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17-P-922 Appeals Court

ADOPTION OF ULRICH

(and four companion cases1).

 

No. 17-P-922.

Suffolk. November 8, 2018. - January 9, 2019.

Present: Green, C.J., Meade, & Sacks, JJ.

Adoption, Dispensing with parent's consent. Minor, Adoption. 

Parent and Child, Adoption, Dispensing with parent's 

consent to adoption. Practice, Civil, Adoption, Assistance 

of counsel, Stay of proceedings.

Petitions filed in the Suffolk County Division of the 

Juvenile Court Department on December 27, 2012, and March 18, 

2013. 

The case was heard by Stephen M. Limon, J. 

A motion to stay appellate proceedings was considered in 

the Appeals Court by Hanlon, J.

Deborah D. Wolf for Sarah & another.

Briana R. Cummings for Ulrich & another.

Robert E. Curtis, Jr., for the mother.

Erin Staab, Assistant Attorney General, for Department of 

Children and Families.

Dana C. Chenevert for Ellen.

 

1 Adoption of Charles; Adoption of Sarah; Adoption of Amy; 

and Adoption of Ellen. The children's names are pseudonyms. 
2

GREEN, C.J. The mother (joined on appeal by four of the 

children)2 appeals from decrees of the Juvenile Court deeming her 

unfit to parent five of her children and terminating her 

parental rights.3 The mother further contends that a single 

justice of this court erred in denying her motion to stay this 

appeal to allow her to pursue a motion for new trial in the 

Juvenile Court. We affirm the denial of the mother's motion for 

a stay, rejecting the mother's contention that such requests 

should presumptively be allowed. In addition, after careful 

consideration of the record and the judge's findings, we affirm 

the decrees. 

Background. The mother has a criminal history dating to 

2004, including convictions of assault by means of a dangerous 

weapon and assault and battery on a police officer. She has 

also been the subject of five abuse prevention orders issued 

pursuant to G. L. c. 209A, brought by five different 

individuals. On December 27, 2012, the Department of Children 

and Families (department) filed a care and protection petition 

on behalf of Ulrich (born in 2006), Charles (born in 2008), 

 

2 At trial, all five children supported termination of the 

mother's parental rights. On appeal, the four older children 

(Ulrich, Charles, Sarah, and Amy) now argue that termination was 

improper. Ellen still supports the termination. 

3 The judge also terminated the parental rights of the 

father; the father did not appeal from that determination.
3

Sarah (born in 2009), and Amy (born in 2011), after the mother

was arrested for stabbing the father with a pair of scissors on 

December 26, 2012.4 The four children were present in the home 

during the incident and witnessed the stabbing. On the night of 

the incident, the mother admitted to police that she had stabbed 

the father.5 The Juvenile Court judge initially granted 

temporary custody of the four children to the maternal 

grandmother; later, on January 10, 2013, the judge granted 

temporary custody to a paternal aunt. However, after evidence 

of sexual and physical abuse of at least some of the children 

within the paternal aunt's home became apparent, the department 

obtained custody of the four children on May 20, 2013.

Ellen was born in March, 2013. In August, 2013, the mother

(believing that the father had engaged in a romantic 

relationship with a neighbor's daughter) forced her way into the

neighbor's apartment while making threats and brandishing a 

knife. The mother and the neighbor then went to the neighbor's 

daughter's house, where the mother attempted to break down the 

door. After arriving at the scene, police detected a strong 

 

4 Ellen was added to the petition after she was born in 

March, 2013, but remained in the mother's care until August, 

2013.

5 While at the hospital after the stabbing, the father told 

a social worker that he had cut himself accidentally. At trial

in the present case, the mother denied having stabbed the 

father. 
4

odor of alcohol on the mother's breath, and a patfrisk 

discovered a seven-inch serrated knife in her pocketbook. The 

neighbor identified it as the knife with which the mother 

previously had threatened her. Following that incident, Ellen

was removed from the mother's custody.

In July, 2013, Ulrich, who turned ten during the trial, 

and Charles, who turned eight during the trial, were both placed 

in a residential treatment facility (residential facility). By 

the time of trial, Ulrich had been placed in a foster home. 

