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18-P-1363                                           Appeals Court

                         ADOPTION OF VARIK.1


                           No. 18-P-1363.

           Plymouth.     April 5, 2019. - August 16, 2019.

              Present:   Agnes, Maldonado, & Sacks, JJ.


Adoption, Dispensing with parent's consent. Parent and Child,
     Dispensing with parent's consent to adoption, Adoption.
     Minor, Adoption.


     Petition filed in the Plymouth County Division of the
Juvenile Court Department on February 4, 2016.

     The case was heard by Dana Gershengorn, J.


     Lisa Augusto, Committee for Public Counsel Services, for
the father.
     Andrew Don for the child.
     Lynne M. Murphy for Department of Children and Families.


     AGNES, J.    A judge of the Juvenile Court found the father

unfit2 to parent his son, Varik, and issued a decree terminating


     1   A pseudonym, as are all of the names in this opinion.

     2 "Despite the moral overtones of the statutory term
'unfit,' the judge's decision is not a moral judgment, nor is it
a determination that the parent does not love the [child]. The
                                                                    2


his parental rights, thereby dispensing with his need to consent

to Varik's adoption.3   The judge committed Varik to the custody

of the Department of Children and Families (department),

approved the department's adoption plan, and ordered

postadoption visitation between the father and Varik.4   Both the

father and Varik appeal.   The father argues that the judge

abused her discretion in denying his request to continue the

trial, in finding him permanently unfit without considering the

department's failure to provide appropriate services to address

his family's unique needs, and in terminating his parental

rights in the absence of an adequate adoption plan.    Varik

contends that the adoption plan approved by the judge is

deficient and, as a result, the termination decree must be

vacated and the case remanded, and that the department failed to

make reasonable efforts to provide appropriate services to the

father.   We affirm in part and vacate in part.




question for the judge is whether the parent's deficiencies
place the child[] at serious risk of peril from abuse, neglect,
or other activity harmful to the child[]" (quotations and
citations omitted). Adoption of Lisette, 93 Mass. App. Ct. 284,
285 n.2 (2018).

     3 The mother's parental rights were also terminated. She
resides in North Carolina, did not participate in the trial, and
is not a party to this appeal.

     4 The order for postadoption visitation provides for three
visits, of at least two hours' duration each, per calendar year.
                                                                    3


     Background.   The judge made eighty-two findings of fact

based on the testimony of three witnesses and thirty-one

exhibits introduced at trial.   Varik was born in 2008 and was

nine years old at the time of the termination of parental rights

trial in May, 2018.   The mother and the father have two children

together, Varik and Varik's sister, who lives with the mother

and the mother's boyfriend in North Carolina.   Varik moved to

Massachusetts to live with the father in May, 2015, at age six,

after he reported that the mother's boyfriend had cut him with a

knife and child protective services in North Carolina became

involved with the mother's family.5   The father currently lives

in Rhode Island with his long-term girlfriend and their

daughter, Varik's younger half-sister.

     In February, 2016, a mandated reporter filed a report

pursuant to G. L. c. 119, § 51A, alleging that Varik had

attended school with a swollen, painful hand, and had disclosed

that his father "gave him a whoopin' with his hand" the day

before, causing Varik to fall on and injure his own hand.     The

father picked up Varik from school, telling school workers that

Varik was "a liar" and that he would take Varik to the doctor.

Later that day, as part of the emergency investigation pursuant

to G. L. c. 119, § 51B, a department investigative worker and a


     5 The North Carolina child protection case and related
criminal charges were later dismissed.
                                                                     4


social worker visited the home.   There they found the father

alone because his girlfriend had taken Varik, along with his

younger half-sister, to the hospital.   At the hospital, Varik

told department social workers that the father had hit him on

the legs with a belt the week before.   The father did not visit

Varik, who had a hand fracture, at the hospital.    The department

took custody of Varik that day and filed a care and protection

petition in the Juvenile Court the following day.

    Under the service plan prepared by the department, the

father's tasks included consistently engaging in counselling to

address his anger issues and how the abuse had impacted Varik,

exploring alternative methods of disciplining the children,

completing a parenting course, and consistently visiting Varik.

