Adoption of Quindel.

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-994

ADOPTION OF QUINDEL. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree of a Juvenile Court judge

that found him unfit to parent his son (the child), and that

terminated the father's parental rights. 2 As found by the judge,

the father has been homeless through much of the child's life,

and has failed to demonstrate a commitment to forming a stable

relationship with the child or to understanding the child's

particularized needs. The father also has a history of criminal

conduct, including many prosecutions and convictions for dealing

controlled substances. As of the date of termination of his

parental rights, the father was subject to an as yet unexecuted

1 A pseudonym.
2 The mother's parental rights were also terminated after the
judge granted the Department of Children and Families'
(department) petition to terminate the rights of both parents.
Mother appealed, but this court dismissed her appeal with
prejudice after a stipulation entered in the Juvenile Court
allowing the mother limited visitation. The mother has signed
an open adoption agreement which provides for the child's
adoption by his maternal grandmother.
sentence of up to five years imprisonment based upon a

conviction for trafficking and possession with intent to

distribute controlled substances; the father was in the

community only because his sentence had been stayed pending

appeal.

In this appeal, the father argues that the trial court (1)

mischaracterized episodes of tension with the mother as domestic

violence, and inappropriately relied on this evidence in

concluding the father was unfit, and (2) improperly weighed

evidence of the father's criminal activity against him. The

father also presents arguments pursuant to Commonwealth v.

Moffett, 383 Mass. 201, 208 (1981) that (3) there was

insufficient evidence to support the trial court's finding of

unfitness, (4) the Department of Children and Families

(department) exhibited "prejudice" in its treatment of him, and

(5) he received ineffective assistance of counsel. Because the

judge's findings and the record show clear and convincing

evidence of unfitness (without regard to any evidence of

domestic violence), we affirm.

Background. We summarize the judge's findings of fact,

which are amply supported by the record. The child was born in

2015 and the department has been involved with him since he was

an infant. The mother has a history of drug use, and the child

was born with neo-natal abstinence syndrome resulting from his

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exposure to methadone in utero. The child was removed from

mother and father soon after his birth in 2015. Although the

child was temporarily returned to the mother's custody on

condition that the mother live with the child's maternal

grandmother, the child was removed again following the mother's

relapse. In 2016, the department placed the child with the

maternal grandmother; the child has lived with the maternal

grandmother for all but five months of his life.

In September 2015, the department petitioned to terminate

the parental rights of both the mother and the father, and the

case was tried over eleven days between November 2020 and June

2021. The judge's decision details her reasons for her

determination of unfitness and termination of the father's

rights. When the mother was four months pregnant, the father

was arrested after a street-level drug transaction. The police

found several bags of what was believed to be crack cocaine on

the father's person, and he was charged with two drug related

offenses. During an assessment following the child's birth, the

father told the assessment worker that he had made a living

distributing controlled substances for "some" time. The trial

judge found that the father "actively dealt in controlled

substances from at least January 2010 . . . until at least April

2018" based, among other things, on a review of the father's

court activity record information (CARI) file, the father's

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admission to the assessment worker that he had sold controlled

substances, and the police reports in evidence. The father's

criminal activity led to his repeated incarceration after the

child was born, for periods of several days to several months at

a time.

In January 2019, the father was convicted of two drug

offenses and sentenced to a term of four to five years in

prison. He was released from custody pending a decision on his

motion for a new trial, which remained under advisement

throughout the trial of this case. The trial judge found that,

under these circumstances, there was a "substantial risk" that

the father would be incarcerated again after this case was

resolved, leaving him unable to care for the child. The judge

thus concluded that the father's "criminal record is relevant to

his current fitness."

The judge also noted that the father "has spent the first

six plus years of [the child's] life as a mostly passive,

largely disengaged, or absent observer." Indeed, the judge's

findings of fact show a pattern of the father's failure to

meaningfully take part in the child's care. During his prison

terms, the father often chose not to have visits with the child

and was otherwise unavailable to care for the child. While the

mother remained in the grips of addiction, the father "could

have been actively engaged in [the child's] life and services to

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aid [the father] in caring for [the child] but was not."

