Adoption of Garret

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

17-P-79 Appeals Court

ADOPTION OF GARRET (and two companion cases1).

No. 17-P-79.

Hampden. October 4, 2017. - January 22, 2018.

Present: Agnes, Sacks, & Lemire, JJ.

Adoption, Care and protection, Dispensing with parent's consent,
Visitation rights. Parent and Child, Adoption, Care and
protection of minor, Dispensing with parent's consent to
adoption, Custody. Minor, Care and protection, Custody,
Visitation rights.

Petitions filed in the Hampden County Division of the
Juvenile Court Department on August 2, 2012.

The cases were heard by Lois M. Eaton, J.

Katrina McCusker Rusteika for the mother.
Madeline Weaver Blanchette for Garret & another.
Briana Rose Cummings for Susan.
Jeremy Bayless for Department of Children and Families.
William B. Tobey, for the father, was present but did not
argue.

1
Adoption of Michael and Adoption of Susan. The children's
names, and all other names used in this opinion, are pseudonyms.
2

AGNES, J. This termination of parental rights case

involves a blended family consisting of seven individuals: the

mother, the father, and their child, Susan; Garret and

Elizabeth, the father's children from a prior relationship; and

Peter and Michael, the mother's children from her prior

marriage. On August 2, 2012, the Department of Children and

Families (DCF) filed two petitions pursuant to G. L. c. 119,

§ 24, in the Juvenile Court alleging that all five children were

in need of care and protection. A judge granted DCF temporary

custody of Elizabeth that same day. DCF was subsequently

granted temporary custody of the remaining four children on

August 21, 2012. Both the mother and the father waived their

rights to a temporary custody hearing on September 10, 2012.

The care and protection petitions were later consolidated.

The termination trial occurred over the course of eleven

days in 2014; twenty-three witnesses testified and over fifty

exhibits were introduced in evidence. The judge subsequently

made 913 written findings of fact and seventy-one conclusions of

law, including conclusions regarding the fourteen factors

enumerated in G. L. c. 210, § 3(c), with respect to each parent.2

As relevant to this appeal, the judge found that the mother and

2
These included findings and conclusions as to the
biological mother of Garret and Elizabeth, whom we shall refer
to as Harriet, and the biological father of Peter and Michael,
whom we shall refer to as Kevin. Harriet and Kevin are not
parties to this appeal.
3

the father were unfit to parent Susan and their other respective

children both at the time of trial and into the future.3 All of

the children were adjudicated in need of care and protection and

were committed to the care of DCF pursuant to G. L. c. 119,

§ 26. Pursuant to G. L. c. 210, § 3, the judge terminated the

mother's parental rights to Susan and Michael,4 and the father's

parental rights to Susan, Garret, and Elizabeth.5,6 The judge

found that it was in Garret's best interests to be placed in the

custody of his maternal grandmother. After concluding that the

mother (i.e., Garret's stepmother) was not Garret's de facto

parent, the judge further determined that visitation between

3
Despite the moral overtones of the statutory term "unfit,"
the judge's decision was not a moral judgment or a determination
that the parents do not love the children in question. The
inquiry instead is whether the parents' deficiencies or
limitations "place the child at serious risk of peril from
abuse, neglect, or other activity harmful to the child."
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017),
quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758,
761 (1998).
4
Although the mother was found unfit with regard to Peter,
her parental rights to him were not terminated. The mother does
not appeal this aspect of the judge's decision. Peter's motion
to dismiss his appeal as moot based on his attaining the age of
majority has been allowed.
5
The father does not contest the termination of his
parental rights on appeal.
6
Harriet's parental rights to Garret and Elizabeth were
also terminated. Kevin was found currently unfit to parent
Peter and Michael, but his parental rights were not terminated.
As previously noted, Harriet and Kevin are not parties to this
appeal.
4

Garret and the mother should be left to the discretion of DCF,

or any adoptive parent or guardian, "consistent with the best

interests of the child." The judge declined to order visitation

between Garret and the father on the basis that they did not

have a significant relationship or bond. No order was issued

for posttermination sibling visitation.

The mother, the father, Garret, Michael, and Susan raise a

variety of issues on appeal, which we address in detail below.

For the reasons that follow, we conclude that the judge's

findings were supported by the evidence before her, that she

properly applied the law to the facts found, and that she did

not abuse her discretion with regard to fitness, termination,

custody, and visitation. We therefore affirm the decrees.

Background. We summarize the relevant facts as found by

the judge, reserving some facts for later discussion.7

1. Familial relationship of the parties. a. Family one.

While living in New York, the father and Harriet entered into a

relationship at some point in 1999. The father was eighteen

7
The mother does not challenge any of the judge's 913
subsidiary factual findings, apart from the judge's finding,
discussed infra, that Garret spent only "a few months in
mother's care." While Garret and Michael state in their brief
that the judge relied on clearly erroneous findings, they do not
state which specific factual findings were erroneous. Instead,
they argue that the judge relied on some evidence while ignoring
other contrary evidence. The father also states that some of
the judge's findings "have no record support at all," but fails
to specify which findings are unsupported. We do not detect any
such findings among the ones upon which we rely.
5

years old at the time, and Harriet was thirteen years old.

