Adoption of Qmani.

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-429

ADOPTION OF QMANI.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge, upon petition of the Department of

Children and Families (department), terminated the parental

rights of the father pursuant to G. L. c. 210, § 3. On appeal,

the father contends that the department failed to demonstrate by

clear and convincing evidence that he endangered the child or

exhibited grievous parental shortcomings that justified

terminating his parental rights. We affirm.

Background. The father was sixteen years old in 2017, and

he did not know that he had a child who was born in August of

that year. The child's birth certificate did not identify a

father, and the mother subsequently named a different person as

the child's father. After numerous reports under G. L. c. 51A,

the department placed the child in the custody of foster parents

1 A pseudonym.
in October 2018, and a year later a judge of the Juvenile Court

terminated the mother's parental rights.

In the meantime, the father, living with his mother,

initially believed that his friend was the child's father. In

July of 2019, the father had a physical altercation with a

girlfriend. A criminal complaint (later dismissed) charged him

with assault and battery on a family or household member and

strangulation or suffocation. After these events, he learned

that his friend was not the father of the child. On September

30, 2019, the father came forward and reported to the department

that he might be the father of the child. A paternity test

later confirmed that he was the biological father.

Over the next two years, the department developed a series

of family action plans and monitored the father's progress in

meeting goals related to his capacity to parent the child. By

February 21, 2020, the department was focused on having the

father build a relationship with the child "through supervised

visits and building his parenting knowledge through local

classes," and noted concerns about the father's potential gang

involvement and substance use. On August 24, 2020, the

department continued to note concerns about substance use and

the father "not knowing the responsibilities of being a parent."

Goals included coming to child visits sober and participating in

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a substance abuse program and a domestic violence and anger

management program.

On February 16, 2021, the father, age twenty, became the

parent of a second child. That child lived with his mother.

The father did not maintain a romantic relationship with the

mother but visited with this child.

On March 9, 2021, the department changed the goal from

adoption to reunification and continued to monitor the father's

progress toward meeting parenting goals. The department

remained concerned about the father's knowledge of the

responsibilities of being a parent (of not just one but two

children); failure to create a concrete future living plan;

inconsistent attendance at visits; ability to maintain

consistent employment and budget his funds; and ability to

generally provide for the child's safety. Goals continued to

include participation in supportive services, coming to child

visits sober, attending all visits, and attending visits on

time.

The father did not successfully complete all of the

recommended programs. Although he completed the Nurturing

Fathers Program in June 2020, he attended only seven batterer

intervention group sessions and missed five before dropping out

in April 2021. After being referred again to the program in

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August 2021, the father attended four out of eight sessions

before dropping out a second time. On October 18, 2021, the

police arrested the father, and another criminal complaint

issued for assault and battery on a household member,

strangulation, assault and battery, and assault with a dangerous

weapon. For over a one year prior to trial, the father did not

consistently visit the child, did not contact the foster parents

to learn about the child's needs, and failed to engage in many

of his action plan tasks. On February 3, 2022, the department

changed the goal to adoption.

Since October, 2018, the child has continuously lived with

the foster parents and two of their children and considers them

to be his "real family." All medical care is up to date, and

the child attends pre-kindergarten. The child is no longer in

need of an individualized education plan for developmental and

behavioral difficulties as he had needed in preschool.

After the conclusion of the trial, the judge terminated the

father's parental rights, finding that "[the father] lacks the

ability, capacity, fitness and readiness to assume parental

responsibility for said child, and is currently unfit, and that

the best interests of said child, as defined in G. L. c. 210,

§ 3 (c), will be served by a decree terminating the rights of

[the father]."

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Discussion. "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 Jacques, 82 Mass. App.

Ct. 601, 606 (2012). "In determining whether the best interests

of the children will be served by issuing a decree dispensing

with the need for consent, a 'court shall consider the ability,

capacity, fitness and readiness of the child's parents.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.

c. 210, § 3 (c). "We 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 Ilona, 459 Mass. 53,

59 (2011).