The father completed the parenting course and participated in

some individual counselling addressing his ability to better

handle Varik's behaviors and to recognize the causes of those

behaviors.   The father's first counsellor terminated services

because the father missed several appointments in a row.     The

department also had a very difficult time contacting the father

to schedule his visits with Varik, and the father missed a

number of visits, citing the demands of his work schedule.      To

accommodate his work schedule and better facilitate the

supervised visits, the department began scheduling the visits at

a visitation center on Saturdays.   Despite this accommodation,
                                                                   5


the father still missed numerous visits and expressed

aggravation if Varik arrived late, blaming the department for

his tardiness.6   As of September, 2016, the father denied abusing

Varik and denied any responsibility for Varik being in the

department's care.

     Throughout this time, Varik remained in a foster home and

exhibited troubling behavior, including lying, a series of

thefts, and hoarding food on an almost daily basis.     Varik's

disruptive behaviors at school and in his foster home improved

over time as he joined a school social group, began individual

counselling, and met with a mentor.   By February, 2017, the

department determined that the father had made significant gains

as a result of his engagement with his service plan tasks and

reunified Varik with him.   During this period of reunification,

an intensive in-home family therapeutic service was put in

place, and the department developed a new service plan for the

family that included tasks for the father such as continuing

counselling to address his anger issues and the impact the abuse




     6 The father was arraigned in the District Court on May 5,
2016, on charges of assault and battery by means of a dangerous
weapon on a child causing substantial injury; assault and
battery by means of a dangerous weapon on a child under age
fourteen; and assault and battery. He was released subject to
the conditions that he stay away from and have no contact with
the victim, Varik, not abuse the victim, and comply with
department orders. As a result of the no-contact order, no
visits occurred between May and October, 2016.
                                                                     6


had on Varik, and exploring alternative methods of discipline

that are safe and appropriate for children.

    Varik reentered the department's care two months later, in

April 2017, when the father and his girlfriend brought him to

the department's office and stated that they could no longer

care for him, given his troublesome behaviors, and that the

father could not handle him without using physical discipline.

The father told the department social worker that "the only way

for [Varik] to learn [was] through pain."     At a subsequent home

visit in June, 2017, the father reported to the social worker

that it was Varik's fault that he was in the department's

custody and reiterated his belief that physical discipline was

the best method of addressing Varik's problematic behaviors.

Additionally, the father told the social worker that it was "in

[Varik's] blood to be bad."    In November, 2017, the father, his

girlfriend, and Varik's younger half-sister moved to Rhode

Island.

    Varik was eventually placed in a comprehensive intensive

foster care (IFC) home, where he remained at the time of the

trial.    By May, 2018, Varik was doing well academically, was

medically up-to-date, and had graduated from an after-school

mentoring program.    While he still occasionally exhibited

disruptive behavior, such as stealing food or school supplies,

he also consistently engaged in therapeutic counselling
                                                                    7


treatment, and the department had made a referral for him to

resume services with his former therapeutic mentor.   Once Varik

returned to the department's care, the father refused to engage

in any services that were asked of him and did not participate

with the department in any meaningful way toward reunification.

The father told the department social worker that he did not

need services, and he refused to participate in any further

therapy.

    In the twelve months leading up to trial in May, 2018, the

father visited Varik seven times, often cancelling or not

appearing for scheduled visits.   He cited the nature of his

seasonal work schedule, which often required him to be out of

State for periods of time, as the reason for his frequent

absences.   While the father and Varik did have some positive and

age-appropriate interactions during some visits, the father on

other visits would criticize Varik or primarily discuss the

department's case or upcoming court dates with him.   During one

visit, Varik had a sudden and severe allergic reaction and was

taken by ambulance to the hospital.   The father did not

accompany Varik to the hospital and caused Varik great distress

by his absence.   The father also did not follow up with the

social worker regarding Varik's medical treatment or condition.

    In February, 2018, the father indicated to the department

an interest in engaging in family therapy.   However, Varik's
                                                                     8


therapist at the time reported to the department that family

therapy would be "completely inappropriate" given the father's

repeated "toxic encounters" with Varik, including a recent

telephone call the father had made to Varik during which he

blamed Varik for the care and protection case, stated he would

never regain custody of Varik, and threatened to move to North

Carolina.

