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Appeals Court of Massachusetts.



Decided: March 17, 2021

By the Court (Green, C.J., Neyman & Grant, JJ.2)


The mother appeals from a decree of the Juvenile Court finding her unfit to assume parental responsibility of her daughter, Patricia, and terminating her parental rights as to her. On appeal, she contends that the judge erred in determining that the Department of Children and Families (DCF) made reasonable efforts to provide services to help her escape the cycle of domestic violence. We affirm.

1. Background. The facts, as delineated in the judge's findings, are essentially undisputed and need not be detailed herein.3 The findings describe the mother's chaotic and difficult upbringing, a lengthy and ongoing history of mental illness, and a significant and ongoing history of substance abuse. The mother also has a lengthy criminal history spanning more than twenty years, and forty-three adult criminal charges, which have resulted in her incarceration on at least ten occasions, “including during her pregnancy with the subject child.” She is a longtime victim of domestic violence, and has also been a named defendant on two abuse prevention orders. As the judge found, her many issues are “indicative of ․ chronic instability, and poor judgment.” There is more than ample support in the record for the judge's findings. In addition, the mother had three children other than Patricia, and has lost custody of all three.4

Patricia was three years old at the time of trial. She experienced housing instability, and exposure to domestic violence between the father and the mother. She has bonded with her preadoptive family, with whom she has resided since August of 2018, when she was eighteen months old. The judge found that she “would suffer a traumatic loss if forced to leave her stable foster placement, as well as a significant regression in her developmental health.” The judge also found that the mother “lacks the capacity to meet the special needs of Patricia that will exist if the child was removed from the only stable and secure environment she has ever known and thrown back into the instability and violence that characterizes [the] mother's life.”

Following trial, the judge issued findings of fact and rulings of law. See note 2, supra. The judge found the mother unfit; found that said unfitness was likely to continue into the indefinite future to a near certitude; concluded that the best interests of the child would be served by termination of the parental rights of the mother and the father; and determined that the adoption plan proffered by DCF served the best interests of Patricia.5

2. Discussion. The mother's sole claim on appeal is that DCF failed to make reasonable efforts to reunite her with Patricia, because DCF did not offer proper referrals or services to help her escape the cycle of domestic violence. In support of her claim, the mother cites social science literature explaining the science underlying the complicated issues connected to domestic violence.

As the mother concedes, her claim on appeal was neither argued nor raised during trial, in any pretrial filing, or in any posttrial submission to the trial court. Likewise, the literature she now submits to this court was neither submitted to, nor referenced in, the trial court. She contends, however, that “reasonable efforts is always an issue before the trial court” and that, even if not properly preserved, this case presents exceptional circumstances justifying appellate review. The argument is unavailing for several reasons.

Initially, “a parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made.” Adoption of Gregory, 434 Mass. 117, 124 (2001). As far as the record shows, despite years of involvement with DCF, the mother never raised or challenged DCF's provision or offer of services. Moreover, she did not raise the issue before the judge. Instead, the mother focused on DCF's alleged failure to meet its burden to demonstrate that the mother was unfit and that termination of her parental rights was in the best interests of Patricia.

Furthermore, the judge made an explicit finding that DCF “made more than reasonable efforts throughout the pendency of this care and protection [case] to provide services to both parents to restore the child to her natural parents.” The record supports the judge's determination, as the mother's action plans repeatedly required her to engage in therapy to address her domestic violence issues, and “[r]e-engage with New Hope for domestic violence services.” Indeed, the record reflects that the mother was resistant to receiving therapy and treatment, and did not consistently participate in her assigned action plan tasks. Also, the mother testified that she did not engage in or complete certain domestic violence services because she did not believe that she was a victim of domestic violence.6

Finally, the mother has not demonstrated how the studies she now proffers on appeal would have been admissible at trial. Even putting aside obvious hearsay concerns, see Commonwealth v. Reese, 438 Mass. 519, 527 (2003), the mother acknowledges that the newly-referenced studies would have been inadmissible absent appropriate foundational and substantive evidence, including, in the context of this case, expert testimony.7

Decree affirmed.


3.   The judge issued 254 findings of fact along with detailed rulings of law. Her work, in this regard, is a model of clarity and comprehensiveness.

4.   The other three children are not involved in these proceedings. Patricia's father stipulated to the termination of his parental rights and does not appeal therefrom.

5.   In determining the mother's unfitness, the judge properly considered the required factors under G. L. c. 210, § 3 (c), finding factors (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), and (xii) to be applicable.

6.   We note that the judge took appropriate consideration of the mother's history of domestic violence in determining the mother's unfitness and the best interests of Patricia. A child who is the victim or witness of domestic violence “suffers a distinctly grievous kind of harm,” Custody of Vaughn, 422 Mass. 590, 595 (1996), and as such, “[v]iolence within a family 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).

7.   Nothing herein should be construed to undermine the seriousness of the concerns regarding domestic violence delineated in the mother's thoughtful brief. See, e.g., Custody of Vaughn, 422 Mass. 590. We hold only that the issues now raised for the first time on appeal do not warrant appellate relief on the record before us.

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