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-91
ADOPTION OF PEPPER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a 2024 decree issued by a judge of
the Juvenile Court terminating the father's parental rights as
to Pepper.2 We affirm the decree.
Background. Pepper was six years old when this care and
protection proceeding was initiated, and ten years old at the
time of trial. The judge terminated the father's rights based
on the father's "long absence from [Pepper's] life," his "lack
of a relationship" with Pepper, her "relationships and growth in
the pre-adoptive home," her "high needs," the Maine child
welfare authorities' disapproval of the proposal that the father
assume custody of Pepper, the father's "having signed a
1 A pseudonym.
2The mother stipulated to the termination of her parental rights and is not involved in this appeal. substantiation letter for the sexual abuse of a ten-year-old
girl that had been living in his household," his "refusal to
engage with or provide releases for services," his "minimal
engagement with [Pepper] for the pendency of the case," and his
"evasive and performative testimony" at trial. The judge found
these to be "prognostic of [the father's] long-term
accountability and reliability." There was "clear and
convincing evidence that he is unfit to provide consistent and
stable parenting for [Pepper's] high needs" -- a circumstance
that "will continue into the foreseeable future" -- and that
Pepper's best interests would be served by terminating the
father's rights.
Discussion. On appeal, the father argues that the judge's
unfitness determination was undermined by erroneous findings
that Pepper would be at risk of sexual abuse if placed in the
father's care and that he had no sufficient plan for
transitioning Pepper to his care. The father also asserts that
the Department of Children and Families (department) failed to
make reasonable efforts to place Pepper with the father.
Finally, the father argues that the judge abused her discretion
in declining to order postadoption visitation.
We review "to determine whether the judge's findings were
clearly erroneous and whether they proved parental unfitness by
2 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).
1. Unfitness. a. Risk of sexual abuse. The father
argues that the finding of his unfitness cannot stand because it
relied on a clearly erroneous finding that there was "a
substantial risk of sexual abuse were [Pepper] to be in [the
father's] care." This finding was in turn based largely on the
judge's finding that, in 2009, the father signed a
"substantiation letter" regarding sexual abuse of a ten year old
girl in his household in Maine.
The evidence plainly supported the findings that the father
both signed such a letter and knew that it alleged such abuse.
The letter itself, however, is not in the record, nor does the
record describe, or cite to Maine law describing, the content of
such a letter or the legal effect of a parent's signing it.
There is insufficient evidence to show that the father's signing
3 it amounted to an admission of guilt or of the strength of the
evidence against him. Therefore, we cannot say the finding that
the father currently poses a risk of sexual abuse to Pepper is
supported by the record. Nevertheless, the error was harmless,
because the remaining evidence supporting the judge's ultimate
finding of unfitness was very strong. Taken as a whole, and
without considering the risk of sexual abuse, there was clear
and convincing evidence of unfitness.
b. Transition plan. The father also argues that the
judge, as part of the reasons for finding him unfit, erroneously
found fault with his plan for transitioning Pepper to his care.
The father asserts that although his plan provided for
"incremental" transitions of Pepper -- from her foster family's
home in Massachusetts to a home he had access to in southern
Maine, and eventually to his own residence much farther north in
Maine -- this was not a flaw, because the plans envisioned by
the department's own policies are likewise incremental.
But the judge did not take issue with the father's plan
because it was incremental. Rather, she found that his plan
lacked details, such as what schools Pepper would be attending,
and where, during various phases of the plan. She found that
his plan gave no consideration to how Pepper would access needed
services during the transitions, particularly where the
4 transitions were likely to affect her "socially, emotionally,
[and] academically." She found that his plan was unrealistic,
in that it provided for flying Pepper from Maine to southern
Massachusetts every other weekend, even while the father claimed
to have "limited means"; and thereafter, the father expected the
foster family to drive three children on an eight to ten-hour
round trip to Maine in order to ease Pepper's transition.3 She
found it "so vague, so disorganized, [and] so inconsistent" as
to amount to no concrete plan at all.
The father does not claim that any of the judge's specific
findings about his transition plan were clearly erroneous. Nor
do we see any error in those findings. It was therefore proper
for the judge to consider the flaws in the father's transition
plan as further evidence of his unfitness to care for Pepper.
