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-725
ADOPTION OF VIOLA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a decree entered in the Juvenile Court
terminating his parental rights, the father challenges the trial
judge's finding that he is unfit and the termination of his
parental rights.2 We affirm.
Background. We summarize the trial judge's findings of
fact, reserving certain details for further discussion. The
Department of Children and Families (department) filed a care
and protection petition in January 2020 and was subsequently
granted temporary custody of Viola (the child). In February
2023, the father entered a stipulation to a finding of
unfitness, and permanent custody of Viola was granted to the
1 A pseudonym.
2The mother did not attend the trial and is not part of this appeal. department. A review and redetermination hearing pursuant to
G. L. c. 119, § 26, took place in March and April 2024, after
which a Juvenile Court judge found that the father continued to
be unfit and that it was in Viola's best interests that the
father's parental rights be terminated.
Discussion. "When reviewing a decision to terminate
parental rights, we must determine whether the trial judge has
abused [her] discretion or committed a clear error of law."
Adoption of Elena, 446 Mass. 24, 30 (2006). The decision to
dispense with consent to adoption because the parent is unfit to
care for the child and termination is in the child's best
interests must be supported by "clear and convincing evidence,
based on subsidiary findings proved by at least a fair
preponderance of evidence." Adoption of Darlene, 99 Mass. App.
Ct. 696, 702 (2021). "Parental unfitness . . . means more than
ineptitude, handicap, character flaw, conviction of a crime,
unusual life style, or inability to do as good a job as the
child's foster parent. Rather, the idea of parental unfitness
means grievous shortcomings or handicaps that put the child's
welfare much at hazard" (quotations and citation omitted). Id.
Ultimately, "the welfare of the child is the most important
consideration in determining whether the parents are fit to care
for their child." Bezio v. Patenaude, 381 Mass. 563, 574
(1980).
2 1. Domestic violence. Domestic violence is "highly
relevant to a judge's determination of parental unfitness."
Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). The
child reported that the father had hurt the mother on several
occasions. On one occasion in 2019, the child witnessed the
father, who had broken into the mother's home, assault the
mother by grabbing her by the throat and choking her.
Afterward, the child reported that she was unable to sleep
because she feared the father would break in through the window
again. See Adoption of Flavia, 104 Mass. App. Ct. 40, 49 (2024)
("[i]t is well established that exposure to domestic violence
works a distinctly grievous kind of harm on children that can
include imperiling their physical safety and psychological
development" [quotation and citation omitted]).
The father has not developed insight into how his actions
have affected the child. The father denies that any domestic
violence has occurred, and he refused to participate in an
intimate partner violence intervention program because he was
concerned that he would get into a fight with someone at the
program. See Adoption of Lisette, 93 Mass. App. Ct. 284, 294
n.15 (2018) ("parent's willingness to ignore or minimize abusive
behavior can be an indicator of unfitness, regardless of whether
the child is at risk of abuse").
3 The judge's findings about the father's history of domestic
violence, minimization of and inability to understand the
effects of that violence, and failure to benefit from programs
designed to address domestic violence were all amply supported
by the evidence. The evidence supported the judge's conclusion
that the father's failure "to acknowledge the trauma to the
child, how his own violent behavior caused it, or to engage in
necessary services to acquire the skills to meet Viola's need
for safe and responsible caregiving" Moreover, the judge's
conclusion that the "father's shortcomings are severe and likely
to continue undiminished into the future" was supported by the
judge's findings.
2. The father's criminal history and lack of contact with
the child. Consideration of a parent's criminal history bearing
on parental fitness is "germane" in care and protection
proceedings, to the extent that it has "a bearing on his fitness
as a parent." Care & Protection of Quinn, 54 Mass. App. Ct.
117, 125 (2002). The father has served time in State prison for
his convictions for numerous crimes, many of which were violent
and which include possession of a firearm, assault by means of a
dangerous weapon, and breaking and entering with the intent to
commit a felony. The judge found that two of the father's
prison sentences stemmed from his use of a motor vehicle to
4 commit assault and battery and that his history of violence and
impulsivity pose a danger to Viola.
