Adoption of Raffi (And a Companion Case).

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

24-P-64

ADOPTION OF RAFFI
(and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Shortly after Raffi and the mother tested positive for

cocaine at his birth in March 2019, the Department of Children

and Families (department) filed a care and protection petition

and was granted temporary custody of Raffi. The same occurred

when Michael and the mother tested positive for cocaine at his

birth in August 2020. The mother later stipulated to her

unfitness and the termination of her parental rights and waived

her right to appeal. After a January 2023 trial, a Juvenile

Court judge found the father unfit and terminated his parental

rights as to both boys, while ordering posttermination and

postadoption visitation. On the father's appeal, we affirm the

decrees.

1 Adoption of Michael. The children's names are pseudonyms.
The judge concluded that the father was unfit based

primarily on four factors, no single one of which was

dispositive. These were (1) his inability to protect the boys

from contact with the mother, who still struggled with drug

addiction; (2) his inability or unwillingness to provide them

suitable housing; (3) his lack of parenting skills sufficient to

meet their basic needs; and (4) his inability to recognize and

address the psychological harm they would experience if removed

from their placement with the preadoptive parents, where Raffi

had lived since September 2021 and which was "the only home

[Michael] has ever known."

The judge found that the father, despite some limited signs

of improvement over the four-year life of the case,

"demonstrated a pattern of passivity that is incongruent with

providing for the safety and welfare of children." She also

concluded that the father's minimal improvements gave no reason

to think he would become fit in the foreseeable future.

On appeal, the father challenges certain of the judge's

subsidiary findings and argues that the department failed to

prove that he was unfit and would remain so into the indefinite

future. It was the department's burden to prove by clear and

convincing evidence that the father was currently unfit to

parent. See Adoption of Gregory, 434 Mass. 117, 126 (2001).

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"Subsidiary findings must be proved by a fair preponderance of

the evidence." Adoption of Helen, 429 Mass. 856, 859 (1999).

"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). Here,

we see no need to summarize the evidence supporting the judge's

explanation of the basis for termination. We therefore proceed

directly to consider the father's arguments on appeal.

1. Substance use. The father appears to challenge the

judge's findings and conclusions that he neither understood the

need nor had the ability to protect the boys from continuing

contact with the mother and her continuing substance use

problems. There was ample evidence, however, that this was and

continued to be a serious concern. Raffi was conditionally

returned to the father's custody for a brief period in April

2019, on the condition among others that the father not allow

the mother to have unsupervised contact with Raffi. Less than

two weeks later, the father's carelessness led to the mother,

while "highly impaired by a substance," being left alone with

Raffi and attempting to remove him from a hospital. Raffi was

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then returned to the department's custody, where he remained at

the time of trial almost four years later.

In the father's trial testimony, he initially could not

recall that Raffi tested positive for cocaine at birth. In

subsequent testimony he acknowledged knowing of the mother's

substance use issues, and he agreed that the hospital incident

was "a definite wake up call." Yet he continued an off-and-on

relationship with the mother, leading to the birth of Michael.

In the father's words, these events "just happened," and the

mother's substance use while pregnant with Michael was "out of

[the father's] control." The judge found that although the

father could not control the mother's addiction, he could have

controlled his ongoing relationship with her and the conception

of another child.

The father insisted that he understood the dangers of

allowing either boy to have unsupervised contact with the

mother, and would not allow any contact if she was under the

influence. Yet he did not understand whether, if custody were

returned to him, he could control the mother's access to the

boys, or whether he would be required to coparent with her so

she could see them. He had not discussed the issue with his

therapist. The department's ongoing social worker testified

that the father lacked any strategy for ensuring the boys would

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not be alone with the mother. He downplayed the significance of

the 2019 hospital incident and merely said he would not do it

again.

The department had asked the father in September 2020 to

participate in the Allies in Recovery program, to learn how to

cope with the mother's substance use problem. Yet he did not

begin participating in it until December 2022, one month before

trial. He previously asserted that he had no need for the

program because he had no ongoing relationship with the mother,

and that, although he could pay for housing where he could live

with the boys, he could not afford the program's $160 cost.

Given the mother's desire for contact, the judge could rightly

question the father's commitment to doing what was necessary to

learn how to cope with the mother and to protect the boys.

