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-72
ADOPTION OF NAIRA (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the father
was unfit to parent the child, Naira, and that her best
interests would be served by the terminating his parental rights
and placing the child with her preadoptive parents. The judge
also declined to order visitation between the father and the
three children who were the subject of the petition at the time
of trial. The father appeals from the decrees, arguing that the
judge did not sufficiently consider the father's competing
adoption plan for the child and should have ordered
posttermination and postadoption visitation with the three
children. We affirm.
1Adoption of Philip and Adoption of Braedon. The children's names are pseudonyms. Background. The child was born in 2011; her biological
parents are the mother and the father. Her four siblings
include two boys (boys), one about one year older and the other
about three years younger than the child; the father is the
biological parent of the younger boy.2 Between July 2014 and May
2018, five reports pursuant to G. L. c. 119, § 51A (51A
reports), were filed alleging neglect of the children, one of
which alleged that in 2017 the father held a knife to the
mother's throat in the children's presence.
On September 16, 2018, a 51A report was filed alleging
neglect of the child and the boys by the father; it identified
the father by an alias. That 51A report alleged that, after the
mother found naked photographs of other women on the father's
cell phone, they argued and the father choked the mother. Two
days later, three more 51A reports were filed alleging, among
other things, that the mother and the father of her two oldest
children were involved in stabbing a man in the presence of the
child and one of the boys. The Department of Children and
Families (DCF) conducted an emergency removal of the children
and instituted these care and protection proceedings.
2 During these proceedings, in the fall of 2023, it was determined that the father is not the biological parent of the older boy. The mother is the biological parent of both boys. The mother also has an older son and daughter who were removed from the petition after they reached age eighteen.
2 Beginning on October 2, 2018, the child was placed with the
foster parents, who became her preadoptive parents. As of trial
the child had been with the preadoptive parents for more than
five years. The boys were in many different foster placements,
sometimes separately, for about the next four years.
Because the name DCF had for the father was an alias, DCF
struggled to locate him, delaying his visitation with the
children. When a social worker telephoned the father in
November 2018 and asked whether his name was his true name or
the alias, the father hung up. The father's use of an alias
also impeded DCF's identification of possible kinship
placements. In March 2019, the father contacted DCF, and he was
served with the care and protection summons in April 2019. The
father was offered weekly supervised visits with the child and
the boys, which were changed to biweekly after the father failed
to attend them consistently.
On June 25, 2019, DCF changed its goals for the child and
the boys to adoption. At that point DCF's plan was to recruit
an adoptive family for those three children. The father told
DCF that he wanted the children to be placed with his aunt
(great aunt). In August 2020, however, the mother's older
daughter, then about fifteen, was placed in the same foster home
as the child. The adoption social worker contacted the great
aunt and asked if she could take those four children; the great
3 aunt said she could take only the child and the boys, and only
after her upcoming move from Connecticut to Florida. By then
the child had been with her preadoptive parents for almost two
years, and her biological sister was also living there.3 DCF
decided to move forward with the Interstate Compact on the
Placement of Children (ICPC) process to place the boys with the
great aunt in Florida.
In early 2021, after about nine months of video conference
visits because of the COVID-19 pandemic, in-person supervised
visits resumed between the father and the child. During two
visits in early 2021, the father pulled the child's hair and
insisted that she sit on his lap; the child was then about ten
years old. After that, the child reported to DCF that she was
uncomfortable attending visits with the father, and for the next
three years refused to participate in them despite encouragement
from DCF. Based on the father's testimony that his interactions
with the child were appropriate and that she said they made her
uncomfortable only because DCF had "brainwashed" her, the judge
found that he "continually dismissed [the child]'s concerns and
refused to take responsibility for his behavior that led to her
refusal to attend visits." During his subsequent visits with
3 The sister left that placement in November 2021. The child's preadoptive parents continued to maintain regular contact between the child and the sister.
4 the boys, the father spent a significant amount of time
perseverating on the child's absence; when a social worker
repeatedly tried to redirect his attention, the father told her
to "go fuck [her]self." The judge found that the father could
not control his anger in front of the children and his focus on
the child's absence prevented him from taking advantage of his
limited visitation time with the boys.
In June 2022, DCF and the child moved to suspend the
father's visits with her. A Juvenile Court judge allowed the
motion but ordered DCF to ask the child monthly whether she
would like to visit the father. The child consistently said
that she did not want to do so.
In January 2023, the boys were placed with the great aunt
in Florida. The child's preadoptive parents and the great aunt
facilitated telephone and video contact between the child and
the boys, and on one occasion they all met at an amusement park.
