ADOPTION OF WHITLEY (And a Companion Case).

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-137

ADOPTION OF WHITLEY (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from decrees issued by a judge of the

Juvenile Court terminating his parental rights to his daughter,

Whitley, and son, Allen, pursuant to G. L. c. 119, § 26, and

G. L. c. 210, § 3.2 The father asserts that several of the

judge's findings were clearly erroneous, that there was no nexus

between his mental health and his ability to parent the

children, that he substantially complied with his action plan,

and that the judge's finding of unfitness was based on stale

information. The father clearly loves his children. He has

1 Adoption of Allen. The children's names are pseudonyms.

2The judge also terminated the mother's parental rights.
The mother has not appealed. The Department of Children and
Families has been unable to locate the mother since 2019, and
she has not contacted the department or attempted to contact the
children since that time.
made substantial progress, particularly as shown by his

maintaining employment at the Salvation Army. Nonetheless,

because the judge's conclusions that the father remained unfit

at the time of trial, and that his unfitness would continue

indefinitely into the future, are supported by clear and

convincing evidence, and the determination that termination of

parental rights is in the best interests of the children is

neither an abuse of discretion nor a clear error of law, we

affirm.

Facts. The Juvenile Court judge found the following facts.

1. The department's initial involvement. The father and

the mother had two children, Whitley and Allen. Although the

family first came to the attention of the Department of Children

and Families (department) in 2013, the events that led to this

care and protection proceeding began in February, 2017.

On February 11, 2017, the department received three reports

pursuant to G. L. c. 119, § 51A (§ 51A report), about the

family. All three § 51A reports alleged that the father had

thrown an object at the mother during a domestic dispute; one

report claimed this object was a doorknob and one claimed it was

a toolbox. The department investigated these allegations and

determined that they were supported. The department opened a

case for services for the family. At the time, the department

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found that the children were safe in the mother's care but that

the father should not be in a primary caretaking role.

Later, in May, 2017, the department received and

investigated two more § 51A reports regarding the family. At

the time, the mother was ten weeks pregnant. The department

investigated these reports and learned that, on the day of the

incident alleged, the mother dropped the children off with the

maternal grandfather while she went to help a friend return a

rental car to Maine. The father appeared at maternal

grandfather's house, "reportedly drunk or high," and said he

planned to go to his sister's house and keep the children. The

mother and her friend came to retrieve the children, but when

she tried to leave with them, the father tried to block the door

and pushed her. The mother's friend reported that the father

kicked him in the face and kicked his car. The mother was

eventually able to leave with the children and her friend. As a

result of this incident, the father was arrested for assault and

battery on a pregnant person and incarcerated for ninety days.

In August, 2017, the father began living with the mother

and the children again. The mother eventually asked the father

to leave on New Year's Eve of that year.

The department received another § 51A report on January 12,

2018, alleging that the father had texted the reporter that the

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mother was "falling off her wagon" and had sent the reporter a

photograph depicting the mother sleeping or unconscious in bed

with a plate containing three needles beside her. In the photo,

one of the children was in the bed with the mother, and the

other was in the same room.

After moving out of the mother's home, the father spoke to

the department's response worker and disclosed that he had been

concerned for the past several months that the mother was using

drugs. He shared a video recording with the response worker

that showed the mother screaming obscenities, accusing the

father of taking her "dope," and insisting that she had three

bags of heroin. In this video, Whitley could be seen walking

across the room during the parents' argument. Another video,

taken nine minutes before the first, showed Allen sitting in an

empty bathtub. The father explained that the mother was

supposed to give Allen a bath but forgot about him. The father

could not explain to the response worker why he had not reported

his concerns about the mother until after she required him to

leave the house.

Due to concerns that the mother was using drugs while the

children were in her care and that the father hid this fact and

allowed her drug use to take place in the children's presence,

the department filed a care and protection petition on January

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23, 2018. That same day, the department obtained temporary

custody of the children.

