ADOPTION OF NAIRA (And Two Companion Cases).

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

25-P-72

ADOPTION OF NAIRA (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the father

was unfit to parent the child, Naira, and that her best

interests would be served by the terminating his parental rights

and placing the child with her preadoptive parents. The judge

also declined to order visitation between the father and the

three children who were the subject of the petition at the time

of trial. The father appeals from the decrees, arguing that the

judge did not sufficiently consider the father's competing

adoption plan for the child and should have ordered

posttermination and postadoption visitation with the three

children. We affirm.

1Adoption of Philip and Adoption of Braedon. The
children's names are pseudonyms.
Background. The child was born in 2011; her biological

parents are the mother and the father. Her four siblings

include two boys (boys), one about one year older and the other

about three years younger than the child; the father is the

biological parent of the younger boy.2 Between July 2014 and May

2018, five reports pursuant to G. L. c. 119, § 51A (51A

reports), were filed alleging neglect of the children, one of

which alleged that in 2017 the father held a knife to the

mother's throat in the children's presence.

On September 16, 2018, a 51A report was filed alleging

neglect of the child and the boys by the father; it identified

the father by an alias. That 51A report alleged that, after the

mother found naked photographs of other women on the father's

cell phone, they argued and the father choked the mother. Two

days later, three more 51A reports were filed alleging, among

other things, that the mother and the father of her two oldest

children were involved in stabbing a man in the presence of the

child and one of the boys. The Department of Children and

Families (DCF) conducted an emergency removal of the children

and instituted these care and protection proceedings.

2 During these proceedings, in the fall of 2023, it was
determined that the father is not the biological parent of the
older boy. The mother is the biological parent of both boys.
The mother also has an older son and daughter who were removed
from the petition after they reached age eighteen.

2
Beginning on October 2, 2018, the child was placed with the

foster parents, who became her preadoptive parents. As of trial

the child had been with the preadoptive parents for more than

five years. The boys were in many different foster placements,

sometimes separately, for about the next four years.

Because the name DCF had for the father was an alias, DCF

struggled to locate him, delaying his visitation with the

children. When a social worker telephoned the father in

November 2018 and asked whether his name was his true name or

the alias, the father hung up. The father's use of an alias

also impeded DCF's identification of possible kinship

placements. In March 2019, the father contacted DCF, and he was

served with the care and protection summons in April 2019. The

father was offered weekly supervised visits with the child and

the boys, which were changed to biweekly after the father failed

to attend them consistently.

On June 25, 2019, DCF changed its goals for the child and

the boys to adoption. At that point DCF's plan was to recruit

an adoptive family for those three children. The father told

DCF that he wanted the children to be placed with his aunt

(great aunt). In August 2020, however, the mother's older

daughter, then about fifteen, was placed in the same foster home

as the child. The adoption social worker contacted the great

aunt and asked if she could take those four children; the great

3
aunt said she could take only the child and the boys, and only

after her upcoming move from Connecticut to Florida. By then

the child had been with her preadoptive parents for almost two

years, and her biological sister was also living there.3 DCF

decided to move forward with the Interstate Compact on the

Placement of Children (ICPC) process to place the boys with the

great aunt in Florida.

In early 2021, after about nine months of video conference

visits because of the COVID-19 pandemic, in-person supervised

visits resumed between the father and the child. During two

visits in early 2021, the father pulled the child's hair and

insisted that she sit on his lap; the child was then about ten

years old. After that, the child reported to DCF that she was

uncomfortable attending visits with the father, and for the next

three years refused to participate in them despite encouragement

from DCF. Based on the father's testimony that his interactions

with the child were appropriate and that she said they made her

uncomfortable only because DCF had "brainwashed" her, the judge

found that he "continually dismissed [the child]'s concerns and

refused to take responsibility for his behavior that led to her

refusal to attend visits." During his subsequent visits with

3 The sister left that placement in November 2021. The
child's preadoptive parents continued to maintain regular
contact between the child and the sister.

4
the boys, the father spent a significant amount of time

perseverating on the child's absence; when a social worker

repeatedly tried to redirect his attention, the father told her

to "go fuck [her]self." The judge found that the father could

not control his anger in front of the children and his focus on

the child's absence prevented him from taking advantage of his

limited visitation time with the boys.

In June 2022, DCF and the child moved to suspend the

father's visits with her. A Juvenile Court judge allowed the

motion but ordered DCF to ask the child monthly whether she

would like to visit the father. The child consistently said

that she did not want to do so.

