Adoption of Osei.

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-1375

ADOPTION OF OSEI.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree issued by a Juvenile Court

judge finding him unfit to parent his son, terminating his

parental rights, and approving the adoption plan of the

Department of Children and Families (department). Concluding

that the judge properly found clear and convincing evidence of

parental unfitness that would continue indefinitely, we affirm.

Background. We set forth the facts found by the judge,

reserving some details for later discussion. The father and the

mother share two children; Osei, born in July 2022, who is the

subject of this appeal, and Carly,2 Osei's sister, who was born

in December 2017. We address the father's involvement with the

1 A pseudonym.

2 A pseudonym.
department prior to Osei's birth as it bears on the judge's

findings and conclusions. In 2019, the department received

three reports pursuant to G. L. c. 119, § 51A (51A reports),

alleging neglect of Carly: the first when the mother was

arrested for assault and battery on the father, who had

scratches, redness, and bruising; the second alleging that the

mother, the father, and the maternal grandmother were using

substances in the home; and the third, which led to a case for

services being opened, when the father was arrested after

headbutting the maternal grandmother, causing her to bleed from

her mouth. Throughout the three investigations, the mother and

the father denied any domestic violence or substance use,

declined services for Carly, refused to enroll in their own

therapeutic services, and inconsistently met with the

department.

In August of 2020, the father was arrested for assault and

battery on a household member when, with Carly present, he

slapped and put his hands around the mother's neck and threw her

to the ground. He also attacked the maternal grandmother. The

parents again denied any domestic violence existed in their

relationship and refused all services. During the time that the

case was open, it was discovered that between January of 2020

and January of 2021, the family had canceled or failed to appear

2
for multiple pediatric appointments and a well visit for Carly,

and that she was behind in lead testing and other inoculations.

In August of 2021, police officers were dispatched to the

father's home upon a report of a "female banging on her

neighbor's door, screaming for help." With Carly present, the

father had hit and strangled the mother, thrown a dresser drawer

at her, held her down, taken her phone, and stepped on her

throat and vaginal area. During the investigation, the mother

had bruises on her legs, arms and neck that she confirmed were

from the attack by the father. On August 24, 2021, the

department assumed emergency custody of Carly. Specifically,

the department supported the allegations of neglect due to

domestic violence and had concerns with the mother's untreated

mental health and substance use, and the father's substance use.

Throughout the investigations, the department remained concerned

about the parents' dishonesty with the department and their

failure to engage in services.

For five months following Carly's removal, the mother and

the father consumed fentanyl daily. They also used cocaine and

marijuana. The father purchased the substances from a drug

dealer and provided them to the mother. The father did not have

consistent communication with the department or attend visits

with Carly.

3
Around January 20, 2022, the father discovered that the

mother was pregnant but continued to purchase her narcotics and

use them with her. The father entered a detoxification and

rehabilitation program (program) on January 28, 2022, and

admitted that he had an opiate dependence for several years,

only achieving sobriety when incarcerated. The father left the

program after approximately eleven days of treatment.

In the months after attending the program, the father

resided with the mother who continued to use narcotics during

her pregnancy. The father met with the department in March of

2022 and disclosed his participation in the program but did not

inform the department of the mother's pregnancy or that she

continued to use narcotics.

Osei was born a few months later. Two days following

Osei's birth, the department received a 51A report alleging

neglect and substance exposure concerns because of the mother's

cocaine and fentanyl use during her pregnancy, her lack of

prenatal care, and because Osei tested positive for methadone at

birth. The department conducted an emergency removal of Osei

and opened the case for investigation. During the investigation

the father was "not forthcoming" about his history of substance

use, claimed he had not used substances for six months despite

his relapse in March of 2022, continued to deny any domestic

4
violence between himself and the mother, and did not sign a

release for the department to access his provider's treatment

records before the conclusion of the investigation.

In August of 2022, during a stop for operating a motor

vehicle with a suspended license, the police found drug

paraphernalia, burnt Brillo, and glass pipes in the father's

vehicle. In May of 2023, police officers were called to the

parents' home for a domestic disturbance. The parents both told

the officers that it was a verbal argument even though the

father had visible injuries. In August of 2023, the mother sent

four text messages to a group that included a department social

worker and the father, seeking the father's assistance in

procuring "fake" urine for her to tamper with her unsupervised

drug screens.

The department recommended action plan tasks to the father

including attending meetings with the department, attending

visits consistently, signing unrestricted releases relative to

his drug screens, and enrolling in outpatient treatment, plus

engaging in individual counseling, a parenting class, a

nurturing father's class, an anger management program, and

inmate partner violence services. The father did not attend any

anger management sessions until almost a year following Osei's

removal and attended only a four-hour domestic violence class

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despite the department recommending intensive treatment. The

father relapsed in March and October of 2022 after using

cocaine, and he tested positive for tetrahydrocannabinol (THC)

over several months. The father failed to attend visits with

Osei from October of 2022 until January of 2023 and failed to

attend eight visits between January 27 and May 16 of 2023.