Sarah, nearly seven years old by the end of trial, and Amy, who 

turned five years old during trial, were placed together in the 

department's foster care in May, 2013. In November, 2013, Sarah

and Amy were placed in separate foster homes. Ellen was placed 

in a kinship foster home in February, 2014, where she remained 

at the time of trial. We reserve additional details concerning 

the individual children's circumstances for our discussion of 

the termination decrees concerning each of them.

As part of her service plan, the mother was required to 

undergo a psychological evaluation, the results of which were 

received by the department on November 7, 2013. The mother was 

diagnosed with mood disorder, posttraumatic stress disorder, and 

polysubstance dependence. As of November, 2013, the mother had 

been working with an in-home therapist and was making some 

progress with regard to childhood trauma and her relationship 
5

with the father. In January, 2014, the department referred the 

mother to a residential program where she could be reunited with 

Sarah, Amy, and Ellen, but the mother chose not to enter that 

program. The mother stipulated to her unfitness to parent the 

children on March 26, 2014. By March, 2014, the mother's inhome therapist stated that the mother had been meeting with her 

on a weekly basis. In September, 2014, the mother entered a 

residential substance abuse treatment facility but was soon 

asked to leave after that facility designated her as a safety 

risk. By April, 2015, the mother was deemed to be in full 

compliance with her service plan and had improved her anger

management and communication skills. She had also completed a 

parenting course and engaged in a parenting support group, and 

there were no longer substance abuse concerns. After a home 

visit on April 2, 2015, the court investigator reported that the 

mother's four-bedroom apartment was extremely clean and well 

kept, furnished with beds for the children, and was "nothing 

short of impressive."6 However, at the time of trial, the mother 

had not seen her mental health therapist in several months and

missed a scheduled home visit the week before trial. 

Visits between the mother and children ranged from

successful to disastrous. The mother had a successful visit 

 

6 The mother had previously refused a home visit in 

December, 2014.
6

with Sarah, Amy, and Ellen on September 29, 2014. She had

successful visits with Ulrich and Charles individually at the 

residential facility on December 16, 2014. She also had 

successful visits with Ulrich and Charles individually at the 

residential facility on January 30, 2015, and then with Sarah, 

Amy, and Ellen together on the same day. On December 23, 2015, 

the mother had a Christmas visit with all the children at the 

residential facility, which went well.7 

However, there were also a number of tumultuous visits. A 

June 30, 2014, visit ended with three of the children running 

out of the visitation room and several of the children crying. 

On July 23, 2014, the mother had a visit with all five children. 

At that visit, the children were difficult to handle, several 

were running around the visitation area and crying, and Charles

told one of his sisters that he was not going to talk to the 

mother "until she changes her attitude." In response, the 

mother told Charles, "I am fucking done with you. This is my 

last visit with you. I don't want to see you again." After a 

social worker cautioned the mother against aiming obscenities at 

the children, the mother stated, "Don't tell me about my fucking 

kids, you don't have kids, so you don't know." The mother also 

 

7 At one point during this visit, a social worker had to 

console the mother after she was found crying in the bathroom. 

There was nothing in the record indicating that this negatively 

affected the visit for the children. 
7

said, "[T]hese kids aren't [my] issue, let their workers deal 

with them, I'm fucking done." Three weeks later the department 

informed the mother that her visitation rights would be 

suspended as a result of this visit. At that time, the mother 

stated that she did not remember anything negative about the 

visit, and at trial she testified that she did not swear at the

children, only agreeing with the statement that the visit "got 

. . . a little out of control."8

On March 10, 2015, a visit between the mother, Sarah, and 

Amy went well until the mother whispered something to the girls 

that caused them to cry throughout the entire twenty-minute 

return ride to their day care program. On June 12, 2015, the 

mother had a visit with Ulrich and Charles, at which Ulrich

became angry with the mother, refused to talk with her, and left 

early. A visit with all the children on August 20, 2015, to 

celebrate Ulrich's birthday ended with Charles throwing a 

tantrum and being carried away by staff members.9 At a visit on 

March 3, 2016, after Charles had left the visitation room 

crying, the mother pulled him from the arms of a counselor --

 

8 For a brief time after this visit the department allowed 

the mother to visit only with Sarah, Amy, and Ellen.