     Adoption plan.     On November 28, 2017, the department

changed its goal for Varik to permanency through adoption.     The

department had submitted a request pursuant to the Interstate

Compact on the Placement of Children (ICPC) for a home study in

South Carolina for Varik's paternal step-grandmother, who had

cared for Varik when he was younger; that home study was pending

at the time of trial.    Additionally, the department asserted at

trial and on appeal that it was working to identify Varik's

"Aunt Susan," who had visited with him a few months before

trial, as a potential adoption resource.7    The adoption social

worker further testified at trial that should the ICPC request

be denied, the department would proceed to recruitment, using

the services of the Massachusetts Adoption Research Exchange,




     7 Varik has two aunts named Susan. The maternal aunt was
screened out as an adoption resource, and the department was
still attempting to gather more information regarding the
paternal aunt named Susan at the time of trial.
                                                                     9


and refer Varik to the department's adoption development

licensing unit for additional recruitment activities.

      The adoption plan did not detail Varik's specific ongoing

needs, nor did it describe the specific characteristics of the

ideal family that would be recruited by the department or the

necessary home environment that would be the best and most

appropriate placement for him.

      Discussion.   1.   Dispensing with parental consent to

adoption.    "In determining whether to dispense with parental

consent to adoption, the judge must not only determine whether a

parent is unfit, but [she] must also evaluate 'whether

dispensing with the need for parental consent will be in the

best interests of the child[ ].'"    Adoption of Thea, 78 Mass.

App. Ct. 818, 823 (2011), quoting Adoption of Mary, 414 Mass.

705, 710 (1993).    This determination requires a "two-part

analysis."   Adoption of Nancy, 443 Mass. 512, 515 (2005).

"First, the judge must find that the parent is presently unfit."

Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012).        Second,

the judge must find that the child's best interests would be

served by ending all legal relations between parent and child.

Id.   "That determination includes consideration of the

permanency plan proposed by the department" and any such plan

proposed by the parents.    Id.   Because the judge is in a

"superior position to evaluate witness credibility and weigh the
                                                                   10


evidence, we review her findings with substantial deference and

will not disturb those findings unless clearly erroneous."      Id.

at 166.   The judge's ultimate determination of parental fitness

must, however, be shown to have been proved by clear and

convincing evidence to withstand appellate review.   See Custody

of Eleanor, 414 Mass. 795, 801–802 (1993).   We give deference to

the judge's determination of the child's best interests, and

"reverse only when there is a clear error of law or abuse of

discretion."   Adoption of Cadence, supra.

    In making these determinations, the judge must consider

"whether the parent's deficiencies 'place the child at serious

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

the child.'"   Adoption of Olivette, 79 Mass. App. Ct. 141, 157

(2011), quoting Care & Protection of Bruce, 44 Mass. App. Ct.

758, 761 (1998).   This must be 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. at 711.

    "[P]hysical force within the family is both intolerable and

too readily tolerated, and . . . a child who has been . . . the

victim . . . of such abuse suffers a distinctly grievous kind of
                                                                 11


harm."   Custody of Vaughn, 422 Mass. 590, 595 (1996).8   The

"failure to follow service plan tasks and visitation schedules


    8  Properly understood, the view expressed in Custody of
Vaughn, 422 Mass. at 595, that the use of "physical force"
within a family is intolerable, is not in conflict with a
parent's right to discipline his or her child. In Commonwealth
v. Dorvil, 472 Mass. 1, 10 (2015), the Supreme Judicial Court
addressed the subject of corporal punishment in the setting of a
criminal prosecution of a parent, and set forth a framework
balancing parental rights and the interests of their children.
The court there stated:

    "[A] parent or guardian may not be subjected to criminal
    liability for the use of force against a minor child under
    the care and supervision of the parent or guardian,
    provided that (1) the force used against the minor child is
    reasonable; (2) the force is reasonably related to the
    purpose of safeguarding or promoting the welfare of the
    minor, including the prevention or punishment of the
    minor's misconduct; and (3) the force used neither causes,
    nor creates a substantial risk of causing, physical harm
    (beyond fleeting pain or minor, transient marks), gross
    degradation, or severe mental distress."

Id. at 12. The court concluded that the evidence that the
parent "smacked" his young child (at the time nearly three years
old) "once on her clothed bottom" without causing any physical
injury was not "sufficient to prove beyond a reasonable doubt
that the defendant's use of force was unreasonable or not
reasonably related to a permissible parental purpose." Id. at
13.

