ADOPTION OF OBA (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-1439

ADOPTION OF OBA (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge found in 2024

that the father was unfit to parent three of his children and

terminated his parental rights as to them. On appeal, the

father contends that (1) there was not clear and convincing

evidence of unfitness because there was not sufficient cause to

remove the children from his care three years earlier, and

(2) the Department of Children and Families (DCF) failed to make

reasonable efforts to reunify the family. We affirm.

Background. We set forth the facts found by the judge,

reserving some details for later discussion.

1 Adoption of Kendrick and Adoption of Keisha. The
children's names are pseudonyms. A fourth child was dismissed
from the petition upon turning eighteen, and a fifth child named
in the petition became the subject of a guardianship.
The father has three children with the mother, and they are

the subject of this appeal.2 The children were four, seven, and

thirteen years old at the time of trial.3 The father and the

mother have been in an "on and off" relationship for eleven

years. The father is unemployed, and his only income consists

of supplemental security income (SSI). He has been diagnosed

with paranoid schizophrenia, attention deficit hyperactivity

disorder, and manic depression, suffers from panic attacks, and

also claims to have chronic amnesia. He does not consistently

take his psychiatric medications, but uses substances such as

marijuana and alcohol to manage stress. He stopped attending

therapy in September 2022. He has an extensive criminal

history, including a conviction for assault and battery on a

pregnant victim, the mother. The father has also been subject

to two abuse prevention orders sought by the mother pursuant to

G. L. c. 209A. While the police have responded to multiple

reports of domestic disturbances between the mother and the

father, one of which resulted in the father's criminal

prosecution and incarceration, he denies the existence of

domestic violence issues.

2 At the start of trial, the mother stipulated to her
current unfitness and agreed to the permanent custody of the
children to DCF. The mother has not appealed.

3 The children do not appeal from the decrees. In a brief,
they assert that all three are currently in stable environments
that offer stability and therapeutic support.

2
The father and the mother have been the subject of numerous

reports under G. L. c. 119, § 51A (51A reports) and

investigations pursuant to G. L. c. 119, § 51B, involving

allegations of neglect and abuse of the children. On September

1, 2021, DCF filed a care and protection petition and was

awarded temporary custody of the three children. The father's

termination of parental rights trial occurred over several days

from July 2023 to February 2024, and on April 5, 2024, the judge

entered decrees terminating the father's parental rights, and

committing custody of the three children to DCF. In August

2024, the judge issued findings of fact and conclusions of law

in support of the decision to terminate the father's parental

rights.

The judge concluded that State intervention was justified

due to the father's long history of domestic violence, housing

instability, untreated mental health issues, and lengthy

criminal history. The judge further concluded that DCF met its

obligation to make reasonable efforts to restore the children to

the father's care, but the father has "grievous shortcomings"

that would place the children's welfare at risk were that to

happen. The father has refused to acknowledge how his behavior

resulted in the removal of the children, has not made efforts to

meaningfully engage in DCF's services, and will not engage in

services to address his parenting deficits, mental health

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issues, or perpetration of domestic violence. The father has

inconsistently attended DCF meetings, has not completed an

intimate partner violence program, has stopped attending

counseling, did not engage in any parenting support, and gained

no appreciable benefit from the parenting class he did complete.

The father lacks stable long-term housing, continues to display

a violent and aggressive nature, does not believe that he has

any parenting deficiencies, and does not believe he needs

services for his mental health issues. The father also lacks an

understanding or willingness to meet the substantial needs of

his children.

Discussion. 1. Standard of review. "In deciding whether

to terminate a parent's rights, a judge must determine whether

there is clear and convincing evidence that the parent is

unfit," and, if so, "whether the child's best interests will be

served by terminating the legal relation between parent and

child." Adoption of Patty, 489 Mass. 630, 637 (2022), quoting

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

104 Mass. App. Ct. 716, 720 (2024). "A finding of unfitness

must be supported by clear and convincing evidence, based on

subsidiary findings proved by at least a fair preponderance of

evidence." Adoption of Patty, supra. "Parental unfitness must

be determined by taking into consideration a parent's character,

temperament, conduct, and capacity to provide for the child in

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the same context with the child's particular needs, affections,

and age." Adoption of Mary, 414 Mass. 705, 711 (1993). "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, supra.

2. Removal of the children from the father's care. The

father does not contest any of the judge's findings of fact.

Instead, he argues that there was no clear and convincing

evidence that he was unfit because there was not sufficient

cause to remove the children from his care on September 1, 2021.

The essence of DCF's case is that the father failed to

acknowledge much less fully remedy his parenting deficits after

that time.

The issue of removal is "largely moot" by virtue of "the

final determination of parental unfitness following a full

trial." Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002). But

even if we were to consider the issue, we would conclude that

there was ample evidence supporting the judge's determination

that, at the relevant time, the children were suffering from or

were in immediate danger of serious abuse or neglect. See G. L.

c. 119, § 24; Care & Protection of Rashida, 488 Mass. 217, 219

(2021), S.C. 489 Mass. 128 (2022). Prior to the removal, the

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father had engaged in multiple incidents of serious abuse and

neglect while the children were in his care. For example, DCF

substantiated allegations that, in 2013, the father physically

abused Oba's two older siblings4 and neglected all three. In

2016, the father grabbed the pregnant mother by the neck, held

her against the wall, and dropped her when a neighbor walked in.

