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-486
ADOPTION OF WYCK. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a 2024 decree issued by a judge of
the Juvenile Court terminating the father's parental rights as
to Wyck. 2 We affirm the decree.
Background. Wyck was removed from his mother's care when
he was approximately nine months old and was one week away from
turning four years old by the time the decree issued. The
father was incarcerated for the entirety of Wyck's life through
trial, having pleaded guilty to assault and battery on the
mother while she was pregnant with Wyck. As a result, Wyck has
1 A pseudonym.
2The mother was found unfit for reasons unrelated to the father, and her rights were also terminated. The mother did not file a notice of appeal, and she unfortunately died in February 2025. never been in the father's care and has interacted with the
father only during supervised visits.
The judge found the father unfit and terminated his
parental rights to Wyck based primarily on the father's history
of violent behavior, particularly his "ongoing and persistent
pattern" of intimate partner violence and his "inability to
refrain from criminal activity in time not incarcerated," 3
creating "a significant physical and emotional danger to
[Wyck]." The judge also considered that Wyck was not
meaningfully bonded to the father but was "extremely bonded"
with his preadoptive foster mother, and that the father had not
engaged fully with the services required to address the concerns
about his ability to parent Wyck.
Discussion. On appeal, the father does not contest his
unfitness at the time of trial; rather, he argues that his
unfitness was merely temporary. In particular, he argues that,
because his incarceration prevented him from accessing many of
the services set forth in his action plan, the Department of
Children and Families (department) did not make reasonable
3 The father has been charged with thirty-nine violent crimes and numerous nonviolent offenses. He was also the defendant in nine different c. 209A abuse prevention orders obtained by four different women (including both mothers of the father's older children) and has been charged with eleven violations of such orders. He was convicted and sentenced to from five to seven years in State prison for armed robbery and a stabbing.
2 efforts at reunification, and the judge did not properly account
for the father's limited access to such services in finding his
unfitness likely to continue indefinitely. Given these special
circumstances, the father argues, the termination of his
parental rights amounted to an abuse of discretion.
We review "to determine whether the judge's findings were
clearly erroneous and whether they proved parental unfitness by
clear and convincing evidence." Custody of Eleanor, 414 Mass.
795, 802 (1993). "[S]ubsidiary evidentiary findings need only
be proved by a fair preponderance of the evidence." Care &
Protection of Laura, 414 Mass. 788, 793 (1993). "We give
substantial deference to a judge's decision that termination of
a parent's rights is in the best interest of the child, 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. 53, 59 (2011).
1. Reasonable efforts. The father argues that the
department failed to make reasonable efforts at reunification
because it did not account for what services father actually had
access to while incarcerated, resulting in the father's action
plan including tasks that he was unable to complete. He argues
that the judge's erroneous finding that the department made
reasonable efforts warrants vacating the termination decree. We
are unconvinced.
3 First, the father's reasonable efforts argument is waived
as it was not sufficiently raised to the department or the
Juvenile Court judge. See Adoption of Mattis, 106 Mass. App.
Ct. 548, 549-550 (2026) (reasonable efforts claims subject to
ordinary waiver rules). The father did not at any time argue
that the department should have done more to provide him with
services while in prison, nor did he seek to delay the
termination proceedings until he was able to avail himself of
services that he was not able to access through the correctional
facility. Although the department was arguably on notice that
its action plan was not tasking father with "accessible,
available, and culturally appropriate services" 4 (citation
omitted), Care & Protection of Rashida, 488 Mass. 217, 219
(2021), the father did not at any time suggest what additional
or different efforts the department could and should have made
but did not. 5
4 The department's reports repeatedly state, "Due to [the father's] incarceration, [his] participation in his action plan is limited," indicating its awareness that at least some services were not available to the father.
5 The father argues, correctly, that 110 Code Mass. Regs. § 1.10 (2008) "recognizes the special efforts required" when a parent is incarcerated. While the listed requirements that the department provide regular visitation and hold case conferences at the correctional facility may not be exhaustive, the requirement of "special efforts" is still limited to those that are "reasonable." See id. Where the father has not argued that the department should have made particular additional or
4 Nor did the father make any effort to raise the issue to a
judge, such as by filing an "abuse of discretion" motion,
raising the issue at a case conference, or arguing the issue at
trial. 6 See Adoption of West, 97 Mass. App. Ct. 238, 242-243
(2020). To the contrary, in August 2023 -- over a year before
the review and redetermination trial -- a judge determined that
the department had made reasonable efforts at reunification, and
the father waived appeal. The father's reasonable efforts
argument is, therefore, waived.
