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-1246
ADOPTION OF LAVAR (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees issued by a
judge of the Juvenile Court terminating their parental rights to
their children, Lavar and Kevin. Both the mother and father
have a lengthy history with the Department of Children and
Families (DCF). Despite DCF involvement since 2016, the mother
and father have continued to use illegal substances; the mother
has been unable to secure stable housing; and the father has
struggled with mental health issues. After a March 2023 trial,
the judge found both the mother and father unfit, terminated
their parental rights, and ordered posttermination and
postadoption visitation. However, the judge made no findings
concerning the mother's proposal at trial to place the children
1 Adoption of Kevin. The children's names are pseudonyms. with the maternal grandparents. We affirm the portions of the
decrees adjudicating the parents currently unfit and finding the
children in need of care and protection. We vacate the portions
of the decrees terminating the mother's and father's parental
rights and concluding that adoption serves the best interests of
the children, and we remand for findings regarding the mother's
placement proposal.
Discussion. We review "to determine whether the judge's
findings were clearly erroneous and whether they proved parental
unfitness by clear and convincing evidence." Custody of
Eleanor, 414 Mass. 795, 802 (1993). "[S]ubsidiary evidentiary
findings need only be proved by a fair preponderance of the
evidence." Care & Protection of Laura, 414 Mass. 788, 793
(1993). "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. 53, 59
(2011).
Both the mother and father challenge the judge's findings
that they are unfit and that DCF made reasonable efforts to
reunite the children with them. The father further challenges
the posttermination and postadoption visitation order, and the
2 mother challenges the judge's failure to consider her
alternative placement plan. We address each argument in turn.
1. Fitness and reasonable efforts. a. Father's
unfitness. The judge concluded that the father was unfit based
primarily on his mental health and substance use issues, as well
as because of his housing instability, and inconsistent
visitation with the children. On appeal, the father challenges
the judge's finding of unfitness on three grounds.
First, the father argues that the judge exaggerated his
criminal history. The father contends that his most recent
criminal conviction was in 2017 and thus is stale, and that all
other charges against him were dismissed or resolved in his
favor, meaning the judge could not consider them. We need not
address the substance of these claims, because the judge's
decision appears to have given no weight to father's criminal
history. None of the judge's conclusions of law rely on that
history as evidence of unfitness. Thus, any errors in the
judge's findings of fact on the subject were not prejudicial.
To be sure, the judge found that at the time the father was
arrested in April 2021 for possession of a class E substance
(dextroamphetamine) and larceny, he was purchasing heroin. And
the conclusions of law referred back to that finding. But the
focus of the conclusions was the father's ongoing substance use
issue, and the fact of the arrest was shown on the father's CARI
3 report. Even if, as the father argues, it was error to admit
evidence that he was trying to buy heroin at the time,2 that
would not invalidate the judge's well-supported finding that the
father was still abusing substances.
Second, and relatedly, the father contends that he was
sober throughout much of DCF's involvement with his family,
apart from a brief relapse in 2019, and so the judge erred in
considering his substance use history as evidence of unfitness.
The evidence at trial, however, was that as of April 2021 the
father had an open charge of possession of a class E substance,3
and since then had not been in sufficient contact with DCF to
allow for the evaluation of his sobriety. Additionally, the
2 That evidence consisted of a DCF investigative report under G. L. c. 119, § 51B (51B report), which quoted a newspaper article, which quoted statements by police, which paraphrased statements made to them by the alleged seller of the heroin. Although "first- and second-level hearsay contained within DCF reports" is admissible if it meets certain criteria, Adoption of Luc, 484 Mass. 139, 153 (2020), the evidence at issue here was third- or fourth-level hearsay.
