Adoption of Yong.

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-1360

ADOPTION OF YONG. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued a

decree finding the father unfit to parent his son, Yong,

terminated the father's parental rights, and approved the

adoption plan proposed by the Department of Children and

Families (department). See G. L. c. 210, § 3. The judge

declined to order posttermination and postadoption visitation.

The father and Yong appeal. 2 The father claims that the evidence

of his unfitness was insufficient to support termination of his

parental rights. Both the father and Yong claim that the judge

abused his discretion by approving the department's adoption

plan and declining to order posttermination and postadoption

visitation. We affirm.

1 A pseudonym.
2The mother stipulated to the termination of her parental
rights and is not a party to this appeal.
2

Background. In June 2021, the department assumed emergency

custody of Yong and his sisters 3 after receiving a report filed

pursuant to G. L. c. 119, § 51A, alleging neglect by the mother

due to mental health and substance misuse issues. 4 The father

was incarcerated at the time Yong was removed from the mother's

care. Yong was placed first with his maternal aunt, then in a

specialized foster home.

The trial occurred on June 27, 2023, at which the father

did not appear; Yong was almost fifteen years old at the time.

Ultimately the judge found that the father was "unable to

provide [Yong] with permanency currently and would be unable to

do so in the foreseeable future," and found it in Yong's best

interests to terminate the father's parental rights pursuant to

G. L. c. 119, § 26. The judge "considered the father's ability,

fitness, and readiness to assume parental responsibility, as

well as the fourteen (14) factors set forth at G. L. c. 210, § 3

(c)." This appeal followed.

Discussion. 1. Termination of parental rights. The

father challenges the sufficiency of the evidence supporting the

3 Yong's two sisters are not parties to or the subjects of
this appeal.

4 The mother called police to report someone breaking into
her apartment through a secret tunnel; on arrival, police found
no intruders but found the mother to be in possession of
"crack." She was hospitalized pursuant to G. L. c. 123, § 12.
3

termination of his parental rights and the judge's conclusions

of law regarding the statutory factors of parental 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 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). The judge "must also find that the current parental

unfitness is not a temporary condition." Adoption of Virgil, 93

Mass. App. Ct. 298, 301 (2018). On appeal, "[w]e 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).

a. Sufficiency of the evidence. The father claims that

the evidence of his unfitness was not supported by clear and

convincing evidence. We are not persuaded. "Because the

termination of parental rights is an 'extreme step,' we require

that the judge articulate specific and detailed findings in

support of a conclusion that termination is appropriate,

demonstrating that []he has given the evidence close attention."

Adoption of Nancy, 443 Mass. 512, 514-515 (2005), quoting
4

Adoption of Frederick, 405 Mass. 1, 5 (1989). Here, the judge

made specific factual findings supporting his conclusion that

termination was appropriate, and considered a "constellation of

factors" that demonstrated the father's unfitness. Adoption of

Greta, 431 Mass. 577, 588 (2000).

i. Mental health history and substance misuse. The father

had an extensive history of mental health issues and substance

misuse. He reported diagnoses of depression, posttraumatic

stress disorder, and multiple personality disorders. He had

been prescribed medications, took them inconsistently, and been

hospitalized for suicidal ideations. The department made three

referrals for mental health supports, but the father engaged

sporadically in only one and it was discontinued due to lack of

attendance. The father's failure to recognize his need for

treatment or engage consistently in treatment was relevant to

the determination of unfitness. See Adoption of Luc, 484 Mass.

139, 146-147 (2020). See also Adoption of Frederick, 405 Mass.

at 9 (mental disorder relevant to extent it affects parent's

capacity to assume parental responsibility).

The judge also properly considered the father's misuse of

alcohol and illegal substances as a factor in unfitness. 5 See

5 The father had a history of using marijuana (although now
legal) and continued to struggle with misuse of other illegal
substances. He admitted that he had used cocaine, drank
5

Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008) (evidence

of alcohol or drug abuse "relevant to a parent's willingness,

competence, and availability to provide care"). Although the

father claimed that he had stopped using substances, he later

admitted to using again. The department referred the father for

a substance abuse evaluation, but the father did not follow up.

ii. Criminal history. The father contends that the judge

relied disproportionately on his criminal history, especially as

most of his convictions were over a decade old. A parent's

criminal history alone is not sufficient to terminate parental

rights; however, "[t]o the extent it bears on fitness, . . .

evidence of prior convictions may properly be weighed in the

balance." Care & Protection of Frank, 409 Mass. 492, 495

(1991). Evidence of a criminal record in relation to the

father's fitness was "germane" for the judge to consider. Care

& Protection of Quinn, 54 Mass. App. Ct. 117, 125 (2002). The

judge did not err in considering the father's criminal history 6

as a factor in parental unfitness.

alcohol, smoked cigarettes and crack, and injected substances
into his neck with a needle.

