Adoption of Sevy.

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-56

ADOPTION OF SEVY. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree issued by a judge of the

Juvenile Court finding the father unfit and terminating his

parental rights to his son, Sevy. 2 We affirm.

Background. In January 2022, Sevy was born substance

exposed. The Department of Children and Families (the

department) filed a petition for care and protection and removed

Sevy from his parents' custody when he was four days old and

still in the hospital. At a court hearing three days after

Sevy's removal, the parents waived their right to temporary

custody. Trial on the department's petition was held in June

2023. The judge heard from two witnesses and considered fifty-

1 A pseudonym.

2The judge also terminated the parental rights of Sevy's
mother. The mother did not appeal.
two exhibits. The father failed to appear for trial and the

judge drew an adverse inference against him for his absence.

The judge subsequently issued detailed findings supporting her

conclusion that the department had met its burden of

demonstrating that the father was unfit to parent Sevy and was

likely to remain so. See Adoption of Nancy, 443 Mass. 512, 514-

515 (2005).

Discussion. 1. The father's fitness. "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"

(citation omitted). Adoption of Oren, 96 Mass. App. Ct. 842,

844 (2020). "[T]he 'parental fitness' test and the 'best

interests of the child test' are not mutually exclusive, but

rather 'reflect different degrees of emphasis on the same

factors.'" Adoption of Garret, 92 Mass. App. Ct. 664, 671

(2018), quoting Care & Protection of Three Minors, 392 Mass.

704, 714 (1984). "The judge must also find that the current

parental unfitness is not a temporary condition" (quotation and

citation omitted). Adoption of Arianne, 104 Mass. App. Ct. 716,

720 (2024). "We give substantial deference to the judge's

decision to terminate parental rights and reverse only where the

2
findings of fact are clearly erroneous or where there is a clear

error of law or abuse of discretion" (quotation and citation

omitted). Id. "An abuse of discretion exists where the

decision amounts to a clear error of judgment [in weighing the

relevant factors, such] that [the decision] falls outside the

range of reasonable alternatives" (quotation and citation

omitted). Id.

The parent's fitness is "determined by taking into

consideration a parent's character, temperament, conduct, and

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Adoption of

Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the

parent's deficiencies place the child at serious risk of peril

from abuse, neglect, or other activity harmful to the child"

(quotation and citation omitted). Adoption of Olivette, 79

Mass. App. Ct. 141, 157 (2011).

a. Domestic abuse. The father and the mother began their

relationship in 2018, were separated from the fall of 2019 until

January 2021, and were together at the time of trial. They

frequently engaged in "verbal altercations" during their

relationship. In November 2019, after the couple had separated,

the mother told police that the father responded to her request

that he stop contacting her by repeatedly calling her and

threatening to "ruin her Thanksgiving" by making a false report

3
to police of her drug abuse. The father considered the mother

"weak" and "obedient." He controlled her cell phone and email

communications. The father also made videos of them having sex,

which included degrading and humiliating acts the father

instructed the mother to perform. The father told the mother

she had to submit to the videotaping because she was his

girlfriend. According to the mother, the father used threats of

disseminating the videos to control her. He did disseminate

some of the videos when the mother did something he viewed as

"wrong." While the mother was in labor with Sevy, the father

"flip[ed] out" and was removed from the hospital by security.

When the mother did not tell him immediately about Sevy's birth,

the father became "filled with anger [and] rage." He told the

mother she was going to be "homeless" when she returned from the

hospital.

The father also had a history of aggression toward other

family members. In March 2022, the father's sister obtained a

restraining order against him after he pushed her down a flight

of stairs. In August 2022, his mother also obtained a

restraining order against the father after he destroyed her

property.

We reject the father's contention that his relationship

with the mother represented a "lifestyle choice" in which the

mother accepted a "submissive role." Beyond his verbal abuse of

4
the mother, the father's behavior constituted the type of

"coercive control" that has long been recognized as a hallmark

of domestic abuse. 3 See Schechter v. Schechter, 88 Mass. App.

Ct. 241 n.5 (2015); K.A. v. T.R., 86 Mass. App. Ct. 554, 559 n.

9 (2014). We thus see no error in the judge's conclusion that

the father's history of domestic abuse and controlling behavior

with the mother, violence toward other close family members, and

lack of insight into his responsibility for that behavior placed

Sevy at risk. See Adoption of Gillian, 63 Mass. App. Ct. 398,

404 n.6 (2005) ("Violence within a family is highly relevant to

a judge's determination of parental unfitness and the best

interests of the children").

b. Mental health and substance use disorders. The father

suffered from long term mental health and substance use

disorders. He reported being diagnosed with bipolar and

obsessive-compulsive disorders. Despite the department's

intervention and continual urgings, the father declined to

participate in psychological evaluations. He adamantly refused

to take prescribed mental health medications. The father

acknowledged that he used drugs and reported smoking "over two

million dollars" worth of crack cocaine since he started using

3 Our Legislature recently codified this form of domestic
abuse. See G. L. c. 209A, § 1 (d), as amended by St. 2024,
c. 118, § 4.

