ADOPTION OF EVREN v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge found the mother unfit and terminated her parental rights to three of her children, Evren, Charles, and Mateo. The judge also found the father of Mateo unfit and terminated his parental rights as to Mateo.² The judge ordered posttermination and postadoption visitation for the mother but not for the father. The mother and the father appeal, advancing several arguments we address below. We affirm.

Background. Evren was born in 2012, Charles born in 2018, and Mateo was born in 2019. In March 2021, police responded to a report of a disturbance at the mother's apartment, where she lived with the children. The officers found the apartment in a state of disrepair and the odor of alcohol on the mother's breath. Unable to answer the police officers’ questions, the mother was transported to a hospital. Following this incident, the mother signed a safety plan providing she would not drink alcohol while caring for the children. The Department of Children and Families (department) identified concerns about the children's medical and developmental conditions. The department made numerous referrals and recommendations for services for the mother and her children, including day care and individual counseling, most of which the mother declined.

On August 5, 2022, the police responded to the mother's home for a report of domestic violence. After forcing open the door, officers found the home in “shambles” and the children showing signs of neglect. Continuously screaming and assaultive to the officers, the mother was transported to a hospital where she was placed in mechanical and chemical restraints. A test showed her blood alcohol level to be 0.294. On August 9, 2022, the department filed a petition in the Juvenile Court pursuant to G. L. c. 119, § 24, alleging that the mother's children were in need of care and protection, and the children entered the care of the department.³

The department facilitated supervised visitation with the mother and the children, and with the father and Mateo. The mother always confirmed visits, but was frequently late to them. The father's participation in department-facilitated visitation with Mateo was inconsistent. The department created action plans for both parents. The father refused to engage in his action plan. Although the mother engaged more substantively in her action plan as of the time of trial, the department continued to have numerous concerns about her fitness to parent.

Evren was placed in a preadoptive home in September 2022, and Charles and Mateo were placed in a preadoptive home in July 2024. All three children are medically up to date and receiving services to meet their developmental needs in their placements.

In June 2023, the department changed the goals for Evren, Charles, and Mateo from reunification with the mother to adoption. The following month, the department filed notice of intent to seek entry of decrees dispensing with the need for parental consent to adoption of these three children, pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3. On September 28, 2023, the court entered a written order finding the mother's children in need of care and protection, finding both the mother and the father unfit, and awarding permanent custody of the children to the department.

The termination trial took place on four dates between November 19, 2024, and February 26, 2025. The father was present only on the final date, and the judge drew an adverse inference from his failure to appear on the first three dates. In her written findings of fact and conclusions of law, the judge found both parents to be unfit and that the best interests of the three children would be served by the termination of parental rights. The court ordered post-decree visitation for all three children with the mother, but not for the father with Mateo. Both parents appealed.

Discussion. “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 so, “whether the child's best interests will be served by terminating the legal relation between parent and child.” Adoption of Patty, 489 Mass. 630, 637 (2022), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). See Adoption of Arianne, 104 Mass. App. Ct. 716, 720 (2024). “A finding of unfitness must be supported by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence.” Adoption of Patty, supra, citing Adoption of Elena, 446 Mass. 24, 30-31 (2006). “Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the children.” Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018). Instead, “[t]he 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.’ ” Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998). “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, supra.

1. The mother's unfitness. The judge did not err in determining that there was clear and convincing evidence of the mother's continued unfitness. The mother stipulated to her current unfitness to assume custody of her children at the adjudication trial in September 2023. Serious concerns as to the mother's fitness remained during the termination trial. The mother was unable to address both the basic and specialized needs of the three children because of her history of domestic violence, alcohol use, and other challenges. Before the department intervened, the children's medical, dental, and developmental needs were not being met. Evren was not enrolled in school until the age of seven, and the other children needed speech and occupational therapy. When the police arrived at the home in August 2022, they found food and human waste on the floors and beds, and one child wore a soiled diaper that appeared not to have been changed in days. The mother failed to appreciate how her challenges affected the well-being of her children while they were in her custody.

We agree with the mother, and the department concedes, that no evidence supports the judge's finding that “[m]other was previously diagnosed with schizoaffective disorder, alcohol use disorder and mood disorder and has a history of being prescribed antipsychotic medication.” Nevertheless, we conclude that this error is harmless given the overwhelming support in the record for the finding of the mother's unfitness. See Adoption of Peggy, 436 Mass. 690, 702 (2002). The judge's finding that the mother experienced symptoms of mental health conditions at the time of trial was amply supported by the undisputed reports of the mother's problematic alcohol use, her involuntary hospitalizations, and her 2024 psychiatric evaluation that found she had major depressive disorder and unspecified anxiety disorder. Furthermore, although a social worker testified that housing was the only concern of the department by the time of trial and that the mother did not currently show signs of any mental health issues, the judge did not credit this aspect of the social worker's testimony. See Custody of Eleanor, 414 Mass. 795, 799 (1993) (“[T]he judge's assessment of ․ the credibility of the witnesses is entitled to deference”). The judge did credit the social worker's statements, provided to the court investigator the month before trial, that enumerated ten ongoing concerns of the department as to the mother's fitness. “As the trier of fact, [the judge] was in the best position to evaluate all the evidence, contradictory at times.” Adoption of Hugo, 428 Mass. 219, 229 (1998), cert. denied sub nom., Hugo P. v. George P., 526 U.S. 1034 (1999).

