Adoption of Cyril.

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

22-P-898

ADOPTION OF CYRIL.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Department of Children and Families (department) filed

a care and protection petition in January 2017 and was granted

temporary custody of Cyril.2 On November 9, 2020, a Juvenile

Court judge found the mother unfit, terminated her parental

rights, and approved the adoption plan of the department. The

mother appeals arguing that her due process rights were violated

and that the judge erred in finding the mother currently unfit

to parent Cyril. Concluding that the trial judge's delay in

issuing her decision did not violate the mother's due process

1 A pseudonym.
2 The original care and protection petition also involved the
mother's other two children, Sara and Ben (pseudonyms). Sara
turned eighteen before trial, and the petition as it relates to
her is not relevant to this appeal. The mother's parental
rights as to Ben were not terminated by the trial judge.
Regardless, Ben turned eighteen in September 2022, and is now
outside the Juvenile Court's jurisdiction. Thus, Cyril's case
is the only one relevant to this appeal.
rights and that the department presented clear and convincing

evidence of the mother's unfitness, we affirm.3

Background. We recount the relevant facts, reserving

certain details for later discussion. Cyril was born in July

2010. The mother has two older children, Sara and Ben (see note

2, supra), who also lived with Cyril and the mother. The

department has been involved with the family since 2012, when it

received reports of abuse relating to Sara. Since then, the

department has received additional reports of abuse and neglect

of the children. The mother and Sara got into several physical

fights in 2016 and 2017 and the mother admitted in front of

school personnel that she hit Sara with a belt. On January 11,

2017, the department filed a care and protection petition and

removed all three children from the home. Cyril was placed with

his paternal grandparents.

After the children's removal, the department provided the

mother with action plans which addressed, among other things,

the mother's mental health issues and verbal aggression with

school staff. A trial on the mother's fitness was held in

February 2019. In November 2019, the judge conducted a

permanency plan hearing and on January 9, 2020, the department

filed a motion to reopen the evidence. The judge held a hearing

3 Cyril's father did not appeal from the termination of his
parental rights and he is not involved in this appeal.

2
on February 11, 2020, and the motion to reopen the evidence was

allowed. After the reopened hearing was delayed due to the

COVID-19 pandemic, the judge heard additional testimony on July

7 and July 14, 2020. On November 9, 2020, the judge found the

mother unfit and terminated her parental rights as to Cyril. On

May 4, 2021, the judge issued her findings of facts and

conclusions of law.

Discussion. 1. Due process. The mother first argues that

the judge's delay in issuing her decision and written findings

violated the mother's due process rights. "[A]n extraordinary

and prejudicial delay in custody proceedings, not attributable

to the parents, in some circumstances, could rise to the level

of a violation of due process." Care & Protection of Martha,

407 Mass. 319, 330 (1990). To establish a due process

violation, the mother must show prejudice, i.e., "that the

outcome of this case would have been different had the

proceedings occurred more expeditiously." Adoption of Don, 435

Mass. 158, 170 (2001).

The mother argues that she was prejudiced by the delay

because it allowed the department to introduce evidence of

further bonding between Cyril and the paternal grandparents.

Specifically, the mother argues that the evidence presented at

the July 2020 trial date of Cyril's continued bonding with his

paternal grandparents and the mother's refusal to work with the

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department "shaped the outcome of this case." We are not

persuaded. Although the judge's delay in issuing her decision

was regrettable, the mother has not shown that her due process

rights were violated because, as discussed infra, even without

the evidence presented in July 2020, there was clear and

convincing evidence for the judge to conclude that the mother

was unfit.

The mother appears to separately argue that the judge

abused her discretion by deciding to reopen the evidence. A

judge may "reopen evidence to allow all parties to submit

relevant, updated information concerning parental fitness" and

to avoid making a determination on stale information. Adoption

of Rhona, 57 Mass. App. Ct. 479, 486-487 (2003). Here, the

mother did not object to the judge doing so. "Objections,

issues, or claims –- however meritorious –- that have not been

raised at the trial level are deemed generally to have been

waived on appeal." Palmer v. Murphy, 42 Mass. App. Ct. 334, 338

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(1997). Because the mother did not object in any way to the

judge reopening the evidence, this issue is waived.4,5

2. Termination of the mother's parental rights. The

mother next argues that the trial judge failed to consider Cyril

"as a child separate from" Sara and Ben when assessing the

mother's current fitness to parent him. She argues that the

evidence regarding Cyril was insufficient to support a finding

of unfitness, when considered separately from the evidence

presented about her other two children. "When reviewing a

decision to terminate parental rights, we must determine whether

the trial judge has abused [her] discretion or committed a clear

error of law." Adoption of Elena, 446 Mass. 24, 30 (2006).

