Adoption of Paco.

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-1464

ADOPTION OF PACO.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, and entry of the mother's stipulation

terminating her parental rights, a Juvenile Court judge found

the father unfit to parent the child, awarded custody of the

child to the Department of Children and Families (department),

determined that the department's adoption plan was in the

child's best interests, and entered a decree terminating the

father's parental rights. The father appeals, and we affirm.

Background. The child, born prematurely in December 2017

at twenty-six weeks, spent the first three months of his life in

the hospital's neonatal intensive care unit. Due to his

premature birth, the child (age five at conclusion of trial) has

several significant needs around feeding and nutrition, sleep,

asthma, and allergies. He also has behavioral and emotional

1 A pseudonym.
difficulties. These needs require frequent appointments with

specialists, prescribed medication, and follow-up care. He

began preschool, completed an early intervention service, and

started an assessment for an individualized education plan due

to a concern about his ability "to follow regular instructions."

The child has been in the same foster home since January 2020.

The father reported being diagnosed with mental health

conditions (including posttraumatic stress disorder, depression,

anxiety, schizophrenia, and multiple personality disorder). He

testified that he has had an imaginary friend since the age of

fourteen. He receives some treatment for the persistent

symptoms of these mental health conditions but struggles to

recall taking medications and rarely accounted for prescription

medications during home visits by an ongoing social worker. In

addition to having difficulty managing his prescriptions, the

father self-medicates with marijuana and oxycodone. The father

also experienced periods of housing instability, has been

involved in multiple instances of domestic violence, has been

the subject of three restraining orders, has violated the terms

of his probation, and has been incarcerated.

The department first became involved with the child in the

days following his birth based on a report filed pursuant to

G. L. c. 119, § 51A. The department opened a case for services

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after an investigation of the report resulted in a decision to

support allegations that the mother used marijuana during her

pregnancy, both parents experienced significant symptoms of

untreated mental health conditions, and both parents engaged in

domestic violence resulting in the loss of housing. The father

reported to the department that he did not remember the domestic

violence incident because he experienced two seizures and "was

out of it." The mother obtained a restraining order against him

that remained in effect for more than two years, until February

14, 2019.

On December 10, 2019, the father was arrested and charged

with two counts of assault and battery by means of a dangerous

weapon, assault and battery on a family or household member,

threatening to commit a crime, and larceny, with the mother

listed as the victim. Following his arrest, another restraining

order issued, requiring the father to stay away and have no

contact with the mother and the child. While in custody

awaiting trial, the father reported to a department investigator

that he "never touched" the mother. He later pleaded guilty and

was placed on probation.

On January 21, 2020, the mother left the child in the care

of his maternal aunt, who subsequently took him to the hospital

with an eye infection. The father, who was at the same hospital

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for medical care, took the child and left the hospital. Soon

after, the police located the father and arrested him for

violating the restraining order. The following day, the

department obtained emergency custody of the child. The child

has remained in department custody since that time.

The next month, the department established a family action

plan for the father. The action plan included requirements that

the father maintain contact with the department, participate in

a parenting course, complete an intimate partner violence

education program, and identify and consistently meet with a

therapist and psychiatrist. Complying with part of the action

plan, the father completed an intimate partner violence

education program and parenting course. Not complying with

other parts of the plan, the father failed to consistently meet

with a therapist, provide the department with his psychological

evaluation, and provide adequate proof of his income.

Additionally, the father missed over twenty visits with the

child, resulting in over a month between some visits.

On February 12, 2024, following a trial held over five

nonconsecutive days and during which the father testified, a

judge adjudicated the child in need of care and protection,

found the father unfit, and found that termination of the

father's parental rights was in the child's best interests. The

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judge approved the department's plan for adoption of the child

by his current foster parents and allowed for limited

posttermination and postadoption visitation with the child by

the father.

Discussion. 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). "In determining whether the best interests

of the child[] will be served by issuing a decree dispensing

with the need for consent, a 'court shall consider the ability,

capacity, fitness and readiness of the child's parents.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.

c. 210, § 3 (c). "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). Based on these standards, we discern no error or

abuse of discretion.

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We disagree with the father's contention that the judge

"relie[d] on the father's stale history of assaultive

behavior[.]" While "stale information cannot be the basis for a

finding of current parental unfitness . . .[p]rior history . . .

has prognostic value." Adoption of Jacques, 82 Mass. App. Ct.

at 607, quoting Adoption of George, 27 Mass. App. Ct. 265, 268

(1989). The judge considered the father's history of violence

against the mother and others, while also acknowledging the

improvements made by the father. Specifically, the judge noted

that since completing an intimate partner abuse prevention

course in 2020, "[t]here is no evidence that [the father] was

involved in any domestic violence incident[.]" Even so, the

father admitted at trial that he had a pending assault and

battery charge following an altercation with a tow truck driver.

The evidence also showed that the father reacted aggressively to

department staff on at least one occasion while visiting the

child. In light of such repeated incidents, the father's

violent and aggressive behavior served as prognostic evidence

that was "within the purview of the judge to consider."

Adoption of Jacques, supra at 607-608.

Next, the father argues that the judge erred in finding

that he did not understand, nor was he able to meet, the child's

needs. The father points to several of the judge's findings in

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advancing this argument, including that he did not understand

the child's medical, emotional, and behavioral conditions

requiring specialized care; that he did not attend medical

appointments; and that he "willfully" missed visits with the

child. We discern no error. The father testified generally

about the child's medical needs, and that the child took

medication. Despite this general understanding, the father did

not know what medications the child needed, nor did he ever ask

about the medications. As the father acknowledges in his brief,

his lack of knowledge likely comes from his absence from the

child's medical appointments -- a circumstance he blames on

"hurdles" beyond his control such as lack of transportation.

