ADOPTION OF ENISHA (And Three 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-389

ADOPTION OF ENISHA (and three companion cases).1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, a judge (trial

judge) found the father unfit to parent his children, Enisha and

Rose, and terminated his parental rights. The trial judge also

found the mother unfit to parent Enisha and Rose but ordered the

Department of Children and Families (department) to explore a

viable plan for reunification.2 On appeal, the father argues

that the trial judge erred by failing to reconsider a prior

judge's (motion judge) order terminating his visitation with his

children, and by terminating his parental rights. He also

claims that in light of the trial judge's finding that the

1Adoption of Rose; Care and Protection of Bryce; and Care
and Protection of Michael. The children's names are pseudonyms.

2The mother filed a notice of appeal but has not submitted
a brief and is not a party to this appeal. Bryce and Michael,
and their respective fathers, did not appeal.
department failed to make reasonable efforts regarding

visitation with his children, the trial judge erred by not

restoring his relationship with the children before terminating

his parental rights. We affirm.

1. Background. We summarize the facts as found by the

trial judge, all of which find ample support in the record, and

none of which the father claims are clearly erroneous.

a. The father. The father is a registered sex offender

with a long history with the department. When he was thirteen

years old, he was adjudicated delinquent of nine counts of

indecent assault and battery on a child under fourteen. His

younger sister and her friend were the victims. He was placed

on probation with a suspended commitment to the Department of

Youth Services, and he was placed in a residential treatment

program until he turned eighteen.

The father has a long history of verbal and physical abuse

of the mother, and Enisha, Rose, and their older brother

witnessed much of the violence. In April 2011, the department

received two reports filed pursuant to G. L. c. 119, § 51A, (51A

reports) alleging neglect by the father due to domestic

violence. The department investigated both reports, which were

screened in, together pursuant to G. L. c. 119, § 51B (51B), and

the "51B was concluded with a finding of [c]oncern." In October

2013, the department received a 51A report alleging neglect due

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to domestic violence after the mother reported that the father

punched her in the stomach while she was around five months

pregnant. Although the allegations of neglect were unsupported

after a 51B investigation, the department assessed the level of

risk as moderate and kept the family's case open for continued

case management services. In August 2013, the father was found

guilty of disorderly conduct stemming from his attempt to break

into the mother's home. In September 2014, he was incarcerated

in the house of correction for violating an abuse prevention

order issued to protect the mother.3 The father's propensity for

violence continued after Enisha and Rose were placed in foster

care. He yelled and screamed at the foster mother and "sh[ook]

down the gate" to the home, resulting in the issuance of a

harassment prevention order.

The father has struggled with his mental health since

adolescence. Around 2014, he sought inpatient treatment after,

according to the mother's representations to the facility, he

held a knife to the throats of the mother and the children, but

he did not work on any of his mental health issues while he was

in the program -- believing that he did not need help. In May

3 In addition, the father was convicted of threat to commit
a crime and disorderly conduct in November 2017, for an incident
that occurred in a court house. He received a split six-month
sentence and ultimately served the entirety of that sentence
after violating his probation.

3
2016, the father collapsed on the street; he was transported to

a local hospital where he was diagnosed with anxiety and

depressive disorders.

In May 2023, during the trial, the father was hospitalized

for two weeks for suicidal thoughts and diagnosed with major

depressive, generalized anxiety, and unspecified mood disorders.

At the time, a local police department was investigating the

father for child pornography discovered on a cell phone that he

had borrowed from his sister. He was discharged with a

fourteen-day supply of medication and an appointment with a

psychiatrist. He failed to keep the appointment or continue

with the medication as prescribed.

b. The father's relationship with his children, Enisha and

Rose (children). Since February 2016, all contact between the

father and the children has been by supervised visitation. The

children last visited with the father over three years before

the start of the trial. Although many of the supervised visits

went well, there is ample evidence that the children had many

negative experiences that made them upset, withdrawn, and

afraid. When the children returned to the department's custody

in May 2020, they had not seen the father in over one year and

no longer wanted to visit with him. The children resisted the

department's attempts to schedule unsupervised virtual visits.

