Adoption of Nairn.

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-1260

ADOPTION OF NAIRN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a decree of the Juvenile Court

finding him unfit to parent his son (child), terminating his

parental rights, and approving the adoption plan proposed by the

Department of Children and Families (DCF). We conclude that

evidence of the father's persistent incarcerations combined with

his unresolved mental health issues and housing instability, was

sufficient to support the judge's findings that the father was

currently and indefinitely unfit and that termination was in the

best interests of the child. Further concluding that DCF, which

intended to reunify the child with the father before the

father's mental health deteriorated and he was again

incarcerated, made reasonable efforts at reunification, we

affirm.

1The mother, who neither appeared at trial nor appealed
from the termination of her parental rights, is not a party to
this appeal.
Background. One day after the child's birth, DCF received

a G. L. c. 119, § 51A report alleging neglect of a substance

exposed newborn. Both the child and the mother tested positive

for cocaine and prescribed methadone at birth. In light of

various factors including concerns related to the father's

criminal history and incarceration, and the child's wellbeing,

the child has been in DCF care since December 21, 2021.

The father has an extensive criminal record spanning

multiple States. In Massachusetts, the father's criminal record

consists of myriad adult charges and convictions between 1995

and 2023, including approximately thirteen violations of

probation. The father was also incarcerated for nine years in a

Federal prison in Texas for conspiracy charges and spent two

years in Washington State prison in 2002. In all, the father

"has spent more than half of the past twenty years

incarcerated," and was unable to care for the child for much of

the child's life. Indeed, the father was incarcerated at the

time of the child's birth and at the time of trial.

On December 22, 2021, at the beginning of the child's life,

DCF gave the father an action plan while he was incarcerated.

Upon release, the father met with DCF staff and followed the

requirements of the action plan for several months. This

included participating in individual therapy for mental health

issues and substance abuse programs. Because the father was

2
following the action plan, DCF began to create a reunification

plan for the father.

The father, however, had not addressed his mental health

and showed a detachment from reality.2 In July 2023, "[h]is

mental health appear[ed] to have deteriorated." Around this

time, he reportedly walked around naked in the common areas of

the multifamily building where he lived and exposed himself to

neighbors. Also, on July 23, 2023, police officers served the

father with three "harassment orders," and the father was

ultimately admitted to a hospital for a G. L. c. 123, § 12

psychological evaluation because of his escalated behaviors and

suicidal ideations.

The father's behavior continued to deteriorate, and, by

September 30, 2023, he was arrested again following a standoff

with the police and "S.W.A.T." during which he barricaded

himself in a motel room. Following this arrest, a toxicology

screen was positive for cocaine, resulting in the judge's

discrediting any claims that he was not using illicit

substances.3 The father, nonetheless, explained to a social

2 Much of the father's trial testimony was not credited by
the judge because of, inter alia, "serious concern for Father's
mental health and perceptions of reality based on his
testimony."

3 At trial, the father invoked his right against self-
incrimination with respect to certain events, and the judge drew

3
worker that he believed he was targeted as part of "protocol

11," a "plan from the government that targeted him as someone

who needed to be taken out." He also testified that he is "the

Messiah."

Finally, partly because of the significant amount of time

he has been incarcerated, the father has a history of housing

instability. In July 2023, prior to his most recent

incarceration, the father was served an eviction complaint

because of three harassment orders from neighbors and because he

was behind in his rent payments. The father claims, but the

judge did not credit, that he has the option to live in one of

two apartments that he manages after his release from

incarceration.

Following trial, the judge ordered the entry of decrees

finding the mother and the father unfit and terminating their

parental rights. The judge also approved the adoption plan

proposed by DCF.

Discussion. 1. Termination of parental rights. The

father contends that some portions of the judge's findings4 were

a negative inference regarding his refusal to testify about
those topics.

