Adoption of Imar.

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-1053

ADOPTION OF IMAR. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Imar, born in 2011, appeals from so much of a Juvenile

Court judge's decree as terminated the father's parental rights.

Although Imar does not challenge the finding of unfitness, he

argues that the judge abused her discretion by ruling that

termination was in his best interests, because (1) the

permanency plan submitted by the Department of Children and

Families (DCF) was too vague to be accepted; and (2) he does not

want to be adopted, is old enough to oppose adoption, and wants

to be reunified with the father, who in Imar's view is capable

of caring for him. We affirm the decree.

We clarify at the outset that certain issues arising out of

the same Juvenile Court trial are not properly before us.

First, the judge also terminated parental rights as to Andrew,

1 A pseudonym.
born in 2009, but he did not timely appeal. Andrew is nominally

an appellee but has filed a brief that, while not challenging

the findings of unfitness, argues that it was an abuse of

discretion to terminate the father's parental rights. Second,

the father filed a timely notice of appeal but failed to timely

docket that appeal. The father filed a brief that, like those

of Imar and Andrew, does not challenge the finding of unfitness

but argues that termination of his parental rights was an abuse

of discretion. A single justice denied the father's motion for

leave to file that brief late but ordered that the brief be

retained for possible consideration by the panel. We have

exercised our discretion to consider the arguments in the briefs

filed by Andrew and the father to the extent they are relevant

to the relief sought by Imar. 2

Background. The judge summarized her reasons for finding

the father permanently unfit as follows:

"[T]he court considered his history of housing instability,
his lack of insight into his children’s needs and services,
his lack of accountability, his self-medication with
marijuana, and his lack of measurable gains in parenting
ability despite engagement in services. Finally, the court
considers the children’s lengthy separation from . . .

2 The judge also issued decrees terminating the mother's
parental rights, but she did not appeal, nor has the termination
of her rights been challenged by Imar or Andrew or by the
father. Finally, decrees also issued terminating the parents'
rights as to the younger sister of Imar and Andrew, but neither
she nor either parent appealed, nor do the briefs raise any
issue as to her.

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[the] [f]ather’s care, as well as their growth and progress
in placement."

The judge also noted that, although the father sought

reunification, "[h]e does not exhibit the capacity to comprehend

the needs of his children or the skills to meet them. It would

pose a significant risk to [Imar and Andrew] were the boys to be

reunified with him in his home." Reunification would be

"contrary to their best interests." Both Imar and Andrew

"require a great deal of consistency and stability, as well as

continuity of services. [The father] cannot provide this

consistency, stability, or continuity." As already stated,

Imar does not argue on appeal that the finding of permanent

unfitness was erroneous.

Imar was placed in a comprehensive foster care (CFC)

placement in November 2019 and remained there as of the close of

the evidence in 2023. CFC foster parents are "specially trained

to provide care for children with behavioral struggles." The

adoption social worker testified that Imar was not ready to

"step down" from his CFC placement to an unrestricted foster

placement. His current placement, however, was "not committed

to providing him permanency." Imar wished to be reunified with

the father. Although Imar "has been clear in his refusal to be

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adopted, [DCF] has maintained this goal due to his age.[3] While

the current placement is not permanent, it is the place where

[Imar] has been most stable, and bodes well for a future

permanent adoptive parent or guardian to commit to [Imar]."

Andrew's situation was similar. As of the close of the

evidence, he had been in the same CFC placement since February

of 2020, from which he was not ready to step down. He had "made

clear that he would prefer to be with his father." "Although

[Andrew had] clearly expressed that he does not wish to be

adopted and is of the age where his consent is required, he has

still been in a stable and caring home that is open to being a

guardianship placement." 4

3 Imar, born in November of 2011, was eleven as of the close
of evidence in February 2023, but is now thirteen and thus,
under G. L. c. 210, § 2, old enough to veto adoption.

