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25-P-96 Appeals Court
CARE AND PROTECTION OF GASTON1 (and one companion case2).
No. 25-P-96.
Bristol. October 10, 2025. – January 16, 2026.
Present: Hand, Hodgens, & Tan, JJ.
Parent and Child, Custody of minor, Care and protection of minor, Adoption, Dispensing with parent's consent to adoption. Minor, Care and protection, Custody, Adoption. Department of Children & Families. Adoption, Dispensing with parent's consent, Foster parents. Probate Court, Custody of child, Findings by judge. Interstate Compact on Placement of Children. Practice, Civil, Care and protection proceeding, Findings by judge.
Complaint filed in the Bristol Division of the Probate and Family Court Department on May 30, 2019.
Petition filed in the Bristol Division of the Probate and Family Court Department on January 27, 2022.
Following an order entered by Susan L. Jacobs, J., transferring care and custody of the child to the Department of Children and Families, the cases were heard by Richard J. McMahon, J.
1 A pseudonym.
2 Paternity of Gaston. 2
Tsvetelina Gerova-Wilson for the father. David A. Runkle for the child. Jeremy Bayless for Department of Children and Families.
TAN, J. The Department of Children and Families
(department) filed a petition to terminate the parental rights
of the father and the mother to their child, Gaston.3 Following
a trial, a judge of the Probate and Family Court found the
father unfit to parent Gaston and that this unfitness would
remain for the foreseeable future, but he also found that it was
not in Gaston's best interests to terminate the father's
parental rights and denied the department's petition to dispense
with the father's consent to adoption.4 The judge did not
explicitly address the department's permanency plan of adoption
in his findings and instead concluded that Gaston's "current
circumstances [were] in furtherance of his best interests."5 The
judge also denied the father's motion for a finding that the
3 In June 2019, a different judge sua sponte transferred custody of Gaston to the department pursuant to G. L. c. 119, § 23 (a) (3).
4 The judge entered a decree terminating the mother's parental rights to Gaston. The mother has not appealed from that decree.
5 The judge also entered a final judgment on the father's complaint to establish paternity. The father's name did not appear on the birth certificate; he established paternity in February 2022. 3
department abused its discretion by not providing additional
parenting time (motion for abuse of discretion).6 See Care &
Protection of Rashida, 488 Mass. 217, 221-222 (2021). The
father appeals from the judge's decision finding him unfit and
the denial of his motion for abuse of discretion. The
department and the child appeal from the judge's dismissal of
the department's petition seeking to terminate the father's
parental rights. We affirm the finding of the father's
unfitness and the denial of the father's motion for abuse of
discretion, but, where the judge did not assess the department's
adoption plan and did not specify his reasons for concluding
that maintaining Gaston in his "current circumstances" was in
the child's best interests, we remand the matter to the Probate
and Family court for additional proceedings consistent with this
opinion.
Background. We summarize the trial judge's findings of
fact, which are not disputed.
1. Overview. The parents were engaged in a brief
relationship over three months in late 2015 to early 2016. The
mother became pregnant, was incarcerated during the pregnancy,
6 On July 17, 2023, the judge ordered that the father's motion be consolidated with the trial. 4
and gave birth to Gaston during her incarceration. The father
resided in Connecticut.
Following his birth in October 2016, Gaston was placed in
the care of his maternal grandfather. In July 2018, Gaston was
placed in the care of a maternal cousin and her spouse, who were
appointed as Gaston's temporary guardians in August 2018. They
resigned as his guardians in June 2019, and a different judge
sua sponte transferred custody of Gaston to the department. In
February 2020, the department placed Gaston with foster parents,
who became his preadoptive parents, and he remains with the same
family. The department initially identified reunification as
Gaston's permanency goal and worked with the parents to prepare
for reunification.
2. The father's compliance with the department's action
plan. The father's tasks on his action plan at the time of
trial included, inter alia, meeting monthly with the
department's social worker; refraining from "substance use
(illicit substances and marijuana)"; following recommendations
of therapeutic providers; notifying the department of any
changes within the household; taking medication as prescribed by
physicians to mitigate any mental or medical health issues;
completing a neuropsychological evaluation, providing a copy to
the department, and following any recommendations; abiding by
the "family time visitation schedule," ensuring that visits are 5
confirmed, and maintaining consistency; and providing requested
information about his relationship pertaining to the
department's assessment of his partner.
During the pendency of the case, the father completed some
of the action plan tasks, including completing a parenting
assessment and parenting classes, but never provided the
department with a neuropsychological evaluation or written
transition plan for a reunification with Gaston. The father
told the social worker that he had been diagnosed with bipolar
disorder, depression, and an addictive personality. The father
did not take his medication as prescribed to him by his doctor,
preferring to smoke marijuana to reduce his stress.
