NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
18-P-1363 Appeals Court
ADOPTION OF VARIK.1
No. 18-P-1363.
Plymouth. April 5, 2019. - August 16, 2019.
Present: Agnes, Maldonado, & Sacks, JJ.
Adoption, Dispensing with parent's consent. Parent and Child, Dispensing with parent's consent to adoption, Adoption. Minor, Adoption.
Petition filed in the Plymouth County Division of the Juvenile Court Department on February 4, 2016.
The case was heard by Dana Gershengorn, J.
Lisa Augusto, Committee for Public Counsel Services, for the father. Andrew Don for the child. Lynne M. Murphy for Department of Children and Families.
AGNES, J. A judge of the Juvenile Court found the father
unfit2 to parent his son, Varik, and issued a decree terminating
1 A pseudonym, as are all of the names in this opinion.
2 "Despite the moral overtones of the statutory term 'unfit,' the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the [child]. The 2
his parental rights, thereby dispensing with his need to consent
to Varik's adoption.3 The judge committed Varik to the custody
of the Department of Children and Families (department),
approved the department's adoption plan, and ordered
postadoption visitation between the father and Varik.4 Both the
father and Varik appeal. The father argues that the judge
abused her discretion in denying his request to continue the
trial, in finding him permanently unfit without considering the
department's failure to provide appropriate services to address
his family's unique needs, and in terminating his parental
rights in the absence of an adequate adoption plan. Varik
contends that the adoption plan approved by the judge is
deficient and, as a result, the termination decree must be
vacated and the case remanded, and that the department failed to
make reasonable efforts to provide appropriate services to the
father. We affirm in part and vacate in part.
question for the judge is whether the parent's deficiencies place the child[] at serious risk of peril from abuse, neglect, or other activity harmful to the child[]" (quotations and citations omitted). Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018).
3 The mother's parental rights were also terminated. She resides in North Carolina, did not participate in the trial, and is not a party to this appeal.
4 The order for postadoption visitation provides for three visits, of at least two hours' duration each, per calendar year. 3
Background. The judge made eighty-two findings of fact
based on the testimony of three witnesses and thirty-one
exhibits introduced at trial. Varik was born in 2008 and was
nine years old at the time of the termination of parental rights
trial in May, 2018. The mother and the father have two children
together, Varik and Varik's sister, who lives with the mother
and the mother's boyfriend in North Carolina. Varik moved to
Massachusetts to live with the father in May, 2015, at age six,
after he reported that the mother's boyfriend had cut him with a
knife and child protective services in North Carolina became
involved with the mother's family.5 The father currently lives
in Rhode Island with his long-term girlfriend and their
daughter, Varik's younger half-sister.
In February, 2016, a mandated reporter filed a report
pursuant to G. L. c. 119, § 51A, alleging that Varik had
attended school with a swollen, painful hand, and had disclosed
that his father "gave him a whoopin' with his hand" the day
before, causing Varik to fall on and injure his own hand. The
father picked up Varik from school, telling school workers that
Varik was "a liar" and that he would take Varik to the doctor.
Later that day, as part of the emergency investigation pursuant
to G. L. c. 119, § 51B, a department investigative worker and a
5 The North Carolina child protection case and related criminal charges were later dismissed. 4
social worker visited the home. There they found the father
alone because his girlfriend had taken Varik, along with his
younger half-sister, to the hospital. At the hospital, Varik
told department social workers that the father had hit him on
the legs with a belt the week before. The father did not visit
Varik, who had a hand fracture, at the hospital. The department
took custody of Varik that day and filed a care and protection
petition in the Juvenile Court the following day.
Under the service plan prepared by the department, the
father's tasks included consistently engaging in counselling to
address his anger issues and how the abuse had impacted Varik,
exploring alternative methods of disciplining the children,
completing a parenting course, and consistently visiting Varik.
The father completed the parenting course and participated in
some individual counselling addressing his ability to better
handle Varik's behaviors and to recognize the causes of those
behaviors. The father's first counsellor terminated services
because the father missed several appointments in a row. The
department also had a very difficult time contacting the father
to schedule his visits with Varik, and the father missed a
number of visits, citing the demands of his work schedule. To
accommodate his work schedule and better facilitate the
supervised visits, the department began scheduling the visits at
a visitation center on Saturdays. Despite this accommodation, 5
the father still missed numerous visits and expressed
aggravation if Varik arrived late, blaming the department for
his tardiness.6 As of September, 2016, the father denied abusing
Varik and denied any responsibility for Varik being in the
department's care.