In January 2023, the boys were placed with the great aunt

in Florida. The child's preadoptive parents and the great aunt

facilitated telephone and video contact between the child and

the boys, and on one occasion they all met at an amusement park.

The judge credited the testimony of the child that she was

happy in her preadoptive home and wanted to remain there and be

adopted by the preadoptive parents. The child consented to

being adopted by the preadoptive parents, but did not consent to

an adoption by the great aunt.4 Despite the child's testimony,

4 Because the child was above the age of twelve, any
adoption would require her written consent. G. L. c. 210, § 2.

5
both the father and the great aunt maintained that the judge

should order the child to be moved to Florida and be adopted by

the great aunt.

The father has a criminal history including the use of

multiple aliases and New York convictions for selling narcotics

and possession of a forged instrument. While this trial was

ongoing, he was arrested for firearms and drug trafficking

offenses and held in a house of correction. At the time of

trial he had twelve open Massachusetts criminal cases.

Police have responded to more than a dozen reports of

domestic disputes between the father and the mother, some of

which involved allegations of the father's violence toward the

mother in front of one or more of the children. For more than

five years before trial, the father was repeatedly tasked with

engaging in domestic violence services including a batterer's

intervention program, but he did not complete those programs.

He testified that the mother's allegations of domestic violence

were "a lie" and that he did not believe he needed to

participate in those programs. He told DCF that he was not

interested in participating in any services because he was not

seeking reunification with the children and wanted them to be

placed with the great aunt. The judge found that the father had

failed to take responsibility for his actions regarding domestic

disputes with the mother.

6
At trial, the father did not contest the termination of his

parental rights, but argued that the child should be placed with

the great aunt and the boys. The judge terminated the father's

parental rights to the child and approved DCF's plan for her

adoption by her preadoptive parents. The judge also terminated

the father's parental rights as to the younger boy and approved

the plan for both boys' adoption by the great aunt. As to

visitation, the judge concluded that it was not in the best

interests of the child or the boys to order posttermination or

postadoption contact with the father. As to sibling visitation,

the judge ordered DCF and the preadoptive parents of the child

and the boys to ensure that at least one contact a month, either

a telephone call or a video call, be arranged among them. The

father has appealed from the decree issued with regard to Naira

and so much of the decrees pertaining to the two boys as related

to visitation.5

Discussion. 1. Competing adoption plan. The father

argues that the judge abused her discretion in choosing the

adoption plan proposed by DCF rather than the father's plan for

the child to be adopted by the great aunt. The father contends

that the judge did not sufficiently compare the competing plans,

5 The judge also terminated the mother's parental rights as
to the child and the boys. The mother has not appealed from any
decree.

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disregarded DCF's failure to work with him in furthering his

goal of keeping the child with the boys, and ignored the DCF

regulations prioritizing kinship placement, see 110 Code Mass.

Regs. § 7.101(2)-(3) (2009).

The father argues that the judge did not perform a

meaningful evaluation of the two competing adoption plans. When

DCF and a parent propose different adoption plans, the judge

must consider both and "determine which placement will serve the

best interests of the child." Adoption of Dora, 52 Mass. App.

Ct. 472, 474-475 (2001). In deciding between two competing

adoption plans, the judge must "'meaningfully . . . evaluate'

what is proposed to be done for the child." Id. at 475, quoting

Adoption of Lars, 46 Mass. App. 30, 31 (1998), S.C., 431 Mass.

1151 (2000). The judge's evaluation must include "an

'evenhanded' assessment of all the facts surrounding" the two

plans. Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998), cert.

denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). We

review the judge's choice between competing adoption plans for

an abuse of discretion. See Adoption of Breck, 105 Mass. App.

Ct. 652, 663 (2025).

We conclude that the judge conducted a meaningful

evaluation of the competing adoption plans. As to DCF's plan,

the judge considered the testimony of the child, who wished to

remain with the preadoptive parents, and that of the adoption

8
social worker, who described the many ways the preadoptive

parents had met the child's needs during the more than five

years that she had been in their care.

As to the father's plan, the judge considered the testimony

of the father and the great aunt that the child belonged with

the great aunt and the boys because they were biologically

related. The judge found that DCF "expressed no concerns" about

the great aunt's ability to provide for the boys' needs.

However, the judge concluded that "[w]hile [the great aunt] is

an appropriate adoptive home for [the boys], she is not the best

plan for [the child]." The judge found that the child "had met

[the great aunt] but did not have a relationship with her."

During the first seven years of the child's life, the great aunt

saw the child only four or five times; after the child entered

DCF custody, the great aunt saw the child only once in person.