The trial judge found, with ample support in the record, that

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the father's conduct during supervised visits contributed

significantly to the children's unwillingness to see him.

The father filed motions to reinstate his visitation, and

the motion judge appointed a guardian ad litem to make

recommendations. Notwithstanding, the father continued to act

in a manner that caused the children to resist visits. To

assist the father in reunifying with the children, the father's

action plan tasks included working with a parent aide,

consistently engaging in therapy, attending and completing

parenting classes, completing a course on domestic violence,

completing psychological and neuropsychological evaluations,

signing releases, initiating contact with the children through

letters, and identifying supports. He was generally unable to

successfully complete these tasks.

c. Probate and Family Court proceedings. In November

2015, the father filed for physical and shared legal custody in

the Probate and Family Court. The mother left Massachusetts

with the children and moved to New York without the father's

consent. A judge of the Probate and Family Court entered a

temporary order allowing the mother to remain in New York and

granted the father parenting time on alternate weekends. In

February 2016, the judge sua sponte transferred custody of the

children to the department. The department placed the children

with the mother in 2017, and the children remained in the

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department's custody until January 2019. During this time, the

father's visits were supervised by the department. On January

29, 2019, a Probate and Family Court judge entered a judgment

awarding the mother sole legal and physical custody of the

children and providing the father with professionally supervised

visitation at his expense.4 As a result, the department stopped

supervising the visits. On the father's appeal, a panel of this

court affirmed the Probate and Family Court judgment in an

unpublished memorandum and order. See F.L. v. O.S., 97 Mass.

App. Ct. 1123 (2020).

d. The children's removal and the permanency plan. In

July 2013, the department supported an allegation of neglect

after receiving a 51A report when Rose, who was eight months

old, was brought to the hospital with a broken clavicle after

being left by the mother in the care of six year old Bryce. At

that time, the father was incarcerated for violating the abuse

prevention order secured by the mother. In May 2020, the

department filed a care and protection petition and removed the

children from the mother's care due to a mental health crisis.

At that time, the father had not visited the children since

4 Ruling on the father's motion for relief, the Probate and
Family Court judge subsequently entered an order permitting
supervised visits to occur at a visitation center.

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January 2019 due to a waitlist at the visitation center, and

thereafter, the center closed due to the COVID-19 pandemic.

The department's plan for the children was adoption, but

the children opposed it and wanted to be reunified with the

mother. Although the trial judge found that the mother was

unfit to parent Enisha and Rose, he concluded that the

department had not met its burden to prove that her unfitness

would likely continue indefinitely into the future. He ordered

the department to explore a viable plan for reunification with

the mother. The trial judge terminated the father's parental

rights, but granted him two yearly reports with photographs and

the possibility of future in-person contact. This appeal

followed.

2. Discussion. a. Termination of visitation. The father

contends that the trial judge erred in failing to revisit a

prior order terminating his visitation. We are not persuaded.

Termination of parental visitation requires clear and convincing

evidence and must be supported by specific findings of fact

demonstrating that the visits will harm the children or the

public welfare. See Adoption of Franklin, 99 Mass. App. Ct.

787, 795-796 (2021). After an evidentiary hearing conducted on

several nonconsecutive days over the course of a month, the

motion judge terminated the father's visitation in October 2021,

finding that the visits were harmful to the welfare of the

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children. In November 2021, the father filed an interlocutory

appeal of this order pursuant to G. L. c. 231, § 118. The

single justice denied the petition, concluding that the motion

judge's findings were adequately supported by the record, and

she did not err or abuse her discretion in concluding that the

department had met its burden. See Department of Children &

Families & others vs. Father I & others, Mass. App. Ct., No. 21-

J-538 (Apr. 1, 2022).

