Adoption of Fitch.

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-388

ADOPTION OF FITCH.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father contests the judge's post-trial determination

that the father was unfit and the termination of his parental

rights to his son, Fitch, age six. We affirm.

Background. We summarize the trial judge's findings of

fact, supplemented by uncontroverted evidence from the record,

reserving certain facts for later discussion. Fitch was born in

May 2019, the third child of his parents, who lost custody of

both older children.2 Fitch was born substance exposed. The

Department of Children and Families (department) filed its first

petition in February 2021. The petition was based on the

mother's arrest for a controlled substance offense, missed

1 The child's name is a pseudonym.

2The mother, who was also named in the care and protection
petition, consented to Fitch's adoption during the pendency of
the trial. She is not a party to this appeal.
medical appointments for Fitch, and the family's history with

the department. The parents were not living together at the

time. Fitch was allowed to remain with the mother subject to

conditions, including a condition barring the father from being

an unsupervised or sole caretaker of Fitch. Because of the

father's record of domestic abuse and ongoing criminal

engagement, the mother had a safety plan that limited the

father's ability to visit with Fitch.

The Department drafted an action plan for the family

effective April 13, 2021, to October 13, 2021. The father

avoided contact and failed to engage with the department through

May, July, September, and most of October 2021. He did not

have consistent visits or contact with Fitch from May through at

least December 2021. The father neither completed the

recommended action plan items nor engaged with the department to

update his action plan until after he was incarcerated in April

2022.

In late October 2021, the father agreed to meet with the

department and, at the time, reported that he was living in a

shelter. He had also lacked housing during the preceding

months. In November, however, the father failed to appear for

the scheduled meeting with a department worker and, as a result,

the department remained unable to conduct the father's

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assessment. He stayed out of contact with the department

through at least March 2022; in June of that year, the

department met with the father at a house of correction, where

he had been incarcerated since April 2022. It is unclear from

the findings how the department became aware that he was

incarcerated.

In July 2022 the department contacted the jail to schedule

virtual visits between Fitch and the father. But, days later,

the father was transferred to the New York prison system to

serve a three-year sentence and remained there when trial began.

Once the father was incarcerated, he had very little contact

with Fitch. Virtual visits were unsuccessful because they

required that the mother (who had custody of Fitch) pay a fee

and supervise the visits, both of which she could not or would

not do. Fitch had telephone contact with the father between May

and July 2022, and the father sent letters and photos to Fitch.

As of December 2022, the department had no contact with the

father, who remained incarcerated in an unknown New York

facility on unknown charges. Until June 2023, the department

did not know where the father was in prison. In June 2023, the

department took custody of Fitch after learning that the

mother's abusive partner was living with her, and that he and

the mother were misusing controlled substances. Fitch has been

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in department custody since then. As of October 2023, the

father had not visited with Fitch for "a long time" before

Fitch's second removal.

The department regained contact with the father in August

2023 when, through counsel, he requested an update on Fitch's

placement and put forward his cousin in Virginia as a potential

adoptive resource for Fitch. The department initiated the

process through the Interstate Compact on Placement of Children

(ICPC), and the paternal cousin was eventually approved as an

adoptive resource for Fitch; Fitch has been in Virginia since

July 2024.

In addition to the charges for which the father was

incarcerated in New York, he has an extensive criminal history

in Massachusetts. He has been incarcerated for offenses

including larceny, assault and battery (including assault with a

dangerous weapon), intimidation, and drug charges. He was also

named in four abuse prevention orders in which the mother was

the plaintiff.

The judge concluded that the father had "no meaningful bond

with the child. He did not make any inquiries as to the child's

wellbeing while Fitch was in substitute placement. The court

[did] not credit any assertion that [the father] made

meaningful efforts to engage with the Department, noting that

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[the father] had ample time and access to his counselors at the

facilities where he was held." The judge determined that the

father was "largely absent from the child's life."

The judge further concluded that the father exhibited

questionable judgment about what was in Fitch's best interests -

- he engaged in domestic violence toward the mother, resulting

in the entry of multiple 209A orders to protect the mother, as

well as the safety plan noted above, and acknowledged that the

mother's partner had exposed Fitch to both domestic violence and

substance misuse, but still believed that Fitch could safely be

with the mother and supported that placement.

Discussion. The father asserts that the department failed

to make reasonable efforts to reunite him with Fitch and that

this failure tainted the judge's best interests analysis. We

are not persuaded.3

When reviewing a judge's decision to terminate parental

rights, we "afford deference to the judge's assessment of the

weight of the evidence and the credibility of the witnesses, as

3 The department asserts that the father waived the
reasonable efforts argument by failing to raise it at or before
trial. See Adoption of Yalena, 100 Mass. App. Ct. 542, 554
(2021) (department must have "opportunity to make accommodations
while the case is pending"). We agree that the father could and
should have more forcefully made and preserved this argument,
but we exercise our discretion to consider it. See, e.g.,
Adoption of West, 97 Mass. App. Ct. 238, 242, 245 (2020).