The judge found that the great aunt "clearly stated to the court

that she did not know anything about [the child]." The great

aunt did not know the child's grade in school or whether she had

any behavioral or mental health issues. In her conversations

with the adoption social worker, the great aunt did not ask to

visit the child or ask about her medical or mental health

history.

The judge's detailed fact finding about the viability and

propriety of placing the child with the great aunt met the

9
requirement of a meaningful evaluation of the father's competing

adoption plan. See Adoption of Breck, 105 Mass. App. Ct. at

664. As for the father's argument that the judge was required

to "develop a side-by-side comparison of the competing plans,"

we do not read Massachusetts case law to require that, for a

judge's evaluation of the competing plans to be meaningful, the

judge must compare each individual aspect of the plans. That is

particularly so here, where the judge was comparing a plan to

keep the child with the preadoptive parents, where she had been

for more than five years, with a plan to place the child with

the great aunt, a biological relative with whom, the judge

found, the child "did not have a relationship." See Adoption of

Jacob, 99 Mass. App. Ct. 258, 272-273 (2021) (no abuse of

discretion in choosing DCF plan of adoption by recruitment over

competing plan for child to remain with paternal grandparents).

Nor, contrary to the father's argument, was DCF required to

place the child with the boys because they are her biological

siblings. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 679-

680 (2019) (no abuse of discretion in approving adoption plans

that separated siblings).

As for the relevant DCF regulation prioritizing kinship

placement, 110 Code Mass. Regs. § 7.101(2), it requires that DCF

"shall consider, consistent with the best interests of the

child," a child's "kinship family" as the first of several

10
placement resources. DCF did consider placement of the child

with the great aunt. We conclude that the judge acted within

her discretion in finding that placement of the child with the

great aunt would not be in the best interests of the child. See

Adoption of Xarissa, 99 Mass. App. Ct. 610, 621 (2021).6

2. Visitation. The father also argues that the judge

abused her discretion in declining to order posttermination and

postadoption visitation between him and "his children," which we

take to mean the child and both boys. "A trial judge's decision

whether to order visitation between a child and a parent whose

parental rights have been terminated is reviewed for an abuse of

discretion." Adoption of Xarissa, 99 Mass. App. Ct. at 623-624.

"A judge should issue an order of visitation only if such an

order, on balance, is necessary to protect the child[ren]'s best

interest[s]." Adoption of Ilona, 459 Mass. 53, 65 (2011).

6 In his reply brief, the father argues for the first time
that the judge failed to consider that the grand aunt shares his
Jamaican heritage. We decline to consider any argument raised
for the first time in a reply brief. See Care & Protection of
Jaylen, 493 Mass. 798, 808 n.23 (2024). We note that the father
misplaces his reliance on Adoption of Mariano, 77 Mass. App. Ct.
656, 662 (2010), in which a Probate and Family Court judge ruled
that a divorcing couple could not negotiate for the father to
relinquish his parental rights to a child who "shares a unique
physical, genetic and ethnic connection with his birth father."
This court upheld the order denying the mother's petition for
adoption as not in the child's best interests in terms of
"filial ties." Id. at 662-663. That case is inapposite.

11
Putting aside the question whether the father has standing

to seek visitation with the older boy, who is not his biological

child, cf. Adoption of Franklin, 99 Mass. App. Ct. 787, 803-804

(2021), we conclude that the judge did not abuse her discretion

in declining to order visitation between the father and any of

those three children. For more than three years before trial,

the child had refused visits with the father, and the father

failed to take responsibility for his behavior that caused her

refusal. See Adoption of Daisy, 77 Mass. App. Ct. 768, 783

(2010), S.C., 460 Mass. 72 (2011) (DCF "was not in a position to

force an eleven year old child to attend visits against her

will"). In visits with the boys, the father's behavior

escalated because of the child's absence, and as a result of his

failure to pay attention to the boys, DCF reduced his visits

with them. Between May and November 2023, the younger boy

refused to attend all but one visit with the father. During the

approximately two year period before trial, the father attended

only three virtual visits and one in-person visit with the boys.

Based on these facts, the judge found that the father did not

have a bond with the child or with either boy and that it is not

in the best interests of the children to order posttermination

or postadoption contact with the father. The judge did not

12
abuse her discretion in so finding. See Adoption of Ilona, 459

Mass. at 63-66.

Decrees affirmed.

By the Court (Shin, Grant &
Hershfang, JJ.7),

Clerk

Entered: September 19, 2025.

7 The panelists are listed in order of seniority.

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