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-429
ADOPTION OF QMANI.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge, upon petition of the Department of
Children and Families (department), terminated the parental
rights of the father pursuant to G. L. c. 210, § 3. On appeal,
the father contends that the department failed to demonstrate by
clear and convincing evidence that he endangered the child or
exhibited grievous parental shortcomings that justified
terminating his parental rights. We affirm.
Background. The father was sixteen years old in 2017, and
he did not know that he had a child who was born in August of
that year. The child's birth certificate did not identify a
father, and the mother subsequently named a different person as
the child's father. After numerous reports under G. L. c. 51A,
the department placed the child in the custody of foster parents
1 A pseudonym. in October 2018, and a year later a judge of the Juvenile Court
terminated the mother's parental rights.
In the meantime, the father, living with his mother,
initially believed that his friend was the child's father. In
July of 2019, the father had a physical altercation with a
girlfriend. A criminal complaint (later dismissed) charged him
with assault and battery on a family or household member and
strangulation or suffocation. After these events, he learned
that his friend was not the father of the child. On September
30, 2019, the father came forward and reported to the department
that he might be the father of the child. A paternity test
later confirmed that he was the biological father.
Over the next two years, the department developed a series
of family action plans and monitored the father's progress in
meeting goals related to his capacity to parent the child. By
February 21, 2020, the department was focused on having the
father build a relationship with the child "through supervised
visits and building his parenting knowledge through local
classes," and noted concerns about the father's potential gang
involvement and substance use. On August 24, 2020, the
department continued to note concerns about substance use and
the father "not knowing the responsibilities of being a parent."
Goals included coming to child visits sober and participating in
2 a substance abuse program and a domestic violence and anger
management program.
On February 16, 2021, the father, age twenty, became the
parent of a second child. That child lived with his mother.
The father did not maintain a romantic relationship with the
mother but visited with this child.
On March 9, 2021, the department changed the goal from
adoption to reunification and continued to monitor the father's
progress toward meeting parenting goals. The department
remained concerned about the father's knowledge of the
responsibilities of being a parent (of not just one but two
children); failure to create a concrete future living plan;
inconsistent attendance at visits; ability to maintain
consistent employment and budget his funds; and ability to
generally provide for the child's safety. Goals continued to
include participation in supportive services, coming to child
visits sober, attending all visits, and attending visits on
time.
The father did not successfully complete all of the
recommended programs. Although he completed the Nurturing
Fathers Program in June 2020, he attended only seven batterer
intervention group sessions and missed five before dropping out
in April 2021. After being referred again to the program in
3 August 2021, the father attended four out of eight sessions
before dropping out a second time. On October 18, 2021, the
police arrested the father, and another criminal complaint
issued for assault and battery on a household member,
strangulation, assault and battery, and assault with a dangerous
weapon. For over a one year prior to trial, the father did not
consistently visit the child, did not contact the foster parents
to learn about the child's needs, and failed to engage in many
of his action plan tasks. On February 3, 2022, the department
changed the goal to adoption.
Since October, 2018, the child has continuously lived with
the foster parents and two of their children and considers them
to be his "real family." All medical care is up to date, and
the child attends pre-kindergarten. The child is no longer in
need of an individualized education plan for developmental and
behavioral difficulties as he had needed in preschool.
After the conclusion of the trial, the judge terminated the
father's parental rights, finding that "[the father] lacks the
ability, capacity, fitness and readiness to assume parental
responsibility for said child, and is currently unfit, and that
the best interests of said child, as defined in G. L. c. 210,
§ 3 (c), will be served by a decree terminating the rights of
[the father]."
4 Discussion. "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." Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). "In determining whether the best interests
of the children will be served by issuing a decree dispensing
with the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "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).
Here, we discern no error in the judge's ultimate
conclusions based upon the evidence presented. That evidence
showed that the father "blacked out" in 2019 during an
altercation with his girlfriend and was charged with assault and
battery on a family or household member and strangulation or
suffocation, failed to comply with the department's family
5 action plans, lacked any concrete future living plans and failed
to complete budgeting and financial instruction, missed multiple
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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-429
ADOPTION OF QMANI.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge, upon petition of the Department of
Children and Families (department), terminated the parental
rights of the father pursuant to G. L. c. 210, § 3. On appeal,
the father contends that the department failed to demonstrate by
clear and convincing evidence that he endangered the child or
exhibited grievous parental shortcomings that justified
terminating his parental rights. We affirm.
