Adoption of Bryce.

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

22-P-1131

ADOPTION OF BRYCE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree of a Juvenile Court judge

terminating his parental rights to his son, Bryce, who was

twelve years old at the time of trial, and from the order

denying his motion for a new trial. 2 The father was incarcerated

during trial and has been incarcerated for all but four years of

Bryce's life. On appeal, the father argues that he is entitled

to a new trial because (1) the Department of Children and

Families (department) did not use reasonable efforts to preserve

the biological ties between him and the child before seeking

termination, (2) the judge made several clearly erroneous

findings that were essential to the finding of unfitness, and

the remaining evidence does not support termination by clear and

convincing evidence, (3) he was denied his right to effective

1 A pseudonym.
2 The mother's parental rights were not terminated. She
stipulated to her current unfitness and a judgment entered
accordingly.
assistance of counsel, and (4) he was denied due process when

the department changed the child's permanency plan after trial.

We affirm.

Discussion. 1. Reasonable efforts. "The department is

'required to make reasonable efforts to strengthen and encourage

the integrity of the family before proceeding with an action

designed to sever family ties.'" Adoption of West, 97 Mass.

App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass.

App. Ct. 275, 278 (2002). Even when a parent is incarcerated,

the department's regulations require it "to make all reasonable

efforts to work in cooperation with incarcerated parents to

promote a healthy relationship with their children, and to avoid

permanent separation." 110 Code Mass. Regs. § 1.10 (2008). See

Adoption of Franklin, 99 Mass. App. Ct. 787, 795 (2021).

However, the department's duty is contingent upon a parent's

fulfillment of their own parental responsibilities. See

Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997), citing 110

Code Mass. Regs. § 1.01 (1993). The judge's reasonable efforts

determination will stand unless clearly erroneous. See Adoption

of Ilona, 459 Mass. 53, 62 (2011).

Here, the father's challenge to the department's use of

reasonable efforts fails for two reasons. First, the issue was

2
raised for the first time on appeal, and so it is waived. 3 See

Adoption of Gregory, 434 Mass. 117, 124 (2001). Second, even if

the father's complaint had been preserved, and even if the

department had not engaged in reasonable efforts (a point we do

not decide), it does not follow that the father is entitled to

reversal of the decree terminating his parental rights. See

G. L. c. 119, § 29C ("A determination by the court that

reasonable efforts were not made shall not preclude the court

from making any appropriate order conducive to the child's best

interest"). See also Adoption of Ilona, 459 Mass. at 61. We

conclude that the judge did not err in determining that

termination was in Bryce's best interests. The grounds on which

the judge determined the father to be unfit were not related to

the department's use of reasonable efforts, but instead focused

on the father's history of domestic violence, current and

extended incarceration, substance abuse issues, and mental

health concerns.

2. Parental unfitness. "While a decision of unfitness

must be supported by clear and convincing evidence, a judge's

findings will be disturbed only if they are clearly erroneous."

3 As discussed infra, we are not persuaded by the father's
argument that he was constructively denied effective assistance
of counsel and that we may therefore consider the lack of
reasonable efforts by the department despite the father's
failure to preserve the issue.

3
Adoption of Franklin, 99 Mass. App. Ct. at 798, quoting Adoption

of Paula, 420 Mass. 716, 729 (1995). "A finding is clearly

erroneous when there is no evidence to support it, or when,

'although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.'" Adoption of

Larry, 434 Mass. 456, 462 (2001), quoting Custody of Eleanor,

414 Mass. 795, 799 (1993).

The father challenges several of the trial judge's findings

of fact and conclusions of law; however, very few of these

challenges are relevant to the unfitness determination.

Accordingly, even where we discern error in certain discrete

findings, we are satisfied that, taken as a whole, the evidence

demonstrated the father's permanent unfitness by clear and

convincing evidence. See Adoption of Nancy, 443 Mass. 512, 515

(2005), quoting Adoption of Peggy, 436 Mass. 690, 701, cert.

denied sub nom. S.T. v. Massachusetts Dep't of Social Servs.,

537 U.S. 1020 (2002) ("The finding of parental unfitness by

clear and convincing evidence is the 'critical inquiry'").

a. Domestic violence. First, the trial judge's decision

to terminate the father's parental rights was supported by

evidence, not challenged on appeal, of the father's extensive

history of domestic violence against the mother. The father has

been arrested six times for assault and battery against the

4
mother, which resulted in the mother requiring medical attention

on at least two occasions. The most recent of these incidents

resulted in a grand jury indictment of attempted murder of the

mother after the father assaulted her on a beach by punching

her, putting sand in her mouth, and holding her face in the

water. 4 It is also unchallenged that Bryce was present during

several incidents of domestic violence by the father against the

mother. Despite this documented pattern of domestic violence,

the father testified that the problems in his relationship with

the mother were the result of alcohol and other people. He

additionally intended to resume a relationship with the mother

upon his release from prison; his plans appear to have changed

only after the mother obtained a restraining order against him.