Harriet became pregnant shortly after the relationship began,

giving birth to Garret in the summer of 2000. Harriet later

gave birth to the couple's second child, Elizabeth, in

September, 2001.

During the course of their relationship, the father

committed multiple acts of violence against Harriet. The father

did not live with Harriet and the children, did not support them

financially, and only visited the children when Harriet

requested that he do so. The relationship between the father

and Harriet ended in 2003. Garret and Elizabeth continued to

live with Harriet until 2010, when New York's Administration for

Children's Services removed the children from Harriet's custody,

citing her daily marijuana use, lack of suitable housing, and a

history of domestic violence between Harriet and her partners.

b. Family two. While living in New York, the mother and

Kevin began a relationship in 1996. Their first child, Peter,

was born in the winter of 1998. The mother and Kevin married in

1999, when the mother was sixteen years old. The couple had

another child, Michael, in the winter of 2003.

The couple's relationship was marred by Kevin's physical

abuse of the mother, which occasionally took place in front of

Peter and Michael. At some point in 2004 or 2005, Kevin moved

to Florida, where he currently resides. The mother petitioned
6

for custody of Peter and Michael in April, 2007, and the

petition was allowed on May 17, 2007. The mother and Kevin

divorced in 2010. Kevin did not see Peter or Michael again

until they were placed in DCF custody,8 although he did attempt

to contact them after he separated from the mother.

c. Blended family. The mother and the father entered into

a relationship in the summer of 2004, when the mother was

twenty-one years old and the father was twenty-three years old.

That same year, the mother and the father moved in together,

along with the mother's children, Peter and Michael. The

mother's and the father's child, Susan, was born in April, 2009.

However, Garret and Elizabeth, the father's older children, were

living with their mother, Harriet, and their maternal

grandmother, until the father received custody of both children

in the summer of 2010.

The mother and the father married on February 14, 2011. On

February 16, 2011, the mother and the father, along with the

five children, moved to Massachusetts. The trial judge found

that this move was motivated in part by the father's desire to

remove Garret and Elizabeth from the presence of their mother,

Harriet, and their maternal grandmother, and in part by the

8
Kevin was able to attend one in-person visit with Peter
and Michael since their placement in DCF custody. Kevin also
spoke with Peter over the telephone once per week in the time
leading up to trial.
7

mother's desire to hide from Kevin. With the exception of

Garret, who was sent to live in New York with his paternal

grandmother from October, 2011, to July, 2012, the blended

family lived together in a three-bedroom apartment until August,

2012, when the children were placed in DCF custody.

Although the mother filed for divorce from the father prior

to the trial in this matter, the judge found that the

relationship between the mother and the father continued

unabated throughout the course of trial. A judgment of divorce

nisi between the mother and father entered in the Probate and

Family Court in August, 2017.

2. Abuse of Elizabeth. a. Factual circumstances. On

August 1, 2012, Elizabeth, who was then eleven years old, ran

away from home. She was ultimately transported to a local

hospital after she was found with several injuries. Upon her

arrival at the hospital, a report pursuant to G. L. c. 119,

§ 51A (51A report), alleging neglect of all five children and

abuse of Elizabeth, was screened in for investigation.9 A DCF

investigator met with Elizabeth at the hospital and observed

numerous injuries on her body. When questioned about the source

9
The 51A report was supported after an investigation
conducted pursuant to G. L. c. 119, § 51B. The record includes
the 51A report, which was received in evidence without objection
for a limited purpose and played no role in the judge's
determinations. Both the 51A report and the 51B investigative
report were redacted prior to their introduction at trial.
8

of her injuries, Elizabeth indicated that they were inflicted by

the father.

At the hospital, Elizabeth was examined by a physician, who

was qualified at trial as an expert in pediatrics and child

abuse medical assessments. The physician's examination revealed

that Elizabeth had a number of traumatic injuries at various

stages of healing, including a broken arm. The physician

determined that these injuries likely resulted from abuse. As a

result, Elizabeth was placed in a foster home on August 2, 2012.

Garret, Peter, Michael, and Susan were removed from the mother's

and the father's care on August 21, 2012, after the mother and

the father were arrested and charged with crimes arising from

the abuse of Elizabeth.

