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13-P-780 Appeals Court

ADOPTION OF ZAK (and two companion cases1).

No. 13-P-780.

Norfolk. December 10, 2014. - June 19, 2015.

Present: Katzmann, Hanlon, & Maldonado, JJ.

Adoption, Parent's consent, Dispensing with parent's consent, 

Visitation rights. Parent and Child, Adoption, Dispensing 

with parent's consent to adoption. Minor, Adoption, 

Visitation rights. Practice, Civil, Adoption.

Petitions filed in the Norfolk County Division of the 

Juvenile Court Department on May 19, 2010, and September 9, 

2011.

The cases were heard by Dana Gershengorn, J.

Sherrie Krasner for the father.

Deborah Sirotkin Butler for the mother.

Kari B. Kipf-Horstmann, Assistant Attorney General, for 

Department of Children and Families.

Ann Belmelli O'Connor for Zak.

Yvette L. Kruger for Carol & another.

 

1 Adoption of Carol and Adoption of Nick. The children's 

names are pseudonyms.
2

MALDONADO, J. The mother and father separately appeal from 

Juvenile Court decrees terminating their parental rights. In 

addition, the judge ordered posttermination and postadoption

visitation for both parents.

2 The father and mother contend that 

the termination of their parental rights lacked evidentiary 

support. They also argue that the judge erred in denying 

placement of the children either with the mother's aunt or 

father's mother. Finally, the mother, but not the father, 

challenges the terms of posttermination and postadoption 

visitation. She asserts that the children's best interests

favors more than the three yearly visits the judge ordered.

Carol and Nick cross-appeal. They contest the judge's

orders for posttermination and postadoption visitation, arguing 

that there should be no postadoption visitation, and assert that 

the judge erred in failing to consider the effect on the 

children of domestic violence as it relates to those visits.

Having in mind the trial judge's careful and thorough 

findings of fact and rulings of law, we conclude that the judge 

did not abuse her discretion in terminating the mother and 

father's parental rights, or in refusing to place the children 

 

2 The mother is the biological parent of the three children. 

The father is the biological father of Carol and Nick. Zak's 

biological father is unknown. The judge terminated Zak's 

unknown father's parental rights. The judge did not order 

visitation with Zak's stepfather.
3

either with their maternal great-aunt or paternal grandmother; 

we therefore affirm those portions of the decrees. However, we 

vacate the posttermination and postadoption visitation orders

and remand for further consideration and specific findings

regarding whether posttermination and postadoption visitation is 

in the children's best interests, given the domestic violence 

that they have witnessed.

1. Termination of parental rights. The mother and father 

assert that the termination of their parental rights was based 

upon a single 2006 incident of domestic violence.

3 They contend

that, aside from this single violent attack, the record supports 

only a pattern of loud arguing and no other violence. They note 

that they present with no other serious shortcomings, such as a 

history of incarceration, mental illness, or substance abuse; 

therefore, they complain, the termination of their parental 

rights lacks record support. We disagree.

"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 the evidence, that the parent 

is unfit to care for the child and that termination is in the 

 

3 In 2006, the father was taken from the home and arrested

for assault and battery on the mother. This incident occurred 

in the presence of Zak and Carol.
4

child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 

601, 606 (2012). "Unless shown to be clearly erroneous, we do 

not disturb the judge's findings, which are entitled to 

substantial deference." Id. at 606-607.

Here, contrary to the mother's and father's assertions, the 

judge found, and the record supports, significantly more

incidents of domestic violence and harm to the children than the 

single 2006 incident that the mother and father admit 

occurred.

4,5 For example, in January, 2008, police responded to

the mother and father's apartment after receiving a call for an 

early morning incident of domestic disturbance. Upon arrival, 

the police heard a woman screaming, "He is hitting me." Two 

hours later, police returned to the home after the father called 

them again; they found the apartment in disarray. Police were 

again called to the home on August 3 and August 8 of that year 

for reports of domestic disturbances. The police reported to 

the residence at approximately 3:00 A.M. on August 8. The 

 

4 At trial, counsel for the parents argued that it was 

improper to admit certain records produced by the Department of 

Children and Families (department), including police reports and 

court interview records; the judge allowed their motions in part

and denied them in part. On appeal, neither the mother nor the 

father challenges the judge's findings on the ground that they 

rely on excluded or excludable evidence.

