Adoption of Spencer.

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-465
ADOPTION OF SPENCER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and father of Spencer appeal from decrees
entered in the Juvenile Court terminating their parental rights.
The mother contends that the judge's decision to terminate her
parental rights was based on erroneous factual findings and was
not supported by clear and convincing evidence. The father
argues that the judge improperly placed the burden of proof on
him to show that he was fit to assume parental responsibility
for Spencer, that his incarceration status unfairly prejudiced
him and tainted the judge's finding of unfitness, and that
evidence regarding substance abuse and domestic violence was
stale. We affirm.
Background. The Department of Children and Families
(department) commenced these proceedings after receiving
numerous reports of neglect arising from the parents' escalating
1 A pseudonym.
issues of substance abuse and domestic violence. This was not
the mother's first interaction with the department. She first
came to the department's attention in 2006 when the paternal
grandfather of her first child reported neglect caused by
substance abuse and domestic violence.2 The department
determined that the report was unsupported, but for the next
five years the department continued to receive similar reports
of neglect. During this time, the mother admitted that she
struggled to remain sober but denied instances of domestic
violence. Ultimately, that child's paternal grandfather
obtained guardianship, and the case was closed, in 2011.
The mother and Spencer's father started dating in 2013 and
began living together when the mother became pregnant with
Spencer, her second child. The department became involved the
day after Spencer's birth in October 2016. The mother admitted
to using heroin while pregnant, and when Spencer was born he
tested positive for Subutex and the mother tested positive for
Buprenorphine. The department's investigation revealed that the
mother failed to report her drug abuse to her prenatal care
provider and that no drug screens were conducted. Although the
department determined that the mother and father were actively
engaged in treatment, it nonetheless opened a case because of
2 At the time, the mother lived with the first child's father,
who is not Spencer's father.
2
the parents' longstanding history of substance abuse and
relapse.
Following Spencer's birth, the father became jealous,
possessive, and abusive toward the mother. Less than a year
after the department opened the case, an anonymous person filed
a report alleging neglect of Spencer by the father based on
domestic violence. The mother admitted that the father hit her
while she was holding then ten month old Spencer, and the father
also admitted to hitting her. Because of this dispute, the
mother terminated her relationship with the father. They were
not separated for long, however; the mother and Spencer moved
back in with the father after a few months.
Thereafter, another report alleging the parents' neglect
was filed after Quincy police officers found the father and
mother arguing loudly in their vehicle with Spencer in the back
seat. The department's investigation revealed that the parents
were arguing about a text message that the father found on the
mother's cell phone, but the argument was reportedly verbal, and
neither party appeared to be under the influence. The parents
were recommended couples counseling but failed to engage in any
recommended services.
Another incident was reported the following month after the
mother entered a convenience store requesting police assistance.
The mother and father were on their way to the train station
3
with Spencer when they began to argue. During their argument,
the father became so agitated that the mother feared for her
safety. The Weymouth police responded to a call, and the
father, who stated that he had not slept in three days because
he was taking Adderall, was transported by ambulance to
Massachusetts General Hospital. The next day, the mother called
the department, reporting that the father had arrived at her
apartment the night before and tried to get in. She denied
letting him in or any physical abuse, but stated that she asked
a neighbor to call the police. She also stated that Spencer was
home but did not witness anything. The department's
investigation later revealed, and the mother admitted, that she
failed to report that the argument in fact did become physical,
that the father pulled hair out of her head, and that Spencer
was present and exposed to the argument.
After this incident, the mother took steps toward engaging
in domestic violence services by applying for emergency shelter
placement, obtaining housing, and applying for an abuse
prevention order against the father.3 Yet, the mother could not
stay away from the father and ended up losing her housing funds
and getting evicted after an altercation with the father that
3 An abuse prevention order was issued, presumably on an ex parte
basis, but the mother failed to renew it when it expired two
weeks later.
4
required police involvement. The mother admitted to the
department that she did not renew the abuse prevention order
because the father was "a good person and a good father." The
department encouraged the mother to seek domestic violence
services and obtain another restraining order, but the mother
initially rejected such suggestions. A few months later, she
did obtain a three-month restraining order against the father.
Despite the fact the father had been ordered to stay away from
the mother, the two of them were arrested for shoplifting
approximately $1,500 worth of merchandise from a department
store in Hingham.
The mother and father continued to see each other. Not
long after the shoplifting arrest, Spencer's maternal
grandmother called the police to report that the father had been
physically violent against the mother. The police found the
mother at her home with a black eye and bloody nose. The mother
stated that the father, while in Spencer's presence, "head-
butted" her and punched her in the face. She also stated that
the father had strangled her to the point that she thought she
would die. The father, who was present when the police arrived,
stated, "I was probably up for five or six days because of
cocaine," and admitted attacking the mother. He was arrested
and charged with domestic assault and battery, strangulation,
violation of a restraining order, and possession of controlled
5
substances, ultimately resulting in a substantial prison
sentence. The mother, who was pregnant at the time, had to be
transported to the hospital because her eye was so badly
damaged.
