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16-P-764                                         Appeals Court

                          ADOPTION OF BIANCA.1


                              No. 16-P-764.

        Middlesex.        February 10, 2017. - April 28, 2017.

              Present:     Milkey, Hanlon, & Neyman, JJ.


Adoption, Dispensing with parent's consent, Visitation rights.
     Parent and Child, Dispensing with parent's consent to
     adoption, Adoption. Minor, Adoption, Visitation rights.
     Evidence, Child custody proceeding.


     Petition filed in the Middlesex County Division of the
Juvenile Court Department on March 10, 2011.

    The case was heard by Kenneth J. King, J.


    Deborah Sirotkin Butler for the mother.
    Ilse Nehring for the father.
    William T. Cuttle for Department of Children and Families.
    Yvette L. Kruger for the child.


    MILKEY, J.       This case involves the welfare of a child to

whom we shall refer as Bianca.      After trial, a Juvenile Court

judge found the child's mother and father unfit, and issued

decrees terminating their parental rights.       See G. L. c. 119,

    1
        A pseudonym.
                                                                     2


§ 26; G. L. c. 210, § 3.     The judge approved a plan put forward

by the Department of Children and Families (DCF) for Bianca to

be adopted by a couple who were close friends of the father's

family and who have cared for Bianca for much of her life.2

Finally, the judge ordered regular postadoption contact with

both parents, but permitted the preadoptive parents to terminate

visitation with the mother or father if they determined it was

no longer in Bianca's best interests.

     On appeal, the mother and father contest the termination of

their parental rights.    The father also challenges the approval

of the DCF adoption plan over his plan that the preadoptive

parents be made Bianca's guardians so that he could seek custody

in the future.   The mother requests that the case be remanded to

determine whether she remains unfit and to determine Bianca's

current best interests.     We affirm.

     Background.3   As a result of the father's abuse of the

mother, Bianca's life has been fraught with instability and

exposure to violence.     In addition, the mother has long

struggled with substance abuse, and due to incarceration or

treatment, she was frequently unavailable to care for Bianca.


     2
       We refer throughout to this couple as the preadoptive
parents, although they initially served as Bianca's foster
parents.
     3
       We recite the facts from the judge's findings, which the
parties do not contest, except to the limited extent noted.
                                                                    3


Little would be served by providing further detail of the

mother's history, particularly because she does not contest that

she was unfit at the time of trial.

     The father physically abused the mother throughout their

marriage, including during the mother's pregnancy with Bianca,

who was born in January, 2010.    The findings of fact detail

twenty specific incidences of domestic violence, ten of which

occurred in Bianca's presence.    In March, 2011, when Bianca was

fourteen months old, DCF filed a petition for care and

protection.    See G. L. c. 119, § 24.   By stipulation, the father

was given conditional custody of Bianca, with the preadoptive

mother providing primary caretaking responsibilities for her

during the week.4    Among other conditions, the parents were not

to be together with Bianca without the presence of a third

party.    The father violated this condition and assaulted the

mother again in June, August, and September, 2011.    In October,

temporary custody was awarded to DCF, and Bianca was placed with

the preadoptive parents.    The father completed a forty-week

intimate partner abuse education program for domestic abusers

(formerly known as a batterers' intervention program), and

Bianca was returned to the father's care in August, 2012.

Nevertheless, the abuse continued, and two months later the


     4
         The mother was unavailable to care for Bianca at that
time.
                                                                      4


father raped the mother in Bianca's presence.    As a result,

Bianca was removed from the father's custody for the final time

in January, 2013, and she has remained in the care of the

preadoptive parents since.

     At trial, Bianca's therapist testified that Bianca suffers

from reactive attachment disorder and an adjustment disorder as

a result of her neglected needs and disrupted attachments.

Bianca needs continued treatment and stability and consistency

in her care.   If moved again, Bianca may be unable to attach to

another caregiver.5   The preadoptive mother has demonstrated a

longstanding commitment to Bianca's treatment and education.      It

is uncontested that Bianca shares a bond with both the mother

and father, and the preadoptive mother has ensured that Bianca

remains in contact with them.

     Mother's arguments.     The mother argues that lengthy delays

in the legal proceedings have rendered stale the facts upon

which the judge relied in making his finding of unfitness.      The

trial began in January, 2014, and was held on twenty-four

nonconsecutive days over the course of eleven months.    The

decrees issued in February, 2015, the mother and father filed

timely notices of appeal, and the judge's findings of fact




     5
       The father disputes this finding of fact, but it is not
clearly erroneous.
                                                                     5


issued in November, 2015.     The notice of the assembly of the

record issued in May, 2016.

    Although a significant amount of time has now passed, the

mother has not demonstrated how this materially prejudiced her.

She did not request that the trial judge reopen the record, and

we cannot look beyond the current record for evidence of the

mother's improvement.   The question is whether there was

sufficient evidence presented at trial that the mother was on an

upward trajectory to establish that it would be fundamentally

unfair to resolve the case on the current record.     See Adoption

of Linus, 73 Mass. App. Ct. 815, 820-821 (2009) (evidence held

unduly stale where most recent evidence of mother's drug use was

four years old and she had made significant improvements by time

of trial).