5 We do not list here all incidents of domestic violence 

that the judge credited, but merely a sampling of the evidence 

that rebuts the parents' claims of error.
5

father said the mother was "out of control" and had run out of 

the apartment naked. Police found that a glass had been smashed 

against a wall and broken glass remained shattered on the 

apartment floor. Zak and Carol were in the home at that time.

On February 17, 2010, at about 2 A.M., police were called 

again to the mother and father's apartment for a domestic 

disturbance. When a downstairs neighbor spoke to the police, he 

reported that it sounded like the male in the apartment was 

"beating" the female. The father was arrested for assault and 

battery,

6 and, as he was being removed from the apartment, he 

admonished the mother, "Tell them I didn't hit you." The mother 

was found in a closet with a shirt over her head. She told the 

police that the father had pushed her; she had bruises on her 

person. Again, Carol and Zak were present during the incident. 

Roughly two hours later, police were called again to the 

apartment. The mother, Carol, and Zak met the police outside 

the apartment. The mother claimed that the father had kicked 

them out of the apartment, and "physically pushed [Zak] out of 

the apartment." The father was then arrested for assault and 

battery.

In November, 2011, the mother requested and obtained a

G. L. c. 209A abuse prevention order against the father. In the 

affidavit supporting the order, the mother affirmed that she 

 

6 He ultimately was not convicted.
6

"was scared for [her] life." In February of 2012, the mother

asked to have the order vacated; however, in March, 2012, one 

month later and only two months before trial, she obtained a

second c. 209A order. At that time, the mother stated that she 

did not "feel safe." Over time, the mother has gone to domestic 

violence shelters with the children and has fled with the 

children to her aunt's house late in the evening. The trial 

judge did not credit either the mother's or father's 

minimization of these incidents.

The judge also found the children had been the subject of 

physical violence. Zak testified that both parents had beaten

him with a belt. Zak also testified that, on one occasion, the 

father struck him, causing him to fall back and hit a bedframe. 

Zak testified that he was scared when his parents argued, and he 

stated that he was "done with the fighting." Carol stated to a 

court investigator that she feels "sad and scared" when her 

parents argue and fight, and that the scariest fighting is when 

"they push and fight." Both children have been diagnosed with 

posttraumatic stress disorder.

On this record, we see no error in the judge's finding of a

pattern of violence and verbally abusive behavior that affected

the children adversely. See, e.g., Care & Protection of 

Lillith, 61 Mass. App. Ct. 132, 137-142 (2004). "It is well 

documented that witnessing domestic violence, as well as being 
7

one of its victims, has a profound impact on children." Custody 

of Vaughn, 422 Mass. 590, 599 (1996). "[A] child who has been 

either the victim or the spectator of such abuse suffers a 

distinctly grievous kind of harm." Id. at 595. See Loebel v. 

Loebel, 77 Mass. App. Ct. 740, 748 (2010).7

Moreover, the harm that domestic violence and unrest caused 

the children was not the only factor rendering the mother and 

father unfit. The judge found that "[b]oth parents have failed 

to consistently participate or engage in services" "offered

. . . by the Department [of Children and Families 

(department)]," and that "the parents' behaviors have not 

changed" from the services they did receive. See, e.g., 

Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005) ("refusal 

to cooperate with the department . . . is relevant to the 

determination of unfitness"). For instance, after attending a 

batterer's program, the father claimed to have learned that he 

 