Second, even if the father's argument had been preserved
and assuming arguendo that the department did fail to make
reasonable efforts, such circumstances would "not preclude the
court from making any appropriate order conducive to the child's
best interest," including an order terminating the father's
parental rights. Adoption of Ilona, 459 Mass. at 61, quoting
G. L. c. 119, § 29C. Because we conclude, infra, that the judge
alternative efforts, we have no basis to conclude that the regulation was not satisfied.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-486
ADOPTION OF WYCK. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a 2024 decree issued by a judge of
the Juvenile Court terminating the father's parental rights as
to Wyck. 2 We affirm the decree.
Background. Wyck was removed from his mother's care when
he was approximately nine months old and was one week away from
turning four years old by the time the decree issued. The
father was incarcerated for the entirety of Wyck's life through
trial, having pleaded guilty to assault and battery on the
mother while she was pregnant with Wyck. As a result, Wyck has
1 A pseudonym.
2The mother was found unfit for reasons unrelated to the father, and her rights were also terminated. The mother did not file a notice of appeal, and she unfortunately died in February 2025. never been in the father's care and has interacted with the
father only during supervised visits.
The judge found the father unfit and terminated his
parental rights to Wyck based primarily on the father's history
of violent behavior, particularly his "ongoing and persistent
pattern" of intimate partner violence and his "inability to
refrain from criminal activity in time not incarcerated," 3
creating "a significant physical and emotional danger to
[Wyck]." The judge also considered that Wyck was not
meaningfully bonded to the father but was "extremely bonded"
with his preadoptive foster mother, and that the father had not
engaged fully with the services required to address the concerns
about his ability to parent Wyck.
Discussion. On appeal, the father does not contest his
unfitness at the time of trial; rather, he argues that his
unfitness was merely temporary. In particular, he argues that,
because his incarceration prevented him from accessing many of
the services set forth in his action plan, the Department of
Children and Families (department) did not make reasonable
3 The father has been charged with thirty-nine violent crimes and numerous nonviolent offenses. He was also the defendant in nine different c. 209A abuse prevention orders obtained by four different women (including both mothers of the father's older children) and has been charged with eleven violations of such orders. He was convicted and sentenced to from five to seven years in State prison for armed robbery and a stabbing.
2 efforts at reunification, and the judge did not properly account
for the father's limited access to such services in finding his
unfitness likely to continue indefinitely. Given these special
circumstances, the father argues, the termination of his
parental rights amounted to an abuse of discretion.
We review "to determine whether the judge's findings were
clearly erroneous and whether they proved parental unfitness by
clear and convincing evidence." Custody of Eleanor, 414 Mass.
795, 802 (1993). "[S]ubsidiary evidentiary findings need only
be proved by a fair preponderance of the evidence." Care &
Protection of Laura, 414 Mass. 788, 793 (1993). "We give
substantial deference to a judge's decision that termination of
a parent's rights is in the best interest of the child, 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. 53, 59 (2011).
1. Reasonable efforts. The father argues that the
department failed to make reasonable efforts at reunification
because it did not account for what services father actually had
access to while incarcerated, resulting in the father's action
plan including tasks that he was unable to complete. He argues
that the judge's erroneous finding that the department made
reasonable efforts warrants vacating the termination decree. We
are unconvinced.
3 First, the father's reasonable efforts argument is waived
as it was not sufficiently raised to the department or the
Juvenile Court judge. See Adoption of Mattis, 106 Mass. App.
Ct. 548, 549-550 (2026) (reasonable efforts claims subject to
ordinary waiver rules). The father did not at any time argue
that the department should have done more to provide him with
services while in prison, nor did he seek to delay the
termination proceedings until he was able to avail himself of
services that he was not able to access through the correctional
facility. Although the department was arguably on notice that
its action plan was not tasking father with "accessible,
available, and culturally appropriate services" 4 (citation
omitted), Care & Protection of Rashida, 488 Mass. 217, 219
(2021), the father did not at any time suggest what additional
or different efforts the department could and should have made
but did not. 5
4 The department's reports repeatedly state, "Due to [the father's] incarceration, [his] participation in his action plan is limited," indicating its awareness that at least some services were not available to the father.
5 The father argues, correctly, that 110 Code Mass. Regs. § 1.10 (2008) "recognizes the special efforts required" when a parent is incarcerated. While the listed requirements that the department provide regular visitation and hold case conferences at the correctional facility may not be exhaustive, the requirement of "special efforts" is still limited to those that are "reasonable." See id. Where the father has not argued that the department should have made particular additional or
4 Nor did the father make any effort to raise the issue to a
judge, such as by filing an "abuse of discretion" motion,
raising the issue at a case conference, or arguing the issue at
trial. 6 See Adoption of West, 97 Mass. App. Ct. 238, 242-243
(2020). To the contrary, in August 2023 -- over a year before
the review and redetermination trial -- a judge determined that
the department had made reasonable efforts at reunification, and
the father waived appeal. The father's reasonable efforts
argument is, therefore, waived.
