Adoption of Zendaya.

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-1420

ADOPTION OF ZENDAYA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and father appeal from decrees of a Juvenile

Court judge finding the mother and the father unfit to parent

their daughter, Zendaya, 1 and terminating their parental rights.

The father also argues that the judge erred in not granting him

postadoption visitation with the child. We affirm.

Background. We summarize the facts as they were found by

the trial judge. The Department of Children and Families

(department) have been involved with the family since Zendaya

was born in August 2019, substance exposed to suboxone and

norepinephrine.

The mother has not adequately or consistently engaged in

services to better her parenting skills. She has a substance

1 A pseudonym.
misuse history and has demonstrated a pattern of relapsing,

engaging in some services, only to stop engaging in the services

or relapse again. The mother did not consistently engage in

individual therapy or psychiatric services. She has a lack of

insight into her parental shortcomings and mental health.

Throughout the entirety of the case, the mother has never been

able to maintain stability in her housing and at times has been

homeless.

The father has a significant criminal history. He does not

have stable housing or employment. The father has not engaged

in therapy and has failed to work with the department or

consistently engage in any services. The father has not

undergone an evaluation to assess his mental health needs.

The mother and the father have a history of domestic

violence. Over the course of their relationship, the mother and

the father have engaged in serious verbal and physical

altercations, requiring police intervention on numerous

occasions. The mother has persisted in her relationship with

the father despite her acknowledgment of ongoing domestic

violence. The mother has obtained restraining orders against

the father but each time has allowed them to expire or has

violated the restraining order. The mother has demonstrated an

inability to stay away from the father for more than a few weeks

at a time. The father has not engaged in domestic violence

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services and adamantly denies any violence in his relationship

with the mother.

Discussion. 1. Unfitness and termination of parental

rights. "To terminate parental rights to a child, the judge

must find, by clear and convincing evidence, that the parent is

unfit and that the child's 'best interests will be served by

terminating the legal relation between the parent and child.'"

Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of

Ilona, 459 Mass. 53, 59 (2011). "While a decision of unfitness

must be supported by clear and convincing evidence, . . . a

judge's findings will be disturbed only if they are clearly

erroneous" (citations omitted). Adoption of Paula, 420 Mass.

716, 729 (1995). Whether termination of parental rights is in a

child's best interest is a discretionary decision. See Adoption

of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034

(1999). We review the judge's determination of Zendaya's best

interest for abuse of discretion or clear error of law. See id.

We discern no error or abuse of discretion in the judge's

conclusions, discussed supra, that the mother and father were

unfit to parent Zendaya and that their unfitness was likely to

continue indefinitely.

The judge's finding of the mother and father's substance

misuse was wholly supported by the record. Substance abuse is a

factor to be assessed in considering a parent's unfitness to the

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extent that it prevents a parent from providing "minimally

acceptable care" to a child. G. L. c. 210, § 3(c)(xii);

Adoption of Zoltan, 71 Mass. App. Ct. 185, 191 (2008). The

mother's substance misuse began in 2005. Her appearance and

behavior from 2021 to 2022 suggested that she was under the

influence of substances. The mother's participation in

treatment was minimal. In February 2021, the mother was

observed under the influence and outside "for extended periods

of time" with Zendaya who was "underdressed for the weather."

The father began using cocaine in approximately 2000 at the age

of twenty-two and over the years has become addicted to Percocet

and heroin. Although the father denied it, his lengthy criminal

history includes drug charges.

The father argues that the judge erred by relying on stale

information to support his conclusion that domestic violence

remained an ongoing problem for the parents. Family violence is

"highly relevant to a judge's determination of parental

unfitness and the best interests of the child[]." Adoption of

Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "[P]hysical

force within the family is both intolerable and too readily

tolerated, and . . . a child who has been either the victim or

the spectator of such abuse suffers a distinctly grievous kind

of harm." Adoption of Garret, 92 Mass. App. Ct. 664, 671

(2018), quoting Custody of Vaughn, 422 Mass. 590, 595 (1996).

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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).

Over the course of their relationship, both parents have

engaged in serious verbal and physical altercations and many of

them have resulted in police involvement. The mother and

father's history of domestic violence, and the persistence in

seeing each other despite their tumultuous relationship were

amply supported by the record. Some of the incidents between

the mother and the father occurred several years ago and others

are more recent, causing mother to enter a domestic violence

shelter in August 2022, several months before the trial. The

record also demonstrates the parents' inability to understand

the effects of domestic violence on Zendaya and their failure to

benefit from programs associated with domestic violence.