7 "The effects of abuse on the child include, but are not 

limited to, 'the child is afraid of the abusive parent; the 

child is having problems with his or her performance at school; 

the child has exhibited regressive behavior; the child has 

problems with peer or family relationships; the child has been 

experiencing nightmares and sleep disturbances; the child has 

frightening memories from witnessing the abuse, the child 

exhibited extreme distress at the time of the incident from 

witnessing the abuse; or, the child has exhibited hostile or 

aggressive behavior toward others.' Commentary to § 12:05A of 

the Guidelines for Judicial Practice: Abuse Prevention 

Proceedings (2014)." K.A. v. T.R., 86 Mass. App. Ct. 554, 560 

n.12 (2014).
8

"is not a batterer." The father "has not benefitted in any 

significant way from therapy"; his "work with [his therapist] on 

Father's issues of power and control is not complete," nor is 

his "work with [his therapist] on conflict resolution between 

Father and Mother." The mother, in her own words, did not 

"follow up with [individual] counseling." By the time of trial, 

the mother was not partaking in domestic violence services, nor

was she attempting to engage in those services. The judge also 

found that "the Mother was lying to the [department's] workers 

about her contact with, and relationship with," the father, and 

that she "was being dishonest with her therapist."

In addition, the parents demonstrated other concerning 

behaviors during visits with their children while the children

were in foster care. Both the father and mother failed to 

appear at visits or showed up late to visits, which resulted in 

those visits being cancelled after the children had already 

arrived at the visitation center. The mother and father also 

left visits early. During one visit in 2010, after Carol 

urinated on herself, the mother took her to a restroom, pulled 

down her pants, and stated she observed black marks in her 

vaginal area, prompting the agency to call the police because 

the mother believed Carol was being sexually abused. The 

subsequent doctor's examination showed no signs of abuse. 

During another visit in 2012, while holding Nick, the father 
9

said, "Let me see your penis, I haven't seen you in a long 

time," and looked down his pants. During yet another 2012

visit, the father allegedly struck or tapped Nick on the face 

for refusing to take water, which resulted in the department 

filing a G. L. c. 119, § 51A, report against the father. The 

judge's subsidiary findings of fact amply support her decision 

to find the parents unfit and to terminate their parental 

rights.

2. Placement of the children with family members. The 

mother contends that the children's best interests favors

placement with her aunt -- the children's biological great-aunt. 

The father argues for family placement with either his mother

(their biological grandmother) or their maternal great-aunt.

We review the judge's placement determination for abuse of 

discretion. See Adoption of Hugo, 428 Mass. 219, 225-226 

(1998). "A biological and/or a cultural match between child and 

caretaker is a desirable aim; but it is a single factor among 

many. It cannot be permitted to generate a placement decision 

that is not otherwise in the child's best interests." Adoption 

of Irene, 54 Mass. App. Ct. 613, 622-623 (2002). Here, the 

judge explicitly credited the testimony of Zak that the mother's 

aunt "struck the children." Moreover, based on the aunt's

"passivity in the face of overwhelming information about the 

violence in the parents' relationship," including her failure to 
10

acknowledge the existence of domestic violence between the 

mother and father, the judge reasonably found that the aunt was 

incapable of shielding the children from the mother and father's 

violence. We agree with the judge's conclusion that the

"children need and deserve a placement free of all violence."

Accordingly, we see no abuse of discretion in denying placement 

to maternal great-aunt despite her familial and cultural 

connections to the children.

8,9 See id. at 622 ("the grandmother 

 

8 The mother also contends that "were [the mother's aunt] 

and the mother not women of color, [the mother's] three children 

would have been placed with [the aunt]." The mother cites no 

evidentiary support for this argument, and therefore it does not 

rise to the level of appellate argument. See Mass. R.A.P. 

16(a)(4), as amended, 367 Mass. 921 (1975); Adams v. Adams, 459

Mass. 361, 392 (2011).

9 The mother also contends that the children, at the time of 

the judge's decision, were at risk of becoming "legal orphans" 

if the mother's rights were terminated and the children were not 

placed with family members, because no other adoptive home had 

yet to be identified at the time of trial. The judge did not 

abuse her discretion on this basis. "Although a factor, the 

absence of imminent adoption prospects does not, by itself, 

invalidate a decision to terminate parental rights." Adoption 

of Jacques, 82 Mass. App. Ct. 601, 610 (2012). The judge did 

not abuse her discretion, as the judge found that the children's 

needs for "permanence and stability" would not be met by 

familial placements. Id. See Adoption of Nancy, 443 Mass. 512, 

516-518 & n.7 (2005).

