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-1336
ADOPTION OF PASCAL (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees of the
Juvenile Court finding the mother and the father unfit to parent
their children, Pascal and Carlos, and terminating their
parental rights. On appeal, both parents challenge these
determinations. The father also argues that the judge erred in
not granting him posttermination and postadoption visitation
with the children. We affirm.
Background. We recount the relevant facts from the judge's
findings, reserving certain details for later discussion.
Pascal and Carlos were born in October 2020 and October 2021,
respectively. Both children were born substance exposed,
testing positive for tetrahydrocannabinol (THC); Pascal was also
1 Adoption of Carlos. The children's names are pseudonyms. born substance exposed to fentanyl. The children have resided
continuously or almost continuously in their respective
preadoptive homes since their removals at birth.
The mother and the father have significant criminal
histories and both have been minimally involved in their
children's lives. The parents have also been largely
unavailable to the children, and they have not engaged in any
meaningful services as requested by the Department of Children
and Families (department). Lastly, the mother has failed to
treat her mental health conditions and has failed to address her
substance misuse.
The trial took place over five nonconsecutive days between
March 2023 and May 2023. The mother appeared for the first two
and one-half days of the trial via Zoom. The father did not
appear for any of the five days of trial.
Discussion. 1. Unfitness and termination of parental
rights. "To terminate parental rights to a child, the judge
must find, by clear and convincing evidence, that the parent is
unfit and that the child's 'best interests will be served by
terminating the legal relation between parent and child.'"
Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of
Ilona, 459 Mass. 53, 59 (2011). "While a decision of unfitness
must be supported by clear and convincing evidence, . . . a
judge's findings will be disturbed only if they are clearly
2 erroneous." Adoption of Paula, 420 Mass. 716, 729 (1995).
Whether termination of parental rights is in a child's best
interest is a discretionary decision. See Adoption of Hugo, 428
Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George
P., 526 U.S. 1034 (1999). Accordingly, we review the judge's
determination of Pascal's and Carlos's best interests for abuse
of discretion or clear error of law. See Adoption of Hugo,
supra.
In determining parental fitness, the judge may consider the
parents' involvement, or lack thereof, in the children's lives,
the parents' ability to provide a stable and structured home
environment, and the parents' compliance with the department's
action plans. See Adoption of Nancy, 443 Mass. 512, 515-517
(2005); Adoption of Mario, 43 Mass. App. Ct. 767, 770-772
(1997); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136
(1990). Here, the parents have had limited involvement in the
children's lives since their births and have failed to provide a
stable and structured home environment for the children.
Moreover, the parents have failed to comply with much of
their respective 2022 department action plans. The similar
plans required both the mother and father to, as among other
tasks, "complete an assessment with the social worker to
determine the families' needs," "demonstrate an understanding of
the effects of substance abuse on parenting," "engage in
3 individual counseling," "take all medications as prescribed,"
and "communicate with the children's doctors[.]" Although the
mother and the father completed some tasks, both parents failed
to cooperate in any substantial way with the services offered by
the department. Specifically, the judge concluded that
"[n]either parent has . . . engag[ed] in any services to improve
their parenting abilities[.]" See Adoption of Uday, 91 Mass.
App. Ct. 51, 54 (2017); Adoption of Mario, 43 Mass. App. Ct.
767, 774 (1997) (department's duty "to use reasonable efforts to
preserve the biological ties . . . was contingent upon the
mother's fulfillment of her own parental responsibilities").
The mother has a criminal history that includes assault and
battery, and breaking and entering. Additionally, at the time
the judge issued his findings of fact and rulings of law, she
had pending charges of assault and battery by means of a
dangerous weapon, vandalizing property, and violations of an
abuse prevention order and a harassment prevention order. For
these charges, the mother has failed to appear in court and
remains in warrant status. In May 2022, the mother moved to
Florida and was living in Florida at the time of trial. The
trial judge found that the mother "remains in Florida to
continue to purposely evade her open criminal warrants" and,
therefore, "has willfully chosen to not return to Massachusetts
and has left her children in state care." The mother has not
4 seen Pascal or Carlos in person since April of 2022, and, from
May 2022 through March 2023, she missed approximately half of
her virtual visits.2
The mother has been diagnosed with anxiety, depression, and
bipolar disorder. However, she denies being diagnosed with any
mental health conditions and does not feel that she needs to
take any medication. As a result, the mother has not been
taking her prescribed medications since June 2022. "Mental
disorder is relevant only to the extent that it affects the
parents' capacity to assume parental responsibility, and ability
to deal with a child's special needs." Adoption of Luc, 484
Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9
(1989). The failure of the parent to recognize the need for or
to engage in treatment is "relevant to the determination of
unfitness" (citation omitted). Adoption of Luc, supra at 147.
