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16-P-1517                                            Appeals Court

                          ADOPTION OF ILIAN. 1


                            No. 16-P-1517.

             Bristol.      May 3, 2017. - June 28, 2017.

               Present:   Kinder, Henry, & Desmond, JJ.


Adoption, Dispensing with parent's consent. Minor,
     Adoption. Parent and Child, Dispensing with parent's
     consent to adoption. Practice, Civil, Findings by
     judge. Department of Children & Families.



     Petition filed in the Bristol County Division of the
Juvenile Court Department on August 23, 2013.

     The case was heard by Siobhan E. Foley, J.


     Matthew P. Landry, Assistant Attorney General, for the
Department of Children and Families.
     Abigail H. Salois, Committee for Public Counsel Services,
for the father.
     Diane Messere Magee for the child.


     KINDER, J.    Following trial, a Juvenile Court judge found

that Ilian's parents were unfit to parent him and that

termination of their parental rights was in Ilian's best

     1
         A pseudonym.
                                                                   2


interests, and she accordingly issued decrees terminating their

parental rights.   See G. L. c. 119, § 26; G. L. c. 210, § 3.

The judge approved a plan put forward by the Department of

Children and Families (DCF) for Ilian's adoption by the foster

family with whom he had been living for eighteen months.    On

appeal, the father claims error in the termination of his

parental rights in light of his plan for a paternal cousin

(cousin) to serve as Ilian's caregiver.   The father contends

that the judge failed to conduct an "even-handed assessment" of

the two plans.   We agree that the judge's assessment of the

father's plan should have been more explicit.    More detailed

findings regarding the cousin's credibility as a witness and

suitability as a caregiver would have clearly demonstrated the

required even-handed assessment.   Nevertheless, for the reasons

that follow, we conclude that the judge adequately considered

the father's alternative plan and properly concluded such

placement was not in Ilian's best interests. 2   Accordingly, we

affirm.

     Background.   We summarize the relevant facts, which have

ample support in the record.   Ilian was born in May, 2011, and

was almost five years old at the close of the trial.    DCF's

first involvement with Ilian's family was in September, 2012,

     2
       The mother is not a party to this appeal, having
stipulated to the termination of her parental rights before
trial.
                                                                     3


when DCF received a report pursuant to G. L. c. 119, § 51A (51A

report), for neglect, alleging that Ilian was present when the

father shot a sixteen year old boy.    Ultimately, DCF's

investigation did not support the claim that Ilian was present

at the shooting.    However, the father was convicted of the

underlying criminal offenses and sentenced to four to five years

in State prison.    The father was incarcerated from the time of

his arrest in 2012 through the termination of parental rights

trial in the Juvenile Court trial in 2016.    At the time of the

termination trial, his release date was uncertain.    There was no

evidence that the father had ever been Ilian's primary

caregiver.

     After the father's arrest, the mother's life became

increasingly unstable.    She was unable to maintain a home and

lived with friends and in homeless shelters.    Eventually, the

mother moved into an apartment with a woman who suffered from

alcoholism.    In August, 2013, a second 51A report was filed

after the mother and her roommate were involved in a violent

altercation.    Each woman claimed to have been stabbed by the

other.   The mother was arrested.   At the time of her arrest, the

home was in a "deplorable" condition and Ilian was "filthy."

DCF assumed temporary custody of Ilian and placed him with the

maternal aunt.    At the time, Ilian was just over two years old
                                                                      4


and was exhibiting developmental delays, including a profound

speech problem.

     DCF's initial plan to reunify Ilian with his mother was

changed to adoption in February, 2014.    In March, 2014, another

51A report was filed alleging neglect by the maternal aunt and,

on DCF's investigation, the allegations were supported.    In May,

2014, Ilian was removed from the aunt's home and placed in a

residential program before being moved to a specialized foster

home in July, 2014.

     Ten months later, in May, 2015, Ilian was placed with an

approved preadoptive foster family.    At first, Ilian cried

easily and had difficulty communicating.    By the time of trial,

Ilian was "thriving" and was able to engage in age-appropriate

conversations.    He was interacting well with the other children

in the family.    Ilian was described as "quite comfortable and

well settled."

     Prior to placing Ilian with his preadoptive foster family,

DCF investigated several potential kinship placements.    Two

relatives were excluded because of their criminal records.      The

paternal grandmother was considered but then excluded after she

failed to secure appropriate housing despite DCF's offer of

assistance.   The cousin was considered in May, 2014.   She was

informed by DCF that she would need an apartment with at least

two bedrooms.    The cousin next contacted DCF almost eighteen
                                                                       5


months later, just prior to trial, indicating that she would

like to be considered as a placement for Ilian.    At the time of

trial, the cousin was twenty-four and a single parent of an

infant son.   She worked forty hours per week as bus monitor.     By

that time, Ilian was well settled with his preadoptive family.

The cousin had not seen Ilian since he was approximately

fourteen to eighteen months old.    In explaining the eighteen-

month gap between her contact with DCF in 2014 and her contact

just before trial, she testified at trial that she had lost the

telephone number of Ilian's case worker, was caring for her own

son, and needed "to get my own self situated before I even did

anything else."

     Discussion.   1.   Termination of the father's 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).    Such a finding must be

supported "by clear and convincing evidence, based on subsidiary

findings proved by at least a fair preponderance of

evidence."    Adoption of Jacques, 82 Mass. App. Ct. 601, 606

(2012).   See Adoption of Mary, 414 Mass. 705, 710-711 (1993).

"We give substantial deference to a judge's decision . . . and
                                                                     6


reverse only where the findings of fact are clearly erroneous or

where there is a clear error of law or abuse of

discretion."    Ilona, supra.