On April 27, 2015, the father pleaded guilty to charges

arising from his abuse of Elizabeth.10 The father was sentenced

to from five to seven years in State prison, followed by a

probationary term of six years to be served from and after his

incarceration. On that same date, the mother pleaded guilty to

10
The father pleaded guilty to abuse of a child under
sixteen with bodily injury, two counts of assault and battery by
means of a dangerous weapon, and assault and battery. The
Commonwealth nol prossed two counts of rape of a child and two
additional counts of assault and battery by means of a dangerous
weapon.
9

assault and battery and wantonly permitting the endangerment of

a child.11 The mother was sentenced to five years of probation.

At trial, Elizabeth testified at length about the physical

and verbal abuse that she was subjected to by both the mother

and the father.12 Other evidence, including the testimony of the

physician who treated Elizabeth upon her arrival at the

hospital, two court investigator reports, and the testimony of

Elizabeth's foster mother, provided the judge with a detailed

account of Elizabeth's extensive injuries. While abundant

evidence regarding the abuse of Elizabeth was presented at

trial, the evidence was in conflict as to whether any of the

four other children living with the mother and the father were

physically abused.13

b. The mother's testimony at trial. At trial, the mother

consistently denied that she had knowledge of or participated in

the abuse of Elizabeth. The mother denied ever seeing the

11
With regard to the mother, the Commonwealth nol prossed
three counts of abuse of a child under sixteen with bodily
injury, and assault and battery by means of a dangerous weapon.
12
The mother denied physically abusing Elizabeth, but this
testimony was not credited by the judge.
13
Michael denied being hit by the mother or the father, and
Garret gave conflicting testimony as to whether he was
physically disciplined by either the mother or the father.
Elizabeth testified that the mother and the father also hit
Garret. The children were seen by doctors after being placed in
foster care, none of whom reported any concern that the children
(other than Elizabeth) had been physically abused.
10

father hit Elizabeth and stated that she was unaware of the

extensive injuries sustained by Elizabeth beyond two "cat

scratches." When questioned about photographs of Elizabeth's

injuries that she was shown prior to trial, the mother stated

that she believed that Elizabeth was abused, but denied any

knowledge of the abuse and indicated that she never saw the

father being abusive toward Elizabeth. The judge did not credit

any of this testimony. Instead, she concluded that the

"[mother] was a participant in [Elizabeth's] abuse, and that she

conspired with [the father] to intentionally deny [Elizabeth]

medical treatment."

The mother also testified that her relationship with the

father ended after she saw photographs of Elizabeth's wounds and

heard the allegations of the father's sexual abuse of Elizabeth.

The judge did not credit these assertions by the mother.

Instead, the judge concluded that the mother and the father

remained in a committed relationship throughout the duration of

the trial.14

14
Pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247
(1982), the mother submitted portions of a Probate and Family
Court docket indicating that a judgment of divorce nisi between
the mother and father entered in August, 2017. We may take
judicial notice of the records of other courts in related
actions. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
However, the fact that a judgment of divorce nisi entered does
not undermine the judge's conclusion that the mother and the
father remained in a committed relationship during trial and
11

3. DCF service plans. A total of seven DCF service plans

were formulated and approved prior to trial. DCF's initial goal

was to reunify the family. However, in April, 2013, after an

investigation conducted pursuant to G. L. c. 119, § 51B,

supported an allegation that Elizabeth was sexually abused by

the father, DCF's goal for all of the children was changed to

adoption.

The mother's service plan tasks were regularly updated

throughout the pendency of the case. Her tasks included

requirements that she attend parenting classes and engage in

anger management services and individual therapy. The service

plans also set boundaries related to the mother's supervised

visits with the children. In November, 2013, the mother was

given new tasks to complete under a revised service plan. The

revised plan assigned the mother twenty-two tasks to complete,

and included new tasks requiring the mother to (1) "[g]ain

insight regarding how the choice to remain in a relationship

with [the father] affects her ability to parent"; (2)

"acknowledge responsibility for not protecting [Elizabeth] from

abuse by [the father]"; and (3) "acknowledge responsibility for

does not conclusively demonstrate that the relationship has
ended.
12

abusing [Elizabeth]."15 The judge found that the mother complied

with the majority of the tasks laid out in the service plans,

but that she failed to complete the new tasks assigned to her in

the November, 2013, plan. More specifically, the judge found

that the mother did not gain any insight into how her choice to

remain with the father affected her ability to parent and that

she failed to acknowledge her own responsibility for Elizabeth's

abuse. The mother's failure to complete those enumerated tasks

led the judge to conclude that the mother did not benefit from

the services provided to her under her service plans.

