ADOPTION OF CATALINA (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-696

ADOPTION OF CATALINA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from the decrees of a Juvenile Court

judge terminating his parental rights regarding his children,

Catalina and Javon (twins), and from the denial of a motion for

relief from judgment and for a new trial. We affirm.

Background. Weeks before the twins were born, the

Department of Children and Families (department) became involved

after the father, age twenty, threw the mother of the children

on the bed and elbowed her in the abdomen. Following this

incident, a report filed pursuant to G. L. c. 119, § 51A (51A

report), alleged that the father neglected the children due to

assaulting the mother, then thirty-six weeks pregnant with the

twins. The department investigated the allegation of neglect,

substantiated the report, and worked with the mother to prepare

1 Adoption of Javon. The children's names are pseudonyms.
a safety plan, which included not exposing her children to the

father or domestic violence. The mother gave birth to the twins

on March 1, 2021. A District Court judge later dismissed

criminal charges related to the incident.

A day after the twins' birth, the department received

another 51A report alleging neglect of the children and exposure

to ongoing domestic violence between the mother and the father.

An investigation indicated that the father and the mother did

not follow the department safety plan. The department took

emergency custody of the children and filed a care and

protection petition on March 4, 2021. A month later, the

department returned the children to the mother, but she and the

father disregarded a condition that required third-party

supervision of the father's visits to the children.

During an argument with the children present on July 12,

2021, the father pushed past the mother, brandished a firearm,

and said "If I can't have the kids, neither can you." The

police later arrested the father and charged him with

threatening to kill, assault and battery on a family or

household member, assault with a dangerous weapon, and receiving

stolen property. The father pleaded guilty to these charges and

received a sentence of two and one-half years. The incident

also resulted in a violation of his probation on prior charges,

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and he received a concurrent prison sentence of from four years

to four years and one day.

As a result of the assault, the mother obtained a G. L.

c. 209A protective order against the father, prohibiting contact

with her or the children for a year. Once the order terminated

in July 2022, the father did not establish paternity until March

2023. The father remained absent from the children's lives from

July 2021 until April 2023. While incarcerated, the father

began having biweekly virtual visits with the children in April

2023.

On October 31, 2023, following a trial (where the mother

stipulated to the termination of her parental rights), a judge

found the father unfit, determined that the children were in

need of care and protection, and terminated the father's

parental rights. The judge approved the department's plan of

adoption by the preadoptive mother with whom the children have

lived since September 2021.

On April 16, 2024, the father filed a motion for relief

from judgment and for a new trial pursuant to Mass.

R. Civ. P. 60 (b), 365 Mass. 828 (1974). He claimed that counsel

rendered ineffective assistance, and for the first time claimed

that the judge erred in failing to consider the defendant's age,

in conjunction with his troubled and abusive childhood, when he

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committed crimes and the children's race, culture, and heritage.

He also argued that the judge abused his discretion in finding

that the department made reasonable efforts. Following a

nonevidentiary hearing, the judge denied the father's motion on

July 5, 2024. On appeal, the father raises the same substantive

issues, though somewhat reformulated.

Discussion. 1. Postdecree motion. a. Standard of

review. "A motion for relief from judgment on any of the

grounds identified in rule 60 (b) is generally committed to the

sound discretion of the motion judge." Adoption of Yvonne, 99

Mass. App. Ct. 574, 583 (2021). "[R]elief under rule 60 (b) (6)

requires a showing of 'extraordinary circumstances.'" (citation

omitted). Adoption of Yvonne, supra at 584. "We review the

denial of a motion for new trial for an abuse of discretion."

Adoption of Raissa, 93 Mass. App. Ct. 447, 455 (2018). We

discern no abuse of discretion or extraordinary circumstances

that merit relief.

b. Ineffective assistance of counsel. The father argues

that trial counsel rendered ineffective assistance because she

failed to (1) file motions in limine regarding trial exhibits,

(2) file a motion challenging the department's reasonable

efforts aimed at reunification, (3) offer any witnesses or

exhibits, and (4) challenge the department's adoption plans,

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which omitted any mention of the children's race, culture, and

heritage. To prevail on such a claim, the father must show

conduct falling "measurably below that which might be expected

from an ordinary fallible lawyer" that resulted in prejudice.

