ADOPTION OF DECLAN v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Juvenile Court determined that the father was unfit and terminated his parental rights to his son, Declan, age two.² We affirm.

Background. We summarize the judge's findings of fact, supplemented by uncontroverted evidence from the record, reserving certain facts for later discussion. Declan was born in February 2024, premature and testing positive for heroin, cocaine, and methadone. On the day of Declan's birth, the Department of Children and Families (department) received a report pursuant to G. L. c. 119, § 51A (51A report), alleging neglect of Declan by his mother and her partner, the man who was then identified as Declan's father (K.F.). According to the medical records, the mother arrived at the hospital with K.F., delivered Declan, and left the hospital two hours later against medical advice. The following day, the department filed a care and protection petition based on the mother's abandonment of Declan at the hospital, as well as the prior removals of all older children born to either the mother or K.F. Declan has remained in the department's temporary custody since his removal when he was one day old; at one month of age, when he left the hospital, Declan was placed in his preadoptive home.

Immediately after Declan's birth, the department struggled to establish contact with the mother and K.F. Around March 8, 2024, the hospital questioned Declan's parentage, because he appeared to be Black while both the mother and K.F. are white. K.F. acknowledged that Declan was not his biological child, but the mother refused to disclose the identity of Declan's father to the department. Although he was unknown to the department, Declan's biological father (the father) knew during the mother's pregnancy that the child might be his.

Around August 2024, Declan's permanency goal was changed to adoption. During the prior months, the mother did not engage in her action plan tasks, continued to use substances actively, and did not consistently visit with Declan. The father had not yet made himself known to the department and had made no effort to establish his paternity or a relationship with Declan, although he had given the mother clothing for Declan from the time Declan was two or three months old.

When Declan was about eight months old, the department became aware of the father's identity and spoke with him. The father said that he did not want Declan to be adopted. In early December 2024, the father completed genetic marker testing that established he was Declan's biological father; on January 14, 2025, the father was adjudicated Declan's legal father.

Once the father established paternity, the department offered him biweekly visits, which he attended consistently. During the visits, the father interacted appropriately with Declan and brought provisions for him. In February 2025, the father informed the department that the mother was seven months pregnant, possibly with his child. He took the mother to the emergency room when she gave birth in March 2025. This child also tested positive for illicit substances at birth, and again, the mother left the hospital against medical advice. The department took emergency custody of the baby.

On April 30, 2025, the department received a 51A report alleging neglect of the father's two other minor children, who were seven and fifteen years old and primarily in their mother's care. A department worker went to the father's home, but the father initially refused entry, then failed to return telephone calls over the following days. The worker saw that the father's home was “filthy,” with dirt on the walls and floors, two broken windows, and minimal home furnishings. Throughout the apartment, the worker saw piles of clothing and other debris, including a metal measuring spoon and a piece of aluminum foil with burn marks on it.

In May 2025, the department successfully conducted two home visits with the father despite his rescheduling of visits, failure to respond to the department, and failure to be present at established times. During the first home visit, the department worker noted that the home smelled musty and like stale cigarette smoke with “[a] substance appearing to be tar” dripping down the kitchen walls. There were beer cans in the living room, and the furnishings were not adequate for an infant. The father asked the worker to return the next week. A return visit a few weeks later revealed some improvements, including a “Pack n’ Play” and car seat, although the home was still dirty.

The father has a history of cocaine and alcohol use and an extensive criminal record. In 2023, he dozed off while driving a car with his two young daughters inside, resulting in a car accident. He refused a drug screen after the incident. A subsequent restraining order then prevented him from having contact with his daughters for seven months. That same year, the father attacked his eighty year old uncle and hit him in the face. In 2024, the father pleaded guilty to possession with intent to distribute a class B substance and was placed on probation, which ended shortly after trial began. This conviction was the most recent on a long criminal record in both Massachusetts and New York, which dates to when his other children were minors.

During trial, the father failed to submit to multiple drug screens, including a toxicology screen on the first day of trial. When the department requested a drug screen in March 2025, the father did not comply; he offered to do so the next day, then did not. He then offered to be screened approximately four days after the original request. The judge did not credit any results from screens that were performed days after a request. The father also failed to submit to a drug screen in May 2025 and then tested positive for buprenorphine the next day; the judge did not credit the father's explanation for the positive result.

