ADOPTION OF HAZIM (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-1416

ADOPTION OF HAZIM (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal relates to the welfare of two children we refer

to as Hazim and Hannah. On June 25, 2024, a judge of the

Juvenile Court found the father unfit to assume parental

responsibility and terminated his parental rights. The father

appeals, 2 arguing that (1) the evidence does not support the

judge's conclusions that the father was unfit to assume parental

responsibility and that his unfitness was likely to continue

indefinitely to a near certitude, (2) the judge improperly

introduced hearsay statements at trial and improperly relied on

those statements in his findings, and (3) the Department of

Children and Families (department) failed to provide reasonable

1 Adoption of Hannah. The children's names are pseudonyms.

2The mother also submitted a notice of appeal, but she did
not submit a brief and is not a party to this appeal.
efforts to support the father's reunification with the children

after the children were placed in third party custody with the

eventual adoptive parents. We affirm.

Procedural history. The department filed the underlying

care and protection petition in February 2022 and the children

were placed in the department's temporary custody. In November

2022, the children were reunified with the parents. In January

2023, the court granted the parents conditional custody. The

children were removed from the parents' custody on August 11,

2023, following the parents' violation of the terms of their

conditional custody agreement. 3 The conditional custody

agreement had required the father to supervise the mother's

contact with the children and required both parents to remain

free of substances. After the father allowed the mother to

accompany the children to daycare unattended in a rideshare car

and the mother presented as under the influence of substances

upon arrival at the daycare, the department required the parents

to submit toxicology screens. Both parents failed to complete

the screens, and the department removed the children from the

3 This is Hazim's third removal and Hannah's second removal
from the parents' custody.

2
parents' care. On September 6, 2023, the parents consented to

third-party custody with the foster family. 4

The trial on the parents' fitness and custodial rights

spanned seven nonconsecutive days from April 17, 2024, to May

21, 2024. 5 On the first day of trial, an anonymous caller

reported to the court that the father had made statements that

he was concerned about doing harm to himself or others depending

on the outcome of trial. As a result, the court ordered that

the court clinician conduct a mental health evaluation of the

father. The father failed to appear at trial on April 18, 2024,

due to his concerns that he could not assure the safety of

himself, the children, and others. 6

At the conclusion of the trial, the judge determined that

the father was unfit to assume parental responsibility and that

his unfitness was likely to continue into the indefinite future

to a near certitude, and that the best interests of the children

4 The same foster family previously had custody of the
children from April 2022 to November 2022. The foster family
had remained active participants in the children's lives
following the children's return to the parents' custody in
November 2022.

5 The mother appeared for the first day of trial, and
thereafter did not attend any court hearings or meetings.

6 The father initially reported through counsel that he was
sick with COVID and at the hospital but later admitted that was
untrue and that he had not appeared out of concern for his
mental health and his potential behavior in the event of an
unfavorable result at trial.

3
would be served by terminating his parental rights to the

children.

Discussion. 1. The father's fitness. "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 the parent is unfit, whether the child's best

interests will be served by terminating the legal relation

between parent and child." Adoption of Ilona, 459 Mass. 53, 59

(2011). "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." Id.

"The concepts of parental fitness and a child's best

interests are not separate and distinct but, instead, are

cognate and connected steps that reflect different degrees of

emphasis on the same factors" (quotations and citation omitted).

Adoption of Flavia, 104 Mass. App. Ct. 40, 45 (2024). "Because

termination of a parent's rights is an extreme step, a judge

must decide both 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" (quotations and citations omitted).

Adoption of Ilona, 459 Mass. at 59. However, a conclusion that

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unfitness is only temporary "must rest on credible evidence

supporting a reasonable likelihood that the parent will become

fit, not on a 'faint hope'" (citation omitted). Id.

The father argues that the evidence was insufficient to

find that he was unfit to parent the children and that

terminating his parental rights was in the children's best

interests. In challenging the sufficiency of the evidence

supporting the judge's determinations, the father also contends

(1) that there was no nexus between his substance use disorder

and his fitness as a parent, and (2) that the judge could not

consider his mental health when he was in fact capable of

providing minimally acceptable care. We disagree. The judge

neither erred in considering these factors nor did he abuse his

discretion in ultimately concluding that the father was unfit

and that the children's best interests were served by

terminating the father's parental rights.

The judge's findings show a significant nexus between the

father's substance use disorder 7 and his unfitness. See Adoption

of Katharine, 42 Mass. App. Ct. 25, 34 (1997) (requiring nexus

between parent's substance use disorder and neglect or abuse

before parent's substance use disorder can support a finding of

unfitness). Multiple reports spanning several years regarding

7 The father has been using cocaine since he was thirteen
years old, with periods of intermittent sobriety.

5
the parents conduct stemmed from the father or both parents

relapsing on substances, including the December 2021 domestic

violence incident when the father relapsed, his failure to take

the children to daycare in February 2022 following a relapse,

and the most recent removal of the children on August 11, 2023,

when both parents failed to submit toxicology screens.

Additionally, the father's substance abuse has caused him to be

absent and unable to care for the children, either because he

was incapacitated, committed to a treatment facility,

incarcerated, or willfully left the children in the mother's

care while the father used substances outside of the home. The

father argues that "the overwhelming majority of concerns"

regard the mother's drug usage. The contention is unavailing.

Aside from the ways we have just outlined that the father's

substance use disorder directly bears on his fitness as a

parent, the father has acknowledged that he has enabled mother's

substance use by purchasing drugs for her use. Additionally,

after the father had kicked the mother out of the family home

following her March 2023 relapse, he then, in April 2023, asked

for the mother to return to the family home because he was

unable to independently manage the children's care.

