Adoption of Leah.

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-1496

ADOPTION OF LEAH. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a Juvenile Court decree terminating

his parental rights. 2 He argues that the Department of Children

and Families (department) failed to prove that he was unfit,

that any unfitness was temporary and did not support termination

of his parental rights, and that the department did not make

reasonable efforts to reunify him with the child. We affirm.

Background. The child was born on August 12, 2020. A day

later, a report under G. L. c. 119, § 51A, was filed against the

mother and her husband (husband), alleging among other things

that the child tested positive for cocaine and methadone at

birth. The report was screened in for an emergency response,

1 A pseudonym.

2The mother's parental rights were also terminated, but she
did not appeal.
2
and the department opened an investigation under G. L. c. 119,

§ 51B. On August 14, 2020, after finding the allegations to be

supported, the department filed a petition for emergency

custody, which was allowed the same day. The mother and the

husband later waived their rights to a temporary custody

hearing.

The mother did not initially disclose to the department

that the father (who is the husband's uncle) might be the

child's biological father. But a few days after the emergency

custody hearing, the mother told a social worker that the father

is the biological father. A judgment of paternity adjudicating

the father as the child's father then entered in late December

2020. In January 2021 the father was granted a temporary

custody hearing, after which a judge (hearing judge) ordered

that custody remain with the department. The hearing judge

found that the father knew that the mother was using drugs while

pregnant with the child (and with her three older children),

that he denied the mother's drug use despite learning of her

positive screen, and that he had no concerns about the mother's

parenting. Based on these findings, the hearing judge expressed

that she had "little confidence that [the] [f]ather will

maintain boundaries with [the] [m]other in order to keep the

child safe."
3
Meanwhile, in November 2020, the department created an

initial action plan, which identified the father as the child's

father. The father's tasks included completing parenting

classes, maintaining a home free of substance abuse, visiting

with the child consistently, and attending foster care reviews

and following through with recommendations. During the course

of the proceedings, additional tasks were added to the father's

action plan, including completing a parenting assessment,

providing proof of stable housing and finances, and allowing the

department to conduct unannounced visits to his home. By the

time of trial, the father had not complied with most of these

tasks.

The father missed seventeen visits with the child and

repeatedly ended visits early. During the visits he did attend,

the father often failed to engage with the child and displayed a

limited understanding of basic parenting skills. On several

occasions social workers observed that the father did not speak

to the child much throughout the duration of the visit and had

to be told to get off his phone and engage with her. The father

did not know how to properly hold the child. He also repeatedly

had to be reminded to wipe the child's nose, soothe her when she

threw tantrums, and check her diaper, and he had to be directed

to put on her boots and pick up her cup from the floor after it
4
fell. On other occasions the father failed to stop the child

from touching electrical outlets, putting choking hazards in her

mouth, standing on chairs, and running out the door. Once when

the child threw her bottle in the trash, the father gave it back

to her while stating, "[I]t might taste funny," and had to be

told to sanitize the bottle first. When the father was reminded

multiple times that the child was then wearing pull-ups, he

continued to bring diapers.

The father also displayed a lack of understanding of the

child's medical needs. The child was hospitalized for several

weeks after her birth and had ongoing medical issues, including

asthma, difficulty tolerating foods, and neurological issues

such as jerky movements, muscle spasms, blank and unresponsive

staring, and tremors. The father was often unaware of the foods

that the child could not tolerate and, when reminded of her

restrictions, stated that he was "allowed to bring anything [he]

want[ed] for her" because she is his daughter. The father never

administered the child's inhaler for her asthma. When he

learned that the child was still suffering from tremors and

blank staring, the father stated that she was "just like her

mother" and was having "blonde moments."

The father's home raised additional concerns related to the

child's medical needs and wellbeing. During an initial home
5
visit in September 2020, a social worker observed that the

father's apartment, which was in the basement, was unclean, had

an odor, and contained mold and opened bottles of bleach. The

father moved out of the basement apartment in December 2021 to

another apartment in the building, where he was still living

when trial occurred. During a home visit in February 2022, a

social worker observed that the new apartment was cold, smelled

moldy, and contained a pile of trash in the living room. During

a home visit the next month, the social worker observed that the

pile of trash remained, with the addition of "sticks, leaves,

and other items." The apartment was still cold, smelled

strongly of cigarettes, and, in the room that would be the

child's room, contained miscellaneous items strewn about and a

"toddler bed in the middle" surrounded by storage items. The

social worker saw no improvement during a May 2022 home visit,

noting that the apartment smelled of cigarettes, body odor, and

mildew. The father also repeatedly cancelled home visits and

did not respond to unannounced visits, preventing the department

from conducting any visits during the pendency of the trial. 3

Despite his parenting deficits, the father did not complete

3 The first two days of trial occurred in August 2022.
After the department moved to reopen the evidence, a third day
of trial occurred in February 2023. The social worker testified
at that time that she had been unable to conduct a home visit
since she testified in August 2022.
6
a parenting assessment or a parenting class. The social worker

