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

23-P-224

ADOPTION OF ARMAND (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from decrees issued by a judge of the 

Juvenile Court finding him unfit and terminating his parental 

rights to his sons, Armand and Benjamin (the children).2 The 

father also challenges the decrees approving the adoption plan 

for Benjamin and denying the father posttermination and 

postadoption visitation with the children. We affirm in part, 

vacate in part, and remand for further proceedings.

Background. We summarize the judge's findings of fact, 

supplemented by uncontroverted evidence from the record. The 

father's daughter (daughter), the children's sister, was born in 

2004. Armand was born in 2009, and Benjamin was born in 2012.

In 2004, the Department of Children and Families (department)

received the first of numerous G. L. c. 119, § 51A reports (51A 

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

2 The father's eldest child, a daughter, turned eighteen shortly 

after the trial. She is not a subject of this appeal.
2

reports) related to the family. The department initially became 

involved with the family due to concerns about domestic violence 

between the parents and substance abuse by the father. The case 

remained open until 2005, when the mother obtained a restraining 

order against the father, whose location was then unknown to the 

department. In 2010, a 51A report was filed due to concerns of 

domestic violence and substance abuse by the father, and the 

case again closed when the mother obtained a restraining order 

against the father. In all, the mother has obtained eight 

restraining orders against the father.

In 2012, on a day that the father had kicked her in the 

face, the mother had a stroke. Due to the stroke, the mother 

could not use the left side of her body, so she was unable to 

care for the children. In August 2014, the father left the 

children at the mother's house unsupervised. Because the mother 

did not have custody of the children, she did not allow the 

department's investigator into her home, though she noted that 

the father had previously left the children with her for nine 

days.

In October 2015, a department investigator visited the 

family's home following a report alleging neglect because Armand

was not attending school, and the daughter did not have school 

uniforms. The father told the investigator that he struggled to 

meet the children's needs. Later that month, Benjamin attended 
3

school with burns on his hand, including "blisters all over the 

inside . . . of his hand." Benjamin had spilled hot water from 

the dishwasher on his hand, causing second-degree burns. In 

November 2015, the father did not pick up Armand, then age six,

from school. Over two and one-half hours after dismissal, a

truant officer went to the home, where no one was present.

Later that day, the investigator went to the home and found the 

father chasing Benjamin. When notified that he did not pick up 

Armand after the school's early dismissal, the father began to 

cry. The department supported the allegations of neglect.

In September 2017, while the family lived at a motel, the 

daughter had a high fever and was taken to a hospital, where she 

repeatedly told staff that she and the father were demons. The 

daughter said that the father hit her and caused a bruise on the 

inside of her lip. Both Benjamin and a bystander said that they 

saw the father hit the daughter in the face. The bystander said

the father slapped the daughter across the face, leaving a 

handprint and a bruise.

In October 2017, three police officers responded to a call 

for a well-being check at a different motel where the family 

lived. The woman who called the police reported that she 

believed drug use and prostitution were occurring in the room 

while the children were present. She later explained to a 

department social worker that she saw a woman "passed out" on 
4

the bathroom floor with a small bag that she knew to be used as 

a "drug bag." When the officers arrived, no women were present 

in the room. The officers found six to ten empty nip bottles, 

which the father said belonged to the caller. The father 

indicated he did nothing wrong, saying that the women were a 

"booty call," and he had invited two of them so that he could 

have a "back-up plan."

A week later, the department conducted an emergency removal 

of the children, who were moved to a foster home with their 

maternal aunt. Armand suffered from speech delay, and he 

assaulted a department social worker who attempted to interview 

him. When interviewed by the department about two weeks later, 

Armand said that he did not want to live with his father again. 

During this period, Benjamin wet and soiled himself at school 

daily, suffered speech delay, and was on an individualized 

education program. A school counselor also reported that 

Benjamin was defiant and emotional.

After the children's removal, the father moved to Maine.

