ADOPTION OF WYATT (And Two Companion Cases).

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-108

ADOPTION OF WYATT (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from decrees entered by a judge of the

Juvenile Court terminating his parental rights to his three

children. He argues that there was insufficient evidence to

support the judge's determinations that (1) his unfitness was

likely to continue indefinitely and (2) that it was in the

children's best interests to terminate his parental rights. We

affirm.

Background. We summarize the judge's findings of fact,

supplemented with uncontroverted evidence from the record,

reserving certain details for later discussion. The Department

of Children and Families (department) has been involved with the

family since November 2010, when the oldest child was born

1Adoption of Elena and Adoption of Amanda. The children's
names are pseudonyms.
substance exposed. The oldest child, age twelve at the time of

the trial, was first removed from the father's custody in 2011,

when he was almost one year old, after the father went into

Boston and left him overnight without a caretaker at Sage House,

a residential family treatment program where they were living.2

When the father returned the next day, he admitted to using

cocaine and marijuana and subsequently tested positive for

cocaine, heroin, and marijuana.3 The department obtained

temporary custody of the oldest child, but he was soon reunified

with the father.

All three children were removed in 2019 after the father

overdosed on heroin outside the family's apartment -- his second

overdose in a six month period -- and had to be revived with

Narcan. The children, then ages eight, six, and two, were in

the home at the time. The department filed a second care and

protection petition, and the children were placed in the

department's temporary custody. The father, with the

department's assistance, enrolled in an in-patient substance

2 The mother was living in another shelter at the time,
having recently been released from incarceration. In 2016, she
died of an overdose in the family home. The children and the
father were present in the home when the mother overdosed.

3 The judge did not credit the father's testimony at trial
that he had not used drugs the night he left the oldest child at
Sage House or that his drug screens were negative during that
time.

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abuse treatment program through the Institute of Health and

Recovery. Following his in-patient treatment, the father moved

back to Sage House in February 2020, where he was again

reunified with the children. There, the father attended group

meetings, worked with clinicians to address his substance abuse,

and was prescribed suboxone to help him withdraw from opioids.

In the Spring of 2020, the father graduated from Sage House

after successfully completing the program requirements; he and

the children moved to an apartment. The father received

substance abuse and mental health treatment services from New

Horizons, an addiction and mental health clinic.4 Although he

met with a counselor and a behavioral health worker, and

continued to receive medication to aid his withdrawal from

substances, he did not do well with the less structured

environment New Horizons provided and the transition to remote

treatment during the Covid-19 pandemic, and was terminated from

the program in October 2020 due to non-compliance.

A month after his termination from New Horizons, in

November 2020, the father informed the department that he was

4 The father had been diagnosed with bi-polar disorder and
post traumatic stress disorder in 2001 and was prescribed
Prozac, Lithium, and Trazadone. He stopped taking the Trazadone
around 2012, and stopped taking the Prozac and Lithium in 2021.
At trial, the father testified that he discontinued his
medication because he felt that he no longer needed it, and that
he had given up after the March 2021 removal of the children.

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feeling very depressed, sleeping all day, using marijuana, and

needed an intensive outpatient treatment program. The

department referred the father to a virtual partial day program

at a local hospital. The father enrolled in the program in

February 2021 but continued to struggle with substance use. The

department encouraged him to engage in in-person treatment and

offered to assist the father in accessing the in-person program

at the local hospital.

The department filed the care and protection petition at

issue in March 2021. Initially, the father maintained custody

under this new petition, subject to a conditional custody

agreement and a signed safety plan. Among other things, the

safety plan required that the father abstain from drug use in

the home and engage in a dual diagnosis treatment program. The

department would conduct unannounced home visits to ensure that

the father and the children were safe.

During one unannounced home visit just a few weeks

thereafter, on March 26, 2021, the social worker found the

father unresponsive, and the children without a safe and sober

caretaker. The social worker called 911, and the police and

EMTs responded to the home. The social worker observed clutter,

dirt, and feces on the floor and furniture in the apartment.