    The mother's expert witness offered only a lukewarm

endorsement regarding her capacity for change, stating the view

that there was "reason to believe that [the mother] could

rehabilitate herself" in the future.     See Adoption of Ilona, 459

Mass. 53, 59 (2011), quoting from Adoption of Carlos, 413 Mass.

339, 350 (1992) ("[A] judge may consider evidence that provides

a 'reason to believe that a parent will correct a condition or

weakness that currently disables the parent from serving his or

her child's best interests'").    Countering the expert's

"guardedly optimistic" view was all the evidence of the mother's
                                                                     6


prior history and patterns of relapse.    Indeed, for the first

five years of Bianca's life, the mother was unable to stay sober

and away from the father for sustained periods of time when she

was not incarcerated, and it was undisputed that she would need

years of treatment before she could become healthy enough to

take custody of Bianca.   The judge was entitled to credit such

evidence in making his finding that the mother's unfitness was

likely to continue.   See Adoption of George, 27 Mass. App. Ct.

265, 268 (1989) ("Prior history . . . has prognostic value").

The scant evidence that mother might be able to change her

behaviors does not overcome this.     See Adoption of Ilona, supra

(evidence must show "a reasonable likelihood that the parent

will become fit," not merely a "faint hope").    See also Adoption

of Serge, 52 Mass. App. Ct. 1, 6 (2001) (brief periods of

sobriety insufficient to show that mother could overcome

addiction to become fit parent).

     In addition, the best interests of Bianca strongly militate

against reopening the trial record.     Stability is important for

every child, and it is particularly necessary for Bianca.6


     6
       Some argument can be made that because Bianca has had
regular visits with the mother, a transfer to the mother's
custody, if found to be warranted on remand, might not be such a
significant disruption to her. However, removal from the
preadoptive parents' home would force on Bianca a series of
changes (in school, playmates, and extracurricular activities)
that she is likely to perceive to be significant, particularly
when coupled with a change in her daily caregiver and routines.
                                                                    7


Bianca's healthy development depends upon finality in this

matter.   In circumstances such as these, a parent's postdecree

improvements cannot be permitted to continually upend an

unfitness determination.   It therefore is not appropriate to

prolong these proceedings to expand the record.   See Adoption of

Nancy, 443 Mass. 512, 517 (2005), quoting from Adoption of

Gregory, 434 Mass. 117, 121 (2001) ("[W]here [a parent] has had

ample opportunity to achieve fitness . . . and has failed to

follow through, it is only fair to the child[] to say, at some

point, 'enough'").   See also Adoption of Ilona, supra at 61,

quoting from Adoption of Gregory, supra ("[T]he proper focus of

termination proceedings is the welfare of the child").

     The mother's remaining arguments require little discussion.

She asserts that the judge did not adequately account for the

way that the father's abuse affected her parenting decisions.

However, the judge's fitness determination is well supported by

his factual findings, which the mother does not dispute.7




The judge's findings make clear that another move is likely to
cause her serious and possibly permanent harm.
     7
       The judge's taking into account those of the mother's acts
and behaviors that can be attributed to her victimization was
not a punishment of the mother for the abuse. Petition of the
Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383
Mass. 573, 592 (1981) ("[T]he State does not act to punish
misbehaving parents; rather it acts to protect endangered
children"). The judge made clear that he did not fault the
mother for being a victim, but stated that the effect of the
                                                                     8


Whatever their cause, the mother's behavior and decisions

demonstrated her inability to prioritize Bianca's welfare and,

therefore, were properly considered as evidence of her fitness

to care for Bianca.

      The mother also argues that, even if the finding of

unfitness was correct, terminating her parental rights was

inappropriate where the judge found that the mother has a strong

bond with Bianca.   We disagree.   After a parent is determined to

be unfit, the judge must consider whether termination is in the

best interests of the child.    See Adoption of Ilona, supra at

59.   In light of Bianca's particular need for stability and the

judge's determination that the mother would not become fit in

the foreseeable future, he did not err in terminating the

mother's parental rights.8

      Father's arguments.    An expert who had been qualified in

battered person syndrome, parenting evaluations, and

psychological assessments of adults gave general testimony at



violence on Bianca and the mother's role in allowing Bianca to
be exposed to such violence had to be taken into account.
      8
       We pause to note that the mother has shown evident
affection toward Bianca, and none of the judge's findings negate
this. Despite the moral overtones of the statutory term
"unfit," the judge's decision was not a moral judgment or a
determination that the mother and father do not love the child.
The inquiry instead is whether the parents' deficiencies or
limitations "place the child at serious risk of peril from
abuse, neglect, or other activity harmful to the child." Care &
Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
                                                                   9


trial that if an abuser remains in denial about past acts of

violence, the behavior is likely to continue.   Relying on this

testimony, the judge found that because the father did not take

full responsibility for his abusive behavior, he could not

effectively be treated for domestic violence and was likely to

become violent again.   The father challenges the evidentiary

value of the expert testimony, asserting that it amounts to

"spurious profile" evidence and that the judge's findings based

on it are clearly erroneous.9   According to the father, any

expert testimony would have needed to examine whether he in

particular benefited from treatment.