The father was incarcerated during the child's birth and
was not released until she was seven years old. He was
incarcerated again at the inception of trial. Since the child's
removal in 2020, the father has had no contact with her. The
child has reported that she hates him and is fearful of him.
She also testified at trial that she does not like him, does not
want to live with him, and wants his parental rights terminated.
The judge properly considered the father's violent criminal
history, and her findings demonstrate a sufficient link between
that history and his inability to provide adequate care for the
child. See Custody of Two Minors, 396 Mass. 610, 621 (1986)
("The court is permitted to assess prognostic evidence derived
from prior patterns of parental neglect or misconduct in
determining future fitness").
3. Continued unfitness. At trial, 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). "Because
childhood is fleeting, a parent's unfitness is not temporary if
Free access — add to your briefcase to read the full text and ask questions with AI
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-725
ADOPTION OF VIOLA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a decree entered in the Juvenile Court
terminating his parental rights, the father challenges the trial
judge's finding that he is unfit and the termination of his
parental rights.2 We affirm.
Background. We summarize the trial judge's findings of
fact, reserving certain details for further discussion. The
Department of Children and Families (department) filed a care
and protection petition in January 2020 and was subsequently
granted temporary custody of Viola (the child). In February
2023, the father entered a stipulation to a finding of
unfitness, and permanent custody of Viola was granted to the
1 A pseudonym.
2The mother did not attend the trial and is not part of this appeal. department. A review and redetermination hearing pursuant to
G. L. c. 119, § 26, took place in March and April 2024, after
which a Juvenile Court judge found that the father continued to
be unfit and that it was in Viola's best interests that the
father's parental rights be terminated.
Discussion. "When reviewing a decision to terminate
parental rights, we must determine whether the trial judge has
abused [her] discretion or committed a clear error of law."
Adoption of Elena, 446 Mass. 24, 30 (2006). The decision to
dispense with consent to adoption because the parent is unfit to
care for the child and termination is in the child's best
interests must be supported by "clear and convincing evidence,
based on subsidiary findings proved by at least a fair
preponderance of evidence." Adoption of Darlene, 99 Mass. App.
Ct. 696, 702 (2021). "Parental unfitness . . . means more than
ineptitude, handicap, character flaw, conviction of a crime,
unusual life style, or inability to do as good a job as the
child's foster parent. Rather, the idea of parental unfitness
means grievous shortcomings or handicaps that put the child's
welfare much at hazard" (quotations and citation omitted). Id.
Ultimately, "the welfare of the child is the most important
consideration in determining whether the parents are fit to care
for their child." Bezio v. Patenaude, 381 Mass. 563, 574
(1980).
2 1. Domestic violence. Domestic violence is "highly
relevant to a judge's determination of parental unfitness."
Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). The
child reported that the father had hurt the mother on several
occasions. On one occasion in 2019, the child witnessed the
father, who had broken into the mother's home, assault the
mother by grabbing her by the throat and choking her.
Afterward, the child reported that she was unable to sleep
because she feared the father would break in through the window
again. See Adoption of Flavia, 104 Mass. App. Ct. 40, 49 (2024)
("[i]t is well established that exposure to domestic violence
works a distinctly grievous kind of harm on children that can
include imperiling their physical safety and psychological
development" [quotation and citation omitted]).
The father has not developed insight into how his actions
have affected the child. The father denies that any domestic
violence has occurred, and he refused to participate in an
intimate partner violence intervention program because he was
concerned that he would get into a fight with someone at the
program. See Adoption of Lisette, 93 Mass. App. Ct. 284, 294
n.15 (2018) ("parent's willingness to ignore or minimize abusive
behavior can be an indicator of unfitness, regardless of whether
the child is at risk of abuse").
