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-137
ADOPTION OF WHITLEY (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from decrees issued by a judge of the
Juvenile Court terminating his parental rights to his daughter,
Whitley, and son, Allen, pursuant to G. L. c. 119, § 26, and
G. L. c. 210, § 3.2 The father asserts that several of the
judge's findings were clearly erroneous, that there was no nexus
between his mental health and his ability to parent the
children, that he substantially complied with his action plan,
and that the judge's finding of unfitness was based on stale
information. The father clearly loves his children. He has
1 Adoption of Allen. The children's names are pseudonyms.
2The judge also terminated the mother's parental rights. The mother has not appealed. The Department of Children and Families has been unable to locate the mother since 2019, and she has not contacted the department or attempted to contact the children since that time. made substantial progress, particularly as shown by his
maintaining employment at the Salvation Army. Nonetheless,
because the judge's conclusions that the father remained unfit
at the time of trial, and that his unfitness would continue
indefinitely into the future, are supported by clear and
convincing evidence, and the determination that termination of
parental rights is in the best interests of the children is
neither an abuse of discretion nor a clear error of law, we
affirm.
Facts. The Juvenile Court judge found the following facts.
1. The department's initial involvement. The father and
the mother had two children, Whitley and Allen. Although the
family first came to the attention of the Department of Children
and Families (department) in 2013, the events that led to this
care and protection proceeding began in February, 2017.
On February 11, 2017, the department received three reports
pursuant to G. L. c. 119, § 51A (§ 51A report), about the
family. All three § 51A reports alleged that the father had
thrown an object at the mother during a domestic dispute; one
report claimed this object was a doorknob and one claimed it was
a toolbox. The department investigated these allegations and
determined that they were supported. The department opened a
case for services for the family. At the time, the department
2 found that the children were safe in the mother's care but that
the father should not be in a primary caretaking role.
Later, in May, 2017, the department received and
investigated two more § 51A reports regarding the family. At
the time, the mother was ten weeks pregnant. The department
investigated these reports and learned that, on the day of the
incident alleged, the mother dropped the children off with the
maternal grandfather while she went to help a friend return a
rental car to Maine. The father appeared at maternal
grandfather's house, "reportedly drunk or high," and said he
planned to go to his sister's house and keep the children. The
mother and her friend came to retrieve the children, but when
she tried to leave with them, the father tried to block the door
and pushed her. The mother's friend reported that the father
kicked him in the face and kicked his car. The mother was
eventually able to leave with the children and her friend. As a
result of this incident, the father was arrested for assault and
battery on a pregnant person and incarcerated for ninety days.
In August, 2017, the father began living with the mother
and the children again. The mother eventually asked the father
to leave on New Year's Eve of that year.
The department received another § 51A report on January 12,
2018, alleging that the father had texted the reporter that the
3 mother was "falling off her wagon" and had sent the reporter a
photograph depicting the mother sleeping or unconscious in bed
with a plate containing three needles beside her. In the photo,
one of the children was in the bed with the mother, and the
other was in the same room.
After moving out of the mother's home, the father spoke to
the department's response worker and disclosed that he had been
concerned for the past several months that the mother was using
drugs. He shared a video recording with the response worker
that showed the mother screaming obscenities, accusing the
father of taking her "dope," and insisting that she had three
bags of heroin. In this video, Whitley could be seen walking
across the room during the parents' argument. Another video,
taken nine minutes before the first, showed Allen sitting in an
empty bathtub. The father explained that the mother was
supposed to give Allen a bath but forgot about him. The father
could not explain to the response worker why he had not reported
his concerns about the mother until after she required him to
leave the house.
Due to concerns that the mother was using drugs while the
children were in her care and that the father hid this fact and
allowed her drug use to take place in the children's presence,
the department filed a care and protection petition on January
4 23, 2018. That same day, the department obtained temporary
custody of the children.
