Adoption of Dallas.

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-1012

ADOPTION OF DALLAS. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a Juvenile Court decree terminating

his parental rights and from an order denying his motion for a

new trial. He argues that it was a violation of due process for

the judge to hold the trial while his complaint to establish

paternity was pending, that the evidence did not support

terminating his parental rights, and that the Department of

Children and Families (department) did not make reasonable

efforts to reunify him with the child. We affirm.

Background. The child was born in February 2012. There is

no father identified on the child's birth certificate.

In March 2020 the department removed the child from his

mother's care and filed a petition alleging that he was in need

1 A pseudonym.
of care and protection. At the time of the removal, the

department was unaware of the father's whereabouts but

eventually located him at Bridgewater State Correctional

Facility. In August 2020 the department amended its petition to

add the father as the child's putative father, and counsel was

appointed for him. The father remained incarcerated during the

pendency of the proceedings.

The mother died in May 2021. Thereafter, the department

prepared three family action plans for the father, covering the

period of July 2021 to April 2023. The father did not complete

any of the action plan tasks and reported that he had not

"looked into" any services that might be available to him in

prison. The father also had no visits or contact with the

child, at least in part because prison policy did not allow

putative fathers to have visits. In August 2021 the department

gave notice of its intent to terminate the father's parental

rights.

In April 2022 the father filed a complaint to establish

paternity and a motion for genetic marker testing. The judge

allowed the motion in May 2022, but the testing was not

completed by the scheduled trial date of January 3, 2023. On

that date the father's counsel informed the judge that the

Department of Revenue had not "cooperated with the court's order

to give [the father] a paternity test" and suggested that this

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might raise some "due process issues." 2 In response the judge

noted that "the court does have authority to terminate putative

parents' rights, especially . . . when it is in the best

interest of the child." The judge then proceeded to hear the

evidence.

Three witnesses testified at trial -- the ongoing social

worker, the adoption social worker, and the father -- and twelve

exhibits were admitted in evidence. The judge then issued a

decision finding that the father was currently unfit and that

the department's plan of adoption by a maternal relative would

serve the child's best interests. The judge specifically stated

in her decision that it would not be in the child's "best

interest to wait for [the father's] paternity to be effectuated"

because that would "simply delay[] [the child's] right to

permanency."

On January 18, 2023, two weeks after the judge issued her

decision, the Department of Revenue completed the genetic marker

testing, and the father was determined to be the child's

biological father. This prompted the father to move for a new

trial, arguing that his due process rights were violated because

the department had withheld services and visitation rights from

2 The record shows that, for some period of time during the
COVID-19 pandemic, the Department of Revenue was not entering
correctional facilities to administer paternity tests.

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him because he had not established paternity. The judge denied

the motion but reopened the evidence to include the adjudication

of paternity. A new decree entered accordingly, from which the

father now appeals.

Discussion. 1. Due process. The father's principal

argument on appeal is that under Adoption of Arlene, 101 Mass.

App. Ct. 326 (2022), the judge erred by holding the trial while

his complaint to establish paternity was still pending. The

father relies in particular on the following statement from

Adoption of Arlene: "where putative father's 'paternity remains

in dispute[,] before anything else takes place, the parties and

the trial court must resolve that question.'" Id. at 336,

quoting Matter of M.N.M., 605 A.2d 921, 930 (D.C.), cert.

denied, 506 U.S. 1014 (1992). Based on this statement, the

father argues that it was a violation of due process for the

judge to terminate his parental rights before adjudicating his

paternity.

"Before parents can be deprived of custody of their child,

. . . the requirements of due process must be satisfied."

Adoption of Arlene, 101 Mass. App. Ct. at 333, quoting Adoption

of Patty, 489 Mass. 630, 638 (2022). "[D]ue process requires

that there be notice and an opportunity to be heard 'at a

meaningful time and in a meaningful manner.'" Adoption of

Arlene, supra at 335, quoting Adoption of Hugh, 35 Mass. App.