tried to help the father enroll in parenting classes, but the

father believed he did not need them. Although the father was

invited to the child's medical appointments, he attended only

one, arrived late, did not engage with the child or redirect her

when needed, and asked no questions about her medical condition,

including her struggle to gain weight. The father also refused

to provide proof of his income. Although he was self-employed

as a mechanic and welder, he testified at trial that he was then

working only "small jobs that come and go" and had recently

"take[n] a break" from work altogether. When asked how he would

provide for the child, the father claimed to have enough savings

to last six to seven months but refused to provide any

documentation.

The mother continued to use substances while the case was

pending and in November 2022 gave birth to a fourth child (son),

who tested positive for cocaine, marijuana, opiates, methadone,

and fentanyl. The father was identified as the putative father.

The department later learned that the mother had given birth to

the son in the father's apartment. When told that the son was

born substance exposed, the father replied, "[W]ow." The father

claimed to have been unaware that the mother was using

substances during her pregnancy and stated he could not control
7
what she does when he is not around. Although the department

received conflicting reports during the proceedings about

whether the mother and father were still together, the father

testified that "if not for the [department's] involvement, he

would be in a relationship with [the] [m]other." When asked at

trial how much access the mother would have to the child should

he be granted custody, the father replied that it would depend

on whether the mother was "clean or using." He admitted,

however, that he could not tell when the mother was under the

influence of crack cocaine or heroin and said he would take her

"at her word" because she "had no reason to lie." He further

testified that, when the mother is using, she "acts like a

child, has mood swings, [and] has temper tantrums."

At the time of trial, the child was two years old and

living in a preadoptive home. The preadoptive mother, who is

the father's step-niece, was the only foster parent the child

has had since birth. During a video conference, the court

investigator observed the child being "snuggly" with the

preadoptive mother, whom the child called "mom." The child

continued to have ongoing health issues and was seeing a

pulmonologist, an ear, nose, and throat specialist, and a

gastroenterologist. She was also seeing a behavioral therapist

and a behavioral therapeutic mentor and was enrolled in
8
occupational and speech therapy. The preadoptive mother was

consistent about taking the child to her frequent medical

appointments. The child's service coordinator opined that the

child's caretaker will "require[] some special skills and

patience and knowledge of her background and needs to properly

care for her."

Discussion. 1. Unfitness. "To terminate parental rights

to a child and to dispense with consent to adoption, a judge

must find by clear and convincing evidence, based on subsidiary

findings proved by at least a fair preponderance of evidence,

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

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

Jacques, 82 Mass. App. Ct. 601, 606 (2012). "Parental unfitness

is determined by considering a parent's character, temperament,

conduct, and capacity to provide for the child's particular

needs, affections, and age." Care & Protection of Vick, 89

Mass. App. Ct. 704, 706 (2016). See Petitions of the Dep't of

Social Servs. to Dispense with Consent to Adoption, 389 Mass.

793, 800 (1983) (child's particular needs should be considered

when determining whether parent is unfit).

Here, the trial judge (who was different from the hearing

judge) made detailed findings that demonstrate by clear and

convincing evidence that the father was unfit to parent the
9
child. At the time of trial, the child had ongoing, complex

medical needs. The father attended only one of the child's

medical appointments, arrived late, and showed disinterest in

learning about her medical condition. He dismissed the child's

neurological issues as "blonde moments," did not learn how to

administer her inhaler, and displayed a disregard for her food

restrictions. Moreover, even aside from the child's medical

needs, the father displayed an inability to parent a child of

her young age and temperament. He missed numerous visits and

often did not engage with the child when he did attend. He

failed to protect the child from common safety risks, such as

electrical outlets and choking hazards, and had to be instructed

to wipe the child's nose, check her diaper, and put on her

shoes. In addition, the judge credited the testimony of the

child's service coordinator that the child's "sensitivities" and

"temperament require careful attention and knowing her [cues],"

yet the father was disengaged during visits and failed to

console the child when she threw tantrums. The father's lack of

understanding of the child's medical and emotional needs, and

his disinterest in educating himself about them, supported the

judge's finding that he was unfit. See Adoption of Jacques, 82

Mass. App. Ct. at 608 (unfitness finding supported by mother's

"limited understanding" of child's medical diagnoses and "her
10
repeated unwillingness and procrastination in seeking services

that would assist her in understanding his special needs").

