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
23-P-523
ADOPTION OF HOPE. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court finding him unfit and terminating his parental
rights to his daughter, Hope. The father also argues that the
judge erred in not granting him posttermination and postadoption
visitation with the child. We affirm. 2
Background. We summarize the judge's findings of fact,
supplemented by uncontroverted evidence from the record. In
December 2018, Hope was born substance exposed. Because the
mother was married to another man, the father's name did not
appear on Hope's birth certificate. However, since Hope's
birth, both the mother and the father asserted that the father
was Hope's biological father. The mother's husband denied
paternity. One week after Hope's birth, the Department of
1 A pseudonym. 2 The mother's parental rights were also terminated. She did not appeal. Children and Families (department) was granted emergency
temporary custody of her. The department initially offered
visits and recommended therapy to the father. However, in
January 2019, the department stopped offering visits because the
father failed to take steps to establish paternity. The
department did not offer the father visits or services until he
established paternity in March 2021.
The father has an extensive criminal history consisting of
sixty-one charges as an adult, including convictions of
resisting arrest, larceny, assault and battery, aggravated
assault and battery, possession with intent to distribute
heroin, and distribution of cocaine. In October 2019, both the
father and the mother were arrested following the execution of a
search warrant at their apartment, where police seized cocaine.
In March 2021, the father was arraigned on cocaine trafficking
charges in the Superior Court. At the time of trial, the
trafficking charges were still pending against the father.
The father also has a history of abusive behavior toward
the mother. The father reportedly controlled the mother's money
and cell phone, and he had posted nude photos of her on social
media. The mother said that the father forced her to change
doctors because her gynecologist was a man. The mother also
reported that, when she had gained weight, the father hid food
from her. The father has locked the mother in his apartment.
2 In 2016, the mother obtained a restraining order against the
father. 3 After the department obtained custody of Hope, the
mother reported that she was not comfortable around the father
and that she would not go home from the hospital that day
because the father had been physically violent with her in the
past. Ten days after Hope was born, the maternal step-
grandmother reported that the father "destroyed" the mother and
father's apartment and would not allow the mother to pack a bag
of clothes before she left. In 2020, the father reportedly
withheld the mother's money and belongings. In the spring of
2022, the father reportedly followed the mother, jumped into her
car while she drove, assaulted her, and stole her money. To his
credit, the father acknowledged to a department worker that he
and the mother had an "unhealthy" relationship to which he would
not want Hope exposed.
Throughout the case, the father refused to engage with the
department and acted combatively when he did speak with the
department's workers. The father had a series of different
department social workers because he often refused to work with
the social worker assigned to him. When a department social
worker met with the father and the mother one day before Hope's
removal, the father said he did not need therapy, yelled at the
3 In 2011, the father's former girlfriend also obtained a restraining order against him.
3 social worker, and threatened him. The father screamed and
swore at other social workers, making statements like "[g]et off
my case" and "you're going to see what's going to happen." Due
to safety concerns, the department eventually required visits to
occur at its office with police present.
After the father established paternity, he refused to
review his action plan or engage with services for months. He
claimed that he began a substance abuse evaluation, but he could
not recall any steps or recommendations when asked about it.
The father declined a psychological evaluation, individual
therapy, and an intimate partners program. The father
repeatedly missed appointments with the department or failed to
schedule them for up to three months at a time.
Nine months after he established paternity and received an
action plan, the father completed intake at a treatment center
where he consistently attended anger management training and a
parenting group. However, he demonstrated little insight into
his controlling behaviors and was not forthcoming about his
history of domestic violence and conflict with the department.
The father did not attend visits with Hope for four months in
2022. When he did attend visits with Hope, he arrived prepared
and was attentive to Hope.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child and to dispense with
4 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" (citation omitted). Adoption of Oren, 96 Mass.
App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and
the 'best interests of the child test' are not mutually
exclusive, but rather 'reflect different degrees of emphasis on
the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,
671 (2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). In making a best interests determination, the
judge considers "'the ability, capacity, fitness and readiness
of the child's parents' as well as 'the plan proposed by [the
department].'" Adoption of Garret, supra at 675, quoting
Adoption of Nancy, 443 Mass. 512, 515-516 (2005).
The parent's fitness is "determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
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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
23-P-523
ADOPTION OF HOPE. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court finding him unfit and terminating his parental
rights to his daughter, Hope. The father also argues that the
judge erred in not granting him posttermination and postadoption
visitation with the child. We affirm. 2
Background. We summarize the judge's findings of fact,
supplemented by uncontroverted evidence from the record. In
December 2018, Hope was born substance exposed. Because the
mother was married to another man, the father's name did not
appear on Hope's birth certificate. However, since Hope's
birth, both the mother and the father asserted that the father
was Hope's biological father. The mother's husband denied
paternity. One week after Hope's birth, the Department of
1 A pseudonym. 2 The mother's parental rights were also terminated. She did not appeal. Children and Families (department) was granted emergency
temporary custody of her. The department initially offered
visits and recommended therapy to the father. However, in
January 2019, the department stopped offering visits because the
father failed to take steps to establish paternity. The
department did not offer the father visits or services until he
established paternity in March 2021.