4 More than one year after the close of the evidence and
entry of the decrees, and after Imar's appeal was docketed in
this court, Andrew informed us that his placement had disrupted,
and he sought leave to file a late notice of appeal of the
decree terminating the father's rights to him. A single justice
denied his motion, as more than one year had elapsed. See Mass.
R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019).
Notwithstanding the posttrial disruption of his placement, we
"address the propriety of the judge's orders based on the
evidence introduced at trial, and not on posttrial events."
Adoption of Willow, 433 Mass. 636, 644 n.8 (2001).
Posttermination developments that affect DCF's progress in
implementing an adoption or other permanency plan should be
addressed at the permanency hearing mandated by G. L. c. 119,
§ 29B. See Adoption of Nate, 69 Mass. App. Ct. 371, 375 (2007).

4
DCF's goal for both boys was "permanency through adoption,"

although DCF planned to pursue guardianships for the boys if

available. The judge concluded that DCF's permanency plan,

"including the testimony of the social workers, has sufficient

content and substance to permit this court the meaningful

ability to evaluate what [DCF] proposes to do for these

children," and that the "plans are in the best interests of the

children."

At the heart of the judge's rationale for why termination

of the father's rights was in Imar's and Andrew's best interests

was the following:

"The effect of leaving parental rights intact has had a
detrimental effect on the boys’ achieving permanency. The
court reasons that they will have a better chance of
achieving permanency without parental legal ties. Children
who are legally freed have a wider pool of pre-adoptive
parents willing to consider making a commitment to them.
[Imar] in particular has refused to consider -- or even
meet -- prospective permanent parents because he holds out
hope of reunifying with his father. The court wishes to
make it clear to the boys that reunification with their
father is not possible. It is time for different
caretakers to assume legal responsibility for them. This
in no way severs the emotional bond -- or the necessity of
contact -- between [the boys] and their father. The court
wishes to provide them with opportunity for supportive,
stable care that is not available to them were they to
return to their father. [He] can and should remain a
comforting presence in their lives, but he does not have
the capacity to meet their needs."

Further recognizing the importance of the parent-child bond, the

judge found that that posttermination and postadoption contact

with the father was in the boys' best interests. She ordered

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"no fewer than four" such contacts annually for each boy, with

more frequent contact for Imar until he was moved to a

preadoptive home.

Discussion. 1. Permanency plan. In determining the best

interests of the child, the judge must consider, among other

things, "the plan proposed by the department." G. L. c. 210,

§ 3 (c). "The law does not require that the adoption plan be

fully developed in order to support a termination order, but it

must provide sufficient information about the prospective

adoptive placement so that the judge may properly evaluate the

suitability of the department's proposal" (quotations and

citations omitted). Adoption of Varik, 95 Mass. App. Ct. 762,

770 (2019). "In determining the sufficiency of the plan, the

judge may consider evidence and testimony presented at trial

regarding unfitness and the child's best interests, in addition

to the written plan." Id.

Here, DCF's written plan was very sparse, saying little

more than that the goal for both boys was adoption. At trial,

however, the adoption social worker testified that both Imar and

Andrew were in CFC placements from which they were not yet ready

to step down. Implicit in this was DCF's view that both boys

should be placed with preadoptive parents who, like CFC parents,

were specially trained, or at least prepared, to provide care

for children with behavioral struggles.

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The judge also found that both boys "require a great deal

of consistency and stability, as well as continuity of

services," and, further, "require caretakers who can prioritize

their needs, including engagement in numerous specialized

services." The judge concluded that DCF should continue to

investigate options not only for adoption of Imar but also for a

guardianship. DCF was also considering seeking a guardianship

for Andrew, who at that time was in a seemingly stable CFC

placement with a family open to a guardianship.

The judge concluded that DCF's plan, as supplemented by

social worker testimony, gave her "the meaningful ability to

evaluate what [DCF] proposes to do for these children," and that

DCF's plans were in the boys' best interests. It would

certainly be desirable for DCF to submit written plans

detailing, or at a minimum to have its social workers prepared

to testify in more detail about, the characteristics of the

caretakers being sought for a particular child. Cf. Varik, 95

Mass. App. Ct. at 771 (plan inadequate where it "failed to

specify the type of adoptive parents and the characteristics of

the home environment best suited to meet [child's] specific

needs"). But more detail will be required in some cases than in

others; Varik did not establish a prescribed level of detail

applicable to every case. See Adoption of Xarissa, 99 Mass.