The father challenges as clearly erroneous the judge's

finding that "substance abuse would continue to be a threat to

the health and safety of the [c]hildren if they were in [the

f]ather's care and custody." The father points out that there

was little evidence of his own substance use after 2020. But he

misses the judge's larger concern about his inability to protect

the boys from the mother, whose substance use problems

continued.

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2. Housing. From the outset of these cases, one of the

tasks the department placed on the father's action plan was to

secure safe, stable, and appropriate housing for the boys and

himself. The judge found that the father, despite moving

several times during the cases, had never found "safe stable

housing," i.e., "housing that was his to control and was safe

for the [c]hildren." On appeal, the father contests the judge's

use of the phrase "stable housing," noting that at the time of

trial he shared an apartment and paid his share of the rent.

But this was not a place where the boys could live; it was a

one-bedroom apartment that he shared with a friend who was not a

potential caretaker for the boys. This housing may have been

stable, but the father does not address the judge's larger

conclusion that he had "consistently avoided creating a home for

[the boys] to return to."

At trial the father testified that, even before knowing

whether he would regain custody, he was trying to rent his own

apartment where he could live with the boys but had been

unsuccessful. Yet he was notably vague about those efforts; he

was working with the Wayfinders organization but could not

recall how long he had been on their waiting list or where he

was on the list at the time of trial. On appeal, the father

shifts gears, arguing that he was financially able to rent his

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own apartment but had refrained from doing so because there was

not yet any reunification plan. Regardless of which is the more

accurate explanation, the father's commitment to finding

appropriate housing for himself and the boys could rightly be

doubted.

In a similar vein, the father told the ongoing social

worker that his plan was to find his own apartment where he

could live with the boys and not to move back in with his own

mother (paternal grandmother). Yet at trial he testified that

his plan was to move back in with the paternal grandmother. The

department had first inspected her home in April 2022 and found

it physically unsuitable, among other reasons because it was

"very cluttered." At trial in January 2023, the adoption social

worker testified that the department was still concerned about

the "very cluttered" condition of the home, and could not

approve the father as well as the two boys moving in with the

paternal grandmother.

The judge also had ample basis to doubt whether the father

and paternal grandmother had a realistic plan for such a living

arrangement. The father testified that the availability of the

paternal grandmother to assist with care was a key part of his

plan. Yet he insisted that he, not the paternal grandmother,

would be the primary caretaker. The paternal grandmother, on

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the other hand, testified that it was she who would be "the

full-time caretaker." Although the father's work hours

significantly overlapped with hers, she offered no reasonable

explanation of how she could change or reduce her hours in order

to care for the boys while the father worked. The father

testified that he would keep them in their existing day care

arrangement, yet he did not know how much it cost or how he

would pay. The paternal grandmother believed they could attend

the day care where she worked, yet she had not inquired whether

this was possible, and she did not explain how this would fit

with her plan to reduce her hours there. All in all, the judge

was entitled to conclude that the father had not adequately

planned for a suitable, workable living arrangement for the boys

if they were returned to him.

3. Parenting skills. The father argues that the judge's

finding of unfitness is unsupportable in light of a department

assessment conducted in May 2022 that gave father a "strength"

rating in thirteen categories of parenting skills, rated ten

categories as "not applicable," and found only a very few areas

of "need." The judge was not required to credit this

assessment. It was conducted while the father and mother were

still seeing the boys only in joint visits, at which the mother

did most of the caretaking. Categories such as "provides for

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child's safety" were listed as "not applicable," inferably

because the father's ability in such areas had not been observed

at those visits.

The ongoing social worker at the time of trial in January

2023 had not been involved with the May 2022 assessment and did

not fully agree with it. She was present at a more recent

(September 2022) assessment at which the department identified

the father as still deficient in his ability to provide suitable

housing; to understand the importance of setting clear,

appropriate limits on the mother's contact with the boys; and to

understand their needs and set appropriate limits on their

behavior. The ongoing social worker testified that, once the

father began having his own, separate visits with the boys,

although the visits were generally positive, she had needed "to

intervene on multiple occasions" when there was "a safety

concern" or "one of the children's needs [weren't] being met."