9 Charles's tantrum occurred after the mother brought him a 

pet fish -- without consulting the residential facility and 

against its "no pets" policy -- and Charles learned that he 

would not be allowed to keep it. 
8

making physical contact with the counselor -- and brought him

back into the visitation room while he gave the counselor a 

"thumbs down" signal. On June 23, 2016 -- one week before trial 

began -- the mother ended a visit after thirty-five minutes 

because the children were not taking part in an activity she had 

organized for them. Additionally, a visit scheduled with the 

girls for November 24, 2014, had to be canceled after the mother 

failed to confirm the visit on the preceding day.

The trial concerning the mother's and father's parental 

rights was held in the summer of 2016, and on November 23, 2016, 

the judge issued decrees terminating their parental rights. The 

mother appealed.

Discussion. 1. Motion for stay. After the mother's 

appeals from the termination decrees entered on our docket, the 

mother moved to stay appellate proceedings in order to raise a 

claim of ineffective assistance of counsel through a motion for 

new trial in the Juvenile Court. A single justice of this court 

denied the mother's motion. On appeal from that denial, the 

mother contends that the single justice should have allowed her 

to pursue the new trial motion in the Juvenile Court, without 

regard to a threshold assessment of her prospects for success.

A parent facing termination of parental rights is entitled 

to the effective assistance of counsel. See G. L. c. 119, § 29; 

Care & Protection of Stephen, 401 Mass. 144, 149-150 (1987). In 
9

assessing a claim of ineffective assistance of counsel in such a 

case, we apply the familiar two-part test established in 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Consistent 

with the approach taken in criminal cases, "[a]bsent exceptional 

circumstances, we do not review claims of ineffective assistance 

of counsel for the first time on appeal." Care & Protection of 

Stephen, supra at 150. Instead, where a party wishes to pursue 

a claim of ineffective assistance of counsel after the case has 

entered in an appellate court, the preferred approach is for the 

party claiming ineffective assistance to move to stay the appeal 

in order to allow prosecution of a motion for new trial in the 

trial court. See Commonwealth v. Montgomery, 53 Mass. App. Ct. 

350, 353 (2001).

Allowance of a motion to stay is not automatic, however:

"Generally, the issue presented with respect to a motion 

for a stay of the appeal is whether the interests of 

fairness, balanced with the interests of judicial economy, 

best will be served by giving priority to a trial court 

resolution of the defendant's new trial motion. Several 

factors favor the grant of stays: the possibility that the 

motion for a new trial will be allowed; the economy of 

consolidating an appeal from the denial of a motion for a 

new trial with the direct appeal, see Commonwealth v. 

Smith, 384 Mass. 519, 524 (1981); the advantages to the 

defendant of such consolidated review of a motion for a new 

trial over postappeal review; and the general systemic 

benefits of earlier retrials in cases in which a motion for 

a new trial is allowed. Among the reasons for a denial of 

a request for a stay are the similarities of issues raised 

in the motion for a new trial and in the direct appeal, and 

a reluctance to delay appellate review when briefing has 

been completed and the case has been, or is ready to be, 

scheduled for oral argument." (Footnote omitted.)
10

Id. at 354.

Additional considerations weigh prominently in child 

welfare cases, particularly the interest in the speedy 

resolution of child custody matters. See Lassiter v. Department 

of Social Servs., 452 U.S. 18, 32 (1981); Custody of Two Minors, 

396 Mass. 610, 611 n.2 (1986).

Against this background, we discern no error of law or 

abuse of discretion in any choice by the single justice to 

consider the prospects of the mother's new trial motion for 

success in the Juvenile Court if a stay were granted; indeed, 

such consideration is entirely consistent with the consideration 

of judicial economy identified in Montgomery as a balancing 

factor and the interest in prompt resolution of custody. 