Further, after the children were removed in August 2023,

the father presented as impaired during parent-child visits, has

been unwilling to verify his sobriety, and was not consistently

6
engaged in services designed to address his substance abuse

disorder, making it foreseeable that the father's substance

abuse would continue to affect his parenting if he were to

regain custody of the children. See Adoption of Luc, 484 Mass.

139, 147 (2020) ("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"); Adoption of Katharine, 42 Mass. App. Ct. at 32-33

("[Judges] may consider past conduct to predict future ability

and performance").

The judge also did not err in considering the father's

mental health challenges. See Adoption of Luc, 484 Mass. at 146

("Mental disorder is relevant only to the extent that it affects

the parents' capacity to assume parental responsibility, and

ability to deal with a child's special needs"). Although most

of the judge's findings regarding the father's mental health

related to the father's conduct surrounding the trial, it is

clear that the father's mental health had impacted his parenting

long before the trial began. For example, the father

acknowledged that a relapse occurring in December 2021 stemmed

from his unaddressed childhood trauma. 8 During this relapse, the

8 The father was sexually abused as a child while he himself
was in the department's custody.

7
father and the mother physically fought, and the next day the

mother presented with visible facial injuries including a black

eye with a gash, either resulting from the father closing a car

door on her or, according to the mother, the father punching her

in the face.

Additionally, prior to trial, the department recommended

ceasing visitation between the parents and the children out of

concern for the parents' mental health. The father acknowledged

that he had expressed that he might harm himself or others

depending on the outcome of the trial, and the father missed the

second day of trial because he was concerned that he could not

control himself, thus putting the safety of himself, the

children or others in jeopardy if he did not prevail at trial. 9

Notably, in response to a line of questioning regarding the

father's mental health, the father admitted that given the state

of his mental health he would not presently be able to care for

the children if in fact he was awarded custody.

Finally, given the department's long history with Hazim and

Hannah, the father's failure to adequately address his substance

9 Indeed, the court clinician's testimony suggests that the
father might have harmed the children, or at least recognized
that any harm he might have done would have negatively impacted
the children: "[The father] spoke for some time about the
consequences of any sort of negative behavioral reactions in
terms of himself, in terms of safety in others, in terms of his
children, and the effect that that would have on his children
. . . ."

8
use disorder, mental health, history of domestic violence in his

relationship with the mother, and the father's inability to work

with the department forthrightly and productively, it was

reasonable for the judge to conclude that the father's unfitness

was not temporary and likely to continue into the foreseeable

future. See Adoption of Ilona, 459 Mass. at 59 ("judge's

conclusion that a parent's unfitness is temporary must rest on

credible evidence supporting a reasonable likelihood that the

parent will become fit, not on a 'faint hope'"). While the

trial judge acknowledged the bond between the father and his

children, in light of the father's inability to provide

consistent care for the children, it was not error to conclude

that termination of the father's rights and adoption by the

foster family was in the children's best interests. See

Adoption of Thea, 78 Mass. App. Ct. 818, 824 (2011) ("The

Supreme Judicial Court has emphasized the importance of

achieving stability and permanency in children's lives and in

decrees dispensing with parental rights").

2. The out-of-court statements. On the first day of

trial, an anonymous person called the court and informed a clerk

that the father had threatened to harm himself or others. At

trial, after the father acknowledged that he had told someone of

his concern that he might harm people depending on the outcome

of the trial, the father's attorney asked the father whether he

9
had "ever acted out on those feelings that [he] had." The judge

then sua sponte objected to the question as irrelevant because

the father's statements depended on the outcome of the trial,

which had not yet concluded. The father takes issue with the

fact that the judge relied on the caller's out-of-court

statements to sustain the sua sponte objection to his attorney's

question and contends that the judge's findings improperly

relied on the caller's out-of-court statements.

"The court must decide any preliminary question about

whether . . . evidence is admissible. In so deciding, the court

is not bound by the law of evidence, except that on privilege."

Mass. G. Evid. 104(a) (2025). The judge did not abuse his

discretion in admitting facts about the nature of the father's

threats to determine whether testimony on those threats would be

relevant.

While the judge's findings indirectly refer to the caller's

out-of-court statements, the judge does not rely on the

statements themselves in his findings of fact. Rather, the

judge relied on the father's in-court statements acknowledging

that the caller's report was correct, and those in-court

statements were properly admitted. See Mass. G. Evid. 601(a)

(2025) ("Every person is competent to be a witness unless a

statute or the Massachusetts common law of evidence provides

otherwise"); G. L. c. 233, § 20 ("Any person of sufficient

10
understanding, although a party, may testify in any proceeding,

civil or criminal, in court or before a person who has authority

to receive evidence . . . ").

3. The department's reasonable efforts. The father argues

that the department failed to make reasonable efforts by failing

to investigate placing the children with relatives and by

discontinuing the father's visits with the children during the

trial. Where a court of competent jurisdiction has "granted

custody or transferred responsibility for a child to the

department or its agent, the court shall determine . . . whether

the department or its agent has made reasonable efforts to make

it possible for the child to return safely to his parent or

guardian." G. L. c. 119, § 29C. However, "a parent 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).

The father contends that the department failed to make

reasonable efforts in identifying familial placements for the

children for the first time at trial. Accordingly, the issue is

waived and need not be addressed here. See Id. (parent may not

claim inadequate services for the first time at termination

proceeding).

Additionally, while the foster family terminated visits

between the parents and children during the trial, as was their

11
right, they did so at the department's request due to concerns

for the parents' mental health. See G. L. c. 119, § 21

("custody" includes the power to "control visits to a child").

Decrees affirmed.

By the Court (Blake, C.J.,
Desmond & Singh, JJ. 10),

Clerk

Entered: January 12, 2026.

10 The panelists are listed in order of seniority.

12