Adoption of Chase.

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-458

ADOPTION OF CHASE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a one-day trial, a judge of the Juvenile Court found

the father unfit to parent Chase, terminated his parental

rights, and found the adoption plan of the Department of

Children and Families (department) to be in Chase's best

interests. On appeal, the father contends that the judge

(1) erroneously terminated his parental rights given the

department's failure to make reasonable efforts to reunify,

(2) abused her discretion in finding his unfitness likely to

continue, and (3) erred in terminating his parental rights

before choosing between his and the department's competing

adoption plans. We affirm.2

1 A pseudonym.

2 The mother is not a party to this appeal.
Background. We summarize the judge's findings of fact,

supplemented by uncontested evidence from the record.3

In November 2023, on the same day that Chase was born, the

department received a report under G. L. c. 119, § 51A, alleging

neglect of Chase by his mother after Chase's urine tested

positive for cocaine and marijuana.4 During its G. L. c. 119,

§ 51B investigation, the department learned that the mother had

received limited prenatal care and used "crack" cocaine and

marijuana throughout her pregnancy.

Following its investigation, the department was granted

temporary custody of Chase. A temporary custody hearing was

scheduled for December 1, 2023, but was continued to December

19, 2023, after both parents failed to appear.5 Both parents

again did not appear on December 19, leading the judge to find

that they had forfeited their rights to a hearing.6 At a status

3 The trial judge made forty-seven findings of fact, and the
findings "demonstrate that close attention has been given the
evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).

4 The judge made specific findings of fact about the mother,
which we include only as they bear on the father's parental
fitness.

5 It appears the father was not formally served with notice
of the proceeding. However, the judge found that the department
investigator instructed the father to report to the Juvenile
Court to be served and appointed counsel.

6 The father had an open warrant for his arrest at the time
of Chase's birth, which the judge suggested could have
influenced his decision to not go to the courthouse.

2
hearing on April 29, 2024, neither parent appeared, and a trial

date was set for July 29, 2024.7

After the department obtained custody of Chase, the father

was offered services and action plans were created. The initial

action plans required the father to, among other things,

complete a substance abuse evaluation, engage in services to

address mental health and anger management, attend parenting

classes, obtain appropriate housing, participate in family

visits once a week, provide provisions for Chase during visits,

meet monthly with a social worker, and engage in domestic

violence education. The father made efforts toward completing

several of these tasks, but he was not able to achieve

improvement in his parenting skills and judgment due to his lack

of participation in services. Notably, the father did visit

with Chase under the supervision of department social workers

between November 2023 and April 2024, but during these visits,

the father was often on the telephone with his sister, "appeared

very uncomfortable," and did not bring provisions for Chase,

such as diapers and clothing. Moreover, the father's living

7 The father was being detained pretrial pursuant to G. L.
c. 276, § 58A, on a thirteen-count indictment at the time of the
status hearing. There was no trial date set on the criminal
indictment at the time of the care and protection trial.

3
situation remained precarious, and he did not have a plan to

care for Chase.

Additionally, the father has a history of violent and

volatile behavior, including in front of Chase. For example,

shortly after Chase's birth, hospital security intervened and

removed the father from the hospital room due to his aggressive

behavior toward the mother and the department's workers.8 In

April 2024, the father was arrested and detained "on

dangerousness," pursuant to G. L. c. 276, § 58A, on a thirteen-

count indictment involving illegal substances and firearms. The

father remained detained at the time of the care and protection

trial. The father's counsel requested that the father be

physically present for trial and the court issued a writ of

habeas corpus to ensure his appearance.

The department proposed that Chase be adopted by his foster

parents, who had already adopted Chase's maternal half-sibling,

and with whom Chase had lived "for nearly all his 8 months of

life." Alternatively, the father offered his sister as an

adoptive resource for Chase. However, because the father's

sister lives in Vermont, an Interstate Compact on the Placement

8 The father's behavior escalated after the department
informed him and the mother that it would be removing Chase from
their care and custody.

4
of Children (ICPC) home study was required but not completed by

the trial date.

Following a trial on the merits, the judge issued a decree

on July 30, 2024, terminating the father's parental rights and

approving the department's adoption plan, though "the specific

plan will require further approval of the Court."9

Discussion. 1. Reasonable efforts to reunify. The father

argues that the judge erroneously terminated his parental rights

given the department's failure to make reasonable efforts to

reunify as well as the judge's failure to make a reasonable

efforts determination, thereby resulting in an outcome

"inconsistent with substantial justice."10 Although we agree

with the father that the department should have done more to

schedule visits once the father was confined to a correctional

facility, we conclude that its failure to meet its regulatory

obligations in that specific regard does not require reversal.