We see no basis to disturb the unfitness determination.4
2. Reasonable efforts. The judge found that the
department made reasonable efforts to unify the father and
3 Pepper resides with three half-siblings.
4 Although the father, in his reply brief and at oral argument, raised in passing various other claims of erroneous subsidiary findings relative to unfitness, we do not consider them. "No new issues shall be raised in the reply brief." Mass. R. A. P. 16 (c), as appearing in 481 Mass. 1628 (2019). See Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985).
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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-91
ADOPTION OF PEPPER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a 2024 decree issued by a judge of
the Juvenile Court terminating the father's parental rights as
to Pepper.2 We affirm the decree.
Background. Pepper was six years old when this care and
protection proceeding was initiated, and ten years old at the
time of trial. The judge terminated the father's rights based
on the father's "long absence from [Pepper's] life," his "lack
of a relationship" with Pepper, her "relationships and growth in
the pre-adoptive home," her "high needs," the Maine child
welfare authorities' disapproval of the proposal that the father
assume custody of Pepper, the father's "having signed a
1 A pseudonym.
2The mother stipulated to the termination of her parental rights and is not involved in this appeal. substantiation letter for the sexual abuse of a ten-year-old
girl that had been living in his household," his "refusal to
engage with or provide releases for services," his "minimal
engagement with [Pepper] for the pendency of the case," and his
"evasive and performative testimony" at trial. The judge found
these to be "prognostic of [the father's] long-term
accountability and reliability." There was "clear and
convincing evidence that he is unfit to provide consistent and
stable parenting for [Pepper's] high needs" -- a circumstance
that "will continue into the foreseeable future" -- and that
Pepper's best interests would be served by terminating the
father's rights.
Discussion. On appeal, the father argues that the judge's
unfitness determination was undermined by erroneous findings
that Pepper would be at risk of sexual abuse if placed in the
father's care and that he had no sufficient plan for
transitioning Pepper to his care. The father also asserts that
the Department of Children and Families (department) failed to
make reasonable efforts to place Pepper with the father.
Finally, the father argues that the judge abused her discretion
in declining to order postadoption visitation.
We review "to determine whether the judge's findings were
clearly erroneous and whether they proved parental unfitness by
2 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).
1. Unfitness. a. Risk of sexual abuse. The father
argues that the finding of his unfitness cannot stand because it
relied on a clearly erroneous finding that there was "a
substantial risk of sexual abuse were [Pepper] to be in [the
father's] care." This finding was in turn based largely on the
judge's finding that, in 2009, the father signed a
"substantiation letter" regarding sexual abuse of a ten year old
girl in his household in Maine.
The evidence plainly supported the findings that the father
both signed such a letter and knew that it alleged such abuse.
The letter itself, however, is not in the record, nor does the
record describe, or cite to Maine law describing, the content of
such a letter or the legal effect of a parent's signing it.
There is insufficient evidence to show that the father's signing
3 it amounted to an admission of guilt or of the strength of the
evidence against him. Therefore, we cannot say the finding that
the father currently poses a risk of sexual abuse to Pepper is
supported by the record. Nevertheless, the error was harmless,
because the remaining evidence supporting the judge's ultimate
finding of unfitness was very strong. Taken as a whole, and
without considering the risk of sexual abuse, there was clear
and convincing evidence of unfitness.
b. Transition plan. The father also argues that the
judge, as part of the reasons for finding him unfit, erroneously
found fault with his plan for transitioning Pepper to his care.
The father asserts that although his plan provided for
"incremental" transitions of Pepper -- from her foster family's
home in Massachusetts to a home he had access to in southern
Maine, and eventually to his own residence much farther north in
Maine -- this was not a flaw, because the plans envisioned by
the department's own policies are likewise incremental.
But the judge did not take issue with the father's plan
because it was incremental. Rather, she found that his plan
lacked details, such as what schools Pepper would be attending,
and where, during various phases of the plan. She found that
his plan gave no consideration to how Pepper would access needed
services during the transitions, particularly where the
4 transitions were likely to affect her "socially, emotionally,
[and] academically." She found that his plan was unrealistic,
in that it provided for flying Pepper from Maine to southern
Massachusetts every other weekend, even while the father claimed
to have "limited means"; and thereafter, the father expected the
foster family to drive three children on an eight to ten-hour
round trip to Maine in order to ease Pepper's transition.3 She
found it "so vague, so disorganized, [and] so inconsistent" as
to amount to no concrete plan at all.
The father does not claim that any of the judge's specific
findings about his transition plan were clearly erroneous. Nor
do we see any error in those findings. It was therefore proper
for the judge to consider the flaws in the father's transition
plan as further evidence of his unfitness to care for Pepper.
