ADOPTION OF YENZI (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1255

ADOPTION OF YENZI (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from decrees entered in the Juvenile Court

terminating his parental rights, the father challenges the trial

judge's finding that he is unfit and the termination of his

parental rights.2 He also assigns error to the judge's failure

to order more than two visits per year of post-termination and

post-adoption visitation for himself and any visitation between

the children and their half-sibling. We affirm.

Background. We briefly summarize the facts found by the

trial judge, noting the limited instances in which the father

challenges the judge's findings as clearly erroneous. Yenzi was

born in June 2016. The mother tested positive for amphetamines

1 Adoption of Kendra. The children's names are pseudonyms.

2The mother filed a notice of appeal but filed no brief.
We consider only arguments advanced by the father.
and buprenorphine during her pregnancy and Yenzi was placed on

neonatal morphine to address her symptoms of Neonatal Abstinence

Syndrome (NAS). Yenzi was placed in the custody of the

Department of Children and Services (department) at birth and

remained in the custody of the department for approximately

eighteen months, until January 2018 when she was returned to the

mother's care. Kendra was born in August 2017. The department

filed a care and protection petition for Kendra, but the mother

maintained custody of Kendra.

The father has three children with a now-deceased woman and

those three children are in the care of their maternal

grandmother. The father does not pay child support and has

never engaged in a primary caretaking role of those children.

The father admitted that he was unable to care for those

children.

The father and mother have five children together including

Yenzi and Kendra. The father has never paid child support for

Yenzi and Kendra. The three older children are in the permanent

guardianship of their maternal grandmother and the father lacked

any insight as to why the children were under a guardianship.

The father has an extensive adult criminal history

beginning in 1991 and continuing through 2019.3 The judge did

3 The father's criminal history includes convictions for
larceny, malicious destruction of property, possession of a

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not credit the defendant's testimony that he had never been

convicted of a crime. The father has had eleven restraining

orders issued against him on behalf of four different women and,

in some instances, his minor children. On April 22, 2019, the

mother obtained a restraining order against the father ordering

him not to abuse her, to have no contact, and stay away and

vacate her residence. He was also ordered to have no contact

with Yenzi and Kendra. The restraining order expired on October

21, 2019.

There has been considerable domestic violence during the

relationship of the mother and the father, including physical

violence and verbal abuse in the presence of Yenzi and Kendra,

which the father minimizes. The April 22, 2019, restraining

order described above was issued to the mother based on an

altercation that took place on April 19, 2019. On that day, the

mother called the police stating that the father was yelling at

her, they ended up on the ground, and she thought the father had

tackled her. Yenzi and Kendra were present during this

incident. Police who responded to the mother's call saw

bruising, swelling, and redness on her arm. Later, the father

firearm without a license, assault and battery by means of a
dangerous weapon, assault and battery on a police officer,
knowingly receiving stolen property, leaving the scene of
property damage, possession to distribute cocaine, and
possession to distribute a class D substance, among others.

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left the mother twenty-five threatening text messages, and the

mother then sought a restraining order against the father. In

her affidavit, the mother stated that the father had been

"mentally, physically, and emotionally abusive for the last six

years or so." The judge did not credit the father's testimony

denying that the restraining order was because he had abused the

mother.

The father engaged in threatening and controlling behavior

of the mother throughout their relationship up to May 2, 2022.

Specific instances include the father breaking the mother's

door, stealing the mother's belongings, trying to run the mother

over, hiding the mother's SCRAM machine,4 and numerous 911 calls

made by the mother regarding the father. On May 2, 2022, during

a three way conversation between the mother, the father, and a

social worker, the father berated the mother for at least three

minutes during which the father called the mother a "child

molester," and other vulgar derogatory terms and said he was

going to "fuck her up." The father denied or minimized the

domestic violence throughout the relationship. Even though he

engaged in anger management classes and completed an intimate

partner abuse education program, the father lacked insight into

domestic violence. Additionally, the court did not credit the

4 "SCRAM" stands for "Secure Continuous Remote Alcohol
Monitor."

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father's testimony that he was never involved in an abusive

relationship or committed any physical violence.

By the time of trial, the father had not engaged in most of

his action plan tasks and he initially refused to allow a home

visit. The father lacked insight into his need to engage in

therapy and has not benefitted from the therapy in which he has

participated. The father challenges as clearly erroneous the

judge's finding that domestic violence "permeated" the

relationship between the mother and the father and the judge's

finding that the children were exposed to verbal abuse by the

father against the mother.