     In Custody of Vaughn, by contrast, the facts indicated that
the father had committed acts of serious violence against the
mother and her three children, including the sexual abuse of one
child. 422 Mass. at 595. Clearly, the use of "physical force,"
based on the facts described in Custody of Vaughn, supra, would
find no sanction under the parental privilege recognized in
Dorvil, 472 Mass. at 10. Likewise, the father's physical abuse
of Varik is far removed from the scope of the parental privilege
recognized in Dorvil. For cases involving parental conduct that
was determined to be criminal notwithstanding an assertion of
the parental privilege to discipline a child, see Commonwealth
v. Rosa, 94 Mass. App. Ct. 458, 464 (2018); Commonwealth v.
                                                                   12


may be relevant to determining parental unfitness."   Adoption of

Leland, 65 Mass. App. Ct. 580, 585 (2006).

    Here, the judge's unchallenged findings established that

the father had physically abused Varik.   Even after engaging in

individual counselling and a parenting course to address his own

anger issues and identify alternative methods of discipline, the

father still believed that physical force was necessary to

discipline Varik.   Both of the father's service plans included,

among other things, meeting with DCF, consistently engaging in

counselling, consistently visiting Varik, and refraining from

using physical discipline.   While the department noted enough

improvement in the father when he partially complied with his

initial service plan to eventually reunify Varik with him, the

department saw no improvement from the time Varik returned to

the department's custody in April, 2017, to trial in May, 2018.

The father consistently denied responsibility for Varik being in

the department's custody, instead blaming Varik himself, and he




Dobson, 92 Mass. App. Ct. 355, 357-358 (2017); Commonwealth v.
Lark, 89 Mass. App. Ct. 905, 906 (2016).

     We note that the department has a policy that explicitly
forbids "the use of any form of corporal punishment by
foster/pre-adoptive parents upon any foster child(ren)." 110
Code Mass. Regs. § 7.111(3) (2009). In Magazu v. Department of
Children & Families, 473 Mass. 430, 441 (2016), the court
concluded that the department had the authority to deny an
application to become foster parents solely on ground that the
"parents administer physical discipline to their own children."
                                                                    13


believed "it [was] in [Varik's] blood to be bad."     Thus, the

father's failure to comply with the additional service plan

tasks, see Petition of Catholic Charitable Bureau to Dispense

with Consent to Adoption, 13 Mass. App. Ct. 936, 937-938 (1982),

as well as his demonstrated inability to "achieve[] the

essential gains in [his] parenting skills" support the finding

of unfitness.9   Adoption of Paula, 420 Mass. 716, 731 (1995).

See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999)

(failure to demonstrate benefit derived from provided services

may be probative of parental unfitness).     The judge's

determination that, at the time of trial, the father was not fit

to parent Varik is supported by clear and convincing evidence.

     2.   Adequacy of services.   The father, joined by Varik,

argues that his unfitness at the time of trial was temporary and

was exacerbated by the department's failure to make reasonable

efforts to offer services more tailored to his family's specific

needs.    This assertion is without merit.   The department is

required to make "every reasonable effort to encourage and

assist families to use all available resources to maintain the

family unit intact."    110 Code Mass. Regs. § 1.01 (2008).   See

G. L. c. 119, § 1; Adoption of Ilona, 459 Mass. 53, 60 (2011)




     9 Additionally, the judge properly considered the fourteen
factors specified in G. L. c. 210, § 3, and found nine
applicable to this matter.
                                                                     14


("[B]efore seeking to terminate parental rights, the department

must make 'reasonable efforts' aimed at restoring the child to

the care of the natural parents").   However, this obligation is

"contingent upon [the father's] fulfillment of [his] own

parental responsibilities," and subject to the department's

competing duty "to insure that the child is protected from the

absence, inability, inadequacy or destructive behavior of the

parent."   Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997).

See G. L. c. 119, § 1; 110 Code Mass. Regs. § 1.02 (2008).         The

two service plans generated by the department were nearly

identical, and the judge found that they contained tasks that

were "necessary and appropriate" for the goal of reunification,

including tasks that had yielded noted improvements in the

father's parenting skills previously.

    In the weeks leading up to Varik's return to the

department's custody, a department social worker attempted to

contact the father to confirm and clarify the behavioral

problems his girlfriend had reported that Varik was exhibiting

and with which they were struggling.    The social worker found

the father uncommunicative and unwilling to elaborate.       The

social worker discussed with the father the importance of

reengaging in individual therapy as provided in his second

service plan, but the father stated he did not need services

because he was doing "therapy with himself."    Apart from
                                                                   15


indicating a willingness to engage in weekend family therapy

nine months after Varik reentered care, the father did not

otherwise request any specific additional services from the

department.   Varik's therapist believed that family therapy

would negate the progress Varik had made in the intervening

months due to the father's failure to consistently attend

scheduled monthly visits and his repeated "toxic encounters" and

"toxic phone calls" with Varik.   Given the father's refusal to

fulfill his parental responsibilities by working with the

department to reengage in the services asked of him, his failure

to benefit meaningfully from his earlier partial compliance,10

and the department's consistent attempts to accommodate

visitation and meetings around the father's work schedule, the

judge properly found that the department made reasonable efforts

to encourage reunification, and that the tasks within both

service plans were necessary and appropriate.

