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Appeals Court of Massachusetts.



Decided: April 14, 2021

By the Court (Sullivan, Desmond & Singh, JJ.2),


After a trial, a judge of the Juvenile Court found the father unfit to parent his son, Xander, and terminated his parental rights. The judge granted the Department of Children and Families (department) permanent custody of the child and approved the department's permanency plan to place the child in a guardianship with the maternal grandparents.3 On appeal, the father claims that (1) the evidence did not clearly and convincingly establish parental unfitness; (2) the department's permanency plan was not in Xander's best interests; (3) the judge erred in failing to consider evidence of the father's de facto parental relationship with the mother's older son; and (4) the father was denied a fair trial. We affirm.

Background. Beginning in 2013, the mother and the father had a tumultuous, on-again, off-again, four-year relationship. During that relationship, the mother had one child, David,4 with a different man and then a second child, Xander, with the father. The department first became involved with the family in March 2016, after a mandated reporter filed a report pursuant to G. L. c. 119, § 51A (51A report), following allegations that the father had assaulted the mother when she was pregnant with Xander. Concerns over the presence of domestic violence continued; three more 51A reports were filed that following November in response to reports that the father was beating the mother, the father had “slammed” the mother to the floor, and the mother had bitten the father. The subsequent investigation found all three allegations to be supported. The mother obtained a restraining order against the father and, in June 2017, after demonstrating to the department that she was engaging in services and had agreed to certain conditions (including that she have no contact with the father), the department closed the family's case.

Less than two weeks after the case was closed, the department learned that the mother had vacated the restraining order and had violated the conditions by allowing the father to pick up the children from day care and live in her apartment. The mother claimed that, because the department had closed her case, she could “do whatever she want[ed].” A 51A report alleging neglect was filed and the children were placed with the maternal grandparents. The report was substantiated after the father admitted to violating the restraining order, and the department was granted temporary custody of the children.

After the children were removed from the mother's care, the father's communication with the department was inconsistent. He failed to engage in services designed to address the issues that plagued his relationship with the mother and denied that he was responsible for perpetrating domestic violence. After March 2018, the father stopped communicating with the department and did not appear at a hearing on the merits of the care and protection petition, where he was found to be unfit. In March 2019, the department filed a motion for review and redetermination, seeking termination of the father's parental rights. A trial was held over four days; at its conclusion the judge terminated the father's parental rights to Xander and approved the department's permanency plan for guardianship with the maternal grandparents, with whom Xander (and David) had lived for the majority of the time since removal from the mother's care.

Discussion. 1. Unfitness. The father's argument that the finding of his parental unfitness was not supported by clear and convincing evidence rests mainly on a claim that the judge's subsidiary findings, as they relate to the father's issues with domestic violence, his financial instability, and his criminal history, are erroneous.

Parental rights may not be terminated unless “a judge ․ find[s] 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 Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). A trial judge's determination that a parent is unfit and that termination of parental rights is in the best interests of the child is entitled to substantial deference, and we “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). “A finding is clearly erroneous 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’ ” (citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993).

a. Domestic violence. The father first argues that the judge's failure to consider the mother's “debilitating mental illness” was an abuse of discretion because the mother's mental health was a relevant factor in assessing her credibility and in determining the cause of the violence in the relationship. “Violence within a family is highly relevant to a judge's determination of parental unfitness,” regardless of whether one or both parents is alleged to be abusive, and “[a]s such, a judge must consider issues of domestic violence and its effect upon the children as well as a parent's fitness.” Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005).

Given that the judge had already approved the mother's stipulation to her unfitness and her agreement to the placement of the children in a guardianship with the maternal grandparents, the judge was not required to make findings specific to the mother's unfitness.5 Moreover, extensive evidence at trial supported the judge's conclusion that the father “has serious anger management issues that result in a pattern of domestic violence and verbal abuse.” The judge found that on one occasion, the father strangled the mother and physically prevented her from leaving his apartment. On another occasion, the father kicked the mother and newborn David out of his apartment in the middle of the winter, and he once pushed the mother -- in front of the children -- so hard that she fell backwards. The judge explicitly credited the mother's testimony that the father was the “primary aggressor” when their disagreements became physically violent and that, during one altercation, he hit her hard enough to break a blood vessel in her eye.