She viewed the father as having shown some improvements as a

result of parenting classes, but only "inconsistently." In

short, the positive ratings in the May 2022 assessment did not

preclude the judge from finding the father unfit.

Relatedly, the father appears to argue that because he had

participated in various services recommended by the department,

there was no basis for the department (and, by extension, the

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judge) to doubt his understanding of why those services were

important and what he needed to learn from them. But the

father's own testimony furnished ample basis for the judge to

find that he lacked that understanding and had benefited only

marginally from the services. The father could say very little

about what he learned in his parenting class, or his nurturing

fathers class. He testified about his therapy only as an

afterthought, describing it as "one of the paperwork that I had

to do." He did not know he had a diagnosis, or what it was,

although the therapist had told the department he had been

diagnosed with cannabis dependency in remission, alcohol

dependency in remission, and depressed mood.

4. Bond with foster parents. The father faults the judge

for relying on G. L. c. 210, § 3 (c) (vii) (factor vii), as one

ground for finding him unfit. Under factor vii, in determining

fitness, a judge may consider whether:

"[B]ecause of the lengthy absence of the parent or the
parent's inability to meet the needs of the child, the
child has formed a strong, positive bond with his
substitute caretaker, the bond has existed for a
substantial portion of the child's life, the forced removal
of the child from the caretaker would likely cause serious
psychological harm to the child and the parent lacks the
capacity to meet the special needs of the child upon
removal."

Id. Here, the judge found that the boys had developed a

"significant and healthy bond with their foster parents who are

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committed to adopting them" and who they had grown to expect

would meet their needs. The judge further found that the boys,

if returned to the father, would experience trauma because of

their needs no longer being met and because of their removal

from what they considered their home. The judge found that the

father was "not at all prepared for the special needs [of the

children] he would then be responsible for."

The father first argues that the boys had no "special

needs," in the sense of identified developmental problems, and

so the judge's findings were clearly erroneous. But the phrase

"special needs," as it appears in factor vii, refers not to

preexisting developmental challenges but instead to "the special

emotional need [the child] would have in consequence" of a

psychologically traumatic severance of bonds with a preadoptive

or other foster parent. Adoption of Katharine, 42 Mass. App.

Ct. 25, 35 (1997). The judge properly focused on this factor.

The father next asserts that there was insufficient

evidence of the boys' bond with the preadoptive parents. He

points out that there was no expert testimony regarding such a

bond, and no testimony about it from the preadoptive parents.

Yet he cites no decision requiring either type of testimony

before a judge may rely on factor vii. The ongoing social

worker testified that the boys had "been in care for a long

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time, two or three years," and she repeatedly characterized them

as "very bonded" to the preadoptive parents, calling them "Mom"

and, she believed, "Papi." Raffi sat with the father during

visits "but, going in and out, opted to hold onto his foster

mother's hand."

There was also evidence that the father did not understand

the importance of the boys' relationship with the preadoptive

parents. The ongoing social worker testified that, one week

before trial, she discussed with the father the boys' bond with

the preadoptive parents and whether he would be willing to allow

some relationship with them to continue if the boys were

returned to his custody. The father replied, "I don't care

about that, I really don't," and was adamant that there would be

no such contact.

One week later, at trial, the father testified that he had

considered the matter further and would be willing to allow

contact. Even then, however, his testimony focused on allowing

such contact if the preadoptive parents wanted to see the boys,

and only secondarily on whether the boys might want or need to

see the preadoptive parents. The father told the judge he

thought the boys would not "need anything special" as a result

of being removed from the people who had cared for them for

years and who they called "Mom and Dad." In light of the

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father's sudden shift of position before trial, and his view

that continued contact was of more importance to the preadoptive

parents than to the boys, the judge could rightly doubt that the

father was prepared to deal with the trauma the boys would feel

were their bond with the preadoptive parents severed.

In sum, we see no reason to disturb the judge's

determination that the father was and would remain unfit and

that the boys' best interests would be served by terminating his

parental rights and approving the department's plan for adoption

by the preadoptive parents.

Decrees affirmed.

By the Court (Sacks,
Englander & Grant, JJ.2),

Clerk

Entered: October 23, 2024.

2 The panelists are listed in order of seniority.

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