2. The father's mental health, housing, substance use, and
action plan. The father has struggled with his mental health
throughout the department's involvement with the family. On
multiple occasions, the father has been hospitalized due to his
mental health. The father has been diagnosed with thought
disorder, bipolar disorder with psychotic features,
schizoaffective disorder, substance abuse, and opioid disorder,
with a question of schizophrenia. The father's symptoms have
included tangential speech, paranoia, and hallucinations. From
October, 2018, to August, 2019, the father took prescribed
anxiety medication. During this time, his presentation
improved; he presented with a clear and coherent thought process
and did not experience paranoid thoughts. In August, 2019,
however, the father began denying that he had any mental health
conditions and refused to follow his providers' recommendations
about psychiatric medication, including medication for his
bipolar disorder and antipsychotic medication. Since then, his
presentation declined; around providers, department staff and
members of the public, he presented with tangential speech,
racing thoughts, an inability to focus, and symptoms of
psychotic process, such as paranoia and visual hallucinations.
5 The Juvenile Court judge noted that some of the father's
testimony at trial seemed tangential and nonresponsive,
consistent with what his providers and department staff had
reported about his presentation.
The father has also experienced housing instability
throughout the pendency of this case. He has been homeless
since the mother stopped allowing him to live at her home. He
initially stayed at both the Shattuck Shelter and the Pine
Street Inn regularly. While at the Shattuck Shelter, the father
believed that the person sleeping in the bottom bunk of his bed
was intentionally shaking the bed to keep him awake all night.
He frequently used this experience to explain his presentation
and difficulties during this time. The father lived with a
friend in Medford for a period, but by the time of trial, the
father would sleep around the Salvation Army, where he worked,
or in a U-Haul storage unit. The father certainly deserves
credit for the work he has done to address his financial
situation; since January, 2020, he has worked at the Salvation
Army in Somerville and has also picked up odd jobs on
construction sites. At trial, the father testified that, if he
received custody of the children, he and the children would be
able to live with his sister. The judge, however, did not
6 credit this testimony given that the father admitted he had not
spoken to his sister about this plan.
The father also has a long history of alcohol and substance
misuse. At various times, the father has been dependent on
alcohol, cannabis, Vicodin, and heroin. He maintained that he
had been sober for over three years, but he had not consistently
provided drug screens to corroborate this, and the judge did not
credit his testimony on this point.
Towards the beginning of this proceeding, the father took
steps to comply with his family action plan. Although the exact
requirements of the action plan changed several times, some of
the key requirements included completing a batterer's program,
participating in individual therapy for his mental health and
substance misuse, meeting with his primary care physician weekly
for suboxone and drug screens, engaging in parenting support
groups, following his medical providers' recommendations
regarding medication, and pursuing stable housing.
The father completed a batterer's program. Despite this,
he denied ever being abusive towards the mother. He also
completed a Nurturing Father's Program and engaged in a
coeducational parenting group. The judge, however, found that
the father was later unable to identify what he learned from
these parenting services. At the time of trial, the father was
7 engaging in individual therapy and suboxone treatment. At the
same time, though, he was not completing the required drug
screens, nor was he following his providers' recommendations
about medication. The father also had not obtained appropriate
housing.
3. The children's placements. After the department
obtained temporary custody of the children, they were initially
both placed in the care of foster parent (first foster mother).
Shortly after they were placed with her, the first foster mother
reported that Whitley exhibited aggressive behaviors towards
Allen and that Whitley frequently threw tantrums and cried. As
a result, Whitley was moved to a different foster home (respite
home). Shortly after being placed in this respite home, Whitley
had bruises on her arms, back and buttocks and disclosed to a
department social worker that her respite foster mother
physically abused her. Despite this, the department kept
Whitley in this placement for another four days before moving
her to a temporary placement. The department eventually placed
Whitley with another foster parent (second foster mother).
Whitley remained in the second foster mother's care for nearly
four years. In April, 2022, the department returned Whitley to
the care of the first foster mother, reuniting the two children.
8 Allen lived with the first foster mother from January, 2018
until December, 2022. While there Allen, at times, displayed
inappropriate sexualized behaviors. Allen's therapist initially
determined these behaviors were developmentally appropriate.
These behaviors reemerged roughly one year later, and Allen was
referred to and engaged in therapy.
