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
22-P-1221
ADOPTION OF ISLA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Bristol Juvenile Court judge issued a
decree that, among other things, terminated the father's
parental rights with respect to his child pursuant to G. L.
c. 119, § 26. The father appeals, arguing that the judge
committed clear error and abused his discretion in reaching his
findings and conclusions. We affirm.
Background. We summarize the relevant facts from the
judge's findings as follows.
1. The father's incidents with the mother's two older
children. The mother has two older children, Keesha and Declan. 2
On February 12, 2018, a report was filed pursuant to G. L.
c. 119, § 51A (§ 51A report), alleging physical abuse of the
mother's four and one-half year old daughter Keesha by the
mother's boyfriend. Although the mother denied having a
1 A pseudonym. 2 The older children's names are pseudonyms. boyfriend during the ensuing investigation pursuant to G. L.
c. 119, § 51B (§ 51B investigation) and presented other reasons
for the injuries to Keesha, Keesha's paternal grandmother and
her partner expressed concerns, stating that the mother was in a
relationship with an individual named "Freak." At the
conclusion of the investigation, the allegations of physical
abuse were substantiated.
On August 14, 2019, another 51A report was filed, this one
alleging physical abuse of the mother's three year old child,
Declan. 3 This report mentions two separate instances where
Declan was brought to the hospital: July 13, 2019, due to scalp
lacerations, and August 13, 2019, due to an unexplained injury
to his abdomen, which was filled with blood.
When asked by a detective about the injury Declan sustained
on July 13, 2019, the mother stated that they had been in
Providence at a park when Declan told her he had a cut and she
took him to the hospital. She told the detective she did not
know how Declan had been harmed. When asked about the injuries
sustained in August, 2019, the mother stated that she had no
idea what could have happened and no one had ever hit Declan.
3 There was also a 51A report filed on August 13, 2019, alleging neglect of Keesha. Nothing in the record before us indicates that this report relates to the father.
2 Declan's doctors believed his life-threatening, abdominal
injuries were consistent with significant trauma.
The detective asked if the mother knew a male named
"Freak," and the mother stated that she did not know anyone
named "Freak," but believed social workers had asked her about
an individual she had previously dated whom she had not seen for
one and one-half to two years. When asked for the name of the
person she had dated, she gave the detective a first name, which
the police later learned was the same first name as the father.
It was also later determined that the father was in the car with
the mother when Declan was brought to the hospital in July,
2019. Although the mother continued to deny that she was in a
relationship with any individual known as "Freak," the judge did
not credit the mother's denial, and the Department of Children
and Families (department) identified "Freak" as the father.
As part of the department's investigation, a response
worker and social worker talked to Keesha, who stated that she
was living with her mother, Declan, and "Freak." Keesha told
them that the mother was pregnant and that "Freak" was the
father. Keesha stated that she was afraid of her mother and
"Freak," did not feel safe, her mother and "Freak" take "white
stuff" and "put the white powdered stuff in their mouths[,]"
which made them "act like monster[s]," and that they cook the
white stuff in the house. She also reported that "Freak" made
3 her mother act different, "Freak" made her mother hit Declan
hard on his buttocks, and that "Freak" hit her and Declan and
had almost "cracked [Declan]'s head with a toy." She said that
"Freak" hits her on the buttocks, the face, and the hand, and
that her mother also hits her. The response worker noticed a
large scar on Keesha's leg, which Keesha told her was from
"Freak" burning her with a heater. At the end of this
interview, the department assumed emergency custody of Keesha.
While at the department's office shortly thereafter, Keesha saw
a picture of the father and stated that he was "Freak."
The maternal stepgrandfather of Keesha and Declan also
confirmed that the mother's boyfriend, whom he referred to as
"Free," had burned Keesha's leg on a heater and had hit Declan
on the head with a toy. He also said he believed Declan's
injuries were caused by "Free." He also had seen the mother
with black eyes and bruises before. At the conclusion of the
51B investigation, the allegations of physical abuse by the
father and neglect by the mother were supported and incorporated
into the open care and protection case that had been filed on
behalf of Keesha and Declan.
On January 31, 2020, a new 51A report was filed after
Declan told a department worker who was bringing Declan to visit
his surgeon that "Freak" hurts him and punched him in the
stomach a lot. During a forensic interview as part of a 51B
4 investigation, both Declan and Keesha disclosed extensive
physical abuse by the father.
