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Appeals Court of Massachusetts.



Decided: March 08, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.2)


Approximately two years after the father of Olympia stipulated to his unfitness, the Department of Children and Families (department) changed its goal from reunification with the mother to adoption.3 After a trial on the department's request for review and redetermination, a judge of the Juvenile Court found that the father was unfit to parent the child, and terminated his parental rights. The father appeals, contending that the judge did not adequately address conflicts in the evidence. He maintains that this failure undermined the judge's credibility determinations and argues that she did not pay close attention to the evidence. The father also asserts that the judge should have considered a court investigator's report that was not offered in evidence, and failed to make findings regarding the child's bond with the preadoptive family. We affirm.

Discussion. “[I]n a petition for review and redetermination, the department bears the ultimate burden to prove that the child is still in need of care and protection. This necessarily involves showing that the parent is still unfit and the child's best interests are served by remaining removed from parental custody․ Furthermore, as in a proceeding initially to determine that a child is in need of care and protection, the department must meet this burden by clear and convincing evidence.” Care & Protection of Erin, 443 Mass. 567, 572 (2005).

The judge found the following facts in support of her ultimate finding that the father was not fit to parent Olympia, who was five years of age at the time of trial. The child was born in July 2014, while the mother was living in a homeless shelter. She was removed from the mother's care at one month of age, and after a brief reunion with the mother, was placed in foster care for the second time at the age of four months. She has remained in that home, which is now the preadoptive home, until the time of trial. Olympia has not lived with the father at any time, and with the exception of sporadic attendance at scheduled visits, he has not cared for her.4

1. Knowledge of and visits with the child. In July of 2017, the father moved to Connecticut, where, at the time of trial, he lived with his partner and their baby. After the child was placed in foster care, the father visited sporadically, citing his work schedule as a truck driver.5 In the year before the trial, he visited the child only four times. Although Olympia had special needs, and numerous medical conditions requiring attentive care, the father was unaware of those needs or her medical condition. He did not attend her foster care reviews, or her medical or dental appointments. He was unaware that she was in therapy, had not contacted her medical providers, and had contacted her school only once in the two years before trial. To the extent that the father finds fault with the judge's findings, he takes issue with how the judge weighed the evidence or resolved conflicts in the evidence. We may not disturb the trial judge's resolution of conflicts in the evidence on appeal. See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019).

2. ICPC and domestic violence. The father's plan was to have his current partner care for the child during the periods of time that he was working. An Interstate Compact on the Placement of Children (ICPC) review of the father's home was conducted by the State of Connecticut. Connecticut authorities initially approved the home. However, the department (in Massachusetts) raised questions about a history of domestic violence with the child's mother, and asked that Connecticut reinvestigate. The judge found that the father did not provide the additional information sought by the department regarding whether there was domestic violence in his relationship with his current partner.

Our review of the findings regarding domestic violence, which the father now appears to challenge, is impeded by ambiguity in the judge's findings regarding whether there was a history of domestic violence between the mother and father. The judge found that the department had “concerns” regarding domestic violence, concerns that were noted in a G. L. c. 119, § 51A, report. The judge found that the father had attempted to take the mother's cell phone from her while she was living in the shelter, and that the shelter obtained a “stay-away order.” The judge did not make a factual finding that the department's concerns were grounded in fact. However, the judge's conclusions of law state that the department “had valid concerns about domestic violence” involving the mother and father, and that the father “failed/refused to address any domestic violence issues he may have had.” In addition, the judge did not credit the father's denials of a history of domestic abuse.

Because domestic violence presents such acute and potentially dispositive protective concerns, it is critical that the judge make specific findings regarding domestic violence. See Custody of Vaughn, 422 Mass. 590, 595-596 (1996). If we infer from the reference to “valid concerns” and the rejection of the father's denials that there was domestic violence in the relationship, this could form a separate basis for upholding the decision to terminate parental rights. See id.

