Adoption of Fabio.

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-327

ADOPTION OF FABIO.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and father appeal from decrees entered in the

Juvenile Court finding them unfit to parent their son, Fabio,

terminating their parental rights as to him, and declining to

issue an order of visitation. On appeal, the mother argues that

(1) the judge's findings and conclusions of law are

fundamentally flawed as there was insufficient evidence to

support them and because they were insufficiently detailed, and

(2) the emotional bond between the mother and Fabio requires an

order of posttermination and postadoption visitation. The

father argues that (1) the judge should have recused herself

because comments she made during a pretrial hearing suggested

she was biased against the parents, (2) the judge's decision is

insufficiently supported due to a variety of evidentiary issues,

and (3) the judge improperly considered and relied on the

1 A pseudonym.
father's juvenile record to support her findings. After careful

review of the record and consideration of the judge's findings,

we affirm.

Discussion. 1. Sufficiency of the evidence. Both the

mother and father assert that the evidence was insufficient to

support the judge's findings of fact, warranting reversal of her

decision. They support this argument with a number of

contentions. We address these in turn and conclude that there

was ample evidence in the record to support the judge's

determination that termination of parental rights was in Fabio's

best interests.

"To terminate parental rights to a child and to dispense

with 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. 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 . . ." (quotation

and citation omitted). Adoption of Jacques, supra. "On appeal,

'[w]e give substantial deference to a judge's decision that

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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.'"2 Adoption of Bea, supra at 422, quoting Adoption

of Ilona, 459 Mass. 53, 59 (2011).

Here, the judge heard from three witnesses3 and reviewed

twenty-two exhibits over the course of two days of trial. The

exhibits included, inter alia, Court Activity Record Information

(CARI) reports for both the mother and father,4 an affidavit from

a Department of Children and Families (DCF) social worker with

knowledge of Fabio's case, eight court reports authored by a DCF

social worker, a 51A report describing the circumstances under

which Fabio was removed from the mother and father's care,

2 The father argues that we should conduct a de novo review of
the judge's findings and conclusions of law because he did not
testify during the trial and because the judge relied so heavily
on documentary evidence. We are not persuaded. As we discuss
infra, this was a traditional trial featuring both witness
testimony and documentary evidence. See Adoption of Bea, 97
Mass. App. Ct. at 422.
3 The witnesses were the mother, the ongoing social worker, and

the adoption social worker.
4 The father argues that the judge committed reversible error by

relying on his juvenile criminal record in support of one
factual finding detailing his criminal activity while still a
minor. See G. L. c. 119, § 60. See also Mass. G. Evid.
§ 1115(b)(1) (2023). Because the father did not object to the
admission of these records at the time of trial, the issue is
waived. See McLaughlin v. American States Ins. Co., 90 Mass.
App. Ct. 22, 33 n.17 (2016). "An issue not raised or argued
below may not be argued for the first time on appeal" (citation
omitted). Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006).

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family action and assessment plans prepared by DCF, and health

records for both the mother and father.

These exhibits, coupled with the witnesses' testimony, were

sufficient to support, by a fair preponderance of the evidence,

the judge's findings of fact, which she described generally in

the summary of her findings of fact and conclusions of law:

"[Fabio] was born substance exposed, and at his birth
Mother tested positive for heroin, cocaine and fentanyl.
Both parents have a significant history of substance abuse
and failed at treatment numerous times. The parents were
homeless at the time of [Fabio]'s birth, with no concrete
plan for housing.

"Throughout the next twenty-one months, while [Fabio]
remained in foster care, Father and Mother continued to
abuse drugs, cycle in and out of programs and lack stable
housing.

"By the start of the termination trial . . . , neither
parent was in any kind of consistent substance abuse
treatment, they had no stable housing, they were not being
honest with [DCF] or any providers, they had cycled in and
out of several programs (continuing to abuse substances
while in the programs), they refused to sign releases or
provide drug screens, their visitation with [Fabio] was
inconsistent and their housing remained unstable. In
short, throughout the almost two years this case has been
open the parents did little, if anything, to achieve
reunification with their son.

"Any services the parents have engaged in have been
minimal, and without lasting benefit. They do not
acknowledge, and have done little if anything to address,
the severity of their substance abuse and instability."

See Adoption of Bea, 97 Mass. App. Ct. at 421-422. These

findings, in turn, supported the judge's ultimate conclusion:

"At this time, the Court finds there is clear and
convincing evidence that Father and Mother are unfit to

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care for [Fabio], and that they will remain so for the
foreseeable future. The Court finds that it is in
[Fabio]'s best interest that Mother's and Father's parental
rights be terminated, and that [Fabio] be afforded a chance
for safety and stability by way of adoption."