On February 21, 2020, and again, on February 26, 2020, the
father was charged with assault and battery on a child with
injury and reckless endangerment of a child. On November 17,
2020, these charges were nolle prossed, and on the same day, the
father was indicted on charges of reckless endangerment of a
child, assault and battery on a child with injury, and assault
by means of a dangerous weapon. Following his arrest in
February of 2020, the father was held at the Bristol County
house of correction on these charges and was awaiting trial on
them at the time of Isla's care and protection trial.
2. Isla's history. Isla was born on December 27, 2019.
The day after Isla's birth, a 51A report was filed alleging
neglect of her. The department filed a care and protection
petition pursuant to G. L. c. 119, § 24, and received temporary
custody of Isla after her emergency removal from the mother's
care on December 30, 2019. The court approved the department's
permanency plan for adoption at a hearing on February 15, 2022.
The father contacted the department only once around
January 2020 from an anonymous telephone number. During this
phone call, the father denied the allegations of abuse
concerning the mother's other children and denied that he was
the father of Isla. Shortly after Isla's birth, the father
5 became incarcerated, and since that time, he has continued to
refuse to engage with the department and has expressed no
interest in visiting with Isla or in establishing a
relationship.
In or around November 2020, despite repeatedly denying
knowing who the biological father of Isla was, the mother told a
social worker at the department that the father was, in fact,
the father of Isla. The social worker then mailed the father at
least two service plans at the house of correction, which
included the department's contact information, but never heard
from the father at any point. The father filed a paternity
action in January of 2021. 4
Despite not hearing from the father, the department
developed an action plan for the father after taking custody of
Isla, and mailed it to him. The only initial task on the
father's action plan was to meet with the department so they
could conduct an assessment. This initial assessment never
occurred because the father refused to meet with the department
and refused to engage in an assessment or any services.
4 Although we do not have a copy of any complaint alleging paternity, the father and the department have agreed that such a complaint was filed. Based on the transcript below, it appears that father wanted a paternity test to be performed. Nothing in the record indicates the father retracted his original denial of his paternity until after his paternity results were finalized.
6 About a week or two before the trial was scheduled to
commence, the social worker learned that genetic testing had
confirmed that the father was the other biological parent of
Isla. Those results were sent directly to the father. The
father's action plan was updated to include the requirements to
engage in monthly meetings with the department, remain in
communication with the department, sign necessary releases,
refrain from illicit substance use, and engage in parenting
classes. The updated action plan still included an initial
assessment so the department might better identify areas of
need. Again, the father did not respond to any requests by the
department, and did not complete the initial assessment.
The social worker assigned to this case at no point visited
the father, who was in custody at the house of correction from
shortly after Isla's birth through trial. Although the house of
correction did not allow in-person visits during the pandemic,
this policy ended in May of 2022. The social worker did not
attempt to visit the father when in-person visits were allowed
again nor did she investigate whether they might speak over Zoom
either before or after the COVID-19 policy ended. Nor did the
social worker take the opportunity to meet with the father when
he appeared in court for hearings in this case.
After exploring the paternal grandfather as a potential
placement option to no avail, Isla was placed with a family
7 whose home overall met the physical and safety standards set
forth by the department. The goal for Isla was then changed to
permanency through adoption on May 28, 2020. At the time of
trial, Isla was two and one-half years old, was seemingly doing
well living with this family, and had never met the father.
3. Trial. The father was present at trial but did not
testify. Given the criminal charges that were pending against
the father involving alleged child abuse, the judge drew a
negative inference from the father's failure to testify. The
father has two other children, and at the time of trial, there
was an open department case involving allegations of domestic
violence against those children. The judge did not seem to rely
on these allegations, and instead relied heavily on the criminal
charges relating to the father's abuse of Declan and Keesha. 5
The judge found that the department had used "appropriate
efforts to contact Father and try to develop an action plan for
Father." In making this finding, the judge noted that the
department could have done more. The judge also found that
5 While considering the factors under G. L. c. 210, § 3 (c), the judge incorrectly noted that factor xiii was applicable. See G. L. c. 210, § 3 (c) (xiii) (requiring consideration of parent's conviction of felony of such nature that child will be deprived of stable home for period of years.). We take this opportunity to note that this factor requires a conviction, which father did not have. The rest of the judge's discussion in relation to this factor, however, makes clear that the judge understood that father had not yet been convicted of abusing Declan or Keesha.
8 although the father's pretrial incarceration limited his ability
to engage in any services with the department, it did not
preclude him from cooperating with the department or attempting
some level of involvement or contact with Isla. The judge found
both the mother and the father unfit and that their unfitness
was likely to continue for the indefinite future. The judge
terminated their parental rights, approved the department's plan
of adoption, and declined to order posttermination visitation
between the father and Isla.