As a result, the father was criminally prosecuted and

imprisoned, and DCF substantiated allegations of neglect of Oba

and her two older siblings after she and the mother recounted

the assault to a social worker. In 2020, DCF substantiated

allegations of neglect of Oba, Kendrick, and Keisha after the

father engaged in physical violence against the mother, verbally

abused two of the children, and punished one of them for

reporting the abuse. In August 2021, Oba and an older sibling

reported that the father had punched the mother in the face that

summer. That same month, a police officer and DCF social

workers responded to an emergency at the home where, according

to the officer, the father said that he was moving Oba, then ten

years old, to Connecticut because he did not want anything to do

with her. While the father denied the police officer's report

at trial, the judge did not credit his testimony. These and

other undisputed facts in the record were sufficient to show

4 Kendrick and Keisha are younger than Oba. They were not
yet born at the time of these events.

6
that the children were suffering from or in immediate danger of

serious abuse or neglect.

Likewise, the father's failure to acknowledge and address

his parenting deficits, along with the judge's other findings of

fact, demonstrated by clear and convincing evidence the father's

current unfitness to assume parental responsibility for the

children and that that unfitness is likely to continue

indefinitely into the future. We also see no abuse of

discretion or other error of law in the judge's conclusion that

termination of parental rights was in the children’s best

interests.

3. Reasonable efforts. "The department is 'required to

make reasonable efforts to strengthen and encourage the

integrity of the family before proceeding with an action

designed to sever family ties.'" Adoption of West, 97 Mass.

App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass.

App. Ct. 275, 278 (2002). See G. L. c. 119, § 29C; Care &

Protection of Rashida, 488 Mass. at 218. "A judge's

determination that the department made reasonable efforts will

not be reversed unless clearly erroneous." Adoption of West,

supra at 242.

Here, the record amply supports the judge's conclusion that

DCF made reasonable efforts to reunite the father and the

children and that the father refused to participate adequately

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in those efforts. DCF offered a range of services to the father

that were "intended to address the deficits that brought [him]

to the attention of [DCF] ultimately resulting in removal of the

children, namely domestic violence and mental health issues."

These efforts were contingent upon the father's "own obligation

to fulfill various parental responsibilities, including seeking

and utilizing appropriate services" (citation omitted).

Adoption of Eduardo, 57 Mass. App. Ct. 278, 281 (2003). By the

time of trial, the father had missed eleven monthly meetings

with DCF. He did not engage with the parenting support offered

to him and reported that he does not need help with his

parenting. The father stopped attending counseling in September

2022 and did not undergo the neuropsychological exam required by

DCF's second action plan for the family, in effect from April to

October 2022. Even though he initially attended some classes in

an intimate partner violence program, he failed to complete the

program after he told his social worker that he no longer needed

it.5 Contrary to the evidence in the case, the father has

Although the father did report to his social worker that
5

he was unable to keep up with the payments for the classes, he
did not request financial assistance from DCF, but rather
reported that he had terminated the service because "he no
longer needed any services."

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maintained that he has never engaged in domestic violence and

that the issue has not affected his children.6

The father contends that DCF failed in its obligation to

strengthen and encourage family bonds by reducing his visiting

time with the three children: first, from weekly to biweekly

visits (while doubling the duration of each visit); then, in

January 2024, to monthly visits after the father engaged in

aggressive and improper behavior at one child's treatment

residence. The father, however, did not object to either change

in his visitation schedule before final judgment. While

"[b]iological parents are entitled to visitation with their

child so long as the visits are not harmful to 'the welfare of

the child and the public interest,'" Adoption of Rhona, 57 Mass.

App. Ct. 479, 488 (2003), quoting G. L. c. 119, § 35, DCF

retains authority to control the visits of the children within

its custody. See G. L. c. 119, § 21 (defining "custody" as "the

power to: (1) determine a child's place of abode, medical care

and education; (2) control visits to the child; and (3) consent

to enlistments, marriages, and other contracts otherwise

6 We are not persuaded by the father's argument that DCF's
delay in updating the first action plan drafted for the family,
in effect from July 2021 to January 2022, until April 2022
amounted to a failure to make reasonable efforts. The father
knew by at least February 2022 that DCF expected him to address
its concerns about domestic violence in his relationship with
the mother, and, as discussed, the father failed to perform many
of the tasks outlined in the actions plans between April 2022
and May 2024.

9
requiring parental consent"). "'[D]ecisions related to normal

incidents of custody' generally are committed to the discretion

of the department, reviewable only for abuse of discretion."

Care & Protection of Walt, 478 Mass. 212, 230 (2017), quoting

Commonwealth v. Adkinson, 442 Mass. 410, 418 (2004). Given the

father's history of aggressive behavior, failure to attend

scheduled visits with his children, and failure to challenge

either reduction in visitation frequency, it was not an abuse of

discretion for the judge not to sua sponte override DCF's

visitation schedule.

For similar reasons, we are unpersuaded by the father's

claim that DCF improperly disregarded his cultural background by

reducing his visiting time in response to a July 2022 incident

in which the father allegedly picked up Kendrick and yelled in

his face. Following an investigation, DCF did not find that

this allegation of physical abuse was supported, and there is no

evidence that DCF reduced the father's visiting time in response

to it or any other alleged act of physical discipline. While

the judge's finding of unfitness does take into consideration

his aggressive and volatile behavior toward the children, the

conclusion focused on the father's history of domestic violence,

refusal to obtain treatment for his mental health issues, and

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failure to make efforts to improve his parenting.

Conclusion. We conclude that the judge had before him

ample, clear and convincing evidence on which to base his

finding that the father was unfit to parent the children, that

his unfitness as a parent was likely to continue indefinitely

into the future, and that termination of his parental rights was

in the children's best interests.

Decrees affirmed.

By the Court (Rubin,
D'Angelo, & Toone, JJ.7),

Clerk

Entered: September 30, 2025.

7 The panelists are listed in order of seniority.

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