Discussion. 1. Termination of the mother's parental

rights. Before a parent's rights may be terminated, the trial

judge must engage in a two-step analysis. Adoption of Nancy,

443 Mass. 512, 515 (2005). First, the judge must determine

whether the parent is fit to carry out the duties and

responsibilities required of a parent. Adoption of Gillian, 63

Mass. App. Ct. 398, 403-404 (2005). If the parent is deemed

unfit, the judge must then determine whether termination of

parental rights is in the child's best interests. Ibid. "[T]he

'parental fitness' test and the 'best interests of the child

test' are not mutually exclusive, but rather 'reflect different

15
Although the mother signed this service plan, she listed
a number of reservations that she had with its terms, which
included a statement that she "can't acknowledge having
physically abused the children because she didn't abuse them."
13

degrees of emphasis on the same factors.'" Care & Protection of

Three Minors, 392 Mass. 704, 714 (1984), quoting from Petition

of the New England Home for Little Wanderers to Dispense with

Consent to Adoption, 367 Mass. 631, 641 (1975).

a. The mother's fitness. While their underlying arguments

vary, the mother, the father, and Michael challenge the judge's

ultimate conclusion that the mother was unfit to parent Michael

and Susan as erroneous.16 We disagree.

In determining whether parental rights should be

terminated, parental fitness is the "critical inquiry," and a

determination that a parent is unfit must be proved by clear and

convincing evidence. Adoption of Gillian, 63 Mass. App. Ct. at

404, quoting from Adoption of Frederick, 405 Mass. 1, 4 (1989).

In making this determination, a judge must consider "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). "[O]ur role on review of a trial judge's findings is

extremely limited; we do not 'assess the evidence de novo, but

rather . . . determine whether the judge's findings were clearly

erroneous and whether they proved parental unfitness by clear

and convincing evidence.'" Adoption of Roni, 56 Mass. App. Ct.

16
Susan herself does not challenge the determination of the
mother's unfitness.
14

52, 58 (2002), quoting from Custody of Eleanor, 414 Mass. 795,

802 (1993).

In Custody of Vaughn, 422 Mass. 590, 595 (1996), the

Supreme Judicial Court observed that "physical 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." In this

case, there was considerable evidence that the other children

living in the household with the mother and the father knew of,

and were affected by, the abuse of Elizabeth.17 The judge found

17
The father challenges the judge's use of this evidence in
finding the mother unfit, arguing that much of the evidence
consisted of hearsay statements made by the children set forth
in the court investigator's report and that he did not have an
adequate opportunity to question the children about these
statements. However, it is settled that the report of a court
investigator is admissible and becomes part of the record in a
care and protection proceeding. See, e.g., Care & Protection of
Zita, 455 Mass. 272, 281 (2009). See also Mass. G. Evid.
§ 1115(c)(1) (2017). Any hearsay statements contained in the
report, including multilevel hearsay, are admissible if the
declarant is identifiable and the parties have a fair
opportunity to rebut the statements of both the investigator and
her sources "through cross-examination and other means."
Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990). Such
opportunity exists as to the hearsay statements of children
"where the child testifies, or where the trial judge has other
means to assess the credibility and accuracy of the child's
statements." Care & Protection of Inga, 36 Mass. App. Ct. 660,
664 (1994). See Adoption of Carla, 416 Mass. 510, 514 (1993).
Here, Garret, Elizabeth, and Michael testified at trial, and all
parties were provided with the opportunity to submit questions
to them, which were read to the children by the judge. The
court investigator was also listed as a potential witness, and
the opportunity to present her as a witness and question her was
afforded to the parties. See Care & Protection of Leo, 38 Mass.
15

that the other children described Elizabeth as "bad" and

confirmed that she was "hit with a belt because she is bad."

The judge further found that Michael knew of Elizabeth's abuse

based on his immediate denial, during his interview with a DCF

investigator, that anyone in the household was abused.

Moreover, Garret told the court-appointed investigator that

Elizabeth constantly did bad things, and he believed that the

investigator also would have beaten Elizabeth if the

investigator had been in the position of caring for her. The

judge credited the statements of Garret and Michael and relied

on those statements as evidence that the other children in the

household were aware of the abuse suffered by Elizabeth.

Contrast Care & Protection of Lillith, 61 Mass. App. Ct. 132,

142 (2004) (remanding case for clarification of judge's findings

of domestic violence occurring in front of child, where judge

failed to assess credibility of witnesses' conflicting

testimony). The judge thus was warranted in finding that the

other children in the home were exposed to the abuse of

Elizabeth while they were in the care of the mother, and they

thereby "suffer[ed] a distinctly grievous kind of harm."

Custody of Vaughn, 422 Mass. at 595. See G. L. c. 210,

§ 3(c)(ix) ("severe or repetitive conduct of a physically,

App. Ct. 237, 243 (1995). The judge thus did not err in relying
on the court investigator's report in support of her findings as
to the mother's unfitness.
16

emotionally or sexually abusive or neglectful nature toward the

child or toward another child in the home" to be considered in

determining parental fitness [emphasis added]).

