ADOPTION OF FINN v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued a decree finding the father unfit to parent his son, Finn, terminated his parental rights, and approved of the adoption plan proposed by the Department of Children and Families (department).² On appeal, the father argues that the certain of the judge's findings were erroneous and delays in the proceedings violated his due process rights, prejudicing him. We affirm.

1. Background. We summarize the facts as found by the judge, who issued comprehensive, detailed findings of facts and conclusions of law.³

a. Relevant procedural history. In July 2018, the department filed a care and protection petition on behalf of Finn, who was only days old, and was granted emergency custody.⁴ Thereafter, the mother and the father waived their rights to a seventy-two hour hearing, and the department maintained temporary custody. After three weeks in foster care, Finn moved to his current foster home where he has remained ever since.

In August 2019, counsel for the mother and the father filed motions to withdraw and for the appointment of successor counsel. The judge allowed the motions and gave subsequent counsel additional time to prepare. Due to the COVID-19 pandemic, the father's adjudication trial was delayed and held over five consecutive days in April 2021. Thereafter, the judge issued summary findings and orders adjudicating Finn in need of care and protection and committing him to the department's custody. Although she found the father unfit, the judge did not terminate his parental rights, concluding that the department had not met its burden to show that termination served Finn's best interests.

A review and redetermination (R&R) trial was held over ten nonconsecutive days beginning in September 2022 and concluding in August 2023. After the evidence closed, the judge scheduled a status hearing with all counsel in September 2023, to review and clarify the trial exhibits. In October 2023, the judge issued a clarification order as to what exhibits were admitted at each of the two trials. The judge issued a superseding clarification order in September 2024. In February 2024, the department filed a motion for a speedy trial decision, which the judge allowed.

On October 10, 2024, the judge issued findings of fact and conclusions of law; she found the father unfit, terminated his parental rights, found Finn to be in need of care and protection, approved the department's plan, and issued orders for posttermination and postadoption visitation. This appeal followed.

b. The father. The father has a history of unstable housing, has struggled with his mental health, and failed to comply with and benefit from services. Throughout the case, the department provided the father with several action plans designed to address his parental deficiencies.⁵ The father completed an eight week anger management course, a parenting course, and a nurturing father's program although it took over three years for him to engage in the services. In November 2022, he also completed a forty week intimate partner violence prevention program; however, the judge found that he initially denied the need to participate in it and ultimately did not benefit from it. The father's participation in therapy was also inconsistent. Although the judge acknowledged that the father had “come a long way” and had engaged in some treatment, the judge found that the father struggles to recognize issues that cause him to be distressed and resists the services intended to resolve those issues.

Beginning in April 2022, the father had his own weekly supervised visitation with Finn, in addition to his joint weekly visitation with the mother. Although Finn had a strong bond with the father, during visits, the father struggled to understand Finn's age and developmentally appropriate abilities and emotional needs.

c. The child. The child has medical and developmental challenges including diagnoses of asthma, eczema, and a gastrointestinal condition that requires a restricted diet, has resulted in repeat hospitalizations, and can be life threatening. Although the father was able to abide by Finn's dietary restrictions when he received guidance and specific instruction, he lacked the judgment to make safe decisions on his own. Finn also has been diagnosed with developmental delays.

Following the care and protection trial in 2021, on the judge's order, the child hired an expert to evaluate Finn's bond with his father and the foster family “and the potential negative impact of a transition from his current placement to any placement with [the father].” The expert conducted a comparative placement assessment of the father and the foster family, evaluating attachment, bond, development, and the capacity to understand grief related to the child's transition to permanence. The judge found that the father “does not understand [Finn]’s developmental abilities ․ and does not recognize [Finn's] emotional needs.” While the father believed he could manage the grief and loss that Finn would experience during a transition from the foster family to his care, he did not believe that grief would continue after reunification. The judge found that the father lacked an understanding of how Finn's grief could persist. She also found that the father lacked the judgment and ability to accept advice from others and had not “shown interest in child development sufficient to meet [Finn]’s special needs.”

By contrast, the judge found that Finn has thrived in his current placement, and the foster parents have demonstrated their ability to address and care for all of Finn's needs. Finn is attached and bonded to his foster family. They provide him with stability and structure; they understand and meet his daily needs.