After this incident, the department determined that Spencer
was in need of care and protection, filed the instant petition,
and was granted custody. Spencer was placed with a foster
mother, who is the preadoptive parent.
The department developed service plans for the mother and
the father that targeted the skills they would need to care for
Spencer. At the time, the father was being held at a house of
correction, so the department met with the father there to
review the service plan. He did not want Spencer to visit him
while he was incarcerated, and although he had the ability to do
so, he failed to communicate with Spencer, or the department,
for the remainder of his prison term.
The mother complied with her service plan. She was granted
weekly supervised visits with Spencer, which she always
attended, and she worked with the department to follow its
recommendations. Due to her compliance with her service plan
and cooperation with the department, Spencer was placed back
into the mother's care after nine months. The following month,
however, the department received a report alleging neglect of
Spencer arising out of another shoplifting incident. This time
6
the police responded to a convenience store where the mother had
allowed Spencer to climb on the shelves to distract the clerk
while she attempted to carry stolen merchandise out of the
store. The department conducted an unannounced home visit,
during which the social worker found a discrepancy in the pill
count of the mother's Subutex prescription and new track marks
on the mother's arms. The mother denied that the marks were
track marks, but had no explanation for their origin. The
department again removed Spencer from the mother's care and
placed him back with the foster mother. The department
subsequently discovered an unreported police response and
relapse that had occurred before Spencer was returned to the
mother's care. The report stated that the mother was found
passed out in the driver's seat of a car in a parking lot and
that white powder residue and an uncapped hypodermic needle were
found in the front seat area. The department held a permanency
planning conference and changed Spencer's permanency goal to
adoption. After the department changed its permanency goal for
Spencer, the mother failed to stay sober. She was found
unconscious due to an overdose and had to be revived with
Narcan. She failed to report this incident to the department
and denied it when confronted, claiming that it was her sister
who had overdosed. The mother also reported receiving services
when she was not and failed to report a domestic disturbance
7
involving a former boyfriend because she hoped it would "slip
through the cracks."
After trial, the judge found that the department had
demonstrated, by clear and convincing evidence, that the mother
and the father were both unfit to parent Spencer and that his
best interests would be served by termination of their parental
rights. The judge committed Spencer to the permanent custody of
the department and ordered that the mother have bimonthly visits
with Spencer prior to adoption and two yearly visits thereafter.
The judge denied the father's request for posttermination and
postadoption visits. Both parents appeal.
Discussion. 1. The mother's appeal. The judge concluded
that the mother's persistent problems with domestic violence,
substance abuse, lack of stable housing, and lack of stable
employment rendered her an unfit parent, and that these
shortcomings would continue into the future. The mother
contends that the judge erred by not crediting her compliance
with her service plans, and that several of the judge's findings
were not supported by the evidence.
"In determining whether to dispense with parental consent
to adoption, a judge must 'evaluate whether the [parent is] able
to assume the duties and responsibilities required of a parent
and whether dispensing with the need for parental consent will
be in the best interests of the children.'" Adoption of Nancy,
8
443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass.
705, 710 (1993). See G. L. c. 210, § 3; Adoption of Jacques, 82
Mass. App. Ct. 601, 606 (2012). The judge must conduct a two-
part analysis: the judge must first determine "parental
unfitness by clear and convincing evidence," and "[a]fter
ascertaining unfitness, the judge must determine whether . . .
it would be in the child's best interests to end all legal
relations between parent and child." Adoption of Nancy, supra
at 515. The two inquiries "are not separate and distinct, but
'reflect different degrees of emphasis on the same factors.'"
Id., quoting Petition of the New England Home for Little
Wanderers to Dispense with Consent to Adoption, 367 Mass. 631,
641 (1975). "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).
Although the mother claims that the judge ignored
substantial documentary and testimonial evidence of her
compliance with services, the judge acknowledged in her
conclusions of law that the mother "ha[d] recently made some
positive gains." The judge continued, however, to note that
"the length of time has been at Spencer's expense. Spencer
9
deserves and requires permanency. Mother's shortcomings are
likely to continue undiminished into the future." The judge was
not required to find that the mother was fit simply because she
started to make some positive gains. See Care & Protection of
Olga, 57 Mass. App. Ct. 821, 830 (2003) ("progress does not
preclude consideration of past behavior as a means of predicting
the likely future"); Adoption of Lorna, 46 Mass. App. Ct. 134,
143 (1999) ("judge was not obliged to believe that the parenting
skills of the mother . . . had improved simply because of [her]
recent cooperation with the department").