     We need not address the merits of this argument for two

reasons.   First, because the father failed to object to this

specific evidence at trial, the argument is waived.   See

Adoption of Astrid, 45 Mass. App. Ct. 538, 542 (1998).   Second,

there was, in any event, an abundance of other evidence to

support the judge's subsidiary finding that the father had not

benefited from the batterers' intervention programming and was

likely to become violent again.   For example, as noted, the

father raped the mother after he completed a domestic violence


     9
       Specifically, the father argues that the expert was not
qualified to give testimony on the psychology of batterers, that
he lacked any basis for such testimony with respect to the
father (whom he had not interviewed), and that the evidence was
irrelevant. The father does not assert that the testimony
should have been excluded.
                                                                   10


intervention program.10   The father also continued to engage in

manipulative behavior toward the mother even in front of the

judge at trial by mouthing the words "I love you" and "I'm

sorry" to her across the court room.    See Adoption of Nancy, 443

Mass. at 515 ("Subsidiary findings must be supported by a

preponderance of the evidence").

     There is no merit to the father's additional argument that

there was insufficient evidence to support the judge's finding

that Bianca was harmed by her parents' violent relationship.      As

the judge found, and the father does not dispute, Bianca was

exposed to at least ten incidents of physical and sexual

violence between the mother and father.11   No expert testimony

was needed as to the specific psychological effects of such

violence on the child.    Our case law has long recognized that

exposure to such abuse harms the child by violating her

fundamental human right "to live in physical security, free from

the fear that brute force will determine the conditions of one's

daily life" even if it causes no documented psychological


     10
       The judge, contrary to the father's claim, did not ignore
the father's participation in additional programs after the
sexual assault incident; he simply did not find this evidence to
be sufficiently persuasive to overcome the other evidence of the
father's continuing abusive tendencies.
     11
       The father does not contest the judge's findings with
respect to the domestic violence incidents. Instead, he argues
that the evidence did not establish that Bianca's mental health
condition was caused by her exposure to those incidents.
                                                                    11


damage.   Custody of Vaughan, 422 Mass. 590, 595 (1996).     Even

setting that aside, in this case there was direct evidence that

Bianca suffered psychological harm as a result of the violence

she witnessed.   We discern no error of law or fact in the

termination of the father's parental rights.

     Approval of the adoption plan and postadoption visitation.

The father's challenge to the DCF adoption plan is a narrow one,

focusing on the choice of adoption over guardianship.12    In

choosing among placement plans, it falls to the sound discretion

of the trial judge to determine what is in the best interests of

the child, and our review on appeal is one of "substantial

deference."   Adoption of Hugo, 428 Mass. 219, 225 (1998), cert.

denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

     There is no dispute that Bianca is "thriving" with the

preadoptive parents or that another disruption in care could

have serious psychological consequences for her.   Bianca's best

interests therefore gave dispositive weight to the DCF adoption




     12
       The mother does not challenge the approved adoption plan
except to the extent that her request for remand to consider
evidence of her own suitability to take custody of Bianca is at
odds with that plan. At oral argument, she stated that her
primary concerns are Bianca's understanding that the mother has
not abandoned her and ensuring that Bianca is not placed in the
father's custody.
                                                                  12


plan, which is the only one that ensures long term stability.13

The judge did not overlook the bonds of attachment between

Bianca and the father.   Indeed, he noted that one factor

weighing in favor of placement with the preadoptive parents was

their recognition of the importance of Bianca's continued

contact with her biological family on both sides.   The judge

took the additional step of ordering generous postadoption

visitation.   He also gave due consideration to the mother's

concerns regarding the father's access to Bianca given his

violent history, and he empowered the preadoptive parents to

limit or stop postadoption contact upon their sole determination

that such contact is no longer in Bianca's best interests.

Although the preadoptive mother is something of a surrogate aunt

to the father, she has never given any indication that she would

allow Bianca to be placed in jeopardy because of her

relationship with the father.14

     The judge's findings note that Bianca often asks where she

will live and that she needs to have a firm and final answer to


     13
        Both of the parents' plans would have Bianca placed
temporarily with guardians until the parent was prepared to take
custody.
     14
        The judge considered this dynamic, noting one instance
where the preadoptive mother reported the father's violation of
a court order. We are satisfied that the preadoptive mother is
aware now of the degree and nature of the abuse that the father
has inflicted upon the mother and that she will give careful
consideration to this history in making decisions regarding his
unsupervised visits with Bianca.
                                                                13


that question.   The record supports the judge's finding that

Bianca now has a safe and permanent home and regular contact

with the mother, father, and extended family.   There was no

abuse of discretion.   Far from neglecting the father and mother,

the judge went out of his way to give them a role in Bianca's

life while still ensuring Bianca's stability through the

permanence of adoption.

                                    Decrees affirmed.