Discussion. "In deciding whether to terminate a parent's
rights, a judge must determine whether there is clear and
convincing evidence that the parent is unfit and, if the parent
is unfit, whether the child's best interests will be served by
terminating the legal relation between parent and child."
Adoption of Ilona, 459 Mass. 53, 59 (2011). The father makes
three arguments on appeal: 1) the judge's determination that
the department made reasonable efforts was clear error; 2) the
judge failed to consider the father's efforts to establish his
paternity when determining whether he was a permanently unfit
parent; and 3) the father should have been given additional time
after his paternity was established to work with the department
prior to the termination of his paternal rights. We discuss
each argument in turn, giving "substantial deference to the
judge's findings of fact and decision, and . . . revers[ing]
9 only 'where the findings of fact are clearly erroneous or where
there is a clear error of law or abuse of discretion.'"
Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of
Ilona, supra.
1. Department's reasonable efforts. "When a child is
removed from his or her home and placed into the custody of the
[department], the department is required by statute to make
ongoing 'reasonable efforts to make it possible for the child to
return safely to his [or her] parent or guardian.'" Care &
Protection of Rashida, 488 Mass. 217, 218 (2021), quoting G. L.
c. 119, § 29C. This general obligation also requires the
department "to 'encourage the use by [the father] of all
available resources' to promote the 'strengthening and
encouragement of family life for the protection and care of
[the] children.'" Care & Protection of Elaine, 54 Mass. App.
Ct. 266, 274 (2002), citing G. L. c. 119, § 29C. "What
constitutes reasonable efforts . . . must be evaluated in the
context of each individual case, considering any exigent
circumstances that might exist." Care & Protection of Walt, 478
Mass. 212, 227 (2017). "A judge's determination that the
department made reasonable efforts will not be reversed unless
clearly erroneous. Adoption of West, 97 Mass. App. Ct. 238, 242
(2020), citing Adoption of Ilona, 459 Mass. at 61-62. On this
10 record, we do not see any clear error in the judge's
determinations.
Before terminating parental rights, the judge must consider
the factors listed in G. L. c. 210, § 3 (c), see Adoption of
Gregory, 434 Mass. 117, 126 (2001), several of which relate to
whether the department provided reasonable services and whether
the parent utilized said services. See G. L. c. 210, § 3 (c).
The father argues that although the judge considered these
factors, the record does not support his conclusion that the
department had made reasonable efforts. Essentially, the father
argues that the department's limited efforts to contact him
while he was incarcerated fell short of the requirement to
provide reasonable efforts. 6 We disagree.
The judge acknowledged that the social worker did not meet
with the father or inquire about Zoom visits and noted that she
should have. Despite those acknowledged shortcomings, however,
the judge ultimately concluded that, while more could have been
done, the social worker's attempts to contact the father by
letter were sufficient given the father's lack of efforts to
6 To the extent that the department contends that the father's arguments are waived because they were not properly raised below, see Adoption of Gregory, 434 Mass. at 129, we address the merits of the father's argument because the order denying his December 6, 2021, motion for a determination that the department failed to provide reasonable efforts was sufficient to preserve the issue on appeal.
11 "reach out to the Department, to pursue visitation, or engage in
any services." In fact, in this case, the father initially
reached out to the department denying paternity of Isla and did
not provide an address or telephone number for the department to
contact him. It was only when he was incarcerated that the
department was able to contact the father, which they did via
mail. Although the judge noted that the paternity testing took
over two years, the judge also noted that the father, due to his
detention, could not receive services. The judge concluded that
in light of these circumstances, the department's efforts were
reasonable. We agree.
Although the father cites the department's internal
policies regarding the appropriate frequency of visits by social
workers in most cases, the father has presented no facts or law
that would make us question the judge's ultimate determination.
We agree with the judge that more could have been done, but the
law does not require that the department do everything it can,
only that it make reasonable efforts in the context of the
parent's individual circumstances. See Care & Protection of
Walt, 478 Mass. at 227. Although the father disagrees, we
conclude that his lack of effort to remain in contact with the
department and seek services are among the many factors that the
judge may consider when determining whether the department's
efforts, in the context of the entire case, were reasonable.
12 See, e.g., Adoption of Yalena, 100 Mass. App. Ct. 542, 554
(2021) ("The department's obligation to make reasonable efforts
to reunify the child with the mother is contingent upon her
obligation to substantially fulfill her parental
responsibilities [including seeking and using appropriate
services]").
