Heard: October 4, 2017.
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.
Rose Cummings for Susan.
Bayless for Department of Children and Families.
William B. Tobey, for the father, was present but did not
Present: Agnes, Sacks, & Lemire, JJ.
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.
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 (c0, with respect to
each parent.As relevant to this appeal, the judge
found that the mother and the father were unfit to parent
Susan and their other respective children both at the time of
trial and into the future. 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,
and the father's parental rights to Susan, Garret, and
Elizabeth., 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
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
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.
summarize the relevant facts as found by the judge, reserving
some facts for later discussion.
Familial relationship of the parties.
living in New York, the father and Harriet entered into a
relationship at some point in 1999. The father was eighteen
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
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.
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.
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 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,  although he
did attempt to contact them after he separated from 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.
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 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.
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.
Abuse of Elizabeth.
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. A DCF investigator met with Elizabeth
at the hospital and observed numerous injuries on her body.
When questioned about the source of her injuries, Elizabeth
indicated that they were inflicted by the father.
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.
April 27, 2015, the father pleaded guilty to charges arising
from his abuse of Elizabeth. 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 assault and battery and wantonly
permitting the endangerment of a child. The mother was
sentenced to five years of probation.
trial, Elizabeth testified at length about the physical and
verbal abuse that she was subjected to by both the mother and
the father. 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 ...