NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-458
ADOPTION OF CHASE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a one-day trial, a judge of the Juvenile Court found
the father unfit to parent Chase, terminated his parental
rights, and found the adoption plan of the Department of
Children and Families (department) to be in Chase's best
interests. On appeal, the father contends that the judge
(1) erroneously terminated his parental rights given the
department's failure to make reasonable efforts to reunify,
(2) abused her discretion in finding his unfitness likely to
continue, and (3) erred in terminating his parental rights
before choosing between his and the department's competing
adoption plans. We affirm.2
1 A pseudonym.
2 The mother is not a party to this appeal. Background. We summarize the judge's findings of fact,
supplemented by uncontested evidence from the record.3
In November 2023, on the same day that Chase was born, the
department received a report under G. L. c. 119, § 51A, alleging
neglect of Chase by his mother after Chase's urine tested
positive for cocaine and marijuana.4 During its G. L. c. 119,
§ 51B investigation, the department learned that the mother had
received limited prenatal care and used "crack" cocaine and
marijuana throughout her pregnancy.
Following its investigation, the department was granted
temporary custody of Chase. A temporary custody hearing was
scheduled for December 1, 2023, but was continued to December
19, 2023, after both parents failed to appear.5 Both parents
again did not appear on December 19, leading the judge to find
that they had forfeited their rights to a hearing.6 At a status
3 The trial judge made forty-seven findings of fact, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
4 The judge made specific findings of fact about the mother, which we include only as they bear on the father's parental fitness.
5 It appears the father was not formally served with notice of the proceeding. However, the judge found that the department investigator instructed the father to report to the Juvenile Court to be served and appointed counsel.
6 The father had an open warrant for his arrest at the time of Chase's birth, which the judge suggested could have influenced his decision to not go to the courthouse.
2 hearing on April 29, 2024, neither parent appeared, and a trial
date was set for July 29, 2024.7
After the department obtained custody of Chase, the father
was offered services and action plans were created. The initial
action plans required the father to, among other things,
complete a substance abuse evaluation, engage in services to
address mental health and anger management, attend parenting
classes, obtain appropriate housing, participate in family
visits once a week, provide provisions for Chase during visits,
meet monthly with a social worker, and engage in domestic
violence education. The father made efforts toward completing
several of these tasks, but he was not able to achieve
improvement in his parenting skills and judgment due to his lack
of participation in services. Notably, the father did visit
with Chase under the supervision of department social workers
between November 2023 and April 2024, but during these visits,
the father was often on the telephone with his sister, "appeared
very uncomfortable," and did not bring provisions for Chase,
such as diapers and clothing. Moreover, the father's living
7 The father was being detained pretrial pursuant to G. L. c. 276, § 58A, on a thirteen-count indictment at the time of the status hearing. There was no trial date set on the criminal indictment at the time of the care and protection trial.
3 situation remained precarious, and he did not have a plan to
care for Chase.
Additionally, the father has a history of violent and
volatile behavior, including in front of Chase. For example,
shortly after Chase's birth, hospital security intervened and
removed the father from the hospital room due to his aggressive
behavior toward the mother and the department's workers.8 In
April 2024, the father was arrested and detained "on
dangerousness," pursuant to G. L. c. 276, § 58A, on a thirteen-
count indictment involving illegal substances and firearms. The
father remained detained at the time of the care and protection
trial. The father's counsel requested that the father be
physically present for trial and the court issued a writ of
habeas corpus to ensure his appearance.
The department proposed that Chase be adopted by his foster
parents, who had already adopted Chase's maternal half-sibling,
and with whom Chase had lived "for nearly all his 8 months of
life." Alternatively, the father offered his sister as an
adoptive resource for Chase. However, because the father's
sister lives in Vermont, an Interstate Compact on the Placement
8 The father's behavior escalated after the department informed him and the mother that it would be removing Chase from their care and custody.
4 of Children (ICPC) home study was required but not completed by
the trial date.
Following a trial on the merits, the judge issued a decree
on July 30, 2024, terminating the father's parental rights and
approving the department's adoption plan, though "the specific
plan will require further approval of the Court."9
Discussion. 1. Reasonable efforts to reunify. The father
argues that the judge erroneously terminated his parental rights
given the department's failure to make reasonable efforts to
reunify as well as the judge's failure to make a reasonable
efforts determination, thereby resulting in an outcome
"inconsistent with substantial justice."10 Although we agree
with the father that the department should have done more to
schedule visits once the father was confined to a correctional
facility, we conclude that its failure to meet its regulatory
obligations in that specific regard does not require reversal.
9 On January 30, 2025, the judge issued findings and conclusions in support of her determinations.
10The father raised the issue of reasonable efforts for the first time at trial. The father's claim on appeal is akin to "[a] claim of inadequate services[, which] must be raised in a timely manner to provide the judge and the department the opportunity to make accommodations while the case is pending." Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021). Although the department maintains that the father waived his reasonable efforts claim by not raising it prior to trial, for purpose of this appeal, we assume without deciding that he preserved the claim.