Background. The father was sixteen years old in 2017, and
he did not know that he had a child who was born in August of
that year. The child's birth certificate did not identify a
father, and the mother subsequently named a different person as
the child's father. After numerous reports under G. L. c. 51A,
the department placed the child in the custody of foster parents
1 A pseudonym. in October 2018, and a year later a judge of the Juvenile Court
terminated the mother's parental rights.
In the meantime, the father, living with his mother,
initially believed that his friend was the child's father. In
July of 2019, the father had a physical altercation with a
girlfriend. A criminal complaint (later dismissed) charged him
with assault and battery on a family or household member and
strangulation or suffocation. After these events, he learned
that his friend was not the father of the child. On September
30, 2019, the father came forward and reported to the department
that he might be the father of the child. A paternity test
later confirmed that he was the biological father.
Over the next two years, the department developed a series
of family action plans and monitored the father's progress in
meeting goals related to his capacity to parent the child. By
February 21, 2020, the department was focused on having the
father build a relationship with the child "through supervised
visits and building his parenting knowledge through local
classes," and noted concerns about the father's potential gang
involvement and substance use. On August 24, 2020, the
department continued to note concerns about substance use and
the father "not knowing the responsibilities of being a parent."
Goals included coming to child visits sober and participating in
2 a substance abuse program and a domestic violence and anger
management program.
On February 16, 2021, the father, age twenty, became the
parent of a second child. That child lived with his mother.
The father did not maintain a romantic relationship with the
mother but visited with this child.
On March 9, 2021, the department changed the goal from
adoption to reunification and continued to monitor the father's
progress toward meeting parenting goals. The department
remained concerned about the father's knowledge of the
responsibilities of being a parent (of not just one but two
children); failure to create a concrete future living plan;
inconsistent attendance at visits; ability to maintain
consistent employment and budget his funds; and ability to
generally provide for the child's safety. Goals continued to
include participation in supportive services, coming to child
visits sober, attending all visits, and attending visits on
time.
The father did not successfully complete all of the
recommended programs. Although he completed the Nurturing
Fathers Program in June 2020, he attended only seven batterer
intervention group sessions and missed five before dropping out
in April 2021. After being referred again to the program in
3 August 2021, the father attended four out of eight sessions
before dropping out a second time. On October 18, 2021, the
police arrested the father, and another criminal complaint
issued for assault and battery on a household member,
strangulation, assault and battery, and assault with a dangerous
weapon. For over a one year prior to trial, the father did not
consistently visit the child, did not contact the foster parents
to learn about the child's needs, and failed to engage in many
of his action plan tasks. On February 3, 2022, the department
changed the goal to adoption.
Since October, 2018, the child has continuously lived with
the foster parents and two of their children and considers them
to be his "real family." All medical care is up to date, and
the child attends pre-kindergarten. The child is no longer in
need of an individualized education plan for developmental and
behavioral difficulties as he had needed in preschool.
After the conclusion of the trial, the judge terminated the
father's parental rights, finding that "[the father] lacks the
ability, capacity, fitness and readiness to assume parental
responsibility for said child, and is currently unfit, and that
the best interests of said child, as defined in G. L. c. 210,
§ 3 (c), will be served by a decree terminating the rights of
[the father]."
4 Discussion. "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." Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). "In determining whether the best interests
of the children will be served by issuing a decree dispensing
with the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "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).
Here, we discern no error in the judge's ultimate
conclusions based upon the evidence presented. That evidence
showed that the father "blacked out" in 2019 during an
altercation with his girlfriend and was charged with assault and
battery on a family or household member and strangulation or
suffocation, failed to comply with the department's family
5 action plans, lacked any concrete future living plans and failed
to complete budgeting and financial instruction, missed multiple
child visits, dropped out of two batterer intervention programs,
failed to obtain individual mental health therapy, failed to
undergo a substance abuse evaluation, failed to maintain contact
with the foster parents, failed to complete family therapy with
the child, incurred another strangulation charge involving an
incident with a girlfriend at her residence in 2021, and
threatened department workers by warning them that "it is not
hard to find people's addresses."