In August, 2019, the department changed the children's
permanency goal from reunification to adoption. When the trial
began in March, 2022, the department had not yet identified a
preadoptive resource for the children. During the course of the
trial, the department identified a preadoptive family, and that
family officially agreed to adopt the children in October, 2022.
This family consists of a middle-aged couple with a dog and no
children. They live in a two-floor home with a large fenced-in
yard and enough bedrooms for each child to have their own room.
There is evidence in the record that the children moved
into the preadoptive family's home in December, 2022, after the
close of trial, but before the judge issued her findings of fact
and conclusions of law in January 2024.
4. The father's visits with the children. The father has
consistently attended visits with the children. These visits
usually went well, the children responded positively to the
visits, and the department had limited concerns about the
9 visits. The father, at one point, had unsupervised visits with
the children, but these became supervised when a department
social worker observed the father crossing the street while
mumbling and leaving the children to cross on their own. The
father has also acknowledged that he sometimes felt overwhelmed
during visits.
5. The Juvenile Court judge's decision. Based on the
father's mental health, history of substance misuse, housing
instability, history of domestic violence and lack of insight
into these issues, the Juvenile Court judge found that the
father was unfit and that his unfitness was likely to continue
undiminished in the future. The judge also found that a
significant relationship existed between the father and the
children and ordered that the children receive posttermination
and postadoption visits with the father at least four times per
year.
Discussion. "In a proceeding to commit a child to the
custody of the department under G. L. c. 119, § 26, the
department bears the burden of proving, by clear and convincing
evidence, that a parent is currently unfit to further the best
interests of a child and, therefore, the child is in need of
care and protection." Care & Protection of Erin, 443 Mass. 567,
570 (2005). While the judge must find unfitness by clear and
10 convincing evidence, the judge's subsidiary findings need only
be proven by a fair preponderance of the evidence. Adoption of
Leland, 65 Mass. App. Ct. 580, 583 (2006). We will not disturb
the judge's findings of fact unless they are clearly erroneous.
Custody of Eleanor, 414 Mass. 795, 799 (1993). "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" (quotation and
citation omitted). Id. We review a judge's decision to
terminate parental rights for abuse of discretion or clear error
of law. Adoption of Elena, 446 Mass. 24, 30 (2006).
1. The judge's findings. The father argues that several
of the judge's findings are clearly erroneous. Therefore, he
contends, the judge's finding of unfitness was not supported by
clear and convincing evidence. All the findings he challenges
were adequately supported by the record. Consequently, the
judge's finding of unfitness was supported by clear and
convincing evidence.
The father first challenges finding of fact no. 48. In
this finding, the judge noted that several of the father's
responses during his testimony were tangential and
11 nonresponsive, consistent with what department staff and his
providers had reported about his presentation.
The judge found that, when asked which doctor he sees for
his mental health, the father responded,
"I went there for chemical dependency, so I started off where I got into an IOP and then I was let into therapy, and then because I was on a top bunk, which is a whole other story I don't want to get into, is why I was only sleeping two to three hours a night for one year, I was a walking insomniac and was dying."
The father argues that this statement made sense in the
larger context of his testimony and the questions preceding this
answer. Before this, the father was asked several questions
about his doctors, what he sees them for, and how frequently he
sees them. This context does not clarify this response. It was
not clear error for the judge to conclude that the father's
story about sleeping on the top bunk was nonresponsive and
tangential.
Next, the judge quoted the father's response to a question
about where he attended parenting classes in which he stated,
"[T]he first one I was in the shelter, so every time I went on a Wednesday, I had to stay out that night because I couldn't go back at 8 o'clock . . . some nights I already knew I was going to be out in the city all night long in a dangerous area, I mean there's people that would be scared of just walking down certain areas and neighborhoods whereas, me, I walk with God and don't engage in anger or violence."
12 The father argues that even though this statement was not
directly responsive to the question, it was related to it.
According to the father, he wanted the judge to know that he
attended parenting class even though he knew it meant he would
not be able to return to the shelter on the nights he had class.
The father's desire to inform the judge of this fact, however,
does not make it clear error for the judge to have concluded
that this statement was nonresponsive and tangential.