3 The judge's findings about the father's history of domestic
violence, minimization of and inability to understand the
effects of that violence, and failure to benefit from programs
designed to address domestic violence were all amply supported
by the evidence. The evidence supported the judge's conclusion
that the father's failure "to acknowledge the trauma to the
child, how his own violent behavior caused it, or to engage in
necessary services to acquire the skills to meet Viola's need
for safe and responsible caregiving" Moreover, the judge's
conclusion that the "father's shortcomings are severe and likely
to continue undiminished into the future" was supported by the
judge's findings.
2. The father's criminal history and lack of contact with
the child. Consideration of a parent's criminal history bearing
on parental fitness is "germane" in care and protection
proceedings, to the extent that it has "a bearing on his fitness
as a parent." Care & Protection of Quinn, 54 Mass. App. Ct.
117, 125 (2002). The father has served time in State prison for
his convictions for numerous crimes, many of which were violent
and which include possession of a firearm, assault by means of a
dangerous weapon, and breaking and entering with the intent to
commit a felony. The judge found that two of the father's
prison sentences stemmed from his use of a motor vehicle to
4 commit assault and battery and that his history of violence and
impulsivity pose a danger to Viola.
The father was incarcerated during the child's birth and
was not released until she was seven years old. He was
incarcerated again at the inception of trial. Since the child's
removal in 2020, the father has had no contact with her. The
child has reported that she hates him and is fearful of him.
She also testified at trial that she does not like him, does not
want to live with him, and wants his parental rights terminated.
The judge properly considered the father's violent criminal
history, and her findings demonstrate a sufficient link between
that history and his inability to provide adequate care for the
child. See Custody of Two Minors, 396 Mass. 610, 621 (1986)
("The court is permitted to assess prognostic evidence derived
from prior patterns of parental neglect or misconduct in
determining future fitness").
3. Continued unfitness. At trial, 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). "Because
childhood is fleeting, a parent's unfitness is not temporary if
it is reasonably likely to continue for a prolonged or
5 indeterminate period." Adoption of Ilona, supra at 60. In
assessing whether a parent's unfitness is likely to continue
indefinitely, a judge may consider "past conduct, medical
history, and present events to predict future ability and
performance as a parent." Care & Protection of Bruce, 44 Mass.
App. Ct. 758, 761 (1998).
There was ample evidence in the record that the father's
unfitness was likely to continue indefinitely. He admitted to a
substance abuse problem and Viola observed drug paraphernalia in
the home before her removal. The father failed to engage in
most of the services offered to him and has been unable to
maintain a sober lifestyle or complete any necessary counseling
programs to address his issues. Additionally, his long criminal
history has led him to be incarcerated and thus absent for much
of the child's life. It was not error for the judge to conclude
that the father's unfitness was likely to continue for a
prolonged or indeterminate period.
4. Erroneous finding. We find unavailing the father's
argument that the judge erred in finding that Viola hates and
fears her father and would reject any current or future contact
with him. In her findings, the judge attributed Viola's
statements to reports filed pursuant to G. L. c. 119, § 51A (51A
reports) and ruled that the 51A reports were admitted to "set
the stage." Though erroneous, based on our review of the record
6 we find this misattribution to be harmless error, as the
contested findings are supported by other evidence. See Care &
Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003)
(findings supported by evidence or that contain immaterial
errors are not clearly erroneous). That Viola stated to a
department investigator in February 2020 that "[Father] sucks
and [I hate] him" appeared in a report filed under G. L. c. 119,
§ 51B. That statement was properly admitted and considered by
the judge, particularly where the child testified in camera at
trial that she didn't like the father and the father's attorney,
when given the opportunity, declined to ask additional
questions. The contested findings were sufficiently supported.
See Adoption of Luc, 484 Mass. 139, 152-154 (2020).
Decree affirmed.
By the Court (Meade, D'Angelo & Tan, JJ.3),
Clerk
Entered: April 16, 2026.
3 The panelists are listed in order of seniority.