ADOPTION OF CONRAD (And Four Companion Cases).

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-1038

ADOPTION OF CONRAD (and four companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees of the

Juvenile Court that found them unfit to care for their five

children, terminated their parental rights, and declined to

order posttermination and postadoption visitation. The mother

argues that the judge made numerous errors in considering the

evidence and that without those errors, the evidence of the

mother's unfitness was insufficient. The father challenges,

among other things, the process by which the children testified

at trial. Both parents also challenge the findings that their

unfitness would continue indefinitely and that termination was

in the children's best interests. We affirm.

1Adoption of Timothy, Adoption of Rose, Adoption of Alice,
and Adoption of Julia. The children's names are pseudonyms.
Background. We summarize the trial judge's findings of

fact, with additional facts reserved for later discussion.

1. Procedural history. The mother and the father met when

they were both teenagers; their relationship was "on-and-off."

Both have long histories of substance use, mental illness, and

criminal activity. There is also a history of domestic

violence. At the close of trial in 2022, the mother and the

father had five children: Conrad (thirteen years old); twins

Timothy and Rose (eight years old); Alice (five years old); and

Julia (two years old).

The present matter is the second care and protection

petition filed against the parents. The first petition was

filed in June 2016, following the removal of the three oldest

children due to allegations of substance use, domestic violence,

and neglect by the parents. In September 2016, the mother gave

birth to the parents' fourth child, Alice, who was born

substance exposed.2 A further care and protection petition was

filed by the Department of Children and Families (department) on

Alice's behalf.

Following a trial of these first cases, the mother and the

father regained conditional custody of all four children. After

reunification the cases were dismissed, and thereafter submitted

2 The mother did not receive prenatal care with Alice. The
mother used heroin up until two days before Alice's birth.

2
for closing on November 19, 2019. Six days later, however, on

November 25, 2019, the department received a fresh report

alleging neglect, which detailed bruising on the twins, then

five years old, as well as on the mother's face. Following an

investigation, the department conducted an emergency removal and

commenced the instant care and protection action on December 6,

2019.

The mother gave birth to the parents' fifth child, Julia,

on June 26, 2020, prematurely at thirty-four weeks. The mother

did not receive prenatal care for Julia until she was twenty-

eight weeks pregnant. While Julia was in the hospital, the

department filed a further care and protection petition. Julia

was discharged to the department's custody, and has never lived

with her parents.

2. Trial. The trial occurred over twenty-one

nonconsecutive days from June 4, 2021, until July 7, 2022.

Seventeen witnesses testified including, as relevant to the

issues on appeal, three of the children (Conrad, Rose, and

Timothy) and an Ohio State police trooper.

The children's testimony was taken in July of 2021, using a

procedure discussed in more detail infra.3 The children

3 Although there was no discussion of the issue during
trial, in her findings the judge stated, without explanation,
that the children's testimony was admitted only for the
children's state of mind.

3
testified to their observations of the father's repeated

physical abuse of the mother in their home, resulting in

bruising "all over her body." The children also testified that

both the mother and the father hit them with their hands and a

belt. Each child testified that they did not feel safe in their

home with the mother and the father. The children also

testified that they would like to remain with their respective

preadoptive placements. In addition to the children's live

testimony, the department also submitted reports that contained

statements the children had made, including that the children

saw the father hit the mother, leaving bruising including on the

mother's face, and that the parents hit them.4

Following the children's testimony, and in the midst of

trial, the parents left on a cross-country road trip. They were

stopped in Ohio by a State trooper. The trooper appeared at

trial and testified that he initially stopped the parents for

speeding, but that the stop led to a search of the vehicle,

which yielded drug paraphernalia. The trooper also described a

video and audio recording from the cruiser where the parents

were held while their vehicle was searched. The recording was

ultimately excluded from evidence, but the trooper testified

4 At trial, both parents denied domestic violence in their
relationship. The mother testified that she was aware of the
children's concerns about how the father treated them.

4
that in the recording the mother handed the father an item from

her genital area after the father asked if she "had the stuff."