Discussion. “When reviewing a decision to terminate parental rights, we must determine whether the trial judge abused his discretion or committed a clear error of law.” Adoption of Elena, 446 Mass. 24, 30 (2006). “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). Clear and convincing evidence means that “[t]he requisite proof must be strong and positive; it must be ‘full, clear and decisive.’ ” Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997). “We give substantial deference to a judge's decision that termination of a parent's rights is in the best interest[s] 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, supra.

1. Parental unfitness. “Parental unfitness must be 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). “Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, 459 Mass. at 60. In finding the father unfit, the judge properly considered the father's history of substance use, criminal record, neglect of his other children, inability to provide safe and appropriate living arrangements, and inconsistent cooperation with the department.

As an initial matter, the judge did not credit the father's denial of alcohol or drug use, and this credibility determination was supported by the evidence and well within the judge's discretion. See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984). The record contained evidence of both drug and alcohol use. The father testified that he was a “recovering addict,” and he was on probation for drug-related charges until May 2025. The judge also, permissibly, did not credit the father's claim that he was unaware of the mother's history of substance use prior to their living together. The judge found that the father had willfully ignored or minimized the mother's substance use during their relationship, despite knowing that she lost custody of her two older children because of it.

A parent's criminal history, standing alone, does not establish unfitness. However, “evidence of prior convictions may properly be weighed in the balance [of parental fitness].” Care & Protection of Frank, 409 Mass. 492, 495 (1991). The judge properly considered the father's substantial criminal history that did not abate despite his having minor children. The father was also the subject of abuse prevention orders, requested by the mother of two of his children in 2019 and 2023.

In finding the father unfit, the judge properly considered the circumstances of the father's seven other children. The father had not had primary custody of any of them. Restraining orders prevented the father from seeing two of Declan's older sisters. The most recent restraining order was issued in 2023 after the father dozed off and drove off the road with his two minor children in the car. The judge drew a negative inference from the father's refusal to take a drug screen at the time of the accident.

The father maintained consistent biweekly visits with Declan and engaged in some services listed in his action plan. But “[e]ven where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary.” Adoption of Ilona, 459 Mass. at 59-60. The judge's “specific and detailed findings demonstrat[e] that close attention has been given to the evidence.” Adoption of Quentin, 424 Mass. 882, 886 (1997). Accordingly, the judge did not clearly err in finding that the father was unfit, and this determination was supported by clear and convincing evidence.

2. Reasonable efforts. At the core of the father's reasonable efforts argument is his assertion that the department did not afford him adequate time to provide evidence of his parenting capability and demonstrate his compliance with services. We are not persuaded. The father had reason to know of his parentage of Declan while the mother was still pregnant. Despite knowing that he could be Declan's father and giving the mother clothing for Declan beginning when he was two or three months old, the father did not engage with the department until January and February 2025, approximately one year after Declan's birth. The father knew and understood that Declan was in foster care during that period. Even after engaging with the department, the father's cooperation was inconsistent; he refused home visits and failed to provide a list of his prescription medications. The judge was “entitled to consider the evidence of [the father's] improvements within the context of [his] earlier and continuing deficits.” Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012). Ample evidence supported the judge's determination that the department met its obligations and “complied with its duty to make ‘reasonable efforts ․ to prevent or eliminate the need for removal [of the children] from the home.’ ” Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C. We discern no error in the judge's finding that the department made reasonable efforts toward reunification.

3. Due process. The father maintains that the department deprived him of his due process rights by failing to give reasonable notice of his parenting inadequacies or a meaningful opportunity to remediate those inadequacies prior to the termination of his parental rights. The father's argument is not supported by our case law. Instead, in this context, a parent receives the process to which they are entitled when that parent receives notice of termination proceedings and is afforded “an opportunity to be heard ‘at a meaningful time and in a meaningful manner’ ” (citation omitted). Adoption of Simone, 427 Mass. 34, 39 (1998). Each of these requirements was satisfied here. A “judge is not required to grant [a parent] an indefinite opportunity for reform.” Adoption of Cadence, 81 Mass. App. Ct. 162, 169 (2012). The department engaged with the father as soon as it learned that he could be Declan's biological father. In contrast, the father failed to take steps to establish his paternity until ten months after the child's birth. Given the “fleeting” nature of childhood and the well-supported findings of unfitness, and the clear and well-supported findings that termination was in Declan's best interests, we affirm. Adoption of Ilona, 459 Mass. at 60.

Decree affirmed.

FOOTNOTES

2.   The judge also terminated the mother's parental rights, and she did not appeal from that decree.