According to the testimony of the social worker assigned to the

case, the father missed numerous scheduled visits, and arrived

unprepared to many of those that he did attend. The judge found

that the father's testimony "revealed that he has little

understanding of [the child] and has remained wholly ignorant of

[the child's] needs, diagnosis and treatment."

The judge also considered the father's "precarious housing

situation." At the time of trial, the father had no stable

home. The father "continues to live on the street and remains

without a steady job or any obvious means of support other than

unemployment compensation." The father has sufficient funds to

secure housing but chooses not to do so. Although the father

claimed he could live with a friend in New Hampshire, such a

move would require approval by the Superior Court and relief

from law enforcement's GPS monitoring of his movements.

Finally, the judge examined several episodes of what he

characterized as "domestic violence and controlling behavior."

At trial the father testified that he and the mother had

"tussled" and that there had been physical pushing in the

relationship. The judge noted that the father was "a compact

and powerfully built man" while the mother was a "slight woman."

In August 2019, the mother reported to the department's social

worker that the father had "hit her in the face and pushed a

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drink into her causing it to spill on her." When the social

worker responded to the scene, she found the mother with an

abrasion on her lip and fluid on her shirt. Finally, the judge

found that during a phone call, the father told the mother that

"if she did not pursue the career path that he favored he could

find another girlfriend." The judge considered these comments

an attempt to "control [the mother's] educational and vocational

choices by suggesting that he would not be her boyfriend if she

did not pursue the course he favored." The judge concluded that

the relationship between the mother and father was "infected

with domestic violence."

In finding the father unfit and terminating his rights,

the judge relied upon all of the above facts. She concluded

that such unfitness was likely to continue "indefinitely into

the future." This appeal followed.

Discussion. 1. Unfitness. "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 child's best

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

(2012). We treat the judge's findings with substantial

deference and disturb them only upon a determination that they

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are clearly erroneous. See id. at 606-607. "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). Only "grievous shortcomings"

are sufficient to demonstrate unfitness. Adoption of Katharine,

42 Mass. App. Ct. 25, 28 (1997). The judge must determine

"whether the parent's deficiencies 'place the child at serious

risk of peril from abuse, neglect, or other activity harmful to

the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157

(2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct.

758, 761 (1998).

a. Domestic violence. The father makes several arguments

concerning the sufficiency of the evidence and the judge's

characterization of certain aspects of the record. 3 First, the

father claims that the trial court erred in finding that that

the relationship between the mother and the father was

characterized by domestic violence. He argues that the court

"mischaracterized non-violent and unclear representations of

3 As required, the judge considered the factors set forth in G.
L. c. 210, § 3 (c), and found factors (ii), (iii), (iv), (vi),
(viii), and (x) applicable. As discussed below, an analysis of
factor (ii) represents only one part of a broader landscape of
considerations that, taken together, weigh in favor of
terminating the father's parental rights.

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behavior as evidence of domestic abuse," and that this

constituted clear error.

As the trial judge notes in his decision, "evidence of

domestic violence is highly relevant to the parental fitness

determination." See Custody of Vaughan, 422 Mass. 590, 595, 599

(1996); Care & Protection of Lilith, 61 Mass. App. Ct. 132, 139

(2004). Section 3(c) of G. L. c. 210 (factor ii) explicitly

states that abuse of "another member of the immediate family of

the child . . . [resulting from] the acts . . . of one or both

parents" and the fact that the abusive parent was "offered or

received services intended to correct the circumstances . . .

and refused . . . to utilize such services" is to be considered

as an element of the parental fitness determination. Here,

there was indeed evidence of physical violence between the

mother and father. The father testified that he and the mother

had physically "tussled" and pushed each other, and on one

occasion, the mother reported that the father had hit her in the

face and pushed a drink into her. As a result of the latter

episode, mother sustained a cut on her lip. The father takes

issue with the judge's findings regarding these events, and with

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the weight the judge assigned to them. The judge's findings,

however, are not clearly erroneous. 4

More importantly, however, we are unpersuaded by father's

focus on the judge's domestic violence findings for the more

basic reason that they simply did not play a pivotal role in the

judge's decision. A review of that decision reveals that

several other factors, including the father's general lack of

engagement in the life of the child and his pending term of

incarceration, played a much more significant role in the

ultimate finding of unfitness.