5 "The department is 'required to make reasonable efforts to
strengthen and encourage the integrity of the family before
proceeding with an action designed to sever family ties.'"
Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting
Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). Even
when a parent is confined, the department's regulations require
it to "make all reasonable efforts to work in cooperation with
incarcerated parents to promote a healthy relationship with
their children, and to avoid permanent separation." 110 Code
Mass. Regs. § 1.10 (2008). See Adoption of Franklin, 99 Mass.
App. Ct. 787, 795 (2021). These required "efforts shall include
regular visitation at the correctional facility, as well as the
holding of case conferences and other consultations at the
correctional facility." 110 Code Mass. Regs. § 1.10. However,
the department's duty is contingent on a parent's fulfillment of
his or her own parental responsibilities. See Adoption of
Mario, 43 Mass. App. Ct. 767, 774 (1997).
We agree with the father that the department's efforts to
set up visits after the father was confined to the house of
correction fell short of meeting its obligations. The father
testified at trial that he asked the department social worker to
arrange for visitation with Chase, but that that request "was
never accommodated." The judge found that "no evidence was
introduced to suggest he was denied [visits] by the Department,"
6 without reconciling the fact that the department presented no
evidence that it made any attempts to set up visits with Chase
and the father while the father was confined. Regardless, even
where the department did not make reasonable efforts, the judge
can still "mak[e] any appropriate order conducive to the child's
best interest." G. L. c. 119, § 29C. Ultimately, "[w]hile
courts protect the rights of parents, 'the parents' rights are
secondary to the child's best interests and . . . the proper
focus of termination proceedings is the welfare of the child.'"
Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of
Gregory, 434 Mass. 117, 121 (2001).
Outside of visits, the father also claims that the
department did not provide him with adequate services to address
his parenting deficiencies. While the father might have
benefited from additional services, especially while confined,
the consequences of any department failure to provide those
services must be viewed in light of the father's failure to make
effective use of such services and opportunities when they were
made available to him at other times.
Additionally, while the judge's findings of fact and
conclusions of law do not include the requisite finding
regarding whether the department had made reasonable efforts
toward reunification, we conclude that a remand would serve no
useful purpose here. See Care & Protection of Rashida, 488
7 Mass. 217, 220 (2021), S.C., 489 Mass. 128 (2022). As stated
supra, "even where the department has failed to meet [its
reasonable efforts] obligation, a trial judge must still rule in
the child's best interest." Adoption of Ilona, 459 Mass. at 61.
Here, as discussed infra, the judge found that the father's
"unfitness . . . is likely to continue into the indefinite
future to a near certitude," and she concluded that Chase's best
interests would be served by termination of the father's
parental rights.
Where the father's unfitness was permanent, and where
Chase's best interests warranted termination, nothing would be
accomplished by remanding and requiring the department to
provide reunification services. At this stage of the
proceedings and of Chase's life, a hypothetical determination
that the department reasonably should have done more at an
earlier stage would not change the judge's disposition of the
case.
2. Unfitness determination. The father next contends that
the judge erred in terminating his parental rights because the
facts as found were not sufficient to support a determination of
likely indefinite unfitness. We disagree. When faced with a
request to terminate parental rights, the judge must find by
clear and convincing evidence that the parent is unfit, and that
"the unfitness will continue undiminished into the future,
8 affecting the welfare of the child." Adoption of Lisette, 93
Mass. App. Ct. 284, 296 (2018). See G. L. c. 210, § 3 (c) (vi)
("reasonable expectation that the parent will not be able to
provide proper care or custody within a reasonable time
considering the age of the child"). "Parental unfitness is
determined by considering a parent's character, temperament,
conduct, and capacity to provide for the child's particular
needs, affections, and age." Adoption of Anton, 72 Mass. App.
Ct. 667, 673 (2008). The judge's subsidiary findings must be
proved by a preponderance of the evidence and will only be
disturbed if clearly erroneous. See Custody of Eleanor, 414
Mass. 795, 799 (1993). On review, we give "substantial
deference to a judge's decision that termination of a parent's
rights is in the best interest[s] of the child, and reverse only
where the findings of fact are clearly erroneous or where there
is a clear error of law or abuse of discretion." Adoption of
Yalena, 100 Mass. App. Ct. at 549, quoting Adoption of Ilona,
459 Mass. at 59. "Because childhood is fleeting, a parent's
unfitness is not temporary if it is reasonably likely to
continue for a prolonged or indeterminate period." Id. at 60.
Predictions about a parent's unfitness must be "more than
hypothetical," Adoption of Inez, 428 Mass. 717, 723 (1999). In
determining future fitness, the judge "properly may consider a
9 pattern of parental neglect or misconduct." Adoption of Elena,
446 Mass. 24, 33 (2006).
Having carefully reviewed the record, "[w]e see no basis
for disturbing the judge's view of the evidence." Adoption of
Quentin, 424 Mass. 882, 886 n.3 (1997). Here, the judge
considered the father's lack of preparedness to parent Chase,
history of violence and anger management issues, and minimal of
engagement in directed services and case proceedings.