2. The father's mental health, housing, substance use, and

action plan. The father has struggled with his mental health

throughout the department's involvement with the family. On

multiple occasions, the father has been hospitalized due to his

mental health. The father has been diagnosed with thought

disorder, bipolar disorder with psychotic features,

schizoaffective disorder, substance abuse, and opioid disorder,

with a question of schizophrenia. The father's symptoms have

included tangential speech, paranoia, and hallucinations. From

October, 2018, to August, 2019, the father took prescribed

anxiety medication. During this time, his presentation

improved; he presented with a clear and coherent thought process

and did not experience paranoid thoughts. In August, 2019,

however, the father began denying that he had any mental health

conditions and refused to follow his providers' recommendations

about psychiatric medication, including medication for his

bipolar disorder and antipsychotic medication. Since then, his

presentation declined; around providers, department staff and

members of the public, he presented with tangential speech,

racing thoughts, an inability to focus, and symptoms of

psychotic process, such as paranoia and visual hallucinations.

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The Juvenile Court judge noted that some of the father's

testimony at trial seemed tangential and nonresponsive,

consistent with what his providers and department staff had

reported about his presentation.

The father has also experienced housing instability

throughout the pendency of this case. He has been homeless

since the mother stopped allowing him to live at her home. He

initially stayed at both the Shattuck Shelter and the Pine

Street Inn regularly. While at the Shattuck Shelter, the father

believed that the person sleeping in the bottom bunk of his bed

was intentionally shaking the bed to keep him awake all night.

He frequently used this experience to explain his presentation

and difficulties during this time. The father lived with a

friend in Medford for a period, but by the time of trial, the

father would sleep around the Salvation Army, where he worked,

or in a U-Haul storage unit. The father certainly deserves

credit for the work he has done to address his financial

situation; since January, 2020, he has worked at the Salvation

Army in Somerville and has also picked up odd jobs on

construction sites. At trial, the father testified that, if he

received custody of the children, he and the children would be

able to live with his sister. The judge, however, did not

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credit this testimony given that the father admitted he had not

spoken to his sister about this plan.

The father also has a long history of alcohol and substance

misuse. At various times, the father has been dependent on

alcohol, cannabis, Vicodin, and heroin. He maintained that he

had been sober for over three years, but he had not consistently

provided drug screens to corroborate this, and the judge did not

credit his testimony on this point.

Towards the beginning of this proceeding, the father took

steps to comply with his family action plan. Although the exact

requirements of the action plan changed several times, some of

the key requirements included completing a batterer's program,

participating in individual therapy for his mental health and

substance misuse, meeting with his primary care physician weekly

for suboxone and drug screens, engaging in parenting support

groups, following his medical providers' recommendations

regarding medication, and pursuing stable housing.

The father completed a batterer's program. Despite this,

he denied ever being abusive towards the mother. He also

completed a Nurturing Father's Program and engaged in a

coeducational parenting group. The judge, however, found that

the father was later unable to identify what he learned from

these parenting services. At the time of trial, the father was

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engaging in individual therapy and suboxone treatment. At the

same time, though, he was not completing the required drug

screens, nor was he following his providers' recommendations

about medication. The father also had not obtained appropriate

housing.

3. The children's placements. After the department

obtained temporary custody of the children, they were initially

both placed in the care of foster parent (first foster mother).

Shortly after they were placed with her, the first foster mother

reported that Whitley exhibited aggressive behaviors towards

Allen and that Whitley frequently threw tantrums and cried. As

a result, Whitley was moved to a different foster home (respite

home). Shortly after being placed in this respite home, Whitley

had bruises on her arms, back and buttocks and disclosed to a

department social worker that her respite foster mother

physically abused her. Despite this, the department kept

Whitley in this placement for another four days before moving

her to a temporary placement. The department eventually placed

Whitley with another foster parent (second foster mother).

Whitley remained in the second foster mother's care for nearly

four years. In April, 2022, the department returned Whitley to

the care of the first foster mother, reuniting the two children.

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Allen lived with the first foster mother from January, 2018

until December, 2022. While there Allen, at times, displayed

inappropriate sexualized behaviors. Allen's therapist initially

determined these behaviors were developmentally appropriate.

These behaviors reemerged roughly one year later, and Allen was

referred to and engaged in therapy.