2. Discussion. a. Termination of parental rights. i. Unfitness. “To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). On appeal, “[w]e give substantial deference to the judge's findings of fact and decision, and will 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 Luc, supra, quoting Adoption of Ilona, supra. The judge “must also find that the current parental unfitness is not a temporary condition.” Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018).

The father contends that the findings do not establish that he was unfit by clear and convincing evidence because the judge made “multiple clearly erroneous findings.” On the contrary, the record demonstrates that the judge considered a “constellation of factors” that showed the father's unfitness and made appropriate findings, none of which were clearly erroneous. Adoption of Greta, 431 Mass. 577, 588 (2000). Specifically, the father claims that the judge's findings that he did not understand Finn's medical and developmental needs were clearly erroneous. This is belied by the record. The judge found that the father struggled to provide Finn with the extensive services that he requires and that the father misunderstood the severity of Finn's medical conditions. See Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012) (unfitness supported by “limited understanding” of child's medical diagnoses). Moreover, the record amply supports the judge's conclusion that the father's inability to prioritize the child's developmental, emotional, and medical needs continued to make him unfit and there was no other intervention to alleviate the protective concerns. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800 (1983).

The father also argues that the judge failed to acknowledge that the father recognized that Finn had a bond with his foster family and separation would be difficult. However, the judge did not credit the father's assertion that he would follow the department's recommendations regarding reunification. This was a credibility determination within the province of the trial judge, and we will not disturb it. See Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011). And while the father may have recognized that the transition would be difficult, that alone was insufficient. See Custody of Two Minors, 396 Mass. 610, 620 (1986) (“good intentions are not alone sufficient indicia of ability adequately to care for children”).

The father next claims that the finding that he resisted services was erroneous, as the judge found that he participated in services and made substantial efforts to achieve parental fitness. These findings, when read in context, are not in conflict or clearly erroneous. Even where a parent has participated in programs and services and demonstrated some improvement, “mere participation in the services does not render a parent fit ‘without evidence of appreciable improvement in [their] ability to meet the needs of the child ․’ ”; nor is the judge required to conclude otherwise. Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003). See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (parent's failure to benefit from services is “relevant to the determination of unfitness”). Here, the judge noted that the father's own expert “observed [the] [f]ather to be resistant to mental health treatment and assigned tasks.” The judge also found that the father did not follow his expert's recommendation to engage with an experienced long-term therapist or the department's recommendation that he increase his participation in individual therapy with a qualified therapist. These findings, among others, support the judge's determination that the “[f]ather resists provider recommendations and will continue to do things his own way.”

The father further argues that the judge failed to make findings that would have been favorable to the father and ignored positive evidence about his engagement in various services. These arguments “amount to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations,” and thus we do not disturb them. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

ii. Best interests. Once a parent is found to be unfit, the judge must then determine whether it is in the best interests of the child to end all legal relations between the child and the parent, taking into consideration “the ability, capacity, fitness and readiness of the child's parents.” Adoption of Nancy, 443 Mass. 512, 515-516 (2005), quoting G. L. c. 210, § 3 (c). The “best interests of the child” standard requires the judge to make a discretionary decision based on her experience and judgment, and her decision will not be overturned unless it amounts to an abuse of discretion or a clear error of law. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom., Hugo P. v. George P., 526 U.S. 1034 (1999). The judge must also consider the department's proposed adoption plan. See Adoption of Dora, 52 Mass. App. Ct. 472, 474 (2001).

Here, the judge was within her discretion to conclude that termination of the father's parental rights and adoption by the foster parents would be in Finn's best interests. See Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). The judge found that the father would not be able to provide proper care for Finn within a reasonable time; that he does not have the capacity to meet Finn's medical, developmental, and emotional needs upon removal from his foster parents; that Finn is strongly bonded to his foster parents and would suffer serious psychological harm if he is removed from their home; and that the father does not have the capacity to help Finn manage that transition. These findings support the judge's decision to terminate the father's parental rights.

b. Delay in proceedings. The father argues that the delays in the proceedings prejudiced him and resulted in a denial of his due process rights.⁶ He asserts that the judge failed to comply with Juvenile Court Standing Order 2-18, § III(C) (2018), governing time standards (standing order). The standing order provides that in termination of parental rights proceedings, the decision and written findings are to be issued within ninety days of the close of evidence. The standing order introduction states that “[t]he purpose of the time standards is to provide guidance for application in the great majority of cases; it being understood that, as a matter of discretion in specific situations, a judge may extend time periods and vary requirements in the interest of justice.”

