024.
2 The panelists are listed in order of seniority.
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