The father also asserts that the department had an
obligation to arrange visitation with Isla. The social worker
testified that the father was not offered any visitation because
his paternity had not been established, and the father never
requested any visits. The father is correct that, absent a
finding that visits would be harmful to the child or the public
interest, parents have a right to visit their child. See G. L.
c. 119, § 35. However, the father cites no authority that
suggests that the department is required to proactively offer
visitation when, as here, the father denied being the biological
father. The father even acknowledges that "the Department is
not obligated to provide visits to a non-adjudicated parent."
Finally, we note that nothing in the record indicates that, even
in the short time period that paternity tests confirmed that he
was Isla's father, the father ever asked to visit Isla or to
have Isla visit him prior to trial.
The father similarly argues that, even if not legally
obligated, it would have been appropriate for the department to
13 offer him visits with Isla. That, however, is not our standard,
and the department's failure to proactively organize visitation
between the father and Isla absent any determination that he was
the father or any request by the father does not constitute an
inherent failure to make reasonable efforts.
The father also argues that the judge's determination that
he failed to engage in any services was error given that he was
unable to do so due to his incarceration. Although the father
is correct that the department was required to create an action
plan for the father specifically tailored to his particular
circumstances, it is unclear what more could have been done to
tailor an action plan for him where he could not utilize any
services. The action plan initially required the father to do
one task: stay in contact with the department. He failed to do
this.
In sum, the judge's analysis reveals a careful
consideration of all of the relevant circumstances as to Isla's
best interests and we see no error in this consideration. See
Adoption of Ilona, 459 Mass. at 61-62. See also G. L. c. 119,
§ 29C. Accordingly, the judge's finding that the department's
efforts were reasonable was not clearly erroneous in light of
the father's inability to receive services due to his ongoing
incarceration related to allegations of child abuse and given
his lack of efforts to remain in contact with the department.
14 2. Father's efforts. The father next argues that the
judge was inappropriately silent as to his efforts to obtain
paternity testing and that the judge overemphasized the fact he
was unable to undergo paternity testing until the eve of trial.
While we agree that "[t]roublesome facts . . . are to be faced
rather than ignored" (citation omitted), Adoption of Stuart, 39
Mass. App. Ct. 380, 382 (1995), we believe that the judge's
findings accurately describe the father's efforts and the
timeline of events concerning the paternity testing. The judge
noted that the father refused to "work to address the issue of
establishing paternity while this case was initially pending,"
which is accurate. Although the judge did not explicitly state
the specific date on which the father began to seek paternity
testing by filing a paternity action, the judge did acknowledge
that the father attempted to establish paternity by observing
that he "wanted to know paternity" before working with the
department. While the father's eventual efforts to establish
paternity might minimally weigh in his favor, the judge's
minimal discussion of those efforts in the larger context of his
lack of efforts to be involved with Isla's life was appropriate.
Additionally, the judge's description that "[p]aternity was
not established until April or May 2022, two years since the
child entered care," and that the "[f]ather was adjudicated the
biological father of [Isla] on the day of trial," was an
15 accurate description of the timeline of paternity testing.
Nothing in the judge's findings leads us to believe that this
finding weighed against the father. While the judge did note
that the "[f]ather bears some responsibility to be involved,"
this seems to be a critique of his lack of effort to be involved
with Isla, not that he was responsible for the delay in testing
after it was sought several months prior to trial. Accordingly,
we see no clear error of law or abuse of discretion in the
judge's analysis of the timeline of the paternity testing.
3. Additional time. The father's final argument on appeal
is that termination of his parental rights was premature, as he
should have been given additional time to work with the
department after his paternity was adjudicated and to establish
a relationship with Isla. He cites no authority that would have
required the judge to give him additional time to engage in
services and only cites cases that state that a court may choose
not to terminate parental rights even where the court finds the
parent temporarily unfit. See, e.g., Adoption of Carlos, 413
Mass. 339, 350 (1992) ("it is appropriate for a judge to
consider 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."). Even where the father's
unavailability and his inability to engage in services due to
his incarceration might have been temporary, the judge had ample
16 reason to conclude that his unfitness as a parent was not
temporary. Accordingly, we see no clear error in the judge's
determination that the father's parental unfitness was not
temporary. We also find no support in the law for the
proposition that a parent is entitled to additional time to
engage in services after the judge has appropriately concluded
that the parent's unfitness is not temporary. We therefore see
no abuse of discretion in the judge's decision not to provide
the father with additional time to engage in services.
Decree affirmed.
By the Court (Green, C.J., Walsh & Smyth, JJ. 7),
Assistant Clerk
Entered: March 25, 2024.
7 The panelists are listed in order of seniority.