3 The father's brief attaches a docket sheet showing that the charge was dismissed for lack of prosecution in April 2022, before the care and protection trial. Such evidence was apparently not introduced at trial, however, and a dismissal for lack of prosecution can occur for multiple reasons and does not establish that the charge was "meritless," as the father suggests. Nor was there evidence at trial to support the assertion in the father's reply brief that the father possessed the class E substance in order to treat one of his psychiatric conditions. The father did not testify at trial, from which the judge permissibly drew a negative inference.
4 father ceased substance use and mental health treatment with the
Department of Veteran's Affairs after his arrest.
The father asserts that he graduated from Dedham District
Court drug court probation by July 2021, but the evidence on
this point is equivocal at best,4 and it certainly did not
require the judge to find that substance use was no longer a
problem by 2021, given the pending drug charge against him.
Similarly, the father argues that DCF monitored visits in 2021
and thereafter yet never reported his attending visits under the
influence, but this did not require the judge to find that
substance use was no longer a problem. Based on his 2021 drug
arrest, cessation of treatment, and subsequent avoidance of DCF
and failure to testify at trial, the judge could reasonably
infer that the father continued to struggle with substance use.
The judge could also have reasonably concluded that the father's
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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-1246
ADOPTION OF LAVAR (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees issued by a
judge of the Juvenile Court terminating their parental rights to
their children, Lavar and Kevin. Both the mother and father
have a lengthy history with the Department of Children and
Families (DCF). Despite DCF involvement since 2016, the mother
and father have continued to use illegal substances; the mother
has been unable to secure stable housing; and the father has
struggled with mental health issues. After a March 2023 trial,
the judge found both the mother and father unfit, terminated
their parental rights, and ordered posttermination and
postadoption visitation. However, the judge made no findings
concerning the mother's proposal at trial to place the children
1 Adoption of Kevin. The children's names are pseudonyms. with the maternal grandparents. We affirm the portions of the
decrees adjudicating the parents currently unfit and finding the
children in need of care and protection. We vacate the portions
of the decrees terminating the mother's and father's parental
rights and concluding that adoption serves the best interests of
the children, and we remand for findings regarding the mother's
placement proposal.
Discussion. We review "to determine whether the judge's
findings were clearly erroneous and whether they proved parental
unfitness by clear and convincing evidence." Custody of
Eleanor, 414 Mass. 795, 802 (1993). "[S]ubsidiary evidentiary
findings need only be proved by a fair preponderance of the
evidence." Care & Protection of Laura, 414 Mass. 788, 793
(1993). "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. 53, 59
(2011).
Both the mother and father challenge the judge's findings
that they are unfit and that DCF made reasonable efforts to
reunite the children with them. The father further challenges
the posttermination and postadoption visitation order, and the
2 mother challenges the judge's failure to consider her
alternative placement plan. We address each argument in turn.
1. Fitness and reasonable efforts. a. Father's
unfitness. The judge concluded that the father was unfit based
primarily on his mental health and substance use issues, as well
as because of his housing instability, and inconsistent
visitation with the children. On appeal, the father challenges
the judge's finding of unfitness on three grounds.
First, the father argues that the judge exaggerated his
criminal history. The father contends that his most recent
criminal conviction was in 2017 and thus is stale, and that all
other charges against him were dismissed or resolved in his
favor, meaning the judge could not consider them. We need not
address the substance of these claims, because the judge's
decision appears to have given no weight to father's criminal
history. None of the judge's conclusions of law rely on that
history as evidence of unfitness. Thus, any errors in the
judge's findings of fact on the subject were not prejudicial.
To be sure, the judge found that at the time the father was
arrested in April 2021 for possession of a class E substance
(dextroamphetamine) and larceny, he was purchasing heroin. And
the conclusions of law referred back to that finding. But the
focus of the conclusions was the father's ongoing substance use
issue, and the fact of the arrest was shown on the father's CARI
3 report. Even if, as the father argues, it was error to admit
evidence that he was trying to buy heroin at the time,2 that
would not invalidate the judge's well-supported finding that the
father was still abusing substances.