The father denied any 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"). The father's failure to

acknowledge and fully address his issues of domestic violence

was relevant to and supports the finding of unfitness. See

Adoption of Carla, 416 Mass. 510, 519-520 (1993). We discern no

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abuse of discretion in the judge's determination that despite

the father's participation in services available to him to learn

about domestic violence, his failure to benefit from those

services left him unfit to parent the children. The judge is

permitted to consider failure to engage in services to support

an unfitness finding. Adoption of Willow, 433 Mass. 636, 645

(2001).

The father also argues that the judge did not adequately

establish a nexus between parents' domestic violence and the

father's fitness. The judge, however, after outlining numerous

violence incidents between the parents, concluded that returning

"custody of the child to either or both parents would place the

child at grievous risk of exposure to domestic violence" which

would harm the child's physical and emotional well-being.

"[N]either agencies responsible for the welfare of children nor

judges sitting on these sorts of custodial questions need to

wait for inevitable disaster to happen." Adoption of Katharine,

42 Mass. App. Ct. 25, 32 (1997).

The judge made "specific and detailed findings" supporting

the conclusion that the mother and father were unfit to parent

Zendaya and that their unfitness was not temporary. 2 Adoption of

2 The father argues that since he had been given physical
custody of his son the court must point to specific evidence as
to why he could be fit to parent his son but not Zendaya. See
Adoption of Rhona, 57 Mass. App. Ct. 479, 487 (2003). We see no

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Quentin, 424 Mass. 882, 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"). The

judge properly considered that the mother had engaged in few

action plan tasks and services while she continued to engage in

the same unstable and violent behaviors, while father engaged

minimally in his action plan tasks or services. See Adoption of

Ulrich, 94 Mass. App. Ct. 668, 677 (2019) ("mere participation

in the services does not render a parent fit without evidence of

appreciable improvement in her ability to meet the needs of the

child[]" [quotation and citation omitted]). The mother has had

violent and emotional outbursts and has bitten her son on more

than one occasion. "Even where a parent has participated in

programs and services and demonstrated some improvement, we rely

on the trial judge to weigh the evidence in order to determine

whether there is a sufficient likelihood that the parent's

unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60.

The judge considered the mother's efforts to engage in services,

separate herself from the father by moving to a different state,

and stabilize her housing situation by moving from a shelter

merit to this argument where his son was still in the custody of
the department and because he had turned eighteen during the
pendency of this care and protection, the judge made no findings
as to the fitness of the father in regard to his son.

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into a home, but concluded that mother's engagement in services

was "inconsistent at best," and that the time mother had spent

away from father in the months leading up to trial was "not

enough time to convince this Court that Mother has successfully

distanced herself from Father." As for the mother's housing

stability, the judge found that she had not established stable

housing at the time of trial. Although mother did live in an

apartment, she had not yet lived there long enough to

demonstrate a deviation from her previous inability "to maintain

an apartment for more than a few months."

The mother takes issue with the judge's finding that the

department's goal for Zendaya is adoption by her current foster

placement. She argues that this finding is clearly erroneous

because the adoption plan instead indicates that the

department's first placement choice is with Zendaya's maternal

grandmother. While the mother is correct that the grandmother

volunteered as a placement option, the judge explained in his

findings that the grandmother was considered for placement, but

because she currently lives in New Hampshire, an Interstate

Compact on the Placement of Children (ICPC) process must be

completed before Zendaya could be placed at the grandmother's

home. A prior ICPC had been denied with regard to placement of

Zendaya's brother because the grandmother said she could not do

the required classes. The record does not reflect that the

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grandmother's circumstances have changed. These obstacles are

not present with Zendaya's current foster placement. There was

sufficient support in the record for the judge to find that the

department's goal was adoption by Zendaya's current foster

placement.

The mother also argues that the child's position at trial

was that termination was not in her best interests and that

should have been "weighted heavily." The child, however, has

not appealed. Moreover, although a child’s wishes are entitled

to weight, they "are neither decisive nor outcome dispositive .

. . and must be considered against the backdrop of the

[parents’] unfitness." Care and Protection of Vick, 89 Mass.

App. Ct. 704, 710 (2016). The judge did not abuse his

discretion.