The mother further contends that several of the judge's
factual findings were clearly erroneous. "A finding is clearly
erroneous [and thus not supported by evidence] when there is no
evidence to support it, or when, 'although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993),
quoting Building Inspector of Lancaster v. Sanderson, 372 Mass.
157, 160 (1977). The mother claims that the judge erroneously
concluded that she struggled to maintain stable accessible
housing; that she was resistant, uncooperative, and inconsistent
with the department; and that she continued to engage in a
pattern of relationships ridden with domestic violence. The
evidence, however, strongly supported the judge's decision.
10
While the mother is correct that the department did not
consider housing to be an issue, the judge's conclusion that the
mother lacked stable housing was fully supported. The mother
repeatedly had to move back to the maternal grandmother's home
because, on at least two occasions, she was evicted from her own
apartment due to domestic violence incidents. Moreover, the
mother's inconsistent and unsuccessful attempts to comply with
services are well documented. The judge found not only that the
mother failed to comply with services, but also that she lied
about receiving such services.
Concerning the domestic violence, the mother claims that
her past history did not represent her current ability to parent
Spencer and that she had cut all ties with the father. The
judge, however, reasonably concluded that the mother failed to
effectively address her domestic violence victimization, which,
the record reveals, profoundly affected the mother, as well as
Spencer. The mother's relationship with the father of her first
child was fraught with domestic violence, which contributed to
her losing custody of that child. The mother subsequently
engaged in a relationship with Spencer's father, and although
domestic violence characterized their relationship from the
beginning, the mother continued to allow the father into her and
Spencer's life. Ultimately, the father had to be arrested
following a "vicious" attack against her. After the mother cut
11
all ties with the father, she started dating someone else who
had a history of domestic violence and a permanent abuse
prevention order against him,4 and at least one domestic
disturbance between them required police intervention.
The judge found that "[b]oth Mother and Father have
criminal histories that have rendered them unavailable due to
incarceration." The mother also argues that the judge erred in
concluding that incarceration rendered her unavailable to parent
Spencer because she was never incarcerated after Spencer's
birth. While the mother is correct that this finding was
erroneous with respect to her, the mother did continue to engage
in criminal conduct after Spencer was born. Moreover, the
finding regarding the mother's incarceration was not central to
the judge's ultimate conclusion. Even without this finding, the
mother's unfitness has clear and convincing evidentiary support.
See Care & Protection of Olga, 57 Mass. App. Ct. at 825;
Petition of the Catholic Charitable Bureau of the Archdiocese of
Boston, Inc., to Dispense with Consent to Adoption, 18 Mass.
App. Ct. 656, 662 (1984).
Finally, the mother argues that even if unfitness was
proven, the judge erred in terminating her parental rights
4 Showing little appreciation for how domestic violence might
affect her fitness as a parent, at trial the mother stated,
"It's not my business if my ex-boyfriend has a lifetime
restraining order against him."
12
because of her strong bond with Spencer. We discern no abuse of
discretion in the judge's determination that the mother's
longstanding issues with substance abuse, domestic violence, and
providing a stable home environment were likely to continue in
the future such that termination of parental rights was in
Spencer's best interests. "It is in the best interests of
[Spencer] to have [a parent] who can and who will, on a
consistent longterm basis, assume all parental responsibilities
and who can provide [Spencer] with the stable and continuous
care and nurturing [he] needs and will continue to need as a
child." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136
(1990).
2. The father's appeal. a. Burden shifting. The father
argues that rather than placing the burden of proof on the
department to establish by clear and convincing evidence that he
was unfit, the judge shifted the burden to him to "demonstrate"
fitness. He points to three instances in the judge's
conclusions of law where she stated that the parents had failed
to "demonstrate" insight into Spencer's needs, that they had a
care plan, or that they had "the ability, fitness and readiness
. . . to assume parental responsibility," and to two instances
where the judge said that there was "no evidence" of a bond
between the father and Spencer. Due process and fundamental
fairness require that the department meet its burden of proof
13
when seeking to terminate parental rights. See Adoption of
Parker, 77 Mass. App. Ct. 619, 623 (2010). Given the liberty
interests at stake, "it is never permissible to shift the burden
of proof to the respondent parent. Care & Protection of Ian, 46
Mass. App. Ct. 615, 619 (1999)." Care & Protection of Erin, 443
Mass. 567, 571 (2005).
