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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 24-P-1416main content

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ADOPTION OF HAZIM (and a companion case).
1/12/2026
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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
24-P-1416
ADOPTION OF HAZIM (and a companion case ).
1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal relates to the welfare of two children we refer
to as Hazim and Hannah. On June 25, 2024, a judge of the
Juvenile Court found the father unfit to assume parental
responsibility and terminated his parental rights. The father
appeals,
2
arguing that (1) the evidence does not support the
judge's conclusions that the father was unfit to assume parental
responsibility and that his unfitness was likely to continue
indefinitely to a near certitude, (2) the judge improperly
introduced hearsay statements at trial and improperly relied on
those statements in his findings, and (3) the Department of
Children and Families (department) failed to provide reasonable
1
Adoption of Hannah. The children's names are pseudonyms.
2
The mother also submitted a notice of appeal, but she did
not submit a brief and is not a party to this appeal.
2
efforts to support the father's reunification with the children
after the children were placed in third party custody with the
eventual adoptive parents. We affirm.
Procedural history. The department filed the underlying
care and protection petition in February 2022 and the children
were placed in the department's temporary custody. In November
2022, the children were reunified with the parents. In January
2023, the court granted the parents conditional custody. The
children were removed from the parents' custody on August 11,
2023, following the parents' violation of the terms of their
conditional custody agreement.
3
The conditional custody
agreement had required the father to supervise the mother's
contact with the children and required both parents to remain
free of substances. After the father allowed the mother to
accompany the children to daycare unattended in a rideshare car
and the mother presented as under the influence of substances
upon arrival at the daycare, the department required the parents
to submit toxicology screens. Both parents failed to complete
the screens, and the department removed the children from the
3
This is Hazim's third removal and Hannah's second removal
from the parents' custody.
3
parents' care. On September 6, 2023, the parents consented to
third-party custody with the foster family.
4
The trial on the parents' fitness and custodial rights
spanned seven nonconsecutive days from April 17, 2024, to May
21, 2024.
5
On the first day of trial, an anonymous caller
reported to the court that the father had made statements that
he was concerned about doing harm to himself or others depending
on the outcome of trial. As a result, the court ordered that
the court clinician conduct a mental health evaluation of the
father. The father failed to appear at trial on April 18, 2024,
due to his concerns that he could not assure the safety of
himself, the children, and others.
6
At the conclusion of the trial, the judge determined that
the father was unfit to assume parental responsibility and that
his unfitness was likely to continue into the indefinite future
to a near certitude, and that the best interests of the children
4
The same foster family previously had custody of the
children from April 2022 to November 2022. The foster family
had remained active participants in the children's lives
following the children's return to the parents' custody in
November 2022.
5
The mother appeared for the first day of trial, and
thereafter did not attend any court hearings or meetings.
6
The father initially reported through counsel that he was
sick with COVID and at the hospital but later admitted that was
untrue and that he had not appeared out of concern for his
mental health and his potential behavior in the event of an
unfavorable result at trial.
4
would be served by terminating his parental rights to the
children.
Discussion. 1. The father's fitness. "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 erroneous or where there is a clear error of law or
abuse of discretion." Id.
"The concepts of parental fitness and a child's best
interests are not separate and distinct but, instead, are
cognate and connected steps that reflect different degrees of
emphasis on the same factors" (quotations and citation omitted).
Adoption of Flavia, 104 Mass. App. Ct. 40, 45 (2024). "Because
termination of a parent's rights is an extreme step, a judge
must decide both whether the parent is currently unfit and
whether, on the basis of credible evidence, there is a
reasonable likelihood that the parent's unfitness at the time of
trial may be only temporary" (quotations and citations omitted).
Adoption of Ilona, 459 Mass. at 59. However, a conclusion that
5
unfitness is only temporary "must rest on credible evidence
supporting a reasonable likelihood that the parent will become
fit, not on a 'faint hope'" (citation omitted). Id.
