Adoption of Xarina.

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revision and are superseded by the advance sheets and bound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

18-P-82 Appeals Court

ADOPTION OF XARINA.1

No. 18-P-82.

Barnstable. July 9, 2018. - August 22, 2018.

Present: Blake, Sacks, & Ditkoff, JJ.

Adoption, Care and protection, Dispensing with parent's consent.
Minor, Care and protection, Adoption. Parent and Child,
Care and protection of minor, Adoption, Dispensing with
parent's consent to adoption. Practice, Civil, Care and
protection proceeding, Adoption.

Petition filed in the Barnstable County/Town of Plymouth
Division of the Juvenile Court Department on November 4, 2014.

The case was heard by James J. Torney, Jr., J.

Michael S. Penta for the mother.
Richard A. Salcedo for Department of Children and Families.
Kerri Zeldis for the child.
Rizwanul Huda for the father.

BLAKE, J. Following a trial in the Juvenile Court, a judge

found the mother unfit to parent her daughter Xarina, terminated

her parental rights, and approved the plan of the Department of

1 A pseudonym, as are all names in this opinion.
2

Children and Families (department). On appeal, the mother

argues that in the circumstances of this case, it was error for

the judge to terminate her parental rights when the father's

rights were not terminated.2 She also claims it was error for

the judge to approve the plan proposed by the department. We

affirm.

1. Background. Xarina was born in September, 2006. The

mother and the father divorced in 2009. Following the divorce,

the mother had legal and physical custody of Xarina. When

Xarina was approximately two years old, a report pursuant to

G. L. c. 119, § 51A (51A report), was filed against the mother

alleging neglect of the child. Thereafter, the father was

awarded sole legal and physical custody of Xarina.

The father married his current wife, Susan, in 2011, and

they have two children together. The department investigated

numerous allegations against the family, including that the

father had physically abused Adam, Susan's son from a prior

relationship. In October, 2014, the department received a 51A

report after school staff noticed bruises on Adam. As part of

its investigation, the department's social workers spoke with

Xarina, who, after some resistance, reported that she saw her

father hitting Adam and pushing him to the ground. She also

2 As discussed infra, the only issues before us pertain to
the mother's rights and not to the decision of the department to
withdraw its request to terminate the father's parental rights.
3

said that she did not want to get anyone into trouble and that

the father told her that if she spoke to the department, she

would be taken away. She stated that she did not feel safe in

the home and thought someone would "kill her." In November,

2014, the department filed a petition pursuant to G. L. c. 119,

§ 24, alleging that Xarina was in need of care and protection.

She was removed from the father's home and placed in the custody

of the department that same day.3

A court investigation report filed in February, 2015,

stated that the department had little to no contact with the

mother, and her whereabouts were often unknown. None of the

mother's five children is in her custody. She has a history of

homelessness, substance use, domestic violence, and untreated

mental health issues.

By February, 2016, the mother had failed to meet with the

department about Xarina and had failed to complete any of the

tasks in her service plan. She failed to attend many of the

Juvenile Court proceedings. By contrast, the father was

cooperating with the department and stipulated in February,

2016, that he was currently unfit to care for Xarina. In March,

2016, the judge determined that the mother was unfit to parent

Xarina and awarded the department permanent custody of the

3 The other children were also removed from the home at this
time.
4

child. Neither the mother's nor the father's parental rights

were terminated at that time.

In November, 2016, the department changed its goal for

Xarina from reunification to adoption and sought to terminate

the mother's and the father's parental rights. In April, 2017,

on the day of trial, the department reported to the judge that

after a lengthy discussion, the department had decided not to

seek termination of the father's parental rights. The

department proceeded against the mother. The mother, who was

represented by counsel, did not attend the trial. Two

department social workers testified. The adoption social worker

testified that the plan for adoption that the department had

filed with the court would be changed to a plan with a goal of

guardianship following a department permanency planning

conference.4 See G. L. c. 119, § 29B. The judge found that the

mother was unfit and that it was in Xarina's best interests to

terminate the mother's parental rights, and he approved the

department's plan. This appeal followed.

2. 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,

4 The proposed guardians were the same couple with whom
Xarina had been residing and who had been identified as the
preadoptive family.
5

that the parent is unfit to care for the child and that

termination is in the child's best interests." Adoption of

Jacques, 82 Mass. App. Ct. 601, 606 (2012). In determining

whether the best interests of a child are served by termination

of parental rights, the judge "shall consider the ability,

capacity, and readiness of the child's parents . . . to assume

parental responsibility" (emphasis omitted). Adoption of Elena,

446 Mass. 24, 31 (2006), quoting from G. L. c. 210, § 3(c).

"Where there is evidence that a parent's unfitness is not

temporary, the judge may properly determine that the child's

welfare would be best served by ending all legal relations

between parent and child." Adoption of Cadence, 81 Mass. App.

Ct. 162, 169 (2012). "Unless shown to be clearly erroneous, we

do not disturb the judge's findings, which are entitled to

substantial deference." Adoption of Jacques, supra at 606-607.

a. The mother's unfitness. The mother argues that it was

error for the judge to terminate her parental rights, because

her actions did not trigger the filing of the care and

protection petition, and that termination was not necessary

where the permanency goal for Xarina changed from adoption to

guardianship. She argues that the department sought termination

of her parental rights to "punish her" for failing to visit with

Xarina, and that the department's decision to leave the father's

parental rights intact supports this argument.
6

Notably, the mother does not contend that the judge's

finding that she is unfit is error. She concedes that she has

not completed any of the tasks in her service plan, that she has

visited Xarina only once during the pendency of the proceedings,

and that she is not in a position to take custody of the child.