In light of this testimony, we also reject any challenge to the

judge's finding that the father lacked insight into his domestic

violence against the mother and the effect on Bryce of

witnessing this violence. The findings reflect the judge's

weighing of the evidence, which we will not disturb. See

Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

We agree with the father to the extent he argues that it

was clear error for the judge to find that a particular report

filed pursuant to G. L. c. 119, § 51A (51A report), supported

4 At the time of trial, the father was incarcerated as a result
of this incident.

5
allegations of abuse against Bryce, when in fact the 51A report

only supported allegations of neglect. However, where evidence

of the father's domestic violence against the mother was

overwhelming, we do not agree that this error negates the

judge's finding that the father was unable to demonstrate an

ability to recognize concerning behaviors or understand domestic

violence. Nor do we agree that this error negates the judge's

finding that Bryce suffered "trauma" as a result of the father's

parenting. See Custody of Vaughn, 422 Mass. 590, 599 (1996)

("It is well documented that witnessing domestic violence, as

well as being one of its victims, has a profound impact on

children").

b. Periods of incarceration. Second, the trial judge's

decision was supported by evidence of the father's extensive

criminal record, which goes beyond domestic violence against the

mother, and which resulted in the father's being incarcerated

for most of Bryce's life, including at the time of trial. The

father testified that he had been in custody about ten times

since Bryce's birth in 2010, and he estimated that he had lived

with Bryce for only four years of his life. As we have noted,

at the time of trial, the father continued to be incarcerated.

The judge's findings related to the father's criminal history

illustrated the father's inability to be present in the child's

life and thus supported the determination of unfitness. See

6
Adoption of Frederick, 405 Mass. 1, 7 (1989) (judge may consider

"lengthy separation between parent and child" in making best

interests determination).

c. Substance abuse issues. Third, the trial judge's

decision was supported by evidence of the father's history of

substance abuse issues, including his use of alcohol and

opiates. The father testified that each of his acts of domestic

violence against the mother was the direct consequence of his

alcohol use and not being sober. He also testified that while

incarcerated, he attended Alcoholics Anonymous (AA) and

Narcotics Anonymous (NA), and that he participated in a program

titled "Breaking Free" for drug and alcohol education. On

appeal, the father challenges the judge's finding that he "did

not engage in substance abuse treatment." Given the father's

testimony, the absence of any evidence negating that testimony,

and the judge's acknowledgment that the father did attend "AA,"

we agree with the father that this finding was clearly

erroneous. 5 We do not, however, agree that this error warrants

5 Although the social worker testified that she was unaware if
the father was participating in treatment, her lack of knowledge
does not conflict with the father's testimony, so there is no
evidence to support the judge's finding. Cf. Allen v. Allen, 86
Mass. App. Ct. 295, 307 (2014), quoting Demoulas v. Demoulas
Super Mkts., Inc., 424 Mass. 501, 510 (1997) ("The judge's
advantage in weighing the testimony is particularly evident in a
case involving conflicting testimony, 'one in which widely
differing inferences could be drawn from the evidence,' and the

7
reversal. We read the judge's decision to reflect the judge's

concern that the father failed to meaningfully address his

history of substance abuse through programming. 6 See Adoption of

Ulrich, 94 Mass. App. Ct. 668, 677 (2019) ("mere participation

in . . . services does not render a parent fit 'without evidence

of appreciable improvement in [their] ability to meet the needs

of the child'" [citation omitted]).

d. Mental health concerns. Finally, the trial judge's

decision was supported by evidence of the father's unaddressed

mental health concerns. The father was diagnosed with attention

deficit hyperactivity disorder as a child but was not taking

medication for this condition at the time of trial. At one

point, he was involuntarily committed to a hospital because he

stabbed himself with a knife during an argument with the mother. 7

The father does not have diagnoses for depression or anxiety,

but he was prescribed antianxiety medication while incarcerated,

drawing of inferences cannot be separated from the evaluation of
the testimony itself").
6 We are not persuaded by the father's argument that the judge's

attribution of reasonable efforts to the department influenced
his finding that the father did not adequately participate in
programming. The judge explicitly acknowledged that the father
did participate in some programming despite having limited
access to services while incarcerated. As importantly, the
judge made clear that the real concern was the father's failure
to benefit from the programs in which he did participate. See
Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019).
7 The father had a psychological evaluation after this incident;

he was not diagnosed with any mental health condition in
connection with that evaluation.

8
which he reported was helpful for his "rapid thoughts." The

father stopped taking this medication after about ninety days

because he reported that it gave him migraines. The father now

challenges the judge's finding that he stopped taking his

antianxiety medication, because he testified at trial that he

was at that time on a wait list for a new evaluation to receive

new medication. Although the judge did not acknowledge the

father's status on the wait list in his findings, he did

recognize that the father only stopped taking his medication

because of migraines. We see no clear error in the judge's

fundamentally accurate, albeit truncated, finding. Because the

evidence of unfitness in this case was overwhelming, "[a]ny

limited factual errors or inconsistencies that the father . . .

[is] able to show are arguable and of minimal consequence."

