ADOPTION OF VALETTA (And a Companion Case).

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-1355

ADOPTION OF VALETTA (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the father

was unfit to parent the children, Valetta and Ryan, and that

each of their best interests would be served by the termination

of his parental rights, but ordered that the father be permitted

posttermination and postadoption visits with the children. The

father appeals from the decrees, arguing that the judge based

the finding of unfitness on exaggerations of the father's

criminal history, and his sobriety for almost two years before

trial precluded a finding that he would remain unfit for the

foreseeable future. The father also argues that the judge did

not consider the best interests of the children in ordering that

the father's visits occur at the same time as the mother's, and

1 Adoption of Ryan. The children's names are pseudonyms.
should have ordered more than four annual postadoption visits

for the father. We affirm.

Background. For several years, the father struggled with

misuse of opioids. In about 2019, the father underwent

rehabilitation and began taking Vivitrol shots to curb his

cravings for opioids.

In 2019, the father and the mother began a relationship and

the mother became pregnant. Beginning when the mother was six

months pregnant, they lived together in the paternal

grandmother's home. The father knew that the mother had a

history of marijuana use, but testified at trial that he did not

know that during the pregnancy she tested positive for marijuana

and cocaine and missed prenatal medical visits.

Valetta was born in August 2020. Because she tested

positive for marijuana and cocaine at birth, a report alleging

neglect by the mother was filed with the Department of Children

and Families (DCF) pursuant to G. L. c. 119, § 51A (51A report).

When the father learned of the 51A report he became upset,

stating, "marijuana is legal," which the judge found minimized

the significance of Valetta's exposure to marijuana. The father

told a DCF emergency response worker that he did not use illegal

substances, had been sober from heroin for seventeen months, and

was taking Vivitrol shots. When Valetta was two days old, DCF

assumed emergency custody of her. In response to DCF's

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involvement, the father became combative and irate, saying he

would not allow "fucking DCF" into his home and that he would

"fight anyone" who tried to take Valetta from him. Five

security guards, with assistance from several police officers,

escorted him from the hospital and told him not to return.

DCF initiated this care and protection proceeding

concerning Valetta. At the seventy-two hour hearing, the father

testified that the mother had moved out of his home; he would

have support in caring for Valetta from the paternal

grandmother, his cousin, and his aunt (great aunt); and he was

taking Vivitrol shots. On August 10, 2020, the judge granted

temporary custody of Valetta to the father with conditions

including that the mother was not to have unsupervised contact

with Valetta or to reside with the father, and the father was to

refrain from the use of alcohol and substances. The judge

appointed a court investigator with whom the father was not

forthright about his criminal or substance abuse history; he

denied the presence of any domestic violence in his relationship

with the mother, which the judge did not credit.

After the conditional custody order was in place, the

father stopped taking Vivitrol because he believed he no longer

needed it. Unbeknownst to DCF or the court, the mother was

living with the father and Valetta; at trial the father admitted

that fact, and the judge credited his testimony. By January

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2021, the mother was again pregnant by the father. During the

pregnancy, the mother tested positive for Suboxone, morphine,

fentanyl, and marijuana.

Ryan was born in September 2021. In the hospital, the

mother tested positive for fentanyl; when informed of the

result, the father became upset and said that only a "low level"

was detected. Ryan tested negative for all substances, but due

to concerns of the mother's substance use, a 51A report alleging

neglect by the mother was filed. DCF assumed emergency custody

of him, placed him in a foster home, and initiated a care and

protection proceeding.

On November 1, 2021, the judge granted temporary custody of

Ryan to the father on the same conditions as his custody of

Valetta. Interviewed by the court investigator, the father said

he and the mother were in a relationship and that she visited

him and the children for two hours on Monday through Thursday,

supervised by the great aunt. In fact, the mother was living

with the father and the children. The father told the court

investigator that he did not want custody of the children by

himself, but rather wanted the family to be reunited, including

the mother. At trial, the father testified that it was "unfair"

that the mother was "kicked out" of his home.