In June 2020, the father told the department that he was
unsure if he wanted Gaston to be placed with him and reported
that he felt defeated and overwhelmed because of changes in his
family dynamic, conflict with his partner, work, and a lack of
support.
At the foster care review on February 16, 2022, the father
was "expelled" from the meeting because of his "verbal
behavior."
3. The father's visitation. The father had several in-
person visits with Gaston between September 2019 and January
2020, and there were no reported concerns with the visits. At 6
the onset of the COVID-19 pandemic, the department began
providing parenting time through virtual visits.
The father's job as a truck driver required extensive
travel, causing him to miss parenting time. On average, the
father missed every other virtual visit, even when he had
confirmed the appointments. In July 2021, the department
offered the father extra visitation at a visitation center, but
the father refused the visits and declined virtual evening
visits with the child. He told the social worker that he was
not taking any suggestions from the department and alleged that
Gaston was being mentally abused. In July 2021, the father
requested that his visits with Gaston take place every other
week instead of once a week because of the stress of the case
and the drive to and from the visits. The department told the
father that they could discuss unsupervised visits and overnight
visits once he started visiting Gaston more frequently and
things were going well. Following a June 2022 visit, the father
decided to have virtual visits because he did not feel
comfortable having in-person visits in the department offices
where police officers were present.
The child told the social worker that he wants to visit the
father and likes visiting with him. The department made several
attempts to implement a parenting schedule with the father, but
the father's job prevented him from maintaining a consistent 7
schedule with Gaston. The father and Gaston began in-person
visits in visitation centers starting in March 2023. After
three visits, the visitation center terminated the visits
because of reported concerns by the staff. During his visits at
the center, the father complained to the center staff about the
department. There were also concerns about the father's
frustration when Gaston was struggling with an activity and the
father's inability to effectively communicate with him. In
April 2023, the department offered the father a parenting plan
that alternated virtual and in-person visits to limit the
father's driving time. In September 2023, the department
contacted the father to create a visitation schedule, but the
father stated that he could not adhere to a schedule.
4. Interstate Compact on the Placement of Children (ICPC).
In July 2020, the department requested that the Connecticut
Department of Children and Families (Connecticut department)
conduct an ICPC study of the father's home to determine whether
the department could place Gaston with the father. In December
2020, the department received the Connecticut department's ICPC
decision approving placement in the father's home. However, the
ICPC report noted that the father was on the Connecticut
department's list of perpetrators of physical abuse or neglect,
and after receiving the report the department placed a hold on
transitioning Gaston to the father. Following concerns 8
identified in the ICPC report about the father's past cocaine
use, the department asked him to provide a hair follicle test.
The father provided the department hair follicle test results
showing that he tested negative for all substances except
marijuana, for which he informed the department that he had a
medical card. The department also asked the father to provide
identifying information about his partner, whom he named in the
ICPC report as a potential caregiver for Gaston.
In February 2022, the father told the department social
worker that he, his family, and his fiancée7 did not want any
services. The social worker responded that the department
needed to fully assess his partner as a caregiver to ensure the
safety of his home.
That same month, the department requested a second ICPC
home study after the first ICPC home study expired. The second
ICPC home study was subsequently approved but later closed by
the department.
5. The child. In January 2022, the department changed its
primary permanency goal for Gaston to adoption. The foster
parents have been Gaston's longest caregivers and were approved
for adoption in April 2023. The department's adoption plan is
to sponsor the adoption of Gaston with his foster parents, to
7 The father testified at trial that he and his partner were engaged. 9
whom Gaston has formed an attachment and refers as "Mom" and
"Dad." The foster parents have ensured that Gaston receives
regular medical and dental care. They have provided Gaston with
consistency and routine, and he has become used to the structure
in the foster home.
At the time of trial, Gaston had special education needs
and there were concerns about his reading ability and a speech
delay. Gaston had an individualized education plan (IEP);
received small group instruction and assistance outside the
classroom; and required cues, extra repetition, and multiple
directions.
Discussion. The judge made written findings including
detailed findings about the father's unfitness and its
likelihood of continuing indefinitely. However, he made no
findings about whether the department's plan of adoption served
the child's best interests, instead concluding that the child's
"current circumstances" did so.