Throughout this time, Varik remained in a foster home and
exhibited troubling behavior, including lying, a series of
thefts, and hoarding food on an almost daily basis. Varik's
disruptive behaviors at school and in his foster home improved
over time as he joined a school social group, began individual
counselling, and met with a mentor. By February, 2017, the
department determined that the father had made significant gains
as a result of his engagement with his service plan tasks and
reunified Varik with him. During this period of reunification,
an intensive in-home family therapeutic service was put in
place, and the department developed a new service plan for the
family that included tasks for the father such as continuing
counselling to address his anger issues and the impact the abuse
6 The father was arraigned in the District Court on May 5, 2016, on charges of assault and battery by means of a dangerous weapon on a child causing substantial injury; assault and battery by means of a dangerous weapon on a child under age fourteen; and assault and battery. He was released subject to the conditions that he stay away from and have no contact with the victim, Varik, not abuse the victim, and comply with department orders. As a result of the no-contact order, no visits occurred between May and October, 2016. 6
had on Varik, and exploring alternative methods of discipline
that are safe and appropriate for children.
Varik reentered the department's care two months later, in
April 2017, when the father and his girlfriend brought him to
the department's office and stated that they could no longer
care for him, given his troublesome behaviors, and that the
father could not handle him without using physical discipline.
The father told the department social worker that "the only way
for [Varik] to learn [was] through pain." At a subsequent home
visit in June, 2017, the father reported to the social worker
that it was Varik's fault that he was in the department's
custody and reiterated his belief that physical discipline was
the best method of addressing Varik's problematic behaviors.
Additionally, the father told the social worker that it was "in
[Varik's] blood to be bad." In November, 2017, the father, his
girlfriend, and Varik's younger half-sister moved to Rhode
Island.
Varik was eventually placed in a comprehensive intensive
foster care (IFC) home, where he remained at the time of the
trial. By May, 2018, Varik was doing well academically, was
medically up-to-date, and had graduated from an after-school
mentoring program. While he still occasionally exhibited
disruptive behavior, such as stealing food or school supplies,
he also consistently engaged in therapeutic counselling 7
treatment, and the department had made a referral for him to
resume services with his former therapeutic mentor. Once Varik
returned to the department's care, the father refused to engage
in any services that were asked of him and did not participate
with the department in any meaningful way toward reunification.
The father told the department social worker that he did not
need services, and he refused to participate in any further
therapy.
In the twelve months leading up to trial in May, 2018, the
father visited Varik seven times, often cancelling or not
appearing for scheduled visits. He cited the nature of his
seasonal work schedule, which often required him to be out of
State for periods of time, as the reason for his frequent
absences. While the father and Varik did have some positive and
age-appropriate interactions during some visits, the father on
other visits would criticize Varik or primarily discuss the
department's case or upcoming court dates with him. During one
visit, Varik had a sudden and severe allergic reaction and was
taken by ambulance to the hospital. The father did not
accompany Varik to the hospital and caused Varik great distress
by his absence. The father also did not follow up with the
social worker regarding Varik's medical treatment or condition.
In February, 2018, the father indicated to the department
an interest in engaging in family therapy. However, Varik's 8
therapist at the time reported to the department that family
therapy would be "completely inappropriate" given the father's
repeated "toxic encounters" with Varik, including a recent
telephone call the father had made to Varik during which he
blamed Varik for the care and protection case, stated he would
never regain custody of Varik, and threatened to move to North
Carolina.
Adoption plan. On November 28, 2017, the department
changed its goal for Varik to permanency through adoption. The
department had submitted a request pursuant to the Interstate
Compact on the Placement of Children (ICPC) for a home study in
South Carolina for Varik's paternal step-grandmother, who had
cared for Varik when he was younger; that home study was pending
at the time of trial. Additionally, the department asserted at
trial and on appeal that it was working to identify Varik's
"Aunt Susan," who had visited with him a few months before
trial, as a potential adoption resource.7 The adoption social
worker further testified at trial that should the ICPC request
be denied, the department would proceed to recruitment, using
the services of the Massachusetts Adoption Research Exchange,
7 Varik has two aunts named Susan. The maternal aunt was screened out as an adoption resource, and the department was still attempting to gather more information regarding the paternal aunt named Susan at the time of trial. 9
and refer Varik to the department's adoption development
licensing unit for additional recruitment activities.