5
it in 2000. He used crack cocaine every weekend, including when

the mother's other children were present in the home. 4 The

father also overdosed on two occasions on intravenous opioids,

once four years before Sevy was born and once after removal

proceedings for Sevy had begun. Nevertheless, the father

refused to undergo evaluation for substance use treatment and

failed to provide the department with required drug screens. 5 On

this evidence, we discern no error in the judge's determination

that there was a nexus between the father's mental health and

substance use issues and his inability to parent. See Adoption

of Luc, 484 Mass. 139, 144 (2020) ("[T]he [parent]'s

unwillingness to adhere to [the department's] service plan,

which required [the parent] to obtain treatment for [the

parent's] mental health challenges and substance use disorder,

is relevant to the determination of unfitness" [quotation and

citation omitted]).

c. The father's interaction with the department.

Beginning in October 2021, department social workers visited the

parents' home to help them prepare for Sevy's birth. When the

department expressed concerns about the parents' lack of

4 The mother had two children from another relationship.

5 The judge was not required to credit the father's self-
reported, unverified attendance at a drug treatment program one
month before trial, and apparently did not do so.

6
preparedness, the father became "escalated" and stated that he

did not need the department's assistance. The father's first

visit with Sevy occurred in the department's office when Sevy

was six days old. When a department social worker asked the

father to wear a mask to protect Sevy from potential Covid-19

exposure, he refused and "started yelling and throwing up his

arms" while holding Sevy. During ensuing visits, the father was

unable to bottle feed Sevy, could not remove him from his car

seat without assistance, teased him, left him unattended on a

couch, was unable to change his diaper, and made inappropriate

statements about Sevy. The department provided the father with

a parenting aide, but he became upset when the aide offered

suggestions and he refused to meet with her thereafter.

During a meeting in April 2022, the father was "frequently

agitated and yelling about the department." He repeatedly

directed racial slurs toward a department social worker, and at

one point threatened to kill her. As a result, the father's

visits with Sevy were suspended until a safety plan was

implemented. Once visitation was reinstated, the father

canceled visits with Sevy nearly every other week and sometimes

three weeks in a row. Beginning in October 2022, visits were

changed to once a month due to the father's frequent

cancellations.

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During monthly visits with Sevy in 2023, the father told

Sevy to "shut up" when he cried, yelled at social workers with

Sevy on his lap, and acknowledged that he was unable to care for

Sevy. The father stated that his grandfather "beat the fear of

the [L]ord in him" and the father "believes that is how kids

should be raised."

We are not persuaded by the father's contention that he was

merely responding reasonably to the department's unfair

"attack[s]" on his parenting ability. The evidence amply

supported the judge's conclusion that the father's interactions

with the department raised "concerns about his ability to create

and maintain a stable, consistent, and safe environment" for

Sevy. See Guardianship of a Minor, 1 Mass. App. Ct. 392, 396

(1973) ("violence of temper" and inability to "control

unparental traits of character" may constitute unfitness).

d. Reasonable efforts. The judge did not err in

concluding that the department made reasonable efforts to

prevent Sevy's removal from his home. As the judge observed,

"the [d]epartment's obligation to make reasonable efforts to

prevent or eliminate the need for removal is contingent on the

parent seeking and engaging in necessary services." See

Adoption of Christine, 405 Mass. 602, 609 n.14 (1989)

("department acted reasonably in the circumstances" where parent

"was unable or unwilling to cooperate" with services offered);

8
Adoption of Serge, 52 Mass. App. Ct. 1, 9 (2001) (department's

"obligation to work with [parent] was contingent upon her own

obligation to fulfill various parental responsibilities,

including seeking and utilizing appropriate services and

maintaining regular contact with [the department] and" the

child). Here, the department developed several action plans to

help the father address the domestic abuse, anger, substance

use, parenting skills, and mental health concerns that

interfered with his fitness to parent Sevy. However, the father

did not substantially engage in many of the recommended

services, except that he completed a "Parenting Journey" course.

After he underwent an independent psychological examination to

receive disability benefits, the father did not share the

results with the department. He also failed to provide the

department with required drug screens. Moreover, the father did

not join the "Strong Father" program the department recommended

and could not verify his presence at virtual parenting classes

he claimed to have attended. The judge properly found that the

department made reasonable efforts, and there was no error in

her factoring the father's lack of engagement with the

department into her determination that the father was unfit.

See Adoption of Serge, supra at 8 (lack of meaningful

participation in recommended services is relevant consideration

in determining parental fitness).

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2. The father's future unfitness. The judge issued

"specific and detailed findings" supporting her conclusion that

the father's unfitness was not temporary. See Adoption of

Quentin, 424 Mass. 882, 888 (1997). See also Adoption of

Virgil, 93 Mass. App. Ct. 298, 301 (2018) (judge must "find that

the current parental unfitness is not a temporary condition").

Those findings include, as discussed, the father's history of

domestic abuse, aggression, volatile behavior, substance use,

untreated mental health disorders, inappropriate conduct during

visits with Sevy, and unwillingness to engage in services.

Considered in their entirety, the judge's findings and

conclusions established by clear and convincing evidence that

the father's unfitness was not temporary.

Decree affirmed.

By the Court (Henry, Hand &
Brennan, JJ. 6),

Clerk

Entered: November 13, 2024.

6 The panelists are listed in order of seniority.

10