The judge credited the testimony of the child that she was
happy in her preadoptive home and wanted to remain there and be
adopted by the preadoptive parents. The child consented to
being adopted by the preadoptive parents, but did not consent to
an adoption by the great aunt.4 Despite the child's testimony,
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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
25-P-72
ADOPTION OF NAIRA (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the father
was unfit to parent the child, Naira, and that her best
interests would be served by the terminating his parental rights
and placing the child with her preadoptive parents. The judge
also declined to order visitation between the father and the
three children who were the subject of the petition at the time
of trial. The father appeals from the decrees, arguing that the
judge did not sufficiently consider the father's competing
adoption plan for the child and should have ordered
posttermination and postadoption visitation with the three
children. We affirm.
1Adoption of Philip and Adoption of Braedon. The children's names are pseudonyms. Background. The child was born in 2011; her biological
parents are the mother and the father. Her four siblings
include two boys (boys), one about one year older and the other
about three years younger than the child; the father is the
biological parent of the younger boy.2 Between July 2014 and May
2018, five reports pursuant to G. L. c. 119, § 51A (51A
reports), were filed alleging neglect of the children, one of
which alleged that in 2017 the father held a knife to the
mother's throat in the children's presence.
On September 16, 2018, a 51A report was filed alleging
neglect of the child and the boys by the father; it identified
the father by an alias. That 51A report alleged that, after the
mother found naked photographs of other women on the father's
cell phone, they argued and the father choked the mother. Two
days later, three more 51A reports were filed alleging, among
other things, that the mother and the father of her two oldest
children were involved in stabbing a man in the presence of the
child and one of the boys. The Department of Children and
Families (DCF) conducted an emergency removal of the children
and instituted these care and protection proceedings.
2 During these proceedings, in the fall of 2023, it was determined that the father is not the biological parent of the older boy. The mother is the biological parent of both boys. The mother also has an older son and daughter who were removed from the petition after they reached age eighteen.
2 Beginning on October 2, 2018, the child was placed with the
foster parents, who became her preadoptive parents. As of trial
the child had been with the preadoptive parents for more than
five years. The boys were in many different foster placements,
sometimes separately, for about the next four years.
Because the name DCF had for the father was an alias, DCF
struggled to locate him, delaying his visitation with the
children. When a social worker telephoned the father in
November 2018 and asked whether his name was his true name or
the alias, the father hung up. The father's use of an alias
also impeded DCF's identification of possible kinship
placements. In March 2019, the father contacted DCF, and he was
served with the care and protection summons in April 2019. The
father was offered weekly supervised visits with the child and
the boys, which were changed to biweekly after the father failed
to attend them consistently.
On June 25, 2019, DCF changed its goals for the child and
the boys to adoption. At that point DCF's plan was to recruit
an adoptive family for those three children. The father told
DCF that he wanted the children to be placed with his aunt
(great aunt). In August 2020, however, the mother's older
daughter, then about fifteen, was placed in the same foster home
as the child. The adoption social worker contacted the great
aunt and asked if she could take those four children; the great
3 aunt said she could take only the child and the boys, and only
after her upcoming move from Connecticut to Florida. By then
the child had been with her preadoptive parents for almost two
years, and her biological sister was also living there.3 DCF
decided to move forward with the Interstate Compact on the
Placement of Children (ICPC) process to place the boys with the
great aunt in Florida.
In early 2021, after about nine months of video conference
visits because of the COVID-19 pandemic, in-person supervised
visits resumed between the father and the child. During two
visits in early 2021, the father pulled the child's hair and
insisted that she sit on his lap; the child was then about ten
years old. After that, the child reported to DCF that she was
uncomfortable attending visits with the father, and for the next
three years refused to participate in them despite encouragement
from DCF. Based on the father's testimony that his interactions
with the child were appropriate and that she said they made her
uncomfortable only because DCF had "brainwashed" her, the judge
found that he "continually dismissed [the child]'s concerns and
refused to take responsibility for his behavior that led to her
refusal to attend visits." During his subsequent visits with
3 The sister left that placement in November 2021. The child's preadoptive parents continued to maintain regular contact between the child and the sister.
4 the boys, the father spent a significant amount of time
perseverating on the child's absence; when a social worker
repeatedly tried to redirect his attention, the father told her
to "go fuck [her]self." The judge found that the father could
not control his anger in front of the children and his focus on
the child's absence prevented him from taking advantage of his
limited visitation time with the boys.
In June 2022, DCF and the child moved to suspend the
father's visits with her. A Juvenile Court judge allowed the
motion but ordered DCF to ask the child monthly whether she
would like to visit the father. The child consistently said
that she did not want to do so.