In November 2021, the father relapsed on opioids. At trial

he testified that he relapsed because it was difficult caring

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for both children. He did not seek support from the paternal

grandmother, but instead allowed the mother to live in the home

to care for the children. He also hid his relapse from his

family and DCF.

Shortly before 10 P.M. on December 2, 2021, at his home,

the father found the mother unresponsive in the bathtub with her

head submerged in water. The mother was taken by ambulance to a

hospital and diagnosed with loss of consciousness and

respiratory distress. 2 A 51A report was filed alleging the

mother's neglect of the children, who were then sixteen months

and three months old. The 51A report also alleged that the

father was currently under the influence of fentanyl and that

there was domestic violence between him and the mother.

The mother told the ongoing social worker that she had no

memory of what happened in the bathtub. She disclosed that, two

days before, she and the father had a "heated argument" about

her access to the children, and in the past the father had put

his "hands on" her and the violence was ongoing. The judge

credited the mother's statements to the social worker.

Interviewed on December 6 by the social worker, the father

lied about whether the children were present in his home when

2 Testing at the hospital revealed benzodiazepines and
fentanyl in the mother's system, but both of those substances
were administered during treatment.

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the mother passed out in the bathtub. He claimed that the

mother had asked to take a bath at his home, and he brought the

children to the great aunt's home before the mother arrived; he

was not concerned that he had disrupted the children's routine

so that the mother could take a bath. At trial, the father

admitted that the children were at his home when the mother

passed out in the bathtub; at one point, he testified that

Valetta "was in the tub" with the mother, then changed his

testimony to say that he was bringing Valetta to the tub when he

found the mother unconscious.

After the ongoing social worker told him in the December 6

interview that the 51A report alleged that he was under the

influence of fentanyl, the father denied that he used drugs,

which the judge did not credit. The father said that he had

been submitting urine screens to his probation officer and had

never tested positive. He denied falsifying tests. Asked to

undergo a hair follicle test, the father said he would speak to

his attorney.

Shortly after that interview, the father telephoned the

ongoing social worker and admitted that three weeks previously

he had relapsed on opioids. The father began inpatient

detoxification.

On December 7, 2021, DCF was granted temporary custody of

the children. That day, two 51A reports were filed alleging

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neglect of the children by the father. One of them alleged that

the father had permitted the mother to live with the children in

violation of the conditional custody orders. The other 51A

report alleged that the father had falsified supervised urine

screens by using a "penis-like device" to dispense clean urine.

The court investigator learned that, during the three-week

period when the father later admitted he had relapsed, he had

submitted to a urine screen with his probation officer and no

substances were detected.

After his discharge from detoxification, the father entered

an intensive outpatient program and resumed Vivitrol injections.

In May 2022, shortly after completing the intensive outpatient

program, the father again stopped taking Vivitrol and then

relapsed using fentanyl. He overdosed and was found lying face

down on the front steps of his home by police, who revived him

with Narcan. He did not disclose his relapse to DCF or seek

supports. The judge found that when the father was describing

that relapse at trial, he was "laughing"; he testified, "I just

went off edge." The father underwent a seven-day rehabilitation

program and then entered an intensive outpatient program and

resumed Vivitrol. On June 10, 2022, the father stipulated that

he was then unfit to parent the children.

Around November 2022, the father again stopped taking

Vivitrol. He did not inform DCF that he had done so; in fact,

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in early 2023, he repeatedly told the social worker that

Vivitrol was helpful to him, which the judge found was

dishonest. At trial, the father testified that he believed he

did not have to inform DCF that he had stopped Vivitrol because

"it was my choice."

Between their removal in December 2021 and trial in

February 2024, the children were separated, each in several

foster placements. On February 10, 2023, DCF's goals for both

children were changed to adoption, with the plan for them to be

adopted together. As of trial, DCF had received inquiries from

the great aunt and from a maternal second cousin, but no

preadoptive family had been determined.

