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
24-P-964
ADOPTION OF COLE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court
finding him unfit to parent Cole, terminating the father's
parental rights, and declining to order posttermination and
postadoption visitation.2 We affirm.
Background. When the mother was pregnant with Cole, she
was not forthcoming to the Department of Children and Families
(department) about who the father was and named someone else.3
The father, who was not present at Cole's birth in 2019, did not
sign the birth certificate. Although the father was not certain
1 A pseudonym.
2The mother's parental rights also were terminated. She appealed and then withdrew her appeal.
3The department was already involved with the mother due to concerns over unexplained injuries to one of the mother's older children. that he was Cole's father, he and the mother coparented Cole
following his birth until the department removed him from his
mother's care in December 2019 when the child was nine months
old.4
Cole was removed from the mother's care after the mother
and the father were arrested for possession with intent to
distribute illegal substances (class A, class B, and class D
substances). Earlier that year, in February 2019, the father
was charged with negligent operation of a motor vehicle,
possession with intent to distribute crack cocaine, and
possession with intent to distribute heroin. In February 2020,
the father was charged with two counts of assault by means of a
dangerous weapon.
In April 2020, the mother revealed to the department that
the father was Cole's father. In November 2020, a judge of the
Juvenile Court approved the department's permanency plan for
Cole and ordered that the father be added to the petition as
Cole's putative father.
Cole was initially removed from the mother's care due to 4
being a substance exposed newborn, but later returned to the mother after she was granted contingent custody. He was temporarily removed from the mother's care again in September 2019, until the mother was given contingent custody a second time.
2 In February 2021, in two separate trials, the father was
found guilty of the February 2019 and February 2020 charges. He
was sentenced to four years in prison. During his
incarceration, the father was involved in a fight and placed in
segregation. As a result, the father's access to and engagement
with department services was limited. Additionally, because the
father continued to delay establishing his paternity, despite
repeated promptings by the department, he was never offered
visitation with Cole.
In October 2021, a two-day termination of parental rights
trial was held.5 The father, still incarcerated, appeared for
both days and testified. At the end of trial, a judgment of
paternity was issued naming the father as Cole's legal father.
In January 2023, the judge issued an order terminating the
mother's and the father's parental rights. The order granted
the mother, but not the father, certain posttermination and
postadoption visitation rights.
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
5 A few days prior to trial, the father and the mother filed with the court a signed voluntary acknowledgement of parentage.
3 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). "Unless shown to be clearly erroneous, we
do not disturb the judge's findings, which are entitled to
substantial deference." Id. at 606-607.
The father argues that the judge's termination of his
parental rights was clearly erroneous because the judge erred in
(1) finding that his unfitness was likely to continue into the
indefinite future, and (2) approving the department's adoption
plan where the child did not support termination at the time of
trial.6 We disagree.
1. Unfitness. "Because termination of a parent's rights
is an 'extreme step,' . . . a judge must decide both whether the
parent is currently unfit and whether, 'on the basis of credible
evidence, there is a reasonable likelihood that the parent's
unfitness at the time of trial may be only temporary'"
(citations omitted). Adoption of Ilona, 459 Mass. 53, 59
(2011). "Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
6 We note that on appeal, Cole supports the termination of parental rights and his placement with his preadoptive parent.
4 Mary, 414 Mass. 705, 711 (1993). The father concedes that he
was unfit at the time of trial. He argues instead that the
judge erred in finding that his unfitness was not temporary.
In determining future fitness, "[a] judge may properly be
guided by evidence demonstrating reason to believe that a parent
will correct a condition or weakness that currently disables the
parent from serving his or her child's best interests," Adoption
of Carlos, 413 Mass. 339, 350 (1992), but a judge may not base
future fitness on a "faint hope" that the parent may later
become fit. Adoption of Inez, 428 Mass. 717, 723 (1999).
Here, the record supports the judge's conclusion that the
father's unfitness was not temporary. First, the judge properly
considered the father's physical unavailability to parent Cole
due to his ongoing incarceration. See Adoption of Serge, 52
Mass. App. Ct. 1, 8 (2001) ("Physical unavailability of the
parent to provide day to day care for the child, including for
reasons of incarceration, was relevant evidence of unfitness").
Moreover, the father's convictions and open charges reflected a
pattern of violent behavior incompatible with Cole's need for
safety and stability. See Care & Protection of Quinn, 54 Mass.
App. Ct. 117, 126 (2002) (father's record of criminal
convictions involving violent or irresponsible behavior relevant
to finding of unfitness).
5 The father limited his ability to participate in department
services while incarcerated when he was involved in a fight
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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
24-P-964
ADOPTION OF COLE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court
finding him unfit to parent Cole, terminating the father's
parental rights, and declining to order posttermination and
postadoption visitation.2 We affirm.
Background. When the mother was pregnant with Cole, she
was not forthcoming to the Department of Children and Families
(department) about who the father was and named someone else.3
The father, who was not present at Cole's birth in 2019, did not
sign the birth certificate. Although the father was not certain
1 A pseudonym.
2The mother's parental rights also were terminated. She appealed and then withdrew her appeal.
3The department was already involved with the mother due to concerns over unexplained injuries to one of the mother's older children. that he was Cole's father, he and the mother coparented Cole
following his birth until the department removed him from his
mother's care in December 2019 when the child was nine months
old.4
Cole was removed from the mother's care after the mother
and the father were arrested for possession with intent to
distribute illegal substances (class A, class B, and class D
substances). Earlier that year, in February 2019, the father
was charged with negligent operation of a motor vehicle,
possession with intent to distribute crack cocaine, and
possession with intent to distribute heroin. In February 2020,
the father was charged with two counts of assault by means of a
dangerous weapon.
