Adoption of Gladys.

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

22-P-771

ADOPTION OF GLADYS.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree by a judge of the Juvenile

Court finding him unfit to further the welfare of his daughter

and terminating his parental rights to the child. On appeal, he

argues that the judge erred in (1) making impermissible and

erroneous findings of fact and conclusions of law with respect

to contested issues at trial, (2) failing to conduct a fair

assessment of the trial evidence, and (3) declining to order

posttermination and postadoption visitation. We affirm.

Discussion. 1. Findings of fact. The father argues that

the judge erred by making several legally impermissible findings

of fact. He first contends that the judge erred in finding that

the father abused the child in the absence of evidence or

testimony supporting such a finding, other than the adverse

inference the judge drew based on the father's exercise of his

1 A pseudonym.
privilege, under the Fifth Amendment to the United States

Constitution, when refusing to testify regarding the abuse

allegations. The father argues that, because an adverse

inference alone is not sufficient to support a finding, and

because the record before the judge did not otherwise support a

finding of abuse, such a finding was error as it was not

supported by a preponderance of the evidence.

The father further asserts that the judge erred by finding

that (1) he failed to comply with the action plan created for

him by the Department of Children and Families (DCF), (2) he

failed to address the underlying issue of sexual abuse, (3) he

did not understand the child's emotional needs, and (4) the

child had bonded with her kinship foster family. We address

each of these arguments in turn and, concluding that there was

ample support in the record to support the contested findings,

discern no error.

"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 evidence, that the parent is

unfit to care for the child and that termination is in the

child's best interests." Adoption of Bea, 97 Mass. App. Ct.

416, 421-422 (2020), quoting Adoption of Jacques, 82 Mass. App.

2
Ct. 601, 606 (2012). With respect to adverse inferences, the

Supreme Judicial Court has explained that

"'[i]n a civil action, a reasonable inference adverse to a
party may be drawn from the refusal of that party to
testify on the grounds of self-incrimination.' No
inference can be drawn, however, unless a case adverse to
the interests of the party affected is presented so that
failure of a party to testify would be a fair subject of
comment. In other words, the adverse inference drawn from
the failure of a party to testify is not sufficient, by
itself, to meet an opponent's burden of proof." (Citations
omitted.)

Custody of Two Minors, 396 Mass. 610, 616 (1986), quoting

Wangsong v. Wangsong, 395 Mass. 154, 157 (1985).

"On appeal, '[w]e 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 Bea, 97 Mass. App.

Ct. at 422, quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

a. Abuse of the child. There was ample evidence to

support a finding, by a fair preponderance of the evidence, that

the father sexually abused the child.2 Among the exhibits were

2 The father asserts in his brief that "[t]he judge erred when
relying on this inference to find that Father harmed [the child]
without more substantive evidence to support that conclusion."
He does not, however, identify a specific finding of fact that
declares he harmed the child. DCF argues that the judge never
actually found that the father abused the child. While we
discern no finding among the judge's 250 enumerated factual
findings that the father sexually abused the child, the judge
did state, in his conclusions of law, that "[t]he removal was

3
court reports that referenced the allegations of sexual abuse of

the child by the father and of domestic violence by the father

in the home. See Adoption of Luc, 484 Mass. 139, 149-150 (2020)

("Pursuant to the statutory hearsay exception declared in G. L.

c. 119, § 24, court investigator reports are a 'part of the

record'"). These reports also described the child's sexualized

play3 in the presence of her therapist and her notable reluctance

to engage in any discussion regarding the father or the topic of

"body safety." An action plan dated February 11, 2019, further

stated that "Mother and Father have admitted to significant

sexual abuse of [the child]" and that "[b]oth parents admitted

to sexually abusing the child via 'taste-testing.'"4 This

evidence was sufficient to permit the judge to conclude that the

father sexually abused the child. There was no error in the

judge's drawing a negative inference against father based on the

the result of sexual abuse of the child by mother and father."
Irrespective of whether this statement is best characterized as
a finding of fact or conclusion of law, we review to determine
whether a preponderance of the evidence supports it. See
Adoption of Bea, 97 Mass. App. Ct. at 421-422.
3 The child is described in one report as "making toy chicks kiss

then kissing each other's butts." When this behavior was
raised, the child would apologize and attempt to change the
subject. The report references additional instances of
sexualized play but does not specifically describe them.
4 An affidavit submitted by a DCF response worker described

taste-testing by reporting that "[a]llegedly Father disclosed
that they put a blindfold on [the child] and the parents put
sugar on their genitals and had [the child] taste their genitals
with her tongue."