9 On January 30, 2025, the judge issued findings and
conclusions in support of her determinations.

10The father raised the issue of reasonable efforts for the
first time at trial. The father's claim on appeal is akin to
"[a] claim of inadequate services[, which] must be raised in a
timely manner to provide the judge and the department the
opportunity to make accommodations while the case is pending."
Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021).
Although the department maintains that the father waived his
reasonable efforts claim by not raising it prior to trial, for
purpose of this appeal, we assume without deciding that he
preserved the claim.

5
"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 confined, 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). These required "efforts shall include

regular visitation at the correctional facility, as well as the

holding of case conferences and other consultations at the

correctional facility." 110 Code Mass. Regs. § 1.10. However,

the department's duty is contingent on a parent's fulfillment of

his or her own parental responsibilities. See Adoption of

Mario, 43 Mass. App. Ct. 767, 774 (1997).

We agree with the father that the department's efforts to

set up visits after the father was confined to the house of

correction fell short of meeting its obligations. The father

testified at trial that he asked the department social worker to

arrange for visitation with Chase, but that that request "was

never accommodated." The judge found that "no evidence was

introduced to suggest he was denied [visits] by the Department,"

6
without reconciling the fact that the department presented no

evidence that it made any attempts to set up visits with Chase

and the father while the father was confined. Regardless, even

where the department did not make reasonable efforts, the judge

can still "mak[e] any appropriate order conducive to the child's

best interest." G. L. c. 119, § 29C. Ultimately, "[w]hile

courts protect the rights of parents, 'the parents' rights are

secondary to the child's best interests and . . . the proper

focus of termination proceedings is the welfare of the child.'"

Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting Adoption of

Gregory, 434 Mass. 117, 121 (2001).

Outside of visits, the father also claims that the

department did not provide him with adequate services to address

his parenting deficiencies. While the father might have

benefited from additional services, especially while confined,

the consequences of any department failure to provide those

services must be viewed in light of the father's failure to make

effective use of such services and opportunities when they were

made available to him at other times.

Additionally, while the judge's findings of fact and

conclusions of law do not include the requisite finding

regarding whether the department had made reasonable efforts

toward reunification, we conclude that a remand would serve no

useful purpose here. See Care & Protection of Rashida, 488

7
Mass. 217, 220 (2021), S.C., 489 Mass. 128 (2022). As stated

supra, "even where the department has failed to meet [its

reasonable efforts] obligation, a trial judge must still rule in

the child's best interest." Adoption of Ilona, 459 Mass. at 61.

Here, as discussed infra, the judge found that the father's

"unfitness . . . is likely to continue into the indefinite

future to a near certitude," and she concluded that Chase's best

interests would be served by termination of the father's

parental rights.

Where the father's unfitness was permanent, and where

Chase's best interests warranted termination, nothing would be

accomplished by remanding and requiring the department to

provide reunification services. At this stage of the

proceedings and of Chase's life, a hypothetical determination

that the department reasonably should have done more at an

earlier stage would not change the judge's disposition of the

case.

2. Unfitness determination. The father next contends that

the judge erred in terminating his parental rights because the

facts as found were not sufficient to support a determination of

likely indefinite unfitness. We disagree. When faced with a

request to terminate parental rights, the judge must find by

clear and convincing evidence that the parent is unfit, and that

"the unfitness will continue undiminished into the future,

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affecting the welfare of the child." Adoption of Lisette, 93

Mass. App. Ct. 284, 296 (2018). See G. L. c. 210, § 3 (c) (vi)

("reasonable expectation that the parent will not be able to

provide proper care or custody within a reasonable time

considering the age of the child"). "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." Adoption of Anton, 72 Mass. App.

Ct. 667, 673 (2008). The judge's subsidiary findings must be

proved by a preponderance of the evidence and will only be

disturbed if clearly erroneous. See Custody of Eleanor, 414

Mass. 795, 799 (1993). On review, we give "substantial

deference to a judge's decision that termination of a parent's

rights is in the best interest[s] 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

Yalena, 100 Mass. App. Ct. at 549, quoting Adoption of Ilona,

459 Mass. at 59. "Because childhood is fleeting, a parent's

unfitness is not temporary if it is reasonably likely to

continue for a prolonged or indeterminate period." Id. at 60.

Predictions about a parent's unfitness must be "more than

hypothetical," Adoption of Inez, 428 Mass. 717, 723 (1999). In

determining future fitness, the judge "properly may consider a

9
pattern of parental neglect or misconduct." Adoption of Elena,

446 Mass. 24, 33 (2006).

Having carefully reviewed the record, "[w]e see no basis

for disturbing the judge's view of the evidence." Adoption of

Quentin, 424 Mass. 882, 886 n.3 (1997). Here, the judge

considered the father's lack of preparedness to parent Chase,

history of violence and anger management issues, and minimal of

engagement in directed services and case proceedings.