The responding police officers found used crack pipes under a

pile of clothing in the oldest child's bedroom; marijuana, small

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baggies, balled up tinfoil, cotton, and copper wire in a kitchen

drawer; and a container for syringes in the kitchen. The

children said that the father had been sick that day and the

previous day. The oldest child stated that he did not want to

tell the social worker things in order to protect the father.

The children, ages ten, eight, and five at the time, were

removed and placed in a foster home.

After the March 2021 removal of the children, the father

enrolled in an in-patient detoxification program. He completed

the program and was discharged in April 2021 with an after care

plan that required him, among other things, to attend virtual

sessions twice a week, and recommended that he enroll in an

intensive out-patient program. He failed to complete his after

care plan. Although he completed an intake with an intensive

out-patient treatment program at the end of April 2021, he did

not enroll in the program. The department thereafter

recommended that the father enter an in-patient substance abuse

treatment program, but he stated that he would only seek in-

patient treatment if he could regain custody of the children.

The father relapsed again in the fall of 2021, and testified at

trial that he was using substances every weekend.

Discussion. 1. Standard of Review. A judge's decision to

terminate parental rights must be supported by "clear and

convincing evidence, based on subsidiary findings proved by at

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least a fair preponderance of the evidence, that the parent is

unfit to care for the child and that termination is in the

child's best interests." Adoption of Arianne, 104 Mass. App.

Ct. 716, 720 (2024), quoting Adoption of Xarissa, 99 Mass. App.

Ct. 610, 615 (2021). That decision must also be supported by a

finding "that the current parental unfitness is not a temporary

condition." Adoption of Virgil, 93 Mass. App. Ct. 298, 301

(2018). "We give substantial deference to the judge's decision

to terminate parental rights 'and reverse only where the

findings of fact are clearly erroneous or where there is clear

error of law or abuse of discretion.'" Adoption of Arianne,

supra at 720, quoting Adoption of Valentina, 97 Mass. App. Ct.

130, 137 (2020). Here, the record amply supports the judge's

findings, and we discern no abuse of discretion or error of law

in the judge's conclusion that the father's unfitness was not

temporary, and that termination of his parental rights was in

the children's best interest.

2. Unfitness. The father points to the two prior

reunifications, and the lack of in-person services during the

height of the COVID-19 pandemic, to support his claim that his

unfitness was merely temporary. However, where the judge's

findings and conclusions reflect careful attention to the

evidence in view of the father's history and continuing use of

substances, including that the father received additional in-

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patient care after the children were removed and thereafter

refused further recommended in-patient care, the judge was fully

justified in finding that the father's unfitness was not

temporary.5

We are unpersuaded by the father's argument that the court

should have considered a "likelihood of genuine improvement in

[the father's] situation . . . upon the resumption of services

after pandemic restrictions were lifted." The father completed

an inpatient program in April of 2021, but could not maintain

his sobriety even with enrollment in an intensive outpatient

program. When he failed to regularly participate in outpatient

services, the department recommended additional inpatient

treatment, but the father "gave up," relapsed, and still had not

engaged in any services by the time of trial in August 2022.

See Adoption of Nancy, 443 Mass. 512, 517 (2005) ("where the

father has had ample opportunity to achieve fitness as a parent

but has failed to follow through, it is only fair to the

children to say, at some point, 'enough'"). Further, the judge

properly considered the father's refusal to engage in

recommended services to address his substance abuse unless he

5 The judge specifically found factor (xii), set forth in
G. L. c. 210 § 3 (c), applicable to the father's unfitness
determination: "a condition which is reasonably likely to
continue for a prolonged, indeterminate period, such as . . .
drug addiction. . . , and the condition makes the parent
unlikely to provide minimally acceptable care of the child."