Adoption of Franklin, 99 Mass. App. Ct. at 798. 8 See Care &

8 The father's argument that it was clearly erroneous for the
judge to find that the father "lacks the ability and readiness
to parent" because the child only has "small issues" is waived
for lack of adequate appellate argument or legal support in the
father's brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019) ("The appellate court need not pass
upon questions or issues not argued in the brief").

We reject the father's argument that the judge's
attribution of reasonable efforts to the department influenced
his finding that the father did not follow through with
paperwork for Zoom visits with the child. Even if this were the
case, such a failure would not warrant reversal because "the
absence of recent visitation played a minimal role in the
termination of the father's rights." Adoption of Franklin, 99
Mass. App. Ct. at 799.

9
Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (affirming

termination decree where "clearly erroneous findings, considered

singly or in the aggregate, [we]re not central to the ultimate

conclusion of unfitness").

2. Ineffective assistance. Next, the father argues that

he was denied effective assistance of counsel because his

attorney was disrespectful towards him during cross-examination

and closing argument, failed to file adequate motions in limine

or to object to inadmissible prejudicial evidence, and failed to

investigate effectively before trial. To prevail on his

ineffective assistance of counsel claim, the father must show

that (1) counsel's conduct fell measurably below the standard of

an ordinary fallible lawyer, and (2) this shortcoming prejudiced

him in some way. See Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). Regarding the second prong, "prejudice is not shown if

there is overwhelming evidence of unfitness." Adoption of

Azziza, 77 Mass. App. Ct. 363, 368 (2010). Given our conclusion

that there was overwhelming evidence of unfitness in this case,

we also conclude that the father has failed to show that he was

prejudiced by any of his counsel's alleged errors. 9

9 Because we conclude that the father was not prejudiced in this
case, we need not and do not reach the question whether his
counsel's conduct fell measurably below the standard of an
ordinary fallible lawyer.

10
We are not persuaded by the father's argument that he is

excused from any obligation to prove prejudice because counsel's

errors were so egregious that they amounted to constructive

denial of counsel. Generally, constructive denial of counsel

occurs when counsel has a conflict of interest, Commonwealth v.

Mosher, 455 Mass. 811, 819 (2010); is completely unprepared for

the entire trial, Commonwealth v. Valentin, 470 Mass. 186, 197

(2014); or is sleeping or absent, Commonwealth v. Lacoy, 90

Mass. App. Ct. 427, 440 n.20 (2016). None of these apply here.

By contrast, the father's counsel filed and prevailed on motions

in limine to exclude damaging evidence from trial, cross-

examined witnesses, objected at trial, met with the father's

caseworker, and spoke with the preadoptive family. This is not

a case in which counsel has "entirely fail[ed] to subject the

[department's] case to meaningful adversarial testing." United

States v. Cronic, 466 U.S. 648, 659 (1984). The usual two-

pronged test under Saferian, including the father's obligation

to show prejudice, is required.

3. Due process. Finally, the father argues that he was

denied due process because he was not given a meaningful

opportunity to defend against the department's permanency plan

for the child. At the time of termination, the plan for the

child was permanency through adoption by the child's foster

parents. However, it was made clear to the father that even

11
though the current plan was adoption, there remained a

possibility that the plan would change to a guardianship or to

reunification with the mother. 10 In fact, after trial and after

termination of the father's rights, due to changes in

circumstances, the plan did change from adoption to

reunification with the mother. We are not persuaded that this

posttrial change in circumstances demonstrated that the original

adoption plan was "illusory" and intended to penalize the

father. It is clear from the record that the father was on

notice of the possibility that the child's permanency plan would

change to reunification with the mother; accordingly, his due

process rights were not violated. Contrast Adoption of Jacqui,

80 Mass. App. Ct. 713, 717-718 (2011) (due process violation

where father was not informed that department might change its

goal from reunification to adoption).

Furthermore, as discussed above, the judge's decision to

terminate the father's parental rights was amply supported by

evidence of his parental unfitness. Accordingly, once these

rights were terminated, the father had no further right to

determine the child's future. See Adoption of Scott, 59 Mass.

10The father was aware that the mother stipulated to being unfit
and waived her right to a trial, and that her parental rights
were not being terminated; the mother's stipulation and the fact
of her retention of her parental rights was explicitly
referenced multiple times throughout the trial.

12
App. Ct. 274, 276-278 (2003). Allowing the father to challenge

a change to the child's permanency plan after termination of the

father's parental rights would violate G. L. c. 119, § 26 (b)

(4); the father had no right to have any input as to the final

plans for the child regarding custody or visitation. See

Adoption of Willow, 433 Mass. 636, 647-648 (2001) ("The

Legislature surely did not contemplate that whenever there is a

change in circumstances and a new option arises . . . the

department is required to return to square one and relitigate

the rights of an unfit parent").

Decree affirmed.

Order denying motion for new
trial affirmed.

By the Court (Hand,
Hershfang & Brennan, JJ. 11),

Assistant Clerk

Entered: February 21, 2024.

11 The panelists are listed in order of seniority.

13