Placing the appellate process on hold to allow prosecution of a 

fruitless new trial motion in the trial court would serve 

neither interest. We accordingly reject the mother's contention 

in its broadest form, insofar as it assigns error to the mere 

evaluation by the single justice of the likelihood of her motion 

for new trial to be successful on its merits.

We likewise discern no error of law or abuse of discretion 

by the single justice to the extent she determined that the 

mother's claim of ineffective assistance showed an inadequate 

prospect for success to justify a stay of appellate proceedings 
11

to allow her to pursue it. The basis of the mother's claim of 

ineffective assistance of counsel is the failure of her trial 

counsel to call the maternal grandmother as a trial witness, to 

offer testimony regarding (1) the 2012 domestic violence 

incident that prompted the removal of the four older children 

from her custody, and (2) the sexual assault of Ulrich and 

Charles in May, 2013, while they were in the care of a paternal 

aunt. On the present record we discern no basis on which to 

conclude that trial counsel's decision not to call the maternal 

grandmother as a witness concerning those two matters "was 

manifestly unreasonable when made" (quotation omitted). 

Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008). 

As a threshold matter, we observe that the mother accused the 

maternal grandmother of having fabricated the accusation of 

sexual assault against Ulrich and Charles, and that the maternal 

grandmother obtained an abuse prevention order against the 

mother, pursuant to G. L. c. 209A, in 2011. Accordingly, it 

would have been entirely reasonable for trial counsel to decide 

not to call the maternal grandmother as a witness in order to 

avoid the risk that the department or counsel for the children 

might elicit testimony from her on cross-examination that would 

be damaging to the mother. That the maternal grandmother had 

direct knowledge of a significant instance of abuse does not 

establish that she was a critical witness concerning the 
12

children's resulting needs and the mother's ability or inability 

to address them.

In any event, the evidence of the mother's unfitness was 

overwhelming, without regard to the matters about which the 

mother now claims the maternal grandmother should have 

testified. It is accordingly unlikely that the decision of 

trial counsel about which the mother now complains had any 

bearing on the result of the trial. See Adoption of Azziza, 77 

Mass. App. Ct. 363, 368 (2010).

We offer one final observation in response to the mother's 

protest that she did not fully present the parameters of her 

claim of ineffective assistance in her motion for a stay because 

she was unaware that she would be required to satisfy the single

justice of the potential merit of her proposed new trial motion. 

For the reasons we have described above, we are satisfied that 

the present record was adequate to permit the single justice to 

conduct an assessment of the mother's claim of ineffective 

assistance, despite its limited scope. But we acknowledge that 

no published authority has previously expressly recognized a 

gatekeeping role of the type we have approved in this opinion 

for the single justice, in deciding whether to allow a stay of 

appellate proceedings so that a parent in a child welfare case 

can pursue a new trial motion in the trial court. In future 

cases, parents who seek to stay appellate proceedings in order 
13

to pursue a motion for new trial in the trial court, whether 

based on a claim of ineffective assistance of counsel or on 

other grounds, should include sufficient evidentiary material 

and argument to allow the single justice to make an informed 

threshold assessment whether the new trial motion has a 

sufficiently strong likelihood of success on the merits to 

justify the resulting delay in completion of appellate review. 

And the single justice, in performing the gatekeeping role, 

should carefully balance the importance of a prompt resolution 

of the case with the possible merit of the proposed new trial 

motion, while recognizing that applying too stingy a filter 

would risk prolonging final resolution even further if a 

postappeal new trial motion finds success.

2. Unfitness and the children's best interests. A

person's right to parent her child can be terminated only if a 

judge determines that she is unfit and that termination is in 

the best interests of the child. See Adoption of Nancy, 443 

Mass. 512, 514 (2005). "These twin determinations are not 

separate and distinct but, instead, are 'cognate and connected 

steps' that 'reflect different degrees of emphasis on the same 

factors.'" Adoption of Malik, 84 Mass. App. Ct. 436, 438 

(2013), quoting Adoption of Cesar, 67 Mass. App. Ct. 708, 712-

713 (2006). "[P]arental unfitness must be proved by clear and 

convincing evidence," Adoption of Rhona, 57 Mass. App. Ct. 479, 
14

488 (2003), and we review the judge's determination of the 

child's best interests for an abuse of discretion. Adoption of 

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P.