     3.   Adequacy of adoption plan.   Varik and the father next

argue that the adoption plan approved by the judge was so

deficient that the decree must be vacated and the case remanded.

Following a finding of unfitness, the judge "must determine

whether the parent's unfitness is such that it would be in the




     10For example, the father continued to believe, in April,
2017, after individual counselling and his completion of a
parenting course, that Varik could only learn "through pain."
                                                                    16


child's best interests to end all legal relations between parent

and child."    Adoption of Nancy, 443 Mass. at 515.   In

determining the best interests of the child, the judge must

consider, among other things, "the plan proposed by the

department."    G. L. c. 210, § 3 (c).   The law does not require

that the adoption plan be "fully developed" in order to support

a termination order, but it must provide "sufficient information

about the prospective adoptive placement 'so that the judge may

properly evaluate the suitability of the department's

proposal.'"    Adoption of Willow, 433 Mass. 636, 652 (2001),

quoting Adoption of Vito, 431 Mass. 550, 568 n.28 (2000).     In

determining the sufficiency of the plan, the judge may consider

evidence and testimony presented at trial regarding unfitness

and the child's best interests, in addition to the written plan.

Adoption of Willow, supra at 653.    See Adoption of Stuart, 39

Mass. App. Ct. 380, 393 (1995) (judgment reversed where there

was lack of written adoption plan combined with social worker's

inability to testify as to what type of home would be suitable

for each child).    In brief, in order to comply with G. L.

c. 210, § 3 (c), the department must submit to the judge an

adoption plan that is sufficiently detailed to permit the judge

to evaluate the type of adoptive parents and home environment

proposed and consider whether the proposal is best suited to

meet the specific needs of the child.
                                                                  17


     Here, the adoption plan proposed by the department was

inadequate, and the judge therefore abused her discretion in

concluding that it was in Varik's best interests.   The written

adoption plan stated that the department's goal was

"[p]ermanency [t]hrough [a]doption."   That is an appropriate

goal, but in the circumstances of this case, standing alone, it

did not convey enough information for the judge to assess the

various options that the department was actively considering.

The department's plan contained a description of a pending ICPC

request for the paternal step-grandmother in South Carolina.      If

the ICPC request for the paternal step-grandmother was denied,

the department planned to proceed to recruitment activities.

The adoption social worker testified that Varik had stated that

if he could not return to his father, he would like to live with

his "Aunt Susan," whose contact information the department had

yet to acquire.11

     In the present case, the adoption plan submitted by the

department outlined the goal for Varik's adoption but failed to

specify the type of adoptive parents and the characteristics of

the home environment best suited to meet his specific needs.

Although the plan contained some details of Varik's medical




     11See Adoption of Nancy, 443 Mass. at 518 (children's
wishes in custody determinations should be considered by judge
but are "neither decisive . . . nor outcome determinative").
                                                                   18


history, placement history, and ongoing behavioral issues, this

was not a substitute for information describing the kind of home

environment and adoptive family makeup that ideally would best

meet Varik's particular needs.   Cf. Adoption of Lars, 46 Mass.

App. Ct. 30, 32 (1998) (adoption plans for multiple children

sufficiently detailed where they identified preferred number of

parents in each adoptive household, identified that adoptive

parents should be trained regarding each child's specific

neurological and behavioral issues, and indicated how many other

children of what ages should be in adoptive homes).12   We must,

therefore, remand this case for further proceedings and findings

on this issue.13

     4.   Termination of parental rights.   In vacating the decree

insofar as it relates to the approval of the adoption plan, we

also consider whether it was error for the judge to terminate


     12The judge determined that "the adoption plan proposed by
the [d]epartment has sufficient content and substance and it
established a superior plan for [Varik], and is in [Varik's]
best interests." The judge also found that there was a pending
ICPC request regarding the paternal step-grandmother and that
the department's plan is adoption by recruitment. These
findings are not sufficient to establish that the adoption plan
satisfies G. L. c. 210, § 3 (c). Adoption of Dora, 52 Mass.
App. Ct. 472, 475 (2001).