Second, even if the father's argument had been preserved
and assuming arguendo that the department did fail to make
reasonable efforts, such circumstances would "not preclude the
court from making any appropriate order conducive to the child's
best interest," including an order terminating the father's
parental rights. Adoption of Ilona, 459 Mass. at 61, quoting
G. L. c. 119, § 29C. Because we conclude, infra, that the judge
alternative efforts, we have no basis to conclude that the regulation was not satisfied.
6 To the extent that the father raised any reasonable efforts argument at trial, it concerned the department's failure to make reasonable efforts at a kinship placement. The father does not press this argument on appeal; the ones he does press were not raised below and so are waived. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 442 (2006) (issue not preserved where party's objection below was on grounds other than those argued on appeal); Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005) (parents' failure to raise visitation issue before termination of rights resulted in waiver).
5 did not err or abuse her discretion in finding the father unfit
and concluding that termination was in Wyck's best interests,
the father's reasonable efforts argument does not entitle him to
relief.
2. Unfitness. The father argues that it was premature for
the judge to find his unfitness likely to continue into the
indefinite future, because the gains he made while incarcerated
had not yet been tested in the community. Because the father
does not challenge any of the judge's factual findings as
clearly erroneous, we address only whether "the judge's findings
prove parental unfitness by clear and convincing evidence."
Custody of Eleanor, 414 Mass. at 801. We conclude that she did
not.
Here, the judge found the father's future unfitness likely
based on his history of violent behavior, coupled with his
present lack of insight into how that behavior affects his
ability to parent Wyck. Specifically, the judge found that the
father "has exhibited an inability to refrain from criminal
activity [when] not incarcerated" and that his "history of
violent and non-violent criminal behavior suggests a level of
instability and a lack of safety that do not serve [Wyck's]
needs." Moreover, the judge found that the father continued to
lack accountability and insight into how his history of violent
behavior could affect Wyck. In so finding, the judge considered
6 the father's refusal to acknowledge that his own violence caused
the multiple previous abuse prevention orders against him and
his incarceration at the time of trial; he also stated to a
foster care review panel that his past "has nothing to do with
his son."
Although the judge recognized the father's voluntary
participation in services provided by the correctional facility, 7
recent improvements are not dispositive, particularly where not
accompanied by increased insight into the impact of past
shortcomings on a child, as here. See Adoption of Paula, 420
Mass. 716, 729-730 (1995). Furthermore, "the judge is not
required to grant the father an indefinite opportunity for
reform" (citation omitted), Adoption of Cadence, 81 Mass. App.
Ct. 162, 169 (2012), nor may a judge postpone dispensing with
consent based on a "faint hope" that a parent may later become
fit. Adoption of Inez, 428 Mass. 717, 723 (1999). The father
here has not suggested how long after his release from
incarceration he would need to become a fit parent, and Wyck has
Notably, however, the judge also found that the father 7
"vehemently refused to engage in substance abuse related treatment," despite significant concerns about his history of cocaine use, the inclusion of such treatment as an action plan task, and its availability to the father while incarcerated. Although the father argues that there was no support in the record for a finding that he had a substance abuse problem that he needed to address, we are not persuaded. For example, the judge credited a social worker's testimony that the father showed signs of intoxication during a 2024 virtual home visit.
7 already spent more than three of the four years of his life in
foster care. See Adoption of Nancy, 443 Mass. 512, 517 (2005)
("Stability in the lives of children is important"). Thus, the
judge did not abuse her discretion by finding the father's
unfitness likely to persist indefinitely.
"Once a parent is found to be unfit, the judge must then
ascertain whether the parent's unfitness is such that it would
be in the child's best interests to end all legal relations
between parent and child" (quotations and citation omitted).
Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). "In
determining whether the best interests of the child will be
served" by dispensing with the father’s need for consent, the
judge must "consider the ability, capacity, fitness, and
readiness" of the father to assume parental responsibility as
well as the plan proposed by the department. G. L. c. 210,
§ 3 (c). Here, the judge properly applied the required factors
set forth in G. L. c. 210, § 3 (c) -- including factors (ii)-
(iv), (vii), (viii), and (xii) 8 -- as well as the department's
permanency plan for Wyck. Considering the longstanding and
8 The judge applied additional factors to Wyck's situation as well, without distinguishing whether these applied as a result of the mother or father independently. The factors we have cited above were sufficient to conclude that the best interests of Wyck would be served by terminating the father's rights, even if additional factors might also apply.
8 likely permanent nature of the father's unfitness, what the
judge determined was a significant likelihood of harm to Wyck if
he were placed in the father's care, and Wyck's lack of
meaningful bond with his father and contrasting strong bond with
his preadoptive foster mother, it was not an abuse of discretion
for the judge to find that terminating the father's rights
served Wyck's best interests.
Decree affirmed.
By the Court (Rubin, Sacks & Smyth, JJ. 9),
Clerk
Entered: April 22, 2026.
9 The panelists are listed in order of seniority.