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17-P-50                                              Appeals Court

                          ADOPTION OF TALIK.1


                             No. 17-P-50.

          Suffolk.       July 28, 2017. - October 4, 2017.

            Present:    Green, Ditkoff, & Wendlandt, JJ.


Adoption, Care and protection, Dispensing with parent's consent.
     Parent and Child, Dispensing with parent's consent to
     adoption. Minor, Care and protection. Practice, Civil,
     Care and protection proceeding. Evidence, Inference.



     Petition filed in the Suffolk County Division of the
Juvenile Court Department on March 6, 2013.

    The case was heard by Peter M. Coyne, J.


     Dennis M. Toomey for the mother.
     Bryan F. Bertram, Assistant Attorney General, for
Department of Children and Families.
     Deborah J. Bero for the child.


    WENDLANDT, J.      The mother appeals from a decree issued by a

judge of the Juvenile Court finding her unfit to parent her son,

Talik, terminating her parental rights, placing the child in the


    1
        A pseudonym.
                                                                      2


care of the Department of Children and Families (DCF), and

approving DCF's plan for adoption of the child by his foster

parents.2    The mother argues that (1) the judge impermissibly

drew an adverse inference from her failure to attend the trial;

(2) the evidence of her unfitness was stale and thus could not

support a finding of her unfitness by clear and convincing

evidence; and (3) the pretrial placement of the child with the

foster parents instead of with the child's maternal

grandmother's first cousin (relative) in California was an abuse

of discretion.    We conclude that the judge did not err in

drawing a negative inference from the mother's absence and

finding that the mother was unfit, and that there was no abuse

of discretion in the child's pretrial placement.     Accordingly,

we affirm.

     1.     Background.   We draw on the detailed findings of fact

made by the judge, which find ample support in the record.      The

child was born in March, 2013, and his meconium tested positive

for marijuana.    The mother tested positive for OxyContin,

cocaine, and opiates.     The child was admitted to the neonatal

intensive care unit due to high blood sugar levels (attributed

to the mother's mismanagement of her diabetes during the

pregnancy), a possible heart murmur, and concerns regarding his

     2
       The judge also terminated the father's rights. The father
appealed, but the judge allowed a motion to dismiss his appeal,
an order from which the father did not appeal.
                                                                     3


liver.   During the pregnancy, the mother tested positive for

marijuana at her first prenatal appointment, which occurred just

over two months before the child was born.   She refused

toxicology screens for the remainder of her pregnancy.     Between

December, 2012, and the child's birth, the mother exhibited drug

seeking behavior, visiting the hospital several times to seek

pain medication ostensibly because she was unable to regulate

her insulin levels; on one occasion, she smelled of alcohol.

    Three days after the child's birth, DCF filed a care and

protection petition seeking custody of the child.   Both parents

waived their rights to a temporary custody hearing, and the

petition was allowed.   Twelve days after his birth, the child

was discharged to the care of his foster parents, where he has

remained ever since.

    After DCF took temporary custody of the child in March,

2013, DCF drafted a service plan for the mother with the goal of

reunification.   The plan tasked the mother with (1) attending

parenting classes; (2) participating in substance abuse

treatment; (3) providing toxicology screens; (4) engaging in

mental health treatment and taking any prescribed medications;

(5) maintaining contact with DCF; (6) making her whereabouts

known to DCF; and (7) attending visits with the child.     The

mother attended an outpatient addiction and treatment management

program in March, 2013, but was discharged from the program in
                                                                     4


May, 2013, due to her lack of attendance.    She submitted two

urine screens in April, 2013, both of which came back negative.

Other than these efforts, the mother did not complete the

service plan tasks.    In addition, the mother has a long history

of domestic violence with the father in front of their other

children,3 and additional incidents of domestic violence were

reported after DCF obtained temporary custody of the child.

     In September, 2013, DCF changed the child's placement goal

to adoption.    The mother continued her noncompliance with DCF's

service plan and has not visited the child or had any contact

with DCF since March, 2014.