There was no burden shifting. The judge's memorandum of
decision made clear that she understood that the burden of
proving unfitness was on the department. Indeed, her pertinent
finding in this regard was, "Following trial, this Court finds
that the Department has demonstrated, by clear and convincing
evidence, that Mother and Father are both unfit to parent the
child." The department presented abundant evidence of the
father's unfitness, and the judge's extensive findings show
careful attention to the evidence. The judge found that the
father had a history of mental illness, a long history of
substance abuse, a substantial criminal record, and that the
father was abusive against the mother. In context, despite the
handful of references on which the father relies, the judge did
not shift the burden of proof. See Adoption of Terrence, 57
Mass. App. Ct. 832, 836 (2003) (judge's repeated uses of phrase
"has not demonstrated" "were summations of the evidence
presented; read in context, they plainly do not refer to the
ultimate burden of proof resting on the mother").
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b. The father's unfitness. "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. at 59.
The father argues that the judge placed undue emphasis on
his past incarceration. We disagree. Although the judge found
that the father was incarcerated for most of Spencer's short
lifetime, and "compelled absence of a parent by reason of
incarceration" may be taken into account, Adoption of Nicole, 40
Mass. App. Ct. 259, 261 (1996), this finding was not central to
the judge's ultimate conclusion of unfitness. See Care &
Protection of Olga, 57 Mass. App. Ct. at 825. The overwhelming
thrust of the judge's findings attributed the father's unfitness
to his history of domestic violence, substance abuse, and his
lack of engagement in services.
The father also contends that the evidence of his substance
abuse and his role as a perpetrator of domestic violence was
stale. The judge properly considered this evidence. See
Adoption of Elena, 446 Mass. 24, 33 (2006) ("A judge properly
may consider a pattern of parental neglect or misconduct in
determining future fitness and the likelihood of harm to the
child"); Custody of Two Minors, 396 Mass. 610, 621 (1986) ("The
15
court is permitted to assess prognostic evidence derived from
prior patterns of parental neglect or misconduct in determining
future fitness and the likelihood of harm to the child"). The
father had an extensive history of substance abuse and domestic
violence. The father began drinking sporadically at age
fifteen. At age twenty-four, he was prescribed oxycodone after
a car accident and became addicted. By age twenty-six, he began
using heroin and, ultimately, developed an addiction. He
continued his use of heroin until approximately age thirty-nine.
Likewise, the judge found that the father had an extensive
history of domestic violence. The father was the defendant in
nine G. L. c. 209A petitions brought by four different
plaintiffs (three of the nine petitions were filed by the
mother).
In addition, the father claims that the evidence did not
demonstrate a nexus between his substance abuse, domestic
violence, and his ability to parent. To the contrary, the
record shows a strong link among these factors. On two
documented occasions, the police were called because the father
hit the mother in Spencer's presence. Both times, he blamed his
conduct on drug use, once stating that he had not slept for
three days because he was using Adderall, another time stating
that he had not slept for five or six days because he was using
cocaine. Clearly substance abuse played a substantial role in
16
the father's violence against the mother and Spencer's exposure
to it.
The father misconstrues Custody of Vaughn, 422 Mass. 590,
599 (1996), to argue that the judge erred by failing to make
"detailed and comprehensive findings" regarding the effect of
domestic violence on Spencer. Judges are required to make such
findings before granting custody to a parent who committed acts
of domestic violence. "Where evidence of domestic violence is a
factor contributing to a judge's decision to find a parent unfit
or to terminate parental rights, however, the judge's findings
need not be any more detailed or comprehensive than is required
for any other factual findings supporting such determinations."
Adoption of Yvonne, 99 Mass. App. Ct. 574, 578-579 (2021).
Finally, the father argues that he was present in Spencer's
life, had a bond with him, and that the judge should at least
have ordered posttermination visitation. We discern no error or
abuse of discretion. The evidence supported the judge's finding
that the father had no relationship with Spencer. While the
father may have been "present" for the first two years of
Spencer's life, for part of that time the parents lived apart
and the father was under court order to stay away. His presence
in Spencer's life terminated as the result of his own actions:
he was arrested and sentenced to prison for assault and battery
and strangulation of the mother. The father at first declined
17
to have Spencer visit him while he was incarcerated, then did
not respond to the department social worker's monthly efforts to
reach him and made no effort to contact Spencer for three years.
See Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001)
(department's "obligation to work with the mother was contingent
upon her own obligation to fulfill various parental
responsibilities, including . . . maintaining regular contact
with [the department] and [child]"). The judge properly
determined that posttermination visitation was not in Spencer's
best interests. See Adoption of Vito, 431 Mass. 550, 562 (2000)
("an order for postadoption contact is grounded in the over-all
best interests of the child, based on emotional bonding and
other circumstances of the actual personal relationship of the
child and the biological parent, not in the rights of the
biological parent").
Decrees affirmed.
By the Court (Green, C.J.,
Rubin & Massing, JJ.5),
Clerk
Entered: April 13, 2023.
5 The panelists are listed in order of seniority.
18