In April 2020, the mother revealed to the department that
the father was Cole's father. In November 2020, a judge of the
Juvenile Court approved the department's permanency plan for
Cole and ordered that the father be added to the petition as
Cole's putative father.
Cole was initially removed from the mother's care due to 4
being a substance exposed newborn, but later returned to the mother after she was granted contingent custody. He was temporarily removed from the mother's care again in September 2019, until the mother was given contingent custody a second time.
2 In February 2021, in two separate trials, the father was
found guilty of the February 2019 and February 2020 charges. He
was sentenced to four years in prison. During his
incarceration, the father was involved in a fight and placed in
segregation. As a result, the father's access to and engagement
with department services was limited. Additionally, because the
father continued to delay establishing his paternity, despite
repeated promptings by the department, he was never offered
visitation with Cole.
In October 2021, a two-day termination of parental rights
trial was held.5 The father, still incarcerated, appeared for
both days and testified. At the end of trial, a judgment of
paternity was issued naming the father as Cole's legal father.
In January 2023, the judge issued an order terminating the
mother's and the father's parental rights. The order granted
the mother, but not the father, certain posttermination and
postadoption visitation rights.
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
5 A few days prior to trial, the father and the mother filed with the court a signed voluntary acknowledgement of parentage.
3 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). "Unless shown to be clearly erroneous, we
do not disturb the judge's findings, which are entitled to
substantial deference." Id. at 606-607.
The father argues that the judge's termination of his
parental rights was clearly erroneous because the judge erred in
(1) finding that his unfitness was likely to continue into the
indefinite future, and (2) approving the department's adoption
plan where the child did not support termination at the time of
trial.6 We disagree.
1. Unfitness. "Because termination of a parent's rights
is an 'extreme step,' . . . a judge must decide both whether the
parent is currently unfit and whether, 'on the basis of credible
evidence, there is a reasonable likelihood that the parent's
unfitness at the time of trial may be only temporary'"
(citations omitted). Adoption of Ilona, 459 Mass. 53, 59
(2011). "Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
6 We note that on appeal, Cole supports the termination of parental rights and his placement with his preadoptive parent.
4 Mary, 414 Mass. 705, 711 (1993). The father concedes that he
was unfit at the time of trial. He argues instead that the
judge erred in finding that his unfitness was not temporary.
In determining future fitness, "[a] judge may properly be
guided by evidence demonstrating reason to believe that a parent
will correct a condition or weakness that currently disables the
parent from serving his or her child's best interests," Adoption
of Carlos, 413 Mass. 339, 350 (1992), but a judge may not base
future fitness on a "faint hope" that the parent may later
become fit. Adoption of Inez, 428 Mass. 717, 723 (1999).
Here, the record supports the judge's conclusion that the
father's unfitness was not temporary. First, the judge properly
considered the father's physical unavailability to parent Cole
due to his ongoing incarceration. See Adoption of Serge, 52
Mass. App. Ct. 1, 8 (2001) ("Physical unavailability of the
parent to provide day to day care for the child, including for
reasons of incarceration, was relevant evidence of unfitness").
Moreover, the father's convictions and open charges reflected a
pattern of violent behavior incompatible with Cole's need for
safety and stability. See Care & Protection of Quinn, 54 Mass.
App. Ct. 117, 126 (2002) (father's record of criminal
convictions involving violent or irresponsible behavior relevant
to finding of unfitness).
5 The father limited his ability to participate in department
services while incarcerated when he was involved in a fight
after which he was placed in segregation. Although the father
began engaging in a substance abuse program at the end of July
2021, the judge was not required to believe that the father's
behavior had improved. See Care & Protection of Quinn, 54 Mass.
App. Ct. at 126-127. Finally, the father's willful failure to
establish paternity until the end of trial, nearly two years
after Cole's removal, resulted in his inability to obtain
visitation with his child, and supported the finding of
unfitness. See G. L. c. 210, § 3 (c) (x).
2. Approval of the adoption plan. "In choosing among
placement plans, it falls to the sound discretion of the trial
judge to determine what is in the best interests of the child,
and our review on appeal is one of 'substantial deference'"
(citation omitted). Adoption of Bianca, 91 Mass. App. Ct. 428,
434 (2017). Although "[a] judge should consider the wishes of
the children in making custodial determinations, and those
wishes are entitled to weight in custody proceedings[,]" they
are "neither decisive . . . nor outcome determinative"
(quotation and citation omitted). Adoption of Nancy, 443 Mass.
512, 518 (2005).
6 Here, the record supports the judge's determination that
the department's adoption plan was in the best interests of
Cole. His preadoptive parent can meet Cole's needs and is
committed to adopting both Cole and a sister to whom he is very
close. Cole has expressed love and affection toward his
preadoptive parent and goes to her for all his needs. There is
no apparent bond between Cole and the father, as the father
never visited with Cole since his removal in December 2019.7 It
was not error or abuse of discretion for the judge to conclude
that Cole's interest in long-term stability is better served in
his current placement, where he appears to be settled and
comfortable, than indefinitely waiting for the father to finish
7 Because there is no bond between the father and Cole, to the extent the father argues that the judge erred in not ordering postadoption or posttermination visitation, we disagree. See Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003) (judge's decision whether to order postadoption or posttermination visitation "must be grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent" [quotation and citation omitted]).
7 his incarceration and become fit to parent. See Adoption of
Bianca, 91 Mass. App. Ct. at 434.
Decree affirmed.
By the Court (Henry, Shin & Brennan, JJ.8),
Clerk
Entered: July 1, 2025.
8 The panelists are listed in order of seniority.