v. George P., 526 U.S. 1034 (1999). "Subsidiary findings must 

be supported by a preponderance of the evidence, Adoption of 

Helen, 429 Mass. 856, 859 (1999), and none of the findings will 

be disturbed unless clearly erroneous. Adoption of Greta, 431 

Mass. 577, 587 (2000). Custody of Eleanor, 414 Mass. 795, 799 

(1993). We review the judge's findings with substantial 

deference, recognizing [his] discretion to evaluate a witness's 

credibility and to weigh the evidence. Adoption of Quentin, 424 

Mass. 882, 886 (1997)." Adoption of Nancy, supra at 515.

The judge's subsidiary findings of fact amply support his 

determination that the mother was unfit to parent each of the 

children separately and together.10 The record shows that the 

mother had a difficult time managing her anger and that this 

issue had a significant effect on the children. See 

Guardianship of a Minor, 1 Mass. App. Ct. 392, 396 (1973) 

("Violence of temper . . . might constitute unfitness"). The 

four oldest children involved in this appeal were removed from 

the mother's care after she stabbed the father during an 

 

10 We note that, while the judge's findings support the 

termination of parental rights as to the children individually 

and together, the mother was seeking to reunify with all five of 

the children at the same time. 
15

argument, and the youngest child was removed after the mother 

threatened a neighbor with a knife and then attempted to break 

down a woman's door because she suspected that the father was 

being unfaithful. The mother was also asked to leave a 

substance abuse treatment facility because she was deemed to be 

a safety risk. Additionally, the mother displayed an aggressive 

attitude with the children and counselors at a number of visits, 

including one incident where she shouted obscenities at one of 

the children along with telling him that "I don't want to see 

you again." At the same visit, after becoming frustrated with 

the children, the mother stated, "[T]hese kids aren't [my] 

issue, let their workers deal with them, I'm fucking done." See 

Adoption of Adam, 23 Mass. App. Ct. 922, 923 (1986) (negative 

statements directed at child can be evidence of parental 

unfitness). Contrary to the mother's contention that this

evidence concerning her temper is stale and not an indication of 

her current or future fitness, a judge can consider a pattern of 

"past conduct to predict future ability and performance." 

Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990). Here, 

the judge did not err in using the mother's repeated prior

conduct to predict her future interactions with the children.

Furthermore, although the mother did engage in some of the 

services offered by the department and was at one point fully 

compliant with her service plan, mere participation in the 
16

services does not render a parent fit "without evidence of 

appreciable improvement in her ability to meet the needs of the 

child[ren]." Adoption of Terrence, 57 Mass. App. Ct. 832, 835-

836 (2003). See Adoption of Jacques, 82 Mass. App. Ct. 601, 608 

(2012) ("judge was entitled to consider the evidence of [the 

mother's] recent improvements within the context of her earlier

and continuing deficits"). At trial, the mother was unable to 

confirm that she completed an anger management course. She also 

had not attended therapy during the months leading up to trial. 

She was not attending a domestic violence program at the time of 

trial and had not provided her social worker with any 

certificate of completion from a prior domestic violence 

program. Nor did her actions indicate that her parenting 

abilities were improved by the classes she did attend. The 

mother's inability to consistently attend, complete, and benefit 

from classes required by her service plan is "relevant to the 

determination of unfitness." Petitions of the Dept. of Social 

Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 

(1987). See G. L. c. 210, § 3 (c) (ii).

The evidence also shows that the mother minimized -- and 

often completely denied -- the existence of extremely troubling 

conditions affecting the children. After being confronted with 

evidence that Ulrich and Charles were sexually abused while in 

the care of a paternal aunt, the mother denied that any such 
17

conduct occurred and stated that the allegations were concocted 

by the maternal grandmother. When told of the allegations that 

several of the children were being physically abused in the 

paternal aunt's home, the mother failed to investigate or take 

any other action simply because she had no proof that the 

allegations were true, even though "she had a suspicion someone 

may have hit" one of the children.11 See G. L. c. 210, § 3 (c)

(viii). She also refused to acknowledge at trial that Charles

was having gender identity issues, stating that he "may have" 

issues and that she wasn't "too sure because he still identifies 

himself as a boy." All of this evidence clearly and

convincingly establishes that the mother was unfit to parent the 

children. See Adoption of Rhona, 57 Mass. App. Ct. at 488.

