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
24-P-1260
ADOPTION OF NAIRN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court
finding him unfit to parent his son (child), terminating his
parental rights, and approving the adoption plan proposed by the
Department of Children and Families (DCF). We conclude that
evidence of the father's persistent incarcerations combined with
his unresolved mental health issues and housing instability, was
sufficient to support the judge's findings that the father was
currently and indefinitely unfit and that termination was in the
best interests of the child. Further concluding that DCF, which
intended to reunify the child with the father before the
father's mental health deteriorated and he was again
incarcerated, made reasonable efforts at reunification, we
affirm.
1The mother, who neither appeared at trial nor appealed from the termination of her parental rights, is not a party to this appeal. Background. One day after the child's birth, DCF received
a G. L. c. 119, § 51A report alleging neglect of a substance
exposed newborn. Both the child and the mother tested positive
for cocaine and prescribed methadone at birth. In light of
various factors including concerns related to the father's
criminal history and incarceration, and the child's wellbeing,
the child has been in DCF care since December 21, 2021.
The father has an extensive criminal record spanning
multiple States. In Massachusetts, the father's criminal record
consists of myriad adult charges and convictions between 1995
and 2023, including approximately thirteen violations of
probation. The father was also incarcerated for nine years in a
Federal prison in Texas for conspiracy charges and spent two
years in Washington State prison in 2002. In all, the father
"has spent more than half of the past twenty years
incarcerated," and was unable to care for the child for much of
the child's life. Indeed, the father was incarcerated at the
time of the child's birth and at the time of trial.
On December 22, 2021, at the beginning of the child's life,
DCF gave the father an action plan while he was incarcerated.
Upon release, the father met with DCF staff and followed the
requirements of the action plan for several months. This
included participating in individual therapy for mental health
issues and substance abuse programs. Because the father was
2 following the action plan, DCF began to create a reunification
plan for the father.
The father, however, had not addressed his mental health
and showed a detachment from reality.2 In July 2023, "[h]is
mental health appear[ed] to have deteriorated." Around this
time, he reportedly walked around naked in the common areas of
the multifamily building where he lived and exposed himself to
neighbors. Also, on July 23, 2023, police officers served the
father with three "harassment orders," and the father was
ultimately admitted to a hospital for a G. L. c. 123, § 12
psychological evaluation because of his escalated behaviors and
suicidal ideations.
The father's behavior continued to deteriorate, and, by
September 30, 2023, he was arrested again following a standoff
with the police and "S.W.A.T." during which he barricaded
himself in a motel room. Following this arrest, a toxicology
screen was positive for cocaine, resulting in the judge's
discrediting any claims that he was not using illicit
substances.3 The father, nonetheless, explained to a social
2 Much of the father's trial testimony was not credited by the judge because of, inter alia, "serious concern for Father's mental health and perceptions of reality based on his testimony."
3 At trial, the father invoked his right against self- incrimination with respect to certain events, and the judge drew
3 worker that he believed he was targeted as part of "protocol
11," a "plan from the government that targeted him as someone
who needed to be taken out." He also testified that he is "the
Messiah."
Finally, partly because of the significant amount of time
he has been incarcerated, the father has a history of housing
instability. In July 2023, prior to his most recent
incarceration, the father was served an eviction complaint
because of three harassment orders from neighbors and because he
was behind in his rent payments. The father claims, but the
judge did not credit, that he has the option to live in one of
two apartments that he manages after his release from
incarceration.
Following trial, the judge ordered the entry of decrees
finding the mother and the father unfit and terminating their
parental rights. The judge also approved the adoption plan
proposed by DCF.
Discussion. 1. Termination of parental rights. The
father contends that some portions of the judge's findings4 were
a negative inference regarding his refusal to testify about those topics.
4 Specifically, the father argues incarceration alone does not conclusively render him unfit, that without evidence of a cocaine habit that caused unacceptable care or expert testimony that "child abuse and neglect [was] the inevitable result of a Cocaine habit," the judge's prediction that "such will occur"
4 erroneous and that absent those findings, DCF did not meet its
burden to prove parental unfitness by clear and convincing
evidence. We disagree.