The adoption plan did not detail Varik's specific ongoing
needs, nor did it describe the specific characteristics of the
ideal family that would be recruited by the department or the
necessary home environment that would be the best and most
appropriate placement for him.
Discussion. 1. Dispensing with parental consent to
adoption. "In determining whether to dispense with parental
consent to adoption, the judge must not only determine whether a
parent is unfit, but [she] must also evaluate 'whether
dispensing with the need for parental consent will be in the
best interests of the child[ ].'" Adoption of Thea, 78 Mass.
App. Ct. 818, 823 (2011), quoting Adoption of Mary, 414 Mass.
705, 710 (1993). This determination requires a "two-part
analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005).
"First, the judge must find that the parent is presently unfit."
Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). Second,
the judge must find that the child's best interests would be
served by ending all legal relations between parent and child.
Id. "That determination includes consideration of the
permanency plan proposed by the department" and any such plan
proposed by the parents. Id. Because the judge is in a
"superior position to evaluate witness credibility and weigh the 10
evidence, we review her findings with substantial deference and
will not disturb those findings unless clearly erroneous." Id.
at 166. The judge's ultimate determination of parental fitness
must, however, be shown to have been proved by clear and
convincing evidence to withstand appellate review. See Custody
of Eleanor, 414 Mass. 795, 801–802 (1993). We give deference to
the judge's determination of the child's best interests, and
"reverse only when there is a clear error of law or abuse of
discretion." Adoption of Cadence, supra.
In making these determinations, the judge must consider
"whether the parent's deficiencies 'place the child at serious
risk of peril from abuse, neglect, or other activity harmful to
the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157
(2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct.
758, 761 (1998). This must be 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. at 711.
"[P]hysical force within the family is both intolerable and
too readily tolerated, and . . . a child who has been . . . the
victim . . . of such abuse suffers a distinctly grievous kind of 11
harm." Custody of Vaughn, 422 Mass. 590, 595 (1996).8 The
"failure to follow service plan tasks and visitation schedules
8 Properly understood, the view expressed in Custody of Vaughn, 422 Mass. at 595, that the use of "physical force" within a family is intolerable, is not in conflict with a parent's right to discipline his or her child. In Commonwealth v. Dorvil, 472 Mass. 1, 10 (2015), the Supreme Judicial Court addressed the subject of corporal punishment in the setting of a criminal prosecution of a parent, and set forth a framework balancing parental rights and the interests of their children. The court there stated:
"[A] parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."
Id. at 12. The court concluded that the evidence that the parent "smacked" his young child (at the time nearly three years old) "once on her clothed bottom" without causing any physical injury was not "sufficient to prove beyond a reasonable doubt that the defendant's use of force was unreasonable or not reasonably related to a permissible parental purpose." Id. at 13.
In Custody of Vaughn, by contrast, the facts indicated that the father had committed acts of serious violence against the mother and her three children, including the sexual abuse of one child. 422 Mass. at 595. Clearly, the use of "physical force," based on the facts described in Custody of Vaughn, supra, would find no sanction under the parental privilege recognized in Dorvil, 472 Mass. at 10. Likewise, the father's physical abuse of Varik is far removed from the scope of the parental privilege recognized in Dorvil. For cases involving parental conduct that was determined to be criminal notwithstanding an assertion of the parental privilege to discipline a child, see Commonwealth v. Rosa, 94 Mass. App. Ct. 458, 464 (2018); Commonwealth v. 12
may be relevant to determining parental unfitness." Adoption of
Leland, 65 Mass. App. Ct. 580, 585 (2006).
Here, the judge's unchallenged findings established that
the father had physically abused Varik. Even after engaging in
individual counselling and a parenting course to address his own
anger issues and identify alternative methods of discipline, the
father still believed that physical force was necessary to
discipline Varik. Both of the father's service plans included,
among other things, meeting with DCF, consistently engaging in
counselling, consistently visiting Varik, and refraining from
using physical discipline. While the department noted enough
improvement in the father when he partially complied with his
initial service plan to eventually reunify Varik with him, the
department saw no improvement from the time Varik returned to
the department's custody in April, 2017, to trial in May, 2018.
