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-869
ADOPTION OF DELILAH. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a Juvenile Court
judge finding him unfit and terminating his parental rights to
his child, Delilah. See G. L. c. 119, § 26; G. L. c. 210, § 3.
The judge's finding of unfitness was based primarily on three
grounds: (1) multiple incidents of domestic violence committed
in front of Delilah; (2) serious medical neglect of Delilah; and
(3) the father's choice to maintain a relationship with the
mother and bring her to supervised visits with Delilah despite a
history of domestic violence, substance misuse, and
codependency. The evidence provided sufficient support for the
judge's findings and conclusions. Moreover, we are unpersuaded
by the father's argument that due to alleged ineffective
1 A pseudonym. assistance of counsel, the judge abused her discretion by
denying his motion for a new trial. 2 Accordingly, we affirm.
Background. 1. Events leading to filing of care and
protection petition. Delilah was born in December 2017. She
was removed from her parents' care and custody by the Department
of Children and Families (department) on August 24, 2021, at age
three, following a serious incident of domestic violence by the
father against the mother. The department filed the underlying
care and protection petition the next day. Despite this, the
parents stayed together and had a second child who was also
removed by the department. 3 Delilah was eventually placed with
her sibling in a preadoptive home.
2. The father. The father's relationship with the mother
has been marked by mutual domestic violence and substance
misuse. The father has acknowledged that the mother also has
extensive mental health issues but admitted that he did not
alert the department to these issues until the date of trial. 4
2 The father's appeals from the decree and from the order denying his motion for a new trial were consolidated for briefing and decision in this court.
3 Both parents' parental rights to the second child were terminated in a separate proceeding in the winter of 2024; the second child is not a party to this appeal.
4 Both parents stipulated to their unfitness in October 2022. A review and redetermination trial was then held over four nonconsecutive dates from April to June 2024, after which the judge issued the decrees terminating the parents' rights.
2 On the first day of trial, the mother stipulated to the
termination of her parental rights and entered into an open
adoption agreement. 5 Despite their turbulent history, the father
maintained a relationship with the mother, visiting Delilah
together up until trial.
a. Domestic violence. Police documented at least four
separate incidents of domestic violence between the mother and
the father. The department recommended that the father engage
in services to address the impact of violence on his family
prior to Delilah's removal, but he declined to do so. Police
then documented one more incident of domestic violence in May
2023, after Delilah had been removed. At trial, both the father
and the mother minimized the violence in their relationship. In
fact, the father denied any physical abuse and admitted only
that he had been verbally and emotionally abusive to the mother.
The judge did not credit this testimony.
b. Criminal record. The father has a lengthy criminal
record, spanning over ten years from 2014 to 2024. He has been
arraigned on twenty-one adult charges.
The judge also ordered that the father was entitled to two posttermination visits per year; additional visits, if any, were to be at the discretion of the adoptive parents.
5 The mother is not a party to this appeal.
3 Most relevant for these purposes, on August 23, 2021, the
father allegedly assaulted the mother and was charged with
assault and battery on a household member, assault and battery
by means of a dangerous weapon, strangulation, and intimidation
of a witness. On the same date, the mother obtained an ex parte
G. L. c. 209A abuse prevention order requiring the father to
have no contact with her, stay away from her, and to relinquish
custody of Delilah to her. The mother did not extend the order
and it expired on September 3, 2021. At trial, the mother
testified that the criminal charges arising from this incident
were dismissed because she refused to cooperate with the
government and testify against the father, and the father denied
that this incident had become physical. The judge did not
credit his denials and found that the father had assaulted the
mother.
c. Mental health and substance misuse. The father has
been diagnosed with general anxiety disorder and post-traumatic
stress disorder (PTSD). The father also has a history of
substance misuse. He began using ecstasy and cocaine at age
thirteen. During the parents' relationship, he used fentanyl,
cocaine, heroin, and benzodiazepines.
At trial, the father minimized his history of substance
misuse. He claimed that it never became an addiction or "too
much of an issue" for him. In fact, however, his treatment
4 record indicated that his opiate dependence had lasted for
several years as in 2022, he self-reported to a treatment
program that his longest length of sobriety had been sixty days
when he was incarcerated.
d. Inability to separate from the mother. After Delilah's
removal, the father engaged in therapy, where he admitted that
his relationship with the mother was codependent and "not
healthy." At trial, the father testified that he lived alone, a
claim the judge explicitly did not credit. The father and mother
were still in a romantic relationship on September 27, 2023.