Discussion. 1. Father's unfitness. a. Standard of

review. After trial, the judge prepared "specific and detailed

findings" supporting the conclusion that the father was unfit to

parent the children and that his unfitness was not temporary.

Adoption of Quentin, 424 Mass. 882, 886, 888 (1997). See

Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018) (judge

must "find that the current parental unfitness is not a

temporary condition"). We review a decision to terminate

parental rights for abuse of discretion or clear error of law.

Adoption of Elena, 446 Mass. 24, 30 (2006). We afford deference

to the trial "judge's assessment of the weight of the evidence

and the credibility of the witnesses" (citation omitted).

Adoption of Quentin, 424 Mass. 882, 886 (1997). To terminate

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parental rights, the trial judge "must find by clear and

convincing evidence, based on subsidiary findings proved by at

least a fair preponderance of evidence, that the parent is unfit

to care for the child and that termination is in the child's

best interests." Adoption of Jacques, 82 Mass. App. Ct. 601,

606 (2012).

b. Father's factual challenges. The father claims that

the judge's findings that that domestic violence "permeated" the

parents' relationship and exposed the children to "verbal abuse"

were clearly erroneous. He submits that this characterization

was erroneous because no violent incidents occurred within two

years of the trial. The judge, however, was evaluating the

parents' entire relationship, which has lasted "at least ten

years." The decline in violence in the period before the trial

did not preclude the judge from finding that domestic violated

permeated the parents' relationship as a whole. The record also

supports the judge's finding that the children were exposed to

verbal abuse. An April 2019 report pursuant to G. L. c. 51A,

for example, details an incident in which the father antagonized

and yelled at the mother in the presence of one of the children.

The father also claims that the judge's findings of fact,

are misleading and not even-handed. See Adoption of Imelda, 72

Mass. App. Ct. 354, 365 (2008). The judge did credit that the

father was consistent with his therapy throughout June and July

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2020, he completed a psychological evaluation in 2021, and he

completed an anger management course and domestic violence

training program. Although it is true that the judge ultimately

found that the father did not benefit from these services, that

finding turned on credibility determinations and viewed as a

whole, the judge's findings and conclusions do not simply ignore

evidence favorable to the father. See Adoption of Anton, 72

Mass. App. Ct. 667, 673 (2008), quoting Adoption of Helen, 429

Mass. 856, 859 (1999) ("The judge's findings are both 'specific

and detailed,' demonstrating, as we required, that close

attention was given to the evidence" [footnote omitted]).5 We

discern no abuse of discretion.

c. Domestic violence. The father argues that the evidence

of his role in domestic violence was insufficient to support the

judge's conclusion that he was permanently unfit. Additionally,

he claims that the judge considered past domestic violence and

did not consider any progress he had made prior to trial.

Domestic violence is "highly relevant to a judge's determination

5 The father claims that the judge drew an adverse inference
against him due to English not being his primary language. This
issue was not raised below and it is waived. See Adoption of
Gregory, 434 Mass. 117, 120 n.1 (2001). Even were the issue not
waived, we find no support to this argument. The father was
represented by counsel and at no time did the father or the
attorney request the assistance of an interpreter. The father
communicated with the department through the course of several
care and protection proceedings.

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of parental unfitness." Adoption of Gillian, 63 Mass. App. Ct.

398, 404 n.6 (2005). This court has clarified that a parent's

improvements in addressing domestic violence do "not preclude

consideration of past behavior as a means of predicting the

likely future." Care & Protection of Olga, 57 Mass. App. Ct.

821, 830 (2003). The judge's findings about the father's

history of domestic violence, minimization of that violence,

inability to understand the effects of domestic violence on the

children, and failure to benefit from programs designed to

address domestic violence, were all amply supported by the

record. Although the father presented differing testimony at

trial, the judge repeatedly did not find him credible on those

issues. See Adoption of Nancy, 443 Mass. 512, 515 (2005).

The father also minimized the domestic violence in the

family. See Adoption of Lisette, 93 Mass. App. Ct. 284, 294

n.15 (2018) ("A parent's willingness to ignore or minimize

abusive behavior can be an indicator of unfitness, regardless of

whether the child is at risk of abuse or witnessing abuse").

Additionally, some of the domestic violence incidents took place

in front of the children. "It is well established that exposure

to domestic violence works a 'distinctly grievous kind of harm'

on children" that can include imperiling their physical safety

and psychological development. Adoption of Talik, 92 Mass. App.

Ct. 367, 374 (2017).