In August, 2019, the department changed the children's

permanency goal from reunification to adoption. When the trial

began in March, 2022, the department had not yet identified a

preadoptive resource for the children. During the course of the

trial, the department identified a preadoptive family, and that

family officially agreed to adopt the children in October, 2022.

This family consists of a middle-aged couple with a dog and no

children. They live in a two-floor home with a large fenced-in

yard and enough bedrooms for each child to have their own room.

There is evidence in the record that the children moved

into the preadoptive family's home in December, 2022, after the

close of trial, but before the judge issued her findings of fact

and conclusions of law in January 2024.

4. The father's visits with the children. The father has

consistently attended visits with the children. These visits

usually went well, the children responded positively to the

visits, and the department had limited concerns about the

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visits. The father, at one point, had unsupervised visits with

the children, but these became supervised when a department

social worker observed the father crossing the street while

mumbling and leaving the children to cross on their own. The

father has also acknowledged that he sometimes felt overwhelmed

during visits.

5. The Juvenile Court judge's decision. Based on the

father's mental health, history of substance misuse, housing

instability, history of domestic violence and lack of insight

into these issues, the Juvenile Court judge found that the

father was unfit and that his unfitness was likely to continue

undiminished in the future. The judge also found that a

significant relationship existed between the father and the

children and ordered that the children receive posttermination

and postadoption visits with the father at least four times per

year.

Discussion. "In a proceeding to commit a child to the

custody of the department under G. L. c. 119, § 26, the

department bears the burden of proving, by clear and convincing

evidence, that a parent is currently unfit to further the best

interests of a child and, therefore, the child is in need of

care and protection." Care & Protection of Erin, 443 Mass. 567,

570 (2005). While the judge must find unfitness by clear and

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convincing evidence, the judge's subsidiary findings need only

be proven by a fair preponderance of the evidence. Adoption of

Leland, 65 Mass. App. Ct. 580, 583 (2006). We will not disturb

the judge's findings of fact unless they are clearly erroneous.

Custody of Eleanor, 414 Mass. 795, 799 (1993). "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). Id. We review a judge's decision to

terminate parental rights for abuse of discretion or clear error

of law. Adoption of Elena, 446 Mass. 24, 30 (2006).

1. The judge's findings. The father argues that several

of the judge's findings are clearly erroneous. Therefore, he

contends, the judge's finding of unfitness was not supported by

clear and convincing evidence. All the findings he challenges

were adequately supported by the record. Consequently, the

judge's finding of unfitness was supported by clear and

convincing evidence.

The father first challenges finding of fact no. 48. In

this finding, the judge noted that several of the father's

responses during his testimony were tangential and

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nonresponsive, consistent with what department staff and his

providers had reported about his presentation.

The judge found that, when asked which doctor he sees for

his mental health, the father responded,

"I went there for chemical dependency, so I started off
where I got into an IOP and then I was let into therapy,
and then because I was on a top bunk, which is a whole
other story I don't want to get into, is why I was only
sleeping two to three hours a night for one year, I was a
walking insomniac and was dying."

The father argues that this statement made sense in the

larger context of his testimony and the questions preceding this

answer. Before this, the father was asked several questions

about his doctors, what he sees them for, and how frequently he

sees them. This context does not clarify this response. It was

not clear error for the judge to conclude that the father's

story about sleeping on the top bunk was nonresponsive and

tangential.

Next, the judge quoted the father's response to a question

about where he attended parenting classes in which he stated,

"[T]he first one I was in the shelter, so every time I went
on a Wednesday, I had to stay out that night because I
couldn't go back at 8 o'clock . . . some nights I already
knew I was going to be out in the city all night long in a
dangerous area, I mean there's people that would be scared
of just walking down certain areas and neighborhoods
whereas, me, I walk with God and don't engage in anger or
violence."

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The father argues that even though this statement was not

directly responsive to the question, it was related to it.

According to the father, he wanted the judge to know that he

attended parenting class even though he knew it meant he would

not be able to return to the shelter on the nights he had class.

The father's desire to inform the judge of this fact, however,

does not make it clear error for the judge to have concluded

that this statement was nonresponsive and tangential.

