Adoption of Viola.

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

25-P-725

ADOPTION OF VIOLA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from a decree entered in the Juvenile Court

terminating his parental rights, the father challenges the trial

judge's finding that he is unfit and the termination of his

parental rights.2 We affirm.

Background. We summarize the trial judge's findings of

fact, reserving certain details for further discussion. The

Department of Children and Families (department) filed a care

and protection petition in January 2020 and was subsequently

granted temporary custody of Viola (the child). In February

2023, the father entered a stipulation to a finding of

unfitness, and permanent custody of Viola was granted to the

1 A pseudonym.

2The mother did not attend the trial and is not part of
this appeal.
department. A review and redetermination hearing pursuant to

G. L. c. 119, § 26, took place in March and April 2024, after

which a Juvenile Court judge found that the father continued to

be unfit and that it was in Viola's best interests that the

father's parental rights be terminated.

Discussion. "When reviewing a decision to terminate

parental rights, we must determine whether the trial judge has

abused [her] discretion or committed a clear error of law."

Adoption of Elena, 446 Mass. 24, 30 (2006). The decision to

dispense with consent to adoption because the parent is unfit to

care for the child and termination is in the child's best

interests must be supported by "clear and convincing evidence,

based on subsidiary findings proved by at least a fair

preponderance of evidence." Adoption of Darlene, 99 Mass. App.

Ct. 696, 702 (2021). "Parental unfitness . . . means more than

ineptitude, handicap, character flaw, conviction of a crime,

unusual life style, or inability to do as good a job as the

child's foster parent. Rather, the idea of parental unfitness

means grievous shortcomings or handicaps that put the child's

welfare much at hazard" (quotations and citation omitted). Id.

Ultimately, "the welfare of the child is the most important

consideration in determining whether the parents are fit to care

for their child." Bezio v. Patenaude, 381 Mass. 563, 574

(1980).

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1. Domestic violence. Domestic violence is "highly

relevant to a judge's determination of parental unfitness."

Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). The

child reported that the father had hurt the mother on several

occasions. On one occasion in 2019, the child witnessed the

father, who had broken into the mother's home, assault the

mother by grabbing her by the throat and choking her.

Afterward, the child reported that she was unable to sleep

because she feared the father would break in through the window

again. See Adoption of Flavia, 104 Mass. App. Ct. 40, 49 (2024)

("[i]t is well established that exposure to domestic violence

works a distinctly grievous kind of harm on children that can

include imperiling their physical safety and psychological

development" [quotation and citation omitted]).

The father has not developed insight into how his actions

have affected the child. The father denies that any domestic

violence has occurred, and he refused to participate in an

intimate partner violence intervention program because he was

concerned that he would get into a fight with someone at the

program. See Adoption of Lisette, 93 Mass. App. Ct. 284, 294

n.15 (2018) ("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").

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The judge's findings about the father's history of domestic

violence, minimization of and inability to understand the

effects of that violence, and failure to benefit from programs

designed to address domestic violence were all amply supported

by the evidence. The evidence supported the judge's conclusion

that the father's failure "to acknowledge the trauma to the

child, how his own violent behavior caused it, or to engage in

necessary services to acquire the skills to meet Viola's need

for safe and responsible caregiving" Moreover, the judge's

conclusion that the "father's shortcomings are severe and likely

to continue undiminished into the future" was supported by the

judge's findings.

2. The father's criminal history and lack of contact with

the child. Consideration of a parent's criminal history bearing

on parental fitness is "germane" in care and protection

proceedings, to the extent that it has "a bearing on his fitness

as a parent." Care & Protection of Quinn, 54 Mass. App. Ct.

117, 125 (2002). The father has served time in State prison for

his convictions for numerous crimes, many of which were violent

and which include possession of a firearm, assault by means of a

dangerous weapon, and breaking and entering with the intent to

commit a felony. The judge found that two of the father's

prison sentences stemmed from his use of a motor vehicle to

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commit assault and battery and that his history of violence and

impulsivity pose a danger to Viola.

The father was incarcerated during the child's birth and

was not released until she was seven years old. He was

incarcerated again at the inception of trial. Since the child's

removal in 2020, the father has had no contact with her. The

child has reported that she hates him and is fearful of him.

She also testified at trial that she does not like him, does not

want to live with him, and wants his parental rights terminated.

The judge properly considered the father's violent criminal

history, and her findings demonstrate a sufficient link between

that history and his inability to provide adequate care for the

child. See Custody of Two Minors, 396 Mass. 610, 621 (1986)

("The court is permitted to assess prognostic evidence derived

from prior patterns of parental neglect or misconduct in

determining future fitness").

3. Continued unfitness. At trial, 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.'" Adoption of Ilona, 459 Mass. 53, 59 (2011),

quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). "Because

childhood is fleeting, a parent's unfitness is not temporary if

it is reasonably likely to continue for a prolonged or

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indeterminate period." Adoption of Ilona, supra at 60. In

assessing whether a parent's unfitness is likely to continue

indefinitely, a judge may consider "past conduct, medical

history, and present events to predict future ability and

performance as a parent." Care & Protection of Bruce, 44 Mass.

App. Ct. 758, 761 (1998).

There was ample evidence in the record that the father's

unfitness was likely to continue indefinitely. He admitted to a

substance abuse problem and Viola observed drug paraphernalia in

the home before her removal. The father failed to engage in

most of the services offered to him and has been unable to

maintain a sober lifestyle or complete any necessary counseling

programs to address his issues. Additionally, his long criminal

history has led him to be incarcerated and thus absent for much

of the child's life. It was not error for the judge to conclude

that the father's unfitness was likely to continue for a

prolonged or indeterminate period.

4. Erroneous finding. We find unavailing the father's

argument that the judge erred in finding that Viola hates and

fears her father and would reject any current or future contact

with him. In her findings, the judge attributed Viola's

statements to reports filed pursuant to G. L. c. 119, § 51A (51A

reports) and ruled that the 51A reports were admitted to "set

the stage." Though erroneous, based on our review of the record

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we find this misattribution to be harmless error, as the

contested findings are supported by other evidence. See Care &

Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003)

(findings supported by evidence or that contain immaterial

errors are not clearly erroneous). That Viola stated to a

department investigator in February 2020 that "[Father] sucks

and [I hate] him" appeared in a report filed under G. L. c. 119,

§ 51B. That statement was properly admitted and considered by

the judge, particularly where the child testified in camera at

trial that she didn't like the father and the father's attorney,

when given the opportunity, declined to ask additional

questions. The contested findings were sufficiently supported.

See Adoption of Luc, 484 Mass. 139, 152-154 (2020).

Decree affirmed.

By the Court (Meade,
D'Angelo & Tan, JJ.3),

Clerk

Entered: April 16, 2026.

3 The panelists are listed in order of seniority.

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