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was first reunified with the children as indicative of his

unwillingness to remedy his parental unfitness. See Adoption of

Mario, 43 Mass. App. Ct. 767, 772 (1997) (parent's "continued

refusal to participate in intensive, long-term drug treatment

made it unlikely that she would address her problem in the near

future or that her parenting abilities would improve, and placed

[the children] at risk of further neglect if returned to her

custody").

3. Termination of parental rights. We also do not accept

the father's argument that in assessing whether the children's

best interests will be served by termination of his parental

rights, the judge inappropriately weighed the children's bond

with their foster mother and failed to consider the children's

bond with him. The judge was statutorily obligated to consider

the children's bond with their substitute caregiver when

determining whether the children's best interests will be served

by terminating the father's parental rights. See G. L. c. 210,

§ 3(c). Further, the judge did not overlook the father's bond

with the children. Indeed, it was in recognition of that bond

that he ordered post-termination and post-adoption contact.

But, overshadowing that bond, and any strengths the father

possesses, is the fact that the father has significant and

ongoing substance abuse and mental health issues that have put

the children at risk and resulted in them being removed multiple

8
times -- yet the father had not acted in the year prior to trial

to overcome those issues. See Adoption of Nicole, 40 Mass. App.

Ct. 259, 262 (1996) (ultimate determination in care and

protection cases does not rest solely on "the father's merits or

demerits" but rather on "whether, in all the circumstances

[including consideration of those merits or demerits] he has the

capacity to act as a fit parent").

4. Remaining claims. The father argues several additional

points.6 First, he challenges as unsupported the judge's

conclusion that he was "incapable [of] engaging in services and

daily life activities which include general parenting

requirements such as feeding and nurturing the children and

making sure their basic needs are met." The department has been

involved with the family for many years and it is true that

intermittently, the father demonstrated to the department that

he was able to meet the children's basic needs. But, by the

6 We decline to address in detail the father's claim that
the judge's findings about the foster mother taking the children
on vacation and placing them in private school "borders on
improper comparison" of the incomes of the foster mother and the
father, as those findings are supported by the record and the
father points to nothing else to in the judge's analysis to
support this claim. Indeed, the father's argument itself, using
the terms "borders on," seems to concede that the judge did not
make an improper comparison. We similarly decline to address
the father's argument that the judge should have considered the
fact that children of color are less likely than white children
to be adopted as it does not appear that this information was
introduced at trial, and a pre-adoptive resource has already
been identified for the children.

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time the children were removed in March of 2021, the father

admitted that he was struggling with his mental health, sleeping

all day, and using substances every weekend. This, coupled with

the father's continued refusal to engage in treatment to address

his mental health and substance abuse, adequately supports the

judge's conclusion.

Next, the father contends that the judge erred in

concluding that his "failure to visit with the children on a

regular basis is indicative of an indifference to the children's

feelings and/or an inability to be present for important

occasions in the children's lives." Where the foster mother

testified that father would attend only one visit per month when

he was offered weekly visits, and the social worker testified

that visits were reduced to biweekly due to Father's

inconsistent attendance and the negative impact on the children

when the father did not appear for scheduled visits, there was

no error in the judge's conclusion that the father did not visit

the children on a regular basis.

Finally, the father argues that the judge incorrectly

concluded that he "still had a default warrant" at the time of

trial, and improperly speculated that the default warrant was

indicative of future involvement in the criminal justice system.

The father misinterprets the judge's conclusion. The judge did

not conclude that the default warrant was still outstanding,

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rather, the judge wrote that "the [court] is concerned that a

default warrant was in place as a result of Father's inability

to resolve a criminal matter" (emphasis added). The judge

properly weighed the father's lengthy criminal history,

including several periods of incarceration, as a factor bearing

on parental fitness. See Care & Protection of Frank, 409 Mass.

492, 495 (1991).

Accordingly, the decrees terminating the father's parental

rights to all three children are affirmed.

Decrees affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.7),

Clerk

Entered: December 5, 2024.

7 The panelists are listed in order of seniority.

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