Although the brunt of the abuse endured by Elizabeth was at

the hands of the father, the mother's role in the abuse was

significant. The testimony of Elizabeth and her foster mother,

which need not be recounted here, depicted the severity of the

physical abuse inflicted directly by mother. See G. L. c. 210,

§ 3(c)(ix). The mother pleaded guilty to criminal charges

brought against her for her role in the abuse of Elizabeth and

received a lengthy probationary sentence. In addition to

abusing Elizabeth directly, the mother also failed to protect

Elizabeth from the even more severe abuse perpetrated by the

father. The judge concluded that the mother "conspired with

[the father] to intentionally deny [Elizabeth] medical

treatment" for injuries inflicted by the father. See Adoption

of Larry, 434 Mass. 456, 472 (2001) (failure of mother to

protect child from father's physical abuse probative of mother's

parental unfitness).

The judge also made extensive findings that the mother

remained in a committed relationship with the father, despite

his serving from five to seven years in State prison after

pleading guilty to charges stemming from his abuse of
17

Elizabeth.18 The judge further found that the mother failed to

benefit from the services set forth in her DCF service plan and

concluded that the mother's parenting deficiencies were not

resolved, based on her "refusal to acknowledge her role in

[Elizabeth]'s abuse, her alliance with [Elizabeth]'s abuser, and

her deceitful actions to hide the abuse," which "continued

unabated despite the services offered." Despite the mother's

compliance with the majority of the tasks assigned to her under

her DCF service plan, the judge was warranted in concluding that

the mother's failure to benefit from those services rendered her

unfit to carry out her parental duties with respect to Michael

and Susan.19 See G. L. c. 210, § 3(c)(ii); Adoption of Lorna, 46

18
While the mother argues that the judge failed to consider
evidence demonstrating the mother's intent to separate from the
father, it is apparent from the judge's findings that she did
consider this evidence and determined that it was not credible.
See Adoption of Hugo, 428 Mass. 219, 229 (1998), cert. denied
sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999) ("As the
trier of fact, [the judge] was in the best position to evaluate
all the evidence, contradictory at times"); Adoption of Larry,
434 Mass. at 467-468.
19
The father argues that DCF failed to make reasonable
efforts to reunify the children with the mother because it did
not give mother more tasks to complete under her service plan.
Assuming that the father has standing to make such an argument,
it was not raised in a timely manner and is therefore waived.
See Adoption of Gregory, 434 Mass. 117, 124 (2001); Adoption of
Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72
(2011). In any event, the argument is without merit, as "[a]
determination by the court that reasonable efforts were not made
shall not preclude the court from making any appropriate order
conducive to the child's best interest." G. L. c. 119, § 29C.
We also note that the recent decision in Care & Protection of
18

Mass. App. Ct. 134, 143 (1999) (judge's determination that

parents failed to benefit from service plans not clearly

erroneous despite parents' substantial compliance with plan

requirements). The judge was entitled to conclude that the

mother's past actions, her failure to benefit from her service

plan, and her continued commitment to the father indicated that

she would be unable to protect her children from any future

abuse by the father, should such abuse occur. See Adoption of

Carlos, 413 Mass. 339, 349-350 (1992) (inquiry into future

parental fitness is appropriate when determining whether to

terminate parental rights).

Although little evidence was presented at trial as to the

physical abuse of any child in the home apart from Elizabeth, we

agree with the judge's conclusion that the exposure of the other

children in the care of the mother to the abuse of Elizabeth, in

addition to the mother's role in the physical abuse of

Elizabeth, her refusal to acknowledge and take responsibility

Walt, 478 Mass. 212 (2017), concerning "reasonable efforts" when
transferring custody to DCF at an emergency hearing and at a
seventy-two hour hearing, does not undermine our decision in
this case because the seventy-two hour hearing in the case
before us was waived by both the mother and the father, and the
removal of the children from their home was due to the severe,
repetitive abuse of Elizabeth by the mother and the father. See
G. L. c. 119, § 29C (reasonable efforts not required prior to
removal of children from home where a parent has subjected "the
child or other children in the home to . . . severe or
repetitive conduct of a physically or emotionally abusive
nature").
19

for such abuse, and her continued commitment to the father,

rendered the mother unfit to parent the children who were not

directly subjected to physical abuse.

b. Best interests of the children. The mother maintains

that the judge erred in finding that the termination of the

mother's parental rights was in the best interests of Michael

and Susan. Michael also argues that termination of the mother's

rights was not in his best interests. The mother further argues

that the judge abused her discretion by failing to articulate

her reasoning as to why the mother's parental rights were

terminated with respect to Michael but not Peter. The mother

also asserts that it was an abuse of discretion for the judge to

find that it was in Michael's best interests to terminate the

mother's parental rights, where the judge did not terminate the

parental rights of Kevin, Michael's biological father.

Once a parent is deemed unfit, the judge must then

determine whether it is in the best interests of the child to

end all legal relations between the child and the parent, taking

into consideration "the ability, capacity, fitness and readiness

of the child's parents" as well as "the plan propose by [DCF]."

