Care and Protection of Francie.

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

22-P-978

CARE AND PROTECTION OF FRANCIE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In November 2017, the Department of Children and Families

(department) filed a petition alleging that nine year old

Francie was in need of care and protection. At a trial four

years later, the department sought to terminate the parental

rights of the mother but not the father, who had been deported

to Brazil when Francie was two years old. A Juvenile Court

judge found the mother unfit and terminated her parental rights,

found the father currently fit, and further concluded that it

was in Francie's best interests to be reunified with the father.

Accordingly, he granted permanent custody of Francie to the

father, and Francie moved to Brazil in February 2022. 2 Francie's

1 A pseudonym.
2 In November 2021, Francie filed a motion in the trial court and
a petition in this court, both seeking a stay of the
reunification order, and both of which were denied.
appeal concerns only the judgment awarding permanent custody to

the father. 3

On appeal, Francie challenges certain findings as clearly

erroneous, including the finding that the department failed to

use reasonable efforts to reunify her with her father; claims

that the judge improperly disregarded the testimony of her

expert witness; and argues that the evidence does not support

the judge's conclusion that the father is fit to parent her. We

affirm.

1. Erroneous findings. a. The father's compliance. The

department gave the father an action plan with seven tasks. 4

Seeing "no evidence" that he "failed to follow through with

services," the judge found that the father did everything the

department asked of him. Francie claims this was clearly

3 The mother filed but did not perfect an appeal from the decree
terminating her parental rights. The child did not appeal from
the decree terminating the mother's rights.
4 The action plan required the father to (1) cooperate with the

international home study; (2) "cooperate with any other
recommendations by the Department and other professionals";
(3) "provide the Department with confirmation/verification of
recommended services"; (4) visit with Francie via "phone
calls/video chat"; (5) "meet with a therapist to support Father
with parenting and the potential transition of [Francie]'s
custody to Father as well as family functioning once the
transition is complete. Father is also recommended to have a
batterer's evaluation from a qualified therapist to assess his
need for treatment"; (6) "arrange and provide verification of
medical, dental, and therapeutic providers [for Francie] in
anticipation of an exchange of custody"; and (7) maintain a
violence and substance-free home.

2
erroneous because there was no written documentation verifying

what services would be in place for her in Brazil, and because

of the father's failure to get a batterer's evaluation and

consistently attend therapy.

"A finding is clearly erroneous when there is no evidence

to support it, or when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed"

(citation omitted). Adoption of Posy, 94 Mass. App. Ct. 748,

751 (2019). Here, the judge's findings about services for

Francie in Brazil were supported by testimony from a social

worker that the father "provided verification of medical,

dental, [educational,] and therapeutic providers for [Francie]

as required." That same witness acknowledged that the

batterer's evaluation was recommended only because of "an

isolated comment" by the mother to the department in 2017, id.

at 754, that her arguments with the father "would turn into

physical disputes." The judge did not credit these statements

and drew a negative inference from the mother's failure to

appear for trial or testify. See Adoption of Talik, 92 Mass.

App. Ct. 367, 371 (2017). By contrast, he did credit the

father's testimony that there was no violence in the parents'

relationship, which also was what the mother told the department

in June 2010, two months after the relationship ended. In these

3
circumstances, which included the absence of evidence that the

department made "any referrals to specific service providers in

[the father's] home country," a finding that the father had

"domestic violence issues" would be clearly erroneous. Adoption

of Posy, supra at 754 & n.15. Particularly where there was no

indication of violence in the father's home with his wife, the

judge did not err in deciding not to be "unduly influenced" by

the mother's "flimsy, unsupported, [and] unreliable statement[]"

in 2017. Custody of Tracy, 31 Mass. App. Ct. 481, 485 n.5

(1991). The judge did not err in concluding that a batterer's

evaluation would "shed little light on [the father's] parental

fitness." Adoption of Leland, 65 Mass. App. Ct. 580, 587

(2006).