1. Standard of review. "In deciding whether to terminate
a parent's rights, a judge must determine whether there is clear
and convincing evidence that the parent is unfit and, if the
parent is unfit, whether the child's best interests will be
served by terminating the legal relation between parent and
child." Adoption of Ilona, 459 Mass. 53, 59 (2011). "[A] judge
must decide both whether the parent is currently unfit and 10
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" (quotations and citations omitted).
Id. In determining whether the parent's unfitness is temporary,
the judge must consider factors including whether "there is a
reasonable expectation that the parent will not be able to
provide proper care or custody within a reasonable time
considering the age of the child." G. L. c. 210, § 3 (c) (vi).
Because termination of parental rights is an "extreme step,"
"[t]he natural bond between parent and child should not be
permanently severed unless the child's present or future welfare
demands it." Adoption of Carlos, 413 Mass. 339, 350 (1992).
"Parental unfitness is determined by considering a parent's
character, temperament, conduct, and capacity to provide for the
child's particular needs, affections, and age." Care &
Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).
"[W]e require that the judge articulate specific and
detailed findings in support of a conclusion that termination is
appropriate, demonstrating that [the judge] has given the
evidence close attention." Adoption of Nancy, 443 Mass. 512,
514-515 (2005). "Subsidiary findings must be supported by a 11
preponderance of evidence, . . . and none of the findings will
be disturbed unless clearly erroneous."8 Id. at 515.
On review, "we must determine whether the trial judge
abused his discretion or committed a clear error of law."
Adoption of Elena, 446 Mass. 24, 30 (2006). The judge's fitness
determination must be supported by "specific and detailed"
findings that demonstrate parental unfitness by clear and
convincing evidence. Custody of Eleanor, 414 Mass. 795, 799
(1993). "Unless shown to be clearly erroneous, we do not
disturb the judge's findings, which are entitled to substantial
deference." Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607
(2012). "We accord deference to a trial judge's assessment of
the credibility of witnesses and the weight of the evidence."
Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011).
2. The father's unfitness. The father contends that the
evidence was insufficient to support the judge's finding of
unfitness because the judge gave improper weight to the father's
lack of parenting time where the department "exercised absolute
power and control" over the father's time with the child. We
8 None of the parties argue that the findings of fact are clearly erroneous. 12
disagree and conclude that the judge did not err in finding the
father unfit.
The evidence at trial supported the judge's findings that
the father failed to visit Gaston consistently and failed to
make progress toward unsupervised or overnight visits. When
determining a parent's fitness, one factor a judge shall
consider is the willful failure to visit a child when the child
is not in the parent's custody. G. L. c. 210, § 3 (c) (x). See
Care & Protection of Vick, 89 Mass. App. Ct. at 708. Although
the father's employment constraints contributed to his
unavailability for some visits, the judge properly found that
the father "contributed substantially to the lack of progress in
expanding his relationship with his son" by "putting his own
needs or preferences before [Gaston's]." The father declined
the department's offer of additional visits with Gaston, saying
that he did not like visitation centers, and he also refused
virtual visits because he did not want to have visits with
Gaston when he was in the foster home. The father canceled a
visit in May 2021 because the primary social worker, with whom
the father felt more comfortable, was unavailable to supervise.
Despite attempts made by three different social workers, the
department could not establish a consistent parenting schedule
with the father. At times, notwithstanding the availability of
in-person visits, the father went significant periods without 13
seeing Gaston in person. He had only eight in-person visits
with Gaston in 2023 even though the department offered him
weekly visits. The father's visits in the community were
stopped after he made social media posts about hiring a private
investigator to investigate one of the department social
workers. The record amply demonstrates that the father
willfully failed to visit Gaston consistently and supports the
judge's finding that the father had failed to "maintain[]
sufficiently significant and meaningful contact with [Gaston]."
It is not necessary, as the father contends, that the judge have
found that the father would endanger Gaston.
The father argues that the judge improperly focused on
Gaston's bond with his foster parents. We disagree. The bond
between a child and foster parents, while not dispositive, is "a
factor that has weight in the ultimate balance" (citation
omitted). Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203
(2003). See G. L. c. 210, § 3 (c) (vii). The child had been
placed with the foster parents since February 2020, and they
have provided him with consistency and routine. The judge found
that it was unclear from the evidence how the father would
provide consistency and routine for Gaston or care for him while
working. As previously noted, Gaston has special education
needs and requires additional attention to his needs, and his
foster parents have continued his IEP services. Crediting the 14
testimony of an expert witness, the judge found that Gaston had
"formed a strong and positive attachment with his foster
parents" and that removing him from them could cause serious
harm, affect his ability to trust future caregivers, and lead to
possible mental health disorders.