We see no basis to disturb the unfitness determination.4
2. Reasonable efforts. The judge found that the
department made reasonable efforts to unify the father and
3 Pepper resides with three half-siblings.
4 Although the father, in his reply brief and at oral argument, raised in passing various other claims of erroneous subsidiary findings relative to unfitness, we do not consider them. "No new issues shall be raised in the reply brief." Mass. R. A. P. 16 (c), as appearing in 481 Mass. 1628 (2019). See Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985). And we need not consider "arguments raised for the first time at oral argument." Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 700 n.14 (2016).
5 Pepper, "specifically by seeking an Interstate Compact Placement
approval [to place Pepper with the father in Maine,] (which was
denied)[;] by offering the father an action plan identifying
steps he could take to support eventual placement of [Pepper]
with him[;] and by providing the father with opportunities to
establish a relationship with [Pepper]."
The father nevertheless argues that, because the department
changed the goal for Pepper to adoption in late 2021 -- before
the father received "notice by certified mail" of Pepper's care
and protection proceeding -- the department did not make
reasonable efforts at unification. The judge, however, found
the father's testimony on this and many other issues to be not
credible, exhibiting a "pattern of mendacity." She found that
the father had actual knowledge in late 2020 that the department
had removed Pepper from the mother's custody. Yet the father
did not begin interacting with the department until June 2022.
There is thus no merit to the father's claim that the department
failed to give him a fair chance before changing Pepper's goal
to adoption. "The department's obligation to make reasonable
efforts to []unify the child with the [father was] contingent
upon [his] obligation to substantially fulfill [his] parental
responsibilities (including seeking and using appropriate
services)" (emphasis added). Adoption of Yalena, 100 Mass. App.
6 Ct. 542, 554 (2021). See Adoption of Daisy, 77 Mass. App. Ct.
768, 781 (2010), S.C., 460 Mass. 72 (2011).
The father also argues that the department unreasonably
disregarded his request to increase visits with Pepper, thereby
precluding a finding that it made reasonable efforts. Yet the
judge found that the father's own unresponsiveness to the
department's requests for releases, and his failures to keep in
touch with the department, led to the absence of visits in
April, May, June, and July of 2024. Any lack of visitation
cannot be laid at the department's feet.
In his brief, the father mounts additional challenges to
the department's reasonable efforts. But the docket contains no
suggestion that the father raised these arguments before trial
by way of an abuse of discretion motion, motion to compel
reasonable efforts, or otherwise. Nor, judging by the father's
closing argument, were these challenges pressed at the trial
itself. These arguments are therefore waived. See Adoption of
Mattis, 106 Mass. App. Ct. 548, 551 (2026).
3. Postadoption visitation. The father asserts that the
judge abused her discretion in declining to order postadoption
visitation. In making such a decision, a judge must answer two
questions. "First, is visitation in the child's best interest?
Second, in cases where a family is ready to adopt the child, is
7 an order of visitation necessary to protect the child's best
interest, or may decisions regarding visitation be left to the
judgment of the adoptive family?" Adoption of Ilona, 459 Mass.
at 63. We review the judge's decisions on these issues for
abuse of discretion. See Adoption of Zander, 83 Mass. App. Ct.
363, 365-366 (2013).
Here, the judge found that it was in Pepper's best
interests to maintain postadoption contact. The judge also
found, however, that Pepper's interests would be adequately
served by leaving such visits to the adoptive parents'
discretion. This comported with the judge's responsibility to
balance "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" against "the 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." Adoption of Ilona, 459 Mass. at 64-65.
The father identifies no specific manner in which the judge
abused her discretion by so concluding. The father argues
instead that, because the judge ordered the department to
provide the father with three visits per year before Pepper is
adopted, there should be a presumption in favor of ordering the
adoptive parents to provide some visits after adoption. What
8 this overlooks is that, unlike the department, "[a]doptive
parents have the same legal rights toward their children that
biological parents do. . . . Parental rights to raise one's
children are essential, basic rights that are constitutionally
protected." Adoption of Vito, 431 Mass. 550, 562 (2000).
Unlike a visitation order to the department, a visitation order
to the adoptive parents would intrude on their constitutional
rights. The father cites no case recognizing any presumption in
favor of such an order, nor are we persuaded that such a
presumption is warranted.
Decree affirmed.
By the Court (Rubin, Sacks & Smyth, JJ.5),
Clerk
Entered: April 2, 2026.
5 The panelists are listed in order of seniority.