The father engaged in therapy, but his therapy was

interrupted, first by the provider's maternity leave and then by

the COVID-19 pandemic. Francie recognizes these were factors

"beyond Father's control." His inconsistent attendance

therefore did not detract from the judge's findings, especially

where the therapy was to help the father with Francie's

transition, which had not yet started. 5

5 We note that the father was prohibited from entering the United
States until December 2020 and tried several times thereafter to
get a visa but was not successful. In-person visits were not
required by the action plan, however, and the father attended
every virtual visit with Francie, even when she chose not to

4
b. Reasonable efforts. The judge found that the

department "consistently failed" in its obligation to make

reasonable efforts toward Francie's reunification with the

father. See G. L. c. 119, § 29C. Francie claims that this

conclusion is based on erroneous facts and argues that, to the

contrary, the evidence established that the department did make

reasonable efforts, but that the lengthy separation between the

father and daughter, coupled with a language barrier, was simply

too great to overcome. We disagree. The judge's findings that

the department failed by (1) ignoring the father as an option

early in the case and changing Francie's goal to adoption even

though it was "clear for years predating this petition that

Father has sought to be a caretaker for this child"; (2) not

giving the father a family action plan for nearly one year and

then doing nothing to assist him to complete the tasks (e.g.,

not "assist[ing] in any way [with] efforts Father was making to

come to the U.S. to get the child"; (3) not offering language

lessons to the child; and (4) not developing a realistic

reunification plan or exploring appropriate methods to

accomplish that goal, including "not following through with

attend. Accordingly, the judge did not abuse his discretion in
finding the father in compliance with this task as well.

5
information in regard to assistance with international

placements," are amply supported.

The evidence established that the department did not

provide the father with an action plan until October or November

of 2018, after it had already changed its goal for Francie to

adoption. 6 It also did not request the international home study

required by that plan until the father filed a motion to compel.

The department waited until after the trial started in June 2021

to provide the father with a letter he first requested in

December 2020, which he thought would help him obtain a visa to

come to the United States to visit Francie. And it never used

information it received from the Brazilian Consulate about

social workers from other department area offices who had

experience transporting children to Brazil. The department knew

of a company that could transport Francie to Brazil and check in

on her monthly for six months after she arrived in Brazil but

did not discuss this option before trial, even internally.

Francie was not enrolled in Portuguese classes until two months

before trial started -- three and one-half years after the

6 The judge found that the plan was given to the father in
October; the department social worker testified that he
"believe[d]" he produced it in November. The plan itself was
not in evidence. To the extent there is error in this
unchallenged finding, it does not leave us with a definite and
firm conviction that a mistake was committed. Adoption of Posy,
94 Mass. App. Ct. at 751.

6
petition was filed -- then after two classes the department

allowed Francie to drop out because she "did not like it."

Finally, the department did not draft a transition plan for

Francie until it was ordered to do so on the second day of trial

in July 2021, even though reunification with the father had been

the department's goal for Francie since November 2020. Francie

does not challenge the judge's findings that the plan finally

submitted by the department was "superficial" and "skeletal."

The judge's "specific and detailed" findings about the

father's compliance with his action plan tasks and the

department's efforts are thus supported by the evidence and not

clearly erroneous. Adoption of Don, 435 Mass. 158, 165 (2001).

Francie "simply views the evidence differently from how the

judge viewed it." Adoption of Lisette, 93 Mass. App. Ct. 284,

295 (2018). On appeal, Francie asks us to adopt her view of the

evidence, but we may not. See id. at 292. We do not sit as

triers of fact. See Adoption of Don, supra at 166-167.

2. Expert witness. An expert witness interviewed Francie

when she was ten years old and met with her again a few weeks

before trial, when Francie was thirteen. The expert testified,

and the judge found, "that [Francie] is an exceptional young

woman who is adaptable and able to advocate for herself in any

environment," with "strength and ability to persevere despite

her trauma." The judge rejected the expert's opinion that

7
reuniting Francie with her father would be harmful to her,

however, reasoning that the opinion and the facts "do not

coincide" because Francie's "testimony and demeanor did not

reflect the inability to transition to Father." Francie claims

this was error, but it was not. The judge was not required to

accept the expert's opinion. See Adoption of Bea, 97 Mass. App.

Ct. 416, 429 (2020). His reasons for not doing so were neither

arbitrary nor an abuse of discretion. See Adoption of Don, 435

Mass. at 166-167.