4
father's refusal to testify regarding this subject matter. See

Custody of Two Minors, 396 Mass. at 616.

b. Compliance with action plan. The father next asserts

that the judge erroneously found that he had failed to comply

with the tasks assigned to him by DCF because he was unable to

comply due to his incarceration based on the abuse charges in

the Superior Court and the subsequent conditions of his house

arrest. Even crediting the father's claim, he fails to account

for his lack of compliance once the conditions of his pretrial

release were modified on June 9, 2021, permitting him to recover

his government identification, seek employment and housing, and

obtain other services as required.5 Despite this admitted

loosening of his pretrial restrictions, the father failed to

complete any portion of his action plan in the six weeks between

the modifications and his trial testimony on July 21 in the

termination trial. Thus, there was no error in the judge's

finding that the "father had not completed any of the

recommended services on his action plan." See Adoption of

Quentin, 424 Mass. 882, 886 (1997) ("the judge's assessment of

5 The father failed to notify the DCF social worker when his
conditions of release were modified. The father's attorney
reached out to the social worker to inform her of the change on
June 22, 2021. The social worker contacted the father on the
same day, at which point the father confirmed that the
conditions of his release had been favorably adjusted almost two
weeks earlier.

5
the weight of the evidence and the credibility of the witnesses

is entitled to deference" [citation omitted]).

c. Sexual offender evaluation. The father next argues

that the judge erred in concluding that he had not addressed the

underlying issue of sexual abuse or engaged in other services

requested by DCF aimed at addressing those concerns, and that

therefore placement of the child with the father would put the

child at risk of further abuse. The father contends that these

findings were erroneous because he stated in an e-mail to a DCF

social worker that he had contacted a provider for a sexual

offender evaluation and because, in fact, there was no evidence

in the record of sexual abuse on the part of father. Having

addressed the latter issue supra, we turn to the father's

unsupported claim in an e-mail to DCF that he had contacted a

provider for a sexual offender evaluation. Because the father's

assertion was unsupported by record evidence, the judge was free

to discredit the arguably self-serving claim. See Adoption of

Quentin, 424 Mass. at 886. Nevertheless, assuming without

deciding that the father had indeed initiated the process of

undergoing a sexual offender evaluation, the evaluation was

indisputably incomplete at the time of trial. Thus, we discern

no error.

d. Emotional needs. The father further contends that the

judge erred in concluding that he was indifferent to the child's

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emotional needs. He argues that his inquiries into the child's

status and wellbeing, as well as his efforts to obtain

reunification with the child, showed that he understood and was

concerned about the child's emotional needs. The claim is

unavailing because the judge was free to weigh the evidence and

to make credibility determinations with respect to the father's

testimony. See Adoption of Quentin, 424 Mass. at 886. In light

of the allegations of abuse, in addition to the father's refusal

to meaningfully engage in services required by DCF and intended

to improve his parental fitness, we discern no error in the

judge's finding that the father was insensitive to the child's

emotional needs. See Adoption of Jacques, 82 Mass. App. Ct. at

606-609 (limited understanding of child's special needs

contributed to parental unfitness).

e. Kinship placement bonding. Finally, the father argues

that the judge erroneously concluded that the child would suffer

psychological harm if she was removed from her foster parents,

because DCF did not present expert testimony on that issue.

"While not dispositive, the bond of a child with foster parents

is 'a factor that has weight in the ultimate balance'" when

assessing the best interests of the child. Adoption of Daniel,

58 Mass. App. Ct. 195, 202-203 (2003), quoting Adoption of

Nicole, 40 Mass. App. Ct. 259, 262-263 (1996). Here, there was

ample evidence in the record that the child had bonded with her

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kinship foster family, including, inter alia, several court

reports stating that "[the child] is doing well in placement"

and "[the child] wants to reside with maternal great-aunt and

great-uncle."6 The judge was permitted to rely on this evidence

to assess, without the support of expert testimony, that some

bonding between the child and the foster parents had occurred

and that removing her from the foster home would therefore cause

the child psychological harm. See Adoption of Daniel, 58 Mass.

