ADOPTION OF ODIN v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Juvenile Court, a judge found the child's parents unfit, terminated their parental rights to the child, and granted custody of the child to the Department of Children and Families (department). The judge declined to order posttermination or postadoption contact between the child and the father, leaving future visitation to the discretion of the department and any adoptive parents. On appeal, the father ² does not argue that he is fit, but contends that, given the child's special needs and the department's failure to identify an adoption resource for the child by the time of the trial, neither termination of the father's parental rights nor the judge's decision to decline to order posttermination and postadoption contact was in the child's best interests. We are not persuaded, and thus we affirm.

Discussion. 1. Termination of the father's parental rights. In determining whether to terminate a parent's parental rights, the judge must engage in a “two-part analysis” to determine whether (1) the parent is unfit and (2) termination of parental rights is in the child's best interests. Adoption of Nancy, 443 Mass. 512, 515 (2005).

a. The father's unfitness. Because the father neither contests the judge's determination of his unfitness nor argues that his unfitness is only temporary, we need not recite in detail the evidence supporting the judge's resolution of those questions. See Adoption of Gertrude, 99 Mass. App. Ct. 817, 818-819 (2021). It is enough to say that the judge properly considered (1) the father's longstanding struggle with substance misuse and the resulting negative effects on the child, see Adoption of Luc, 484 Mass. 139, 145 (2020) (parent's untreated substance use disorders and failure to utilize services was relevant to unfitness), Adoption of Helen, 429 Mass. 856, 860 (1999) (parent's “unsuccessful attempts to address” substance misuse was relevant to unfitness), and Adoption of Breck, 105 Mass. App. Ct. 652, 658 (2025) (parent's substance misuse is relevant to unfitness where it puts child at risk); (2) the father's lack of insight into the child's specialized developmental needs and failure to facilitate the child's timely access to appropriate medical care and other services, see Adoption of Breck, supra at 660; and (3) the predictive value of the father's past shortcomings in parenting his other children and the older children of the child's mother. See Adoption of Luc, supra (“a judge may rely upon a parent's past conduct with regard to older children to support a finding of current unfitness as to a different child, so long as that evidence is not the sole basis for the judge's unfitness determination”); Adoption of Jacques, 82 Mass. App. Ct. 601, 607-608 (2012) (judge may consider pattern of parental behavior “as prognostic evidence of future unfitness”). The judge's determination of the father's unfitness was supported by clear and convincing evidence. See Adoption of Ilona, 459 Mass. 53, 59 (2011).

b. The child's best interests. The father argues that despite his unfitness, the judge abused her discretion by terminating his parental rights to the child because it was not in the child's best interests to do so. See Adoption of Ilona, 459 Mass. at 59 (articulating appellate standard of review); Adoption of Gertrude, 99 Mass. App. Ct. at 819, quoting Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008) (noting that “[u]nfitness does not mandate a decree of termination”). The father's argument rests on three contentions, none of which we find persuasive.

i. The bond between the father and the child. We do not agree that, as the father contends, the evidence supported a finding of a strong “natural bond” between the child and the father that was unnecessarily severed by the termination of the father's parental rights. See Adoption of Carlos, 413 Mass. 339, 350 (1992). To demonstrate that the child was bonded to the father, the father highlights four pieces of trial evidence: (1) testimony about a time when the child's face “li[t] up” when he saw the father and hugged him, (2) testimony that the child was “excited to see his parents” when they attended visits, (3) evidence that during one videoconference visit, the child tearfully said that that he missed the father, and (4) a statement by a department social worker that the child's failure to refer to the parents as “mommy or daddy” was “out of character for him.” Although it is apparent from the record that the father loves the child, the evidence of the child's attachment to the father was thin, at best, and did not show that the child was strongly bonded to him or that the cost of severing the legal relationship between them would outweigh the benefits of freeing the child for adoption. See Adoption of Gertrude, 99 Mass. App. Ct. at 820-822 (discussing costs and benefits of terminating parental rights).

ii. The father's “legal orphan” argument. Assuming that the question is not waived, see Adoption of Gertrude, 99 Mass. App. Ct. at 820, we do not agree with the father that the child's circumstances -- specifically, the fact that he was eight years old at the time of the trial, had “specialized developmental, educational, and medical needs,” and had been placed in a residential school -- necessarily required the judge to find that the child “will be difficult to adopt and is at risk of remaining a legal orphan” because the father's parental rights have been terminated.³