The judge also found that, in response to a question about
who prescribed his medication, the father responded that it was
his primary care physician, then continued to provide an
unrelated story about his cell phones going missing while he was
living on the street. The father again argues that context
shows this statement was responsive. Here, though, the context
makes this comment more tangential, rather than less. After
stating that it was his primary care physician who prescribed
him medication, the father went on to tell an unrelated story
about wanting to get a driver's license before, without
connecting the two stories, launching into his account of his
cell phones going missing. There was no clear error in the
judge's determination that this testimony was nonresponsive and
13 The judge found that the father's statement about calls
with the children during the pandemic -- "they called me but
there was still a time when I had absolute darkness that's
spoken of in the Bible, so I was in that then" -- was tangential
and nonresponsive. The father, again, tries to contextualize
this statement in his surrounding testimony. Again, context
does not help the father. The line of questioning that led to
this response began with "what happened with COVID and visits?"
While the father spoke at length about his experience during the
pandemic, he struggled to address how the COVID-19 pandemic
impacted his visits with the children. After being asked
whether he had visits on the phone with his children, the father
returned to the topic of how the pandemic impacted him by
describing the "absolute darkness" he experienced. There was no
clear error in finding that doing so was non-responsive and
tangential. Nor, as the father suggests, did the judge equate
his religious beliefs with mental illness, or rely upon those
beliefs in her finding of unfitness.
The judge found that the father's response to a question
about his nurse practitioner also demonstrated his presentation
issues. When asked whether a certain provider was his nurse
practitioner, the father stated, "This is the thing, is she the
nurse practitioner or am I me working at the Salvation Army and
14 helping others? I don't know." There was no clear error in the
judge's finding that this comment was nonresponsive and
The father's trial counsel asked him, "Why do you want
[your children] back," and the father responded, as recounted in
the judge's findings of fact, "Because the Bible says, you know,
God says we have children to raise." (The actual transcript
reads, "Because the bible says, you know, God says we have to
and to raise"). The father claims that it was clear error for
the judge to find that his statement was tangential and
nonresponsive. He argues that this statement merely reflects
his religious beliefs and how they influence his feelings about
his responsibilities to his children. Given that the judge
heard his testimony and witnessed his demeanor and that the
testimony does not compel the father's construction of it, we
cannot say it was clear error for the judge to conclude that
this comment was also nonresponsive and tangential.
The father also challenges finding no. 158 in which the
judge noted several comments the father made during clinical
interviews. The father, however, misunderstands this finding.
While he points to context and other testimony to argue that
these statements should not have been viewed negatively or seen
as significant, the judge merely found that the father made
15 these statements. Given that the father does not dispute that
he made them, he has not shown the judge's finding to be clearly
erroneous.
The father also argues that it was clear error for the
judge to find that he did not want to be "told how to live."
When asked whether he had seen some of his family action plans,
the father testified, "Yeah, but if you -- you can lean towards
always saying, 'Hey, what do I do next?' Then that's -- I'm
being told how to live . . . I don't want to be like that." The
father argues that the best reading of this testimony is that he
did not always ask for his family action plans because he did
not want to look like he needed to be told how to live. The
father's reasoning, however, does not render the judge's finding
that he did not want to be told how to live -- for whatever
reason -- clearly erroneous.
The father also disputes the judge's finding that he did
not feel the need to meet with the Department monthly. The
father's testimony, though, directly supports this finding.
After testifying that he did not meet with the department once a
month, he stated, "[W]hen I get a text or a call, then I'll show
up to anything, but until then, and then it can just be, well,
why would someone need this?" Based on this testimony, there
16 was no clear error in the judge's finding that the father did
not feel the need to meet with the Department monthly.
2. Nexus between the father's mental health and ability to
parent. A parent's "[m]ental disorder is relevant only to the
extent that it affects the parents' capacity to assume parental
responsibility, and ability to deal with a child's special
needs" (citation omitted). Adoption of Luc, 484 Mass. 139, 146
(2020). The father argues that there is no nexus between his
mental health and his ability to parent. The father also claims
that the judge's finding that he needed to be on medication,
which the judge relied on to conclude that he was unfit, is
clearly erroneous.