Nor do we agree with the father that the judge relied on stale evidence of domestic violence to determine current unfitness. The entirety of the parents’ four-year relationship was marked by physical and verbal abuse; judge was entitled to consider this pattern of violent and threatening behavior. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990) (“a judge can consider a pattern of ‘past conduct to predict future ability and performance’ ”). This history is particularly relevant because the father refused to acknowledge his issues with domestic violence, minimized the impact that violence within a family has on children, and viewed the domestic violence services on his action plan as punishment.6 There was ample support for the judge's conclusion that the father's history of domestic violence “render[ed] him incapable of preventing future abuse,” and was a significant factor in his parental unfitness.

b. Income and housing instability. Next, the father contends that the evidence does not support the judge's finding that he lacks income and housing stability. This argument is no more than a disagreement with the credibility determinations made by the judge regarding the father's testimony. Given the importance of stability in a child's life, it was proper for the judge to consider the father's housing and employment history when determining whether the father could adequately provide for Xander's needs. See Adoption of Nancy, 443 Mass. 512, 517 (2005). The judge's “specific and detailed findings demonstrate[e] that close attention has been given to the evidence.” Adoption of Quentin, 424 Mass. 882, 886 (1997). For example, the judge noted that despite the father's claim that he made over $90,000 a year, the father did not contribute to Xander's day care tuition and failed to provide financial support for Xander's living expenses. We discern no abuse of discretion in the judge's conclusion that the father would be unable to provide the adequate, consistent resources necessary to care for Xander. See Petitions of Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).

c. Criminal history. The father's final challenge to the judge's factual findings, that his criminal history was improperly considered to determine unfitness, is similarly unavailing. To the extent that it impacts the father's parental fitness, his criminal history is “germane.” Care & Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). Here, it was particularly appropriate to consider the father's criminal record because it reflected the father's history of violent and assaultive behavior against the mother. That the father was not convicted of these charges did not make them less relevant to his unfitness, especially where the charged conduct was corroborated by testimony from both the mother and the father.

2. Permanency plan. After determining a parent unfit, “the judge must find that the child's best interests would be served by ending all legal relations between parent and child.” Adoption of Varik, 95 Mass. App. Ct. 762, 767 (2019). “That determination includes consideration of the permanency plan proposed by the department” (citation omitted). Id. Despite the father's argument to the contrary, we are satisfied that the judge's decision to terminate the father's parental rights and approve the department's plan to place Xander in a guardianship with the maternal grandparents was not an abuse of discretion.7 See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

The judge considered the factors under G. L. c. 210, § 3 (c), and found that factors (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), and (xii) demonstrated that the father's unfitness would “continue undiminished into the future with an attendant harmful effect on [Xander].” The judge appropriately took into account the father's “character, temperament, conduct, and capacity to provide for the child,” Adoption of Mary, 414 Mass. 705, 711 (1993), noting that the father “has never engaged in a primary care taking role of Xander.”8 By contrast, the maternal grandparents have cared for Xander for various periods since his birth and became his foster parents after he was removed from the mother's care. “Although [u]nfitness does not mandate a decree of termination, and termination is not a prerequisite for guardianship, it is unfair to leave a child in limbo indefinitely” (quotation and citation omitted). Adoption of Xarina, 93 Mass. App. Ct. 800, 803 (2018). Here, where the father has been largely absent from Xander's life, and the maternal grandparents have been a continuously stable presence, there was no error in the judge's decision.

3. De facto parent relationship. The father claims that he is the de facto parent of the mother's older son, David, and that visitation between the two should have been ordered. The father did not raise this argument below, nor was it raised in his notice of appeal. See Adoption of Gillian, 63 Mass. App. Ct. at 408 n.9. Nevertheless, we briefly address the father's argument.

“A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and ․ performs a share of the caretaking functions at least as great as the legal parent.” Adoption of Garret, 92 Mass. App. Ct. 664, 677 (2018), quoting E.N.O. v. L.M.M., 429 Mass. 824, 829, cert. denied, 528 U.S. 1005 (1999). Our review of the record finds no support for the father's claim. The department was granted custody of David when he was approximately eighteen months old and, prior to that, the father lived with the mother and David for only short and intermittent periods of time. The father has not demonstrated that he has ever been responsible for the day-to-day caretaking of David; instead, the record reveals that that the father's presence in David's life exposed him to violence and abuse. Contrast Care & Protection of Sharlene, 445 Mass. 756, 767 (2006) (de facto parental relationship presumes “loving and nurturing” bond). The father's conduct does not support his claim of de facto parenthood or, by extension, his argument that an order of visitation would be in David's best interests.