Trial began in October of 2023 when Osei was fifteen months

old, and proceeded over five nonconsecutive days, concluding on

January 31, 2024. Days before trial began, a police officer

attempted to pull over the father's vehicle for a revoked

registration. The father "intentionally fled" and accelerated

through a school zone, "dr[iving] recklessly endangering

numerous children" before "crash[ing]. . . in the front of the

. . . Police Station."3 The father's actions "put numerous

children at risk."

At trial the father took the position that he and the

mother were no longer in a relationship and argued that Osei

should be returned to his custody. The father argued that he

had complied with his action plan tasks, that he was sober, that

no domestic violence had infected the parents' relationship, and

that he had no concerns about the mother's substance use.

3 At trial the father testified that he crashed because his
power steering failed. The judge did not credit this testimony.

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Discussion. 1. Standard of review. To terminate parental

rights to a child and to dispense with parental consent to

adoption, a judge must find by clear and convincing evidence,

based on subsidiary findings proved by at least a fair

preponderance of the evidence, that the parent is unfit to care

for the child and that termination is in the children's best

interests. Adoption of Jacques, 82 Mass. App. Ct. 601, 606

(2012). That decision must also be supported by a finding "that

the current parental unfitness is not a temporary condition."

Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). "We

review the judge's findings with substantial deference,

recognizing her discretion to evaluate a witness's credibility

and to weigh the evidence." Adoption of Nancy, 443 Mass. 512,

515 (2005). Where there is clear and convincing evidence that

the parent is unfit and likely to remain so, we give substantial

deference to the trial judge's decision regarding the child's

best interests 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, the record amply supports the judge's 237 findings of

fact and multiple conclusions of law, and we discern no abuse of

discretion or error of law in the ultimate conclusions that the

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father is unfit, that his unfitness is not temporary, and that

termination of his parental rights is in Osei's best interests.

2. The father's briefing. At the outset, we address the

father's briefing. The father asserts that the "majority" of

the judge's findings do not pertain to him and are relevant only

to the mother or the child. He then references dozens of

findings without supporting legal argument. We see no need to

address these claims as this briefing does not rise to the level

of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as

appearing in 481 Mass. 1628 (2019). Also, the father argues

error within the judge's "summary" without making specific

references to the record. Arguments relying on "naked

assertion[s], unsupported by any authority or reasoned

argument," Andover v. Energy Facilities Siting Bd., 435 Mass.

377, 394 (2001), do not rise to the level of appellate argument

and are deemed waived. See Kellogg v. Board of Registration in

Med., 461 Mass. 1001, 1003 (2011); Geezil v. White Cliffs

Condominium Four Ass'n, 105 Mass. App. Ct. 103, 112 n.8 (2024);

Adoption of Zak, 90 Mass. App. Ct. 840, 842 n.4 (2017).

Notwithstanding, we exercise our discretion and address the

discernible issues.

3. Parental unfitness. When reduced to essentials, the

father challenges the judge's finding of unfitness, and the

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subsidiary findings related to his substance use, the impact of

violence in the household, and the father's inability to

terminate his relationship with the mother. We address each in

turn.

a. Substance use. The father argues that the judge's

findings nos. 91, 105, and 134, and the conclusions of law on

pages 43, 46, 48 and 49 -- all related to the father's substance

use -- are clearly erroneous. We disagree. Finding no. 91

accurately reports that the father "stepped down" from the

program and failed to initiate a relapse prevention plan, as

supported by a July 2022 affidavit of a department social worker

and a November 2022 status report. Finding no. 105 is supported

by the father's own admission to the department that he relapsed

in March of 2022 and did not enter outpatient treatment until

October of 2022, and finding no. 134 is a verbatim transcription

of four text messages sent by the mother to the department

social worker and the father seeking to purchase fake urine for

her drug testing.

To the extent that the father challenges the judge's

findings within her conclusions of law that the father aided the

mother in the manipulation of her drug screens and that the

father failed to protect the child from the mother's substance

abuse in utero, the judge was within her discretion to decline

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to credit the mother's explanation that the text messages

seeking assistance in tampering with her drug screen were "an

error on [her] part," and the judge could fairly infer that the

father was not only aware of the mother's attempts to manipulate

her screens but had financed her purchase and used fake urine

himself in the completion of his unsupervised drug screens.

