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
23-P-1360
ADOPTION OF YONG. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge issued a
decree finding the father unfit to parent his son, Yong,
terminated the father's parental rights, and approved the
adoption plan proposed by the Department of Children and
Families (department). See G. L. c. 210, § 3. The judge
declined to order posttermination and postadoption visitation.
The father and Yong appeal. 2 The father claims that the evidence
of his unfitness was insufficient to support termination of his
parental rights. Both the father and Yong claim that the judge
abused his discretion by approving the department's adoption
plan and declining to order posttermination and postadoption
visitation. We affirm.
1 A pseudonym. 2The mother stipulated to the termination of her parental rights and is not a party to this appeal. 2
Background. In June 2021, the department assumed emergency
custody of Yong and his sisters 3 after receiving a report filed
pursuant to G. L. c. 119, § 51A, alleging neglect by the mother
due to mental health and substance misuse issues. 4 The father
was incarcerated at the time Yong was removed from the mother's
care. Yong was placed first with his maternal aunt, then in a
specialized foster home.
The trial occurred on June 27, 2023, at which the father
did not appear; Yong was almost fifteen years old at the time.
Ultimately the judge found that the father was "unable to
provide [Yong] with permanency currently and would be unable to
do so in the foreseeable future," and found it in Yong's best
interests to terminate the father's parental rights pursuant to
G. L. c. 119, § 26. The judge "considered the father's ability,
fitness, and readiness to assume parental responsibility, as
well as the fourteen (14) factors set forth at G. L. c. 210, § 3
(c)." This appeal followed.
Discussion. 1. Termination of parental rights. The
father challenges the sufficiency of the evidence supporting the
3 Yong's two sisters are not parties to or the subjects of this appeal.
4 The mother called police to report someone breaking into her apartment through a secret tunnel; on arrival, police found no intruders but found the mother to be in possession of "crack." She was hospitalized pursuant to G. L. c. 123, § 12. 3
termination of his parental rights and the judge's conclusions
of law regarding the statutory factors of parental unfitness.
"To terminate parental rights to a child and to dispense with
parental consent to adoption, a judge must find by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests." Adoption of Jacques, 82 Mass. App. Ct. 601,
606 (2012). The judge "must also find that the current parental
unfitness is not a temporary condition." Adoption of Virgil, 93
Mass. App. Ct. 298, 301 (2018). On appeal, "[w]e 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).
a. Sufficiency of the evidence. The father claims that
the evidence of his unfitness was not supported by clear and
convincing evidence. We are not persuaded. "Because the
termination of parental rights is an 'extreme step,' we require
that the judge articulate specific and detailed findings in
support of a conclusion that termination is appropriate,
demonstrating that []he has given the evidence close attention."
Adoption of Nancy, 443 Mass. 512, 514-515 (2005), quoting 4
Adoption of Frederick, 405 Mass. 1, 5 (1989). Here, the judge
made specific factual findings supporting his conclusion that
termination was appropriate, and considered a "constellation of
factors" that demonstrated the father's unfitness. Adoption of
Greta, 431 Mass. 577, 588 (2000).
i. Mental health history and substance misuse. The father
had an extensive history of mental health issues and substance
misuse. He reported diagnoses of depression, posttraumatic
stress disorder, and multiple personality disorders. He had
been prescribed medications, took them inconsistently, and been
hospitalized for suicidal ideations. The department made three
referrals for mental health supports, but the father engaged
sporadically in only one and it was discontinued due to lack of
attendance. The father's failure to recognize his need for
treatment or engage consistently in treatment was relevant to
the determination of unfitness. See Adoption of Luc, 484 Mass.
139, 146-147 (2020). See also Adoption of Frederick, 405 Mass.
at 9 (mental disorder relevant to extent it affects parent's
capacity to assume parental responsibility).
The judge also properly considered the father's misuse of
alcohol and illegal substances as a factor in unfitness. 5 See
5 The father had a history of using marijuana (although now legal) and continued to struggle with misuse of other illegal substances. He admitted that he had used cocaine, drank 5
Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (evidence
of alcohol or drug abuse "relevant to a parent's willingness,
competence, and availability to provide care"). Although the
father claimed that he had stopped using substances, he later
admitted to using again. The department referred the father for
a substance abuse evaluation, but the father did not follow up.
ii. Criminal history. The father contends that the judge
relied disproportionately on his criminal history, especially as
most of his convictions were over a decade old. A parent's
criminal history alone is not sufficient to terminate parental
rights; however, "[t]o the extent it bears on fitness, . . .
evidence of prior convictions may properly be weighed in the
balance." Care & Protection of Frank, 409 Mass. 492, 495
(1991). Evidence of a criminal record in relation to the
father's fitness was "germane" for the judge to consider. Care
& Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). The
judge did not err in considering the father's criminal history 6
as a factor in parental unfitness.
alcohol, smoked cigarettes and crack, and injected substances into his neck with a needle.