Additionally, the judge found, on clear and convincing

evidence, that it was in the best interests of each child to 

terminate the mother's parental rights. See Adoption of Ilona, 

459 Mass. 53, 59 (2011). Ulrich had been diagnosed with 

attention deficit hyperactivity disorder and posttraumatic 

stress disorder, and he had been hospitalized several times for 

aggressive and self-harming behavior. Ulrich's substantial 

 

11 The mother argues that these incidents should not be used 

as evidence demonstrating her unfitness, as the children were 

not in her care when they occurred. However, the issue bearing 

on her unfitness is not that the abuse occurred, but her 

inaction after learning of it.
18

mental health issues were often exacerbated by visits or 

telephone calls from the mother. He required stability, and 

after his placement in the residential facility, his performance 

in school improved dramatically. At the time of trial, Ulrich

had been placed in the foster home of a former residential 

facility employee and was happy there. After his placement he 

displayed a strong bond with his foster mother. The department

approved the foster home as an adoptive placement for Ulrich.

Charles "suffered from 'clinically significant' levels of 

anxiety and depression, [and has been] diagnosed with 

posttraumatic stress disorder." He also demonstrated "confusion 

about his gender," had "difficulty deescalating," and struggled 

in chaotic environments. He required the stability of a twoparent home with no other children in order to ensure that he 

would receive the attention that he needed to cope with the 

trauma he has experienced. The mother's decision to yell and 

swear at Charles, her failure to acknowledge his mental health 

issues, and her failure to consistently attend services all 

reflect negatively on her ability to ensure that Charles would 

be afforded the environment he needs. The department's 

permanency plan for Charles is to recruit a preadoptive home for 

him.

Sarah also had been diagnosed with mental health issues, 

including posttraumatic stress disorder and reactive attachment 
19

disorder. She had difficulties controlling her anger and had 

ongoing tantrums in school and at home when she did not get her 

way. While being driven to visits with her family, Sarah

relayed incidents of domestic violence between the mother and 

the father to social workers. She had been receiving services 

from a behavioral specialist since February, 2014, and sometime 

before February, 2015, began attending a therapy program for

children who have witnessed violence. At the time of trial 

Sarah remained in the same foster home where she had been for 

over two years. This home provided her with a great deal of 

affection, care, and support. Sarah expressed a strong bond 

with her entire foster family, and her foster mother was eager 

to help Sarah with her therapy. The department had approved her

foster mother as an adoptive parent.

Amy was less than two years old when she was removed from 

her parents' care and showed fewer symptoms of mental health 

problems than her older siblings. She exhibited anger issues 

when she was younger, but by the time of trial she had developed 

good coping skills and was fitting in well at school. Amy was 

placed in a foster home in November, 2013. At the time of 

trial, she had been living in the same foster home for over two 

years, was happy and comfortable in the home, showed a 

significant bond with her foster mother, and had an affectionate 

relationship with the other members of her foster family. Sarah
20

and Amy were able to visit one another, and their foster 

families have relied upon each other to watch both girls when 

necessary. Amy's foster home was approved by the department as 

a preadoptive home.

Ellen was only a few months old when she was removed from 

her parents' custody and displayed none of the mental health 

issues exhibited by her older siblings. Three years old at the 

time of trial, she had been placed in a kinship foster home, and 

the mother testified at trial that the foster home provided the 

type of environment that Ellen required. She exhibited a strong 

bond with the foster family and was happy and healthy at the 

time of trial. She received early intervention services, and 

her foster family had shown a willingness to participate in 

visits with Sarah's and Amy's foster families. The department 

approved this foster home as Ellen's preadoptive home.