6 The father had been charged with crimes involving
property, robbery, alcohol, drugs, and crimes of violence. At
the time of trial, the father had an open warrant for breaking
and entering.
6

iii. Domestic violence. The judge also properly

considered the "extensive history of domestic violence" 7 between

the mother and the father, noting the "detrimental impacts on

children" of witnessing this kind of violence. See Custody of

Vaughn, 422 Mass. 590, 595 (1996) ("a child who has been either

the victim or the spectator of such abuse suffers a distinctly

grievous kind of harm"); Adoption of Zak, 87 Mass. App. Ct. 540,

543 (2015).

iv. Housing instability. The father's inconsistent

housing and inability to provide a stable environment for Yong

contributed to his unfitness. A judge may consider a parent's

"inability to secure 'adequate stable housing'" in determining

fitness. Adoption of Anton, 72 Mass. App. Ct. at 676, quoting

Adoption of Vito, 431 Mass. 550, 555 (2000). Unstable housing

may have a "deleterious effect" on a child, Adoption of Anton,

supra, and a parent's inability to provide a stable home is an

appropriate factor in determining fitness. See Care &

Protection of Three Minors, 392 Mass. 704, 713 n.11 (1984).

Around the time of trial, the father was reportedly living in a

tent in New Hampshire. He had not had reliable housing

throughout the pendency of this case and had been staying at

7 There were ten incidents of domestic violence between
September 2014 and September 2022, some of which resulted in
charges against the father. And there were three orders issued
pursuant to G. L. c. 209A against the father.
7

friends' homes and in tents. The judge found that, even if

granted custody, the father had no home to which he could bring

Yong.

v. Engagement with the department. "Evidence of parents'

refusal to cooperate with the department, including failure to

maintain service plans and refusal of counseling programs, is

relevant to the determination of unfitness." Adoption of Rhona,

63 Mass. App. Ct. 117, 126 (2005). The judge found that the

father did not engage with the department on his family action

plan, and this lack of engagement "prevented him from making

observable changes throughout the pendency of this case and from

making sufficient progress towards the goal of reunification."

[RA126] The record supports these findings. The department's

action plan with the father included regular communication with

the department, engaging in therapy, completing various

evaluations, taking medications as prescribed, providing proof

of sobriety, maintaining stable housing, refraining from illegal

and illicit activities, and refraining from altercations with

the mother. The father did not engage in any of the services to

which he was referred by the department and did not take

responsibility for the circumstances leading to Yong's removal;

"rather, he blame[d] Mother and the Department." See Adoption

of Xarina, 93 Mass. App. Ct. 800, 803-804 (2018) (parent's
8

unfitness supported by findings of continued failure to engage

in services and work with department).

b. Negative inference against the father. The judge did

not err in drawing a negative inference from the father's

failure to appear and testify at trial. A negative inference

was permissible where the father failed to testify in a trial so

adverse to his interests that his failure to testify "would be a

fair subject of comment"; i.e., termination of his parental

rights. Custody of Two Minors, 396 Mass. 610, 616 (1986). See

Adoption of Talik, 92 Mass. App. Ct. 367, 372-373 (2017). While

"the adverse inference drawn from the failure of a party to

testify is not sufficient, by itself, to meet an opponent's

burden of proof," Custody of Two Minors, supra, the department

met its burden of proof with ample evidence of the father's

unfitness, aside from the father's failure to testify.

c. Conclusions of law. The father also contends that the

judge did not issue separate conclusions of law or evaluate the

fourteen statutory factors set forth in G. L. c. 210, § 3 (c).