The father consistently denied responsibility for Varik being in
the department's custody, instead blaming Varik himself, and he
Dobson, 92 Mass. App. Ct. 355, 357-358 (2017); Commonwealth v. Lark, 89 Mass. App. Ct. 905, 906 (2016).
We note that the department has a policy that explicitly forbids "the use of any form of corporal punishment by foster/pre-adoptive parents upon any foster child(ren)." 110 Code Mass. Regs. § 7.111(3) (2009). In Magazu v. Department of Children & Families, 473 Mass. 430, 441 (2016), the court concluded that the department had the authority to deny an application to become foster parents solely on ground that the "parents administer physical discipline to their own children." 13
believed "it [was] in [Varik's] blood to be bad." Thus, the
father's failure to comply with the additional service plan
tasks, see Petition of Catholic Charitable Bureau to Dispense
with Consent to Adoption, 13 Mass. App. Ct. 936, 937-938 (1982),
as well as his demonstrated inability to "achieve[] the
essential gains in [his] parenting skills" support the finding
of unfitness.9 Adoption of Paula, 420 Mass. 716, 731 (1995).
See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999)
(failure to demonstrate benefit derived from provided services
may be probative of parental unfitness). The judge's
determination that, at the time of trial, the father was not fit
to parent Varik is supported by clear and convincing evidence.
2. Adequacy of services. The father, joined by Varik,
argues that his unfitness at the time of trial was temporary and
was exacerbated by the department's failure to make reasonable
efforts to offer services more tailored to his family's specific
needs. This assertion is without merit. The department is
required to make "every reasonable effort to encourage and
assist families to use all available resources to maintain the
family unit intact." 110 Code Mass. Regs. § 1.01 (2008). See
G. L. c. 119, § 1; Adoption of Ilona, 459 Mass. 53, 60 (2011)
9 Additionally, the judge properly considered the fourteen factors specified in G. L. c. 210, § 3, and found nine applicable to this matter. 14
("[B]efore seeking to terminate parental rights, the department
must make 'reasonable efforts' aimed at restoring the child to
the care of the natural parents"). However, this obligation is
"contingent upon [the father's] fulfillment of [his] own
parental responsibilities," and subject to the department's
competing duty "to insure that the child is protected from the
absence, inability, inadequacy or destructive behavior of the
parent." Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997).
See G. L. c. 119, § 1; 110 Code Mass. Regs. § 1.02 (2008). The
two service plans generated by the department were nearly
identical, and the judge found that they contained tasks that
were "necessary and appropriate" for the goal of reunification,
including tasks that had yielded noted improvements in the
father's parenting skills previously.
In the weeks leading up to Varik's return to the
department's custody, a department social worker attempted to
contact the father to confirm and clarify the behavioral
problems his girlfriend had reported that Varik was exhibiting
and with which they were struggling. The social worker found
the father uncommunicative and unwilling to elaborate. The
social worker discussed with the father the importance of
reengaging in individual therapy as provided in his second
service plan, but the father stated he did not need services
because he was doing "therapy with himself." Apart from 15
indicating a willingness to engage in weekend family therapy
nine months after Varik reentered care, the father did not
otherwise request any specific additional services from the
department. Varik's therapist believed that family therapy
would negate the progress Varik had made in the intervening
months due to the father's failure to consistently attend
scheduled monthly visits and his repeated "toxic encounters" and
"toxic phone calls" with Varik. Given the father's refusal to
fulfill his parental responsibilities by working with the
department to reengage in the services asked of him, his failure
to benefit meaningfully from his earlier partial compliance,10
and the department's consistent attempts to accommodate
visitation and meetings around the father's work schedule, the
judge properly found that the department made reasonable efforts
to encourage reunification, and that the tasks within both
service plans were necessary and appropriate.
3. Adequacy of adoption plan. Varik and the father next
argue that the adoption plan approved by the judge was so
deficient that the decree must be vacated and the case remanded.