"Evidence of alcohol or drug abuse clearly is relevant to a

parent's willingness, competence, and availability to provide

care . . . ." Care & Protection of Frank, 409 Mass. 492, 494

(1991). Moreover, there was ample evidence that at a time when

the father knew the mother was pregnant, he purchased fentanyl

and cocaine and used it with her. Even though the father later

equivocated and testified that he "didn't know if it was during

pregnancy or not," the mother testified that she and the father

used fentanyl, purchased by the father, daily until her

admission to her rehabilitation program. These credibility

determinations were within the judge's discretion, and the judge

could reasonably infer that the father, aware of the mother's

pregnancy, failed to report either the pregnancy or the

substance misuse to the department.

b. Domestic violence and the father's relationship with

the mother. The father also challenges the judge's conclusions

that "Father's relationship with Mother, who continues to abuse

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substances, the domestic violence between them, and poor

decision-making inhibits Father from assuming parental

responsibility," and "[b]ecause Mother and Father remain a

united couple, Mother's untreated issues, unacknowledged by

Father, affect Father's ability to parent [Osei] and to keep

[Osei] safe from Mother." These conclusions reflect the judge's

concern that the father denied his ongoing relationship with the

mother, refused to acknowledge both during the open care and

protection case and at trial the history of domestic violence

and substance misuse, and had no insight into the ongoing risks

to his son from these things.

That the father continued to be in a relationship with the

mother was amply supported by the mother's admissions, credited

by the judge, to sleeping overnight at the father's home; her

belongings remaining at the home, including her pet cat; failing

to provide the department with the name or address of any new

roommate or residence; and depending on the father for financial

and transportation support. Moreover, the findings that the

parties' relationship was marred by domestic violence were well-

substantiated by reports including the mother's arrest for

domestic assault and battery of the father, the father's arrest

for "head-butt[ing]" the maternal grandmother in the presence of

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the mother and Carly, and a police intervention where the mother

reported, inter alia, that the father had hit and strangled her.

On this record, the judge was within her discretion to

conclude that the father neither admitted to being a victim or

perpetrator of domestic violence, nor meaningfully benefitted

from the programs that he attended, "evidenced by his continued

denials, minimization of prior incidences, and refusal to engage

in concentrated services." "[M]ere participation in the

services [recommended by the department] does not render a

parent fit 'without evidence of appreciable improvement in

[their] ability to meet the needs of the child[].'" Adoption of

Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting Adoption of

Terrence, 57 Mass. App. Ct. 832, 835-836 (2003). The judge

properly inferred that the child remained at risk of exposure to

serious substance misuse and violence while in the father's

care. "[I]nstances of such familial violence are compelling

evidence of a finding of parental unfitness." Adoption of

Talik, 92 Mass. App. Ct. 367, 374 (2017). "Violence within a

family is highly relevant to a judge's determination of parental

unfitness and the best interests of the children." Adoption of

Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). "[P]hysical

force within the family is both intolerable and too readily

tolerated, and . . . a child who has been either the victim or

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the spectator of such abuse suffers a distinctly grievous kind

of harm" (citation omitted). Adoption of Garret, 92 Mass. App.

Ct. 664, 671 (2018).

4. Termination of parental rights. The father argues that

even if he was unfit at the time of the trial, the judge erred

by finding that it was not temporary and instead would continue

into the future. A "judge is not required to grant [a parent]

an indefinite opportunity for reform," Adoption of Cadence, 81

Mass. App. Ct. 162, 169 (2012), and "[w]hile consideration of

the reasonable likelihood that a parent's unfitness at the time

of trial may only be temporary is appropriate, such a prediction

must rely 'upon credible evidence rather than mere hypothesis or

faint hope.'" Adoption of Lisette, 93 Mass. App. Ct. 284, 296

(2018), quoting Adoption of Serge, 52 Mass. App. Ct. 1, 7

(2001). As discussed above, we conclude that given the judge's

findings, amply supported by the record, that the father neither

acknowledged or addressed a lengthy history of violence in his

relationship with the mother nor acknowledged his lengthy

history of substance use and relapse, the judge committed no

error or abuse of discretion. While the father may have availed

himself of some programs and achieved some improvements, the

judge properly concluded that the father's participation was

insufficient to mitigate the potential for risk of harm to Osei.

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See Adoption of Ilona, 459 Mass. at 59-60 ("Even where a parent

has participated in programs and services and demonstrated some

improvement, we rely on the trial judge to weigh the evidence in

order to determine whether there is a sufficient likelihood that

the parent's unfitness is temporary").4

Decree affirmed.

By the Court (Massing,
Sacks & Allen, JJ.5),

Clerk

Entered: February 27, 2026.

4 "Other points, relied on by the [father] but not discussed
in this opinion, have not been overlooked. We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954). Those include that the father's criminal
record had insignificant prognostic value and that Osei was not
bonded with his preadoptive family.

5 The panelists are listed in order of seniority.

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