4 The mother argues that, at the hearing on the department's
motion to reopen, her attorney had left the court room to
retrieve the mother, and was not present when the judge asked
the department whether it wanted her to "issue the findings that
are written." We cannot say from a review of the transcript
that the mother's attorney was not present during this part of
the conversation, although we acknowledge the mother's
attorney's affidavit to that effect, filed only with this court.
What the transcript does show is that the mother's attorney was
present during a discussion of dates for hearing new evidence
and that she explained to the judge what type of evidence the
mother would be presenting. Following this hearing, the
mother's attorney made no objections to the reopening of
evidence.
5 The mother also argues that by asking the department whether it

wanted the judge to "issue the findings that are written" the
judge indicated that she had already decided the case. However,
there is no error in the judge rewriting her findings in
response to the evidence presented at the July 2020 trial dates,
especially where the mother did not object to reopening the
evidence.

5
Termination of parental rights must be supported by "clear and

convincing evidence, based on subsidiary findings proved by at

least a fair preponderance of evidence." Adoption of Darlene,

99 Mass. App. Ct. 696, 702 (2021), quoting Adoption of Jacques,

82 Mass. App. Ct. 601, 606 (2012). "Parental unfitness . . .

means more than ineptitude, handicap, character flaw, conviction

of a crime, unusual life style, or inability to do as good a job

as the child's foster parent. Rather, the idea of parental

unfitness means grievous shortcomings or handicaps that put the

child's welfare much at hazard." Darlene, supra, quoting

Adoption of Leland, 65 Mass. App. Ct. 580, 584 (2006).

The judge considered evidence of physical abuse in the

household, emotional abuse directed toward Cyril, and the

mother's mental health issues, as well as the best interests of

Cyril, including bonding with his paternal grandparents (the

preadoptive parents), to determine that the mother was unfit and

in terminating her parental rights. These factors, which we

address in turn, support the judge's decision.

a. Physical and emotional abuse. "Violence within a

family is highly relevant to a judge's determination of parental

unfitness and the best interests of the children. As such, a

judge must consider issues of domestic violence and its effect

upon the children as well as a parent's fitness." Adoption of

Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "It is well

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established that exposure to domestic violence works a

'distinctively grievous kind of harm' on children, and instances

of such familial violence are compelling evidence for a finding

of parental unfitness." Adoption of Talik, 92 Mass. App. Ct.

367, 374 (2017), quoting Custody of Vaughn, 422 Mass. 590, 595

(1996).

Although the mother did not directly subject Cyril to

physical violence, even "the spectator of such abuse" suffers

grievous harm. Custody of Vaughn, 422 Mass. at 595. Also, a

judge does not "need to wait for inevitable disaster to happen"

before intervening. Adoption of Katharine, 42 Mass. App. Ct.

25, 32 (1997). See Custody of a Minor (No. 2), 378 Mass. 712,

714 (1979) ("the State's interest in protecting children from

suffering harm at the hands of their parents may properly be

preventive as well as remedial"). General Laws c. 210, § 3 (c),

requires a judge, when evaluating a parent's fitness, to

consider whether "the child or another member of the immediate

family of the child has been abused or neglected as a result of

the acts or omissions of one or both parents" and whether there

was "severe or repetitive conduct of a physically, emotionally

or sexually abusive or neglectful nature toward the child or

toward another child in the home."

The mother had a history of physical abuse toward her two

other children, including pushing, choking, hitting them to the

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point of police involvement, and hitting them with a belt

buckle. The mother also had a history of abuse toward Cyril's

father.

In addition to being in a household with physical abuse,

Cyril was the target of emotional abuse from the mother. She

verbally "trashed" Cyril's father, told Cyril repeatedly that

his father had raped Sara, and referred to the father as a

pedophile. The mother also told Cyril that he was stupid like

his father. These comments led Cyril to make comments during

therapy sessions about his father raping his sister and concerns

that he may become like his father.

Taking this evidence into account, the judge did not make a

clear error in finding that the physical abuse in the household,

and emotional abuse directed toward Cyril, contributed to the

mother's unfitness.

b. Mental health. "Mental disorder is relevant only to

the extent that it affects the parents' capacity to assume

parental responsibility, and ability to deal with a child's

special needs." Adoption of Luc, 484 Mass. 139, 146 (2020),

quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). The

department is to offer services to help address concerns about

mental health, but failure by the parent to recognize the need

for or to engage in treatment is relevant to a determination of

unfitness. See Adoption of Luc, supra at 147.

