ADOPTION OF RYLEE v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On July 16, 2025, following a trial, a judge of the Juvenile Court found Rylee's father unfit, terminated his parental rights, and ordered no posttermination or postadoption visitation. On appeal, the father claims that the judge's findings do not prove the father's unfitness by clear and convincing evidence; the adoption plan of the Department of Children and Families (DCF) was not in Rylee's best interests; and the judge erred in not allowing for post-decree parent-child visits.

1. The father's unfitness. The father claims that the judge's factual findings do not prove his unfitness by clear and convincing evidence. Specifically, he claims that the judge improperly relied on the father's criminal history and status as a registered sex offender to find him unfit, and the adverse inference drawn for his refusal to testify at trial was overbroad. We disagree.

We review a finding of unfitness to determine whether the judge's findings proved parental unfitness by clear and convincing evidence. Custody of Eleanor, 414 Mass. 795, 802 (1993). Unfitness must not be temporary, Adoption of Arianne, 104 Mass. App. Ct. 716, 720 (2024), and it must be in the child's best interests to sever the parent's legal relationship with the child. See G. L. c. 210, § 3 (c). “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 Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Adoption of Mary, 414 Mass. 705, 711 (1993). Other relevant considerations are a parent's physical absence, including due to incarceration, see Adoption of Serge, 52 Mass. App. Ct. 1, 8 & n.6 (2001); criminal conduct, see Care & Protection of Frank, 409 Mass. 492, 494-495 (1991); and failure to participate in or comply with DCF's recommended services, see Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019). Also, “the privilege against self-incrimination applicable in criminal proceedings, which prevents the drawing of a negative inference from a defendant's failure to testify, is not applicable in a child custody case.” Adoption of Cecily, 83 Mass. App. Ct. 719, 727 (2013), quoting Care & Protection of Quinn, 54 Mass. App. Ct. 117, 121 (2002).

Here, the judge properly considered all the relevant circumstances -- including the father's incarceration for six of Rylee's eight years of life, the father's criminal history, his sex offender status, and his failure to comply with DCF's action plans. At trial, the judge warned the father that, if he refused to testify, the judge would impute an adverse inference to the father for any question that would have been asked of him and reiterated that the father could agree to testify and then assert his Fifth Amendment privilege on any question that could incriminate him. The father still refused to testify, but he did not object to the procedure used. Accordingly, the judge properly imputed an adverse inference to the father for his refusal to testify, and the father has waived any challenge to the procedure used. See Adoption of Mary, 414 Mass. 705, 712 (1993) (“Generally, issues not raised by a losing party in the trial court are not addressed on appeal”). As the judge was in the best position to weigh the evidence and assess witness credibility, we do not disturb the finding of unfitness. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

2. The adoption plan. The father also claims that the adoption plan placing Rylee with her maternal grandparents was not in her best interests because he believes they did not respond appropriately to sexual assaults in the home that occurred between 1999 and 2004.²

We review a judge's decision that an adoption plan is in a child's best interest for an abuse of discretion. Adoption of Xarissa, 99 Mass. App. Ct. 610, 620 (2021). Here, the plan approved of Rylee's adoption by her maternal grandparents, with whom she had lived since September 2022. While the father would give less credit to the grandmother's testimony and DCF's investigation and finding that the home was safe for Rylee, there is ample evidence in the record to support the judge's findings.³ These arguments “amount to no more than dissatisfaction with the judge's weighing of the evidence and credibility determinations,” and thus we do not disturb them. Adoption of Quentin, 424 Mass. at 886 n.3.

3. Post-decree parent-child visits. Finally, the father argues that the lower court erred in failing to order post-decree parent-child visits. However, the father did not raise the issue prior to the termination of his parental rights and thus, in that posture, it is waived. See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). Nevertheless, the father's argument would also fail on the merits.

We review visitation decisions for an abuse of discretion. Adoption of Xarissa, 99 Mass. App. Ct. at 623-624. This requires the answer to two questions: “First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?” Id. at 624, quoting Adoption of Ilona, 459 Mass. 53, 66 (2011). The father's argument fails on the first question. Rylee did not meet the father until after she had been placed in her grandparents’ care, and she only had a few visits with the father. Also, she refused to attend multiple scheduled visits due to his age-inappropriate behavior and elected to end others visits early. Given this record, it was not an abuse of discretion for the judge to decide that ordering post-decree visitation was not in Rylee's best interests.

Decree affirmed.

FOOTNOTES

2.   The father's claims mainly consist of a recitation of facts with no legal analysis, which do not rise to the level of an appellate argument. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993); Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). In any event, these claims lack merit.

3.   For example, a DCF social worker testified that after the mother reported to the grandmother that she was sexually assaulted, the grandmother brought the mother to the police for an interview, then the perpetrator was charged with a crime and never allowed in the home again. After the mother reported a second sexual assault by a different perpetrator, DCF investigated and found no support for allegations of abuse or neglect by the grandparents. No other reports pursuant to G. L. c. 119, § 51A, were filed against the grandparents.