NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108

- 1750; (617) 557

- 1030; SJCReporter@sjc.state.ma.us 13

- P

- 780 Appeals Court

ADOPTI ON OF ZAK (and two companion cases 1 )
.

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.

P etitions filed in the Norfolk County Division of the Juvenile Court Department on May 19, 2010 , and September 9, 2011
. The case s w ere heard by Dana Gershengorn , J.

Sherrie Krasner for the father. Deborah Sirotkin Butler for the m other. Kari B. Kipf

- Horstmann , A ssistant A ttorney G eneral, for Department of Children and Families. Ann B e lmelli O'Connor for Zak. Yvette L. Kruger for C arol & 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 order e d posttermination and post adoption visitation for both parents
. 2 The father and m other contend that the termination of their parental rights lack ed evidentiary support. The y also argue that t he judge erred in de nying placement of the children either with the m other's aunt or
f ather's mother. Finally , the m other , but not the f ather,

c hallenges the terms of po st termination and postadoption visitation . S he asserts that the children's best interest s favors more than the three yearly visits the judge ordered
. Carol and Nick cross - appeal. They c ontest t he judge's
orders for post termination and postadoption visitation , argui ng that there should be no post adoption visitation , and assert that the judge erred in failing to consider the e ffect on the children of do mestic violence as it relates to those visit s. Having in mind the tria l judge's careful and thorough findings of fact and rulings of law, we conclude that the judge did not abuse h er discretion in terminating the mother and
f ather's parental rights , or in refusing to place the children

2 The mother is the biological parent of the three children. The f ather 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 o r pa ternal grand mother ; we therefore affirm those portion s of the decree s . However, we
vacate the post termination and postadoption visitation order s and remand for further consideration and specific findings regarding whether post termination and postadoption visitation is in the children's best interest s , given the domestic violence that they have witnessed
. 1. Termination of parental rights
. The mother and f ather

a ssert that the terminat ion of their parental rights was based
up on 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 argu ing and no other violence . The y 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 s upport . We disagree.

" To terminate parental rights to a child and to dispense with parental consent to adoption, a judge m ust 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 f ather was taken from the home and arrested for assault and battery on the m other . 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

- 6 07. Here, c ontrar y to the mother's and f ather's assertions, the j udge 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 f ather admit
occurred
. 4 , 5 For example, in January , 2008 , police responded to the mother and f ather's apa rtment after receiv ing a call for an early morning incident of domestic disturbance. Upon arrival, the police heard a woman scream ing , "H e is hitting me
. " Two hours later, police returned to the home after the f ather called the m 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 disturbance s . The police reported to the residence at approximately 3:00 A . M . o n 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 ( de partment ) , 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 v iolence that the judge credited , but merely a sampling of the evidence that rebuts the parents' claims of error
.5

f ather said the mo ther was "out of c ontrol" and had run out of the a partment 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.
O n February 17, 2010, at about 2 A . M ., pol ice were called again to the mother and f ather's apartment for a domestic disturbance
. Wh en a downstairs neighbor spoke to the police, he reported that it sounded like the male in the apartment was "beating" the female. The f ather was arrested for assault and battery , 6 and, as he was being removed from the apartment, he admonished the m other , "T ell them I didn't hit you." The m other was found in a closet with a shirt over her head. She told the police that the f ather had pushed her ; she had bruis es on he r person . A gain , C arol 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 f ather had kicked
them out of the apartment, a nd "physically pushed [Zak ] out of the apartment." The f ather was then arrested for assault and battery
. In November , 2011, the m other requested and obtained a G. L. c. 209A abuse p revention order against the father. In the affidavit supporting the order , the m other affirmed that she

6 He ultimately was not convicted.6

"was scared for [her] life." I n February of 2012, the m other 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 orde r . At that time, the m other stated that she did not " feel safe." Over time, the m other 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 m other's or f ather's minimiz ation of these incidents
. The judge also found the children had been the subject of physical violence. Zak testified that both parents had beat en him with a belt
. Zak also testified that, on one occasion, the
f athe r 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 childre n have been diagnosed with posttraumatic stress disorder. On this record, we see no error in the judge's finding of a patter n 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 being7

one of its victims, has a prof ound 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 59 5 . See Loebel v. Loebel , 77 Mass. App. Ct. 740, 748 (2010). 7 Moreover, the harm that d omestic violence and unrest caused the children was not the only factor render ing the mother and
f ather unfit
. T he 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 depart ment . . . is relevant to the determination of unfitness ")
. For instance, a fter attending a batterer's program, the f ather claimed to have learn ed that he