     Shortly after the birth of the child, the relative, who

resided in California, expressed interest in having the child

placed with her.    California Child Protective Services completed

a placement study in October, 2013.    The relative's home did not

meet Massachusetts standards; specifically, the home had

insufficient physical space available for the child in view of

the number of people already living there.    DCF did not place

the child with the relative; instead, the child remained in the

custody of his foster parents.    In March, 2014, the mother filed

a motion seeking a determination whether DCF's "refusal to place

the . . . child with [the relative] is an abuse of [DCF's]

discretion . . . and if [DCF] has so abused its discretion, to

     3
         The other children are not involved in these proceedings.
                                                                   5


order [DCF] to place the child with the [relative]."    The motion

was denied.4

     The trial took place over four days between December, 2014,

and January, 2015.   The mother had notice of the trial, and her

attorney was present throughout.   However, the mother herself

was not present, and her counsel was not aware of her location.

The judge heard testimony from social workers, expert witnesses,

the father, the relative, and one of the foster parents.

Closing arguments were presented on January 23, 2015, and again

the mother was not present.   On January 30, 2015, with the

mother present, the judge issued his decision from the bench,

terminating the mother's parental rights and approving DCF's

plan for adoption of the child by his foster parents.    The judge

drew a negative inference from the mother's failure to attend

and testify at trial.   In January, 2016, the judge issued his

findings of fact, conclusions of law, and order supporting his

earlier decision terminating the mother's rights.

     2.   Discussion.   "In deciding whether to terminate a

parent's rights, a judge must determine whether there is clear

and convincing evidence that the parent is unfit and, if the

parent is unfit, whether the child's best interests will be

served by terminating the legal relation between parent and

     4
       The mother also supported the relative as the adoptive
parent of the child in the event that her rights were
terminated.
                                                                     6


child."    Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017),

quoting from Adoption of Ilona, 459 Mass. 53, 59 (2011).     A

finding of unfitness must be supported "by clear and convincing

evidence, based on subsidiary findings proved by at least a fair

preponderance of evidence."     Adoption of Jacques, 82 Mass. App.

Ct. 601, 606 (2012).     "Parental unfitness must be determined by

taking into consideration a parent's character, temperament,

conduct, and capacity to provide for the child in the same

context with the child's particular needs, affections, and age."

Adoption of Mary, 414 Mass. 705, 711 (1993).

      We give substantial deference to the judge's decision to

terminate parental rights "and reverse only where the findings

of fact are clearly erroneous or where there is a clear error of

law or abuse of discretion."     Adoption of Ilona, 459 Mass. at

59.   "A finding is clearly erroneous when there is no evidence

to support it, or when, 'although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.'"   Custody of Eleanor, 414 Mass. 795, 799 (1993),

quoting from Building Inspector of Lancaster v. Sanderson, 372

Mass. 157, 160 (1977).

      a.   Adverse inference.   On appeal, the mother argues that

the judge erred by drawing an adverse inference against her

based on her absence from trial in violation of her right to due
                                                                     7


process, which she contends includes the same protection against

an adverse inference that is afforded to a defendant who is

absent from a criminal proceeding.    We disagree.

     "Custody proceedings are not criminal in nature and,

accordingly, the full panoply of constitutional rights afforded

criminal defendants does not apply in these cases."     Custody of

Two Minors, 396 Mass. 610, 616 (1986).    Instead, these are civil

cases; the State acts to protect children, not to punish

misbehaving parents.5   Ibid.   Nonetheless, removal of a child

from a parent is a significant deprivation and implicates

fundamental and constitutionally protected interests.

Accordingly, after a parent has received notice of proceedings

affecting her rights in her child, we require further that the

parent be represented by counsel and that the Commonwealth prove

the parent unfit by clear and convincing evidence.    Id. at 618.