Adoption of Nancy, 443 Mass. at 515-516, quoting from G. L.

c. 210, § 3(c). The "best interests of the child" standard

requires the trial judge to make a discretionary decision based

on her experience and judgment, and will not be overturned
20

unless it amounts to an abuse of discretion or a clear error of

law. Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied

sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999).

After reviewing the judge's extensive factual findings and

conclusions of law, it is apparent that the judge carefully

considered the evidence before her, including evidence that

Michael wished to live with the mother, the father (his

stepfather), and the other children, in reaching her best

interests determinations with respect to Michael and Susan. The

judge did not abuse her discretion in concluding that the

termination of the mother's parental rights was in the best

interests of both children. See Adoption of Nancy, 443 Mass. at

516. See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014). As to the mother's contention that the judge abused her

discretion in terminating the mother's parental rights to

Michael where the judge did not terminate the mother's parental

rights to Peter, the judge specifically noted that Peter was

approaching his seventeenth birthday, whereas Michael was eleven

years old at the time of trial. The decision was not an abuse

of discretion, but rather an indication of the judge's close

consideration of the record before her.20 The same is true with

20
The mother argues that the judge's failure to make a
distinction in her reasoning as to why termination of her
parental rights was in Michael's interest and not Peter's "casts
doubt on the justification for terminating [the m]other's rights
21

respect to the judge's decision not to terminate Kevin's

parental rights to Peter and Michael, given the differences in

the mother's and Kevin's respective circumstances that were

carefully detailed in the judge's factual findings.

Based on the foregoing, we conclude that the judge's

decisions with respect to the best interests of Michael and

Susan were not an abuse of discretion.

2. Custody of Garret. Garret's biological parents, the

father and Harriet, were both found unfit to care for Garret and

their parental rights were terminated. The termination of their

parental rights is not disputed on appeal. However, the mother

(Garret's stepmother) argues that she should have been granted

custody of Garret, and that the judge thus erred in granting

custody of him to his maternal grandmother. The mother relies

on her arguments in support of her fitness to parent Michael and

Susan, as well as the close bond between herself and Garret, in

support of this contention.

In making a custody determination, the "driving factor" is

the best interests of the child. Adoption of Irene, 54 Mass.

to [Michael]." However, "[w]hile not specifically stating the
reasons that termination was in the [child's] best interest, the
judge's factual findings were specific and detailed,
demonstrating that close attention was paid to the evidence and
the fourteen factors listed in G. L. c. 210, § 3(c). Although
it would be better practice specifically to state the reasons
that termination is in the child's best interest, such
specificity is not required." Adoption of Nancy, 443 Mass. at
516.
22

App. Ct. 613, 617 (2002). The wishes of the child at the center

of the custody determination must be considered, but are not

dispositive. Adoption of Nancy, 443 Mass. at 518. A judge's

determination as to what is in the best interests of the child

will not be overturned on appeal unless it amounts to an abuse

of discretion or a clear error of law. Adoption of Hugo, 428

Mass. at 225.

As discussed supra, it is apparent that the judge

considered all of the evidence before reaching each of her

conclusions in this case, including her decision as to what

custody arrangement was in Garret's best interests. The judge

noted Garret's wish to remain in the custody of the mother, but

ultimately decided that placing him in the custody of his

maternal grandmother, with whom he had previously lived for an

extended period of time, was in his best interests. The record

makes clear that Garret's wishes were properly considered in

determining which placement would best serve his interests, and

the judge was not required to make a custody determination in

accordance with his views on the matter. See Adoption of Nancy,

443 Mass. at 518. The judge did not abuse her discretion in

approving DCF's plan to place Garret in the custody of his

maternal grandmother; the judge considered the relevant factors
23

and her decision did not "fall[] outside the range of reasonable

alternatives."21 L.L. v. Commonwealth, 470 Mass. at 185 n.27.

3. Visitation. a. Visitation with the mother. Garret

and the mother contend that the mother should have been deemed

Garret's de facto parent and, as such, visitation between the

two should have been ordered by the judge.

"A de facto parent is one who has no biological relation to

the child, but has participated in the child's life as a member

of the child's family. The de facto parent resides with the

child and, with the consent and encouragement of the legal

parent, performs a share of the caretaking functions at least as

great as the legal parent." E.N.O. v. L.M.M., 429 Mass. 824,

829, cert. denied, 528 U.S. 1005 (1999). A finding that a

person is a de facto parent permits a judge to order visitation

between a child and the de facto parent in the absence of a

statute explicitly authorizing such visitation. See id. at 827-

832. In such a case, a judge may, through an exercise of her

equitable powers, order visitation between a child and the de

21
The father claims error on the basis that the judge
failed to consider his plan for placement of his children.
While the judge made no explicit finding as to the father's
plan, his proposed plan placed his children in the care of the
mother. The reasoning underlying the judge's adjudication of
the mother as unfit to care for her own children makes clear
that the mother was equally ill-suited to care for Garret. It
should also be noted that a condition of the mother's probation
required that she not have unsupervised contact with children
under the age of sixteen, except for her three biological
children, Peter, Michael, and Susan.
24

facto parent, provided that such an order is in the best

interests of the child. See ibid. See also Care & Protection

of Sharlene, 445 Mass. 756, 767 (2006).