Adoption of Yvette, 71 Mass. App. Ct. 327, 345 (2008), quoting

Care & Protection of Stephen, 401 Mass. 144, 149 (1987). See

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[P]rejudice

is not shown if there is overwhelming evidence of unfitness."

Adoption of Azziza, 77 Mass. App. Ct. 363, 368 (2010).

A cautionary note in Saferian is particularly apt here:

"we are not impressed with [a party's] offering us a checklist

of the pre-trial motions that could theoretically have been made

but were passed over." Saferian, 366 Mass. at 98-99. We agree

with the trial judge's assessment that motions in limine would

have been unavailing as the father was "barely mentioned" in the

exhibits at issue, the 51A reports were admitted "solely to set

the stage," and the judge did not consider inadmissible hearsay.

Likewise, a motion related to the department's reasonable

efforts to reunify the family would not have met with success.

The father cites the department's "Foster Care Review Report"

dated September 25, 2023, that noted during the six months under

review the department had not "made efforts" to meet with the

incarcerated father monthly to discuss the case as required by

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department policy. He also cites a report from a year earlier

in which a dissenting member of the review panel believed the

department had "inconsistently visited" with the father in

prison and had not provided an action plan. Such reports,

however, cover only six-month review periods and provide only a

snapshot of the department's relationship with the father.

Trial testimony from the ongoing social worker assigned to the

case provided a more comprehensive view of the department's

efforts in communicating with the father and supporting

reunification with the children. That social worker testified

that she had been assigned to the case for approximately two

years (since November 2021). She conducted virtual "home

visits" at the prison with the father through video

conferencing. During this period, the department learned that

the father was not listed on the birth certificates, and the

social worker informed the father that he needed to establish

paternity for visitation. They discussed services that were

available to him and behavioral, educational, and medical

updates about the children. He asked no follow-up questions

about his children. They also discussed tasks on his action

plan that he did not complete as well as his participation in

various prison programs. The social worker also conducted

approximately six to ten virtual supervised visits between the

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father and the children. She further testified that the father

never attempted to contact her or request alternative methods of

communication. Based on the evidence presented, we discern no

error in the judge's conclusion that the department made

reasonable efforts and the absence of any motion on that issue

did not demonstrate ineffective assistance.

We also discern no error and no prejudice from the absence

of witnesses and exhibits offered by counsel. The father has

not identified any witnesses or documents that were available

and could have impacted the judge's decision. See Commonwealth

v. Carlton, 43 Mass. App. Ct. 702, 705 (1997) (discussing offer

of proof as necessary to show that "better work might have

accomplished something material for the defense" [citation

omitted]). Under these circumstances, counsel cannot be faulted

for a prejudicial error.

The same flaw exists in the father's contention that trial

counsel failed to address issues regarding race, culture, and

heritage. The father offers no evidence that identifies aspects

of racial or cultural background particular to these children

that could have been helpful. Even if such evidence existed,

the evidence of the father's unfitness -- especially his

prolonged absence from the lives of his children and the

domestic violence committed in the presence of his children --

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was overwhelming. See Adoption of Azziza, 77 Mass. App. Ct. at

368 ("prejudice must be shown; prejudice is not shown if there

is overwhelming evidence of unfitness"). Counsel "played the

few cards [she] had," Saferian, 366 Mass. at 93, and emphasized

the father's troubled background (including being shot at the

age of fifteen), his own experience as a child in foster care,

his love for his children, his desire that they must never feel

abandoned, and his strong work ethic.

Unlike the father, we do not fault counsel for her candid

general acknowledgement that "things would be different" if she

tried the case again. "Invariably the lawyer who refights a

campaign on the written record finds ways to fight it better.