     Here, the father does not contest the evidence of his

unfitness.    He claims, however, that the decree terminating his

parental rights was error in light of his nomination of the

cousin as a suitable kinship placement for Ilian.    He also

argues that certain factual findings were clearly erroneous.

After a careful review of the record, we conclude that, with two

exceptions discussed below, the judge's subsidiary findings of

fact were supported by a preponderance of the evidence, and

there was no error of law or abuse of discretion in her

conclusion that termination of the father's parental rights was

in Ilian's best interests.

     The father assigns error to a number of the judge's factual

findings.    In large part, however, his arguments challenge the

way in which the judge weighed the evidence.    On such matters we

defer to the trial judge.    See Adoption of Stuart, 39 Mass. App.

Ct. 380, 382 (1995) ("[D]eference is to be accorded the trial

judge's assessment of the credibility of witnesses and the

weight of the evidence").    There were two findings, however,

that lacked evidentiary support.    First, there was insufficient

evidence to support the judge's finding that the father was

aware of Ilian's possible autism diagnosis prior to his
                                                                     7


incarceration.    However, the father admitted that he knew about

the possible diagnosis at least by October, 2013, and failed to

pursue services for Ilian.    Second, there was no evidence that

the cousin's two-bedroom apartment was inadequate at the time of

trial.    However, it is undisputed that the cousin had not seen

Ilian for several years.    The cousin admitted that she failed to

stay in contact with DCF for eighteen months after she first

volunteered to care for Ilian and that she was unable to secure

adequate housing during that time.    By then Ilian was settled in

a stable environment with his preadoptive family.    Considering

these two erroneous findings in the context of all of the

evidence, we cannot say that the judge abused her discretion or

committed clear error in the ultimate decision to terminate the

father's parental rights.    See Care & Protection of Olga, 57

Mass. App. Ct. 821, 825 (2003) (ultimate conclusion of unfitness

supported where errors not central to ultimate conclusion).

     2.   Assessment of plans.   Under G. L. c. 210, § 3, there

are two considerations in determining whether termination of

parental rights is in the child's best interests.    First, the

judge must consider the "ability, fitness, and readiness of the

[child]'s parents to assume parental responsibility."    Adoption

of Vito, 431 Mass. 550, 568 n.28 (2000).    Second, the judge must

review "the plan proposed by [DCF]," ibid., with equal

consideration given to any competing plan proposed by a parent.
                                                                     8


See G. L. c. 210, § 3(c); Petitions of Dept. of Social Servs. to

Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 124

n.11 (1984).   "[T]he judge must assess the alternatives and, if

both pass muster, choose which plan is in the child's best

interests, however difficult that choice may be."     Adoption of

Dora, 52 Mass. App. Ct. 472, 475 (2001).    "In choosing among

placement plans, it falls to the sound discretion of the trial

judge to determine what is in the best interests of the child,

and our review on appeal is one of substantial

deference."    Adoption of Bianca, 91 Mass. App. Ct. 428, 434

(2017) (quotation omitted).   Here, the father contends that the

judge did not adequately consider the father's plan to have the

cousin act as Ilian's caregiver. 3   We disagree.

     DCF proposed, and the judge approved, a plan under which

Ilian would be adopted by his preadoptive foster parents.    There

is no dispute that Ilian was thriving in that placement.    The

judge found that Ilian "interacts well with the other children

in the home," that he is "comfortable with his pre-adoptive

parents," and that he "runs to [the] foster mother . . .    and

displays affection towards her."     See Adoption of Nicole, 40

Mass. App. Ct. 259, 262-263 (1996) (bonding between child and


     3
       We note that placement with the cousin was the last of a
number of family placements considered by DCF. The father does
not challenge DCF's rejection of the other three family members
as suitable caregivers.
                                                                     9


preadoptive parent is factor to be considered).    Significantly,

under the care of the preadoptive foster parents, Ilian's speech

had improved dramatically.   See Adoption of Ilona, 459 Mass. at

62 (no abuse of discretion in terminating parental rights where

child demonstrated "extraordinary progress" when removed from

mother and placed with foster parents).

     The judge's assessment of the father's plan for the cousin

to act as caretaker was less explicit, but she did make findings

related to the cousin's suitability.   The judge found that

"[i]n May of 2014, Father's cousin . . . contacted [DCF] to be

considered for placement.    [She] had a one bedroom apartment and

was advised that she would need a two bedroom."    The judge

further found that "[i]n November of 2015, [the cousin] informed

[the adoption social worker] that she was still living in a one

bedroom apartment but was soon to secure a two bedroom.      [The

cousin] had not seen [the child] since he was approximately 14-

18 months of age.   He is now 5 years old."   However, the

findings did not reflect that the cousin had secured a two-

bedroom apartment by the time of trial, as DCF required, and had

successfully completed a home study as ordered.

     We are mindful that the judge heard extensive trial

testimony from the cousin explaining her relationship with

Ilian, her personal circumstances, and her absence from Ilian's

life.   The judge was in the best position to weigh that
                                                                    10


testimony.   Although the better practice would have been for the

judge to make explicit findings of fact from which we could

determine her assessment of the cousin's credibility at trial

and her suitability as Ilian's caregiver, we think it is

implicit in the findings she did make that she considered

placement with the cousin and concluded such placement was not

in Ilian's best interests.      In these circumstances, where the

child was thriving in a stable environment with the preadoptive

foster parents, and the economic and emotional stability of a

placement with the cousin was uncertain, the judge acted well

within her discretion in concluding that Ilian's best interests

were served by DCF's plan that Ilian be adopted by his

preadoptive foster parents. 4

                                       Decree affirmed.




     4
       "Other points, relied on by the [father], but not
discussed in this opinion, have not been overlooked. We find
nothing in them that requires discussion." Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
