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Adoption of Xarina

Appeals Court of Massachusetts, Barnstable

August 22, 2018

ADOPTION OF XARINA.[1]

          Heard: July 9, 2018.

          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.

          Present: Blake, Sacks, & Ditkoff, JJ.

          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 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 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 ...


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