To the extent that the father argues that, at trial, the department bore the burden of affirmatively proving that the child was adoptable, he cites no precedent for his position, and we are aware of none. The fact that the department had not located an adoptive family for the child at the time of trial was “a factor” for the judge to consider, but “the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights.”⁴ Adoption of Jacques, 82 Mass. App. Ct. at 610. We are not persuaded that the child's special needs and placement in a residential school make his unadoptability a foregone conclusion. See, e.g., Adoption of Ulrich, 94 Mass. App. Ct. 668, 670, 678 (2019) (adoptive family found for child who turned ten during trial, “had been diagnosed with attention deficit hyperactivity disorder and posttraumatic stress disorder, ․ had been hospitalized several times for aggressive and self-harming behavior,” and had been placed in residential treatment facility). Moreover, even if the likelihood of the child's adoption was remote or even nonexistent (conclusions we do not reach), the judge would still have been acting within her discretion by deciding that freeing the child for adoption would increase the child's odds of achieving the permanence and stability that the judge prioritized for him, as well as that the benefits of that stability to the child outweighed any countervailing costs.⁵ See Adoption of Nancy, 443 Mass. at 517 (concluding that termination of parental rights would provide children with “permanence and stability, which will be eased by termination of [the] father's rights”); Adoption of Gertrude, 99 Mass. App. Ct. at 820 (“we recognize that even in circumstances where termination will render children legal orphans, the children may benefit from the permanence and stability that termination creates”).

iii. Weight of the evidence. We do not agree with the father that the judge's decision to terminate the father's parental rights was against “the weight of the evidence.”⁶ First, although the father challenges a handful of the judge's findings as clearly erroneous, we are persuaded only that the judge erred in finding that the father was living with his substance-involved mother at the time of trial. The evidence was uncontested that the father had been living with his mother, but that he had moved out of her home shortly before the trial. The only significance of this fact to the judge's decision to terminate the father's parental rights was that it provided support for the judge's conclusion that the father “continue[d] to surround himself with people who struggle with substance use disorder.” Because the judge also found that the father could not or would not separate from the child's mother, who also suffered from long-term substance misuse, the erroneous finding did not prejudice the father. See Adoption of Luc, 484 Mass. at 148 n.21 (findings based on improperly considered statements “could not have been prejudicial” where “merely cumulative” of other, properly admitted evidence).

Where the record shows that the father failed to visit the child at all from May 2024 to November 2024 and that he missed or was late for certain visits outside that timeframe, there was no clear error in the challenged findings related to the father's visitation.⁷ Likewise, where there was trial evidence showing that the father had granted permanent guardianship of his two older children to his brother more than ten years before the trial and had not parented those children in the years since, there was no clear error in the judge's finding that the father “did not play a big part” in his older children's lives.⁸ Similarly, we do not read the judge's findings about the father's “indifference” to the mother's older daughter and toward the child's special needs to conflict with the evidence that the father cared about those children. Instead, we understand the judge to have found that the father failed to recognize each of the children's needs and to respond to them appropriately. Those findings were supported by evidence that, for example, the father failed to recognize that the mother's then sixteen year old daughter was smoking marijuana with her older brother, and that he failed to ensure that the child in this case had timely and consistent access to medical and educational services tailored to his special needs. As such, we discern no clear error in those findings.

Finally, although we agree that the facts of the case did not require the judge to terminate the father's rights, we do not agree that, because the father provided a “loving presence” in the child's life, the judge abused her discretion by terminating the father's parental rights. This case is distinguishable from the cases on which the father relies. In Adoption of Ramona, 61 Mass. App. Ct. 260, 266 (2004), this court vacated decrees terminating the mother's parental rights to Ramona's brothers in part because they were “unlikely to be adopted and remain[ed] bonded” with their parent. In this case, the judge found no such bond.⁹

In Adoption of Thea, 78 Mass. App. Ct. 818, 823-824 (2011), we vacated a decree terminating the mother's parental rights to a child who was about to turn eighteen and who was in a long-term hospitalization unit because of her inability to keep herself safe from self-harm, where there was no identifiable plan for her posttermination placement. Here, the child's residential placement is stable, and the child is “thriving” there.¹⁰

In sum, the judge in this case could and did conclude that it was of greater benefit to the child to clear the path for the child's possible adoption than to maintain his legal ties to the father. That the judge could have instead found that the father's presence would do no harm to the child does not require a different result. Because we discern no abuse of discretion or other error in the judge's termination of the father's parental rights, we decline to disturb the judge's decision.