     5
       Because of the civil nature of these proceedings, certain
constitutional rights attaching in criminal proceedings simply
do not apply. Custody of Two Minors, 396 Mass. at 616-617. See
e.g., Custody of a Minor, 375 Mass. 733, 746 (1978) (double
jeopardy inapplicable); Petition of the Dept. of Pub. Welfare to
Dispense with Consent to Adoption, 383 Mass. 573, 592-593 (1981)
(findings not required to be "beyond a reasonable doubt"
standard of proof); Petition of the Dept. of Social Servs. to
Dispense with Consent to Adoption, 384 Mass. 707, 710-711 (1981)
(exclusionary rule inapplicable); Adoption of Don, 435 Mass.
158, 169 (2001) (right to face-to-face confrontation not
required); Adoption of John, 53 Mass. App. Ct. 431, 435 (2001)
(colloquy similar to that required for plea agreements in
criminal cases is not required when parent enters into agreement
for judgment).
                                                                    8


These requirements "provide a sufficient measure of extra

protection" in view of the parent's interests at stake.     Ibid.

     Significantly, the Supreme Judicial Court has held that an

adverse inference may be drawn in a child custody case from a

parent's failure to testify even though such an inference would

be impermissible in a criminal trial.   See id. at 617

(permitting adverse inference in care and protection hearing

where parent declines to testify based on his privilege against

self-incrimination); Adoption of Nadia, 42 Mass. App. Ct. 304,

307-308 (1997) (holding that adverse inference is permissible in

case involving termination of parental rights); Care &

Protection of Quinn, 54 Mass. App. Ct. 117, 120-121 (2002)

(permitting negative inference against father for failure to

testify as to his fitness even though father faced parallel

criminal proceeding).   It follows that an adverse inference may

be drawn against a parent who, despite having received notice,

is absent from a child custody or termination proceeding, even

though such an inference would be impermissible in a criminal

matter absent affirmative evidence showing consciousness of

guilt.6   Where a parent has notice of a proceeding to determine


     6
       See Commonwealth v. Hightower, 400 Mass. 267, 269 (1987)
(defendant's absence alone could not be used as evidence of
consciousness of guilt without any additional evidence that
defendant's nonappearance was motivated by choice to avoid
trial); Commonwealth v. Kane, 19 Mass. App. Ct. 129, 137 (1984)
(absence alone is not sufficient to warrant negative inference
                                                                    9


his parental rights and the parent does not attend or provide an

explanation for not attending, the absence may suggest that the

parent has abandoned his rights in the child or cannot meet the

child's best interests.

    Importantly, the adverse inference drawn from a party's

absence is not sufficient, by itself, to meet an opponent's

burden of proof.   "No inference can be drawn . . . unless a case

adverse to the interests of the party affected is presented so

that failure of a party to testify would be a fair subject of

comment."   Custody of Two Minors, 396 Mass. at 616.    See Singh

v. Capuano, 468 Mass. 328, 333-334 (2014) (defendant's failure

to testify cannot be used to justify issuance of abuse

prevention order until case is presented on other evidence).

This "provides extra protection to parents."   Adoption of Nadia,

42 Mass. App. Ct. at 308.

    Further, a trial judge has discretion to determine whether

to draw an adverse inference from a parent's absence.     See

Singh, 468 Mass. at 333 ("It is well settled that a fact finder

may, but is not required to, draw an inference adverse to the

nontestifying defendant . . .").   In determining whether to

exercise that discretion, "the judge as fact finder" is to



without facts in record supporting adverse inference);
Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 637-640 (2003)
(defendant's midtrial absence alone did not support
consciousness of guilt jury instruction).
                                                                     10


consider whether such an inference is "fair and reasonable based

on all the circumstances and evidence before" her.      Id. at 334.

On appeal, we review such decisions for abuse of discretion.

See id. at 333-334.

