Adoption of Wyck.

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.

9