Although the father accepted and productively utilized some
action plan services, such as providing urine screens and
engaging in therapy, he failed to complete all his department
action plan tasks, which included providing the department with
results of a neuropsychological examination. "Even if a parent
engages in some of the services offered by the department, 'mere
participation in the services does not render a parent fit
without evidence of appreciable improvement in [the parent's]
ability to meet the needs of the child[].'" Adoption of Breck,
105 Mass. App. Ct. 652, 660 (2025), quoting Adoption of Ulrich,
94 Mass. App. Ct. 668, 677 (2019). The father told the
department social worker that he did not need to meet the action
plan because he had already completed several of the
requirements. He also told the social worker that he, his
family, and his fiancée did not want any services. "Evidence of
parents' refusal to cooperate with the department, including
failure to maintain service plans . . . , is relevant to the
determination of unfitness." Adoption of Rhona, 63 Mass. App.
Ct. 117, 126 (2005). The judge properly considered evidence 15
that the father had refused or failed to consistently utilize
the services offered to him. There was no error.
The father's contention that the two ICPC home studies
approving Gaston's placement with him undermine the judge's
finding of unfitness is similarly unavailing. The judge was not
bound to weigh the conclusions of the ICPC studies, and the
father fails to provide any authority showing otherwise. See
Care & Protection of Benjamin, 403 Mass. 24, 25-26 (1988)
(determining whether child is in need of care and protection is
decision for judge to make, not for department or other party).
Based on information in the first ICPC study, the department put
a hold on transitioning Gaston while it followed up on concerns
about the father's fiancée and the father's drug use. When the
department asked the father for additional information about his
fiancée, he hesitated to share information about her background
and did not want the department involved with his partner. At
the time of trial, the father's fiancée had a "breathalyzer" in
her car, and the judge did not credit the father's testimony
that he knew nothing about her substance misuse history or her
criminal record.
The ICPC report also noted Gaston's diagnosis of
developmental delays and that he qualified for an IEP but that
the father did not believe that Gaston had any developmental
delay. "Parental unfitness must be determined by taking into 16
consideration a parent's . . . capacity to provide for the . . .
child's particular needs . . . ." Adoption of Mary, 414 Mass.
705, 711 (1993). The judge did not err in his weighing of the
ICPC home studies.
We also find unpersuasive the father's contention that the
judge failed to properly consider evidence of the father's
mistrust in the department when determining the cause of his
insufficient parenting time.9 The judge expressly found that the
father believed that the department was discriminating against
him and that he does not trust the system. The judge's
"specific and detailed" findings on that point "demonstrat[e]
that close attention has been given the evidence." See Care &
Protection of Laura, 414 Mass. 788, 791 (1993). The judge did
not err.
3. Motion for abuse of discretion. The father contends
that the judge erred in denying his motion for abuse of
9 The father points to the judge's finding that the father called the foster family "racist" but argues the judge failed to make any findings about the father's concerns that the department used his race and religion as obstacles to reunification. The father testified that a department worker called him and said that he was "going to make the perfect angry [B]lack man." A judge need not address every piece of evidence in a lengthy trial. In any event, the evidence in the record amply supported the father's unfitness. Adoption of Franklin, 99 Mass. App. Ct. 787, 799 (2021) (evidence of father's unfitness overwhelming even if judge's findings did not acknowledge or highlight some factors in father's favor). 17
discretion and requesting additional parenting time. He argued
in that motion that the department abused its discretion by
failing to make reasonable efforts to provide him with visits,
"arbitrarily and capriciously interfering with [his] visits,
instilling fear in the child during visits, and refusing to
treat [the father] in a respectful, professional, effective
manner." For the reasons described above, we see no abuse of
discretion in the judge's ruling as the father was the one who
declined the department's numerous offers to schedule
visitation.
4. Best interests determination. a. Assessment of
adoption plan. In parental rights termination proceedings, "the
judge is statutorily obligated to assess the adoption plan
proposed by the department to determine whether the best
interests of the child would be served by a termination decree
with that plan." Adoption of Vito, 431 Mass. 550, 568 (2000),
citing G. L. c. 210, § 3 (b), (c). In determining whether the
best interests of the child will be served by granting a
petition for adoption without the need for parental consent,
"the court shall consider the ability, capacity, fitness and
readiness of the child's parents . . . to assume parental
responsibility, and shall also consider the plan proposed by the
department or other agency initiating the petition." G. L.
c. 210, § 3 (c). "[T]he judge considering an adoption plan must 18
make specific findings reflecting careful evaluation of the
suitability of the [department's] proposal." Adoption of Lars,
46 Mass. App. Ct. 30, 31 (1998).
The child contends that the judge erred by failing to
consider the department's proposed plan of adoption. We agree.