At the outset, the judge never found that the father needed
to be on medication. The father claims to find such a finding
in the judge's conclusions of law. The judge did not state that
the father needed to be on medication in her conclusions; she
merely noted that the father refused to follow his providers'
recommendations. The record and the judge's findings support
that the father has refused to follow his providers'
recommendations about psychiatric medication. To the extent the
judge's conclusions incorporate or rely on findings to that
effect, those findings are not clearly erroneous.
17 The judge also identified a sufficient nexus between the
father's mental health and his ability to parent. The judge
concluded that the father's symptoms -- including tangential
thoughts and paranoia -- and his refusal to follow the
recommendations of his providers would prevent him from engaging
with the children's providers and ensuring that they get the
services and treatment they need. The father's inability to
ensure that the children receive appropriate services and
treatment relates to his "ability to assume parental
responsibility." Adoption of Luc, 484 Mass. at 146.
3. The father's action plan. The father argues that he
substantially complied with his action plan. The judge
concluded otherwise. The judge noted that, although the father
had been compliant with portions of his plan, he refused to
cooperate with anything he personally disagreed with, most
notably his providers' recommendations about medication. The
judge also concluded that, even though the father had
participated in multiple parenting programs, he could not
explain what he learned or demonstrate any insight into his
parental shortcomings after attending these programs. The judge
pointed out that the father still lacked stable housing.
Finally, the judge noted that the father continued to deny his
history of domestic violence towards the mother and refused to
18 take responsibility for the events leading to the children's
removal. All these conclusions were supported by the record and
the judge's findings and demonstrate the father's failure to
comply with his action plan.
Regarding the father's housing instability in particular,
the father points to testimony from one of the department's
social workers that the department did not see the father's
housing situation as a barrier to reunification. This
testimony, though, only related to the period when the father
was living with his friend in Medford. By the time of trial,
the father had been asked to leave this house and was, at least
at times, sleeping in a U-Haul storage unit. The father also
testified that his sister would let him and the children stay
with her if he regained custody. As described above, the judge
did not credit this testimony, given that the father had not
spoken to his sister about this plan. The judge's conclusion
that the father lacked stable housing had support in the judge's
findings and the record. Neither a Salvation Army store nor a
storage unit amounts to stable housing.
4. Stale evidence. The father's final argument asserts
that the judge's finding of unfitness rested on stale
information about his history of domestic violence and mental
health. "[S]tale information cannot be a basis for a
19 determination of current parental unfitness." Adoption of
Rhona, 57 Mass. App. Ct. 479, 487 (2003), S.C., 63 Mass. App.
Ct. 117 (2005). In this case, the judge did not rely on any
stale information in finding the father unfit.
As to the father's history of domestic violence, the
judge's conclusions focused on his lack of insight and failure
to take responsibility for the conditions that led to the
children's removal. The father's lack of insight into and
unwillingness to accept responsibility for his past domestic
violence is a current condition, even though the underlying acts
of domestic violence happened in the past.
As far as the father's mental health, the judge also
focused on the father's lack of insight into his mental health
struggles, which, again, was a current condition. The judge
also found that the father's trial testimony exhibited the same
symptoms that the father's providers and department staff had
reported. Given that the father suffered from these symptoms at
the time of trial, as evidenced by his testimony, information
about his mental health was not stale.
Consequently, there was ample support for the judge's
finding of unfitness and no abuse of discretion or clear error
of law in the judge's decision to terminate the father's
parental rights.
20 5. The children's placement. Soon after assuming
temporary custody of the children, the department placed Whitley
in a respite foster home where the foster parent physically
abused her. Despite viewing bruises on Whitley and learning
from her that the respite foster parent abused her, the
department returned Whitley to the respite foster parent's care
for four days. At times in this proceeding, then, it appears
that while in the department's custody, Whitley, was neither
cared for nor protected. We trust, though, that the juvenile
court judge has ensured that the adoption plan for both children
is in both of their best interests.
Decrees affirmed.
By the Court (Rubin, Shin & Hodgens, JJ.3),
Clerk
Entered: April 25, 2025.
3 The panelists are listed in order of seniority.