At trial, the mother "displayed erratic and combative
behavior"; she shouted and used profanities. The judge found
that the mother's testimony and behavior was "indicative of the
severity of [her] untreated mental health conditions and
Free access — add to your briefcase to read the full text and ask questions with AI
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-1336
ADOPTION OF PASCAL (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees of the
Juvenile Court finding the mother and the father unfit to parent
their children, Pascal and Carlos, and terminating their
parental rights. On appeal, both parents challenge these
determinations. The father also argues that the judge erred in
not granting him posttermination and postadoption visitation
with the children. We affirm.
Background. We recount the relevant facts from the judge's
findings, reserving certain details for later discussion.
Pascal and Carlos were born in October 2020 and October 2021,
respectively. Both children were born substance exposed,
testing positive for tetrahydrocannabinol (THC); Pascal was also
1 Adoption of Carlos. The children's names are pseudonyms. born substance exposed to fentanyl. The children have resided
continuously or almost continuously in their respective
preadoptive homes since their removals at birth.
The mother and the father have significant criminal
histories and both have been minimally involved in their
children's lives. The parents have also been largely
unavailable to the children, and they have not engaged in any
meaningful services as requested by the Department of Children
and Families (department). Lastly, the mother has failed to
treat her mental health conditions and has failed to address her
substance misuse.
The trial took place over five nonconsecutive days between
March 2023 and May 2023. The mother appeared for the first two
and one-half days of the trial via Zoom. The father did not
appear for any of the five days of trial.
Discussion. 1. Unfitness and termination of parental
rights. "To terminate parental rights to a child, the judge
must find, by clear and convincing evidence, that the parent is
unfit and that the child's 'best interests will be served by
terminating the legal relation between parent and child.'"
Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of
Ilona, 459 Mass. 53, 59 (2011). "While a decision of unfitness
must be supported by clear and convincing evidence, . . . a
judge's findings will be disturbed only if they are clearly
2 erroneous." Adoption of Paula, 420 Mass. 716, 729 (1995).
Whether termination of parental rights is in a child's best
interest is a discretionary decision. See Adoption of Hugo, 428
Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George
P., 526 U.S. 1034 (1999). Accordingly, we review the judge's
determination of Pascal's and Carlos's best interests for abuse
of discretion or clear error of law. See Adoption of Hugo,
supra.
In determining parental fitness, the judge may consider the
parents' involvement, or lack thereof, in the children's lives,
the parents' ability to provide a stable and structured home
environment, and the parents' compliance with the department's
action plans. See Adoption of Nancy, 443 Mass. 512, 515-517
(2005); Adoption of Mario, 43 Mass. App. Ct. 767, 770-772
(1997); Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136
(1990). Here, the parents have had limited involvement in the
children's lives since their births and have failed to provide a
stable and structured home environment for the children.
Moreover, the parents have failed to comply with much of
their respective 2022 department action plans. The similar
plans required both the mother and father to, as among other
tasks, "complete an assessment with the social worker to
determine the families' needs," "demonstrate an understanding of
the effects of substance abuse on parenting," "engage in
3 individual counseling," "take all medications as prescribed,"
and "communicate with the children's doctors[.]" Although the
mother and the father completed some tasks, both parents failed
to cooperate in any substantial way with the services offered by
the department. Specifically, the judge concluded that
"[n]either parent has . . . engag[ed] in any services to improve
their parenting abilities[.]" See Adoption of Uday, 91 Mass.
App. Ct. 51, 54 (2017); Adoption of Mario, 43 Mass. App. Ct.
767, 774 (1997) (department's duty "to use reasonable efforts to
preserve the biological ties . . . was contingent upon the
mother's fulfillment of her own parental responsibilities").
The mother has a criminal history that includes assault and
battery, and breaking and entering. Additionally, at the time
the judge issued his findings of fact and rulings of law, she
had pending charges of assault and battery by means of a
dangerous weapon, vandalizing property, and violations of an
abuse prevention order and a harassment prevention order. For
these charges, the mother has failed to appear in court and
remains in warrant status. In May 2022, the mother moved to
Florida and was living in Florida at the time of trial. The
trial judge found that the mother "remains in Florida to
continue to purposely evade her open criminal warrants" and,
therefore, "has willfully chosen to not return to Massachusetts
and has left her children in state care." The mother has not
4 seen Pascal or Carlos in person since April of 2022, and, from
May 2022 through March 2023, she missed approximately half of
her virtual visits.2
The mother has been diagnosed with anxiety, depression, and
bipolar disorder. However, she denies being diagnosed with any
mental health conditions and does not feel that she needs to
take any medication. As a result, the mother has not been
taking her prescribed medications since June 2022. "Mental
disorder is relevant only to the extent that it affects the
parents' capacity to assume parental responsibility, and ability
to deal with a child's special needs." Adoption of Luc, 484
Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9
(1989). The failure of the parent to recognize the need for or
to engage in treatment is "relevant to the determination of
unfitness" (citation omitted). Adoption of Luc, supra at 147.