The judge did not make any findings about whether the
department's adoption plan was in Gaston's best interests. The
department's adoption plan was sufficiently detailed and
included much of the same information found in the judge's
findings of fact -- that Gaston had special education needs and
was receiving services to address those needs while in the
foster parents' care. The plan stated that the foster parents
"have provided excellent care for [Gaston], who is very attached
to both foster parents." The judge also acknowledged Gaston's
attachment to the foster parents in his findings. Nevertheless,
the judge did not assess whether the adoption plan served
Gaston's best interests. In the absence of findings by the
judge about the suitability of the adoption plan, we are unable
to determine whether the evidence supported the judge's
conclusion that the termination of the father's parental rights
was not in Gaston's best interests. See Adoption of Gabrielle,
39 Mass. App. Ct. 484, 488 (1995). On remand, the judge must
make specific findings showing careful assessment of the 19
appropriateness of the adoption plan. Adoption of Lars, 46
Mass. App. Ct. at 31.
b. The judge's determination that Gaston's "current
circumstances" served his best interests. The department and
the child also contend that the judge erred in his conclusion
that termination of the father's parental rights was not in
Gaston's best interests despite finding that the father was
unfit to meet Gaston's needs and that the unfitness would
continue into the foreseeable future. See Adoption of Ilona,
459 Mass. at 59-60 (termination of parental rights requires that
unfitness not be "only temporary," and, "[b]ecause childhood is
fleeting, a parent's unfitness is not temporary if it is
reasonably likely to continue for a prolonged or indeterminate
period"). We agree. Because the reasoning behind the judge's
determination that Gaston's "current circumstances [are] in
furtherance of [Gaston's] best interests"10 is not apparent on
10At the time of trial, Gaston remained in the department's legal custody. Although he continued to live with the foster parents, who the judge found had appropriately cared for him for most of his life and with whom he had developed an attachment, the judge did not free Gaston for adoption. If, as we infer, the judge had concerns that it was in the child's best interests for the father to remain a part of Gaston's life, the judge could have terminated the father's parental rights and then ordered posttermination and postadoption contact if he determined doing so was in Gaston's best interests. See Adoption of Ilona, 459 Mass. 53, 63 (2011). The parties are free to address this point on remand. 20
the record, we remand the matter for clarification, with a
reminder that "the proper focus of termination proceedings is
the welfare of the child." Adoption of Gregory, 434 Mass. 117,
121 (2001). "[A] judge considering termination also must
consider the child's unqualified right to permanency and
stability." Care & Protection of Zeb, 489 Mass. 783, 789
(2022). See Guardianship of Estelle, 70 Mass. App. Ct. 575,
578-579 (2007) (case remanded because of "apparent ambivalence
of the judge," who, rather than finding father "fit" or "unfit,"
"attempted to steer to a middle ground" allowing judge to
"maintain some degree of control of the situation without
jeopardizing the father's ability to develop a relationship with
the child"). Cf. Adoption of Arianne, 104 Mass. App. Ct. 716,
721 (2024) (judge abused discretion in terminating mother's
parental rights where findings did not show unfitness likely to
continue indefinitely).
Conclusion. We affirm the judgment entered on the father's
complaint to establish paternity denying the father's request
for custody of the child and ordering custody to remain with the
department. The order denying the father's motion for abuse of
discretion is also affirmed. The decree of custody finding the
child without proper guardianship because of the father's
unfitness and granting responsibility for the care and custody
of the child to the department pursuant to G. L. c. 119, 21
§ 23 (a) (3), is also affirmed.11 The decree dismissing the
department's G. L. c. 210, § 3, petition as to the father is
vacated, and the case is remanded to the Probate and Family
Court for further proceedings consistent with this opinion.12
So ordered.
11In light of our conclusion, we need not reach the child's argument that the judge applied the wrong legal standard by finding that the department failed to prove that terminating the father's rights was "undoubtedly" in Gaston's best interests.
12When evaluating the adoption plan, the judge may consider additional evidence if necessary, including any other competing permanency plans proposed by other parties. See Adoption of Dora, 52 Mass. App. Ct. 472, 475 (2001) ("In cases where the parents have offered a competing plan, the judge must assess the alternatives and, if both pass muster, choose which plan is in the child's best interests, however difficult that choice may be"). As we stated in Estelle, "[w]e do not seek to dictate an outcome. The judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment." Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).
In evaluating what the child's "current circumstances" are, the judge may also wish to take additional evidence, as we recognize that circumstances may have changed given the passage of time.