The judge also found that, in response to a question about

who prescribed his medication, the father responded that it was

his primary care physician, then continued to provide an

unrelated story about his cell phones going missing while he was

living on the street. The father again argues that context

shows this statement was responsive. Here, though, the context

makes this comment more tangential, rather than less. After

stating that it was his primary care physician who prescribed

him medication, the father went on to tell an unrelated story

about wanting to get a driver's license before, without

connecting the two stories, launching into his account of his

cell phones going missing. There was no clear error in the

judge's determination that this testimony was nonresponsive and

tangential.

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The judge found that the father's statement about calls

with the children during the pandemic -- "they called me but

there was still a time when I had absolute darkness that's

spoken of in the Bible, so I was in that then" -- was tangential

and nonresponsive. The father, again, tries to contextualize

this statement in his surrounding testimony. Again, context

does not help the father. The line of questioning that led to

this response began with "what happened with COVID and visits?"

While the father spoke at length about his experience during the

pandemic, he struggled to address how the COVID-19 pandemic

impacted his visits with the children. After being asked

whether he had visits on the phone with his children, the father

returned to the topic of how the pandemic impacted him by

describing the "absolute darkness" he experienced. There was no

clear error in finding that doing so was non-responsive and

tangential. Nor, as the father suggests, did the judge equate

his religious beliefs with mental illness, or rely upon those

beliefs in her finding of unfitness.

The judge found that the father's response to a question

about his nurse practitioner also demonstrated his presentation

issues. When asked whether a certain provider was his nurse

practitioner, the father stated, "This is the thing, is she the

nurse practitioner or am I me working at the Salvation Army and

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helping others? I don't know." There was no clear error in the

judge's finding that this comment was nonresponsive and

tangential.

The father's trial counsel asked him, "Why do you want

[your children] back," and the father responded, as recounted in

the judge's findings of fact, "Because the Bible says, you know,

God says we have children to raise." (The actual transcript

reads, "Because the bible says, you know, God says we have to

and to raise"). The father claims that it was clear error for

the judge to find that his statement was tangential and

nonresponsive. He argues that this statement merely reflects

his religious beliefs and how they influence his feelings about

his responsibilities to his children. Given that the judge

heard his testimony and witnessed his demeanor and that the

testimony does not compel the father's construction of it, we

cannot say it was clear error for the judge to conclude that

this comment was also nonresponsive and tangential.

The father also challenges finding no. 158 in which the

judge noted several comments the father made during clinical

interviews. The father, however, misunderstands this finding.

While he points to context and other testimony to argue that

these statements should not have been viewed negatively or seen

as significant, the judge merely found that the father made

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these statements. Given that the father does not dispute that

he made them, he has not shown the judge's finding to be clearly

erroneous.

The father also argues that it was clear error for the

judge to find that he did not want to be "told how to live."

When asked whether he had seen some of his family action plans,

the father testified, "Yeah, but if you -- you can lean towards

always saying, 'Hey, what do I do next?' Then that's -- I'm

being told how to live . . . I don't want to be like that." The

father argues that the best reading of this testimony is that he

did not always ask for his family action plans because he did

not want to look like he needed to be told how to live. The

father's reasoning, however, does not render the judge's finding

that he did not want to be told how to live -- for whatever

reason -- clearly erroneous.

The father also disputes the judge's finding that he did

not feel the need to meet with the Department monthly. The

father's testimony, though, directly supports this finding.

After testifying that he did not meet with the department once a

month, he stated, "[W]hen I get a text or a call, then I'll show

up to anything, but until then, and then it can just be, well,

why would someone need this?" Based on this testimony, there

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was no clear error in the judge's finding that the father did

not feel the need to meet with the Department monthly.

2. Nexus between the father's mental health and ability to

parent. A parent's "[m]ental disorder is relevant only to the

extent that it affects the parents' capacity to assume parental

responsibility, and ability to deal with a child's special

needs" (citation omitted). Adoption of Luc, 484 Mass. 139, 146

(2020). The father argues that there is no nexus between his

mental health and his ability to parent. The father also claims

that the judge's finding that he needed to be on medication,

which the judge relied on to conclude that he was unfit, is

clearly erroneous.