4 Specifically, the father argues incarceration alone does
not conclusively render him unfit, that without evidence of a
cocaine habit that caused unacceptable care or expert testimony
that "child abuse and neglect [was] the inevitable result of a
Cocaine habit," the judge's prediction that "such will occur"

4
erroneous and that absent those findings, DCF did not meet its

burden to prove parental unfitness by clear and convincing

evidence. 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" (citation omitted). Adoption of Yalena,

100 Mass. App. Ct. 542, 549 (2021). "Parental unfitness is

determined by considering a parent's character, temperament,

conduct, and capacity to provide for the child's particular

needs, affections, and age." Care & Protection of Vick, 89

Mass. App. Ct. 704, 706 (2016). "Because termination of a

parent's rights is an 'extreme step,' . . . a judge must decide

whether the parent is currently unfit and whether, 'on the basis

of credible evidence, there is a reasonable likelihood that the

parent's unfitness at the time of trial may be only temporary.'"

Adoption of Ilona, 459 Mass. 53, 59 (2011), quoting Adoption of

Carlos, 413 Mass. 339, 350 (1992). We give substantial

deference to the judge's findings, which we do not disturb

was improper, and that the father's religious beliefs do not
make him unfit to provide minimally acceptable care.

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unless they are clearly erroneous. See Adoption of Jacques, 82

Mass. App. Ct. 601, 606-607 (2012).

We first note that the judge's extensive findings support

his conclusion that the father was unfit to parent the child.

While the father may be correct that the three findings he

challenges were insufficient to support a finding of unfitness

when viewed in isolation, the record as a whole more than

supports the judge's critical subsidiary findings, and "the

judge's overall conclusion of parental unfitness is fully

supported by the record." Adoption of Helen, 429 Mass. 856, 860

(1999). The record supports the judge's findings that the

father, inter alia, was incarcerated both during the child's

birth and during trial; has approximately 116 adult criminal

charges in Massachusetts alone; has spent more than ten of the

last twenty years incarcerated; has a history of failing to

comply with the terms of his probation; has a history of housing

instability; exposed himself to his neighbors; was in a standoff

with S.W.A.T. and police on September 30, 2023; has significant

mental health issues that he has not addressed; believes the

government is targeting him under protocol 11; has a history of

cocaine use; and, despite having a reunification plan, was

unwilling to adjust his conduct to refrain from criminal

activities. See Care & Protection of Quinn, 54 Mass. App. Ct.

117, 126-127 (2002) (despite father's participation in programs

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and cooperation with DCF, lack of evidence of any longstanding

attitude or behavior change supported judge's finding of

unfitness). In the months leading up to the trial, he also

failed to "consistently or meaningfully" engage in his action

plan tasks. The judge's findings are specific, detailed, and

demonstrate close attention to the evidence. See Adoption of

Anton, 72 Mass. App. Ct. 667, 673 (2008). Accordingly, the

finding of unfitness was supported by clear and convincing

evidence.

Similarly, the judge's extensive findings support his

conclusion that termination of the father's parental rights was

in the best interests of the child. A finding of unfitness

alone is insufficient to terminate the parental rights to a

child. Rather, the judge must find by clear and convincing

evidence that the child's "best interests will be served by

terminating the legal relation between parent and child"

(citation omitted). Adoption of Helga, 97 Mass. App. Ct. 521,

527 (2020). "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 she has given the

evidence close attention." Adoption of Nancy, 443 Mass. 512,

514-515 (2005). "A judge's findings are entitled to substantial

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deference, and we will not disturb those findings unless they

are clearly erroneous." Adoption of Helga, supra at 528.

Here, the judge's findings demonstrate that his decision to

terminate the father's parental rights was based on the father's

housing instability, drug abuse, criminal record, and mental

health. Furthermore, the judge considered the required factors

in G. L. c. 210, § 3 (c), and found factors (ii), (iii), (v),

(vi), (vii), (viii), (xii), and (xiii)5 applicable. We discern

no clear error in the judge's determination, supported by clear

and convincing evidence, that termination of the father's

parental rights is in the best interests of the child.