2. Judge's decision not to order posttermination or postadoption contact. “The decision whether to grant posttermination visitation is within the judge's sound discretion.” Adoption of Cecily, 83 Mass. App. Ct. 719, 727-728 (2013). See Adoption of Vito, 431 Mass. 550, 557, 561 & n.21 (2000) (same for postadoption visitation). While it is true that “[c]ases warranting a postadoption contact order are more likely to occur 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 Thea, 78 Mass. App. Ct. at 825, quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003), the fact that no adoptive resource has been identified for a child does not require a judge to order posttermination visits with the biological parent. The judge's decision “must be grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent [or] the legal consequences of their natural relation.” Adoption of Virgil, 93 Mass. App. Ct. 298, 307 (2018), quoting Adoption of Terrence, supra.

Here, the judge did not find that the child had a strong bond with the father. Contrast Adoption of Rico, 453 Mass. 749, 753-755 (2009) (judge abused discretion in failing to order visitation where evidence at termination proceeding demonstrated that child had formed “strong bond” with father, and child had been placed in four foster homes within six-year period). Moreover, the judge determined that ongoing contact between the child and the father would inevitably tie the child to the father's “rollercoaster” of substance misuse. Where the judge found that the child was making gains in his residential placement and particularly required stability and permanency in his life, we discern no abuse of discretion in the judge's decision not to order posttermination or postadoption visits with the father.¹¹

Decree affirmed.

FOOTNOTES

2.   Although the mother also filed a notice of appeal, she later waived her right to appeal and stipulated to her unfitness and to the termination of her parental rights. The mother has not otherwise participated in this appeal.

3.   As we have noted, see note 2, supra, the mother has stipulated to her unfitness and the termination of her parental rights to the child.

4.   We note that at the time of the trial, the department's efforts to recruit an adoptive parent or parents for the child were ongoing.

5.   The fact that the father's parental “duties and responsibilities,” Adoption of Mary, 414 Mass. 705, 710 (1993), as to the child would likely be reduced in some ways by the fact of the child's placement in a residential school does not change our view. The father has not explained how the child's placement enables the father to understand the child's needs, provide consistent support for the child, or address his own parenting deficiencies, nor do the judge's findings about the father's ongoing shortcomings since the child's removal from the parents’ custody show that the placement has done so.

6.   The father's contention that the evidence of his unfitness was not “overwhelming” misstates the standard of review. See Adoption of Jacques, 82 Mass. App. Ct. at 606 (“clear and convincing evidence” standard).

7.   As the father notes, the judge also found that there were periods of time when the father visited consistently and timely. In our view, this shows that the judge made evenhanded assessments of the evidence, not that the findings unhelpful to father's arguments were clearly erroneous.

8.   The judge properly considered evidence of the father's lack of involvement with the two older children as predictive of the father's “future ability and performance as a parent.” Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). The judge did not identify the father's lack of involvement in his older children's lives as evidence of “neglect,” and the father's reliance on Adoption of Arianne, 104 Mass. App. Ct. 716, 721-722 (2024), is therefore misplaced.

9.   We also note that the child argues for the affirmance of the decree. Contrast Adoption of Varnell, 106 Mass. App. Ct. 716, 722-723 (2026).

10.   Additionally, we acknowledge the factual similarities between the facts of this case and the facts of an unpublished decision by another panel of our colleagues, which the father cites. Unlike this case, that case involved evidence of the likelihood of the subject child's of being adopted, and it does not persuade us that we should vacate the decree in this case. See Adoption of Osborn, 105 Mass. App. Ct. 1122 (2025).

11.   Of course, the judge's failure to order such visits does not preclude the department, and later, any adoptive parents, from allowing the father visits to the extent that those custodians determine that it is in the child's best interests to do so.