Adoption of Dallas. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1012
ADOPTION OF DALLAS. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from a Juvenile Court decree terminating
his parental rights and from an order denying his motion for a
new trial. He argues that it was a violation of due process for
the judge to hold the trial while his complaint to establish
paternity was pending, that the evidence did not support
terminating his parental rights, and that the Department of
Children and Families (department) did not make reasonable
efforts to reunify him with the child. We affirm.
Background. The child was born in February 2012. There is
no father identified on the child's birth certificate.
In March 2020 the department removed the child from his
mother's care and filed a petition alleging that he was in need
1 A pseudonym.
of care and protection. At the time of the removal, the
department was unaware of the father's whereabouts but
eventually located him at Bridgewater State Correctional
Facility. In August 2020 the department amended its petition to
add the father as the child's putative father, and counsel was
appointed for him. The father remained incarcerated during the
pendency of the proceedings.
The mother died in May 2021. Thereafter, the department
prepared three family action plans for the father, covering the
period of July 2021 to April 2023. The father did not complete
any of the action plan tasks and reported that he had not
"looked into" any services that might be available to him in
prison. The father also had no visits or contact with the
child, at least in part because prison policy did not allow
putative fathers to have visits. In August 2021 the department
gave notice of its intent to terminate the father's parental
rights.
In April 2022 the father filed a complaint to establish
paternity and a motion for genetic marker testing. The judge
allowed the motion in May 2022, but the testing was not
completed by the scheduled trial date of January 3, 2023. On
that date the father's counsel informed the judge that the
Department of Revenue had not "cooperated with the court's order
to give [the father] a paternity test" and suggested that this
2
might raise some "due process issues." 2 In response the judge
noted that "the court does have authority to terminate putative
parents' rights, especially . . . when it is in the best
interest of the child." The judge then proceeded to hear the
evidence.
Three witnesses testified at trial -- the ongoing social
worker, the adoption social worker, and the father -- and twelve
exhibits were admitted in evidence. The judge then issued a
decision finding that the father was currently unfit and that
the department's plan of adoption by a maternal relative would
serve the child's best interests. The judge specifically stated
in her decision that it would not be in the child's "best
interest to wait for [the father's] paternity to be effectuated"
because that would "simply delay[] [the child's] right to
permanency."
On January 18, 2023, two weeks after the judge issued her
decision, the Department of Revenue completed the genetic marker
testing, and the father was determined to be the child's
biological father. This prompted the father to move for a new
trial, arguing that his due process rights were violated because
the department had withheld services and visitation rights from
2 The record shows that, for some period of time during the
COVID-19 pandemic, the Department of Revenue was not entering
correctional facilities to administer paternity tests.
3
him because he had not established paternity. The judge denied
the motion but reopened the evidence to include the adjudication
of paternity. A new decree entered accordingly, from which the
father now appeals.
Discussion. 1. Due process. The father's principal
argument on appeal is that under Adoption of Arlene, 101 Mass.
App. Ct. 326 (2022), the judge erred by holding the trial while
his complaint to establish paternity was still pending. The
father relies in particular on the following statement from
Adoption of Arlene: "where putative father's 'paternity remains
in dispute[,] before anything else takes place, the parties and
the trial court must resolve that question.'" Id. at 336,
quoting Matter of M.N.M., 605 A.2d 921, 930 (D.C.), cert.
denied, 506 U.S. 1014 (1992). Based on this statement, the
father argues that it was a violation of due process for the
judge to terminate his parental rights before adjudicating his
paternity.
"Before parents can be deprived of custody of their child,
. . . the requirements of due process must be satisfied."
Adoption of Arlene, 101 Mass. App. Ct. at 333, quoting Adoption
of Patty, 489 Mass. 630, 638 (2022). "[D]ue process requires
that there be notice and an opportunity to be heard 'at a
meaningful time and in a meaningful manner.'" Adoption of
Arlene, supra at 335, quoting Adoption of Hugh, 35 Mass. App.