The father argues that the evidence was insufficient to
find that he was unfit to parent the children and that
terminating his parental rights was in the children's best
interests. In challenging the sufficiency of the evidence
supporting the judge's determinations, the father also contends
(1) that there was no nexus between his substance use disorder
and his fitness as a parent, and (2) that the judge could not
consider his mental health when he was in fact capable of
providing minimally acceptable care. We disagree. The judge
neither erred in considering these factors nor did he abuse his
discretion in ultimately concluding that the father was unfit
and that the children's best interests were served by
terminating the father's parental rights.
The judge's findings show a significant nexus between the
father's substance use disorder
7
and his unfitness. See Adoption
of Katharine, 42 Mass. App. Ct. 25, 34 (1997) (requiring nexus
between parent's substance use disorder and neglect or abuse
before parent's substance use disorder can support a finding of
unfitness). Multiple reports spanning several years regarding
7
The father has been using cocaine since he was thirteen
years old, with periods of intermittent sobriety.
6
the parents conduct stemmed from the father or both parents
relapsing on substances, including the December 2021 domestic
violence incident when the father relapsed, his failure to take
the children to daycare in February 2022 following a relapse,
and the most recent removal of the children on August 11, 2023,
when both parents failed to submit toxicology screens.
Additionally, the father's substance abuse has caused him to be
absent and unable to care for the children, either because he
was incapacitated, committed to a treatment facility,
incarcerated, or willfully left the children in the mother's
care while the father used substances outside of the home. The
father argues that "the overwhelming majority of concerns"
regard the mother's drug usage. The contention is unavailing.
Aside from the ways we have just outlined that the father's
substance use disorder directly bears on his fitness as a
parent, the father has acknowledged that he has enabled mother's
substance use by purchasing drugs for her use. Additionally,
after the father had kicked the mother out of the family home
following her March 2023 relapse, he then, in April 2023, asked
for the mother to return to the family home because he was
unable to independently manage the children's care.
Further, after the children were removed in August 2023,
the father presented as impaired during parent-child visits, has
been unwilling to verify his sobriety, and was not consistently
7
engaged in services designed to address his substance abuse
disorder, making it foreseeable that the father's substance
abuse would continue to affect his parenting if he were to
regain custody of the children. See Adoption of Luc, 484 Mass.
139, 147 (2020) ("the parent's willingness to engage in
treatment is an important consideration in an unfitness
determination where the substance dependence inhibits the
parent's ability to provide minimally acceptable care of the
child"); Adoption of Katharine, 42 Mass. App. Ct. at 32-33
("[Judges] may consider past conduct to predict future ability
and performance").
The judge also did not err in considering the father's
mental health challenges. See Adoption of Luc, 484 Mass. at 146
("Mental disorder is relevant only to the extent that it affects
the parents' capacity to assume parental responsibility, and
ability to deal with a child's special needs"). Although most
of the judge's findings regarding the father's mental health
related to the father's conduct surrounding the trial, it is
clear that the father's mental health had impacted his parenting
long before the trial began. For example, the father
acknowledged that a relapse occurring in December 2021 stemmed
from his unaddressed childhood trauma.
8
During this relapse, the
8
The father was sexually abused as a child while he himself
was in the department's custody.
8
father and the mother physically fought, and the next day the
mother presented with visible facial injuries including a black
eye with a gash, either resulting from the father closing a car
door on her or, according to the mother, the father punching her
in the face.
Additionally, prior to trial, the department recommended
ceasing visitation between the parents and the children out of
concern for the parents' mental health. The father acknowledged
that he had expressed that he might harm himself or others
depending on the outcome of the trial, and the father missed the
second day of trial because he was concerned that he could not
control himself, thus putting the safety of himself, the
children or others in jeopardy if he did not prevail at trial.
9
Notably, in response to a line of questioning regarding the
father's mental health, the father admitted that given the state
of his mental health he would not presently be able to care for
the children if in fact he was awarded custody.