The evidence of the father's home environment further

supported the trial judge's decision. During home visits in

February and March of 2022, the social worker observed

unsanitary conditions in the father's apartment, which did not

materially improve by the home visit in May 2022. Furthermore,

the father repeatedly canceled home visits, which prevented the

department from viewing his apartment during the pendency of the

trial. "The cleanliness of a parent's home is an appropriate

factor for consideration in determination of that parent's

fitness." Care & Protection of Vick, 89 Mass. App. Ct. at 706.

Contrary to the father's argument, the trial judge could

also consider the father's relationship with the mother, who had

serious and ongoing substance abuse issues. The trial judge did

not "impute[]" the mother's unfitness to the father, as the

father contends. Rather, the trial judge concluded that the

father was "unable or unwilling to set appropriate boundaries"

with the mother, which "is contrary to [the child's] safety."

This conclusion is supported by the evidence. The trial judge

found that the father maintained frequent contact with the

mother, and the father's own testimony showed that he planned to

continue a relationship with her. In addition, the father
11
planned on giving the mother access to the child even though,

by his own admission, he could not always tell when the mother

was using substances and she exhibited volatile behavior when

she was using them. The trial judge could consider the father's

minimization of the mother's substance use, and his inability or

unwillingness to set boundaries with her, as evidence that the

child would be at risk if placed in his care. See Adoption of

Lisette, 93 Mass. App. Ct. 284, 293-294 & n.15 (2018).

All of this evidence, together with the father's failure to

engage in services, clearly and convincingly established that he

was unfit. 4 We disagree with the father's characterization of

the trial judge's decision as based on the father's "perceived

eccentricities." The trial judge's conclusions of law reflect

that he based his decision on the evidence of the father's lack

of understanding of and inability to address the child's special

needs, his unsuitable home environment, his relationship with

4 As the department concedes, one of the trial judge's
findings -- that the father had not worked in the nearly two
years leading up to trial -- is inconsistent with the father's
testimony, which was that he worked twenty-five to thirty hours
per week during that period. But later in his conclusions of
law, the trial judge accurately states that the father had "not
worked full time in at least a year and a half." Moreover, it
is uncontested that the father had stopped working altogether
shortly before trial and that he refused to provide any proof of
his income or the savings that he said he would use to support
the child. Thus, to the extent there was error, we conclude it
was harmless. See Adoption of Peggy, 436 Mass. 690, 702 (2002).
12
the mother, and his failure to address these issues by

engaging in services -- all permissible factors. We are also

unpersuaded by the father's contention that the trial judge

shifted the burden of proof to him to prove his fitness. The

father points out that he was not named as a respondent on the

emergency custody petition or identified as a perpetrator of

abuse or neglect of the child. But the father was added to the

case once adjudicated the biological father, and the trial judge

correctly stated in his decision that the department had the

burden of proving the father's unfitness by clear and convincing

evidence. The father points to nothing in the decision that

suggests that the trial judge shifted the burden of proof to

him.

2. Termination. The evidence further supported the trial

judge's finding that termination of the father's parental rights

would be in the child's best interests. Before terminating

parental rights, "a judge must decide both whether the parent is

currently unfit and whether, 'on the basis of credible evidence,

there is a reasonable likelihood that the parent's unfitness at

the time of trial may be only temporary.'" Adoption of Ilona,

459 Mass. 53, 59 (2011), quoting Adoption of Carlos, 413 Mass.

339, 350 (1992), S.C., 413 Mass. 339 (1992). "We give

substantial deference to a judge's decision that termination of
13
a parent's rights is in the best interests 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, supra.

The trial judge did not abuse his discretion by finding no

reasonable likelihood that the father's unfitness was only

temporary. As the trial judge explained, the father "failed to

address the issues raised by the [d]epartment regarding his

ability to properly care for" the child. The father did not

take a parenting class or complete a parenting assessment at any

time during the pendency of the case, did not gain any

meaningful understanding of the child's special needs, failed to

improve his home environment, and continued his relationship

with the mother and had another child with her, while denying or

minimizing her substance use. The trial judge did not ignore

evidence of the father's positive parenting during visits, as

the father argues. To the contrary, the trial judge found that

the father was "loving and appropriate" with the child during

one visit and that he "often played with blocks or toys on the

floor" with the child. The trial judge also found that the

child had started to bond with the father and entered a

postadoption visitation order allowing the father two supervised

visits per year. The trial judge could still conclude in his
14
discretion, however, that this positive evidence did not

outweigh the other evidence showing that the father's unfitness

was not temporary. See Custody of Two Minors, 396 Mass. 610,

618 (1986) ("judge's assessment of the weight of the evidence

and the credibility of the witnesses is entitled to deference").