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Ct. 346, 347 (1993). The father was afforded all of these

rights. Once the department was able to locate him, he was

given notice and appointed counsel. He then had the opportunity

to participate in the proceedings, including by testifying at

trial through video conferencing.

Nonetheless, the father contends that the requirements of

due process were not satisfied because he was denied visitation

as a result of his paternity not being legally established.

According to the father, the denial of visitation deprived him

of a meaningful opportunity to be heard because it precluded him

from offering rebuttal evidence; he argues that the case should

thus be remanded and stayed to allow him time "to gather

positive evidence of his parenting skills through visitation."

We are unpersuaded. As an initial matter, we note that some of

the delay in establishing paternity could be attributed to the

father, as he did not file his complaint to establish paternity

until April 2022, approximately nineteen months after he was

given notice of these proceedings. But even putting this aside,

the father cites no authority, and we are aware of none,

supporting the proposition that due process requires a judge to

delay a termination trial to give a parent the chance to develop

favorable evidence. To the contrary, it is well settled that

the child's best interests are paramount in these cases, and the

child should not be made to wait indefinitely in the hopes that

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the parent might become fit. 3 See Adoption of Nancy, 443 Mass.

512, 517 (2005).

Adoption of Arlene does not hold to the contrary. At issue

there was whether a putative father was entitled to notice of a

petition for adoption filed in the Probate and Family Court by

the child's mother and stepfather. See Adoption of Arlene, 101

Mass. App. Ct. at 327. We concluded that the putative father

should have received notice, and the lack thereof deprived him

of due process, because he had a significant existing

relationship with the child and promptly took steps to establish

his paternity. See id. at 335. We then discussed the remedy

for the due process violation. It was in this context that we

said that the question of paternity should be resolved first

because the putative father's right to participate in the

adoption proceeding was contingent on that question. See id. at

336. In other words, as a matter of procedural expediency, it

would have been premature to disturb the adoption decree until

the putative father's paternity was legally established. We did

not hold, and nothing in our opinion suggests, that a putative

As discussed further below, the evidence of the father's
3

unfitness was clear and convincing. There is no likelihood that
visitation would have changed the result, and so the father's
due process challenge fails for this additional reason. See
Adoption of Don, 435 Mass. 158, 170 (2001) (showing of prejudice
required to obtain reversal on due process grounds).

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father has a due process right to have his paternity adjudicated

before any trial to determine a child's custody takes place.

Here, unlike in Adoption of Arlene, the father received

notice of the proceedings, was appointed counsel, and had a

meaningful opportunity to be heard. Due process did not require

more. 4 The judge thus did not err by going forward with the

trial despite the pending paternity complaint, or by denying the

father's motion for a new trial.

2. Termination of parental rights. "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). "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

4At oral argument the father suggested that the actions of
the various governmental actors in this case amounted to a
substantive due process violation. But the father's brief
cannot fairly be read to be raising a claim under substantive
due process, and so the issue is waived. See Board of
Registration in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010).
Moreover, to establish a substantive due process violation, the
father must show that the governmental conduct at issue was "so
egregious as to shock the conscience." Pagan v. Calderon, 448
F.3d 16, 32 (1st Cir. 2006). The record does not reveal any
conduct that plausibly rises to this level.

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erroneous or where there is a clear error of law or abuse of

discretion." Id.

