Adoption of Talib.

• Court: Massachusetts Appeals Court
• Decided: November 8, 2024
• Docket: 24-P-0027
• Status: Unpublished

Opinion

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-27

ADOPTION OF TALIB.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree issued by a Juvenile Court

judge finding him unfit and terminating his parental rights to

his son, Talib. We conclude that the trial judge erred in

finding that the Department of Children and Families (DCF) made

reasonable efforts at reunification, in light of its failure to

communicate with the incarcerated father and to schedule parent-

child visits once requested. Nonetheless, the trial judge

properly terminated the father's parental rights as the evidence

demonstrated that he was unfit and likely to remain so

indefinitely. Accordingly, we affirm.

1A pseudonym. The mother's parental rights were terminated in 2023; she is not a party to this appeal. The father of the child's older sister, initially believed to be the father of the child, did not appeal the termination of his parental rights to the child's sister and is not a party to this appeal. 1. Background. The child was born in October 2019.

Although no father was listed on the child's birth certificate,

the mother initially believed the child's father to be the same

man as the father of the child's older sister. DCF first became

involved with the child in May 2020 when the mother was arrested

after bringing the child and his older sister to her fight with

another adult and subsequently driving away from the fight at a

high rate of speed with both children in the vehicle. Prior to

the completion of DCF's investigation of this incident, the

mother was again arrested after she drove under the influence

and crashed into nine parked vehicles while the child was in the

vehicle. DCF assumed emergency custody of both the child and

his older sister following this incident.

In February 2021, the mother informed DCF that she believed

the father was the parent of the child.2 The father was

incarcerated at that time, as he had been for a portion of the

mother's pregnancy and the birth of the child. The father has

an extensive criminal background involving multiple assault and

firearm related convictions. The father remained incarcerated

for a firearm offense during the entirety of the trial.

2 At trial, the mother testified that the father of the child's older sister took an at home paternity test four months after the child's birth, which revealed the man was not the child's father.

2 In May 2021, the father was added to DCF's family action

plan and included on all subsequent DCF reports and plans. As

part of this plan, the father was required to "(1) make his

whereabouts known to [DCF] and provide contact information,

(2) make monthly contact with [DCF], (3) adhere to rules set

forth by the CJS and refrain from engaging in further criminal

activity, and (4) establish paternity of [the child]."

In the father's initial conversation with a DCF social

worker in August 2021, he admitted that he was aware of the

child and the possibility that he was the child's father but he

wanted a paternity test to confirm. The father further noted

that the mother had informed him the child was his. DCF

subsequently engaged a different agency to schedule paternity

testing for the father and child. Apparently because of the

COVID-19 pandemic and scheduling issues, the father was unable

to establish his paternity until September 29, 2022.

Prior to this determination, in April 2022, the father

expressed his desire to assume custody of the child when the

father was released from prison. The father stated he planned

to get a job upon release and that he was presently on the wait

list for college courses and a welding class and was already

enrolled in criminal addictive thinking and parenting classes.

The father reiterated his desire to assume custody upon his

3 release at a July meeting with a social worker, adding that he

"would like to do anything to speed up the process." DCF

informed the father that parent-child visits could be scheduled

once paternity was confirmed.

No parent-child visits were scheduled prior to the

termination of the father's parental rights. Following the

confirmation of the father's paternity in September 2022, the

father was reluctant to have the child brought to the prison,

informing DCF that he would contact them when he wanted the

child to visit. The father chose to not contact DCF and

schedule visitation even after the start of the termination

trial on October 27, 2022. Instead, the father made only one

visitation request, on February 16, 2023, and did not otherwise

contact his social worker between December 2022 and March 2023.

In response to the visitation request, DCF conducted an

assessment into whether and how to provide visits. DCF failed

to complete this assessment prior to the end of the trial in

March 2023, resulting in the father's never meeting or

communicating with the child.

In April 2023, the judge found the father unfit and

terminated his parental rights to the child. This appeal

followed.