7 " The effects of abuse on the child in clude, 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; th e child has problems with peer or family relationships; t he 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 agg ressive 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, 56 0 n.12 (2014)
.8

"is not a batterer." The f ather "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 m other , in her own words, did not "follow up with [individual] counselin g . " By the time of trial, the m other 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 contac t with, and relationsh ip with ," the father, and that she "was being dishones t with her therapist." In addition , the parents demonstrated other concerning behavior s during visits with their children while the children were in foster care. Both the father and m other failed to

a ppear at visits or showed up late to visits, which resulted in those visit s being cancelled after the children had already

a rrived at the visitation center. The mother and f ather also left visits early. During one visit in 2010 , after Carol urinated on herself, the m other 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 sub s e quent d octor's examin atio n showed no signs of abuse. During another visit in 2012 , while holding Nic k , the f ather9

said , " L et me see your penis, I haven't seen you in a long ti me," and looked down his pants . During yet another 2012 visit, the f ather allegedly struck or tapped Nic k 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 par ental rights
. 2. Placement of the children with family members
. The

m other contends that the children's best interest s favor s p lac ement with her aunt

-- the children's biological great

- aunt . The f ather argues for family placement with e ither his mother (their biological grandmother) or the ir maternal great

- aunt . We review the judge's placement de termination for abuse of discretion
. See Adoption of Hugo , 428 Mass. 219, 225

- 2 26 (1998)
. " A biologica l 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

- 6 23 (2002). Here, the judge explicitly credited the testimony of Za k that the m other's

a unt "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 failur e to10

acknowledge the existence of domestic violence b etween the mother and f ather , the judge reasonably found that the aunt was incapable of shielding the children from the mother and f ather's violence
. We ag ree with the judge's conclusion that the "child ren need and deserve a placement free of all violence
. " Accordingly, we see no abuse of discretion in de n ying placement to maternal great

- aunt despite her familial and cultural connections to the children
. 8 , 9 See id
. at 622 (" the grandmother

8 The m o ther also contends that "were [the m other's aunt] and the mother not women of color, [the m other's] three children would have been place d with [the aunt]." The m other 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 m other also con tends that the children, at the time of the judge's decision, were at r isk of becoming "legal orphans" if the m other's rights were termin ated and the children were not placed with family members , because no other adoptive home had yet to be identified at th e 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. I d
. 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 moo t because all the children have been placed together in a pre adoptive home that is a cultural match. Counsel for the m other moved to strike these statements as they are outside the record , and asked us to consider only that evidence before the judge at th e time her decision was made . We do not consider this information , but nevertheless are11

may turn out to be a nominal custodian with the real force in Irene's life being " her m other).
T he judge likewise did not abuse her discretion in decid ing against plac ement with paternal grand mother. I d
. at 622. The
f ather'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 v iolent relationship with Mother. . . . " As the judge reasoned , t h is record enge nder s " no faith that [the] paternal grandmother would be able or willing to adequately safeguard the children from the parents' violent relationship." 3. Visitation
. The m other a sserts t he judge erred in ordering only a minimal three visits per year . C onversely, Carol and Nick argue that the children's exposure to the mother and the f ather's violent relationship militates against an order for post termination visit s . Relying on Custody of Vaughn , 422 Mass. 590 (1996), the c hildren 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 pre adoptive h ome ide ntified at th at time
.12

Here, t he judge made explicit findings that the children had been exposed to a pattern of domestic violence that had

a ffected them adversely , devoting an ent ire section in her
memorandum to that topic
. However, when order ing post termination visit s , she made no mention of the history of domestic violence in the family, its impact on the children , or whether, not withstanding that history, it was in the best interest s of these children to have post adoption visitation with their biological parents
. "Domestic violence is an issue too fundamental and frequently recurring to be dealt with only by impli cation." Vaughn , supra at 599. See Maalouf v. Sali ba , 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 well

being of the children in granting
. . . visitation " to a father who had "resorted to phys ical 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 requir ements 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 post termination, post adopt ion visitation o rders as well.13

Accordingl y, we vacate the order for post termination 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, post termination and postadoption visit s are in the child ren 's best interest s . 10 See Adoption of Helen , 429 Mass. 856, 863 (1999) ("While post termination 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 ch anged circumstances since the date of the original issuance of the decree, such as whether the chi ldren have been placed in a pre adoptive 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 ha nds of adoptive parents).