b. Criminal record. Second, the father argues that the

judge gave undue weight to the father's criminal history. As

the judge explained, however, a parent's history of criminal

convictions can be relevant, at least insofar as the parent's

criminality bears on the parent's ability to assume custody of

the child without causing the child harm or neglect. Care &

Protection of Frank, 409 Mass. 492, 494 (1991); Care &

Protection of Leo, 38 Mass. App. Ct. 237, 244 (1995). As this

case shows, a parent may be at risk of incarceration. Beyond

that, criminal conduct may reflect on the character of a parent

4 In so ruling, we do not rely on the incident where the father
used "controlling" language during a phone call with the mother
as evidence of domestic violence.

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seeking custody, and there are many ways in which criminal

conduct can lead to harm to a child. Frank, supra at 495.

The record in the instant case shows that father has a

substantial history of criminal conduct. The father himself

admitted to making a living distributing controlled substances

for "some time." His CARI is replete with drug-related charges,

property crimes, and assault and battery offenses. He has been

incarcerated multiple times during the child's life and has

declined regular visits while incarcerated. Importantly, at the

time of trial he was subject to a sentence of up to five years,

as he awaited a decision on a motion for a new trial. The above

provides ample support for the judge's consideration of the

father's criminal past in her fitness evaluation.

Lastly, the father makes the general argument that there

was insufficient evidence to support the trial court's

determination of unfitness. However, the trial court's opinion

specifically identifies the six statutory factors applicable to

its determination of the father's unfitness and provides

thorough discussions of each. As detailed above, the judge's

findings -- that father had been largely uninvolved in the

child's life, had engaged in a significant pattern of criminal

conduct, and failed to show stable housing -- amply support the

trial court's ultimate finding of unfitness.

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2. "Prejudice." The father also claims that the trial

court's decision to terminate his parental rights was "tainted"

by the department's "prejudice" against him. The evidence of

"prejudice" cited by the father consists essentially of the

father's own conclusory allegations at trial that the

department's social worker and the child's maternal grandmother

were biased against him. References to the social worker's

testimony merely indicate that she had "two or three" phone

calls with the Boston Police Department about the father's

criminal record and that she had not seen the father lose his

temper to the point where she was fearful. In her findings, the

trial judge responded to the father's allegations of bias as to

the social worker, finding that "there [was] no evidence that

[the social worker] ever stopped [the father's] visitation" due

to bias. Upon our own review of the relevant sections of the

record, we also perceive no evidence of prejudice or bias.

3. Ineffective assistance of counsel. Finally, the father

claims ineffective assistance of counsel based on his trial

counsel's failure to call two witnesses that the father claims

would have presented favorable testimony, and trial counsel's

failure to assist in creating an effective alternative custody

plan.

Because the ineffective assistance argument is raised for

the first time on appeal, we have no record with which to

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evaluate the strategic decisions of counsel. "Absent

exceptional circumstances, we do not review claims of

ineffective assistance of counsel for the first time on appeal."

In re Stephen, 401 Mass. 144, 150 (1987). Cf. Commonwealth v.

Zinser, 446 Mass. 807, 811 (2006) ("ineffective assistance of

counsel challenge made on the trial record alone is the weakest

form of such a challenge because it is bereft of any explanation

by trial counsel for his actions" [citation omitted]). Here,

there is insufficient evidence to justify an analysis under

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and we

accordingly decline to reach the issue of ineffective assistance

of counsel.

As the record supports the decision to terminate the

father's parental rights, the decree is affirmed.

So ordered.

By the Court (Vuono, Singh &
Englander, JJ. 5),

Clerk

Entered: November 20, 2023.

5 The panelists are listed in order of seniority.

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