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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
23-P-1360
ADOPTION OF YONG. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge issued a
decree finding the father unfit to parent his son, Yong,
terminated the father's parental rights, and approved the
adoption plan proposed by the Department of Children and
Families (department). See G. L. c. 210, § 3. The judge
declined to order posttermination and postadoption visitation.
The father and Yong appeal. 2 The father claims that the evidence
of his unfitness was insufficient to support termination of his
parental rights. Both the father and Yong claim that the judge
abused his discretion by approving the department's adoption
plan and declining to order posttermination and postadoption
visitation. We affirm.
1 A pseudonym. 2The mother stipulated to the termination of her parental rights and is not a party to this appeal. 2
Background. In June 2021, the department assumed emergency
custody of Yong and his sisters 3 after receiving a report filed
pursuant to G. L. c. 119, § 51A, alleging neglect by the mother
due to mental health and substance misuse issues. 4 The father
was incarcerated at the time Yong was removed from the mother's
care. Yong was placed first with his maternal aunt, then in a
specialized foster home.
The trial occurred on June 27, 2023, at which the father
did not appear; Yong was almost fifteen years old at the time.
Ultimately the judge found that the father was "unable to
provide [Yong] with permanency currently and would be unable to
do so in the foreseeable future," and found it in Yong's best
interests to terminate the father's parental rights pursuant to
G. L. c. 119, § 26. The judge "considered the father's ability,
fitness, and readiness to assume parental responsibility, as
well as the fourteen (14) factors set forth at G. L. c. 210, § 3
(c)." This appeal followed.
Discussion. 1. Termination of parental rights. The
father challenges the sufficiency of the evidence supporting the
3 Yong's two sisters are not parties to or the subjects of this appeal.
4 The mother called police to report someone breaking into her apartment through a secret tunnel; on arrival, police found no intruders but found the mother to be in possession of "crack." She was hospitalized pursuant to G. L. c. 123, § 12. 3
termination of his parental rights and the judge's conclusions
of law regarding the statutory factors of parental unfitness.
"To terminate parental rights to a child and to dispense with
parental consent to adoption, a judge must find by clear and
convincing evidence, based on subsidiary findings proved by at
least a fair preponderance of evidence, that the parent is unfit
to care for the child and that termination is in the child's
best interests." Adoption of Jacques, 82 Mass. App. Ct. 601,
606 (2012). The judge "must also find that the current parental
unfitness is not a temporary condition." Adoption of Virgil, 93
Mass. App. Ct. 298, 301 (2018). On appeal, "[w]e 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).
a. Sufficiency of the evidence. The father claims that
the evidence of his unfitness was not supported by clear and
convincing evidence. We are not persuaded. "Because the
termination of parental rights is an 'extreme step,' we require
that the judge articulate specific and detailed findings in
support of a conclusion that termination is appropriate,
demonstrating that []he has given the evidence close attention."
Adoption of Nancy, 443 Mass. 512, 514-515 (2005), quoting 4
Adoption of Frederick, 405 Mass. 1, 5 (1989). Here, the judge
made specific factual findings supporting his conclusion that
termination was appropriate, and considered a "constellation of
factors" that demonstrated the father's unfitness. Adoption of
Greta, 431 Mass. 577, 588 (2000).
i. Mental health history and substance misuse. The father
had an extensive history of mental health issues and substance
misuse. He reported diagnoses of depression, posttraumatic
stress disorder, and multiple personality disorders. He had
been prescribed medications, took them inconsistently, and been
hospitalized for suicidal ideations. The department made three
referrals for mental health supports, but the father engaged
sporadically in only one and it was discontinued due to lack of
attendance. The father's failure to recognize his need for
treatment or engage consistently in treatment was relevant to
the determination of unfitness. See Adoption of Luc, 484 Mass.