Specifically, the judge found that the father's awareness
of the mother's substance use history and that her parental
rights to another child had been terminated less than one year
before Chase's birth put him on notice that he needed to plan
for Chase's care and be Chase's primary parent. Despite this
knowledge, the father did not take steps to prepare for Chase's
arrival. For example, he did not have stable housing or basic
newborn supplies, such as a crib and car seat. The plan that
the father did share with the department was "haphazard and
insufficient" and left Chase "at imminent risk of serious abuse
or neglect."
The judge also properly considered the father's lack of
progress in completing the tasks on his action plans. See
Adoption of Luc, 484 Mass. 139, 147 (2020). Although the father
made some positive efforts, including attending visits with
Chase before being detained in a house of correction, a number
10 of key tasks remained uncompleted at the time of trial,
including participation in substance use assessment or treatment
and domestic violence education. The father testified that he
signed up for parenting, anger management, and substance use
classes but did not participate in them.
Moreover, the judge considered the father's criminal
history in reaching the determination of unfitness. See Care &
Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002) (parent's
criminal record is relevant to extent it bears on parental
fitness). At the time of trial, the father was being held "on
dangerousness" on a thirteen-count indictment. The judge also
considered that the father had already served three jail
sentences, each at least nine months long, by the time of
Chase's birth, and that the father's involvement with law
enforcement continued after Chase's birth. This pattern
continued "to place [Chase] at great risk of abuse or neglect
due to Father's absence from [Chase's] life." The judge also
found that the father minimized his criminal history, "caus[ing]
the Court greater concern for the danger Father would pose to
[Chase] in that Father does not have the capacity to manage
difficult times, and his reactions to them."
Taken together, the judge's findings provide clear and
convincing evidence of the father's current and indefinite
unfitness, and that the termination of his parental rights was
11 in Chase's best interests. See Adoption of Yalena, 100 Mass.
App. Ct. at 552-553.
3. Adoption plan. The father argues that the judge erred
in terminating his parental rights without first choosing
between the father's adoption plan and the department's plan,
thereby leaving the choice of adoptive placement to the
discretion of the department. After finding a parent unfit, the
judge is required to assess all placement plans and "determine
which placement will serve the best interests of the child."
Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The
judge's assessment of each plan must be "even-handed,"
regardless of which party offered the plan (citation omitted).
Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2022). The
judge's determination will not be reversed unless there is an
abuse of discretion or clear error of law. See Adoption of
Hugo, 428 Mass. 219, 225 (1998), cert. denied sub. nom. Hugo P.
v. George P., 526 U.S. 1034 (1999).
The judge considered the department's plan that Chase be
adopted by his current foster parents, who had already adopted
Chase's maternal half-sibling and with whom Chase had lived "for
nearly all his 8 months of life." The judge considered Chase's
"close connection" to his foster parents and that the placement
is meeting Chase's needs. Conversely, the judge considered the
father's proposal that his sister, who lives in Vermont, adopt
12 Chase. However, by the trial date, the department had not yet
submitted a request for an ICPC home study due to delays in
acquiring the required documents.11 The judge found that "[t]he
longer that process takes, the stronger [Chase's] attachment to
his current foster family will grow, making removal a
potentially harmful act." While the judge found the
department's proposed adoption plan to be in the best interests
of Chase, she acknowledged that the department's proposed plan
could change depending on the results of an ICPC home study of
the paternal aunt. Consequently, the judge concluded that "[i]f
the Department elects to place [Chase] with . . . his aunt, the
Department shall file notice of such intention with the Court so
that the amended plan can be considered, and counsel for [Chase]
will have an opportunity to be heard."
"[W]here the judge lacks sufficient information to
determine what plan serves the child's best interests, it is not
appropriate for the judge 'to leave the choice of adoptive
placement to the discretion of [the department] subject only to
11To initiate an ICPC home study, which is required for potential out-of-State placements, the department needs the child's birth certificate and Social Security number. The department requested Chase's birth certificate "immediately after his November 2023 birth and followed up on the request several times but did not receive it until March of 2024." The department applied for Chase's Social Security number after receiving his birth certificate but had not received anything by the time of trial.
13 review by the adoption judge under G. L. c. 210, § 6.'"
Adoption of Cadence, 81 Mass. App. Ct. 162, 171 (2012), quoting
Adoption of Dora, 52 Mass. App. Ct. at 476. Here, the judge
determined that the department's plan was in Chase's best
interests, but because the results of an ICPC could alter the
department's placement decision, the judge directed the
department to file notice of any change with the court and
reserved the authority to approve or deny the altered plan.
This did not equate to an impermissible delegation of a judge's
statutory duty to determine what is in the child's best
interests.
Decree affirmed.
By the Court (Grant, Brennan & Smyth, JJ.12),
Clerk
Entered: December 18, 2025.
12 The panelists are listed in order of seniority.