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The father argues that the judge abused his discretion by

focusing on stale instances of domestic violence perpetrated by

the father against the mother. We are unpersuaded. The father

was physically abusive to the mother causing pain and bruising

to her shoulder and forearm. Additionally, the mother detailed

a six-year history of verbal abuse and the father's egregious

and demeaning verbal tirade during a conversation with the

mother took place in May 2022, one month after the trial was

scheduled to begin.

d. Father's failure to benefit from services. We discern

no abuse of discretion in the judge's determination that,

despite the father's participation in many of the services

available to him to learn about domestic violence and improve

parenting skills, his failure to benefit from those services

left him unfit to parent the children. Adoption of Ulrich, 94

Mass. App. Ct. 668, 677 (2019) (parent's inability to benefit

from classes relevant to unfitness determination).

2. Posttermination and postadoption visitation with the

father. The judge ordered visitation with the father two times

per year subsequent to any adoption or guardianship of the

children. The power to order posttermination and postadoption

contact rests within the discretion of the trial judge. See

Adoption of Rico, 453 Mass. 749, 756 (2009). Where, as here,

"an adoptive family is available and postadoption visitation is

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sought, '[a] judge should issue an order of visitation only if

such an order, on balance, is necessary to protect the child's

best interest.'" Adoption of Cadence, 81 Mass. App. Ct. 162,

167-168 (2012), quoting Adoption of Ilona, 459 Mass. 53, 65

(2011). "The judge may properly decline to order visitation

when the adoptive parent's discretion to make decisions

regarding contact will adequately serve the child's best

interests." Adoption of Cadence, supra at 168. The judge must

weigh any "intrusion that an order imposes on the rights of the

adoptive parents, who are entitled to the presumption that they

will act in their child's best interest." Adoption of Ilona,

supra, at 64-65.

The judge's determination that the visitation order was in

the children's best interests was an appropriate exercise of her

discretion. The father struggled with insight into the effect

that his promises and demands were having on the children and

the difficult time the children were having with the father's

visits. The judge credited the expert testimony that Yenzi's

symptoms of anxiety had reduced since visits with the mother and

the father had decreased. Even where a bond exists between a

parent and child, providing a basis for postadoptive visitation,

such an order is not automatic, and is warranted only where it

is in the best interests of the child. See Adoption of Ilona

459 Mass. at 63-64. And an order for a specific minimum number

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of visits merely sets a floor, leaving to the adoptive parents

the possibility of additional visits if they would be in the

best interests of the child and permissibly balancing the

children's interests with the rights of the preadoptive family.

See Adoption of Zander, 83 Mass. App. Ct. 363, 366 (2013). We

discern no abuse of discretion in the order requiring two visits

per year.

3. Sibling visitation. The father alleges that the judge

erred by failing to issue orders of visitation between Yenzi and

Kendra and their half-brother, Josh.6 If siblings are separated

through adoption, a judge "shall whenever reasonable and

practical and based upon the best interests of the child, ensure

that children . . . shall have access to and visitation with

siblings." G. L. c. 119, 26B (b). The judge's order should

specify whether sibling visitation is in child's best interests

and if so, specify the form and schedule of such visitation.

Adoption of Rico, 453 Mass. at 753 n. 12.

Where the judge did not make a finding that sibling

visitation was in the children's best interests, there is no

obligation to order such contact.7 See generally Care &

6 A pseudonym.

7 The judge here does not appear to have been asked to make
findings as to whether such visitation was in the children's
best interests. Cf. Adoption of Zander, 83 Mass. App. Ct. 363,
367 (2013) (where "judge acknowledged the necessity of sibling

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Protection of Jamison, 467 Mass. 269, 284 (2014) ("the 'best

interests of the child' standard does not establish a

presumption in favor of sibling visitation"). "The standard

permits visitation only where the petitioning child has

demonstrated by a preponderance of the evidence that visitation

would serve the best interests of each sibling subject to a

visitation order." Id. In these circumstances, we discern no

error in the judge's failure to make a sibling visitation

schedule. If the children are dissatisfied with not having

visitation with their half-sibling, they can file a motion

pursuant to G. L. c. 119, § 26B (b). See Adoption of Rico, 453

Mass. at 757; Adoption of Flavia, 104 Mass. App. Ct. 40, 56, 57

(2024).

Decrees affirmed.

By the Court (Singh, Hand &
D'Angelo, JJ.8),

Clerk

Entered: July 30, 2024.

visitation, but left the timing and frequency of such visits to
the discretion of the adoptive parents" this court remanded for
judge to provide schedule for posttermination and postadoption
sibling visitation).

8 The panelists are listed in order of seniority.

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