In January 2023, the boys were placed with the great aunt
in Florida. The child's preadoptive parents and the great aunt
facilitated telephone and video contact between the child and
the boys, and on one occasion they all met at an amusement park.
The judge credited the testimony of the child that she was
happy in her preadoptive home and wanted to remain there and be
adopted by the preadoptive parents. The child consented to
being adopted by the preadoptive parents, but did not consent to
an adoption by the great aunt.4 Despite the child's testimony,
4 Because the child was above the age of twelve, any adoption would require her written consent. G. L. c. 210, § 2.
5 both the father and the great aunt maintained that the judge
should order the child to be moved to Florida and be adopted by
the great aunt.
The father has a criminal history including the use of
multiple aliases and New York convictions for selling narcotics
and possession of a forged instrument. While this trial was
ongoing, he was arrested for firearms and drug trafficking
offenses and held in a house of correction. At the time of
trial he had twelve open Massachusetts criminal cases.
Police have responded to more than a dozen reports of
domestic disputes between the father and the mother, some of
which involved allegations of the father's violence toward the
mother in front of one or more of the children. For more than
five years before trial, the father was repeatedly tasked with
engaging in domestic violence services including a batterer's
intervention program, but he did not complete those programs.
He testified that the mother's allegations of domestic violence
were "a lie" and that he did not believe he needed to
participate in those programs. He told DCF that he was not
interested in participating in any services because he was not
seeking reunification with the children and wanted them to be
placed with the great aunt. The judge found that the father had
failed to take responsibility for his actions regarding domestic
disputes with the mother.
6 At trial, the father did not contest the termination of his
parental rights, but argued that the child should be placed with
the great aunt and the boys. The judge terminated the father's
parental rights to the child and approved DCF's plan for her
adoption by her preadoptive parents. The judge also terminated
the father's parental rights as to the younger boy and approved
the plan for both boys' adoption by the great aunt. As to
visitation, the judge concluded that it was not in the best
interests of the child or the boys to order posttermination or
postadoption contact with the father. As to sibling visitation,
the judge ordered DCF and the preadoptive parents of the child
and the boys to ensure that at least one contact a month, either
a telephone call or a video call, be arranged among them. The
father has appealed from the decree issued with regard to Naira
and so much of the decrees pertaining to the two boys as related
to visitation.5
Discussion. 1. Competing adoption plan. The father
argues that the judge abused her discretion in choosing the
adoption plan proposed by DCF rather than the father's plan for
the child to be adopted by the great aunt. The father contends
that the judge did not sufficiently compare the competing plans,
5 The judge also terminated the mother's parental rights as to the child and the boys. The mother has not appealed from any decree.
7 disregarded DCF's failure to work with him in furthering his
goal of keeping the child with the boys, and ignored the DCF
regulations prioritizing kinship placement, see 110 Code Mass.
Regs. § 7.101(2)-(3) (2009).
The father argues that the judge did not perform a
meaningful evaluation of the two competing adoption plans. When
DCF and a parent propose different adoption plans, the judge
must consider both and "determine which placement will serve the
best interests of the child." Adoption of Dora, 52 Mass. App.
Ct. 472, 474-475 (2001). In deciding between two competing
adoption plans, the judge must "'meaningfully . . . evaluate'
what is proposed to be done for the child." Id. at 475, quoting
Adoption of Lars, 46 Mass. App. 30, 31 (1998), S.C., 431 Mass.
1151 (2000). The judge's evaluation must include "an
'evenhanded' assessment of all the facts surrounding" the two
plans. Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert.
denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). We
review the judge's choice between competing adoption plans for
an abuse of discretion. See Adoption of Breck, 105 Mass. App.
Ct. 652, 663 (2025).
We conclude that the judge conducted a meaningful
evaluation of the competing adoption plans. As to DCF's plan,
the judge considered the testimony of the child, who wished to
remain with the preadoptive parents, and that of the adoption
8 social worker, who described the many ways the preadoptive
parents had met the child's needs during the more than five
years that she had been in their care.
As to the father's plan, the judge considered the testimony
of the father and the great aunt that the child belonged with
the great aunt and the boys because they were biologically
related. The judge found that DCF "expressed no concerns" about
the great aunt's ability to provide for the boys' needs.
However, the judge concluded that "[w]hile [the great aunt] is
an appropriate adoptive home for [the boys], she is not the best
plan for [the child]." The judge found that the child "had met
[the great aunt] but did not have a relationship with her."