"To terminate parental rights to a child and to dispense
with 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 Yalena,
100 Mass. App. Ct. 542, 549 (2021). "Parental unfitness is
determined by considering a parent's character, temperament,
conduct, and capacity to provide for the child's particular
needs, affections, and age." Care & Protection of Vick, 89
Mass. App. Ct. 704, 706 (2016). "Because termination of a
parent's rights is an 'extreme step,' . . . a judge must decide
whether the parent is currently unfit and 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.'"
Adoption of Ilona, 459 Mass. 53, 59 (2011), quoting Adoption of
Carlos, 413 Mass. 339, 350 (1992). We give substantial
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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
24-P-1260
ADOPTION OF NAIRN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree of the Juvenile Court
finding him unfit to parent his son (child), terminating his
parental rights, and approving the adoption plan proposed by the
Department of Children and Families (DCF). We conclude that
evidence of the father's persistent incarcerations combined with
his unresolved mental health issues and housing instability, was
sufficient to support the judge's findings that the father was
currently and indefinitely unfit and that termination was in the
best interests of the child. Further concluding that DCF, which
intended to reunify the child with the father before the
father's mental health deteriorated and he was again
incarcerated, made reasonable efforts at reunification, we
affirm.
1The mother, who neither appeared at trial nor appealed from the termination of her parental rights, is not a party to this appeal. Background. One day after the child's birth, DCF received
a G. L. c. 119, § 51A report alleging neglect of a substance
exposed newborn. Both the child and the mother tested positive
for cocaine and prescribed methadone at birth. In light of
various factors including concerns related to the father's
criminal history and incarceration, and the child's wellbeing,
the child has been in DCF care since December 21, 2021.
The father has an extensive criminal record spanning
multiple States. In Massachusetts, the father's criminal record
consists of myriad adult charges and convictions between 1995
and 2023, including approximately thirteen violations of
probation. The father was also incarcerated for nine years in a
Federal prison in Texas for conspiracy charges and spent two
years in Washington State prison in 2002. In all, the father
"has spent more than half of the past twenty years
incarcerated," and was unable to care for the child for much of
the child's life. Indeed, the father was incarcerated at the
time of the child's birth and at the time of trial.
On December 22, 2021, at the beginning of the child's life,
DCF gave the father an action plan while he was incarcerated.
Upon release, the father met with DCF staff and followed the
requirements of the action plan for several months. This
included participating in individual therapy for mental health
issues and substance abuse programs. Because the father was
2 following the action plan, DCF began to create a reunification
plan for the father.
The father, however, had not addressed his mental health
and showed a detachment from reality.2 In July 2023, "[h]is
mental health appear[ed] to have deteriorated." Around this
time, he reportedly walked around naked in the common areas of
the multifamily building where he lived and exposed himself to
neighbors. Also, on July 23, 2023, police officers served the
father with three "harassment orders," and the father was
ultimately admitted to a hospital for a G. L. c. 123, § 12
psychological evaluation because of his escalated behaviors and
suicidal ideations.
The father's behavior continued to deteriorate, and, by
September 30, 2023, he was arrested again following a standoff
with the police and "S.W.A.T." during which he barricaded
himself in a motel room. Following this arrest, a toxicology
screen was positive for cocaine, resulting in the judge's
discrediting any claims that he was not using illicit
substances.3 The father, nonetheless, explained to a social
2 Much of the father's trial testimony was not credited by the judge because of, inter alia, "serious concern for Father's mental health and perceptions of reality based on his testimony."
3 At trial, the father invoked his right against self- incrimination with respect to certain events, and the judge drew
3 worker that he believed he was targeted as part of "protocol
11," a "plan from the government that targeted him as someone
who needed to be taken out." He also testified that he is "the
Messiah."
Finally, partly because of the significant amount of time
he has been incarcerated, the father has a history of housing
instability. In July 2023, prior to his most recent
incarceration, the father was served an eviction complaint
because of three harassment orders from neighbors and because he
was behind in his rent payments. The father claims, but the
judge did not credit, that he has the option to live in one of
two apartments that he manages after his release from
incarceration.