As a result of the incident in Ohio, the father was charged with

drug trafficking.5

3. Findings. The judge found that the mother and the

father were unfit and terminated their parental rights. In May

of 2023 the judge entered detailed findings of fact and

conclusions of law. As to the mother, the judge found that she

had significant issues with mental health, substance use,

domestic violence in her relationship with the father, housing

and employment instability, and criminal behavior. The judge

also found that the mother had failed to meaningfully address

these issues, and that the evidence showed that the substance

use, criminal activity, and domestic violence were ongoing, and

likely to continue indefinitely. Although the judge

acknowledged that the mother engaged in some services related to

her mental health, she had not done so "consistently or

earnestly," nor had the mother completed other action plan tasks

to better her parenting abilities.

5 The judge erroneously found that the trip caused the
mother and the father to miss a scheduled department visit.
Where the mother and the father missed several scheduled visits,
this was harmless error. See G. L. c. 231, § 119; Adoption of
Sherry, 435 Mass. 331, 336 (2001).

5
The judge also found that the parents' relationship was

"extremely unstable, toxic, and fraught with domestic violence

and criminal activity." The judge concluded that the mother

"persisted in her relationship with [the f]ather through this

case, despite the ongoing domestic violence and statements that

her own children were fearful of their father."

As to the father, the judge noted that he was "adamant that

he refuse[d] to work with the [d]epartment or engage in any

services whatsoever." The father, "by his own account, had done

nothing to address his current situation" and had not

"demonstrated any observable changes as to his substance abuse,

mental health diagnoses, domestic violence, or criminal

history."

The judge concluded that "[n]either parent has taken

responsibility for their own behaviors in their relationship

. . . [nor has] gained insight into any of the parental deficits

which have plagued them throughout this case" and their "lack of

insight continues to put the children at risk of further harm if

reunified to either parent's custody." Finally, the judge

declined to order posttermination or postadoption visitation.

Discussion. "To terminate parental rights to a child and

to dispense with parental consent to adoption, a judge must find

by clear and convincing evidence, based on subsidiary findings

proved by at least a fair preponderance of evidence, that the

6
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). "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

affections, and age." Care & Protection of Vick, 89 Mass. App.

Ct. 704, 706 (2016). The judge must determine "whether the

parent's deficiencies place the child at serious risk of peril"

(quotation and citation omitted). Adoption of Olivette, 79

Mass. App. Ct. 141, 157 (2011). A judge must also decide

"whether, 'on the basis of credible evidence, there is a

reasonable likelihood that the parent's unfitness at the time of

trial may be only temporary.'" Adoption of Ilona, 459 Mass. 53,

59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350

(1992). "[A] parent's unfitness is not temporary if it is

reasonably likely to continue for a prolonged or indeterminate

period." Adoption of Ilona, supra at 60.

The judge's findings and best interests determinations are

entitled to substantial deference, and we do not disturb the

judge's factual findings unless they are clearly erroneous.

Adoption of Hugo, 428 Mass. 219, 225 (1998); Adoption of

Jacques, 82 Mass. App. Ct. at 606-607.

1. Unfitness of the father. On appeal, the father

contends that the judge erred in concluding that his unfitness

7
would continue and in terminating his parental rights. There

was no error.

The father admits that he is currently unfit, and the

evidence of his unfitness was overwhelming. The father had an

extensive, ongoing criminal record spanning from 2003 through

trial that included charges and convictions of violent, drug,

and firearm offenses, for some of which he served committed

time. At the time of trial, the father was facing numerous

charges, and during trial, the father incurred more charges,

including from the Ohio incident. The father also had an

extensive history of substance use, continuing through trial.

There was evidence that during the pendency of this case, the

father overdosed twice.

As detailed below, there also was direct and circumstantial

evidence of domestic violence by the father against the mother

on numerous occasions, including in the children's presence and

sometimes resulting in bruising. There was also evidence that

the father hit the children.6

Finally, the father refused to work with the department in

any meaningful way. The father acknowledged his lack of

6 The paternal grandmother obtained abuse prevention orders
for herself and all five children against the father due to the
father threatening to harm her. While the father denied this
during his testimony, the judge did not credit him.