During the first seven years of the child's life, the great aunt
saw the child only four or five times; after the child entered
DCF custody, the great aunt saw the child only once in person.
The judge found that the great aunt "clearly stated to the court
that she did not know anything about [the child]." The great
aunt did not know the child's grade in school or whether she had
any behavioral or mental health issues. In her conversations
with the adoption social worker, the great aunt did not ask to
visit the child or ask about her medical or mental health
history.
The judge's detailed fact finding about the viability and
propriety of placing the child with the great aunt met the
9 requirement of a meaningful evaluation of the father's competing
adoption plan. See Adoption of Breck, 105 Mass. App. Ct. at
664. As for the father's argument that the judge was required
to "develop a side-by-side comparison of the competing plans,"
we do not read Massachusetts case law to require that, for a
judge's evaluation of the competing plans to be meaningful, the
judge must compare each individual aspect of the plans. That is
particularly so here, where the judge was comparing a plan to
keep the child with the preadoptive parents, where she had been
for more than five years, with a plan to place the child with
the great aunt, a biological relative with whom, the judge
found, the child "did not have a relationship." See Adoption of
Jacob, 99 Mass. App. Ct. 258, 272-273 (2021) (no abuse of
discretion in choosing DCF plan of adoption by recruitment over
competing plan for child to remain with paternal grandparents).
Nor, contrary to the father's argument, was DCF required to
place the child with the boys because they are her biological
siblings. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 679-
680 (2019) (no abuse of discretion in approving adoption plans
that separated siblings).
As for the relevant DCF regulation prioritizing kinship
placement, 110 Code Mass. Regs. § 7.101(2), it requires that DCF
"shall consider, consistent with the best interests of the
child," a child's "kinship family" as the first of several
10 placement resources. DCF did consider placement of the child
with the great aunt. We conclude that the judge acted within
her discretion in finding that placement of the child with the
great aunt would not be in the best interests of the child. See
Adoption of Xarissa, 99 Mass. App. Ct. 610, 621 (2021).6
2. Visitation. The father also argues that the judge
abused her discretion in declining to order posttermination and
postadoption visitation between him and "his children," which we
take to mean the child and both boys. "A trial judge's decision
whether to order visitation between a child and a parent whose
parental rights have been terminated is reviewed for an abuse of
discretion." Adoption of Xarissa, 99 Mass. App. Ct. at 623-624.
"A judge should issue an order of visitation only if such an
order, on balance, is necessary to protect the child[ren]'s best
interest[s]." Adoption of Ilona, 459 Mass. 53, 65 (2011).
6 In his reply brief, the father argues for the first time that the judge failed to consider that the grand aunt shares his Jamaican heritage. We decline to consider any argument raised for the first time in a reply brief. See Care & Protection of Jaylen, 493 Mass. 798, 808 n.23 (2024). We note that the father misplaces his reliance on Adoption of Mariano, 77 Mass. App. Ct. 656, 662 (2010), in which a Probate and Family Court judge ruled that a divorcing couple could not negotiate for the father to relinquish his parental rights to a child who "shares a unique physical, genetic and ethnic connection with his birth father." This court upheld the order denying the mother's petition for adoption as not in the child's best interests in terms of "filial ties." Id. at 662-663. That case is inapposite.
11 Putting aside the question whether the father has standing
to seek visitation with the older boy, who is not his biological
child, cf. Adoption of Franklin, 99 Mass. App. Ct. 787, 803-804
(2021), we conclude that the judge did not abuse her discretion
in declining to order visitation between the father and any of
those three children. For more than three years before trial,
the child had refused visits with the father, and the father
failed to take responsibility for his behavior that caused her
refusal. See Adoption of Daisy, 77 Mass. App. Ct. 768, 783
(2010), S.C., 460 Mass. 72 (2011) (DCF "was not in a position to
force an eleven year old child to attend visits against her
will"). In visits with the boys, the father's behavior
escalated because of the child's absence, and as a result of his
failure to pay attention to the boys, DCF reduced his visits
with them. Between May and November 2023, the younger boy
refused to attend all but one visit with the father. During the
approximately two year period before trial, the father attended
only three virtual visits and one in-person visit with the boys.
Based on these facts, the judge found that the father did not
have a bond with the child or with either boy and that it is not
in the best interests of the children to order posttermination
or postadoption contact with the father. The judge did not
12 abuse her discretion in so finding. See Adoption of Ilona, 459
Mass. at 63-66.
Decrees affirmed.
By the Court (Shin, Grant & Hershfang, JJ.7),
Clerk
Entered: September 19, 2025.
7 The panelists are listed in order of seniority.