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-56
ADOPTION OF SEVY. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court finding the father unfit and terminating his
parental rights to his son, Sevy. 2 We affirm.
Background. In January 2022, Sevy was born substance
exposed. The Department of Children and Families (the
department) filed a petition for care and protection and removed
Sevy from his parents' custody when he was four days old and
still in the hospital. At a court hearing three days after
Sevy's removal, the parents waived their right to temporary
custody. Trial on the department's petition was held in June
2023. The judge heard from two witnesses and considered fifty-
1 A pseudonym.
2The judge also terminated the parental rights of Sevy's mother. The mother did not appeal. two exhibits. The father failed to appear for trial and the
judge drew an adverse inference against him for his absence.
The judge subsequently issued detailed findings supporting her
conclusion that the department had met its burden of
demonstrating that the father was unfit to parent Sevy and was
likely to remain so. See Adoption of Nancy, 443 Mass. 512, 514-
515 (2005).
Discussion. 1. The father's fitness. "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 Oren, 96 Mass. App. Ct. 842,
844 (2020). "[T]he 'parental fitness' test and the 'best
interests of the child test' are not mutually exclusive, but
rather 'reflect different degrees of emphasis on the same
factors.'" Adoption of Garret, 92 Mass. App. Ct. 664, 671
(2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). "The judge must also find that the current
parental unfitness is not a temporary condition" (quotation and
citation omitted). Adoption of Arianne, 104 Mass. App. Ct. 716,
720 (2024). "We give substantial deference to the judge's
decision to terminate parental rights and reverse only where the
2 findings of fact are clearly erroneous or where there is a clear
error of law or abuse of discretion" (quotation and citation
omitted). Id. "An abuse of discretion exists where the
decision amounts to a clear error of judgment [in weighing the
relevant factors, such] that [the decision] falls outside the
range of reasonable alternatives" (quotation and citation
omitted). Id.
The parent's fitness is "determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the
parent's deficiencies place the child at serious risk of peril
from abuse, neglect, or other activity harmful to the child"
(quotation and citation omitted). Adoption of Olivette, 79
Mass. App. Ct. 141, 157 (2011).
a. Domestic abuse. The father and the mother began their
relationship in 2018, were separated from the fall of 2019 until
January 2021, and were together at the time of trial. They
frequently engaged in "verbal altercations" during their
relationship. In November 2019, after the couple had separated,
the mother told police that the father responded to her request
that he stop contacting her by repeatedly calling her and
threatening to "ruin her Thanksgiving" by making a false report
3 to police of her drug abuse. The father considered the mother
"weak" and "obedient." He controlled her cell phone and email
communications. The father also made videos of them having sex,
which included degrading and humiliating acts the father
instructed the mother to perform. The father told the mother
she had to submit to the videotaping because she was his
girlfriend. According to the mother, the father used threats of
disseminating the videos to control her. He did disseminate
some of the videos when the mother did something he viewed as
"wrong." While the mother was in labor with Sevy, the father
"flip[ed] out" and was removed from the hospital by security.
When the mother did not tell him immediately about Sevy's birth,
the father became "filled with anger [and] rage." He told the
mother she was going to be "homeless" when she returned from the
hospital.
The father also had a history of aggression toward other
family members. In March 2022, the father's sister obtained a
restraining order against him after he pushed her down a flight
of stairs. In August 2022, his mother also obtained a
restraining order against the father after he destroyed her
property.
We reject the father's contention that his relationship
with the mother represented a "lifestyle choice" in which the
mother accepted a "submissive role." Beyond his verbal abuse of
4 the mother, the father's behavior constituted the type of
"coercive control" that has long been recognized as a hallmark
of domestic abuse. 3 See Schechter v. Schechter, 88 Mass. App.
Ct. 241 n.5 (2015); K.A. v. T.R., 86 Mass. App. Ct. 554, 559 n.
9 (2014). We thus see no error in the judge's conclusion that
the father's history of domestic abuse and controlling behavior
with the mother, violence toward other close family members, and
lack of insight into his responsibility for that behavior placed
Sevy at risk. See Adoption of Gillian, 63 Mass. App. Ct. 398,
404 n.6 (2005) ("Violence within a family is highly relevant to
a judge's determination of parental unfitness and the best
interests of the children").
b. Mental health and substance use disorders. The father
suffered from long term mental health and substance use
disorders. He reported being diagnosed with bipolar and
obsessive-compulsive disorders. Despite the department's
intervention and continual urgings, the father declined to
participate in psychological evaluations. He adamantly refused
to take prescribed mental health medications. The father
acknowledged that he used drugs and reported smoking "over two
million dollars" worth of crack cocaine since he started using
3 Our Legislature recently codified this form of domestic abuse. See G. L. c.
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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-56
ADOPTION OF SEVY. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a decree issued by a judge of the
Juvenile Court finding the father unfit and terminating his
parental rights to his son, Sevy. 2 We affirm.