Following a finding of unfitness, the judge "must determine
whether the parent's unfitness is such that it would be in the
10For example, the father continued to believe, in April, 2017, after individual counselling and his completion of a parenting course, that Varik could only learn "through pain." 16
child's best interests to end all legal relations between parent
and child." Adoption of Nancy, 443 Mass. at 515. In
determining the best interests of the child, the judge must
consider, among other things, "the plan proposed by the
department." G. L. c. 210, § 3 (c). The law does not require
that the adoption plan be "fully developed" in order to support
a termination order, but it must provide "sufficient information
about the prospective adoptive placement 'so that the judge may
properly evaluate the suitability of the department's
proposal.'" Adoption of Willow, 433 Mass. 636, 652 (2001),
quoting Adoption of Vito, 431 Mass. 550, 568 n.28 (2000). In
determining the sufficiency of the plan, the judge may consider
evidence and testimony presented at trial regarding unfitness
and the child's best interests, in addition to the written plan.
Adoption of Willow, supra at 653. See Adoption of Stuart, 39
Mass. App. Ct. 380, 393 (1995) (judgment reversed where there
was lack of written adoption plan combined with social worker's
inability to testify as to what type of home would be suitable
for each child). In brief, in order to comply with G. L.
c. 210, § 3 (c), the department must submit to the judge an
adoption plan that is sufficiently detailed to permit the judge
to evaluate the type of adoptive parents and home environment
proposed and consider whether the proposal is best suited to
meet the specific needs of the child. 17
Here, the adoption plan proposed by the department was
inadequate, and the judge therefore abused her discretion in
concluding that it was in Varik's best interests. The written
adoption plan stated that the department's goal was
"[p]ermanency [t]hrough [a]doption." That is an appropriate
goal, but in the circumstances of this case, standing alone, it
did not convey enough information for the judge to assess the
various options that the department was actively considering.
The department's plan contained a description of a pending ICPC
request for the paternal step-grandmother in South Carolina. If
the ICPC request for the paternal step-grandmother was denied,
the department planned to proceed to recruitment activities.
The adoption social worker testified that Varik had stated that
if he could not return to his father, he would like to live with
his "Aunt Susan," whose contact information the department had
yet to acquire.11
In the present case, the adoption plan submitted by the
department outlined the goal for Varik's adoption but failed to
specify the type of adoptive parents and the characteristics of
the home environment best suited to meet his specific needs.
Although the plan contained some details of Varik's medical
11See Adoption of Nancy, 443 Mass. at 518 (children's wishes in custody determinations should be considered by judge but are "neither decisive . . . nor outcome determinative"). 18
history, placement history, and ongoing behavioral issues, this
was not a substitute for information describing the kind of home
environment and adoptive family makeup that ideally would best
meet Varik's particular needs. Cf. Adoption of Lars, 46 Mass.
App. Ct. 30, 32 (1998) (adoption plans for multiple children
sufficiently detailed where they identified preferred number of
parents in each adoptive household, identified that adoptive
parents should be trained regarding each child's specific
neurological and behavioral issues, and indicated how many other
children of what ages should be in adoptive homes).12 We must,
therefore, remand this case for further proceedings and findings
on this issue.13
4. Termination of parental rights. In vacating the decree
insofar as it relates to the approval of the adoption plan, we
also consider whether it was error for the judge to terminate
12The judge determined that "the adoption plan proposed by the [d]epartment has sufficient content and substance and it established a superior plan for [Varik], and is in [Varik's] best interests." The judge also found that there was a pending ICPC request regarding the paternal step-grandmother and that the department's plan is adoption by recruitment. These findings are not sufficient to establish that the adoption plan satisfies G. L. c. 210, § 3 (c). Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001).
13We do not hold nor are we suggesting that an adequate plan once approved by the judge is binding on the department, because circumstances may change and the best interests of Varik may require adjustments in the adoption plan. Furthermore, under G. L. c. 119, § 29B, there is an annual judicial review of the department's permanency plan for children in its care. 19
the father's parental rights. It is important to consider that
the judge found that throughout the pendency of this case the
father failed to acknowledge any responsibility for the care and
protection of Varik, continued to believe that the only way to
remedy Varik's problems was to physically punish him, and,
following a failed effort at family reunification in 2017,
refused to engage in any of the services offered by the
department. As the judge noted, the father was offered services
designed to remediate his parenting deficiencies and to protect
Varik from abuse, but the father failed to engage in many of
these services and "failed to consistently follow through with
appointments, services, visitation, and court appearances." On
the record before us, the judge was warranted in concluding not
only that the father was incapable of providing appropriate care
and custody for Varik at the time of trial, but also that the
father's shortcomings were "likely to continue into the
indefinite future to a near certitude." See Adoption of Nancy,
443 Mass. at 517 (judge is not required to grant father
indefinite opportunity to remedy parenting deficiencies).
