Adoption of Blair.

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-1161

ADOPTION OF BLAIR.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal involves the welfare of Blair, who was born in

October 2013. A Juvenile Court judge found the father unfit to

care for Blair and terminated his parental rights. The judge

also approved the department's proposed plan of recruitment of

an adoptive family for Blair. The father appealed. A few

months later, the father filed a motion for new trial, pursuant

to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), primarily

asserting that his trial counsel was ineffective. After a

hearing, the judge denied the father's motion. The father again

appealed, and the appeals were consolidated in this court. We

affirm both the decree and the denial of the new trial motion.

1 A pseudonym.
Discussion. 1. Termination of parental rights. We begin

with the father's appeal from the termination decree. The

father argues that the judge's findings that he is unfit do not

support that conclusion by clear and convincing evidence because

the evidence of his criminal activity was stale, and there was

no evidence that he directed any criminal activity toward Blair,

nor was there a sufficient nexus between his criminal issues and

Blair's well-being. We disagree.

"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). "We 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). When reviewing such determinations, the judge's

assessment is entitled to deference. See Adoption of Nancy, 443

Mass. 512, 515 (2005).

The father has a criminal record spanning twenty-one years

that includes convictions of violent offenses and weapons

2
possession, and he has spent between five and ten years

incarcerated.2 In fact, it was the father's periods of

incarceration -- including the roughly seven-year period from

2014, when the mother obtained a lifetime restraining order

against the father on behalf of herself and Blair, to 2022, when

the father first sought modification of that restraining order -

- that impacted his relationship with Blair and rendered him

unavailable to care for her.3 There was enough evidence of

criminal activity over that prolonged period for the judge to

conclude that it would continue indefinitely. Additionally, the

father "has been unavailable and uninvolved in [Blair's] life

since her birth." For instance, he was incarcerated at the time

of Blair's birth, had never lived with her, and had no existing

relationship with her. On multiple occasions, the father

violated restraining orders the mother obtained, and most of

those violations resulted in further incarceration. See

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("Physical

2 Specifically, the father has been found guilty on fifty-
six offenses in three States and has defaulted forty-seven times
in Massachusetts.

3 The judge also properly considered the father's history of
domestic violence in determining his unfitness. Although the
father argues there was no nexus to Blair, he ignores the fact
that his pattern of violence led to the restraining orders.
Thus, without the father's history of violence, there would have
been no legal prohibition from him seeing or forming a
relationship with Blair.

3
unavailability of the parent to provide day to day care for the

child, including for reasons of incarceration, was relevant

evidence of unfitness").

As to the father's argument regarding insufficient

evidence, we conclude that the judge relied upon clear and

convincing evidence of the father's failure to cooperate with

the department or meaningfully engage in services for the

purpose of reunification with Blair. The father failed to

complete any of the tasks outlined in his action plan, which

included, among other things, that he stop engaging in illegal

conduct, complete parenting and domestic violence classes,

engage in a neurological evaluation, and participate in therapy

or counselling.4 See Adoption of Luc, 484 Mass. 139, 147 (2020)

(parent's failure to recognize need for or to engage

consistently in department treatment plan is "relevant to the

determination of unfitness" [citation omitted]). The father has

also failed to obtain stable housing.

The judge also made extensive findings supporting his

conclusion that termination of the father's parental rights

would be in Blair's best interests. For example, the judge

4 The judge acknowledged that the father may have
participated in some betterment programs while incarcerated.
Regardless, any participation was not specifically aimed at
addressing the department's concerns. Thus, the judge did not
err in his conclusion that the father did not substantially
comply with his action plan.

4
noted that concerns remained regarding the father's "parenting

capabilities, domestic violence, aggression, and criminal

conduct" because he failed to meaningfully engage with the

department's action plan and did not understand the extent of

Blair's needs. Additionally, since Blair's placement at a

department foster care home, she "has made great strides."5

Despite some challenges that require therapeutic services at

home and school, Blair has shown increased independence as her

foster parents are able to manage her prescribed medications.

Blair enjoys playing with dolls, doing puzzles and crafts, and

using electronics.