Background. In January 2022, Sevy was born substance
exposed. The Department of Children and Families (the
department) filed a petition for care and protection and removed
Sevy from his parents' custody when he was four days old and
still in the hospital. At a court hearing three days after
Sevy's removal, the parents waived their right to temporary
custody. Trial on the department's petition was held in June
2023. The judge heard from two witnesses and considered fifty-
1 A pseudonym.
2The judge also terminated the parental rights of Sevy's mother. The mother did not appeal. two exhibits. The father failed to appear for trial and the
judge drew an adverse inference against him for his absence.
The judge subsequently issued detailed findings supporting her
conclusion that the department had met its burden of
demonstrating that the father was unfit to parent Sevy and was
likely to remain so. See Adoption of Nancy, 443 Mass. 512, 514-
515 (2005).
Discussion. 1. The father's fitness. "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 Oren, 96 Mass. App. Ct. 842,
844 (2020). "[T]he 'parental fitness' test and the 'best
interests of the child test' are not mutually exclusive, but
rather 'reflect different degrees of emphasis on the same
factors.'" Adoption of Garret, 92 Mass. App. Ct. 664, 671
(2018), quoting Care & Protection of Three Minors, 392 Mass.
704, 714 (1984). "The judge must also find that the current
parental unfitness is not a temporary condition" (quotation and
citation omitted). Adoption of Arianne, 104 Mass. App. Ct. 716,
720 (2024). "We give substantial deference to the judge's
decision to terminate parental rights and reverse only where the
2 findings of fact are clearly erroneous or where there is a clear
error of law or abuse of discretion" (quotation and citation
omitted). Id. "An abuse of discretion exists where the
decision amounts to a clear error of judgment [in weighing the
relevant factors, such] that [the decision] falls outside the
range of reasonable alternatives" (quotation and citation
omitted). Id.
The parent's fitness is "determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the
parent's deficiencies place the child at serious risk of peril
from abuse, neglect, or other activity harmful to the child"
(quotation and citation omitted). Adoption of Olivette, 79
Mass. App. Ct. 141, 157 (2011).
a. Domestic abuse. The father and the mother began their
relationship in 2018, were separated from the fall of 2019 until
January 2021, and were together at the time of trial. They
frequently engaged in "verbal altercations" during their
relationship. In November 2019, after the couple had separated,
the mother told police that the father responded to her request
that he stop contacting her by repeatedly calling her and
threatening to "ruin her Thanksgiving" by making a false report
3 to police of her drug abuse. The father considered the mother
"weak" and "obedient." He controlled her cell phone and email
communications. The father also made videos of them having sex,
which included degrading and humiliating acts the father
instructed the mother to perform. The father told the mother
she had to submit to the videotaping because she was his
girlfriend. According to the mother, the father used threats of
disseminating the videos to control her. He did disseminate
some of the videos when the mother did something he viewed as
"wrong." While the mother was in labor with Sevy, the father
"flip[ed] out" and was removed from the hospital by security.
When the mother did not tell him immediately about Sevy's birth,
the father became "filled with anger [and] rage." He told the
mother she was going to be "homeless" when she returned from the
hospital.
The father also had a history of aggression toward other
family members. In March 2022, the father's sister obtained a
restraining order against him after he pushed her down a flight
of stairs. In August 2022, his mother also obtained a
restraining order against the father after he destroyed her
property.
We reject the father's contention that his relationship
with the mother represented a "lifestyle choice" in which the
mother accepted a "submissive role." Beyond his verbal abuse of
4 the mother, the father's behavior constituted the type of
"coercive control" that has long been recognized as a hallmark
of domestic abuse. 3 See Schechter v. Schechter, 88 Mass. App.
Ct. 241 n.5 (2015); K.A. v. T.R., 86 Mass. App. Ct. 554, 559 n.
9 (2014). We thus see no error in the judge's conclusion that
the father's history of domestic abuse and controlling behavior
with the mother, violence toward other close family members, and
lack of insight into his responsibility for that behavior placed
Sevy at risk. See Adoption of Gillian, 63 Mass. App. Ct. 398,
404 n.6 (2005) ("Violence within a family is highly relevant to
a judge's determination of parental unfitness and the best
interests of the children").
b. Mental health and substance use disorders. The father
suffered from long term mental health and substance use
disorders. He reported being diagnosed with bipolar and
obsessive-compulsive disorders. Despite the department's
intervention and continual urgings, the father declined to
participate in psychological evaluations. He adamantly refused
to take prescribed mental health medications. The father
acknowledged that he used drugs and reported smoking "over two
million dollars" worth of crack cocaine since he started using
3 Our Legislature recently codified this form of domestic abuse. See G. L. c. 209A, § 1 (d), as amended by St. 2024, c. 118, § 4.