3. Fitness and best interests. Francie argues that the

record does not support the judge's determination that the

father was fit to parent her. Parental fitness is "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 Mary, 414 Mass. 705, 711 (1993). "The parental

unfitness test and the best interests of the child test are not

mutually exclusive, but rather reflect different degrees of

emphasis on the same factors," with the child's welfare being

"the most important consideration." Adoption of Lisette, 93

Mass. App. Ct. at 293. The question "is not whether the parent

is a good one, let alone an ideal one; rather, the inquiry is

whether the parent is so bad as to place the child at serious

risk of peril from abuse, neglect, or other activity harmful to

8
the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758,

761 (1998). See Bezio v. Patenaude, 381 Mass. 563, 579 (1980)

("A finding that a parent is unfit . . . must be predicated upon

parental behavior which adversely affects the child"). While

"[o]ne who is fit to parent in some circumstances may not be fit

if the circumstances are otherwise" because "[a] parent may be

fit to raise one child but not another," Guardianship of

Estelle, 70 Mass. App. Ct. 575, 581 (2007), as to each child,

"our law only recognizes two possibilities: in given

circumstances, a parent is either fit or unfit." Id. at 579.

"Custody of a child belongs to a parent unless that parent is

unfit." Id. at 578, and cases cited.

It is the department's burden to prove current unfitness by

clear and convincing evidence. See Care & Protection of Erin,

443 Mass. 567, 570 (2005). We review the judge's determination

"not to decide whether we, presented with the same facts, would

have made the same decision, but . . . whether the trial judge

abused his discretion or committed a clear error of law."

Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526

U.S. 1034 (1999).

Francie is a "good kid" who was pleasant, helpful, and

unselfish. She achieved all her developmental milestones, was

in good physical health, and had no specialized educational

needs. Given her trauma from "significant exposure" to the

9
mother's substance use and unstable lifestyle, however, and "due

to the transition of leaving her foster home and moving to a new

country," Francie "will have very specialized [emotional] needs"

requiring "stability, support, and connection to things that are

familiar." 7

Throughout the case, the father maintained a safe and

stable home environment and demonstrated love and a "desire to

have [Francie] come live with him." A study of the father and

his home in Brazil was approved in November 2019 and "did not

give any indication that Father and his family were unfit to

receive [Francie]." In particular, "Father [did] not have a

violent or unsafe home," and "[t]here [wa]s nothing to indicate

Father use[d] or abuse[d] illicit substances." Rather, the

7 In September and October 2017, the department investigated
three 51A reports and supported allegations of abuse and
neglect. See G. L. c. 119, §§ 51A, 51B. The mother agreed to
give temporary custody of Francie and her half-siblings to a
relative, but that relative became unwilling to be a placement
and the children returned to the mother. The father of the
half-siblings then petitioned a court for and was awarded
custody of his children. The mother "informed [the department]
that [Francie] would remain with her." Less than one month
later, the mother and Francie were dropped off at a hospital
emergency room. The mother "wanted treatment [for her substance
use disorder] but stated that she didn't have anyone to care for
[Francie]," so the department filed the petition and took
emergency custody, placing Francie in a foster home where she
stayed for the next four years. In those years, Francie had "a
series of different therapists," social workers, and teachers.
In 2020, the foster family announced it could not provide
permanency.

10
father lived "in a happy and healthy home with his family" that

included his wife and Francie's half-sister, with extended

family nearby. 8 It was the same home the father had lived in

since the inception of the case. He also maintained the same

job and had a steady income and health insurance. Recognizing

that reunification would "be a significant and likely difficult

change for [Francie]," and "want[ing] to do everything he can to

make sure she is emotionally stable through the transition," the

father made appropriate arrangements with bilingual providers

for Francie to receive private schooling and language classes,

medical and dental care, and therapy; took English classes to

better communicate with Francie; requested family therapy early

in the case to prepare Francie for the transition; and engaged

in therapy himself to work on issues related to his conflict

with Francie's mother and the child's transition to his care.

"[T]here were no other parties identified in a similar position"

to provide a "supportive, nurturing home setting built around

[Francie's] care." "The Department failed to produce, or even

argue any evidence of Father's unfitness except that he was

living in Brazil."

8 The judge found that the father's wife "has spoken to [Francie]
several times and loves her." Though he did not make a finding
about what language they spoke, there was evidence that the wife
spoke English.