2. Factor (vii). The father maintains that the judge's

findings to the effect that (1) the child would suffer harm if

removed from his current placement, and (2) the father would be

ill-equipped to perform parental responsibilities, were not

supported by the record. We disagree. The record supports the

finding of a bond between the child and the preadoptive parents.6

5 There was no error in the judge's application of G. L.
c. 210, § 3 (c) (xiii). At the time of trial, the father was
incarcerated for violating his probation on a felony charge of
possession with the intent to distribute a Class B substance.

6 The judge found, inter alia, that "[the child] has formed
a loving relationship with his pre-adoptive parents and
brother." The child "seeks out his pre-adoptive parents, runs
to them for hugs, and is happy when one of them walks through
the door. [He] gets along very well with the other child in the
home, and they are 'thick as thieves.'" The evidence at trial

8
The record likewise supports the judge's finding that the father

will not achieve fitness as a parent. As detailed above, while

the father followed DCF guidance for a brief period, his

improvement was short lived and was followed by more criminal

charges, mental health issues, and lack of housing; thus it is

almost certain his conduct will persist into the future. "In

these circumstances, 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 child[] to say, at some point, 'enough.'"

Adoption of Nancy, 443 Mass. at 517.

3. Reasonable efforts. For the first time on appeal, the

father claims DCF failed to make reasonable efforts to reunify

him and the child while he was incarcerated.7 "[The father] must

raise a claim of inadequate services in a timely manner so that

reasonable accommodations may be made." Adoption of Gregory,

434 Mass. 117, 124 (2001). Accord Adoption of West, 97 Mass.

App. Ct. 238, 242 (2020). Thus, arguments regarding reasonable

efforts are waived.8

supported these findings, which are not challenged by the
father.

7 The father filed one motion related to visitation in
August 2022 but withdrew it without a hearing in January 2023.

8 The cases the father cited at oral argument are not
persuasive or are inapposite. See Commonwealth v. Randolph, 438
Mass. 290, 294-295 (2002) (reviewing default standard of review
for waived issues in criminal cases); Adoption of Mary, 414

9
In any event, the judge found that DCF communicated with

the father by providing him with action plans both during his

incarceration and after his release, but the father's

participation with DCF was inconsistent at best.9 There was

ample trial evidence supporting the judge's determination that

DCF met its obligations. See Adoption of Ilona, 459 Mass. at

61. DCF worked extensively with the father after the

determination of paternity and placed itself in a position to

reunify the child with the father that was thwarted only by the

father's mental health deterioration and return to criminality.

Once he was returned to incarceration, DCF stayed in contact

with the father and reasonably saw no need to arrange for

services or visits in prison because the father repeatedly

informed the social worker that his release was imminent and so

they "planned to resume upon release."

Even if DCF did not engage in reasonable efforts, a finding

of lack of reasonable efforts in the present case is not

sufficient to override the child's best interests. See Adoption

of Ilona, 459 Mass. at 461, quoting G. L. c. 119, § 29C ("A

Mass. 705, 712-713 (1993) (addressing failure to raise
postadoption visitation because of ineffective assistance of
counsel).

9We note the father's paternity was not established until
2023, after his release from his incarceration at the time of
the child's birth.

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determination by the court that reasonable efforts were not made

shall not preclude the court from making any appropriate order

conducive to the child's best interest"). In view of the well-

supported determinations that the father is "currently unfit to

assume parental responsibilities for the [child]" and that his

"unfitness is likely to continue into the indefinite future to a

near certitude," the judge did not abuse his discretion in

concluding that the best interests of the child were served by

terminating the father's parental rights. See Adoption of

Elena, 446 Mass. 24, 30-31 (2006).

Decree affirmed.

By the Court (Neyman,
Ditkoff & Englander, JJ.10),

Clerk

Entered: September 29, 2025.

10 The panelists are listed in order of seniority.

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