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Ct. 346, 347 (1993). The father was afforded all of these
rights. Once the department was able to locate him, he was
given notice and appointed counsel. He then had the opportunity
to participate in the proceedings, including by testifying at
trial through video conferencing.
Nonetheless, the father contends that the requirements of
due process were not satisfied because he was denied visitation
as a result of his paternity not being legally established.
According to the father, the denial of visitation deprived him
of a meaningful opportunity to be heard because it precluded him
from offering rebuttal evidence; he argues that the case should
thus be remanded and stayed to allow him time "to gather
positive evidence of his parenting skills through visitation."
We are unpersuaded. As an initial matter, we note that some of
the delay in establishing paternity could be attributed to the
father, as he did not file his complaint to establish paternity
until April 2022, approximately nineteen months after he was
given notice of these proceedings. But even putting this aside,
the father cites no authority, and we are aware of none,
supporting the proposition that due process requires a judge to
delay a termination trial to give a parent the chance to develop
favorable evidence. To the contrary, it is well settled that
the child's best interests are paramount in these cases, and the
child should not be made to wait indefinitely in the hopes that
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the parent might become fit. 3 See Adoption of Nancy, 443 Mass.
512, 517 (2005).
Adoption of Arlene does not hold to the contrary. At issue
there was whether a putative father was entitled to notice of a
petition for adoption filed in the Probate and Family Court by
the child's mother and stepfather. See Adoption of Arlene, 101
Mass. App. Ct. at 327. We concluded that the putative father
should have received notice, and the lack thereof deprived him
of due process, because he had a significant existing
relationship with the child and promptly took steps to establish
his paternity. See id. at 335. We then discussed the remedy
for the due process violation. It was in this context that we
said that the question of paternity should be resolved first
because the putative father's right to participate in the
adoption proceeding was contingent on that question. See id. at
336. In other words, as a matter of procedural expediency, it
would have been premature to disturb the adoption decree until
the putative father's paternity was legally established. We did
not hold, and nothing in our opinion suggests, that a putative
As discussed further below, the evidence of the father's
3
unfitness was clear and convincing. There is no likelihood that
visitation would have changed the result, and so the father's
due process challenge fails for this additional reason. See
Adoption of Don, 435 Mass. 158, 170 (2001) (showing of prejudice
required to obtain reversal on due process grounds).
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father has a due process right to have his paternity adjudicated
before any trial to determine a child's custody takes place.
Here, unlike in Adoption of Arlene, the father received
notice of the proceedings, was appointed counsel, and had a
meaningful opportunity to be heard. Due process did not require
more. 4 The judge thus did not err by going forward with the
trial despite the pending paternity complaint, or by denying the
father's motion for a new trial.
2. Termination of parental rights. "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). "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
4At oral argument the father suggested that the actions of
the various governmental actors in this case amounted to a
substantive due process violation. But the father's brief
cannot fairly be read to be raising a claim under substantive
due process, and so the issue is waived. See Board of
Registration in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010).
Moreover, to establish a substantive due process violation, the
father must show that the governmental conduct at issue was "so
egregious as to shock the conscience." Pagan v. Calderon, 448
F.3d 16, 32 (1st Cir. 2006). The record does not reveal any
conduct that plausibly rises to this level.