The father admitted that he talked to the mother weekly, gave
her rides to drug screens, brought her to parent-child visits
with Delilah, and still wanted her to be a mother to her
children. As a result, the judge found that the father is
unable to maintain healthy boundaries with the mother in order
to serve Delilah's best interests.
3. Engagement with services. a. Department action plans.
The department first became involved with the family in February
of 2019. Beginning in June 2019, the department drafted action
plans for the father. After Delilah's removal, the father
failed to meet consistently with the department. He met with
the department once in March 2022 and then from August to
October and December of 2022. The father did not meet
consistently with the department in 2023.
5 In 2022 and 2023, the father began engaging with services.
In March 2022, the father and mother reported to the department
that they had participated in a substance misuse detoxification
program in January 2022. The father did not complete treatment
but in February 2022, he began receiving suboxone through
participation in a research program. He had clean toxicology
screens in March and April 2022 but did not share results from
May and June. He provided screens regularly from July 2022
onward. He relapsed on cocaine again in October 2022. In
November 2022, he enrolled in a weekly substance misuse early
recovery group, which he attended until June 2023. Despite the
father's participation in treatment, based on his trial
testimony that substance misuse was not an issue for him, the
judge found that he continued to lack insight into his substance
misuse.
The father completed a parenting class in September 2022.
He completed a four-hour domestic violence course in October
2022. In October 2023, he completed a ten-class anger
management course. He also enrolled in an intimate partner
abuse education program in May 2024 (after the trial had begun)
and continued to attend throughout the trial. The father was
able to testify as to a definition of domestic violence that
showed that he had some understanding of its effect on Delilah.
But, despite this participation, the judge concluded that the
6 father derived no tangible benefit to aid his parenting skills
because at trial he continued to deny his responsibility in the
history of mutual domestic violence between him and the mother.
The judge found that this lack of insight placed Delilah at risk
of future abuse and neglect.
In October 2022, the father was assigned an individual
therapist but did not meet with her. He was assigned a second
therapist in February 2023, with whom he met twice. He was
assigned a third therapist in April 2023, and he met with her
regularly until 2025. Although the father began to discuss his
codependency issues with the mother, he continued to maintain
his relationship with her. As a result, the judge found that
the father had not taken the steps necessary to establish
healthy boundaries with the mother in order to serve Delilah's
best interest.
b. Visitation. The father did not consistently visit
Delilah from August 2021 to December 2021. He had no contact at
all with her from January 2022 through most of March 2022. He
began visiting her again on March 29, 2022. Between January 27,
2023 and May 16, 2024, the father missed eight visits. He was
visiting Delilah consistently at the time of trial.
The father has attended visits with the mother. In July
2023, the mother tested positive for cocaine and sent a text
message to the father asking him to obtain a clean urine sample
7 for her. As a result, the department reduced the parents'
visits to once per month. Despite this, the father continued to
visit Delilah with the mother.
4. Delilah's care. When the father and mother had custody
of Delilah, she was behind in routine medical care. The parents
failed to bring her to her eighteen-month and two-year
pediatrician visits. The parents brought Delilah to her three-
year visit on February 5, 2021, during which her doctor noted
that she was underweight and had a noticeable limp on her left
side. The doctor recommended follow-up appointments to check
her weight and early intervention for the limp, but the parents
repeatedly cancelled them. The parents cancelled or failed to
appear for seventeen appointments between August 2019 and August
2021.
After Delilah's removal, she was referred to physical
therapy for her limp. She participated in therapy until August
2023 when she was discharged due to the progress she had made.
In the fall of 2023 Delilah began playing soccer and was also
enrolled in swimming and dance classes as well as Girl Scouts.
At trial, Delilah was medically up to date. She had a
developmental delay in emotional regulation and an
individualized educational plan for social and emotional needs.
After a psychological evaluation in April 2022, she was
diagnosed with PTSD and began treatment with an individual
8 therapist in February 2023. She had difficulty regulating her
emotions in a school setting and responded to certain triggers
with tantrums. By trial, she had made progress socially and
developmentally. The frequency of her tantrums decreased since
being placed in her preadoptive home, but she required
consistent adult support and supervision.
Discussion. 1. Standard of review. "To terminate
parental rights to a child and to dispense with 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"
(citation omitted). Adoption of Darlene, 99 Mass. App. Ct. 696,
702 (2021). See Adoption of Ilona, 459 Mass. 53, 59 (2011).