Here, we discern no error in the judge's ultimate

conclusions based upon the evidence presented. That evidence

showed that the father "blacked out" in 2019 during an

altercation with his girlfriend and was charged with assault and

battery on a family or household member and strangulation or

suffocation, failed to comply with the department's family

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action plans, lacked any concrete future living plans and failed

to complete budgeting and financial instruction, missed multiple

child visits, dropped out of two batterer intervention programs,

failed to obtain individual mental health therapy, failed to

undergo a substance abuse evaluation, failed to maintain contact

with the foster parents, failed to complete family therapy with

the child, incurred another strangulation charge involving an

incident with a girlfriend at her residence in 2021, and

threatened department workers by warning them that "it is not

hard to find people's addresses."

The father contends that the judge's finding pertaining to

individual therapy is erroneous because such therapy was not

mandated by any of the family action plans. We agree that the

family action plans do not mandate individual therapy and that

the department did not set up individual therapy; however, the

father admitted at trial, "They asked me to do individual

therapy." He acknowledged that the department informed him

individual therapy was necessary to address abuse in the

relationship with his girlfriend and further acknowledged that

he allegedly "blacked out" during the altercation. His

testimony is consistent with testimony of one of the social

workers who recalled that the department had referred him for

individual therapy. Therefore, even if the judge was mistaken

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about the source of the recommended individual therapy, the

record indicates, and the father agreed in his testimony, that

individual therapy was indeed recommended, but he did not take

part in it. See Care & Protection of Zeb, 489 Mass. 783, 788

(2022) ("Even assuming that some of the judge's subsidiary

factual findings are not entirely accurate, there was

overwhelming evidentiary support for the [broader] finding"

[footnote omitted]); Adoption of Helen, 429 Mass. 856, 860

(1999) ("[A]lthough the judge's findings on these points may

have been erroneous, the judge's over-all conclusion of parental

unfitness is fully supported by the record").

As an additional contention, the father argues that the

failure to engage in a substance abuse evaluation is not

indicative of father's unfitness. We disagree. There was ample

evidence in the record that the department had concerns about

substance abuse. One of the family action plans required the

father to "[p]articipate in a substance abuse evaluation." His

facebook profile detailed marijuana use. At trial, the father

acknowledged that the department confronted him about showing up

at a child visit while smelling of marijuana. He claimed that

the odor came from his friends smoking marijuana. The father

admitted that he never obtained a substance abuse evaluation

after the department requested one. Given the evidence that the

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father potentially struggled with substance abuse and the

recommendations communicated by the department to the father, we

perceive no error in the judge considering the father's failure

to obtain an evaluation. Contrast Adoption of Oren, 96 Mass.

App. Ct. 842, 845 n.4 (2020) (failure to obtain substance abuse

treatment has no bearing on fitness where judge concluded

alcohol and drug addiction were not factors and family action

plan did not mandate such treatment).

We also note that the judge expressly rejected any

suggestion that she based her decision on any single factor:

"In reaching this conclusion, the Court has considered the

evidence in the aggregate, and has not given conclusive weight

to any single component standing alone." See Petitions of Dep't

of Social Servs. to Dispense with Consent to Adoption, 399 Mass.

279, 290 (1987) ("Generally, no one factor is determinative and

the judge should weigh all the evidence" [footnote omitted]).

Finally, the father broadly contends that imperfection as a

person does not equate to unfitness as a father and further

maintains that his past mistakes are neither probative of his

ability to parent the child in the future nor so grievous as to

necessitate terminating his parental rights. The trial judge

considered the factors set forth in G. L. c. 119, § 26, and

G. L. c. 210, § 3 (c), including the best interests of the

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child, in making her decision. "Standards of mathematical

precision are neither possible nor desirable in this field; much

must be left to the trial judge's experience and judgment."

Petition of New England Home for Little Wanderers to Dispense

with Consent to Adoption, 367 Mass. 631, 646 (1975). The

father's "dissatisfaction with the judge's weighing of the

evidence" is not a sufficient basis to warrant relief on appeal.

Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

While we appreciate that the father did make some efforts

after the paternity test and showed, at times, genuine concern

and affection for the child, we conclude that the judge did not

abuse her discretion or commit a clear error of law. Adoption

of Jacques, 82 Mass. App. Ct. at 609.

Decree affirmed.

By the Court (Henry,
D'Angelo & Hodgens, JJ.2),

Assistant Clerk

Entered: May 17, 2024.

2 The panelists are listed in order of seniority.

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