The father has an extensive criminal history consisting of
sixty-one charges as an adult, including convictions of
resisting arrest, larceny, assault and battery, aggravated
assault and battery, possession with intent to distribute
heroin, and distribution of cocaine. In October 2019, both the
father and the mother were arrested following the execution of a
search warrant at their apartment, where police seized cocaine.
In March 2021, the father was arraigned on cocaine trafficking
charges in the Superior Court. At the time of trial, the
trafficking charges were still pending against the father.
The father also has a history of abusive behavior toward
the mother. The father reportedly controlled the mother's money
and cell phone, and he had posted nude photos of her on social
media. The mother said that the father forced her to change
doctors because her gynecologist was a man. The mother also
reported that, when she had gained weight, the father hid food
from her. The father has locked the mother in his apartment.
2 In 2016, the mother obtained a restraining order against the
father. 3 After the department obtained custody of Hope, the
mother reported that she was not comfortable around the father
and that she would not go home from the hospital that day
because the father had been physically violent with her in the
past. Ten days after Hope was born, the maternal step-
grandmother reported that the father "destroyed" the mother and
father's apartment and would not allow the mother to pack a bag
of clothes before she left. In 2020, the father reportedly
withheld the mother's money and belongings. In the spring of
2022, the father reportedly followed the mother, jumped into her
car while she drove, assaulted her, and stole her money. To his
credit, the father acknowledged to a department worker that he
and the mother had an "unhealthy" relationship to which he would
not want Hope exposed.
Throughout the case, the father refused to engage with the
department and acted combatively when he did speak with the
department's workers. The father had a series of different
department social workers because he often refused to work with
the social worker assigned to him. When a department social
worker met with the father and the mother one day before Hope's
removal, the father said he did not need therapy, yelled at the
3 In 2011, the father's former girlfriend also obtained a restraining order against him.
3 social worker, and threatened him. The father screamed and
swore at other social workers, making statements like "[g]et off
my case" and "you're going to see what's going to happen." Due
to safety concerns, the department eventually required visits to
occur at its office with police present.
After the father established paternity, he refused to
review his action plan or engage with services for months. He
claimed that he began a substance abuse evaluation, but he could
not recall any steps or recommendations when asked about it.
The father declined a psychological evaluation, individual
therapy, and an intimate partners program. The father
repeatedly missed appointments with the department or failed to
schedule them for up to three months at a time.
Nine months after he established paternity and received an
action plan, the father completed intake at a treatment center
where he consistently attended anger management training and a
parenting group. However, he demonstrated little insight into
his controlling behaviors and was not forthcoming about his
history of domestic violence and conflict with the department.
The father did not attend visits with Hope for four months in
2022. When he did attend visits with Hope, he arrived prepared
and was attentive to Hope.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child and to dispense with
4 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" (citation omitted). Adoption of Oren, 96 Mass.
App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and
the 'best interests of the child test' are not mutually
exclusive, but rather 'reflect different degrees of emphasis on
the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,
671 (2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). In making a best interests determination, the
judge considers "'the ability, capacity, fitness and readiness
of the child's parents' as well as 'the plan proposed by [the
department].'" Adoption of Garret, supra at 675, quoting
Adoption of Nancy, 443 Mass. 512, 515-516 (2005).
The parent's fitness is "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
Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the
parent's deficiencies 'place the child at serious risk of peril
from abuse, neglect, or other activity harmful to the child'"
(citation omitted). Adoption of Olivette, 79 Mass. App. Ct.
141, 157 (2011). "We give substantial deference to a judge's
5 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. 53,
59 (2011).
a. The judge's findings. "Unless shown to be clearly
erroneous, we do not disturb the judge's findings, which are
entitled to substantial deference." Adoption of Jacques, 82
Mass. App. Ct. 601, 606-607 (2012). "A finding is clearly
erroneous when there is no evidence to support it, or when,
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed" (quotation and
citation omitted). Adoption of Larry, 434 Mass. 456, 462
(2001). "We accord deference to a trial judge's assessment of
the credibility of witnesses and the weight of the evidence."
Adoption of Olivette, 79 Mass. App. Ct. at 157.
The father argues that the judge erred by finding that the
father had "been represented by counsel since the beginning of
the case." 4 Where the judge's reference to "the case" included
the period before the father established paternity, this finding
4 The finding appears only in the conclusions of law section of the judge's decision. However, the conclusions of law rely on an implicit finding that the father had been represented by counsel during the period prior to paternity establishment.