For a caretaker to be recognized as a de facto parent,

there must be "a significant preexisting relationship that would

allow an inference, when evaluating a child's best interests,

that measurable harm would befall the child on the disruption of

that relationship." Care & Protection of Sharlene, supra.

Inherent in this determination is the idea that the bond between

the prospective de facto parent and the child is "above all,

loving and nurturing." Ibid. In reviewing a trial judge's de

facto parent determination, "[a]bsent clear error, we will not

substitute our weighing of the evidence for that of a trial

judge who had the opportunity to observe the witnesses and form

conclusions about their credibility, even if our weighing of the

evidence might have differed from that of the judge." A.H. v.

M.P., 447 Mass. 828, 838 (2006).

The judge concluded that the mother was not Garret's de

facto parent on the basis that Garret spent most of his time

living with his maternal grandmother after the mother and the

father married, and that he was only in the care of the mother

for "a few months." Our review of the record leads us to

conclude that the finding that Garret was in the care of the

mother for "a few months" was erroneous, as the evidence shows
25

that he lived with the mother for approximately fifteen months.

Additionally, we conclude that the judge erred in relying solely

on the length of time that Garret was in the mother's care in

concluding that the mother had not established her status as his

de facto parent. These errors, however, do not affect the

judge's ultimate conclusion that the mother was not Garret's de

facto parent.

In Blixt v. Blixt, 437 Mass. 649, 659 n.15 (2002), the

Supreme Judicial Court noted that the definition of "de facto

parent" set forth in ALI Principles of the Law of Family

Dissolution § 2.03(c) (Tent. Draft No. 4 2000) required that an

individual seeking de facto parent status live with the child

and perform care taking functions for at least two years. The

court again referred to the two-year requirement in the context

of de facto parent status in Care & Protection of Sharlene, 445

Mass. at 766-767. In that case, the court deemed the two-year

requirement a "further refinement[]" to the concept of de facto

parenthood, but expressly noted that such a requirement has not

been adopted in Massachusetts. Ibid. Again in A.H. v. M.P.,

447 Mass. at 837 n.13, the court discussed the two-year

requirement set forth in the ALI Principles, but chose to

"express no opinion on the two-year requirement." The court's

repeated references to the two-year requirement indicate that

the length of time a person seeking de facto parent status has
26

lived with the child is relevant to the court's determination,

but is not the sole factor.

Here, in addition to the fact that Garret and the mother

lived together for less than two years,22 the judge's findings

lead us to conclude that the bond between Garret and the mother

was far from nurturing. In our discussion of mother's parental

fitness, supra, we explained in detail that the children in the

household were exposed to the abuse of Elizabeth while in the

mother's care. While we do not ignore the close relationship

between Garret and the mother,23 the exposure of Garret to such

abuse leads us to conclude that the mother did not provide him

with the nurturing bond necessary to establish that she was his

de facto parent. See Care & Protection of Sharlene, 445 Mass.

at 767-768. As she is not his de facto parent, the mother is

not entitled to court-ordered visitation with Garret. See

E.N.O. v. L.M.M., 429 Mass. at 827-832. See also Care &

Protection of Sharlene, supra at 767.

22
This should not be understood as an expression of the
opinion that a caretaker of an infant or child under two years
of age cannot be considered a de facto parent.
23
Garret calls the mother "mommy" or "mom," and wants to be
placed in her care. The mother sees Garret as her son and, as
discussed above, sought custody of him. The mother also
regularly attended supervised visits with him prior to trial.
27

b. Visitation with the father. Garret argues that the

judge abused her discretion in failing to order posttermination

visits between Garret and the father.

In terminating parental rights pursuant to G. L. c. 210,

§ 3, the Juvenile Court judge has the equitable authority to

order visitation between a child and a biological parent where

such contact is in the best interests of the child. See

Adoption of Greta, 431 Mass. 577, 588 (2000); Adoption of Ilona,

459 Mass. 53, 63 (2011). "Whether such contact in any given

case is wise is a matter that should be left to the discretion

of the judge." Youmans v. Ramos, 429 Mass. 774, 783 (1999).

See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001).

Here, the judge found that there was no significant

relationship or bond between Garret and the father and concluded

that visitation should be left to the discretion of DCF or

Garret's adoptive family. The evidence shows that the father

was largely absent from Garret's life until receiving custody of

Garret in the summer of 2010. After the custody award in New

York, Garret only lived with the father for a period of

approximately fifteen months, during which time Garret was

living in an abusive household. The judge did not err in
28

concluding that it was not in Garret's best interests to order

visitation with the father.24

c. Sibling visitation. The father, Garret, Michael, and

Susan all contend that the judge erred in failing to order

sibling visitation for the children. Garret, Michael, and Susan

argue that the language of G. L. c. 119, § 26B(b), requires the

judge in this case to make a determination regarding sibling

visitation.