4 2. Standard of review. "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). "Because

termination of a parent's rights is an 'extreme step,'. . . a

judge must decide both 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). "In making this determination, a judge must consider '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 Garret, 92

Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414

Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a

nonexhaustive list of factors to be weighed in determining the

fitness of a parent.

Where there is clear and convincing evidence that the

parent is unfit and likely to remain so, we give substantial

5 deference to the trial judge's decision regarding the child's

best interests 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. at 59. "A

finding is clearly erroneous when there is no evidence to

support it, or when, 'although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),

quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse

of discretion exists where the decision "amounts to a 'clear

error of judgment' that falls 'outside the range of reasonable

alternatives.'" Adoption of Talik, 92 Mass. App. Ct. 367, 375

(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

3. Reasonable efforts. "Before seeking to terminate

parental rights, [DCF] must make 'reasonable efforts' aimed at

restoring the child to the care of the natural parents."

Adoption of Ilona, 459 Mass. at 60, quoting Adoption of Lenore,

55 Mass. App. Ct. 275, 278 (2002). When an involved parent is

incarcerated, DCF's regulations expressly require DCF employees

"to work in cooperation with incarcerated parents to promote a

healthy relationship with their children, and to avoid permanent

6 separation." 110 Code Mass. Regs. § 1.10 (2008). These

required "efforts shall include regular visitation at the

correctional facility, as well as the holding of case

conferences and other consultations at the correctional

facility." Id. "[R]egardless of whether parents are

incarcerated, [DCF]'s regulations prohibit it from terminating

visitation 'unless the matter is brought before a judge, and the

judge makes specific findings demonstrating that parental visits

will harm the child or the public welfare.'" Adoption of

Franklin, 99 Mass. App. Ct. 787, 795 (2021), quoting 110 Code

Mass. Regs. § 7.128 (2008).

Here, DCF violated its own regulatory obligations through

its failure to schedule requested visitation. DCF argues that

its failure to schedule visitation was the result of the

father's singular, delayed request and logistical difficulties

related to the father's incarceration and the transportation of

the child from New Hampshire. That explanation, however, is not

supported by the evidence at trial. At trial, a DCF social

worker testified that, when the father requested a visit, DCF

had to make "[a] clinical decision." She explained that DCF

"would like to acknowledge . . . what's in the best interest of

[the child], taking him where he has never met [the father],

taking him into the jail, the impact that would have on the

7 child." She testified that her superiors at DCF had to approve

visitation, and that she had "brought it to the attention of my

supervisor and emailed my supervisor, our attorney, and it then

should go up to the area program manager." The social worker

further testified that the clinical team would "make the

decision of the best interest of [the child] of whether or not

he should be able to see his father."

We acknowledge that, two weeks later, counsel for DCF at

trial represented to the trial judge that DCF had by then "been

in contact with the jail or attempted to have contact with the

jail in regards to visitation and how that would work, and

whether Facetime or other means of communication would be

possible" and was "still waiting to hear back from the . . .

jail." He also described the "logistical issue that DCF is

trying to resolve in terms of how transportation would work."

Putting aside that the representations of counsel were not

evidence, see Danny D. v. Eli E., 102 Mass. App. Ct. 901, 902

(2023), waiting one month without offering a visit, and merely

leaving messages for the prison, was wholly inadequate to comply

with the regulatory requirement of "regular visitation at the

correctional facility." 110 Code Mass. Regs. § 1.10.

Moreover, this particular regulatory violation is

emblematic of how DCF's general relationship with the father

8 fell short of the "special efforts" required by DCF's

regulations for dealings with incarcerated parents. 110 Code

Mass. Regs. § 1.10. Although DCF tasked itself with maintaining

monthly contact with the father, social workers participated in

just five planned conversations with the father between May 2021

and March 2023. At trial, a DCF social worker failed to explain

her inability to engage even once with the father between

December 2022 and March 2023 despite being in the same court

house as the father on separate occasions. The social worker

further testified that she never attempted to meet the father at

the prison as "the previous social workers hadn't," rendering

the father "a phone contact" and person to speak with at

hearings. In sum, the record did not support the judge's

finding that DCF made reasonable efforts at reunification.