"Although it would be better practice specifically to state the

reasons that termination is in the child's best interest, such

specificity is not required. The judge had discretion to

conclude that termination was appropriate." Adoption of Nancy,

443 Mass. at 516. As described supra, the findings of fact laid

out a myriad of reasons for the father's parental unfitness,
9

many of which corresponded to the statutory factors. And as in

Adoption of Larry, 434 Mass. 456, 470 (2001), the judge

"specifically stated that he considered each [of the factors].

He made specific findings as to the . . . factors that he

determined were applicable, and said nothing of the others.

That is all that was required of him." 8

2. Adoption plan. The father and Yong contend that the

judge abused his discretion in approving the department's plan

for adoption through recruitment. We review for abuse of

discretion. See Adoption of Hugo, 428 Mass. 219, 225-226

(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.

1034 (1999). "The adoption plan need not be fully developed to

support a termination order; it need only provide sufficient

information about the prospective adoptive placement 'so that

the judge may properly evaluate the suitability of the

department's proposal.'" Adoption of Willow, 433 Mass. 636,

652-653 (2001), quoting Adoption of Vito, 431 Mass. at 568 n.28.

Here, the department had been searching for a kinship placement

and planned to recruit a preadoptive resource if a kinship

8 We acknowledge that the judge's comment that the decree
was "going to issue in five minutes" could cast doubt on the
quality of his review of the thousands of pages of exhibits
entered in evidence. However, the testimonial evidence
presented at trial alone was sufficient to support termination
of the father's parental rights, and the record supports the
judge's determination. See Adoption of Ilona, 459 Mass. at 59.
10

placement could not be located. The adoption plan described

Yong's preferences to be placed with "someone he already knows,"

remain in the same geographical area, have "others close to his

age in his foster home," continue to participate in programs

like the Boys and Girls Club, and continue contact with his

biological family. This was "sufficiently detailed to permit

the judge to evaluate the type of adoptive parents and home

environment proposed and consider whether the proposal is best

suited to meet the specific needs of the child." Adoption of

Varik, 95 Mass. App. Ct. 762, 770-771 (2019).

The father and Yong further contend that it was error for

the judge to "rush" to terminate the father's rights where

adoption was unlikely due to Yong's opposition to adoption. See

G. L. c. 210, § 2 (child's consent required for adoption if

older than twelve years old). Yong's views about adoption were

unclear and equivocal. For example, he "expressed not wanting

to be adopted but not wanting to return to his parents' care."

But Yong also "report[ed] that if he cannot go home, he [was]

open to adoption." The judge considered Yong's wishes but did

not give them determinative weight, and he was not required to.

See Care & Protection of Georgette, 439 Mass. 28, 36 (2003). In

any case, consent to adoption is not a prerequisite to

termination. See Adoption of Nancy, 443 Mass. at 518. See also

G. L. c. 210, § 3 (b) (department authorized to commence
11

termination proceeding "independent of a petition for

adoption"). The evidence demonstrated the father's unfitness

and was supported by the record; it was within the judge's

discretion to determine that it was in Yong's best interest to

approve the adoption plan and terminate the father's parental

rights. See Adoption of Ilona, 459 Mass. at 59.

3. Posttermination and postadoption visitation. The

father and Yong claim it was error for the judge to decline to

order posttermination and postadoption visitation.

Specifically, the father contends that it was an error of law

for the judge to state that leaving the visitation determination

to the department was "about as far as [he could] go." "The

decision whether to grant posttermination visitation is within

the judge's sound discretion." Adoption of Cecily, 83 Mass.

App. Ct. 719, 727-728 (2012). However, "[a]n order for

posttermination visitation is unwarranted without adequate

findings by the judge that a significant bond exists between the

biological parent and the child and that continued contact would

be in the child's best interests." Id. at 728, citing Adoption

of John, 53 Mass. App. Ct. 431, 439 (2001). The father had

supervised visitation with Yong and his younger sister biweekly

for two hours. At the time of trial, the father had not

attended visitation for one month, and he had been approximately

one hour late to visits for several months. The judge properly
12

found that there was not a significant bond between the father

and Yong based on the father's inconsistent visitation. We

discern no abuse of discretion. See Adoption of Ilona, 459

Mass. at 64-66.

Decree affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ. 9),

Clerk

Entered: December 11, 2024.

9 The panelists are listed in order of seniority.