The uncontested evidence here clearly and convincingly

supports the judge's conclusion that the father is unfit. As

the judge found, the father "has not been a part of [the

child's] life for many years." The judge did not credit the

father's testimony that he was meaningfully involved with the

child prior to being incarcerated. The child, who was ten years

old at the time of trial, has never lived with the father and

has expressed no interest in having contact with him. In

addition the father has an extensive criminal record and at the

time of trial was serving consecutive prison sentences -- the

longest being fourteen to seventeen years -- for offenses he

committed in 2013 and 2014. These offenses included possession

of a sawed-off shotgun, possession of a firearm during

commission of a felony, and possession of heroin with intent to

distribute. The father was also being treated in prison for

mental illness and, within the months leading up to trial, was

placed both on psychiatric hold and in solitary confinement. 5 He

5 The father challenges as clearly erroneous the judge's
finding that the father was in solitary confinement at the time
of trial. He correctly notes that his testimony was that he had
been in solitary confinement once within the four months leading
up to trial. But this minor error is immaterial to the judge's
ultimate conclusion of unfitness. See Care and Protection of
Olga, 57 Mass. App. Ct. 821, 825 (2003).

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did not look into any services that might be available to him in

prison and had no knowledge of the child's significant

behavioral and emotional needs. These facts clearly and

convincingly show that the father is unfit. See Adoption of

Nicole, 40 Mass. App. Ct. 259, 261 (1996) (father's unfitness

established by evidence that he was serving lengthy prison

sentence and had no established relationship with child or

realistic plan to provide for her needs).

Furthermore, the judge was within her discretion to

conclude that the father's unfitness was not temporary and that

terminating his parental rights would serve the child's best

interests. Contrary to the father's argument, the judge did not

base that decision solely on the fact of his incarceration.

Rather, the judge considered that the father had no existing

relationship with the child and that there was no realistic

chance that the child could be placed in his care, given that

the father was not eligible for parole for another three years

and proposed no suitable alternative caretakers. In these

circumstances the judge properly concluded that it would be in

the child's "best interest to be adopted and achieve permanency

at this critical stage in his development, rather than wait for

an indeterminate time to be reunified with an incarcerated

parent." See Adoption of Nicole, 40 Mass. App. Ct. at 261-262

(judge warranted in finding that incarcerated father was not

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likely to be stable presence in child's life if paroled in two

years, and that termination of his rights would therefore be in

child's best interests).

To the extent the father argues that the judge should have

ordered posttermination and postadoption visits, that issue is

waived as it is not supported with adequate discussion or

citation to authority. See Mass. R. A. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019). In any event the judge's

conclusion that visits would not be in the child's best

interests is supported by the evidence, including the

uncontested evidence that the child has no relationship with the

father and has expressed no interest in contacting him. See

Adoption of Saul, 60 Mass. App. Ct. 546, 556-557 (2004).

3. Reasonable efforts. We construe the father's

reasonable efforts argument to be that the department generally

did not do enough to assess his parenting capabilities or to

explore the resources that might be available to him in prison.

This argument is waived, however, because the father did not

raise a claim of inadequate services in a timely manner to the

judge or to the department. See Adoption of Daisy, 77 Mass.

App. Ct. 768, 781 (2010). And even putting aside the waiver,

the father has not shown error in the judge's findings that the

father "was either unwilling or unable to engage in any

available classes while incarcerated" and that the department

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was not obligated to "proactively seek classes or make referrals

within the prison system . . . under these particular

circumstances." See id. at 782, quoting Adoption of Serge, 52

Mass. App. Ct. 1, 9 (2001) (department's obligation to make

reasonable efforts "contingent upon [parent's] own obligation to

fulfill various parental responsibilities, including seeking and

utilizing appropriate services"). Finally, even assuming that

the department did not fulfill its obligations, remand or

reversal would not be the appropriate remedy; "the proper focus

of termination proceedings is the welfare of the child."

Adoption of Daisy, supra, quoting Adoption of Gregory, 434 Mass.

117, 121 (2001). As discussed above, the judge properly

11
determined that the child's best interests would be served by

terminating the father's parental rights.

Decree affirmed.

Order denying motion for new
trial affirmed.

By the Court (Shin, Grant &
Smyth, JJ. 6),

Clerk

Entered: August 7, 2024.

6 The panelists are listed in order of seniority.

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