    In the present case, we discern no such abuse.      The judge

inquired into the reasons for the mother's absence.     The mother

had not been involved with the child for at least nine months

prior to the trial.    The last time that the mother contacted DCF

was in March, 2014.   At a pretrial hearing, the judge asked the

mother's counsel if he had had recent communication with his

client and counsel responded, "I have not spoken to my client in

some time."    Again, at the start of the trial the judge asked

the mother's counsel if he had submitted a witness list.

Counsel responded, "I haven't had any contact with my client

since I was directed to request placement of the child in

California."   The mother did not attend any of the trial days,

attending only on the day the judge announced his decision from

the bench.    Even then, she offered no explanation for her

absence and made no motion to reopen the evidence; instead, she

was silent.    The mother makes no claim that her absence was

occasioned by causes beyond her control.    Under the

circumstances, it was not an abuse of discretion for the judge

to draw an inference adverse to the mother.    In any event, as

set forth below, the adverse inference drawn by the judge from
                                                                      11


the mother's absence at trial was but one of the many factors he

considered.    See Adoption of Cecily, 83 Mass. App. Ct. 719, 727

(2013).

    b.     Unfitness.    The mother argues that the judge's findings

are insufficient to establish the mother's unfitness by clear

and convincing evidence because, although she does not dispute

any of the factual findings, she asserts that the evidence is

stale.    We disagree.

    To begin, the evidence showed that the mother had ceased

visiting the child at least as of nine months prior to the

trial.    Since March, 2014, she had had no contact with DCF and

failed to comply with the tasks on her service plan.      The mother

was unavailable for the court investigator to observe her

parenting the child.      The record shows that she had not been in

contact with her counsel and did not attend any of the days of

the trial except the last day.      This evidence was not stale; to

the contrary, the mother's current absence from the child's

life, lack of communication with DCF, and failure to attend the

proceedings generally were relevant factors in determining

whether to terminate her parental rights.      See Adoption of

Astrid, 45 Mass. App. Ct. 538, 544 (1998); Adoption of Fran, 54

Mass. App. Ct. 455, 462-463 (2002).

    In addition, the mother has a history of substance abuse,

which gave rise to the initial petition for care and protection.
                                                                   12


The mother asserts that the last available evidence regarding

her substance abuse is two clean toxicology screens in April,

2013.   However, since April, 2013, she has neither participated

in any substance abuse treatment nor submitted to any further

screens in contravention of her service plan tasks.   Given her

failure to continue treatment and her noncompliance with the

other service plan tasks, it was not error for the judge to

consider her substance abuse in assessing her fitness.      See

Petitions of the Dept. of Social Servs. to Dispense with Consent

to Adoption, 399 Mass. 279, 289 (1987) ("Evidence such as the

failure of the parents to keep a stable home environment for the

children, the refusal of the parents to maintain service plans,

visitation schedules, and counseling programs designed to

strengthen the family unit are relevant to the determination of

unfitness"); Adoption of Rhona, 63 Mass. App. Ct. 117, 126

(2005) (parent's lack of cooperation with DCF was "relevant to

the determination of unfitness").

    Moreover, the mother has a long history of domestic

violence with the father, including physical altercations in

front of their other children.   This behavior continued in the

months after the child's birth, when the police responded to

numerous domestic disputes.   It is well established that

exposure to domestic violence works a "distinctly grievous kind

of harm" on children, Custody of Vaughn, 422 Mass. 590, 595
                                                                    13


(1996), and instances of such familial violence are compelling

evidence for a finding of parental unfitness.    See id. at 595-

596; Adoption of Gillian, 63 Mass. App. Ct. 398, 404-405 & n.6

(2005).   There was no evidence that the mother had participated

in any services to address this long history of domestic

violence.   Accordingly, the judge appropriately considered this

history of domestic violence in making his determination as to

the mother's fitness.