139, 146-147 (2020). See also Adoption of Frederick, 405 Mass.
at 9 (mental disorder relevant to extent it affects parent's
capacity to assume parental responsibility).
The judge also properly considered the father's misuse of
alcohol and illegal substances as a factor in unfitness. 5 See
5 The father had a history of using marijuana (although now legal) and continued to struggle with misuse of other illegal substances. He admitted that he had used cocaine, drank 5
Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (evidence
of alcohol or drug abuse "relevant to a parent's willingness,
competence, and availability to provide care"). Although the
father claimed that he had stopped using substances, he later
admitted to using again. The department referred the father for
a substance abuse evaluation, but the father did not follow up.
ii. Criminal history. The father contends that the judge
relied disproportionately on his criminal history, especially as
most of his convictions were over a decade old. A parent's
criminal history alone is not sufficient to terminate parental
rights; however, "[t]o the extent it bears on fitness, . . .
evidence of prior convictions may properly be weighed in the
balance." Care & Protection of Frank, 409 Mass. 492, 495
(1991). Evidence of a criminal record in relation to the
father's fitness was "germane" for the judge to consider. Care
& Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). The
judge did not err in considering the father's criminal history 6
as a factor in parental unfitness.
alcohol, smoked cigarettes and crack, and injected substances into his neck with a needle.
6 The father had been charged with crimes involving property, robbery, alcohol, drugs, and crimes of violence. At the time of trial, the father had an open warrant for breaking and entering. 6
iii. Domestic violence. The judge also properly
considered the "extensive history of domestic violence" 7 between
the mother and the father, noting the "detrimental impacts on
children" of witnessing this kind of violence. See Custody of
Vaughn, 422 Mass. 590, 595 (1996) ("a child who has been either
the victim or the spectator of such abuse suffers a distinctly
grievous kind of harm"); Adoption of Zak, 87 Mass. App. Ct. 540,
543 (2015).
iv. Housing instability. The father's inconsistent
housing and inability to provide a stable environment for Yong
contributed to his unfitness. A judge may consider a parent's
"inability to secure 'adequate stable housing'" in determining
fitness. Adoption of Anton, 72 Mass. App. Ct. at 676, quoting
Adoption of Vito, 431 Mass. 550, 555 (2000). Unstable housing
may have a "deleterious effect" on a child, Adoption of Anton,
supra, and a parent's inability to provide a stable home is an
appropriate factor in determining fitness. See Care &
Protection of Three Minors, 392 Mass. 704, 713 n.11 (1984).
Around the time of trial, the father was reportedly living in a
tent in New Hampshire. He had not had reliable housing
throughout the pendency of this case and had been staying at
7 There were ten incidents of domestic violence between September 2014 and September 2022, some of which resulted in charges against the father. And there were three orders issued pursuant to G. L. c. 209A against the father. 7
friends' homes and in tents. The judge found that, even if
granted custody, the father had no home to which he could bring
Yong.
v. Engagement with the department. "Evidence of parents'
refusal to cooperate with the department, including failure to
maintain service plans and refusal of counseling programs, is
relevant to the determination of unfitness." Adoption of Rhona,
63 Mass. App. Ct. 117, 126 (2005). The judge found that the
father did not engage with the department on his family action
plan, and this lack of engagement "prevented him from making
observable changes throughout the pendency of this case and from
making sufficient progress towards the goal of reunification."
[RA126] The record supports these findings. The department's
action plan with the father included regular communication with
the department, engaging in therapy, completing various
evaluations, taking medications as prescribed, providing proof
of sobriety, maintaining stable housing, refraining from illegal
and illicit activities, and refraining from altercations with
the mother. The father did not engage in any of the services to
which he was referred by the department and did not take
responsibility for the circumstances leading to Yong's removal;
"rather, he blame[d] Mother and the Department." See Adoption
of Xarina, 93 Mass. App. Ct. 800, 803-804 (2018) (parent's 8
unfitness supported by findings of continued failure to engage
in services and work with department).
b. Negative inference against the father. The judge did
not err in drawing a negative inference from the father's
failure to appear and testify at trial. A negative inference
was permissible where the father failed to testify in a trial so
adverse to his interests that his failure to testify "would be a
fair subject of comment"; i.e., termination of his parental
rights. Custody of Two Minors, 396 Mass. 610, 616 (1986). See
Adoption of Talik, 92 Mass. App. Ct. 367, 372-373 (2017). While
"the adverse inference drawn from the failure of a party to
testify is not sufficient, by itself, to meet an opponent's
burden of proof," Custody of Two Minors, supra, the department
met its burden of proof with ample evidence of the father's
unfitness, aside from the father's failure to testify.
c. Conclusions of law. The father also contends that the
judge did not issue separate conclusions of law or evaluate the
fourteen statutory factors set forth in G. L. c. 210, § 3 (c).