11
Francie testified at the trial and "reflected the ongoing

trauma of the tumultuous childhood," the judge found, by

suggesting that part of her reason for not wanting to leave the

United States was the lack of "closure with her feelings toward

Mother abandoning her years earlier." Francie "expressed

reservations about going to Brazil," but "[t]he Court did not

find the child to be as opposed to the move as had been

expressed" by the child's counsel and expert witness. The judge

recognized that Francie "no longer ha[d] the bond that she may

have once had with Father" and had some concerns about Francie's

"particular needs once she is reunified with Father and living

in a different country"; however, the judge ultimately concluded

that Francie "deserves a loving, supportive, and consistent

parent, and the evidence shows that Father is exactly that."

The judge determined that the father was "prepared to meet all

of [Francie]'s educational, medical, and emotional needs,"

therefore, the department "failed to present sufficient evidence

to establish that Father has grievous shortcomings or handicaps

that would put this child at risk," and failed to show "by clear

and convincing evidence that the Father is unfit." Reasoning

that the father "has a right to custody of his child," which

also "serves the best interests of the subject child," the judge

ordered reunification.

12
Francie claims this was error because, despite engaging in

services and visiting with Francie, the father did not "evidence

the insight that would allow him to parent a teenager who was

not bonded to him" and who had "complex emotional functioning."

Francie also asserts that the judge (1) "ignored crucial

unchallenged evidence" showing the father did not prioritize

Francie's needs over his own, and (2) made up his mind without

hearing all the evidence, as reflected by his comments about the

father's commitment to Francie and that "we're sort of just

going through an exercise here" because there was "no real

dispute as to" the father's fitness. Finally, Francie alleges

that the judge acted "with little regard for her well-being" by

ignoring her wishes and acting as if Francie's "best interests

were secondary to [the department]'s supposed failures (and

Father's rights)." Although this case presents a number of

concerns, we are not persuaded that the judge made a clear error

of judgment in weighing the factors relevant to the decision,

such that his decision fell outside the range of reasonable

alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

The father demonstrated growth from his therapy and an

understanding of Francie's emotional needs when he testified to

Francie's devastation by the loss of contact with her mother and

his support of the mother's recovery and Francie regaining

13
contact with her. In addition, before trial, he agreed during a

visit where Francie asked about his deportation to wait for

Francie's therapist to be present before he answered because he

knew the conversation would be emotional. The father also asked

a social worker for help telling Francie about his wife's

pregnancy in a way that would help Francie feel supported

because he worried she "might have a difficult time with this

information." Finally, the father identified a bilingual

therapist for the child, and planned to have her continue

therapy once in Brazil, because he "appreciates the challenges

that [Francie] is going to have . . . adjusting to the new

culture and family." Francie's assertion that the father failed

to demonstrate growth in his understanding of and ability to

meet Francie's needs is grounded in the father's supposed

refusal to accept that Francie did not want to move to Brazil,

and is belied by the judge's findings. The judge credited the

father's testimony that he "totally understand[s]" Francie's

fear of "leaving everything behind that she knows of and moving

to a different place."

In sum, "there was adequate evidence to support" the

judge's view that the father understood and was prepared to meet

Francie's particular needs, Adoption of Quentin, 424 Mass. 882,

887 (1997), making him "fit to parent this child in these

circumstances at this time." Guardianship of Estelle, 70 Mass.

14
App. Ct. at 582. Francie's disagreement with the father's

decision to seek reunification in Brazil rather than allow

Francie to stay in the United States is understandable, but her

disagreement does not create parental unfitness.

We are not persuaded that the judge's comments, in context,

show that he prejudged the case. While he did express a

favorable view of the father's efforts to maintain a

relationship with Francie after he was deported, the judge also

said, "I don't know that he's perfect," and denied the father's

request for a decision without hearing from Francie's expert.

Nor do we believe the judge acted without regard to Francie's

wishes or well-being. To the contrary, the judge had "deep

appreciation for the wishes of the child," characterizing her

"discontent in moving to a new country" as "very real."