He did not meet his obligations under his action plan, visited

the children only sporadically, and missed several scheduled 

visits. The department attempted several times to contact the 

father, but he did not answer his phone. The father did not 

sign releases to allow the department to verify his 

participation in services on his action plan, and he did not 
5

verify that he was sober or employed. After about three months 

without contact, the father met with his department social 

worker for an office visit in September 2018. Between November 

2018 and September 2019, the father did not consistently update 

the department with his address, and he still had not signed the 

releases. In December 2021, the father's address remained 

unknown, he refused to sign releases or provide his address, and

he had not visited the children in a year.

The father neither participated in the October 2017 

temporary custody hearing nor the March 2022 trial.3 Following 

trial, the judge found the father unfit, adjudicated the

children to be in need of care and protection, and terminated 

the father's parental rights to them.

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" (citation omitted). Adoption of Oren, 96 Mass. 

App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and 

3 On the date of trial, the seventeen year old daughter lived at 

an intensive residential treatment program for traumatized 

youth, and she had no desire to see her father.
6

the 'best interests of the child test' are not mutually 

exclusive, but rather 'reflect different degrees of emphasis on 

the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664, 

671 (2018), quoting Care & Protection of Three Minors, 392 Mass. 

704, 714 (1984). In making a best interests determination, the 

judge considers "'the ability, capacity, fitness and readiness 

of the child[ren]'s parents' as well as 'the plan proposed by 

[the department].'" Adoption of Garret, supra at 675, quoting 

Adoption of Nancy, 443 Mass. 512, 515-516 (2005).

The parent's fitness is "determined by taking into 

consideration a parent's character, temperament, conduct, and 

capacity to provide for the child in the same context with the 

child's particular needs, affections, and age." Adoption of 

Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the 

parent's deficiencies 'place the child at serious risk of peril 

from abuse, neglect, or other activity harmful to the child'" 

(citation omitted). Adoption of Olivette, 79 Mass. App. Ct. 

141, 157 (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." Adoption of Ilona, 459 Mass. 53, 

59 (2011).
7

a. The judge's findings. "Unless shown to be clearly 

erroneous, we do not disturb the judge's findings, which are 

entitled to substantial deference." Adoption of Jacques, 82 

Mass. App. Ct. 601, 606-607 (2012). "A finding is clearly 

erroneous when there is no evidence to support it, or when, 

although there is evidence to support it, the reviewing court on 

the entire evidence is left with the definite and firm 

conviction that a mistake has been committed" (quotation and 

citation omitted). Adoption of Larry, 434 Mass. 456, 482 

(2001). "We accord deference to a trial judge's assessment of 

the credibility of witnesses and the weight of the evidence." 

Adoption of Olivette, 79 Mass. App. Ct. at 157.

The father argues that the judge made a number of erroneous 

findings, including those related to his compliance with his 

action plan, physical abuse of the mother and the daughter, 

abandonment of the children, engagement in sexual acts in the 

children's presence, and alcohol use. We conclude that most of 

the challenged findings are supported by the record.

Notwithstanding the father's argument to the contrary, the 

evidence supports the judge's finding that the father failed to 

participate in counseling designed to address his alcohol use. 

Over four years after alcohol counseling and attaining sobriety 

first appeared on the father's action plan, the department could 
8

not verify that he engaged in any counseling services or 

remained sober.

The father's contention that the judge erred by relying on 

the daughter's hearsay statements to find that he physically 

abused her is likewise unavailing. Hearsay contained within the 

department's reports and official records that does not fall 

within an existing exception is admissible to establish primary 

facts if the hearsay source is specifically identified in the 

document and available for cross-examination. See Adoption of 

Luc, 484 Mass. 139, 152-153 (2020). The daughter's statements 

that the father hit her were contained in multiple G. L. c. 119, 

§ 51B reports.

The judge also did not err in her conclusion that physical 

abuse was an "ongoing concern," even though the mother had not 

obtained a restraining order against him since before Benjamin's

birth. Although one 51A report indicated that the father 

completed a court-ordered domestic violence class, the 

department's social worker testified that the father had done 

nothing to resolve the issue. Regardless, the judge concluded 

that the father had a well-documented, "significant history" of 

domestic violence. While the mother's eight restraining orders 

against the father "cannot be the basis for a finding of current 

parental unfitness[,]" his "history . . . has prognostic value"
9

(citation omitted). Adoption of Jacques, 82 Mass. App. Ct. at

607.