Counsel for the department and for the children also 

represented at oral argument and in a letter submitted after 

argument that this issue was moot because all the children have 

been placed together in a preadoptive home that is a cultural

match. Counsel for the mother moved to strike these statements 

as they are outside the record, and asked us to consider only 

that evidence before the judge at the time her decision was 

made. We do not consider this information, but nevertheless are 
11

may turn out to be a nominal custodian with the real force in 

Irene's life being" her mother).

The judge likewise did not abuse her discretion in deciding

against placement with paternal grandmother. Id. at 622. The 

father's mother testified, and the judge found, that "she has 

never set boundaries in the past with Father," and, 

significantly, that she "is unable or unwilling to accept that 

Father has engaged in a violent relationship with Mother. . . ." 

As the judge reasoned, this record engenders "no faith that 

[the] paternal grandmother would be able or willing to 

adequately safeguard the children from the parents' violent 

relationship."

3. Visitation. The mother asserts the judge erred in 

ordering only a minimal three visits per year. Conversely, 

Carol and Nick argue that the children's exposure to the mother 

and the father's violent relationship militates against an order

for posttermination visits. Relying on Custody of Vaughn, 422 

Mass. 590 (1996), the children contend that the judge erred in 

failing to make specific findings regarding the impact of 

domestic violence on the appropriateness of posttermination 

visitation. We agree.

 

satisfied, under all of the circumstances of this case, that the 

judge committed no abuse of discretion in declining to place the 

children with family, even when there was no other preadoptive 

home identified at that time.
12

Here, the judge made explicit findings that the children 

had been exposed to a pattern of domestic violence that had 

affected them adversely, devoting an entire section in her 

memorandum to that topic. However, when ordering

posttermination visits, she made no mention of the history of 

domestic violence in the family, its impact on the children, or 

whether, notwithstanding that history, it was in the best 

interests of these children to have postadoption visitation with 

their biological parents. "Domestic violence is an issue too 

fundamental and frequently recurring to be dealt with only by 

implication." Vaughn, supra at 599. See Maalouf v. Saliba, 54 

Mass. App. Ct. 547, 551 (2002), where we reversed an order of 

the Probate and Family Court on the ground that the record was 

"unclear whether [the judge] considered the safety and wellbeing of the children in granting . . . visitation" to a father 

who had "resorted to physical violence on four occasions . . . . 

[The judge also had] concluded that the mother had suffered 

abuse at the hands of the father." That case addressed 

specifically the requirements of G. L. c. 208, § 31A, which does 

not, on its face, apply to this termination of parental rights 

case. Nonetheless, we conclude that its reasoning provides a 

useful and important framework for considering posttermination, 

postadoption visitation orders as well.
13

Accordingly, we vacate the order for posttermination visits 

and remand the matter to the trial judge for consideration and 

findings whether, in light of the history of domestic violence 

witnessed by the children, in addition to all other relevant 

factors, posttermination and postadoption visits are in the 

children's best interests.

10 See Adoption of Helen, 429 Mass. 

856, 863 (1999) ("While posttermination visitation may be 

allowed, the proper focus is on the best interests of the 

child").

So ordered.

 

10 We note that, on remand, the judge is not prevented from 

considering changed circumstances since the date of the original 

issuance of the decree, such as whether the children have been 

placed in a preadoptive home. Adoption of Vito, 431 Mass. 550, 

557 n.15 (2000) ("a judge . . . . may revisit the question of 

postadoption contact, if necessary, for the best interests of 

the child due to changed circumstances."). See Adoption of 

Gwendolyn, 29 Mass. App. Ct. 130, 139 (judge properly left 

matter of visitation in hands of adoptive parents).