Following trial, the judge ordered the entry of decrees
finding the mother and the father unfit and terminating their
parental rights. The judge also approved the adoption plan
proposed by DCF.
Discussion. 1. Termination of parental rights. The
father contends that some portions of the judge's findings4 were
a negative inference regarding his refusal to testify about those topics.
4 Specifically, the father argues incarceration alone does not conclusively render him unfit, that without evidence of a cocaine habit that caused unacceptable care or expert testimony that "child abuse and neglect [was] the inevitable result of a Cocaine habit," the judge's prediction that "such will occur"
4 erroneous and that absent those findings, DCF did not meet its
burden to prove parental unfitness by clear and convincing
evidence. We disagree.
"To terminate parental rights to a child and to dispense
with 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 Yalena,
100 Mass. App. Ct. 542, 549 (2021). "Parental unfitness is
determined by considering a parent's character, temperament,
conduct, and capacity to provide for the child's particular
needs, affections, and age." Care & Protection of Vick, 89
Mass. App. Ct. 704, 706 (2016). "Because termination of a
parent's rights is an 'extreme step,' . . . a judge must decide
whether the parent is currently unfit and 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.'"
Adoption of Ilona, 459 Mass. 53, 59 (2011), quoting Adoption of
Carlos, 413 Mass. 339, 350 (1992). We give substantial
deference to the judge's findings, which we do not disturb
was improper, and that the father's religious beliefs do not make him unfit to provide minimally acceptable care.
5 unless they are clearly erroneous. See Adoption of Jacques, 82
Mass. App. Ct. 601, 606-607 (2012).
We first note that the judge's extensive findings support
his conclusion that the father was unfit to parent the child.
While the father may be correct that the three findings he
challenges were insufficient to support a finding of unfitness
when viewed in isolation, the record as a whole more than
supports the judge's critical subsidiary findings, and "the
judge's overall conclusion of parental unfitness is fully
supported by the record." Adoption of Helen, 429 Mass. 856, 860
(1999). The record supports the judge's findings that the
father, inter alia, was incarcerated both during the child's
birth and during trial; has approximately 116 adult criminal
charges in Massachusetts alone; has spent more than ten of the
last twenty years incarcerated; has a history of failing to
comply with the terms of his probation; has a history of housing
instability; exposed himself to his neighbors; was in a standoff
with S.W.A.T. and police on September 30, 2023; has significant
mental health issues that he has not addressed; believes the
government is targeting him under protocol 11; has a history of
cocaine use; and, despite having a reunification plan, was
unwilling to adjust his conduct to refrain from criminal
activities. See Care & Protection of Quinn, 54 Mass. App. Ct.
117, 126-127 (2002) (despite father's participation in programs
6 and cooperation with DCF, lack of evidence of any longstanding
attitude or behavior change supported judge's finding of
unfitness). In the months leading up to the trial, he also
failed to "consistently or meaningfully" engage in his action
plan tasks. The judge's findings are specific, detailed, and
demonstrate close attention to the evidence. See Adoption of
Anton, 72 Mass. App. Ct. 667, 673 (2008). Accordingly, the
finding of unfitness was supported by clear and convincing
evidence.
Similarly, the judge's extensive findings support his
conclusion that termination of the father's parental rights was
in the best interests of the child. A finding of unfitness
alone is insufficient to terminate the parental rights to a
child. Rather, the judge must find by clear and convincing
evidence that the child's "best interests will be served by
terminating the legal relation between parent and child"
(citation omitted). Adoption of Helga, 97 Mass. App. Ct. 521,
527 (2020). "Because the termination of parental rights is an
'extreme step,' . . . we require that the judge articulate
specific and detailed findings in support of a conclusion that
termination is appropriate, demonstrating that she has given the
evidence close attention." Adoption of Nancy, 443 Mass. 512,
514-515 (2005). "A judge's findings are entitled to substantial
7 deference, and we will not disturb those findings unless they
are clearly erroneous." Adoption of Helga, supra at 528.