    The judge's findings are specific, detailed, and

demonstrate that he gave close attention to the evidence.     See

Adoption of Anton, 72 Mass. App. Ct. 667, 673 (2008).     The judge

properly considered the requisite factors under G. L. c. 210,

§ 3(c), in his determination of unfitness, finding factors (i),

(ii), (iii), (v), (vi), (vii), (viii), (ix), (x), and (xii) to

be applicable.   In sum, the mother's lack of involvement with

the child for an extended period of time, substance abuse,

ongoing instability, and history of domestic violence show that

there is no "reasonable likelihood that the [mother]'s unfitness

at the time of trial may be only temporary."    Adoption of

Carlos, 413 Mass. 339, 350 (1992).   Accordingly, the findings

support the judge's determination of unfitness by clear and

convincing evidence and that termination is in the best
                                                                      14


interests of the child.       See Adoption of Eden, 88 Mass. App. Ct.

293, 297–298 (2015).7

     c.    Pretrial placement.    The mother next argues that the

pretrial placement of the child with his foster parents and not

the relative in California was unreasonable and an abuse of

discretion.    The mother does not address directly why the

propriety of the pretrial placement is not moot, but she does

argue that this ruling caused her prejudice at trial.8      Passing

over the question of mootness, we turn to the merits.

     "Placement decisions, as opposed to custody decisions, fall

within the discretionary powers of the legal custodian as one of

the usual incidents of custody."      Care & Protection of Manuel,

428 Mass. 527, 534 (1998).      See G. L. c. 119, § 23.   DCF

regulations require that the child's placement be made "based

upon safety, well-being and permanency of the child and the

child's individual needs."       110 Code of Mass. Regs. § 7.101(1)

(2009).    "While the judge certainly may 'offer guidance to the

[custodian] concerning a child's residence,' the ultimate

decision regarding placement is the custodian's."      Care &

Protection of Manuel, 428 Mass. at 534, quoting from Care &


     7
       Nor is there any abuse of discretion in the judge’s order
denying posttermination or postadoption visitation to the
mother, who had been absent from the child's life entirely for
the nine months prior to trial.
     8
         See note 9, infra.
                                                                    15


Protection of Isaac, 419 Mass. 602, 609 (1995).    "That decision

is reviewable under [G. L. c. 119,] § 21[,] for abuse of

discretion or error of law only."    Care & Protection of Manuel,

428 Mass. at 534.   A decision is an abuse of discretion if it

amounts to a "clear error of judgment" that falls "outside the

range of reasonable alternatives."     L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014) (quotation omitted).

    Here, it was not an abuse of discretion to conclude that

the best interests of the child was to have him stay in the

custody of his preadoptive parents while awaiting trial.

Notably, the mother did not file her abuse of discretion motion

until one year after the child was placed with his foster

parents even though the California home study of the relative

had been completed five months earlier in October, 2013.

Meanwhile, the child was in a stable home where he was able to

attain the immediate care his early medical conditions required.

The child also had the opportunity to bond with his two

attentive and loving foster parents.    In contrast, the proposed

California placement did not meet Massachusetts standards for

placement.   The relative, who was already responsible for the

care of her disabled adult daughter and two toddlers, did not

appear to understand that the goal for the child was adoption,

and stated that she was overwhelmed.    She has not met the child

and has no connection with the child's older brother, who is
                                                                  16


placed in California with the maternal grandmother.   Under these

circumstances, the judge did not abuse his discretion by

concluding that the best interests of the child favored

continued placement with his foster parents, where he had lived

since he was twelve days old and where he was thriving.9

                                   Decree affirmed.




     9
       We additionally reject the mother's contention that the
pretrial placement violated her right to have evidence available
to her regarding the bond that she believes would have formed
between the child and the relative. Due process is satisfied by
providing notice and an opportunity to be heard. Care &
Protection of Orazio, 68 Mass. App. Ct. 213, 220 (2007).
Additional safeguards are provided in child welfare cases by
requiring that parents be represented by counsel, and that DCF
meet the clear and convincing evidence standard. There is no
due process right to an opportunity to create evidence through a
particular pretrial placement.