Discussion. 1. Termination of parental rights. "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" (citations omitted). Adoption of Arianne, 104

Mass. App. Ct. 716, 720 (2024). "The judge must also find that

the current parental unfitness is not a temporary condition"

(quotation and citations omitted). Id. "We give substantial

deference to the trial judge's decision to terminate parental

rights 'and reverse only where the findings of fact are clearly

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erroneous or where there is a clear error of law or abuse of

discretion.'" Id., quoting Adoption of Valentina, 97 Mass. App.

Ct. 130, 137 (2020). "An abuse of discretion exists where the

decision amounts to a clear error of judgment that falls outside

the range of reasonable alternatives" (quotations and citations

omitted). Adoption of Xarissa, 99 Mass. App. Ct. 610, 616

(2021).

a. Father's unfitness. The father argues that the judge

erred in concluding that DCF proved that he was currently unfit

to parent the children. The father contends that the judge

impermissibly reached that conclusion by exaggerating his

criminal history, and no nexus was proven between his past

combativeness and his parenting ability.

As mentioned, the judge considered evidence of the father's

belligerence at the hospital after Valetta was born. In

addition, the judge noted that based on a fight in 2008, the

father was convicted of assault and battery, and charges of

assault by means of a dangerous weapon (a firearm) and assault

and battery by means of a dangerous weapon (a shod foot) were

continued without a finding.

As to the father's more recent criminal history, we are not

persuaded by the father's claim that the judge "exaggerated" it

by relying on police reports pertaining to unproven criminal

charges. Beginning in January 2021, DCF's action plan tasks for

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the father included that he refrain from illegal activity and

notify DCF of any police involvement within twenty-four hours.

The judge found that the father failed to inform DCF of the

following: a June 2021 police investigation regarding an

allegation that he had hit someone with a baseball bat; a May

2022 overdose where police revived him with Narcan; a July 2023

arrest for assault by means of a dangerous weapon after he

allegedly threatened to stab a man with a knife; and January

2024 charges of motor vehicle offenses.

The father's "unwillingness to adhere to DCF's service

plan," including the requirement that he promptly report any

police involvement, was relevant to the judge's determination of

his unfitness. Adoption of Luc, 484 Mass. 139, 147 (2020).

This is so even if the police involvement did not result in a

criminal conviction. See Care & Protection of Frank, 409 Mass.

492, 497 (1991) (police observations of mother's criminal

conduct were "relevant to the issue of parental fitness,"

although they did not give rise to convictions).

Nor are we persuaded by the father's argument that DCF did

not present evidence permitting the judge to find that the

father's history of combative and aggressive behavior impacted

his fitness as a parent. After the children were removed, DCF

asked the father to complete an intimate partner violence

program due to the reported history of domestic violence between

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him and the mother. The judge found that the father lacked

insight into why DCF required him to complete that program. The

father was terminated from the program, was not honest with DCF

about why he was terminated, and never re-engaged in such a

program.

The judge concluded that the "[f]ather's inability to fully

acknowledge his history of violence, including his inability to

be forthright with collaterals, the court investigator, and

[DCF], renders him incapable of protecting the children from

future abuse or witnessing abuse." We discern no error of law

or abuse of discretion in that conclusion. See Adoption of

Lisette, 93 Mass. App. Ct. 284, 294 n.15 (2018) ("A parent's

willingness to ignore or minimize abusive behavior can be an

indicator of unfitness, regardless of whether the child is at

risk of abuse or witnessing abuse").

b. Likelihood of prolonged unfitness. Based on factors

including the father's substance use disorder, "a condition

which is reasonably likely to continue for a prolonged

indeterminate period," G. L. c. 210, § 3 (c) (xii), the judge

concluded that "there is no reasonable expectation that Father

will be able to provide proper care or custody of the children,

within a reasonable time, and the children require and deserve

permanence." The father contends that DCF did not prove that

his parental unfitness was likely to continue, and the judge did

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not take into account evidence that the father had maintained

his sobriety for about twenty-two months before trial. Based on

the evidence of the father's unwillingness to engage in

substance abuse treatment, the judge did not abuse his

discretion in concluding that there was no reasonable

expectation that the father would be fit to parent the children

within a reasonable time.