"Although it would be better practice specifically to state the
reasons that termination is in the child's best interest, such
specificity is not required. The judge had discretion to
conclude that termination was appropriate." Adoption of Nancy,
443 Mass. at 516. As described supra, the findings of fact laid
out a myriad of reasons for the father's parental unfitness, 9
many of which corresponded to the statutory factors. And as in
Adoption of Larry, 434 Mass. 456, 470 (2001), the judge
"specifically stated that he considered each [of the factors].
He made specific findings as to the . . . factors that he
determined were applicable, and said nothing of the others.
That is all that was required of him." 8
2. Adoption plan. The father and Yong contend that the
judge abused his discretion in approving the department's plan
for adoption through recruitment. We review for abuse of
discretion. See Adoption of Hugo, 428 Mass. 219, 225-226
(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.
1034 (1999). "The adoption plan need not be fully developed to
support a termination order; it need only 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,
652-653 (2001), quoting Adoption of Vito, 431 Mass. at 568 n.28.
Here, the department had been searching for a kinship placement
and planned to recruit a preadoptive resource if a kinship
8 We acknowledge that the judge's comment that the decree was "going to issue in five minutes" could cast doubt on the quality of his review of the thousands of pages of exhibits entered in evidence. However, the testimonial evidence presented at trial alone was sufficient to support termination of the father's parental rights, and the record supports the judge's determination. See Adoption of Ilona, 459 Mass. at 59. 10
placement could not be located. The adoption plan described
Yong's preferences to be placed with "someone he already knows,"
remain in the same geographical area, have "others close to his
age in his foster home," continue to participate in programs
like the Boys and Girls Club, and continue contact with his
biological family. This was "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." Adoption of
Varik, 95 Mass. App. Ct. 762, 770-771 (2019).
The father and Yong further contend that it was error for
the judge to "rush" to terminate the father's rights where
adoption was unlikely due to Yong's opposition to adoption. See
G. L. c. 210, § 2 (child's consent required for adoption if
older than twelve years old). Yong's views about adoption were
unclear and equivocal. For example, he "expressed not wanting
to be adopted but not wanting to return to his parents' care."
But Yong also "report[ed] that if he cannot go home, he [was]
open to adoption." The judge considered Yong's wishes but did
not give them determinative weight, and he was not required to.
See Care & Protection of Georgette, 439 Mass. 28, 36 (2003). In
any case, consent to adoption is not a prerequisite to
termination. See Adoption of Nancy, 443 Mass. at 518. See also
G. L. c. 210, § 3 (b) (department authorized to commence 11
termination proceeding "independent of a petition for
adoption"). The evidence demonstrated the father's unfitness
and was supported by the record; it was within the judge's
discretion to determine that it was in Yong's best interest to
approve the adoption plan and terminate the father's parental
rights. See Adoption of Ilona, 459 Mass. at 59.
3. Posttermination and postadoption visitation. The
father and Yong claim it was error for the judge to decline to
order posttermination and postadoption visitation.
Specifically, the father contends that it was an error of law
for the judge to state that leaving the visitation determination
to the department was "about as far as [he could] go." "The
decision whether to grant posttermination visitation is within
the judge's sound discretion." Adoption of Cecily, 83 Mass.
App. Ct. 719, 727-728 (2012). However, "[a]n order for
posttermination visitation is unwarranted without adequate
findings by the judge that a significant bond exists between the
biological parent and the child and that continued contact would
be in the child's best interests." Id. at 728, citing Adoption
of John, 53 Mass. App. Ct. 431, 439 (2001). The father had
supervised visitation with Yong and his younger sister biweekly
for two hours. At the time of trial, the father had not
attended visitation for one month, and he had been approximately
one hour late to visits for several months. The judge properly 12
found that there was not a significant bond between the father
and Yong based on the father's inconsistent visitation. We
discern no abuse of discretion. See Adoption of Ilona, 459
Mass. at 64-66.
Decree affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ. 9),
Clerk
Entered: December 11, 2024.
9 The panelists are listed in order of seniority.