The father further contends that the judge erred by finding 

that he had "all but abandoned his children." Reading this 

statement as a shorthand way of summarizing the judge's more 

specific findings about the father's limited visitation and 

failure to participate in action plan services intended to build 

stronger ties between the father and the children,4 we are not 

persuaded that the statement was clearly erroneous.

We do agree with the father that a minute portion of the 

challenged findings lacked support. Specifically, and as the 

department concedes, whatever the father's intent may have been, 

he did not engage in sexual acts in the children's presence, and 

any finding to that effect was clearly erroneous. Additionally, 

although there is ample support for the judge's findings that 

the father had been drinking at the time of multiple 51A 

reports, the record does not support the judge's finding, even 

assuming one was made, that the father had been "drinking 

heavily" on the night in September 2017 that he slapped the 

daughter in the face. Where the remaining 229 findings the 

4 It is apparent from the judge's determination that G. L. 

c. 210, § 3 (c) (i) did not apply that the judge did not find 

that the father had "abandoned" the children, as the father 

claims.
10

judge made establish the father's unfitness by clear and 

convincing evidence, however, we are not persuaded that the 

erroneous findings warrant reversal. See Adoption of Jacques, 

82 Mass. App. Ct. at 606-607 (articulating standard of review).

b. The father's unfitness. The father's unfitness 

resulted from a "constellation of factors." Adoption of Greta, 

431 Mass. 577, 588 (2000). The father did not provide a stable 

home environment for the children, nor did he "maintain service 

plans, visitation schedules, and counseling programs designed to 

strengthen the family unit." Petitions of the Dep't of Social 

Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 

(1987). Despite the department's intervention, the father 

failed consistently to participate in services and treatment to 

address the issues that caused the removal of the children. See 

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("The mother's 

lack of meaningful participation in recommended services was 

. . . relevant to the question of her fitness"). To the extent 

that the father did engage in services, the judge found that the

father benefited from the services little, if at all. See 

Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting 

Petitions of the Dep't of Social Servs. to Dispense with Consent 

to Adoption, supra (parent's failure to benefit from services 

"relevant to the determination of unfitness").
11

We discern no abuse of discretion in the judge's 

determination that the father's unfitness would persist, and 

therefore termination of his rights was in the children's best 

interests. See Adoption of Cadence, 81 Mass. App. Ct. 162, 169 

(2012) ("Where there is evidence that a parent's unfitness is 

not temporary, the judge may properly determine that the child's 

welfare would be best served by ending all legal relations 

between parent and child"). During the children's lifetimes, 

the father exposed them to instability, inappropriate 

caretakers, verbal abuse, and physical harm. While they were in 

his custody, the children did not attend school regularly and 

often appeared dirty and disheveled. We agree with the judge's 

determination that the father failed to take steps to ameliorate 

the neglectful conditions that have harmed the children.

2. Adoption plan for Benjamin. "The law does not require 

that the adoption plan be 'fully developed' in order to support 

a termination order, but it must provide 'sufficient information 

about the prospective adoptive placement so that the judge may 

properly evaluate the suitability of the department's proposal'"

(quotation omitted). Adoption of Varik, 95 Mass. App. Ct. 762, 

770 (2019), quoting Adoption of Willow, 433 Mass. 636, 652 

(2001). "[T]he judge may consider evidence and testimony 

presented at trial regarding unfitness and the child's best 

interests, in addition to the written plan." Adoption of Varik, 
12

supra at 770. A "judge considering an adoption plan must make 

specific findings reflecting careful evaluation of the 

suitability of [the department's] proposal" (citation omitted).

Adoption of Imelda, 72 Mass. App. Ct 354, 361 (2008). The 

department's plan must be "sufficiently detailed to permit the 

judge to evaluate the type of adoptive parents and home 

environment proposed and consider whether the proposal is best 

suited to meet the specific needs of the child." Adoption of 

Varik, supra at 770-771.