Second, and relatedly, the father contends that he was
sober throughout much of DCF's involvement with his family,
apart from a brief relapse in 2019, and so the judge erred in
considering his substance use history as evidence of unfitness.
The evidence at trial, however, was that as of April 2021 the
father had an open charge of possession of a class E substance,3
and since then had not been in sufficient contact with DCF to
allow for the evaluation of his sobriety. Additionally, the
2 That evidence consisted of a DCF investigative report under G. L. c. 119, § 51B (51B report), which quoted a newspaper article, which quoted statements by police, which paraphrased statements made to them by the alleged seller of the heroin. Although "first- and second-level hearsay contained within DCF reports" is admissible if it meets certain criteria, Adoption of Luc, 484 Mass. 139, 153 (2020), the evidence at issue here was third- or fourth-level hearsay.
3 The father's brief attaches a docket sheet showing that the charge was dismissed for lack of prosecution in April 2022, before the care and protection trial. Such evidence was apparently not introduced at trial, however, and a dismissal for lack of prosecution can occur for multiple reasons and does not establish that the charge was "meritless," as the father suggests. Nor was there evidence at trial to support the assertion in the father's reply brief that the father possessed the class E substance in order to treat one of his psychiatric conditions. The father did not testify at trial, from which the judge permissibly drew a negative inference.
4 father ceased substance use and mental health treatment with the
Department of Veteran's Affairs after his arrest.
The father asserts that he graduated from Dedham District
Court drug court probation by July 2021, but the evidence on
this point is equivocal at best,4 and it certainly did not
require the judge to find that substance use was no longer a
problem by 2021, given the pending drug charge against him.
Similarly, the father argues that DCF monitored visits in 2021
and thereafter yet never reported his attending visits under the
influence, but this did not require the judge to find that
substance use was no longer a problem. Based on his 2021 drug
arrest, cessation of treatment, and subsequent avoidance of DCF
and failure to testify at trial, the judge could reasonably
infer that the father continued to struggle with substance use.
The judge could also have reasonably concluded that the father's
substance use posed a danger to the children, as when a 2018
police search of their apartment found approximately fifty of
4 A 2018 51B report states that the father was part of a veterans' court program, with a probation officer from Dedham, and also that he was involved with a drug court. A July 2021 family assessment stated that the father had "graduated from his probation," without further details. The father's CARI report does not show that he was ever on probation in a Dedham District Court proceeding; it does show that he was on some unspecified form of probation in Quincy District Court that appears to have terminated in November 2020. We see no evidence of graduation from a drug court program in or around July 2021.
5 the father's prescription bottles, as well as drug
paraphernalia, hidden throughout the home.
Finally, the father asserts that the judge inappropriately
"found fault" with him for declining DCF's recommendation that
he attend grief counselling after the sudden, tragic death of
his infant child.5 Although we agree that his lack of engagement
in grief counselling would not be evidence of unfitness, we do
not agree that the judge treated it as such or found fault with
the father in this regard. The judge included these findings in
a passage recounting father's mental health history and seems to
have considered the issue solely as context for the father's
other mental health issues. The findings themselves were
supported by testimony, and they led to no prejudice to the
father. Thus, we do not disturb the judge's finding of the
father's unfitness.
b. Mother's unfitness. The judge concluded that the
mother was unfit based primarily on three factors. These were
her (1) substance use issues, (2) inability or unwillingness to
provide suitable housing for the children, and (3) mental health
issues. On appeal, the mother challenges the manner in which
the judge considered her mental health.