"Treatment 'does not always work the first or even the

second time, [and] relapse should not be cause for giving up on'

an individual experiencing substance use disorder" (citation

omitted). Adoption of Luc, 484 Mass. at 147. "[P]arental

rights should not be terminated only because the parent has a

substance use disorder." Id. Even so, "the parent's

willingness to engage in treatment is an important consideration

in an unfitness determination where the substance dependence

inhibits the parent's ability to provide minimally acceptable

care of the child[ren]." Id. "Because childhood is fleeting, a

parent's unfitness is not temporary if it is reasonably likely

to continue for a prolonged or indeterminate period." Adoption

of Ilona, 459 Mass. 53, 60 (2011).

Among the father's action plan tasks were to engage in

substance abuse treatment, undergo frequent supervised urine

screens, and attend three to five twelve-step meetings weekly.

The judge found that the father did undergo substance use

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treatment, and maintained sobriety for periods of time with the

help of Vivitrol, but then stopped Vivitrol and relapsed in

November 2021 and again in May 2022. The judge found that the

father failed to sufficiently verify his attendance at twelve-

step meetings. For six months before trial, the father was not

engaged in any substance abuse services. About six months

before trial, the father submitted a clean urine sample that was

not at the proper temperature; at trial, he had no explanation

for the discrepancy, and the judge found it "suggest[ed] he may

have tampered with the sample." The father never complied with

DCF's request to undergo hair follicle testing. As of trial, he

still was not taking Vivitrol; he testified that he stopped

taking it because he had a "sober plan" and a "routine." Asked

at trial to describe the impact of his substance use on the

children, the father instead described how not seeing the

children impacted his mother and his brother. Asked if he would

use drugs in the future, the father testified that he did not

know.

Based on that evidence of the father's lack of willingness

to continue to engage in treatment for his substance use

disorder, the judge did not commit clear error or an abuse of

discretion in concluding that the father's parental unfitness

was likely to continue. See Adoption of Luc, 484 Mass. at 147.

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2. Visitation. The judge ordered that the father be

permitted visits with both children monthly posttermination and

four times annually postadoption, and that those visits take

place "at the same time as" the mother's visits, "for the

benefit of the children." The father contends that the judge

abused her discretion in ordering that the father's visits occur

at the same time as the mother's.

"A trial judge's decision whether to order visitation

between a child and a parent whose parental rights have been

terminated is reviewed for an abuse of discretion." Adoption of

Xarissa, 99 Mass. App. Ct. at 623. A postadoption contact order

may be warranted "where no preadoptive family has yet been

identified, and where a principal, if not the only, parent-child

relationship in the child's life remains with the biological

parent." Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006),

quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003).

We discern no abuse of discretion in the judge's order that

the children's posttermination and postadoption visits occur

with the father and the mother at the same time. That order is

within "the range of reasonable alternatives," Adoption of

Xarissa, 99 Mass. App. Ct. at 616, because it seeks to minimize

the disruption to the children's lives as they "negotiate[]

. . . the tortuous path from one family to another," Adoption of

Vito, 431 Mass. 550, 565 (2000). If circumstances change and

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simultaneous visits with both biological parents are no longer

in the best interests of the children, the children or their

custodian, whether DCF or an adoptive parent, may seek to modify

the order. See Adoption of Edgar, 67 Mass. App. Ct. at 369-370.

As for the father's argument that four postadoption visits

annually are not sufficient, we similarly find no abuse of

discretion.

Decrees affirmed.

By the Court (Grant,
Brennan & Smyth, JJ. 3),

Clerk

Entered: November 3, 2025.

3 The panelists are listed in order of seniority.

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