The trial judge was also within his discretion to find that

the department's adoption plan was consistent with the child's

best interests. See Adoption of Helga, 97 Mass. App. Ct. 521,

527-528 (2020) (termination inquiry requires judge to consider

plan proposed by department). The child was placed directly

into the care of her preadoptive mother, a kinship placement,

and developed a bond with her. The preadoptive mother was

meeting all of the child's needs and was open to facilitating

contact with both biological parents. Considering the totality

of the evidence, we see no abuse of discretion in the trial

judge's determination that the child's best interests would be

served by terminating the father's parental rights.

3. Reasonable efforts. "When committing a child to the

custody of the department or terminating parental rights, a

judge must determine whether the department has complied with

its duty to make 'reasonable efforts . . . to prevent or

eliminate the need for removal from the home.'" Adoption of

Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. "A judge's
15
determination that the department made reasonable efforts will

not be reversed unless clearly erroneous." Adoption of West, 97

Mass. App. Ct. 238, 242 (2020).

In challenging the trial judge's finding that the

department made reasonable efforts, the father focuses not on

the evidence presented at trial, but on two orders issued by the

hearing judge at early stages of the case. First, the father

argues that the hearing judge erred as a matter of law in

concluding, after the temporary custody hearing, that "where

[the] [f]ather was putative and [the] [m]other was married to

another person, . . . no reasonable efforts were needed

[regarding the father] at the time the [d]epartment was granted

custody of the child." We see no error. The department was

granted emergency custody of the child on August 14, 2020. At

that time the mother had not disclosed to the department that

the father, and not her husband, might be the child's biological

father. To the extent the father argues that the department

should have placed the child with him once it later learned he

is the biological father, that argument is subsumed within the

hearing judge's order after the temporary custody hearing. As

mentioned, the hearing judge ordered that temporary custody of

the child remain with the department, finding a risk that the
16
father might not maintain boundaries with the mother to keep

the child safe.

Next, the father challenges the hearing judge's June 9,

2021 order on the father's motion to require the department to

make reasonable efforts to reunify him with the child.

Specifically, the father argues that the hearing judge erred as

a matter of law in concluding that the "matter is more

appropriately done at a permanency review hearing pursuant to

G. L. c. 119, § 29B and/or at a hearing on the merits." 5 The

father claims that this was error under Care & Protection of

Rashida, 488 Mass. 217, 233 (2021), but that decision was issued

more than two months after the hearing judge ruled on the

father's motion. As the father did not refile his motion or

move for reconsideration, his argument is waived. See Adoption

of Willow, 433 Mass. 636, 651 (2001).

All this aside, it is unclear what relief the father is

requesting from the hearing judge's orders now that the matter

has gone to trial. By the time of trial, the department had

accommodated the requests made by the father in his June 2021

motion, including that he be allowed visits with the child

without the mother present and that he be allowed to attend the

5 Despite this statement, the hearing judge still ordered
the department to address some of the father's concerns.
17
child's medical appointments. The only services the father

now claims the department did not provide are "psychoeducation

about substance use disorder" or a referral "to a group for

people with a family member who struggled with substance use

disorder." But the father did not raise this claim below, so it

is waived. See Adoption of Gregory, 434 Mass. 117, 124 (2001).

In addition, the department's duty to make reasonable efforts

was contingent on the father's fulfilling his own

responsibilities to engage with services, which he failed to do.

See Adoption of Eduardo, 57 Mass. App. Ct. 278, 281-282 (2003).

Finally, even where the department fails to make reasonable

efforts, "a trial judge must still rule in the child's best

interest." Adoption of Ilona, 459 Mass. at 61. A determination

that the department failed to meet its obligation "'shall not

preclude the court from making any appropriate order conducive

to the child's best interest,' including termination." Adoption

of Darlene, 99 Mass. App. Ct. 696, 710 (2021), quoting Adoption

of Ilona, supra. Here, for the reasons above, the trial judge
18
properly found that termination of the father's parental

rights would serve the child's best interests. 6

Decree affirmed.

By the Court (Sacks, Shin &
Hershfang, JJ. 7),

Clerk

Entered: December 11, 2024.

6 "Despite the moral overtones of the statutory term
'unfit,' the [trial] judge's decision was not a moral judgment
or a determination that the mother and father do not love the
child. The inquiry instead is whether the parents' deficiencies
or limitations 'place the child at serious risk of peril from
abuse, neglect, or other activity harmful to the child.'"
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017),
quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761
(1998).

7 The panelists are listed in order of seniority.