The father contends that the department's adoption plan was 

not fully developed because it did not sufficiently identify the 

characteristics of an adoptive family, and because Benjamin was 

not yet in a preadoptive placement.5 The judge found that 

Benjamin has "substantial needs that will require extraordinary 

attentiveness and active engagement by [his] caretakers." It

was unclear whether the father had a home, a job, or a 

willingness to work with the department "to assist him with 

understanding and providing for [Benjamin's] significant 

5 The father also asserts that Benjamin's adoption is precluded 

by the department's agreement with the mother not to terminate 

her parental rights. While it is true that Benjamin will not be 

free for adoption while the mother maintains her parental rights 

to him, the father has not convinced us that this fact has any 

impact on the propriety of the judge's termination of his 

parental rights to Benjamin. More specifically, the father has 

not provided us with any support for the proposition that in the 

circumstances here, the judge could not approve an adoption plan 

prospectively.
13

requirements for stability, consistency, and therapeutic 

interventions."

The department accordingly planned to recruit an 

appropriate adoptive family. However, the department's adoption 

plan did not include any "information describing the kind of 

home environment and adoptive family makeup that ideally would 

best meet [Benjamin's] particular needs." Adoption of Varik, 95 

Mass. App. Ct. at 771. Although the plan included some details 

of Benjamin's medical and placement histories, these details 

were "not a substitute" for a description of the ideal home 

environment. Id. Contrast Adoption of Xarissa, 99 Mass. App. 

Ct. 610, 622-623 (2021) (adoption plan sufficiently detailed 

where child's issues were "in flux" and plan "extensively 

detailed" child's mental and behavioral needs and treatment 

history). Further, the social worker who submitted the plan did 

not significantly expand on the plan at trial. Although the 

adoption plan for Benjamin was inadequate, "we may remand the 

matter for further proceedings with regard to the department's 

proposed adoption plan without vacating the portion of the 

decree that terminates the father's rights." Adoption of Varik, 

supra at 774.

3. Parental visitation. "In terminating parental rights 

pursuant to G. L. c. 210, § 3, the Juvenile Court judge has the 

equitable authority to order visitation between a child and a 
14

biological parent where such contact is in the best interests of 

the child." Adoption of Garret, 92 Mass. App. Ct. at 679. 

"Whether such contact in any given case is wise is a matter that 

should be left to the discretion of the judge." Youmans v. 

Ramos, 429 Mass. 774, 783 (1999). "A judge should issue an 

order of visitation only if such an order, on balance, is 

necessary to protect the child's best interest." Adoption of 

Ilona, 459 Mass. at 65. A judge should consider "whether a 

preadoptive family has been identified and . . . whether the 

child 'has formed strong, nurturing bonds' with that family." 

Id. at 64, quoting Adoption of Rico, 453 Mass. 749, 754 (2009).

Here, the judge found that the father did not consistently 

visit the children or engage in action plan tasks that might 

reunite him with the children. Further, the father was offered 

monthly visits with the children, but he did not consistently 

attend them. During a February 2022 visit with the father, the 

children appeared uncomfortable, avoided eye contact, and did 

not engage in conversation with him. The judge found that 

mandated visitation was not in the children's best interests. 

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

(purpose of posttermination visitation is assisting child's 

transition, not strengthening bond between child and biological 

parent). We are satisfied that the judge carefully weighed the 

evidence and thus did not abuse her discretion by declining to 
15

make a specific order of visitation. See Youmans, 429 Mass. at 

783.

Conclusion. With regard to Benjamin, we vacate that

portion of the decree approving the department's adoption plan 

and remand this matter for further proceedings so that the judge 

may promptly, after an evidentiary hearing, if necessary, 

consider an adequate adoption plan. In all other respects, the 

decrees as to the children are affirmed.

So ordered.

By the Court (Hand, 

Hershfang & Brennan, JJ.6),

Assistant Clerk

Entered: February 15, 2024.

6 The panelists are listed in order of seniority.