Indeed, it must be a smug lawyer who, upon completing a trial or

an argument, does not reflect ruefully on what should have been

said or done." Commonwealth v. McGann, 20 Mass. App. Ct. 59, 61

(1985). Though unsuccessful, counsel's approach did not evince

"serious incompetency, inefficiency, or inattention." Saferian,

366 Mass. at 96.

c. Father's age and criminal history. We disagree with

the father's claim that the judge erred by considering the

father's criminal conduct in the unfitness determination. He

contends that his criminal acts were committed while his

adolescent brain was developing and cannot form any basis for

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predicting his future ability to parent his children. He

contends that his argument is a logical application of

Commonwealth v. Mattis, 493 Mass. 216, 217-218 (2024), in which

the Supreme Judicial Court recognized that eighteen to twenty

year olds require greater protections during sentencing due to

immature brain development. Contrary to the father's

contention, the judge properly considered the criminal conduct

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

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

children, in making his decision.

Mattis does not control the result here. "Custody

proceedings are not criminal in nature and, accordingly, the

full panoply of constitutional rights afforded criminal

defendants does not apply in these cases." Custody of Two

Minors, 396 Mass. 610, 616 (1986). Even assuming that the

underlying science of adolescent brain development discussed in

Mattis applies in care and protection proceedings, "the parents'

rights are secondary to the child's best interests and . . . the

proper focus of termination proceedings is the welfare of the

child." Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting

Adoption of Gregory, 434 Mass. 117, 121 (2001). See Adoption of

Ilona, supra at 62, quoting Custody of a Minor, 375 Mass. 733,

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749 (1978) ("best interest of child paramount consideration

where child's well-being at issue").

The judge did not err. Consideration of a parent's

criminal history is "germane" in care and protection

proceedings. Care & Protection of Quinn, 54 Mass. App. Ct. 117,

125 (2002). The father has been incarcerated for almost the

entirety of the children's lives. He has an extensive criminal

history of violent offenses, including two incidents of domestic

violence against the children's mother. See Custody of Two

Minors, 396 Mass. at 621 ("The court is permitted to assess

prognostic evidence derived from prior patterns of parental

neglect or misconduct in determining future fitness"). The

judge expressly did not consider the father's juvenile record in

the unfitness determination, as the court acknowledged the

father's juvenile record only to "contextualize" his placement

in the Department of Youth Services. The judge properly

considered the father's criminal history, and his findings

demonstrate a sufficient link between that history and his

inability to provide adequate care for the children. We agree

with the judge that the children need "a stable, consistent, and

safe environment" and see no abuse of discretion in his

conclusion that the father's "violent tendencies and criminal

conduct" is a strong indicator that his "unfitness is likely to

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continue into the future to a near certitude." See Adoption of

Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a

parent's unfitness is not temporary if it is reasonably likely

to continue for a prolonged or indeterminate period").

d. Race, culture, and heritage. The father also asserts

that the judge erred by not considering the race, culture, and

heritage of the children in determining whether the department's

proposed adoption plan was in the best interest of the children.

While judges may consider a child's "racial and cultural

development and adjustment" in determining whether an adoption

plan is in the child's best interests, Adoption of Vito, 431

Mass. 550, 567 (2000), such consideration must be based on "the

particular needs and circumstances of the individual child in

question," not on "[g]eneralities about what may be in the best

interests of some children." Id. at 566. Especially where

visitation with other siblings is ongoing, the record here fails

to demonstrate that the children would sense alienation from

their background or that the preadoptive mother would deprive

them of meaningful connections to their heritage. The father

merely speculates that the children may face these difficulties

based on general ideas of what could occur when some children

are adopted by some families of a different race. It would have

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been inappropriate for the judge to deny the adoption plans on

nothing more than this speculation. See Id. at 567.

Given the children's strong bond to the preadoptive mother,

the father's failure to form a significant bond with the

children, and the father not offering any plan for alternative

placement, the judge did not err or abuse his discretion in

approving the department's plan for adoption.

Decrees affirmed.

Order denying motion for
relief from judgment and
for a new trial affirmed.

By the Court (Meade,
Hodgens & Toone, JJ.2),

Clerk

Entered: May 9, 2025.

2 The panelists are listed in order of seniority.

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