Here, the judge's findings demonstrate that his decision to
terminate the father's parental rights was based on the father's
housing instability, drug abuse, criminal record, and mental
health. Furthermore, the judge considered the required factors
in G. L. c. 210, § 3 (c), and found factors (ii), (iii), (v),
(vi), (vii), (viii), (xii), and (xiii)5 applicable. We discern
no clear error in the judge's determination, supported by clear
and convincing evidence, that termination of the father's
parental rights is in the best interests of the child.
2. Factor (vii). The father maintains that the judge's
findings to the effect that (1) the child would suffer harm if
removed from his current placement, and (2) the father would be
ill-equipped to perform parental responsibilities, were not
supported by the record. We disagree. The record supports the
finding of a bond between the child and the preadoptive parents.6
5 There was no error in the judge's application of G. L. c. 210, § 3 (c) (xiii). At the time of trial, the father was incarcerated for violating his probation on a felony charge of possession with the intent to distribute a Class B substance.
6 The judge found, inter alia, that "[the child] has formed a loving relationship with his pre-adoptive parents and brother." The child "seeks out his pre-adoptive parents, runs to them for hugs, and is happy when one of them walks through the door. [He] gets along very well with the other child in the home, and they are 'thick as thieves.'" The evidence at trial
8 The record likewise supports the judge's finding that the father
will not achieve fitness as a parent. As detailed above, while
the father followed DCF guidance for a brief period, his
improvement was short lived and was followed by more criminal
charges, mental health issues, and lack of housing; thus it is
almost certain his conduct will persist into the future. "In
these circumstances, where the father has had ample opportunity
to achieve fitness as a parent but has failed to follow through,
it is only fair to the child[] to say, at some point, 'enough.'"
Adoption of Nancy, 443 Mass. at 517.
3. Reasonable efforts. For the first time on appeal, the
father claims DCF failed to make reasonable efforts to reunify
him and the child while he was incarcerated.7 "[The father] must
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). Accord Adoption of West, 97 Mass.
App. Ct. 238, 242 (2020). Thus, arguments regarding reasonable
efforts are waived.8
supported these findings, which are not challenged by the father.
7 The father filed one motion related to visitation in August 2022 but withdrew it without a hearing in January 2023.
8 The cases the father cited at oral argument are not persuasive or are inapposite. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002) (reviewing default standard of review for waived issues in criminal cases); Adoption of Mary, 414
9 In any event, the judge found that DCF communicated with
the father by providing him with action plans both during his
incarceration and after his release, but the father's
participation with DCF was inconsistent at best.9 There was
ample trial evidence supporting the judge's determination that
DCF met its obligations. See Adoption of Ilona, 459 Mass. at
61. DCF worked extensively with the father after the
determination of paternity and placed itself in a position to
reunify the child with the father that was thwarted only by the
father's mental health deterioration and return to criminality.
Once he was returned to incarceration, DCF stayed in contact
with the father and reasonably saw no need to arrange for
services or visits in prison because the father repeatedly
informed the social worker that his release was imminent and so
they "planned to resume upon release."
Even if DCF did not engage in reasonable efforts, a finding
of lack of reasonable efforts in the present case is not
sufficient to override the child's best interests. See Adoption
of Ilona, 459 Mass. at 461, quoting G. L. c. 119, § 29C ("A
Mass. 705, 712-713 (1993) (addressing failure to raise postadoption visitation because of ineffective assistance of counsel).
9We note the father's paternity was not established until 2023, after his release from his incarceration at the time of the child's birth.
10 determination by the court that reasonable efforts were not made
shall not preclude the court from making any appropriate order
conducive to the child's best interest"). In view of the well-
supported determinations that the father is "currently unfit to
assume parental responsibilities for the [child]" and that his
"unfitness is likely to continue into the indefinite future to a
near certitude," the judge did not abuse his discretion in
concluding that the best interests of the child were served by
terminating the father's parental rights. See Adoption of
Elena, 446 Mass. 24, 30-31 (2006).
Decree affirmed.
By the Court (Neyman, Ditkoff & Englander, JJ.10),
Clerk
Entered: September 29, 2025.
10 The panelists are listed in order of seniority.