However, even if we were to treat the judge's findings as findings of suspected domestic violence only, the judge's corollary findings regarding the father's response to the department's request for further investigation in Connecticut were fully grounded in the evidence. The father is correct that he was not asked to attend a specific domestic violence program, and that the judge's findings on that score were to some degree beside the point, but he was asked to participate in counselling intended to address the volatile relationship with the mother. The father did not attend counselling, or provide releases to the department regarding counselling. After the department in Massachusetts asked authorities in Connecticut to interview the father's partner and investigate whether there had been any instances of domestic violence in Connecticut, his cooperation ceased and his partner in Connecticut was not interviewed. The judge was permitted to conclude that the Connecticut home study was inadequate.

The father contends, however, that the findings regarding his failure to complete the Connecticut home study were clearly erroneous, and that the judge erred by not considering a court investigator report that was part of the department's record. The court investigator stated that the father did cooperate in the initial investigation and the request for a renewed investigation. The judge was not required to rely on or adopt this statement by the court investigator. The father did not ask to have the court investigator report admitted in evidence at trial. As a result, the department was not given the opportunity to be heard on the claimed discrepancy. See Care & Protection of Erin, 443 Mass. at 573.

Even if we were to consider the court investigator report as if it had been admitted in evidence, the result would be no different. The court investigator stated that the father had cooperated with the investigation. This was true of the initial investigation. What was at issue at trial, however, was the father's failure to cooperate in the request to reopen the home investigation. The investigator was under the impression that the father had cooperated in the follow-up investigation, but the social worker testified that “[h]e cooperated in the beginning but not when we asked more questions.” There is nothing in the record to show that the father's partner was interviewed. Faced with inconsistencies in the evidence, the judge resolved them. The judge's finding was not clearly erroneous.

3. Stability and care. Moreover, it was after the father declined the request for additional information in September and October of 2018 that the department decided not to move forward with placing the child with the father, citing the father's failure to avail himself of services and the fact that he had not visited her since June of 2018. In the months and years preceding trial, the father's action plans required, among other things, and at different times, that he meet monthly with the social worker, participate in a parenting class, engage in mental health services to improve his coping skills and address issues with the mother, sign releases from service providers, improve his attendance at parent child visits, maintain contact with the child's early intervention services providers, attend the child's medical appointments, and cooperate with the ICPC in Connecticut. The father did attend and complete a nurturing father's program, and he visited the child sporadically after October of 2018, but he did not fulfill the other requests. The judge's finding that the department had shown by clear and convincing evidence that the father was unable to provide a stable home that could meet the child's medical and behavioral needs was not clearly erroneous.

4. Credibility. As a general matter, the judge found that the father was not a credible witness, and that he claimed a loss of memory when confronted with questions or assertions that contradicted his version of events. Our review of the record confirms that the father frequently answered, “I don't recall,” to cross-examination questions that challenged his testimony on direct examination. Although the father describes his responses as based on confusion about dates and times, and various department action plans, we may not disturb the judge's credibility findings, as only she had the opportunity to observe the father's demeanor, and make an assessment of his truthfulness. See Adoption of Querida, 94 Mass. App. Ct. at 778.

5. Bond. Finally, the father argues that the judge failed to make a finding regarding the bond between the child and the preadoptive family. It is true that the judge did not make a finding using the word “bond.” The judge did find, however, that the child “wants to stay with her foster parents.” This is a clear statement of bonding. The judge also found that the father had failed to form a meaningful relationship with the child, and “what little contact he has had with her has been sporadic and inconsistent.” The judge made adequate findings and rulings regarding the child's bond with her preadoptive family.

Decree affirmed.


3.   The child was removed from the mother's care twice, at one month and four months of age. The petition for care and protection was filed on August 15, 2014, and the father stipulated to unfitness on March 29, 2016. The child has lived with the preadoptive parents since she was four months old. The mother has stipulated to unfitness and is not a party to this appeal.

4.   We do not consider the judge's findings regarding the father's failure to provide support, as there is no evidence that the department asked that he provide support or that a court ordered him to do so.

5.   The judge also did not credit the father's testimony that he “lost many jobs” because he attended visits with the child.

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