At the outset, the judge never found that the father needed

to be on medication. The father claims to find such a finding

in the judge's conclusions of law. The judge did not state that

the father needed to be on medication in her conclusions; she

merely noted that the father refused to follow his providers'

recommendations. The record and the judge's findings support

that the father has refused to follow his providers'

recommendations about psychiatric medication. To the extent the

judge's conclusions incorporate or rely on findings to that

effect, those findings are not clearly erroneous.

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The judge also identified a sufficient nexus between the

father's mental health and his ability to parent. The judge

concluded that the father's symptoms -- including tangential

thoughts and paranoia -- and his refusal to follow the

recommendations of his providers would prevent him from engaging

with the children's providers and ensuring that they get the

services and treatment they need. The father's inability to

ensure that the children receive appropriate services and

treatment relates to his "ability to assume parental

responsibility." Adoption of Luc, 484 Mass. at 146.

3. The father's action plan. The father argues that he

substantially complied with his action plan. The judge

concluded otherwise. The judge noted that, although the father

had been compliant with portions of his plan, he refused to

cooperate with anything he personally disagreed with, most

notably his providers' recommendations about medication. The

judge also concluded that, even though the father had

participated in multiple parenting programs, he could not

explain what he learned or demonstrate any insight into his

parental shortcomings after attending these programs. The judge

pointed out that the father still lacked stable housing.

Finally, the judge noted that the father continued to deny his

history of domestic violence towards the mother and refused to

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take responsibility for the events leading to the children's

removal. All these conclusions were supported by the record and

the judge's findings and demonstrate the father's failure to

comply with his action plan.

Regarding the father's housing instability in particular,

the father points to testimony from one of the department's

social workers that the department did not see the father's

housing situation as a barrier to reunification. This

testimony, though, only related to the period when the father

was living with his friend in Medford. By the time of trial,

the father had been asked to leave this house and was, at least

at times, sleeping in a U-Haul storage unit. The father also

testified that his sister would let him and the children stay

with her if he regained custody. As described above, the judge

did not credit this testimony, given that the father had not

spoken to his sister about this plan. The judge's conclusion

that the father lacked stable housing had support in the judge's

findings and the record. Neither a Salvation Army store nor a

storage unit amounts to stable housing.

4. Stale evidence. The father's final argument asserts

that the judge's finding of unfitness rested on stale

information about his history of domestic violence and mental

health. "[S]tale information cannot be a basis for a

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determination of current parental unfitness." Adoption of

Rhona, 57 Mass. App. Ct. 479, 487 (2003), S.C., 63 Mass. App.

Ct. 117 (2005). In this case, the judge did not rely on any

stale information in finding the father unfit.

As to the father's history of domestic violence, the

judge's conclusions focused on his lack of insight and failure

to take responsibility for the conditions that led to the

children's removal. The father's lack of insight into and

unwillingness to accept responsibility for his past domestic

violence is a current condition, even though the underlying acts

of domestic violence happened in the past.

As far as the father's mental health, the judge also

focused on the father's lack of insight into his mental health

struggles, which, again, was a current condition. The judge

also found that the father's trial testimony exhibited the same

symptoms that the father's providers and department staff had

reported. Given that the father suffered from these symptoms at

the time of trial, as evidenced by his testimony, information

about his mental health was not stale.

Consequently, there was ample support for the judge's

finding of unfitness and no abuse of discretion or clear error

of law in the judge's decision to terminate the father's

parental rights.

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5. The children's placement. Soon after assuming

temporary custody of the children, the department placed Whitley

in a respite foster home where the foster parent physically

abused her. Despite viewing bruises on Whitley and learning

from her that the respite foster parent abused her, the

department returned Whitley to the respite foster parent's care

for four days. At times in this proceeding, then, it appears

that while in the department's custody, Whitley, was neither

cared for nor protected. We trust, though, that the juvenile

court judge has ensured that the adoption plan for both children

is in both of their best interests.

Decrees affirmed.

By the Court (Rubin, Shin &
Hodgens, JJ.3),

Clerk

Entered: April 25, 2025.

3 The panelists are listed in order of seniority.

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