5 This child was born between Lavar and Kevin.
6 The judge found that the "[m]other's mental health needs
are directly tied to her substance use," but he made no findings
concerning the nature of those needs or the nexus between them
and her parental fitness. However, the mother does not argue
that the concerns about her mental health were essential to the
judge's ultimate finding of parental unfitness. The judge
considered a plethora of evidence concerning the mother's
substance use, and difficulty providing suitable housing, that
supported his overall finding of unfitness. We conclude that
concerns about the mother's mental health were not essential to
the judge's ultimate finding, by clear and convincing evidence,
that the mother was unfit. We do not disturb that finding.
c. Reasonable efforts concerning father. The father
argues that DCF violated the requirement that, "[b]efore seeking
to terminate parental rights, [it] must make 'reasonable
efforts' aimed at restoring the child to the care of the natural
parents." Adoption of Ilona, 459 Mass. at 60. More
specifically, he argues that DCF, contrary to the requirements
of its own disability policy, failed to provide accommodations
for his well-documented psychiatric disability. See G. L.
c. 119, § 1; DCF Disability Policy #2022-01 (January 18, 2022).6
6 We cite to the version of the policy in effect during the proceedings.
7 While DCF's disability policy requires it to take certain
steps to provide accommodations to parents with disabilities, it
is still a parent's obligation to "raise a claim of inadequate
services in a timely manner so that reasonable accommodations
may be made." Adoption of Gregory, 434 Mass. 117, 124 (2001).
As in Adoption of Gregory, "the father was represented by
counsel, who could have raised the issue at an earlier point in
time." Id. The reasonable efforts argument was not raised,
either to the Juvenile Court or apparently to DCF prior to
trial, and therefore it is waived. See id.; Adoption of West,
97 Mass. App. Ct. 238, 242 (2020).
The father nevertheless argues that he may raise the
argument now based on Adoption of Chad, 94 Mass. App. Ct. 828
(2020). In that case, the court rejected a waiver argument on
the ground that "the extent to which available supports could
have compensated for the mother's cognitive deficiencies was a
theme that ran through the life of the case." Id. at 839 n.20.
The father here argues that his psychiatric diagnoses and
history "were well known to DCF throughout the life of this
case." But that is not enough to implicate Adoption of Chad.
What must run through the life of a case is not merely a
parental condition known to DCF to impede family reunification,
but some disagreement over whether DCF reasonably could further
provide accommodations to help the parent remedy that condition.
8 The father points to no evidence of such a dispute here. Cf.
Adoption of West, 97 Mass. App. Ct. at 243 (notwithstanding
mother's reliance on Adoption of Chad, she had not "put the
department or the judge on notice of her current claim of
inadequate services"); id. at 245 (claimed failure to provide
services in Spanish was not "a theme of the case"). Adoption of
Chad does not create a rule superseding Adoption of Gregory,
where the Supreme Judicial Court held that a claim for
inadequate services, including by a disabled parent, must be
timely raised or it is waived. See Adoption of Gregory, 434
Mass. at 124. Thus, even if DCF did not make sufficient
accommodations for the father here, the reasonable efforts
argument is waived.
d. Reasonable efforts concerning mother. The mother
argues that while DCF faulted her for failing to comply with
mental health-related tasks on her action plan, DCF offered no
support to assist her in accomplishing these tasks, thereby
failing to make reasonable efforts to reunite her with the
children. The mother made no such argument below, however, so
it is waived on appeal. See Adoption of West, 97 Mass. App. Ct.
at 242.
2. Visitation. Next, the father argues it was an abuse of
discretion for the judge, in ordering four posttermination
visits per year and two postadoption visits per year, to fail to
9 make specific and detailed findings about why more frequent
visits were not in the children's best interests. But the
father cites no authority to support the proposition that such
findings are required, nor does he make any argument as to why
they should be required. Moreover, as to the reduction from
four to two visits annually once the children are adopted, we
note that any order for postadoption visitation is an "intrusion
. . . on the rights of the adoptive parents, who are entitled to
the presumption that they will act in their child's best
interest." Adoption of Ilona, 459 Mass. at 64-65. Accordingly,
court-ordered visitation between a parent and a child will often
be reduced (if not eliminated entirely) once a child is adopted.