Specifically, the judge found that the father's awareness

of the mother's substance use history and that her parental

rights to another child had been terminated less than one year

before Chase's birth put him on notice that he needed to plan

for Chase's care and be Chase's primary parent. Despite this

knowledge, the father did not take steps to prepare for Chase's

arrival. For example, he did not have stable housing or basic

newborn supplies, such as a crib and car seat. The plan that

the father did share with the department was "haphazard and

insufficient" and left Chase "at imminent risk of serious abuse

or neglect."

The judge also properly considered the father's lack of

progress in completing the tasks on his action plans. See

Adoption of Luc, 484 Mass. 139, 147 (2020). Although the father

made some positive efforts, including attending visits with

Chase before being detained in a house of correction, a number

10
of key tasks remained uncompleted at the time of trial,

including participation in substance use assessment or treatment

and domestic violence education. The father testified that he

signed up for parenting, anger management, and substance use

classes but did not participate in them.

Moreover, the judge considered the father's criminal

history in reaching the determination of unfitness. See Care &

Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002) (parent's

criminal record is relevant to extent it bears on parental

fitness). At the time of trial, the father was being held "on

dangerousness" on a thirteen-count indictment. The judge also

considered that the father had already served three jail

sentences, each at least nine months long, by the time of

Chase's birth, and that the father's involvement with law

enforcement continued after Chase's birth. This pattern

continued "to place [Chase] at great risk of abuse or neglect

due to Father's absence from [Chase's] life." The judge also

found that the father minimized his criminal history, "caus[ing]

the Court greater concern for the danger Father would pose to

[Chase] in that Father does not have the capacity to manage

difficult times, and his reactions to them."

Taken together, the judge's findings provide clear and

convincing evidence of the father's current and indefinite

unfitness, and that the termination of his parental rights was

11
in Chase's best interests. See Adoption of Yalena, 100 Mass.

App. Ct. at 552-553.

3. Adoption plan. The father argues that the judge erred

in terminating his parental rights without first choosing

between the father's adoption plan and the department's plan,

thereby leaving the choice of adoptive placement to the

discretion of the department. After finding a parent unfit, the

judge is required to assess all placement plans and "determine

which placement will serve the best interests of the child."

Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The

judge's assessment of each plan must be "even-handed,"

regardless of which party offered the plan (citation omitted).

Adoption of Irene, 54 Mass. App. Ct. 613, 617 (2022). The

judge's determination will not be reversed unless there is an

abuse of discretion or clear error of law. See Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub. nom. Hugo P.

v. George P., 526 U.S. 1034 (1999).

The judge considered the department's plan that Chase be

adopted by his current foster parents, who had already adopted

Chase's maternal half-sibling and with whom Chase had lived "for

nearly all his 8 months of life." The judge considered Chase's

"close connection" to his foster parents and that the placement

is meeting Chase's needs. Conversely, the judge considered the

father's proposal that his sister, who lives in Vermont, adopt

12
Chase. However, by the trial date, the department had not yet

submitted a request for an ICPC home study due to delays in

acquiring the required documents.11 The judge found that "[t]he

longer that process takes, the stronger [Chase's] attachment to

his current foster family will grow, making removal a

potentially harmful act." While the judge found the

department's proposed adoption plan to be in the best interests

of Chase, she acknowledged that the department's proposed plan

could change depending on the results of an ICPC home study of

the paternal aunt. Consequently, the judge concluded that "[i]f

the Department elects to place [Chase] with . . . his aunt, the

Department shall file notice of such intention with the Court so

that the amended plan can be considered, and counsel for [Chase]

will have an opportunity to be heard."

"[W]here the judge lacks sufficient information to

determine what plan serves the child's best interests, it is not

appropriate for the judge 'to leave the choice of adoptive

placement to the discretion of [the department] subject only to

11To initiate an ICPC home study, which is required for
potential out-of-State placements, the department needs the
child's birth certificate and Social Security number. The
department requested Chase's birth certificate "immediately
after his November 2023 birth and followed up on the request
several times but did not receive it until March of 2024." The
department applied for Chase's Social Security number after
receiving his birth certificate but had not received anything by
the time of trial.

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review by the adoption judge under G. L. c. 210, § 6.'"

Adoption of Cadence, 81 Mass. App. Ct. 162, 171 (2012), quoting

Adoption of Dora, 52 Mass. App. Ct. at 476. Here, the judge

determined that the department's plan was in Chase's best

interests, but because the results of an ICPC could alter the

department's placement decision, the judge directed the

department to file notice of any change with the court and

reserved the authority to approve or deny the altered plan.

This did not equate to an impermissible delegation of a judge's

statutory duty to determine what is in the child's best

interests.

Decree affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.12),

Clerk

Entered: December 18, 2025.

12 The panelists are listed in order of seniority.

14