At trial, the mother "displayed erratic and combative
behavior"; she shouted and used profanities. The judge found
that the mother's testimony and behavior was "indicative of the
severity of [her] untreated mental health conditions and
inability to control her anger and combative behaviors."
In short, given these findings, we discern no abuse of
discretion or clear error in the judge's determinations that the
2 Between May 2022 and March 2023, the mother had "[l]ess than five" virtual visits with her children.
5 mother was currently unfit, that her fitness was likely to
continue in the future, and that termination of her parental
rights was in the children's best interests.
The father also has a criminal history. He was convicted
of breaking and entering a vehicle with intent to commit a
felony, use of a motor vehicle without authority, and violation
of a harassment prevention order; at the time of trial, he also
dangerous weapon, and violations of an abuse prevention order
and a harassment prevention order. The father was incarcerated
from February 2022 through April 2022. Between 2020 and 2021,
the father attended twenty-eight visits with the children.
Since February 2022, however, the father attended only three
virtual visits with the children and one in-person visit with
Carlos. The father did not see the children at all in 2023.
The father's criminal history interfered with his ability to
parent the children because of his unavailability, and, in
addition, he failed to pursue an active relationship with the
children even when at liberty. See Adoption of Serge, 52 Mass.
App. Ct. 1, 8-9 (2001) (parent's physical unavailability due to
incarceration, and failures to maintain relationship with child
and to offer realistic plan for assuming full-time care of child
all supported determinations that parent was currently unfit and
likely to remain so for immediate future).
6 The father was engaged in therapy before February 2022, but
"has not engaged in services in the last year[.]" The father
attended a parenting class, but the judge found no evidence that
the father learned anything from that class. Finally, the
father never completed an assessment with a social worker. The
father's failure to comply with his action plan was
appropriately considered by the judge. See Adoption of Uday, 91
Mass. App. Ct. at 54.
Based on these findings, we discern no error or abuse of
discretion in the judge's determinations that the father, like
the mother, was unfit to parent Pascal or Carlos and that his
unfitness was not likely to be temporary.3
2. Posttermination and postadoption visitation with the
father. The power to order posttermination and postadoption
contact rests within the discretion of the trial judge. See
Adoption of Rico, 453 Mass. 749, 753-754 (2009). We review a
judge's decision not to order visitation with a parent whose
rights have been terminated for abuse of discretion. See
3 The mother and the father challenge several of the judge's factual findings as clearly erroneous, and the mother faults the judge for his "[flagrant] failure to face all facts here." We disagree with these contentions. The record supports the judge's findings and the mother's and the father's arguments are mere dissatisfaction with the judge's weighing of the evidence and credibility determinations. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
7 Adoption of Xarissa, 99 Mass. App. Ct. 610, 623-624 (2021).
Before issuing an order of visitation between a child and a
parent in cases where, as here, a preadoptive family has been
identified, a judge must find both "that visitation would be in
the child's best interests and that those interests will not be
adequately served by the adoptive parent's discretion."
Adoption of Cadence, 81 Mass. App. Ct. 162, 168 (2012). The
judge must weigh any "intrusion that an order imposes on the
rights of the adoptive parents, who are entitled to the
presumption that they will act in their child's best interest"
against "the benefit to the child of an order of visitation that
will provide assurance that the child will be able to maintain
contact with a biological parent." Adoption of Ilona, 459 Mass.
at 64-65. An order of postadoption contact is more likely in
circumstances where the primary "parent-child relationship in
the child's life remains with the biological parent" and a
preadoptive family has not fully assumed that role. Adoption of
Vito, 431 Mass. 550, 563-564 (2000).
The father argues that it was an abuse of discretion for
the trial judge to decline him any visitation. He stresses that
the visits with his children have been positive and he "provided
the children with a connection to their Puerto Rican heritage."4
4 The father did not raise the issue of his heritage at trial, nor was any evidence presented regarding his heritage.
8 Pascal has remained in the department's custody since his
removal at birth, while Carlos has been in the department's
custody since he was three months old. The father has never
been a primary caregiver and has been "minimally involved in his
children's lives." As the judge concluded, the father has not
"made visiting with his children a priority." Both children,
moreover, have their needs met on a consistent basis in their
preadoptive homes. Thus, the judge acted well within his
discretion in not ordering any visitation.
Conclusion. Based on the evidence, the trial judge did not
err in finding that the mother and the father were unfit to
parent the children, and that termination of their parental
rights was in the best interests of Pascal and Carlos. Nor did
the judge abuse his discretion in not ordering any visitation
for the father.
Decrees affirmed.
By the Court (Blake, Ditkoff & D'Angelo, JJ.5),
Clerk Entered: October 22, 2024.
We accordingly need not address this argument on appeal. See Adoption of Ursa, 103 Mass. App. Ct. 558, 570 (2023) ("Because these claims were not raised at trial, they are waived").
5 The panelists are listed in order of seniority.