The record, however, shows that the father repeatedly turned

down offers by the department to assist with attending medical

appointments. Additionally, there was ample evidence of the

father's failure to consistently attend scheduled visits with

the child. While some visits were canceled by the department,

several visits were missed because the father failed to confirm

or even show up. Where the father did not consistently attend

medical appointments or visits with the child, or express any

understanding of the child's care regimens, the record supports

the judge's findings that the father did not understand and

could not meet the child's complex needs. See Adoption of Mary,

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414 Mass. 705, 711 (1993) (parental unfitness must be determined

on consideration of child's particular needs).

We disagree with the father's contention that there is

insufficient evidence that he "misuse[d]" prescription

medication at the time of trial, and that there was no nexus

between the substance use and his ability to parent the child.

While this case was pending, the father tested positive for a

component of marijuana, tetrahydrocannabinol (THC), and the

department expressed concerns about his substance use. Evidence

showed that the father needed help maintaining his regimen of

prescribed medications and rarely accounted for these

medications during department visits. The father admitted at

trial that he lied to the department about his substance use,

leading the judge to conclude that the "[f]ather does not

recognize that he misuses unprescribed substances and thus has

not engaged in any services to address it[.]" Based on the

father's inability to manage his own prescription medications to

address persistent negative symptoms of his mental health

conditions, the positive drug test and use of marijuana, the

admitted lying about having a prescription for oxycodone, and

the father's explanation to the ongoing social worker that he

failed to answer several calls because he was sleeping during

the day, the judge could properly conclude that the father's

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unabating substance misuse constituted "a contributing factor"

to his current and future unfitness. Adoption of Xarissa, 99

Mass. App. Ct. 610, 618 (2021).

We also disagree with the father's argument that the record

does not support the judge's findings regarding his housing.

The judge carefully traced a timeline of the father's varied

housing arrangements: he lived approximately one year with the

mother and child until his arrest and incarceration in 2020; he

was "homeless" and living in a shelter placement starting in

September 2020; he lived with another person from January 2021

through at least September 2022 when he fell behind in rent and

utilities; and finally, following his marriage, he lived with

his wife and her three sons. While the record supports that the

father's housing stabilized in the time leading up to the trial,

it also showed an unwillingness by the father to inform the

department of changes in housing or to schedule home visits,

both of which were required by his action plans. Even when he

had stable housing, the father testified that he owed several

thousand dollars in overdue rent and utility payments,

ultimately causing his electricity service to be disconnected.

Thus, the record supports the judge's finding that the father's

housing instability contributed to his parental unfitness. See

Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986) ("A past

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pattern of behavior . . . has prognostic value"). See also

Adoption of Yvonne, 99 Mass. App. Ct. 574, 581 (2021) (judge

properly considered housing instability where department was

unable to verify parent's living situation or conduct home

visits).

Contrary to the father's claim, the record also supports

the judge's findings regarding untreated symptoms of mental

health conditions. The father argues that the department's

difficulties in contacting his providers was not sufficient to

find him unfit. While the judge found that the father "shielded

his providers from the [d]epartment[,]" this finding was only

one of many findings bearing on the father's mental health. For

example, as previously discussed, the judge found that the

father was unable to manage his own medications. One department

worker testified that the father was unable to produce his

medication during several home visits, and on the few occasions

that he could, the medication bottles had old labels or were

empty. This evidence supported the judge's logical conclusion

that the "[f]ather's inability to manage his own medication is a

predictor that he will also be unable to manage [the child's]

medications." See Adoption of Frederick, 405 Mass. 1, 9 (1989)

(symptoms of parent's mental health conditions may impair

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"capacity to assume parental responsibility, and ability to deal

with a child's . . . needs").

The evidence also supported the judge's finding that the

father's unfitness was likely to continue indefinitely. By the

time the trial concluded, the department had been involved with

the father for over three years. After all that time, as the

judge noted, the concerns precipitating the department's

involvement remained. Although commending the father's

improvements, including completing the "nurturing fathers"

program and attempting to comply with the action plan, the judge

ultimately concluded that the father "falls short from making

observable changes," and "there still exists a substantial risk

of harm to the child." See Adoption of Paula, 420 Mass. 716,

730 (1995) (absent evidence that services have "appreciably

improved" capacity to meet needs of child, mere participation in

services does not equate with fitness); Adoption of Jacques, 82

Mass. App. Ct. at 608 (judge entitled to consider evidence of

parent's recent improvements within context of earlier and

continuing deficits). We do not substitute our judgment for

that of the judge who heard the evidence.

Lastly, the father contends that the judge abused his

discretion in finding that termination served the child's best

interests, arguing that "dispositive" weight was given to the

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child's bond with his foster parents. We disagree. The judge

considered the factors set forth in G. L. c. 119, § 26, and

G. L. c. 210, § 3 (c), in determining the best interests of the

child. While the judge acknowledged the child's bond with his

foster parents and the emotional and psychological harm that

removal would cause, there is nothing in the record to support

that such consideration was dispositive. The judge also

considered the father's mental health, his history of violence,

his history of housing instability, and his failure to

consistently cooperate with the department. Therefore, the

judge did not abuse his discretion in determining that freeing

the child for adoption was in the best interests of the child.

See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997) (parent's

"dissatisfaction with the judge's weighing of the evidence and

his credibility determinations" is not sufficient basis to

warrant relief on appeal).

Decree affirmed.

By the Court (Meade, Walsh &
Hodgens, JJ.2),

Clerk

Entered: October 28, 2025.

2 The panelists are listed in order of seniority.

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