The evidence in the record also shows that the mother had not acknowledged the severity of her history of alcohol use, mental illness, and domestic violence. Testifying at trial, she maintained that her relationship with alcohol was not “excessive” during the time she had custody of her children and that any alcohol related incidents were “isolated.” She did not engage in all parts of her action plan, including a healthy relationships course; and, although she eventually enrolled in therapy, she described the sessions as “repetitive,” and her social worker reported that they did not address the department's concerns about her mental health and alcohol issues. Furthermore, the mother continued to participate in relationships and living arrangements that created a risk of exposure to domestic violence for the children.

The judge properly weighed these findings in concluding that there was clear and convincing evidence of continued unfitness. Specifically, the judge's decision not to credit the mother's testimony as to her sobriety since removal, and instead to rely on the mother's history of problematic alcohol use and the contemporaneous neglect of her children's welfare, was well within her discretion as the trier of fact. See Adoption of Jacques, 82 Mass. App. Ct. 601, 607-608 (2012) (prognostic value of history of unfitness may outweigh evidence of recent gains).

2. The father's unfitness. Nor did the judge err in finding clear and convincing evidence of the continued unfitness of the father of Mateo. Like the mother, the father stipulated at the adjudication trial to his current unfitness to assume custody of his child. Significant concerns regarding his fitness to parent Mateo remained. The father had a history of perpetrating domestic violence against the mother when the children were present in the home, as well as an extensive criminal history. His continued unfitness was also demonstrated by his failure to cooperate with the department. See Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) (“[parent's] lack of meaningful participation in recommended services was also relevant to the question of her fitness”). He refused to engage in his action plan since the beginning of 2024. He also refused to cooperate with the Interstate Compact on the Placement of Children process that would have allowed Mateo to live with him in Rhode Island. Finally, the father only sporadically attended department-facilitated visits with the child.

The father's reliance on Adoption of Rhona, 57 Mass. App. Ct. 479 (2003), S.C., 63 Mass. App. Ct. 117 (2005), is unavailing. In that case, we wrote that “[t]he passage of four years is too long a period to rely on the predictive value of past behavior without verification -- especially when evidence contradicting the prediction is readily available.” Id. at 486. Here, the father's record of criminal conduct continued from 1994 until the time of trial. In her conclusions of law, the judge focused on his charges from the last ten years, which included being arrested for physically assaulting the mother and his two previous girlfriends and threatening to kill his former neighbor. The father faced five drug charges in District Court as of August 2023. Unlike in Rhona, this evidence was not stale but rather supported the conclusion that the father's pattern of violent and volatile behavior bore negatively on his future parental fitness.

The judge did not abuse her discretion in drawing an adverse inference from the father's failure to appear at three termination trial dates. Such an inference was “fair and reasonable based on all the circumstances and evidence before” the judge. Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014). Neither the father nor his attorney offered an explanation for the father's absences, and the father had not visited his son in the six months before the trial began. We also note that, because the inference was not mentioned in the judge's conclusions of law, it is unlikely that it played a significant role, if any, in the judge's fitness determination. See Adoption of Cecily, 83 Mass. App. Ct. 719, 727 (2013).

3. Termination. Once parental unfitness is determined, the next question is whether the termination of parental rights is in the child's best interest. Adoption of Hugo, 428 Mass. at 225. This determination must also be supported by clear and convincing evidence. Adoption of Zak, 87 Mass. App. Ct. 540, 542 (2015), S.C., 90 Mass. App. Ct. 840 (2017). In this inquiry, a “court shall consider the ability, capacity, fitness and readiness of the child's parents ․, and shall also consider the plan proposed by the department or other agency initiating the petition.” G. L. c. 210, § 3 (c).

Here, the judge did not err in concluding that termination as to both parents was supported by clear and convincing evidence. This conclusion is supported by the parents’ demonstrated unfitness to meet their children's needs, discussed supra, and the children's successes in their preadoptive families. The department also made reasonable efforts to reunite the children with their natural parents before resorting to termination. See Adoption of Ilona, 459 Mass. at 60. It offered both parents services to improve their fitness to parent and promoted visitation between them and their children.

We are unpersuaded by the father's contention that the department failed to make reasonable efforts to facilitate his visitation with Mateo. The department negotiated with the father on a workable visitation plan. In response to the father's concerns that he could not make 4 P.M. in-person visits because he worked until that time in Rhode Island, the Department provided the option of virtual visits from 4:30 to 5 P.M. on Fridays. The father was inconsistent in confirming and attending these visits. After the department told the father that it would consider allowing weekend visits closer to the father's home if he consistently attended his visits, the father did not confirm his subsequent three visits in February and March of 2024, and the visits were cancelled.

4. Post-decree visitation. Lastly, the judge did not abuse her discretion by ordering post-decree visitation for the mother but not the father. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001) (“[T]he decision whether to grant postadoption visits must be left to the sound discretion of the trial judge”). Because there is no indication in the record that the father requested such a visitation order in the Juvenile Court, his argument is waived. Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). Even if we were to consider the argument, we would conclude that the judge's decision was “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.” Adoption of Virgil, 93 Mass. App. Ct. 298, 307 (2018), quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 839 (2003). As discussed, the father's attendance at his scheduled visits in 2023 and 2024 was inconsistent and, as of the date of trial, he had not visited Mateo since June 2024 despite department social workers reaching out to him at least every month. Given the father's history of sporadic attendance, an order requiring posttermination or postadoption visitation could be more destabilizing than reassuring for Mateo. Cf. Adoption of Ilona, 459 Mass. at 64 (noting orders of visitation normally “provide assurance that the child will be able to maintain contact with a biological parent”). The judge's decision not 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.

Decrees affirmed.

FOOTNOTES

2.   We will refer to the father of Mateo as “the father” because neither the father of Charles, nor any putative father of Evren, participated in the trial or appealed from the decree terminating his parental rights.

3.   The petition also named the mother's oldest child, who was not included in the trial here because the department did not seek termination as to him.