We know of no mathematical formula for determining the
appropriate frequency of such visits, which must be left to the
judge's discretion. See Adoption of Zander, 83 Mass. App. Ct.
363, 365 (2013). Nor does it appear from the record that the
father argued to the judge that any greater number of visits
should be ordered; for example, his closing argument at trial
was silent on the issue. In these circumstances, the judge was
under no obligation to make findings explaining why more
visitation was not ordered, and we see no abuse of discretion in
the visitation orders as entered.
3. Termination and placement. The mother argues that the
judge erred by failing to consider her placement plan for the
10 children. A judge must consider the placement plans proposed by
both DCF and the parents and "then 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 obligation
to consider a plan involves much more than simply examining it.
The judge must perform a careful evaluation of the suitability
of the plan and must meaningfully . . . evaluate what is
proposed to be done for the child" (quotations and citation
omitted). Id. at 475.
At trial, the mother proposed that her rights not be
terminated and that the maternal grandparents be given custody
of the children. The maternal grandfather testified that he and
the maternal grandmother would "be willing to take the boys,
adopt them, or anything we have to do to take them to our home."
He further testified that he was able to care for the children
because he is financially stable, retired, lives in a four-
bedroom house, and feels a strong connection with the children.
Even if, as DCF notes, the mother's closing argument asked that
the maternal grandparents be given "custody" of the children,
rather than expressly using the word "adopt," the judge still
was required to consider and make findings of fact about the
mother's proposed plan. "A judge should provide an 'even
handed' assessment of all the facts surrounding both the
department's plan and any competing custody or adoption plan"
11 (emphasis added; citation omitted). Adoption of Hugo, 428 Mass.
219, 226 & n.8 (1998), cert. denied sub nom. Hugo P. v. George
P., 526 U.S. 1034 (1999). See Adoption of Dora, 52 Mass. App.
Ct. at 474-475 (judge must consider not only DCF's adoption plan
but also "parental nominations of caretakers" and then determine
which "placement" will serve best interests of child). It was
error not to do so.
As the court explained in Adoption of Dora:
"[U]nless the biological parents' proposed alternative plan for adoption is considered before a decree [terminating parental rights] issues . . . they may lose the opportunity to advocate their point of view. Such a result would be inconsistent with the principle that parental nominations of caretakers are to be considered in cases of this nature."
52 Mass. App. Ct. at 476-477. Therefore, as in Adoption of
Dora, we must vacate the portions of the decrees terminating the
mother's and father's parental rights. A limited remand is
required so that the judge may "take additional evidence, if
necessary, and make a determination as to the appropriate . . .
placement" for each child.7 Id. at 478. "If any party wishes to
7 Contrary to DCF's suggestion, this is not a case like Adoption of Varik, 95 Mass. App. Ct. 762 (2019), where the court vacated that part of a decree approving an adoption plan, and remanded for further proceedings regarding that plan, while affirming the decree insofar as it terminated a parent's rights. See id. at 774, citing Adoption of Cadence, 81 Mass. App. Ct. 162, 174 (2012). As the court stated in Adoption of Varik, that case, unlike Adoption of Dora, did not involve a competing plan proposed by a biological parent. See Adoption of Varik, supra at 772-773.
12 appeal from the judge's decision, such an appeal may be brought
before [us] for expedited review by the same panel." Id. at
479.
Conclusion. We affirm the portions of the decrees
adjudicating the parents to be currently unfit and determining
that the children are in need of care and protection. We vacate
those portions of the decrees determining that adoption serves
the best interests of the children and terminating the mother's
and father's parental rights, and we remand the matter for
further proceedings consistent with this memorandum and order.
The orders for visitation currently in effect shall remain in
effect, subject to further action by the Juvenile Court.
So ordered.
By the Court (Meade, Sacks & Hodgens, JJ.8),
Clerk
Entered: March 18, 2025.
8 The panelists are listed in order of seniority.