8
cooperation, testifying that he had done "fucking nothing" for

the department. The judge appropriately concluded that the

father's "shortcomings will continue undiminished in the future

with an attendant harmful effect on the subject children," and

thus, it was in the best interests of the children to terminate

his parental rights.7

2. Unfitness of the mother. There also was no error in

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

First, the mother had a long history of substance use that

affected her care of the children. She was consistently seen

with bruising and track marks, had multiple positive drug

screens through 2020, including when she was pregnant with

Julia, and Alice was born substance exposed. The mother's

substance use continued through trial and the mother recognized

her continued problem with opiates; however, she did not

participate in substance use treatment nor provide a relapse

prevention plan.8

7 The judge did not abuse her discretion in declining to
order posttermination and postadoption visitation with the
father. None of the children had visited with the father since
August 2020. The judge properly considered the relevant factors
in concluding that such an order was not necessary for the best
interests of the children. See Adoption of Ilona, 459 Mass. at
63-66; Adoption of Oren, 96 Mass. App. Ct. 842, 848 (2020).

8 While the mother enrolled in two substance use treatment
programs at the beginning of trial, the judge's finding that the
mother's enrollment was "disingenuous" was not clear error. See
Adoption of Luc, 484 Mass. 139, 144 (2020). Indeed, the mother

9
The mother's substance use also related to her lack of

prenatal care during her pregnancies with Julia and Alice, and

it was appropriate for the judge to note these similarities. As

noted supra, Alice was born substance exposed after the mother

did not receive prenatal care, and the mother used heroin up

until two days before Alice's birth. As to Julia, when the

mother finally received prenatal care, she had track marks and

bruises on her arms and hands, and had a positive drug screen

while pregnant. The judge permissibly could discredit the

mother's reasons for her lack of prenatal care, as well as her

testimony that Julia was born prematurely because of

preeclampsia.9 See Custody of Eleanor, 414 Mass. 795, 799

(1993).

Second, the mother had an extensive criminal history

spanning from 2007 to 2020. This history included drug-related

charges as well as charges for assault, abuse prevention act

violations, and shoplifting. Several criminal incidents

occurred with the father, including the midtrial incident in

stated she enrolled herself in those programs "knowing the trial
was coming."

9 The judge erroneously stated that Julia was also born
substance exposed. Given the other evidence of the mother's
unfitness as to Julia, this error was not material. See G. L.
c. 231, § 119; Adoption of Sherry, 435 Mass. at 336.

10
Ohio.10 There was a clear nexus between the mother's criminal

behavior and harm to the children. Indeed, the mother had been

arrested while the children were in her care.11

Third, there was ample evidence that the mother did not

have stable housing or means to support the children. At the

time of trial, the mother had lived in the maternal

grandmother's home for approximately three months, where she

planned to reunite with the children. Before that, the mother

stayed with the father in different hotels and apartments and

had twice been evicted for nonpayment of rent. As to the

mother's employment, the record supports that it was sporadic,

and the judge could permissibly discount the mother's testimony

that she was employed at the beginning of trial. See Custody of

Eleanor, 414 Mass. at 799.

10The judge erroneously found that both the mother and the
father incurred drug trafficking charges as a result of the
incident. This was harmless error. See G. L. c. 231, § 119;
Adoption of Sherry, 435 Mass. at 336.

11The father and the mother argue that the testimony of the
Ohio trooper concerning the excluded videotape was erroneously
admitted, and thus should not have been considered as to the
mother's criminal history. We note that neither counsel for the
mother nor the father moved to strike the trooper's testimony
regarding the videotape after the videotape itself was excluded
-- and we note as well that it was unclear why the videotape was
not admissible evidence. Moreover, it was not the videotape but
the trooper's testimony of his observations that established the
presence of drug paraphernalia in the parents' car.

11
Beyond these shortcomings, the mother had a pattern of

inconsistent treatment for her mental health diagnoses of

attention deficit hyperactivity disorder, bipolar disorder, and

depression. While the mother testified that she had a new

psychiatrist, they had yet to meet. The mother's mental health

had a nexus to her ability to care for her children: the mother

acknowledged that her mental health resulted in financial

difficulties, and the children recognized the mother's mental

health symptoms, stating that the mother stayed in bed

throughout the day and at times was unable to drive them to

school, resulting in their frequent tardiness. See Adoption of

Luc, 484 Mass. 139, 146-147 (2020); Adoption of Frederick, 405

Mass. 1, 9 (1989).