The father pressed the trial judge to revisit the motion

judge's order; however, he failed to provide a complete

evidentiary record or an agreed statement of facts -- electing

to only submit a transcript of the mother's testimony and not

his own. To the extent this was a strategic decision, the

father cannot now claim that the trial judge erred or abused his

discretion. See Draghetti v. Chmielewski, 416 Mass. 808, 815

(1994) ("Dissatisfaction with a trial strategy that did not

achieve the result desired by a litigant is not trial error by a

judge").

Importantly, the trial judge's decision to not revisit the

motion judge's order played no role in his ultimate finding of

unfitness. Indeed, the trial judge ruled that the father's lack

of visits with the children would not be considered as evidence

of his unfitness at trial, and acknowledging the father's

concern, he did not hold the absence of visitation against him.

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And as detailed supra, the evidence of the father's unfitness

was substantial.

b. Termination of parental rights. The father also claims

that the trial judge erred in terminating his parental rights.

We are not persuaded. "We 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, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459

Mass. 53, 59 (2011).

As detailed supra, the trial judge found that the father

was unfit due in part to domestic violence and criminal conduct,

both of which are relevant considerations for the judge's

determination. See Care & Protection of Lillith, 61 Mass. App.

Ct. 132, 139 (2004) (domestic violence); Care & Protection of

Quinn, 54 Mass. App. Ct. 117, 125 (2002) (criminal history).

The trial judge also found that the children were exposed to and

were victims of the father's violence, and that as a result of

his failure to address his propensity toward violence and abuse,

he remained "at considerable risk to abuse or neglect the

children." Children who are spectators or victims of domestic

violence "suffer[] a distinctly grievous kind of harm" that is

relevant to parental fitness. Custody of Vaughan, 422 Mass.

590, 595 (1996).

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In addition, the trial judge found that the father was

unfit due to his unstable and untreated major mental health

disorder. These struggles with his mental health placed the

children at risk, impacted his ability to assume parental

responsibility, and were properly considered by the trial judge.

See Adoption of Quentin, 424 Mass. 882, 888 (1997). Throughout

this case, the father did not comply or was inconsistent with

most of his action plan tasks, claimed he did not need therapy

and other remedial services, and failed to benefit from services

in which he did participate, all of which is relevant to his

fitness. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677

(2019); Adoption of Rhona, 63 Mass. App. Ct. 117, 125-126

(2005). The trial judge's findings, none of which are

challenged by the father as clearly erroneous, are amply

supported by the record; and clear and convincing evidence

supported the judge's ultimate findings that the father was

unfit and would likely remain so indefinitely. We also discern

no clear error of law or abuse of discretion in the judge's

decision that termination of the father's parental rights was in

the best interests of the children. See Adoption of Xarissa, 99

Mass. App. Ct. 610, 615-616 (2021).

c. Reasonable efforts. Finally, the father claims that in

view of the trial judge's finding that the department failed to

make reasonable efforts to enable visits with the children, the

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trial judge erred by not restoring his relationship with the

children before terminating his parental rights. We are not

persuaded. "Before seeking to terminate parental rights, the

department must make 'reasonable efforts' aimed at restoring the

child to the care of the natural parents." Adoption of Ilona,

459 Mass. at 60, quoting Adoption of Leonore, 55 Mass. App. Ct.

275, 278 (2002). Here, the judge found that while other factors

played a role, the father's own conduct towards the children

contributed significantly to their unwillingness to visit him.

Even if the department's efforts were lacking, where the father

could not provide safety or stability for the children, the

trial judge did not abuse his discretion to prioritize the

children's best interests. See Adoption of Uday, 91 Mass. App.

Ct. 51, 54 (2017), quoting G. L. c. 119, § 29C (finding that

department failed to make reasonable efforts did not preclude

judge "from making any appropriate order conducive to the

child[ren]'s best interests").

Decrees affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ.5),

Clerk

Entered: December 30, 2025.

5 The panelists are listed in order of seniority.

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