"Where there is evidence that a parent's unfitness is not
temporary, the judge may properly determine that the child's
welfare would be best served by ending all legal relations
between parent and child." Adoption of Cadence, 81 Mass. App.
Ct. 162, 169 (2012). 20
Relying on Adoption of Dora, 52 Mass. App. Ct. 472, 479
(1978), and several other cases, the father argues that judicial
approval of an adequate adoption plan is a necessary
"precondition" to a decision that parental rights should be
terminated, and that, as a result, we should vacate the portion
of the decree that terminates his parental rights. In Adoption
of Dora, supra, the department and the parents advocated
competing plans. The department's plan called for the child to
be adopted by her foster parents, while her father proposed that
she be placed with a paternal uncle in California. The judge
did not indicate which of these alternative plans was in Dora's
best interests. Id. at 473-474. On appeal, this court
concluded that it "was not appropriate" for the judge to leave
to the department the decision about which adoption plan was
best for the child, subject only to review by the adoption
judge. Id. at 476. In such circumstances, an order terminating
parental rights was premature because it would deprive the
biological parents of standing to "advocate their point of view"
regarding which one of the competing plans should be approved.
Id. In the present case, by contrast, the father has not
proposed an adoption plan, and there are no competing plans that
must be assessed by the judge.
Our decision in Adoption of Thea, 78 Mass. App. Ct. 818,
825 (2011), is not to the contrary. There, the court faced an 21
unusual set of circumstances involving an "extremely high risk"
teenager who was approaching her eighteenth birthday and was in
an unstable placement (a long-term hospitalization unit). Id.
at 824. Based on the absence of any identifiable plan in place
for Thea, "inadequate" findings by the judge as to why
termination of parental rights would be in her interests, and
the possibility that she would return to live with her mother
after her eighteenth birthday, we not only remanded the case for
consideration of a plan but also vacated the portion of the
decree that terminated parental rights. Finally, in Adoption of
Stuart, 39 Mass. App. Ct. at 393, where the department presented
no adoption plans and there was no testimony regarding the type
of homes sought for the children, and the evidence did not
establish parental unfitness at the time of trial, we concluded
that the order terminating parental rights should be vacated. In
Adoption of Stuart, unlike the present case, the judge's entire
focus was on the mother's past unfitness. The judge overlooked
significant progress made by the mother since her children were
removed. Id. at 391-392. By contrast, in this case, the judge
found that the father had made no progress in addressing his
parenting deficiencies since the date of the failed effort at
family reunification in 2017. The department is "not required
to . . . relitigate the rights of an unfit parent" whenever
there is a change in circumstances. Adoption of Willow, 433 22
Mass. 636, 647-648 (2001). Here, for the reasons stated
earlier, the judge was warranted in concluding that there were
"grievous shortcomings" in the father's efforts to parent Varik
that placed Varik at serious the risk of harm, that would not be
remedied in the foreseeable future, and that justified the
termination of the father's parental rights. See Adoption of
Katharine, 42 Mass. App. Ct. 25, 28 (1997). As in Adoption of
Cadence, 81 Mass. App. Ct. at 174, we may remand the matter for
further proceedings with regard to the department's proposed
adoption plan without vacating that portion of the decree that
terminates the father's rights.14
Conclusion. We affirm the decree insofar as it adjudicates
Varik in need of care and protection under G. L. c. 119, § 26,
and terminates the father's parental rights pursuant to G. L.
14The father also argues that the judge abused her discretion in denying his request for a continuance. "Whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge . . . ." Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002). See Mass. R. Civ. P. 40 (b), 365 Mass. 802 (1974) ("Continuances shall be granted only for good cause"). The trial was originally scheduled to begin on April 9, 2018. It was continued to May 30, 2018, due to the judge's schedule. That date was agreed to by all counsel on April 30, 2018, a day when the father was present in court. On the trial date, the father's counsel did not know why his client was absent and was unable to reach him by phone. It was assumed that the father was working out of State. The judge noted that the case was more than two years old. Based on these considerations, the judge did not abuse her discretion in denying the motion to continue. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). 23
c. 210, § 3. We vacate that portion of the decree approving the
department's adoption plan and remand this matter so that the
judge may promptly, after an evidentiary hearing if necessary,
consider an adequate adoption plan.
So ordered.