Adoption of Hope.

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

23-P-523

ADOPTION OF HOPE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

Juvenile Court finding him unfit and terminating his parental

rights to his daughter, Hope. The father also argues that the

judge erred in not granting him posttermination and postadoption

visitation with the child. We affirm. 2

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

supplemented by uncontroverted evidence from the record. In

December 2018, Hope was born substance exposed. Because the

mother was married to another man, the father's name did not

appear on Hope's birth certificate. However, since Hope's

birth, both the mother and the father asserted that the father

was Hope's biological father. The mother's husband denied

paternity. One week after Hope's birth, the Department of

1 A pseudonym.
2 The mother's parental rights were also terminated. She did not
appeal.
Children and Families (department) was granted emergency

temporary custody of her. The department initially offered

visits and recommended therapy to the father. However, in

January 2019, the department stopped offering visits because the

father failed to take steps to establish paternity. The

department did not offer the father visits or services until he

established paternity in March 2021.

The father has an extensive criminal history consisting of

sixty-one charges as an adult, including convictions of

resisting arrest, larceny, assault and battery, aggravated

assault and battery, possession with intent to distribute

heroin, and distribution of cocaine. In October 2019, both the

father and the mother were arrested following the execution of a

search warrant at their apartment, where police seized cocaine.

In March 2021, the father was arraigned on cocaine trafficking

charges in the Superior Court. At the time of trial, the

trafficking charges were still pending against the father.

The father also has a history of abusive behavior toward

the mother. The father reportedly controlled the mother's money

and cell phone, and he had posted nude photos of her on social

media. The mother said that the father forced her to change

doctors because her gynecologist was a man. The mother also

reported that, when she had gained weight, the father hid food

from her. The father has locked the mother in his apartment.

2
In 2016, the mother obtained a restraining order against the

father. 3 After the department obtained custody of Hope, the

mother reported that she was not comfortable around the father

and that she would not go home from the hospital that day

because the father had been physically violent with her in the

past. Ten days after Hope was born, the maternal step-

grandmother reported that the father "destroyed" the mother and

father's apartment and would not allow the mother to pack a bag

of clothes before she left. In 2020, the father reportedly

withheld the mother's money and belongings. In the spring of

2022, the father reportedly followed the mother, jumped into her

car while she drove, assaulted her, and stole her money. To his

credit, the father acknowledged to a department worker that he

and the mother had an "unhealthy" relationship to which he would

not want Hope exposed.

Throughout the case, the father refused to engage with the

department and acted combatively when he did speak with the

department's workers. The father had a series of different

department social workers because he often refused to work with

the social worker assigned to him. When a department social

worker met with the father and the mother one day before Hope's

removal, the father said he did not need therapy, yelled at the

3 In 2011, the father's former girlfriend also obtained a
restraining order against him.

3
social worker, and threatened him. The father screamed and

swore at other social workers, making statements like "[g]et off

my case" and "you're going to see what's going to happen." Due

to safety concerns, the department eventually required visits to

occur at its office with police present.

After the father established paternity, he refused to

review his action plan or engage with services for months. He

claimed that he began a substance abuse evaluation, but he could

not recall any steps or recommendations when asked about it.

The father declined a psychological evaluation, individual

therapy, and an intimate partners program. The father

repeatedly missed appointments with the department or failed to

schedule them for up to three months at a time.

Nine months after he established paternity and received an

action plan, the father completed intake at a treatment center

where he consistently attended anger management training and a

parenting group. However, he demonstrated little insight into

his controlling behaviors and was not forthcoming about his

history of domestic violence and conflict with the department.

The father did not attend visits with Hope for four months in

2022. When he did attend visits with Hope, he arrived prepared

and was attentive to Hope.

Discussion. 1. Termination of parental rights. "To

terminate parental rights to a child and to dispense with

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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" (citation omitted). Adoption of Oren, 96 Mass.

App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and

the 'best interests of the child test' are not mutually

exclusive, but rather 'reflect different degrees of emphasis on

the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,

671 (2018), quoting Care & Protection of Three Minors, 392 Mass.

704, 714 (1984). In making a best interests determination, the

judge considers "'the ability, capacity, fitness and readiness

of the child's parents' as well as 'the plan proposed by [the

department].'" Adoption of Garret, supra at 675, quoting

Adoption of Nancy, 443 Mass. 512, 515-516 (2005).

The parent's fitness is "determined by taking into

consideration a parent's character, temperament, conduct, and

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Adoption of

Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the

parent's deficiencies 'place the child at serious risk of peril

from abuse, neglect, or other activity harmful to the child'"

(citation omitted). Adoption of Olivette, 79 Mass. App. Ct.

141, 157 (2011). "We give substantial deference to a judge's

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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).

a. The judge's findings. "Unless shown to be clearly

erroneous, we do not disturb the judge's findings, which are

entitled to substantial deference." Adoption of Jacques, 82

Mass. App. Ct. 601, 606-607 (2012). "A finding is clearly

erroneous when there is no evidence to support it, or when,

although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm

conviction that a mistake has been committed" (quotation and

citation omitted). Adoption of Larry, 434 Mass. 456, 462

(2001). "We accord deference to a trial judge's assessment of

the credibility of witnesses and the weight of the evidence."

Adoption of Olivette, 79 Mass. App. Ct. at 157.