4. Judicial bias. Finally, the father raises a due process claim, arguing first that the judge's statements on the first day of trial indicated that she had assessed the outcome of the case before the close of evidence.9 Specifically, the judge asked the father whether he had reconsidered a settlement with the department, because “from what I have just heard now, I am feeling strongly that he -- if there were any offer on the table, he best consider it.” This statement does raise concerns. See Adoption of Tia, 73 Mass. App. Ct. 115, 121-122 (2008) (“it [is] abundantly clear that the finder of fact must keep an open mind until all the evidence is presented and both sides have rested”). However, viewed in the context of the judge's other remarks and the procedural history of the case as a whole, we are not persuaded that the father was denied a fair trial. The judge was aware that the department had attempted to negotiate a settlement with the father, and that the agreement provided for posttermination visitation. The judge also stated that she “under[stood] that sometimes Rome was not built in a day,” and that her final determination would be based on the forthcoming evidence.

The father also takes issue with three instances where the judge interrupted examination of the father to directly question him. “Our cases permit a judge, who in these types of cases is the fact finder, to question witnesses in order to obtain clarification or eliminate confusion.” Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013). The judge's questioning, directed at clarifying certain of the father's responses and ensuring that his testimony was audible, did not exceed this proper scope. Contrast Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810-811 (1996).

Decree affirmed.


3.   The mother stipulated to her parental unfitness, and both the mother and the children have filed briefs urging that the decree be affirmed.

4.   A pseudonym.

5.   We see no indication in the record that the mother's mental health may have affected her testimony at trial. The father's argument that her mental health made her a less reliable witness “amount[s] to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations,” and on that, we must defer to the judge. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

6.   The record does not support the father's contention that he was compliant with the department's family action plan, or that the tasks required of him were unrelated to “a clearly identified parenting deficiency.” All services that the department recommended for the father were tailored to specifically address his violent and verbally abusive behavior, including the recommendation that he engage in individual therapy to “discuss issues that relate to his domestic violence, [and] anger and learn coping skills.” The father was first tasked with attending a batterers’ intervention program in 2017; by the time of trial he had completed only fifty percent of the program and had failed to begin either anger management classes or individual therapy. It was, therefore, not clearly erroneous for the judge to find that the father had failed to engage in, and benefit from, the services designed to address his parental deficiencies.

7.   The father argues that the department, and by implication the judge, erroneously rejected his proposed permanency plan for Xander. At the outset, we note that the father's plan does not appear in the record. However, the judge's findings reflect that she did consider the father's proposal, as it was described through his testimony. Essentially, the father proposed that he be granted custody of both children. Because, at the time of trial, the father's current housing lacked adequate space for the children, the father planned to move into the house where his mother was living with her boyfriend. He anticipated caring for Xander (and presumably David) during the day and, relying on his family members to babysit, while he was working at night.The judge's determination that the father's plan was not in Xander's best interests was well supported by the evidence of his parental unfitness. See Adoption of Hugo, 428 Mass. 219, 226 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

8.   Although not adequately raised in his brief, the father, at oral argument, claimed error in the judge's decision to leave posttermination visitation to the discretion of the guardians. The child's best interests are always the focus when determining whether a judicial order of posttermination visitation is appropriate. A judge may consider the “emotional bonding,” Adoption of Vito, 431 Mass. 550, 562 (2000), between the parent and the child, as well as whether the visits would assist the child in the transition from one family to another. Id. at 564-565. The judge's finding that there was no significant bond between the father and Xander was well supported by the evidence showing that the father had attended only seven supervised visits with the child during the two years that this petition was pending. Given these circumstances, it was proper to entrust the decision of posttermination visitation to the child's legal guardians, who will be in the best position to determine whether he would benefit from future visitation. See Adoption of Ilona, 459 Mass. at 63-64.

9.   The father made no objections at trial, nor did he request that the judge recuse herself, on either of his claims of partiality. See Poly v. Moylan, 423 Mass. 141, 150 (1996), cert. denied sub nom. Poly v. Cargill, 519 Mass. 1114 (1997) (failure to move for recusal at trial taken into consideration on appellate review).

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