Although "[u]nfitness does not mandate a decree of termination,"

Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008), and

termination is not a prerequisite for guardianship, it is unfair

to leave a child in limbo indefinitely. See Adoption of Nancy,

443 Mass. 512, 517-518 (2005). Indeed, as is the case here,

termination is in the best interests of a child when it would

bring some measure of stability to the child's life. Absent

termination, the mother would have the right "to receive notice

of or to consent to any legal proceeding affecting the custody,

guardianship, adoption or other disposition of the child"

(emphasis supplied). G. L. c. 210, § 3(b). See Adoption of

Willow, 433 Mass. 636, 647 n.11 (2001). As such, even though

the goal for Xarina had changed from adoption to guardianship,

termination of the mother's rights "significantly eases the

[child's] path to a stable placement." Id. at 647. Once the

mother's rights are terminated, "transition[] to [a] permanent

home[] will be expedited" for the child, whether it be adoption

or guardianship. Id. at 648.
7

The mother's claim that the department sought termination

of her parental rights in order to punish her, because the

department did not also seek to terminate the father's parental

rights, also fails. As the mother acknowledged in her brief, it

is well established that a judge may terminate the parental

rights of one parent while keeping intact the parental rights of

the other. See id. at 644. As the mother and father have not

had a relationship for many years and do not constitute a single

family for purposes of G. L. c. 119, § 1, see Adoption of

Willow, supra, whether the father is unfit or whether his

parental rights were also terminated were not material

considerations in adjudicating the mother's parental rights.

The department's decision not to seek to terminate the father's

rights finds support in the lengthy period of time during which

Xarina lived with him, his partial compliance with his service

plan tasks, his consistent visits with Xarina, and his bond with

her.

The judge's decision to sever the legal ties between the

mother and Xarina was based on his determination that the mother

was unlikely to work with the department to resolve her mental

health issues, to address her substance use, and to improve her

parenting skills. See Adoption of Nancy, 443 Mass. at 516.

Indeed, the judge made detailed findings, amply supported by the

record, that the mother's failure to visit Xarina, engage in any
8

services, and work with the department or notify them of her

whereabouts demonstrated "ongoing serious parental neglect of

[the child]." He also properly considered the requisite factors

under G. L. c. 210, § 3(c), and found that factors (i), (ii),

(iii), (iv), (vi), (vii), (viii), (ix), (x), (xii), and (xiv)

were applicable. Moreover, the judge explicitly assessed the

mother's capacity to parent "within the context of [the child's]

particular needs," and determined that the mother "lacks the

capacity to meet [the child's] specialized needs." There was no

error.

b. The department's plan. The mother next argues that it

was error for the judge to approve the department's plan for

guardianship of Xarina, as there was no rationale to explain why

the department changed the goal from adoption to guardianship

and why it served Xarina's best interests. In considering the

issue of parental unfitness, "the judge must consider the

[guardianship] plan proposed by [the department] before

terminating parental rights." Adoption of Dora, 52 Mass. App.

Ct. 472, 474 (2001). "[T]he judge is required to consider and

meaningfully evaluate plans put forward by the department and by

the parents." Adoption of Cadence, 81 Mass. App. Ct. at 170.

The department's plan need not be "fully developed," Adoption of

Paula, 420 Mass. 716, 722 n.7 (1995), but it must lend itself to

substantive consideration. See Adoption of Willow, 433 Mass. at
9

652-653 ("The adoption plan need not be fully developed to

support a termination order; it need only provide sufficient

information about the prospective adoptive placement so that the

judge may properly evaluate the suitability of the department's

proposal" [quotation omitted]).

Here, the mother did not set forth her own plan for Xarina,

and she was not required to do so. However, she does not

challenge Xarina's placement with the current foster parents.

Instead, the mother's only contention is that the judge did not

adequately find that guardianship was in Xarina's best

interests.

Although it would have been better practice for the

department to offer evidence to explain why the goal was changed

from adoption to guardianship, this is not fatal. The

controlling consideration is the welfare of the child. See

Adoption of Cadence, 81 Mass. App Ct. at 171. The judge's

finding that continued placement with the foster family is in

Xarina's best interests is amply supported by the record.5 She

has been living with this family since November, 2014, and has

thrived there. Her weight and hygiene have improved, she

completes daily tasks without much prompting, and she is

progressing academically. Xarina also sees herself in this home

5 This family was also identified as an adoption resource
and a guardianship placement.
10

as she gets older. The current foster parents are both

employed, have a suitable home, and have a strong commitment to

and bond with Xarina. Ultimately, the judge found that Xarina

had made "tremendous strides" in her foster home.

The department is not required to retry a parent's

unfitness in the event the proposed plan for a child changes.

Adoption of Nancy, 443 Mass. at 517. Indeed, G. L. c. 119,

§ 29B, provides multiple options for permanency plans for

children and does not expressly require the department to choose

one exclusively. Adoption of Nancy, supra at 517 ("The statute

. . . provides a greater range of permanent placement options

for children than simply limiting placement to adoption . . .").

In reviewing a trial judge's consideration of a plan, we will

not disturb the decision absent an abuse of discretion or clear

error of law. See Care & Protection of Yetta, 84 Mass. App. Ct.

691, 696 (2014). Here, there was none.

Decree affirmed.