"Because termination of a parent's rights is an 'extreme
step,'. . . a judge must decide both whether the parent is
currently unfit and whether . . . 'there is a reasonable
likelihood that the parent's unfitness at the time of trial may
be only temporary'" (citations omitted). Adoption of Ilona,
supra. "Even where a parent has participated in programs and
services and demonstrated some improvement, we rely on the trial
judge to weigh the evidence in order to determine whether there
is a sufficient likelihood that the parent's unfitness is
temporary." Id. at 59-60. We recognize that, in the context of
9 parental fitness, the "judge who hears the evidence, observes
the parties, and is most familiar with the circumstances remains
in the best position to make the judgment [regarding fitness]."
Adoption of Lisette, 93 Mass. App. Ct. 284, 292 (2018), quoting
Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).
"We give substantial deference to a judge's decision that
termination of a parent's rights is in the best interest 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 Ilona, 459 Mass. at 59. An abuse of
discretion occurs only where "the judge made a clear error of
judgment in weighing the factors relevant to the decision, such
that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. The father's unfitness. We review the judge's decision
to assess whether the father's unfitness was, in fact, supported
by clear and convincing evidence. See Adoption of Darlene, 99
Mass. App. Ct. at 702-703. When making such a determination,
the judge must "make specific and detailed findings
demonstrating that close attention had been given [to] the
evidence." Adoption of Leland, 65 Mass. App. Ct. 580, 583
(2006). A finding of unfitness is "not a moral judgment or a
determination that the [parent] . . . [does] not love the child"
10 (citations omitted). Adoption of Bea, 97 Mass. App. Ct. 416,
417 n.2 (2020). Rather, "parental unfitness means grievous
shortcomings or handicaps that put the child's welfare much at
hazard" (quotations and citations omitted). Adoption of Jacob,
99 Mass. App. Ct. 258, 262 (2021). "In ascertaining parental
fitness, the judge may consider past conduct to predict future
ability and performance" (quotation and citation omitted). Id.
In the present case, after a four-day trial, the judge made
179 findings of fact and forty-five conclusions of law. In her
lengthy findings, she demonstrated the requisite close attention
she gave to the evidence. See Adoption of Quentin, 424 Mass.
882, 886 (1997). As mentioned, the judge focused on three
primary issues: (1) domestic violence; (2) serious medical
neglect of Delilah; and (3) the father's choice to maintain a
relationship with the mother against Delilah's best interest.
The judge found that the parents had engaged in multiple
incidents of domestic violence in front of Delilah. The father
denied that these incidents had occurred, but the judge
repeatedly found that father's denials were not credible.
Moreover, the judge found that the father lacked insight into
the effect of domestic violence on his relationship and his
ability to parent Delilah. 6
6 The father's challenges to the judge's findings about this evidence are unavailing in light of the number of documented
11 The judge also noted that the father had a long history of
substance misuse. The judge cited the father's minimization of
that history as demonstrating a lack of insight into the effect
of substance misuse on his relationship with the mother and with
Delilah.
Also, the judge found that the while Delilah was in his
care, the father neglected Delilah's medical care. Delilah
missed seventeen medical appointments in the first three years
of her life, including her eighteen-month visit and her two-year
visit. She was underweight and had developed a limp, which
required months of physical therapy to correct. The judge also
determined that Delilah has special needs, which the father
would not be able to meet given his inability to acknowledge his
own shortcomings. The judge noted that Delilah's needs are
being met by the preadoptive family placement.
Finally, the judge found that despite the father's
acknowledgment that he had a codependent relationship with the
mother, he refused to establish healthy boundaries with her in
incidents of domestic violence in Delilah's presence; the quality of the contemporaneous documentation of physical injury and the father's flight from police officers; and the father's repeated denials that he had ever physically assaulted the mother in spite of this evidence.
12 order to serve Delilah's best interest. Indeed, the father
continued to visit Delilah with the mother throughout the trial. 7
All of the judge's findings were well-supported by the
record. In arguing that the judge's finding of unfitness was
not supported by clear and convincing evidence, the father
asserts that he "worked diligently in his substance treatment"
and that the evidence of both domestic violence and substance
abuse was stale. The primary problem with this argument is that
at trial, the father still refused to acknowledge that he had
engaged in physical domestic violence and denied that he had
ever developed an addiction to controlled substances. The judge
appropriately concluded that this continuing denial demonstrated
an ongoing lack of insight that supported a finding of
unfitness. Moreover, the judge properly considered the relevant
factors in her overall determination that the father is unfit to
parent Delilah.
For these reasons, we discern no error in the judge's
determination that the father is unfit and that "[his] unfitness
7 The father challenges the materiality of his inability to establish healthy boundaries with the mother as there was no showing that it affected Delilah. This argument is unavailing given the parents' history of perpetrating domestic violence in Delilah's presence and the father's acknowledgment that the mother had ongoing mental health and substance misuse issues and had stipulated to her own unfitness.