This evidence firmly supports the judge's conclusion that 

the mother was unfit to parent each child and that it was in the 

best interests of each child for the mother's parental rights to 

be terminated. See Adoption of Nancy, 443 Mass. at 514;

Adoption of Hugo, 428 Mass. at 225.

3. Other issues. The four older children raise several 

additional arguments contesting the termination of the mother's 

parental rights. We find each of these arguments unpersuasive 

and address each briefly.
21

Sarah and Amy (girls) challenge the judge's determination 

that it was in their best interests to have the mother's 

parental rights terminated despite the fact that the permanency 

plan did not provide for their placement in the same adoptive 

home, as suggested by their department adoption assessments. 

Contrary to the girls' contention, however, the department is 

not bound to follow that assessment. Nor is the department 

required to wait to place the girls in a specific kind of

placement, particularly when they had already been living with 

their foster families for a significant time and had created 

strong bonds with the foster families, and where the department 

had already designated those foster placements as preadoptive 

homes. The judge made findings concerning the bond between the 

girls, indicating that this bond was taken into account in the 

determination of their best interests. Moreover, there is no 

indication in the record that a preadoptive home accommodating 

both girls was available. The judge's decision to agree with 

the department's recommendation was not "outside the bounds of 

reasonable alternatives" and therefore not an abuse of 

discretion. Adoption of Mariano, 77 Mass. App. Ct. 656, 660 

(2010). See Adoption of Garret, 92 Mass. App. Ct. 664, 675 

(2018).

The girls also contend that the judge improperly relied on 

evidence from a separate care and protection case regarding a 
22

child the mother gave birth to in January, 2016,12 and a 

department letter that should not have been admitted in 

evidence. Assuming without deciding that it was improper for 

the judge to consider this evidence, we discern no prejudice to 

the mother or the girls, as the remaining evidence 

overwhelmingly supports -- by clear and convincing evidence --

that the mother was unfit as to the girls and that termination 

was in their best interests. See Adoption of Astrid, 45 Mass. 

App. Ct. 538, 546-547 (1998) (no prejudice where judge would 

have reached same result).

Ulrich and Charles argue that it was not in their best 

interests to terminate the mother's parental rights as to them, 

emphasizing that recent events show that the mother's parenting 

abilities have improved. Ulrich also points to the fact that 

his proposed adoption plan was disrupted after the entry of the 

decrees. In these circumstances, we do not consider events that 

occurred after the entry of the decrees, and we see no error in 

the judge's decision to terminate the mother's parental rights. 

Contrast Adoption of Cesar, 67 Mass. App. Ct. at 716 (decree 

 

12 With regard to evidence concerning the mother's care and 

protection case as to that child, its inclusion was just as 

likely to help the mother's argument as it was to hurt it. The 

same judge who presided over the case at hand dismissed that

care and protection proceeding, declining to find the mother 

unfit to parent that child even when that child had serious 

medical issues.
23

vacated to allow further proceedings in trial court in light of 

child's removal from preadoptive home before decree was 

entered).13

Charles argues that the judge should not have terminated 

the mother's parental rights as to him because the department's 

permanency plan at the time of the trial -- recruitment of an 

adoptive family -- did not require such termination. The judge 

found that Charles "has made progress in the stability that has 

been provided by the [residential facility]; that progress can 

be best solidified through the department's efforts to locate a 

permanent adoptive family for him when he is ready." We see no 

abuse of discretion in the judge's approval of the department's 

permanency plan for Charles. See Adoption of Nancy, 443 Mass. 

at 517 (children "deserve permanence and stability"); Adoption 

of Dora, 52 Mass. App. Ct. 472, 477 (2001) (termination decree 

"may issue even if a specific adoptive family has not been 

identified"). 

Conclusion. The decrees are affirmed. The order of the 

single justice denying the motion for a stay of appeal is also 

affirmed.

 

13 We note that a child in the custody of the department is 

entitled to annual permanency hearings "to determine and 

periodically review thereafter the permanency plan for the 

child. . . . The court shall consult with the child in an ageappropriate manner about the permanency plan developed for the 

child." G. L. c. 119, § 29B. 
24

So ordered.