The judge obviously understood that "the fitness of parents

and the best interests of the child are related," Custody of a

Minor, 389 Mass. 755, 766 (1983), with "the balance to be struck

. . . more complex in nature" than simply doing what one or the

other wants, Petition of the Dep't of Pub. Welfare to Dispense

with Consent to Adoption, 376 Mass. 252, 266 (1978), because he

recited that "[t]he specialized needs of a particular child when

combined with the deficiencies of a parent's character,

temperament, capacity, or conduct may clearly establish parental

unfitness." He also considered that "the question is what's

15
different? Why is [the child] going to struggle if she's -- if

she ultimately is sent back to live with her dad. Why -- you

know, what makes her different than another kid." These

comments reflect an appropriate focus on the father's fitness as

a function of "the various factors unique to" Francie, Custody

of a Minor, 375 Mass. 733, 753 (1978), rather than on the

father's fitness "in the abstract," Guardianship of Estelle, 70

Mass. App. Ct. at 579, or on the department's failures.

Francie points out that the judge's frustration with the

department was indeed "palpable." In some circumstances such

frustration might create a risk that the "judge's impartiality

might reasonably be questioned." Commonwealth v. Morgan RV

Resorts, LLC, 84 Mass. App. Ct. 1, 10 n.16 (2013). We have

carefully reviewed the record, however, and are confident that

it did not cloud the decision. 9 The judge's comments at trial,

findings, conclusions, and decision denying Francie's

postjudgment motion for a stay demonstrate that, as required,

G. L. c. 119, § 29C, his "lodestar" was always Francie's best

interests. Adoption of Bea, 97 Mass. App. Ct. at 426. See

Adoption of Ilona, 459 Mass. 53, 61 (2011) ("even where the

9 We too are concerned by the department's failure to take steps
to enable an in-person visit, such as transporting Francie to
another country.

16
department has failed to [make reasonable efforts], a trial

judge must still rule in the child's best interest").

The negative facts about the father that Francie claims the

judge ignored appeared in a record of the department's June 2010

investigation of a 51A report, see G. L. c. 119, §§ 51A, 51B,

wherein the father denied that the mother used illicit

substances. Yet, based on the father's testimony at trial, the

judge found that the mother "was actively using" illicit

substances before, in, and continuing after June 2010. Francie

argues that the father was either lying then and "squandered"

the opportunity to help Francie or he is lying now to put

himself in a better light. However, the father's testimony

about his actions in 2010 did not put him in a good light. By

his own admissions, when the child was two, the father thought

the mother was misusing illicit substances but left the child in

her care. The judge did not condone those actions and neither

do we. Still, "a determination of unfitness must be based on

current evidence," Adoption of Ramona, 61 Mass. App. Ct. 260,

264 (2004), as the judge recognized, focusing the parties at

trial on the present circumstances. 10 See Adoption of George, 27

Mass. App. Ct. 265, 268 (1989) (stale information cannot be

10For example, the judge said during the trial, "Let's kind of
focus on the present," and "obviously the issue is where are we
today."

17
basis for finding of current parental unfitness, though prior

history can have prognostic value); Petitions of the Dep't of

Social Servs. to Dispense with Consent to Adoption, 18 Mass.

App. Ct. 120, 126 (1984) ("isolated problems in the past or

stale information cannot be a basis for a determination of

current parental unfitness").

Finally, the judge properly considered the father's rights

as part of the analysis, because they were "cognate and

connected" with Francie's best interests. Blixt v. Blixt, 437

Mass. 649, 658 (2002). The presumption that parents will act in

their child's best interests, id., applies equally to Francie.

See G. L. c. 209C, § 1 ("Children born to parents who are not

married to each other shall be entitled to the same rights and

protections of the law as all other children"). Since paternity

was never in dispute, the father's and Francie's relationship

was "a family unit worthy of protection." Petition of New

Bedford Child & Family Servs. to Dispense with Consent to

Adoption, 385 Mass. 482, 490 (1982). See Smith v. McDonald, 458

Mass. 540, 544 (2010) ("Once paternity is established . . . [a]

father, if not unfit, has a constitutionally protected right to

parent and maintain a relationship with his child"); G. L.

c. 210, § 4A (unwed father entitled to custody if not unfit and

18
in child's best interest). The judge did not err in treating it

that way.

Judgment affirmed.

By the Court (Vuono, Henry &
Grant, JJ. 11),

Clerk

Entered: August 9, 2023.

11 The panelists are listed in order of seniority.

19