See id.

Both the mother and father argue that the trial, which

occurred over the span of two nonconsecutive half-days, was too

short to sufficiently support the judge's findings of fact and

conclusions of law. We are not persuaded. The operative

question is whether the evidence produced at trial, however long

that trial might have been, provided adequate support for the

judge's findings of fact and conclusions of law. Adoption of

Bea, 97 Mass. App. Ct. at 421-422. In this case, it clearly

did. For the same reason, we disagree with the parents'

argument that, because of the minimal trial testimony, the judge

over relied on documentary evidence to support her findings. It

is settled law that, so long as the documentary evidence

provides sufficient support for termination of parental rights,

as it did so here, there is no error in the judge's decision to

use it in arriving at her findings and conclusions. See

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

assessment of the weight of the evidence and the credibility of

the witnesses is entitled to deference" [citation omitted]).

The mother further asserts that "[t]he evidence [was]

insufficient to ascertain how the court concluded there was

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clear and convincing evidence to terminate [her] parental

rights." She contends that there was inadequate detail in the

judge's factual findings, seemingly because the judge did not

explicitly state what evidence she relied on to reach her

findings. This argument is unavailing. See Adoption of Elena,

446 Mass. 24, 30-31 (2006) ("Subsidiary findings must be

established by a fair preponderance of the evidence and will not

be disturbed unless clearly erroneous" [citation omitted]).

Contrary to the mother's assertion, the judge's findings of fact

with respect to the mother's and father's unfitness in light of

their drug abuse, housing instability, and inadequate engagement

with services were supported by the evidence and were

sufficiently detailed to support the termination of parental

rights. See Adoption of Bea, 97 Mass. App. Ct. at 421-422.

The father, likewise, argues that several of the judge's

findings of fact were unsupported by the evidence. Without

reciting his contentions individually, suffice it to say he

asserts that the judge overlooked evidence, unfairly dismissed

the father's efforts to reunite with Fabio, and otherwise

portrayed him unfairly in her findings. These arguments are

meritless and amount to an effort to reargue the evidence. The

judge's findings are well supported by the evidence, and as a

result we discern no error. See Adoption of Quentin, 424 Mass.

at 886.

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2. Recusal. We turn next to the father's argument that

the judge erred by denying his motion for her recusal. As

background, on December 3, 2021, during a permanency hearing,

the parties submitted a stipulation to their parental unfitness

along with fourteen exhibits explicitly submitted by the parties

in support of the father's and mother's admission that they were

currently unfit for the welfare and best interests of the child.

Prior to accepting the stipulation, during the hearing, the

judge asked the parties why she should not consider terminating

parental rights at that time, given that the case was one year

old, that Fabio had been in DCF custody his entire life, and

that both parents had relapsed as recently as the prior month.

The judge heard from all parties on the matter and ultimately

accepted the stipulation, as well as the parties' joint

agreement for a three-month trial date which the judge marked as

no further continuances.5 At the following hearing, in March,

the father filed a motion seeking to have the judge recuse

herself, arguing that her comments at the December 3 hearing and

her insistence on setting a trial date within the following

three months cast doubt as to her impartiality. The judge

denied this motion, emphasizing the parents' noncompliance with

5 Notwithstanding her order barring further continuances, the
judge left open the possibility of continuing the trial if DCF
had evidence of the parents' sobriety and progress toward
reunification.

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their reunification plans and the need for permanency for Fabio,

and concluding that having conducted the two-prong examination

of herself required in determining whether recusal was

warranted, that she had no bias with regards to the case before

her and that given the record an objective appraisal of her

impartiality could not reasonably be questioned. See Lena v.

Commonwealth, 369 Mass. 571, 575 (1976) (describing two-part

test with respect to necessity of recusal). We discern no abuse

of discretion in the judge's denial of the father's motion to

recuse.

"The strict ethical constraints to which judges are subject

not only require a judge to examine his or her own conscience

for disqualifying bias, and to act accordingly, but also

obligate the judge to recuse himself or herself from any matter

in which 'the judge's impartiality might reasonably be

questioned.'" Adoption of Iliana, 96 Mass. App. Ct. 397, 407

(2019), quoting S.J.C. Rule 3:09, Code of Judicial Conduct,

Canon 2, Rule 2.11 (A) (1) (2016). "The matter of recusal is

generally left to the discretion of the trial judge . . . and an

abuse of that discretion must be shown to reverse a decision not

to allow recusal." Haddad v. Gonzalez, 410 Mass. 855, 862

(1991).