While the delays here are unfortunate, there were a number of factors that contributed to them including a change in counsel and the COVID-19 pandemic. And while an “extraordinary and prejudicial delay in custody proceedings, not attributable to the parents, in some circumstances could rise to the level of a violation of due process” (citation omitted), Adoption of Don, 435 Mass. 158, 170 (2001), this is not such a case. The father has not shown that the delays prejudiced him or that “the outcome of this case would have been different had the proceedings occurred more expeditiously.” Id. See Adoption of Yvonne, 99 Mass. App. Ct. 574, 585 (2021).

The father also argues that the passage of time “may” have led the judge to terminate his rights based on “flawed memory of testimony and witness demeanor.” We are not persuaded as “[t]his delay was not so prolonged as to strain the outer limits of any judge's ability to remember witness demeanor and credibility.” Adoption of Luc, 94 Mass. App. Ct. 565, 571 (2018), S.C., 484 Mass. 139 (2020), citing Adoption of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117 (2005).⁷

The father's contention that the judge relied on stale evidence also fails. It was proper for the judge to consider the evidence from both trials, as it would be “inefficient ․ to reestablish by proof facts already once established and not since altered.” Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). Moreover, the judge's finding of unfitness was based on the father's ongoing parental deficiencies, which persisted as of the close of evidence in August 2023.

Relying on Adoption of Rhona, 57 Mass. App. Ct. at 490, the father argues that he was “substantially prejudiced” by the delay because the child's bond with the foster parents deepened, while his own bond “necessarily diminished” thereby increasing the likelihood that the judge would find the father unfit. However, in that case, the parents were deprived entirely of visitation during the two year delay before the entry of findings. Id. The bond between the parents and the child was allowed to “continue to deteriorate during a pivotal period in the judicial proceedings” as the parents had no visitation with the child. Id. Here, the father's bond with Finn continued and did not “deteriorate” as he had supervised visitation with Finn throughout the case.

Finally, the bond between the child and the foster family does not unfairly weigh against the father. The bond was only one consideration for the judge. See Adoption of Hugo, 428 Mass. at 230 (no presumption in favor of adoption by foster family exists based solely on evidence of bonding); Adoption of Nicole, 40 Mass. App. Ct. 259, 262-263 (1996) (“Although the bonding of a child with foster ․ parents is not a dispositive consideration, it is a factor that has weight in the ultimate balance”).

Decree affirmed.

FOOTNOTES

2.   The mother is not a party to this appeal.

3.   The judge issued 333 findings of fact and twenty-five conclusions of law.

4.   The department filed the petition due to concerns of Finn's prenatal exposure to marijuana, the mother's inconsistent prenatal care, and domestic violence in the mother's and the father's relationship.

5.   The action plan tasks included completing an anger management course and parenting class, a psychological evaluation, engaging in individual therapy, completing a batterer's program, and completing a nurturing father's program. In addition, the father was to attend all visits with Finn, Finn's medical appointments, and monthly visits with the department worker.

6.   We note that many aspects of the father's due process argument are raised for the first time on appeal and are therefore waived. See Adoption of Mary, 414 Mass. 705, 712 (1993). And any challenge to the delay in holding the adjudication trial is now moot as it was subsumed into the subsequent R&R trial. See Adoption of Donald, 44 Mass. App. Ct. 857, 860 (1998), S.C., 49 Mass. App. Ct. 908 (2000) and 52 Mass. App. Ct. 901 (2001).

7.   Although the Supreme Judicial Court's subsequent decision superseded our decision in Adoption of Luc, supra, that court did not disturb our conclusion about the delay. See Adoption of Luc, 484 Mass. at 144 n.13.