Finally, given the department's long history with Hazim and
Hannah, the father's failure to adequately address his substance
9
Indeed, the court clinician's testimony suggests that the
father might have harmed the children, or at least recognized
that any harm he might have done would have negatively impacted
the children: "[The father] spoke for some time about the
consequences of any sort of negative behavioral reactions in
terms of himself, in terms of safety in others, in terms of his
children, and the effect that that would have on his children
. . . ."
9
use disorder, mental health, history of domestic violence in his
relationship with the mother, and the father's inability to work
with the department forthrightly and productively, it was
reasonable for the judge to conclude that the father's unfitness
was not temporary and likely to continue into the foreseeable
future. See Adoption of Ilona, 459 Mass. at 59 ("judge's
conclusion that a parent's unfitness is temporary must rest on
credible evidence supporting a reasonable likelihood that the
parent will become fit, not on a 'faint hope'"). While the
trial judge acknowledged the bond between the father and his
children, in light of the father's inability to provide
consistent care for the children, it was not error to conclude
that termination of the father's rights and adoption by the
foster family was in the children's best interests. See
Adoption of Thea, 78 Mass. App. Ct. 818, 824 (2011) ("The
Supreme Judicial Court has emphasized the importance of
achieving stability and permanency in children's lives and in
decrees dispensing with parental rights").
2. The out-of-court statements. On the first day of
trial, an anonymous person called the court and informed a clerk
that the father had threatened to harm himself or others. At
trial, after the father acknowledged that he had told someone of
his concern that he might harm people depending on the outcome
of the trial, the father's attorney asked the father whether he
10
had "ever acted out on those feelings that [he] had." The judge
then sua sponte objected to the question as irrelevant because
the father's statements depended on the outcome of the trial,
which had not yet concluded. The father takes issue with the
fact that the judge relied on the caller's out-of-court
statements to sustain the sua sponte objection to his attorney's
question and contends that the judge's findings improperly
relied on the caller's out-of-court statements.
"The court must decide any preliminary question about
whether . . . evidence is admissible. In so deciding, the court
is not bound by the law of evidence, except that on privilege."
Mass. G. Evid. 104(a) (2025). The judge did not abuse his
discretion in admitting facts about the nature of the father's
threats to determine whether testimony on those threats would be
relevant.
While the judge's findings indirectly refer to the caller's
out-of-court statements, the judge does not rely on the
statements themselves in his findings of fact. Rather, the
judge relied on the father's in-court statements acknowledging
that the caller's report was correct, and those in-court
statements were properly admitted. See Mass. G. Evid. 601(a)
(2025) ("Every person is competent to be a witness unless a
statute or the Massachusetts common law of evidence provides
otherwise"); G. L. c. 233, ยง 20 ("Any person of sufficient
11
understanding, although a party, may testify in any proceeding,
civil or criminal, in court or before a person who has authority
to receive evidence . . . ").
3. The department's reasonable efforts. The father argues
that the department failed to make reasonable efforts by failing
to investigate placing the children with relatives and by
discontinuing the father's visits with the children during the
trial. Where a court of competent jurisdiction has "granted
custody or transferred responsibility for a child to the
department or its agent, the court shall determine . . . whether
the department or its agent has made reasonable efforts to make
it possible for the child to return safely to his parent or
guardian." G. L. c. 119, ยง 29C. However, "a parent must raise
a claim of inadequate services in a timely manner so that
reasonable accommodations may be made." Adoption of Gregory,
434 Mass. 117, 124 (2001).
The father contends that the department failed to make
reasonable efforts in identifying familial placements for the
children for the first time at trial. Accordingly, the issue is
waived and need not be addressed here. See Id. (parent may not
claim inadequate services for the first time at termination
proceeding).
Additionally, while the foster family terminated visits
between the parents and children during the trial, as was their
12
right, they did so at the department's request due to concerns
for the parents' mental health. See G. L. c. 119, ยง 21
("custody" includes the power to "control visits to a child").
Decrees affirmed.
By the Court (Blake, C.J.,
Desmond & Singh, JJ.
10
),
Clerk
Entered: January 12, 2026.
10
The panelists are listed in order of seniority.