5 it in 2000. He used crack cocaine every weekend, including when
the mother's other children were present in the home. 4 The
father also overdosed on two occasions on intravenous opioids,
once four years before Sevy was born and once after removal
proceedings for Sevy had begun. Nevertheless, the father
refused to undergo evaluation for substance use treatment and
failed to provide the department with required drug screens. 5 On
this evidence, we discern no error in the judge's determination
that there was a nexus between the father's mental health and
substance use issues and his inability to parent. See Adoption
of Luc, 484 Mass. 139, 144 (2020) ("[T]he [parent]'s
unwillingness to adhere to [the department's] service plan,
which required [the parent] to obtain treatment for [the
parent's] mental health challenges and substance use disorder,
is relevant to the determination of unfitness" [quotation and
citation omitted]).
c. The father's interaction with the department.
Beginning in October 2021, department social workers visited the
parents' home to help them prepare for Sevy's birth. When the
department expressed concerns about the parents' lack of
4 The mother had two children from another relationship.
5 The judge was not required to credit the father's self- reported, unverified attendance at a drug treatment program one month before trial, and apparently did not do so.
6 preparedness, the father became "escalated" and stated that he
did not need the department's assistance. The father's first
visit with Sevy occurred in the department's office when Sevy
was six days old. When a department social worker asked the
father to wear a mask to protect Sevy from potential Covid-19
exposure, he refused and "started yelling and throwing up his
arms" while holding Sevy. During ensuing visits, the father was
unable to bottle feed Sevy, could not remove him from his car
seat without assistance, teased him, left him unattended on a
couch, was unable to change his diaper, and made inappropriate
statements about Sevy. The department provided the father with
a parenting aide, but he became upset when the aide offered
suggestions and he refused to meet with her thereafter.
During a meeting in April 2022, the father was "frequently
agitated and yelling about the department." He repeatedly
directed racial slurs toward a department social worker, and at
one point threatened to kill her. As a result, the father's
visits with Sevy were suspended until a safety plan was
implemented. Once visitation was reinstated, the father
canceled visits with Sevy nearly every other week and sometimes
three weeks in a row. Beginning in October 2022, visits were
changed to once a month due to the father's frequent
cancellations.
7 During monthly visits with Sevy in 2023, the father told
Sevy to "shut up" when he cried, yelled at social workers with
Sevy on his lap, and acknowledged that he was unable to care for
Sevy. The father stated that his grandfather "beat the fear of
the [L]ord in him" and the father "believes that is how kids
should be raised."
We are not persuaded by the father's contention that he was
merely responding reasonably to the department's unfair
"attack[s]" on his parenting ability. The evidence amply
supported the judge's conclusion that the father's interactions
with the department raised "concerns about his ability to create
and maintain a stable, consistent, and safe environment" for
Sevy. See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396
(1973) ("violence of temper" and inability to "control
unparental traits of character" may constitute unfitness).
d. Reasonable efforts. The judge did not err in
concluding that the department made reasonable efforts to
prevent Sevy's removal from his home. As the judge observed,
"the [d]epartment's obligation to make reasonable efforts to
prevent or eliminate the need for removal is contingent on the
parent seeking and engaging in necessary services." See
Adoption of Christine, 405 Mass. 602, 609 n.14 (1989)
("department acted reasonably in the circumstances" where parent
"was unable or unwilling to cooperate" with services offered);
8 Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001) (department's
"obligation to work with [parent] was contingent upon her own
obligation to fulfill various parental responsibilities,
including seeking and utilizing appropriate services and
maintaining regular contact with [the department] and" the
child). Here, the department developed several action plans to
help the father address the domestic abuse, anger, substance
use, parenting skills, and mental health concerns that
interfered with his fitness to parent Sevy. However, the father
did not substantially engage in many of the recommended
services, except that he completed a "Parenting Journey" course.
After he underwent an independent psychological examination to
receive disability benefits, the father did not share the
results with the department. He also failed to provide the
department with required drug screens. Moreover, the father did
not join the "Strong Father" program the department recommended
and could not verify his presence at virtual parenting classes
he claimed to have attended. The judge properly found that the
department made reasonable efforts, and there was no error in
her factoring the father's lack of engagement with the
department into her determination that the father was unfit.
See Adoption of Serge, supra at 8 (lack of meaningful
participation in recommended services is relevant consideration
in determining parental fitness).
9 2. The father's future unfitness. The judge issued
"specific and detailed findings" supporting her conclusion that
the father's unfitness was not temporary. See Adoption of
Quentin, 424 Mass. 882, 888 (1997). See also Adoption of
Virgil, 93 Mass. App. Ct. 298, 301 (2018) (judge must "find that
the current parental unfitness is not a temporary condition").
Those findings include, as discussed, the father's history of
domestic abuse, aggression, volatile behavior, substance use,
untreated mental health disorders, inappropriate conduct during
visits with Sevy, and unwillingness to engage in services.
Considered in their entirety, the judge's findings and
conclusions established by clear and convincing evidence that
the father's unfitness was not temporary.
Decree affirmed.
By the Court (Henry, Hand & Brennan, JJ. 6),
Clerk
Entered: November 13, 2024.
6 The panelists are listed in order of seniority.