And finally, there was very concerning evidence of domestic

violence upon the mother by the father. This included direct

evidence -- the children's testimony and the children's

statements regarding domestic violence that appeared in the

department reports admitted at trial. Leaving aside the

question of whether it was proper for the judge to rely on this

evidence, which we discuss infra, there was also strong

circumstantial evidence of domestic violence -- the mother was

12
seen with bruising on numerous occasions, not just by her

children but also by social workers and medical professionals.12

The mother denied experiencing domestic violence, and did

not follow through with services related thereto, despite it

being on her action plan. The mother also did not appreciate

the effect that witnessing domestic violence had on the children

and took no action to address the children's statements that

they did not feel safe with the father.13 See Adoption of

Arianne, 104 Mass. App. Ct. 716, 723 (2024). She stated that

the children fabricated their statements that the father hit

her. The judge appropriately concluded that the mother's

"failure to terminate her relationship with [the f]ather

demonstrate[d] her inability to put her children's needs above

her own."

Many of the mother's issues in the current proceeding were

present in the previous petition. The mother did not complete

most of her action plan tasks and failed to show sufficient

progress. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677

(2019). Thus, there was no evidence that the mother's

The judge was not required to credit the mother's
12

explanations that the bruising arose from Alice hitting the
mother's face or as a side effect of prescribed blood thinners.
See Custody of Eleanor, 414 Mass. at 799.

There were numerous police responses to the parents' home
13

due to neighbors hearing arguments.

13
circumstances had changed or would change in any meaningful way.

See Adoption of Edgar, 67 Mass. App. Ct. 368, 373 (2006).14

3. The children's testimony. Both parents challenge the

judge's reliance on the testimony of Conrad, Timothy, and Rose,

arguing that the judge improperly limited the cross-examination

of the children such that the parents were denied the ability to

"rebut adverse allegations concerning [their] child-rearing

capabilities" (citation omitted). Adoption of Luc, 484 Mass. at

152.15 See Adoption of Roni, 56 Mass. App. Ct. 52, 55 (2002).

The mother also argues that the children's hearsay statements in

the department's G. L. c. 119, § 51B, and court investigation

reports could not be considered as evidence, for the same

reason. See Adoption of Luc, supra at 152-153 (hearsay

14In light of the issues above, the judge also did not
abuse her discretion in declining to order posttermination and
postadoption visitation with the mother where such an order was
not necessary to protect the children's best interests. See
Adoption of Ilona, 459 Mass. at 63-66. Among other things, the
mother had extensive, ongoing contact with the father, the
children were well bonded and doing well in their preadoptive
placements, and the children's caretakers were willing to allow
visits as long as they were in the best interests of the
children.

15In her findings the judge stated, in a footnote,
"Throughout these findings, the Court admitted any and all of
the subject Child's [sic] statements for the limited purpose of
understanding her [sic] state of mind. See Mass. G. Evid.
§ 1115(d)(l) (2020)." We discern no material error in this
regard because, as discussed infra, we perceive no reason on
this record why the children's testimony could not be relied
upon generally.

14
contained within department records admissible for statements of

primary fact if hearsay source is identified and available for

cross-examination). See also Mass. G. Evid. § 1115(b)(2)

(2024). The father argues similarly, adding that the judge's

limitations and accommodations to the children violated due

process and that such limitations and accommodations could not

be imposed without expert evidence demonstrating that the

children would be traumatized if they testified in the ordinary

manner.

The judge allowed the testimony of the three oldest

children (ages twelve, seven, and seven at the time of their

testimony), subject to specific procedures that the judge set

after input from the parties. In particular, the judge ordered

that the lawyers would not ask the questions; rather, the

parties would submit proposed questions to the judge in advance,

and the judge would conduct the examination of each child. The

procedure contemplated that the parties could submit proposed

follow-up cross-examination questions during a recess after each

child's direct examination, but no face-to-face cross-

examination by counsel would be allowed; instead, the judge

would conduct the follow-up cross-examination of each child.