6 was not supported by the evidence. 5 However, because the
remaining 245 findings the judge made establish the father's
unfitness by clear and convincing evidence, we are not persuaded
that the erroneous findings warrant reversal. See Adoption of
Valentina, 97 Mass. App. Ct. 130, 138 (2020) (affirming
unfitness determination where four of 122 factual findings were
premised on impermissible evidence and thus disregarded).
b. The father's unfitness. The finding of the father's
unfitness resulted from a "constellation of factors." Adoption
of Greta, 431 Mass. 577, 588 (2000). The father did not
consistently "maintain service plans, visitation schedules, and
counseling programs designed to strengthen the family unit."
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987). Despite the
department's intervention, the father failed to participate in
services and treatment to sufficiently address the issues that
caused the removal of Hope. 6 See Adoption of Serge, 52 Mass.
5 The father also asserts that he was entitled to counsel and visits with Hope before he established paternity. Because he had neither counsel nor visits with Hope, he contends that the department did not make reasonable efforts to reunify, and the unfitness determination is based on erroneous findings. This argument was not raised at trial, so it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006); Adoption of Mary, 414 Mass. at 712. Thus, we do not address it. 6 The father argues that the judge erred by finding that the
department could not legally offer visits with Hope until the father established paternity. The judge made no such finding. Rather, the judge found that a department supervisor told the
7 App. Ct. 1, 8 (2001) ("The mother's lack of meaningful
participation in recommended services was . . . relevant to the
question of her fitness"). To the extent that the father did
engage in services, he was untruthful during therapy sessions,
and the judge found that he did not benefit from them. See
Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, supra (parent's failure to benefit from services
"relevant to the determination of unfitness").
To the extent the father argues error in the judge's
reliance on an unresolved criminal case, the judge did not find
that the father was unfit because of his pending charges alone.
Rather, the judge merely noted the potential of the father's
incarceration causing disruption to Hope in the context of the
father's properly weighed criminal history as one factor in the
unfitness determination. See Care & Protection of Frank, 409
Mass. 492, 495 (1991) ("evidence of prior criminal convictions
may be properly weighed in the balance"). The father's history
of domestic violence and controlling behavior with the mother,
father that visits could not be offered because of the father's "presentation and failure to establish paternity." As discussed above, the father was not cooperative with the department and frequently threatened its workers, making visitation impracticable. We do not address whether the department was prohibited legally from offering visits until the father established paternity.
8 combined with his lack of insight into his responsibility for
that behavior, places Hope at risk. See Adoption of Gillian, 63
Mass. App. Ct. 398, 404 n.6 (2005) ("Violence within a family is
highly relevant to a judge's determination of parental unfitness
and the best interests of the children"). We discern no abuse
of discretion in the judge's determination that the father's
unfitness would persist, and therefore termination of his rights
was in Hope's best interests. See Adoption of Cadence, 81 Mass.
App. Ct. 162, 169 (2012) ("Where there is evidence that a
parent's unfitness is not temporary, the judge may properly
determine that the child's welfare would be best served by
ending all legal relations between parent and child").
2. Parental visitation. "In terminating parental rights
pursuant to G. L. c. 210, § 3, the Juvenile Court judge has the
equitable authority to order visitation between a child and a
biological parent where such contact is in the best interests of
the child." Adoption of Garret, 92 Mass. App. Ct. at 679.
"Whether such contact in any given case is wise is a matter that
should be left to the discretion of the judge." Youmans v.
Ramos, 429 Mass. 774, 783 (1999). "A judge should issue an
order of visitation only if such an order, on balance, is
necessary to protect the child's best interest." Adoption of
Ilona, 459 Mass. at 65. A judge may consider "whether a
preadoptive family has been identified and . . . whether the
9 child 'has formed strong, nurturing bonds' with that family."
Id. at 64, quoting Adoption of Rico, 453 Mass. 749, 754 (2009).
The department did not offer the father visits with Hope
for over two years because he did not take steps to establish
paternity, despite being told he must establish paternity before
he would be able to visit her. Once he established paternity in
March 2021, the father visited Hope inconsistently. He did not
attend a visit with Hope for over four months in 2022. For over
nine months after he received his action plan, the father did
not engage in any of the recommended services that might reunite
him with Hope. Moreover, Hope has been in her preadoptive home
for the majority of her life and has formed bonds with her
foster family. Hope is comfortable with her preadoptive
siblings and parents, whom she refers to as "mommy and daddy."
Her preadoptive home also neighbors her maternal grandparents'
home. We are satisfied that the judge carefully weighed the
evidence and thus did not abuse her discretion by declining to
10 make a specific order of visitation. See Youmans, 429 Mass. at
783.
Decree affirmed.
By the Court (Wolohojian, Englander & Brennan, JJ. 7),
Assistant Clerk
Entered: March 12, 2024.
7 The panelists are listed in order of seniority.