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well as to the judge's determination of the child's best

interests, reversing only if there is clear error or abuse of

discretion." Adoption of Jacob, 99 Mass. App. Ct. 258, 266

(2021). A judge's decision to terminate parental rights must be

supported by "clear and convincing evidence, based on subsidiary

findings proved by at least a fair preponderance of the

evidence, that the parent is unfit to care for the child and

that termination is in the child's best interests." Adoption of

Arianne, 104 Mass. App. Ct. 716, 720 (2024), quoting Adoption of

Xarissa, 99 Mass. App. Ct. 610, 615 (2021).

"Parental unfitness must be determined by taking into

consideration a parent's character, temperament, conduct, and

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Adoption of

Mary, 414 Mass. 705, 711 (1993). See Adoption of Quentin, 424

Mass. 882, 887 (1997) ("judge may consider whether parental

behavior adversely affects the child"). Having considered the

parties' arguments and reviewed the extensive record, we see no

reason to disturb the judge's finding of unfitness.

We are unpersuaded by the father's argument that the

department failed to make reasonable efforts. The evidence in

the record supports a determination, by clear and convincing

evidence, that even before the father was incarcerated, he

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rarely saw or engaged with Fitch. At some points this resulted

(at least in part) from the mother's safety plan, but that plan

was a response to the father's abuse and, thus, his doing. Cf.

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) (judge may

consider fact that parent was physically unavailable to child

due to parent's substance misuse or incarceration).

The father did not engage with the department, did not make

progress on his action plan, and did not make efforts to have a

relationship with Fitch. "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). While the father was incarcerated in New York, he did

not request visitation or communicate with the department for

over a year; indeed, the department remained unaware of the

father's whereabouts during that time. The father could have

remedied this but did not. Although the father maintained that

he tried to contact the department, the judge explicitly did not

credit his assertions that he (1) attempted to contact the

department himself and through counsel, and (2) wanted to start

working with the department. We will not disturb this

credibility finding. See, e.g., Custody of Eleanor, 414 Mass.

795, 799 (1993). This is not a case where the father's

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incarceration abruptly interrupted ongoing communication with

the department; rather, beginning with the earliest involvement

by the department, the father engaged only sporadically.

The evidence amply supported the judge's determination that

the department met its obligations and "complied with its duty

to make 'reasonable efforts . . . to prevent or eliminate the

need for removal [of the children] from the home.'" Adoption of

Ilona, 459 Mass. 53, 61 (2011), quoting G. L. c. 119, § 29C.

See Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010)

(parent's delay in obtaining therapy undermined claim that

department failed to make reasonable efforts ); Adoption of

Eduardo, 57 Mass. App. Ct. 278, 282 (2003) ("Because the

[parent] failed to make use of the services offered to

strengthen and then reunify [the] family and denied [parent's]

mental health needs by refusing both evaluation and treatment,

[parent] cannot successfully argue that [the department's]

reasonable efforts failed to accommodate [needs] or to

strengthen" family).

Although it is evident from the record and the judge's

careful and detailed findings that the father made efforts

during his incarceration to address his substance-use disorder,

the judge appropriately found these efforts did not support

maintaining his parental rights. The judge credited the

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father's statements that he completed a substance abuse program,

was engaged in Suboxone treatment, and engaged in parenting

classes. While acknowledging these commendable efforts, the

judge did not credit the father's assertions that he

"sufficiently attempted to cooperate" with his assigned social

worker while incarcerated in New York or that his incarceration

or engagement in services during his incarceration rehabilitated

him, prepared him to parent Fitch, or resolved the issues that

led to Fitch's being in the care of the department. "Even where

a parent has participated in programs and services and

demonstrated some improvement, we rely on the trial judge to

weigh the evidence in order to determine whether there is a

sufficient likelihood that the parent's unfitness is temporary."

Adoption of Ilona, 459 Mass. at 59-60. The judge was "entitled

to consider the evidence of [the father's] improvements within

the context of [his] earlier and continuing deficits." Adoption

of Jacques, 82 Mass. App. Ct. 601, 608 (2012). As this court

recognized in Jacques, "[w]eighing strengths against weaknesses

is within the core competency of the trial judge, who has the

benefit not only of the evidence, but of seeing and assessing

the parents themselves." Id. at 608. Here, Fitch has special

needs and is extremely active and nothing in the record refutes

the judge’s finding that the father was uninvolved with Fitch’s

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services, never inquired about his needs, and had no practical

understanding or knowledge of how to meet Fitch’s specialized

needs.

The judge was "not required to grant the father an

indefinite opportunity for reform," and considering the evidence

that the father's unfitness was not temporary, the judge

properly determined "that the child's welfare would be best

served by ending all legal relations between parent and child."

Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012).

Decree affirmed.

By the Court (Hershfang,
Hodgens & Smyth, JJ.4),

Clerk

Entered: January 2, 2026.

4 The panelists are listed in order of seniority.

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