App. Ct. at 203 ("Expert testimony may be necessary [to show

bond with foster parents], although we do not perceive it to be

a requirement in all cases" [citation omitted]). No expert

testimony was required here as this finding was just one of many

supporting the judge's ultimate decision to terminate the

father's parental rights. See id.

2. Assessment of evidence. The father further argues that

the judge failed to evenhandedly consider the evidence, and thus

erred in terminating the father's parental rights. In support

of this argument, the father cites portions of the record that

support his reasoning with respect to his difficulty obtaining

services and his justification for declining to draft a

6 The child was placed in kinship foster care with the maternal
great-aunt and great-uncle immediately after being removed from
the mother and father's custody. DCF's plan for the child was
for adoption by the maternal great-aunt and great-uncle, which
the judge found to be in the child's best interests.

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parenting plan when advised to do so by a DCF social worker.7

The father's argument here amounts to "little more than a

general objection to the judge's failure to adopt [his] view of

the evidence." Care & Protection of Zeb, 489 Mass. 783, 789

(2022). Again, the record contained evidence sufficient to

permit the judge's findings with respect to these issues, and

the judge was entitled to weigh that evidence and the

credibility of witnesses when reaching his final determination.

See Adoption of Quentin, 424 Mass. at 886. There was no error.

3. Visitation. Lastly, the father contends that the judge

abused his discretion in denying posttermination or postadoption

contact with the child because the evidence established that (1)

the father and the child were bonded, (2) it appeared that the

child's attitude toward the father had been negatively

influenced by the preadoptive family, and (3) the preadoptive

parents would not provide visitation. We disagree.

"A judge may decline to order postadoption visitation, or

'may order limited postadoption contact, including visitation,

between a child and a biological parent where such contact is

currently in the best interests of the child.'" Adoption of

7 The father further challenges the judge's characterization of
his history with alcohol and narcotics. Where the father
admitted to DCF that he "would drink once in a while" and had
"experimented" with cocaine, we discern no error in the judge's
finding that "Father has a known history of alcohol and cocaine
use."

9
Saul, 60 Mass. App. Ct. 546, 556 (2004), quoting Adoption of

Vito, 431 Mass. 550, 553 (2000). "An order for postadoption

contact is grounded in the over-all best interests of the child,

based on emotional bonding and other circumstances of the actual

personal relationship of the child and the biological parent,

not in the rights of the biological parent nor the legal

consequences of their natural relation" (citation omitted).

Adoption of Saul, supra. "Appellate review of a judge's denial

of a request for postadoption visitation is under the abuse of

discretion standard." Id. at 555.

Here, the judge issued 250 thoughtful findings of fact

based on the trial testimony and other evidence before him.

These findings support the judge's conclusion that an order of

posttermination or postadoption visitation is not in the child's

best interests. See Adoption of Saul, 60 Mass. App. Ct. at 556.

The father's contention that he had bonded with the child is

unavailing. Although, as the father argues, the mother stated

to DCF that the child loved the father, the same section of the

action plan quoting the mother in that respect noted that

"Father didn't give [the child] much attention" and that the

child described the father in negative terms. Taken together

with the allegations of sexual abuse, discussed supra, we

discern no abuse of discretion in the judge's determination that

visitation with the father does not serve the best interests of

10
the child.8 See id. See also Adoption of Quentin, 424 Mass. at

886.

Decree affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ.9),

Clerk

Entered: August 10, 2023.

8 The father's argument that the foster family negatively
influenced the child's attitude toward him is similarly
unavailing. See Adoption of Quentin, 424 Mass. at 886 ("the
judge's assessment of the weight of the evidence and the
credibility of the witnesses is entitled to deference"). See
also Adoption of Saul, 60 Mass. App. Ct. at 546.
9 The panelists are listed in order of seniority.

11