The father argues that the judge erred by finding that the

father "has failed to . . . engage in any services whatsoever"

when he participated in about ten weeks of an online domestic

violence class, but did not finish the program. While the judge

could have used more precise language, we interpret this

conclusion to mean that he considered father's limited

participation in programming to be insignificant to the extent

that he gave it no weight in his broader analysis of the

father's fitness. A lack of precision in the judge's findings

9
does not itself warrant disturbing the judgment. See Custody of

Zia, 50 Mass. App. Ct. 237, 245 (2000). 3

The father also argues that because his action plan tasks

were not sufficiently connected to the alleged deficiencies in

his parenting abilities, the judge should not have taken into

account his failure to complete certain tasks that the father

argues were not relevant to his deficiencies. In particular, he

argues that the judge's finding that he did not engage in

individual therapy should not have counted against him because

the department has not established any issue with the father's

mental health. Treatment of a mental health disorder, however,

is not therapy's only function. In the father's case, the

judge's findings establish that the department tasked father

with engaging in therapy to "focus on de-escalation strategies

as well as insight to his behaviors and how they can negatively

affect his children." This task was relevant to the father's

history of domestic violence and its effect on his children and

his failure to comply with it supported the judge's finding.

2. Postadoption visitation with the father. The power to

order postadoption contact rests within the discretion of the

3 The father similarly disputes the judge's finding that he
lacked stable housing because he stayed at a friend's house in
the months leading up to and during trial. The judge acted
within his discretion in not finding these accommodations to
constitute stable housing.

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trial judge, who may determine the extent to which decisions

regarding visitation are left to the judgment of the adoptive

family. See Adoption of Rico, 453 Mass. 749, 753-754 (2009).

We review a judge's decision not to order postadoption

visitation with a parent for abuse of discretion. See Adoption

of Xarissa, 99 Mass. App. Ct. 610, 623-624 (2021). Before

mandating an order of postadoption contact between a child and

parent whose rights have been terminated, a judge must find both

that visitation would be in the child's best interests and that

those interests will not be adequately served by the preadoptive

or adoptive parent's discretion. See Adoption of Cadence, 81

Mass. App. Ct. 162, 168 (2012). 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, 459 Mass.

at 64-65. An order of postadoption contact is more likely in

circumstances where the primary "parent-child relationship in

the child's life remains with the biological parent" and other

adults have not fully assumed that role. Adoption of Vito, 431

Mass. 550, 564 (2000).

Zendaya has remained in the department's custody since 2021

when she was less than two years old. She has resided in the

same home since that time. Zendaya has been doing well and is

up to date medically and with her immunizations. Zendaya has a

11
great relationship with her foster parents. When visitation was

available to the parents, their attendance was inconsistent.

The judge acted well within in his discretion in not ordering

postadoptive visitation.

3. Sibling visitation. The father alleges that the judge

erred by failing to issue orders of post adoption visitation

between Zendaya and her brother. 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 rights

with . . . siblings." G. L. c. 119, 26B (b). The statutory

"provisions reflect a legislative determination that the judge

must decide whether and, if so, how sibling visitation is to

occur, . . . [and] also the schedule and conditions of

visitation." Adoption of Rico, 72 Mass. App. Ct. 214, 220-221

(2008), S.C. Adoption of Rico, 453 Mass. 749. See Adoption of

Flavia, 104 Mass. App. Ct. 40, 56-57 (2024).

Putting aside the question whether the father continued to

have standing to seek sibling visitation once his parental

rights were terminated, see Adoption of Zander, 83 Mass. App.

Ct. 363, 367 n.6 (2013), where the judge did not make a finding

that sibling visitation was in the children's best interests,

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there is no obligation to order such contact. 4 See generally

Care & 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"). In these

circumstances, we discern no error in the judge's failure to

make a sibling visitation schedule.

If Zendaya is dissatisfied with not having visitation with

her brother, she can file a motion pursuant to G. L. c. 119,

§ 26B (b) and thereafter if the judge finds it is in the best

interests of Zendaya, then the judge must specify in an order or

orders the form and schedule of such visitation. See Adoption

4 Unlike Adoption of Zander, 83 Mass. App. Ct. 363, 367
(2013), where "[t]he judge acknowledged the necessity of sibling
visitation, but left the timing and frequency of such visits to
the discretion of the adoptive parents," and this court
"remand[ed] for the judge to provide a schedule for
posttermination and postadoption sibling visitation," the judge
here does not appear to have been asked to (and did not) make
findings as to whether such visitation was in the children's
best interests.

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of Rico, 453 Mass. at 754 n. 12; Adoption of Flavia, 104 Mass.

App. Ct. at 57.

Decrees affirmed.

By the Court (Singh, Hand &
D'Angelo, JJ. 5),

Clerk

Entered: August 14, 2024.

5 The panelists are listed in order of seniority.

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