Based on the clear and convincing evidence and considering

the best interests of the child, the judge did not clearly err

or abuse his discretion in finding that the father was unfit to

parent Blair or in terminating his parental rights.

2. Ineffective assistance of counsel. We turn next to the

father's appeal from the judge's denial of his motion for a new

trial. The father argues that his trial counsel was ineffective

5 In May 2023, the department changed Blair's permanency
plan goal from reunification to adoption. As of the date of the
judge's findings of fact and conclusions of law, the department
had not yet identified an adoptive resource for Blair. The
department planned to refer Blair to a unit for adoption
recruitment in Massachusetts. The department was seeking a two-
parent home for Blair, ideally with parents well-versed in
taking care of her specific diagnoses.

5
for failing to file a motion to modify the lifetime restraining

order the mother had obtained on behalf of herself and Blair,

failing to introduce favorable evidence, and failing to

challenge the department's lack of reasonable efforts. We

disagree.

"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). To prevail on an ineffective assistance claim,

the father was required to show first that counsel's behavior

fell "measurably below that which might be expected from an

ordinary fallible lawyer," and if so, that counsel's conduct

caused him prejudice. Care & Protection of Georgette, 439 Mass.

28, 33 & n.7 (2003), quoting Commonwealth v. Saferian, 366 Mass.

89, 96 (1974). The judge found that from approximately 2014 to

2022, the father never saw Blair and never attempted to change

the terms of the lifetime restraining order. However, the

father maintains that he attempted to modify that order in 2022

and 2023. He argues that his trial counsel was ineffective by

failing to investigate the District Court docket, which would

have substantiated the father's testimony that he attempted to

modify the restraining order in 2022 and 2023.6

6 Of note, at trial, the judge did not credit the father's
testimony that he attempted to modify the restraining order.

6
"[C]ounsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary." Commonwealth v. Conley, 43 Mass.

App. Ct. 385, 392 (1997), quoting Strickland v. Washington, 466

Mass. 668, 691 (1984). However, counsel is also afforded the

opportunity to make reasonable decisions that certain

investigations are unnecessary. See Commonwealth v. Tavares,

491 Mass. 362, 366 (2023). Here, introduction of the District

Court docket sheets would have rendered the father's testimony

inconsistent and not credible, because the father testified at

trial that he attempted to modify the order in 2021. There is

no evidence that counsel failed to investigate the docket nor is

there evidence that counsel's decision not to introduce evidence

of the father's attempted modifications was anything but

strategic. Additionally, as the father had been convicted of

violating that restraining order, he cannot satisfy his burden,

because even if counsel had attempted to terminate the

restraining order as to Blair, the father has not shown that

counsel likely would have been successful in doing so. See

Commonwealth v. Comita, 441 Mass. 86, 91 (2004) (defendant

claiming ineffective assistance of counsel based on counsel's

failure to take action must show likelihood that action "would

have been successful").

7
Turning to the father's argument that his counsel was

ineffective for failing to raise the issue that the department

failed to make reasonable efforts to reunify the father and

Blair, we likewise disagree. The department is "obligated to

use reasonable efforts to preserve the biological ties between

[a parent] and child"; however, that duty is "contingent upon

the [parent's] fulfillment of [their] own parental

responsibilities." Adoption of Mario, 43 Mass. App. Ct. 767,

774 (1997). See G. L. c. 119, § 29C. We agree with the judge

that the father is unable to show prejudice from counsel's

failure to press the reasonable efforts claim. Addressing this

claim, the judge made findings that the department communicated

with the father by providing him with action plans while he was

incarcerated and after his release and by making him aware of

the procedures for monthly check-ins with the department. The

department's social worker also attempted to contact the father.

However, the father failed to respond to communication with the

department, failed to participate in his action plan tasks, and

he did not establish his paternity until 2023. Thus, any effort

8
to challenges the department's reasonable efforts would have

been unsuccessful. The judge did not abuse his discretion in

denying the motion for new trial.

Decree affirmed.

Order denying motion for new
trial affirmed.

By the Court (Massing,
Englander & D'Angelo, JJ.7),

Clerk

Entered: April 24, 2025.

7 The panelists are listed in order of seniority.

9