13 is likely to continue into the indefinite future to a near
certitude." 8
3. The child's best interests. The record likewise
supports the judge's findings and ultimate conclusion that
termination of the father's rights was in Delilah's best
interests. See Adoption of Yalena, 100 Mass. App. Ct. 542, 553
(2021). "[T]he best interests analysis . . . requires a court
to focus on the various factors unique to the situation of the
[child] for whom it must act." Custody of a Minor, 375 Mass.
733, 753 (1978). "The standard for parental unfitness and the
standard for termination are not separate and distinct, but
'reflect different degrees of emphasis on the same factors.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting Petition
of the New England Home for Little Wanderers to Dispense with
Consent to Adoption, 367 Mass. 631, 641 (1975). "In determining
whether the best interests of the children will be served by
issuing a decree dispensing with the need for consent, a 'court
shall consider the ability, capacity, fitness and readiness of
the child's parents . . . [to assume parental responsibility]
and shall also consider the plan proposed by the department or
8 The father does not address in his brief the judge's finding that his unfitness is likely indefinite. Accordingly, we do not address this issue further. See Board of Registration in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
14 other agency initiating the petition.'" Adoption of Nancy, 443
Mass. at 515-516, quoting G. L. c. 210, § 3 (c).
The judge found that the father "is currently unfit to
assume parental responsibility for the subject child"; that his
unfitness is "likely to continue into the indefinite future to a
near certitude"; and that the child's best interests "would be
best served by the termination of parental rights of [the
father]." This decision was based on her thorough review of
record evidence of the father's ability and capacity to parent
Delilah. The judge also properly considered Delilah's interests
in remaining with the preadoptive family, who, the judge found,
have been effectively, safely, and successfully parenting
Delilah since February 2023. The judge found that Delilah has
thrived in the care of her preadoptive parents. All of these
findings are well supported by the evidence, and we perceive no
clear error or abuse of discretion.
Finally, the judge considered the provisions of G. L.
c. 210, § 3 (c), and found factors (ii), (iii), (iv), (vi),
(vii), (viii), (x), and (xii) to be applicable. We discern no
clear error or abuse of discretion in the judge's analysis of
the relevant factors. The record evidence provides clear
support for the judge's findings and determination that the
father is unfit, that he is likely to remain so indefinitely,
15 and that termination of his parental rights was in Delilah's
best interests.
4. Ineffective assistance of counsel. The father argues
that his trial attorney provided ineffective assistance of
counsel because he did not present evidence of the father's
engagement with services or speak to potential witnesses. In
order to establish ineffective assistance, the father has to
establish that his counsel's performance was both unreasonable
and prejudicial. See Adoption of Azziza, 77 Mass. App. Ct. 363,
368 (2010). "[P]rejudice is not shown if there is overwhelming
evidence of unfitness." Id.
First, as noted above, the judge carefully and
comprehensively considered the father's engagement in services.
Therefore, the father has failed to demonstrate that his
attorney's performance on that issue was unreasonable. Second,
the father has not presented affidavits from any additional
witnesses his attorney might have interviewed, except from his
final therapist. And the father failed to explain how that
therapist could have been helpful, given that the father
continued to deny that he had engaged in physical domestic
violence and that substance misuse had been an issue. In short,
the father failed to establish how any additional witnesses
would have provided a "substantial ground of defense" (citation
omitted). Care and Protection of Stephen, 401 Mass. 144, 149
16 (1987). Finally, the evidence of unfitness was sufficient to
preclude a finding of prejudice. See Adoption of Azziza, 77
Mass. App. Ct. at 368. See also Care and Protection of
Georgette, 439 Mass. 28, 33 (2003) (even if [the child's] trial
counsel provided unreasonable performance, she failed to
17 demonstrate any prejudice based on the strong evidence of the
father's unfitness). 9
Decrees affirmed.
Order denying motion for new trial affirmed.
By the Court (Blake, C.J., Shin & Wood, JJ. 10),
Clerk
Entered: July 1, 2026.
9 The father argues that his trial attorney provided ineffective assistance of counsel because he failed to investigate the mother's unfitness. Even after the mother stipulated to her own unfitness, the father testified that he would allow the mother up to six visits a year should he regain custody of Delilah. In these circumstances, the father has not shown that further investigation into the mother's fitness would have been relevant to his own fitness.
10 The panelists are listed in order of seniority.