App. Ct. 610, 621-622 (2021). That is particularly so where a

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child's preferences may change after termination. Id. at 622-

623. Here we cannot say that the information before the judge

about DCF's plans for the boys was so vague as to make her

approval of them an abuse of discretion.

2. Termination. Because termination of parental rights is

an "extreme step," "[t]he natural bond between parent and child

should not be permanently severed unless the child's present or

future welfare demands it." Adoption of Carlos, 413 Mass. 339,

350 (1992). Further, before taking this "extreme step," a judge

must "articulate specific and detailed findings in support of a

conclusion that termination is appropriate, demonstrating that

she has given the evidence close attention." Adoption of Nancy,

443 Mass. 512, 514–515 (2005). "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). Determining the best interests of the

child presents the judge "with a classic example of a

discretionary decision." Adoption of a Minor (No. 2), 367 Mass.

684, 688 (1975). "Standards of mathematical precision are

neither possible nor desirable in this field; much must be left

to the trial judge's experience and judgment" (quotation

omitted). Id. The question is not whether we would have made

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the same decision, but instead whether the judge made a "clear

error of judgment in weighing the factors relevant to the

decision such that the decision falls outside the range of

reasonable alternatives" (quotation and citation omitted). L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge's decision identifies two different grounds

on which termination will further the boys' best interests. We

consider them in turn.

First, we understand the judge to have concluded that

termination of the father's rights is likely to increase the

boys' receptiveness to the alternative permanent placements they

need. In that vein, the judge concluded that Imar had "refused

to consider -- or even meet -- prospective permanent parents

because he holds out hope of reunifying with his father" and,

therefore, the judge "wishe[d] to make it clear to the boys that

reunification with their father is not possible." As DCF

suggested at oral argument before us, the judge wished to

disabuse the boys of false hopes.

We recognize that the judge made no express finding that

eliminating such hopes will materially change the boys'

willingness to consider other placements. 5 But it is the rare

5 The judge did not predicate her decision on the likelihood
of adoption. Rather, she was careful to state that she
understood and had considered the preferences of both boys not
to be adopted: "Even if adoption is not the ultimate outcome,

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case in which a judge will have sufficient direct evidence to

accurately predict future changes in a child's attitudes and

feelings. 6 Nevertheless, even without such evidence, it stands

to reason that termination is more likely to increase a child's

receptiveness to alternative placements than to decrease it.

And we owe deference not only to the judge's assessment of

credibility and weighing of the conflicting evidence but also to

her "experience and judgment" (citation omitted). Adoption of a

Minor (No. 2), 367 Mass. at 688.

Here the judge considered this likely benefit of

termination, and she also considered the importance of "the

emotional bond -- [and] the necessity of contact -- between [the

boys] and their father," who "can and should remain a comforting

presence in their lives." She recognized the importance of that

bond by ordering posttermination and postadoption contact. Thus

the judge implicitly concluded that, on balance, the benefit to

the boys of increasing their openness to other permanent

severing their legal relationship with their parents serves
their best interests, as it frees them to be parented by
caretakers who are capable of addressing their needs and
providing long term stability."

6 We note the judge's finding that the father "would also
consistently make statements to the children, telling them to
contact their lawyers saying they wanted to be reunified, or
telling the children to refuse to be put into a new placement if
they were moved."

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placements was likely to outweigh the detriment to them of

severing their purely legal bond -- while preserving their

emotional bond -- with the father. We cannot say this was an

abuse of discretion.

Second, the judge concluded that termination would likely

increase the availability of such other permanent placements.

Thus, the judge reasoned that the boys "will have a better

chance of achieving permanency without parental legal ties.

Children who are legally freed have a wider pool of pre-adoptive

parents willing to consider making a commitment to them."

Although to date the boys have opposed adoption, the judge was

not bound to accept that position as their last word on the

subject. She could consider that their attitudes may change

once they know reunification is no longer possible, and that in

such circumstances they would benefit from the availability of a

greater number of potential adoptive parents.

For these reasons, the judge did not abuse her discretion

in terminating the father's parental rights.

Conclusion. The decree terminating the father's parental

rights to Imar is affirmed.

So ordered.

By the Court (Sacks,
Englander & Walsh, JJ. 7),

7 The panelists are listed in order of seniority.

11
Clerk

Entered: August 25, 2025.

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