The father contends that the judge's finding pertaining to
individual therapy is erroneous because such therapy was not
mandated by any of the family action plans. We agree that the
family action plans do not mandate individual therapy and that
the department did not set up individual therapy; however, the
father admitted at trial, "They asked me to do individual
therapy." He acknowledged that the department informed him
individual therapy was necessary to address abuse in the
relationship with his girlfriend and further acknowledged that
he allegedly "blacked out" during the altercation. His
testimony is consistent with testimony of one of the social
workers who recalled that the department had referred him for
individual therapy. Therefore, even if the judge was mistaken
6 about the source of the recommended individual therapy, the
record indicates, and the father agreed in his testimony, that
individual therapy was indeed recommended, but he did not take
part in it. See Care & Protection of Zeb, 489 Mass. 783, 788
(2022) ("Even assuming that some of the judge's subsidiary
factual findings are not entirely accurate, there was
overwhelming evidentiary support for the [broader] finding"
[footnote omitted]); Adoption of Helen, 429 Mass. 856, 860
(1999) ("[A]lthough the judge's findings on these points may
have been erroneous, the judge's over-all conclusion of parental
unfitness is fully supported by the record").
As an additional contention, the father argues that the
failure to engage in a substance abuse evaluation is not
indicative of father's unfitness. We disagree. There was ample
evidence in the record that the department had concerns about
substance abuse. One of the family action plans required the
father to "[p]articipate in a substance abuse evaluation." His
facebook profile detailed marijuana use. At trial, the father
acknowledged that the department confronted him about showing up
at a child visit while smelling of marijuana. He claimed that
the odor came from his friends smoking marijuana. The father
admitted that he never obtained a substance abuse evaluation
after the department requested one. Given the evidence that the
7 father potentially struggled with substance abuse and the
recommendations communicated by the department to the father, we
perceive no error in the judge considering the father's failure
to obtain an evaluation. Contrast Adoption of Oren, 96 Mass.
App. Ct. 842, 845 n.4 (2020) (failure to obtain substance abuse
treatment has no bearing on fitness where judge concluded
alcohol and drug addiction were not factors and family action
plan did not mandate such treatment).
We also note that the judge expressly rejected any
suggestion that she based her decision on any single factor:
"In reaching this conclusion, the Court has considered the
evidence in the aggregate, and has not given conclusive weight
to any single component standing alone." See Petitions of Dep't
of Social Servs. to Dispense with Consent to Adoption, 399 Mass.
279, 290 (1987) ("Generally, no one factor is determinative and
the judge should weigh all the evidence" [footnote omitted]).
Finally, the father broadly contends that imperfection as a
person does not equate to unfitness as a father and further
maintains that his past mistakes are neither probative of his
ability to parent the child in the future nor so grievous as to
necessitate terminating his parental rights. The trial judge
considered the factors set forth in G. L. c. 119, § 26, and
G. L. c. 210, § 3 (c), including the best interests of the
8 child, in making her decision. "Standards of mathematical
precision are neither possible nor desirable in this field; much
must be left to the trial judge's experience and judgment."
Petition of New England Home for Little Wanderers to Dispense
with Consent to Adoption, 367 Mass. 631, 646 (1975). The
father's "dissatisfaction with the judge's weighing of the
evidence" is not a sufficient basis to warrant relief on appeal.
Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
While we appreciate that the father did make some efforts
after the paternity test and showed, at times, genuine concern
and affection for the child, we conclude that the judge did not
abuse her discretion or commit a clear error of law. Adoption
of Jacques, 82 Mass. App. Ct. at 609.
Decree affirmed.
By the Court (Henry, D'Angelo & Hodgens, JJ.2),
Assistant Clerk
Entered: May 17, 2024.
2 The panelists are listed in order of seniority.