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Here, the department requested that the mother complete a

psychological evaluation to determine how her diagnosed mental

health issues, and her own history of trauma, impacted her

parental fitness. The mother insisted she did not need therapy

or a psychological evaluation. A social worker attempted to

refer the mother for a psychological evaluation, but the mother

refused, telling the worker she would seek an evaluation on her

own, but she then failed to do so. The mother also failed to

sign a release for the department to refer the mother for an

evaluation at the department's expense. The mother's refusal to

accept assistance from the department was appropriately

considered by the judge. See Adoption of Uday, 91 Mass. App.

Ct. 51, 54 (2017); Adoption of Mario, 43 Mass. App. Ct. 767, 774

(1997) (department's "duty . . . was contingent upon the

mother's fulfillment of her own parental responsibilities").

Despite not having access to a psychological evaluation,

the judge determined that the mother's untreated mental health

issues supported a finding of unfitness. In making this

determination, the judge considered that the mother had been

diagnosed with anxiety, depression, and posttraumatic stress

disorder, and that her behavior suggested that she may have

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other mental health concerns.6 The evidence presented at trial

showed a series of "unruly" behaviors from the mother, including

instances where she yelled at a social worker and exhibited

behavior toward staff at a residential program that was "so

inappropriate that the program refused to allow her to visit

[Ben] there"; she had "become very irate, vulgar, verbally

aggressive, and combative with [d]epartment staff on multiple

occasions."

Based on the evidence, the judge did not err in finding

that the mother's mental health issues contributed to her

unfitness.

c. Best interests of the child. "[T]he welfare of the

child is the most important consideration in determining whether

the parents are fit to care for their child." Bezio v.

Patenaude, 381 Mass. 563, 574 (1980). "In making a custody

determination, the 'driving factor' is the best interests of the

child." Adoption of Garret, 92 Mass. App. Ct. 664, 676 (2018),

quoting Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2002).

6 The judge could also have drawn adverse inferences from the
mother's failure to obtain a mental health evaluation, including
that the mother believed the resulting diagnoses would not
assist her effort to regain custody and that she was not willing
to take action to address whatever those diagnoses turned out to
be. Cf. Adoption of Helga, 97 Mass. App. Ct. 521, 526 (2020)
(permissible to draw adverse inference, based on mother's
absence from two days of trial, that "she was not making efforts
to be reunited with her children").

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At the trial, evidence was presented that after being

removed from the mother's care and placed with the paternal

grandparents, Cyril was up to date medically, attended school

regularly, was stable emotionally, and presented no behavioral

issues. A social worker testified that these were positive

changes from when Cyril was living with his mother. Another

social worker testified that she noticed his reading ability had

improved since he had been living with his grandparents. The

judge did not err and properly considered this evidence to

support her conclusion that "it would be in [Cyril]'s best

interests to end all legal relations between [him and his

parents]."7

Conclusion. Based on the evidence of physical abuse in the

household, emotional abuse toward Cyril, the mother's mental

health issues, and the best interests of Cyril, the trial judge

did not clearly err in finding that the mother was unfit to

7 We disagree with the mother's contention that the judge
committed reversible error by not making sufficient findings on
the bond between Cyril and the paternal grandparents, the harm
that would result from severing that bond, and what means would
be available to alleviate the harm. See Adoption of Katharine,
42 Mass. App. Ct. at 30-31. Such findings are required where
bonding with a substitute caretaker is a "decisive factor." Id.
at 30. That is not the case here, given the other evidence of
unfitness.

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parent Cyril, nor did the judge abuse her discretion in

terminating the mother's parental rights.8

Decree affirmed.

By the Court (Sacks, Shin &
D'Angelo, JJ.9),

Clerk

Entered: June 12, 2023.

8 The mother also argues, for the first time on appeal, that the
department failed to make reasonable efforts to provide
services. The mother's arguments on appeal are akin to "[a]
claim of inadequate services[, which] must be raised in a timely
manner to provide the judge and the department the opportunity
to make accommodations while the case is pending." Adoption of
Yalena, 100 Mass. App. Ct. 542, 554 (2021). As such, the issue
is waived. In any event, even if the department had failed to
make reasonable efforts, that would "not preclude the court from
making any appropriate order conducive to the child's best
interest." Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting
G. L. c. 119, § 29C.
9 The panelists are listed in order of seniority.

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