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erroneous or where there is a clear error of law or abuse of
discretion." Id.The uncontested evidence here clearly and convincingly
supports the judge's conclusion that the father is unfit. As
the judge found, the father "has not been a part of [the
child's] life for many years." The judge did not credit the
father's testimony that he was meaningfully involved with the
child prior to being incarcerated. The child, who was ten years
old at the time of trial, has never lived with the father and
has expressed no interest in having contact with him. In
addition the father has an extensive criminal record and at the
time of trial was serving consecutive prison sentences -- the
longest being fourteen to seventeen years -- for offenses he
committed in 2013 and 2014. These offenses included possession
of a sawed-off shotgun, possession of a firearm during
commission of a felony, and possession of heroin with intent to
distribute. The father was also being treated in prison for
mental illness and, within the months leading up to trial, was
placed both on psychiatric hold and in solitary confinement. 5 He
5 The father challenges as clearly erroneous the judge's
finding that the father was in solitary confinement at the time
of trial. He correctly notes that his testimony was that he had
been in solitary confinement once within the four months leading
up to trial. But this minor error is immaterial to the judge's
ultimate conclusion of unfitness. See Care and Protection of
Olga, 57 Mass. App. Ct. 821, 825 (2003).
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did not look into any services that might be available to him in
prison and had no knowledge of the child's significant
behavioral and emotional needs. These facts clearly and
convincingly show that the father is unfit. See Adoption of
Nicole, 40 Mass. App. Ct. 259, 261 (1996) (father's unfitness
established by evidence that he was serving lengthy prison
sentence and had no established relationship with child or
realistic plan to provide for her needs).
Furthermore, the judge was within her discretion to
conclude that the father's unfitness was not temporary and that
terminating his parental rights would serve the child's best
interests. Contrary to the father's argument, the judge did not
base that decision solely on the fact of his incarceration.
Rather, the judge considered that the father had no existing
relationship with the child and that there was no realistic
chance that the child could be placed in his care, given that
the father was not eligible for parole for another three years
and proposed no suitable alternative caretakers. In these
circumstances the judge properly concluded that it would be in
the child's "best interest to be adopted and achieve permanency
at this critical stage in his development, rather than wait for
an indeterminate time to be reunified with an incarcerated
parent." See Adoption of Nicole, 40 Mass. App. Ct. at 261-262(judge warranted in finding that incarcerated father was not
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likely to be stable presence in child's life if paroled in two
years, and that termination of his rights would therefore be in
child's best interests).
To the extent the father argues that the judge should have
ordered posttermination and postadoption visits, that issue is
waived as it is not supported with adequate discussion or
citation to authority. See Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1628 (2019). In any event the judge's
conclusion that visits would not be in the child's best
interests is supported by the evidence, including the
uncontested evidence that the child has no relationship with the
father and has expressed no interest in contacting him. See
Adoption of Saul, 60 Mass. App. Ct. 546, 556-557 (2004).
3. Reasonable efforts. We construe the father's
reasonable efforts argument to be that the department generally
did not do enough to assess his parenting capabilities or to
explore the resources that might be available to him in prison.
This argument is waived, however, because the father did not
raise a claim of inadequate services in a timely manner to the
judge or to the department. See Adoption of Daisy, 77 Mass.
App. Ct. 768, 781 (2010). And even putting aside the waiver,
the father has not shown error in the judge's findings that the
father "was either unwilling or unable to engage in any
available classes while incarcerated" and that the department
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was not obligated to "proactively seek classes or make referrals
within the prison system . . . under these particular
circumstances." See id. at 782, quoting Adoption of Serge, 52
Mass. App. Ct. 1, 9 (2001) (department's obligation to make
reasonable efforts "contingent upon [parent's] own obligation to
fulfill various parental responsibilities, including seeking and
utilizing appropriate services"). Finally, even assuming that
the department did not fulfill its obligations, remand or
reversal would not be the appropriate remedy; "the proper focus
of termination proceedings is the welfare of the child."
Adoption of Daisy, supra, quoting Adoption of Gregory, 434 Mass.
117, 121 (2001). As discussed above, the judge properly
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determined that the child's best interests would be served by
terminating the father's parental rights.
Decree affirmed.
Order denying motion for new
trial affirmed.
By the Court (Shin, Grant &
Smyth, JJ. 6),
Clerk
Entered: August 7, 2024.
6 The panelists are listed in order of seniority.
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