Here, after asking why she should not terminate parental

rights immediately, the judge asked each attorney to answer her

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question, gave each attorney time to do so, and ultimately

accepted the stipulation as to unfitness in lieu of terminating

parental rights at that time. In the context of a permanency

hearing in which the parties present arguments to a judge urging

her to support a stipulation, there is nothing improper about a

judge asking counsel to explain why an alternative path is not

more appropriate, particularly in light of evidence of unfitness

before the judge at that time. See Adoption of Iliana, 96 Mass.

App. Ct. at 407.

3. Ineffective assistance of counsel. The father further

argues that he received ineffective assistance of counsel for a

variety of reasons. Specifically, he contends that his trial

counsel was ineffective because he (1) failed to cross-examine

the mother, (2) failed to meet with the father prior to trial,

(3) failed to redact certain exhibits, (4) failed to submit

appropriate motions in limine as well as submit proposed

findings, and (5) failed to request an order of visitation.

Notwithstanding these assertions on appeal, the father did not

file a motion for a new trial below.

"Consistent with the approach taken in criminal cases,

'[a]bsent exceptional circumstances, we do not review claims of

ineffective assistance of counsel for the first time on

appeal.'" Adoption of Ulrich, 94 Mass. App. Ct. 668, 673

(2019), quoting Care & Protection of Stephen, 401 Mass. 144, 150

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(1987). "Where the record does not offer a sufficiently full

portrayal of the various issues necessarily subsumed in [an

ineffective assistance] analysis, a defendant's claim of

ineffective representation must be rejected."6 Commonwealth v.

McCormick, 48 Mass. App. Ct. 106, 108 (1999). Accordingly, we

decline to reach the father's ineffective assistance arguments.7

See Adoption of Ulrich, 94 Mass. App. Ct. at 673.

4. Visitation. Finally, the parents argue that they

should have been granted visitation with Fabio.

6 As we have explained,

"This reflects the fact that, in gauging whether the
representation by trial counsel falls below minimum
constitutional standards, a reviewing court must undertake
a discerning examination and appraisal of the specific
circumstances of the given case to see whether there has
been serious incompetency, inefficiency, or inattention of
counsel falling measurably below that which might be
expected from an ordinary fallible lawyer, particularly
whether the challenged conduct reflects the arguably
reasoned tactical or strategic judgments of a lawyer, which
are virtually unchallengeable and cannot give rise to a
claim of ineffective assistance unless they are manifestly
unreasonable" (quotations and citations omitted).

Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107-108
(1999).
7 Were we to consider the father's argument irrespective of its

lack of record support, we would discern no prejudice stemming
from his counsel's alleged shortcomings where the evidence of
his unfitness was "overwhelming." Adoption of Valentina, 97
Mass. App. Ct. 130, 137 (2020). We note that the father has not
proposed any way in which his attorney's alleged shortcomings
prejudiced him other than a conclusory assertion that a
different result favoring father was possible or the outcome of
the trial likely would have been different under different
circumstances.

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"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

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" (quotation omitted).

Adoption of Saul, supra at 556. "Appellate review of a judge's

denial of a request for postadoption visitation is under the

abuse of discretion standard." Id. at 555, quoting Adoption of

Nicole, 40 Mass. App. Ct. 259, 264 (1996).

Here, the judge issued 200 thoughtful findings of fact

based on her review of the record before her, many of which we

have discussed supra. These findings support the judge's

conclusion that an order of postadoption visitation is not in

Fabio's best interests. See Adoption of Saul, 60 Mass. App. Ct.

at 556. The mother's contention that the judge erred by

concluding that there is "not a significant emotional

relationship between [Fabio] and either parent" is unavailing.

Although weekly visitation was a part of the mother's action

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plan, she was inconsistent with appearing for visits through

Fabio's life, to the extent that DCF stopped transporting Fabio

to the visitation center before the mother and father actually

arrived. Taken in conjunction with the fact that Fabio was

removed from the mother's custody immediately following his

birth and has never lived with her, alongside the mother's

documented instability, we discern no error in the judge's

declining to order posttermination or postadoption visitation.

See id. at 556. We are further unpersuaded by the father's

similar argument that he visited consistently and positively

with Fabio and that the judge erred by failing to make such a

finding. See Adoption of Quentin, 424 Mass. at 886.8

Decrees affirmed.

By the Court (Wolohojian,
Desmond & Sacks, JJ.9),

Assistant Clerk

Entered: March 8, 2024.

8 Any arguments raised by the parents but not explicitly
addressed in this decision "have not been overlooked. We find
nothing in them that requires discussion." Commonwealth v. Sosa,
493 Mass. 104, 124 n.12 (2023), quoting Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
9 The panelists are listed in order of seniority.

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