4. Termination of parental rights. "[A] determination

that reasonable efforts were not made does not preclude removal

or confirmation of the department's temporary custody, or even

the ultimate termination of parental rights." Care & Protection

of Rashida, 489 Mass. 128, 133 (2022), citing G. L. c. 119,

§ 29C. Furthermore, DCF's duty to make reasonable efforts

presumes the father's fulfillment of his own responsibilities,

including action plan compliance and maintaining meaningful

contact with DCF. See Adoption of Eduardo, 57 Mass. App. Ct.

9 278, 282 (2003) ("Because the mother failed to make use of the

services offered to strengthen and then reunify her family and

denied her mental health needs by refusing both evaluation and

treatment, she cannot successfully argue that [DCF's] reasonable

efforts failed to accommodate properly her mental health needs

or to strengthen her family"). Ultimately, "our lodestar is

necessarily the best interests of the child." Adoption of Bea,

97 Mass. App. Ct. 416, 417 (2020). This determination is within

a judge's discretion. See Adoption of Nancy, 443 Mass. 512, 516

(2005).

To her credit, the trial judge did not ignore DCF's

shortcomings when issuing the decree. Indeed, the trial judge

noted that she was "troubled" by the lack of contact with the

father, finding DCF "arguably could have done more to work with

[the father] on a monthly basis and to offer parent-child

visitation once [the father's] parental rights were

established." As she correctly noted, despite her misgivings,

the judge "must act in [the child's] best interests."

Here, termination of the father's parental rights was in

the best interests of the child as the record established that

father had no meaningful likelihood of success as a parent to

the child. It was the father's ongoing criminal activity that

precluded him from being present for the mother's pregnancy, the

10 birth of the child, and the entirety of the child's short life.

When first confronted by DCF about the possibility that he was

the child's father, the father was reluctant to assume parental

responsibility, despite admitting he was already aware of the

child and the possibility that he was the father. When the

father did choose to become involved with the child, he failed

to offer a viable plan for how he would provide for the child

upon his release, vaguely claiming he would get a job despite

previously being unemployed and financially reliant on the

paternal grandmother. The father's inability to plan for the

child's future was compounded by his failure to take advantage

of offered services while incarcerated. Despite claiming to be

enrolled in multiple classes, including a parenting class, and

on the wait list of several others, the father offered evidence

of his completion of only one course.

Moreover, the father never met or communicated with the

child and made no effort to do either until well into trial.

Accordingly, the father did not develop a bond with the child or

understand the child's needs. Although the father points to,

and we acknowledge, DCF's failure to schedule visitation, the

father himself contributed to this failure as he made only one

request for visitation and did not otherwise communicate with

11 DCF as to feasibility of other forms of interaction with the

child.

Finally, the judge reasonably concluded that termination

was in the best interests of the child as it freed him for

adoption by the same family as his older sister. The siblings

already lived together with this family at the time of trial,

having been placed there in August 2022. In that time, the

siblings bonded with the family. The adoption social worker

explained how both children "go to [the adoptive mother] for

. . . comfort." Moreover, trial testimony confirmed the

siblings' own close bond, with the older sister described as

"like the mother of [the child]," and the child as "always

want[ing] to do what [his sister] is doing."

DCF's decision to prioritize placing the child together

with his older sister in the home of the sister's paternal aunt

over other alternatives is supported by the trial evidence.

When the father's paternity was established, attempts were made

to determine if any paternal family members could assume custody

of the child. The child's paternal grandmother was considered

but found ineligible because of limited residential space. The

paternal grandmother was informed that she would be reconsidered

if she found a larger residence, but communication with her

lapsed and she did not attend the trial. The paternal

12 grandmother had no relationship with the child and had never met

him. Accordingly, based on trial evidence, the trial judge

acted within her discretion in determining that being freed for

adoption and placed with the same family as his sister was in

the child's best interests. See Adoption of Jacques, 82 Mass.

App. Ct. at 610.

Decree affirmed.

By the Court (Shin, Ditkoff & Brennan, JJ.3),

Clerk

Entered: November 8, 2024.

3 The panelists are listed in order of seniority.