The parents would not be present in the court room, but could

watch the proceedings by videoconference. The judge expressly

found that the procedures were necessary because it would be

15
traumatic for the children to testify with their parents in the

court room and to be questioned by seven different attorneys.

Thereafter, the department, counsel for the mother, and

counsel for the father submitted proposed questions. The judge

conducted the questioning. After each child was questioned, the

court took a recess, and the judge asked counsel to confer with

their clients and to submit any additional questions. At the

close of each child's testimony and after the recesses, the

judge asked additional questions of each child.

We recognize that "[d]ue process concerns and fundamental

fairness require that a parent have an opportunity effectively

to rebut adverse allegations concerning child-rearing

capabilities, especially in a proceeding that can terminate all

legal parental rights." Adoption of Luc, 484 Mass. at 152,

quoting Adoption of Mary, 414 Mass. 705, 710 (1993). This

includes the opportunity to conduct reasonable, "effective

cross-examination," and we assume, without deciding, that this

right presumptively includes the ability to cross-examine the

witnesses directly, rather than through written questions asked

by a judge.16 We further recognize that the parents' arguments

16"Effective cross-examination" will generally involve the
opportunity to question the witness directly and to follow up in
real time. Variance from this process will require unusual
circumstances, and findings by the judge. Cf. Adoption of Roni,
56 Mass. App. Ct. at 57 ("[A]ny order limiting parties' access
to, or participation in, any portion of the proceedings [should]

16
go not only to the children's court room testimony, but also to

the admissibility under the Luc criteria of the children's

hearsay statements in the department's reports. See Adoption of

Luc, supra at 152-153.

Here, however, the parents' due process and related

arguments regarding the limits on cross-examination do not

establish reversible error. First, the arguments have not been

properly preserved for our review. Prior to the taking of

evidence, while the judge was working out a process, the parents

did raise some objections. As to the procedure of written

questions, the parents stated that written questions "do[] not

allow for follow-up, do[] not allow for spontaneity." The

parents did not, however, specifically argue that the judge was

violating a due process right to have counsel question the

children directly. Further, neither the father nor the mother

objected at the conclusion of the children's testimony, nor did

they, for example, make an offer of proof as to what evidence

they believed they could have adduced if they had been allowed

to question the children directly.

Moreover, the parents have not provided an adequate record

to review the claimed error. The record before us does not

be narrowly tailored to the particular protection required in
the circumstances, explained by the judge and supported by
explicit findings").

17
include the contents of the judge's conversations with the

parties during the recesses, and neither parent sought to

reconstruct the record on that point. As a result, we do not

know of particular questions that were requested during the

recesses but not asked.17 At most, the father argues on appeal

that the parents were unable to explore the children's potential

biases and suggestibility. However, the children were asked

several questions on that topic.18

Finally, and relatedly, the parents have not shown how they

were prejudiced by the process here. As noted, they have not

shown that they had additional questions to ask, or what facts

they could reasonably have anticipated establishing through

cross-examination that could have had a material impact on the

proceedings. The children's testimony primarily involved the

issue of domestic violence, but the evidence of unfitness,

detailed above, involved far more than domestic violence. Thus,

17There was a conversation on the record after the recess
following Conrad's testimony where the judge responded that she
had asked a question already and that she was "not going to ask
anything that's based on regular cross. It's got to be based on
the direct." However, we have no record of the questions to
which the judge was referring.

18As to the absence of expert evidence supporting the
judge's procedure, while "[a]n order allowing a child to testify
outside the presence of [his or] her parents to avoid trauma
should ordinarily be supported by an explicit finding to that
effect," Adoption of Roni, 56 Mass. App. Ct. at 55, (and the
judge made such a finding here), our courts have not required
expert testimony to support the type of order at issue.

18
even if the judge's reliance on the children's testimony and

hearsay statements was error (and we do not hold that it was),

it was not prejudicial in light of the other overwhelming

evidence concerning the mother's and the father's unfitness.

Decrees affirmed.

By the Court (Sacks,
Englander & Grant, JJ.19),

Clerk

Entered: January 10, 2025.

19 The panelists are listed in order of seniority.

19