Posttermination sibling visitation is governed by G. L.

c. 119, § 26B(b), inserted by St. 2008, c. 176, § 84, which

states in pertinent part: "The court or [DCF] shall, whenever

reasonable and practical and based upon a determination of the

best interests of the child, ensure that children placed in

foster care shall have access to and visitation with siblings in

other foster or pre-adoptive homes . . . ." (emphasis added).

The plain language of the statute states that posttermination

sibling visitation may be managed by either the court or DCF.

Here, evidence was presented that sibling visitation was being

24
We note that DCF was exploring the idea of
posttermination contact between the father and Garret at the
time of trial.
29

provided by DCF, and the judge was thus under no obligation to

order visitation pursuant to G. L. c. 119, § 26B(b).25

Prior to the enactment of G. L. c. 119, § 26B, in 2008,

G. L. c. 119, § 26(5), inserted by St. 1997, c. 43, § 99, gave

the court exclusive control over sibling visitation orders. In

Adoption of Rico, 72 Mass. App. Ct. 214, 221 (2008), S.C., 453

Mass. 749, 753 n.12 (2009), this court construed the sibling

visitation provision set forth in G. L. c. 119, § 26(5), as

mandating that the judge decide "whether, and if so, how

visitation is to occur." Because we were interpreting a

different statute in that case, which by its plain language

provided that the judge alone was required to make sibling

visitation determinations, our decision there has no bearing on

our interpretation of the language set forth in the current

statute, G. L. c. 119, § 26B(b), which gives the judge and DCF

concurrent authority to ensure that sibling visitation is

carried out.26 The same can be said of this court's decision in

Adoption of Galvin, 55 Mass. App. Ct. 912, 913-914 (2002).

25
Additionally, the children have a statutory right to
petition the Juvenile Court under G. L. c. 119, § 26B(b), if
they are dissatisfied with the state of visitation.
26
Garret's and Michael's assertion that the Supreme
Judicial Court's decision on further appellate review, see
Adoption of Rico, 453 Mass. 749, is controlling is also
misplaced. The Supreme Judicial Court did not substantively
discuss sibling visitation beyond a footnote denoting its
approval of the manner in which the Appeals Court had dealt with
30

Finally, Garret and Michael rely on Care & Protection of

Jamison, 467 Mass. 269 (2014), in arguing that the judge below

was required to make a sibling visitation order. In that case,

the court determined that G. L. c. 119, § 26B(b), gave the

Juvenile Court subject matter jurisdiction to adjudicate a

petition for visitation between a child in DCF custody and his

siblings, who were subject to guardianship. Id. at 280. In its

analysis, the court stated: "Paragraph one [of G. L. c. 119,

§ 26B(b),] states that the Juvenile Court 'shall, whenever

reasonable and practical and based on a determination of the

best interests of the child, ensure that children placed in

foster care shall have access to and visitation with siblings in

other foster or pre-adoptive homes . . . .'" Id. at 277. This

language omits any reference to the initial portion of G. L.

c. 119, § 26B(b), which states: "The court or the department

shall, whenever reasonable and practical and based upon a

determination of the best interests of the child, ensure that

children placed in foster care shall have access to and

visitation with siblings in other foster or pre-adoptive homes

. . ." (emphasis added). In light of this plain language, Care

the issue. Id. at 753 n.12. The entirety of the Supreme
Judicial Court's opinion, rather, focused on the equitable
authority of the Juvenile Court to order posttermination
visitation between a child and his biological father. As such,
it also has no bearing on our adjudication of this case with
respect to sibling visitation.
31

& Protection of Jamison should not be read to foreclose a

judge's leaving sibling visitation to DCF, subject to further

review by the court.27

In sum, we conclude that the Juvenile Court did not err in

failing to make sibling visitation orders based on the plain

language of G. L. c. 119, § 26B(b), which allows DCF to manage

posttermination sibling visitation.

Decrees affirmed.

27
The same can be said of this court's decision in Adoption
of Zander, 83 Mass. App. Ct. 363, 367 (2013). In that case, the
trial judge chose to leave the timing and frequency of sibling
visitation to the discretion of the children's adoptive parents.
We held that the trial judge was required to provide a
posttermination sibling visitation schedule because G. L.
c. 119, § 26B(b), precluded the judge from leaving such
visitation to the discretion of adoptive parents. While we did
not mention the portion of the statute giving DCF concurrent
jurisdiction over sibling visitation, DCF was not involved in
the sibling visitation process in that case, and we do not read
it as precluding DCF from ensuring that sibling visitation is
being carried out.