In re Xarina
In re Xarina
Opinion of the Court
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.
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 *532received 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.
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 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.
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, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques,
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.
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,
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,
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, *534to address her substance use, and to improve her parenting skills. See Adoption of Nancy,
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,
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,
The department is not required to retry a parent's unfitness in the event the proposed plan for a child changes. Adoption of Nancy,
Decree affirmed.
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.
The other children were also removed from the home at this time.
The proposed guardians were the same couple with whom Xarina had been residing and who had been identified as the preadoptive family.
This family was also identified as an adoption resource and a guardianship placement.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.