The father argues that the judge erred by finding that the

father had "been represented by counsel since the beginning of

the case." 4 Where the judge's reference to "the case" included

the period before the father established paternity, this finding

4 The finding appears only in the conclusions of law section of
the judge's decision. However, the conclusions of law rely on
an implicit finding that the father had been represented by
counsel during the period prior to paternity establishment.

6
was not supported by the evidence. 5 However, because the

remaining 245 findings the judge made establish the father's

unfitness by clear and convincing evidence, we are not persuaded

that the erroneous findings warrant reversal. See Adoption of

Valentina, 97 Mass. App. Ct. 130, 138 (2020) (affirming

unfitness determination where four of 122 factual findings were

premised on impermissible evidence and thus disregarded).

b. The father's unfitness. The finding of the father's

unfitness resulted from a "constellation of factors." Adoption

of Greta, 431 Mass. 577, 588 (2000). The father did not

consistently "maintain service plans, visitation schedules, and

counseling programs designed to strengthen the family unit."

Petitions of the Dep't of Social Servs. to Dispense with Consent

to Adoption, 399 Mass. 279, 289 (1987). Despite the

department's intervention, the father failed to participate in

services and treatment to sufficiently address the issues that

caused the removal of Hope. 6 See Adoption of Serge, 52 Mass.

5 The father also asserts that he was entitled to counsel and
visits with Hope before he established paternity. Because he
had neither counsel nor visits with Hope, he contends that the
department did not make reasonable efforts to reunify, and the
unfitness determination is based on erroneous findings. This
argument was not raised at trial, so it is waived. See Carey v.
New England Organ Bank, 446 Mass. 270, 285 (2006); Adoption of
Mary, 414 Mass. at 712. Thus, we do not address it.
6 The father argues that the judge erred by finding that the

department could not legally offer visits with Hope until the
father established paternity. The judge made no such finding.
Rather, the judge found that a department supervisor told the

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App. Ct. 1, 8 (2001) ("The mother's lack of meaningful

participation in recommended services was . . . relevant to the

question of her fitness"). To the extent that the father did

engage in services, he was untruthful during therapy sessions,

and the judge found that he did not benefit from them. See

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

Petitions of the Dep't of Social Servs. to Dispense with Consent

to Adoption, supra (parent's failure to benefit from services

"relevant to the determination of unfitness").

To the extent the father argues error in the judge's

reliance on an unresolved criminal case, the judge did not find

that the father was unfit because of his pending charges alone.

Rather, the judge merely noted the potential of the father's

incarceration causing disruption to Hope in the context of the

father's properly weighed criminal history as one factor in the

unfitness determination. See Care & Protection of Frank, 409

Mass. 492, 495 (1991) ("evidence of prior criminal convictions

may be properly weighed in the balance"). The father's history

of domestic violence and controlling behavior with the mother,

father that visits could not be offered because of the father's
"presentation and failure to establish paternity." As discussed
above, the father was not cooperative with the department and
frequently threatened its workers, making visitation
impracticable. We do not address whether the department was
prohibited legally from offering visits until the father
established paternity.

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combined with his lack of insight into his responsibility for

that behavior, places Hope at risk. See Adoption of Gillian, 63

Mass. App. Ct. 398, 404 n.6 (2005) ("Violence within a family is

highly relevant to a judge's determination of parental unfitness

and the best interests of the children"). We discern no abuse

of discretion in the judge's determination that the father's

unfitness would persist, and therefore termination of his rights

was in Hope's best interests. See Adoption of Cadence, 81 Mass.

App. Ct. 162, 169 (2012) ("Where there is evidence that a

parent's unfitness is not temporary, the judge may properly

determine that the child's welfare would be best served by

ending all legal relations between parent and child").

2. Parental visitation. "In terminating parental rights

pursuant to G. L. c. 210, § 3, the Juvenile Court judge has the

equitable authority to order visitation between a child and a

biological parent where such contact is in the best interests of

the child." Adoption of Garret, 92 Mass. App. Ct. at 679.

"Whether such contact in any given case is wise is a matter that

should be left to the discretion of the judge." Youmans v.

Ramos, 429 Mass. 774, 783 (1999). "A judge should issue an

order of visitation only if such an order, on balance, is

necessary to protect the child's best interest." Adoption of

Ilona, 459 Mass. at 65. A judge may consider "whether a

preadoptive family has been identified and . . . whether the

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child 'has formed strong, nurturing bonds' with that family."

Id. at 64, quoting Adoption of Rico, 453 Mass. 749, 754 (2009).

The department did not offer the father visits with Hope

for over two years because he did not take steps to establish

paternity, despite being told he must establish paternity before

he would be able to visit her. Once he established paternity in

March 2021, the father visited Hope inconsistently. He did not

attend a visit with Hope for over four months in 2022. For over

nine months after he received his action plan, the father did

not engage in any of the recommended services that might reunite

him with Hope. Moreover, Hope has been in her preadoptive home

for the majority of her life and has formed bonds with her

foster family. Hope is comfortable with her preadoptive

siblings and parents, whom she refers to as "mommy and daddy."

Her preadoptive home also neighbors her maternal grandparents'

home. We are satisfied that the judge carefully weighed the

evidence and thus did not abuse her discretion by declining to

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make a specific order of visitation. See Youmans, 429 Mass. at

783.

Decree affirmed.

By the Court (Wolohojian,
Englander & Brennan, JJ. 7),

Assistant Clerk

Entered: March 12, 2024.

7 The panelists are listed in order of seniority.

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