     13We do not hold nor are we suggesting that an adequate
plan once approved by the judge is binding on the department,
because circumstances may change and the best interests of Varik
may require adjustments in the adoption plan. Furthermore,
under G. L. c. 119, § 29B, there is an annual judicial review of
the department's permanency plan for children in its care.
                                                                    19


the father's parental rights.   It is important to consider that

the judge found that throughout the pendency of this case the

father failed to acknowledge any responsibility for the care and

protection of Varik, continued to believe that the only way to

remedy Varik's problems was to physically punish him, and,

following a failed effort at family reunification in 2017,

refused to engage in any of the services offered by the

department.   As the judge noted, the father was offered services

designed to remediate his parenting deficiencies and to protect

Varik from abuse, but the father failed to engage in many of

these services and "failed to consistently follow through with

appointments, services, visitation, and court appearances."    On

the record before us, the judge was warranted in concluding not

only that the father was incapable of providing appropriate care

and custody for Varik at the time of trial, but also that the

father's shortcomings were "likely to continue into the

indefinite future to a near certitude."   See Adoption of Nancy,

443 Mass. at 517 (judge is not required to grant father

indefinite opportunity to remedy parenting deficiencies).

"Where there is evidence that a parent's unfitness is not

temporary, the judge may properly determine that the child's

welfare would be best served by ending all legal relations

between parent and child."   Adoption of Cadence, 81 Mass. App.

Ct. 162, 169 (2012).
                                                                   20


      Relying on Adoption of Dora, 52 Mass. App. Ct. 472, 479

(1978), and several other cases, the father argues that judicial

approval of an adequate adoption plan is a necessary

"precondition" to a decision that parental rights should be

terminated, and that, as a result, we should vacate the portion

of the decree that terminates his parental rights.     In Adoption

of Dora, supra, the department and the parents advocated

competing plans.    The department's plan called for the child to

be adopted by her foster parents, while her father proposed that

she be placed with a paternal uncle in California.     The judge

did not indicate which of these alternative plans was in Dora's

best interests.    Id. at 473-474.   On appeal, this court

concluded that it "was not appropriate" for the judge to leave

to the department the decision about which adoption plan was

best for the child, subject only to review by the adoption

judge.   Id. at 476.   In such circumstances, an order terminating

parental rights was premature because it would deprive the

biological parents of standing to "advocate their point of view"

regarding which one of the competing plans should be approved.

Id.   In the present case, by contrast, the father has not

proposed an adoption plan, and there are no competing plans that

must be assessed by the judge.

      Our decision in Adoption of Thea, 78 Mass. App. Ct. 818,

825 (2011), is not to the contrary.    There, the court faced an
                                                                    21


unusual set of circumstances involving an "extremely high risk"

teenager who was approaching her eighteenth birthday and was in

an unstable placement (a long-term hospitalization unit).     Id.

at 824.    Based on the absence of any identifiable plan in place

for Thea, "inadequate" findings by the judge as to why

termination of parental rights would be in her interests, and

the possibility that she would return to live with her mother

after her eighteenth birthday, we not only remanded the case for

consideration of a plan but also vacated the portion of the

decree that terminated parental rights.     Finally, in Adoption of

Stuart, 39 Mass. App. Ct. at 393, where the department presented

no adoption plans and there was no testimony regarding the type

of homes sought for the children, and the evidence did not

establish parental unfitness at the time of trial, we concluded

that the order terminating parental rights should be vacated. In

Adoption of Stuart, unlike the present case, the judge's entire

focus was on the mother's past unfitness.    The judge overlooked

significant progress made by the mother since her children were

removed.   Id. at 391-392.   By contrast, in this case, the judge

found that the father had made no progress in addressing his

parenting deficiencies since the date of the failed effort at

family reunification in 2017.    The department is "not required

to . . . relitigate the rights of an unfit parent" whenever

there is a change in circumstances.    Adoption of Willow, 433
                                                                   22


Mass. 636, 647-648 (2001).   Here, for the reasons stated

earlier, the judge was warranted in concluding that there were

"grievous shortcomings" in the father's efforts to parent Varik

that placed Varik at serious the risk of harm, that would not be

remedied in the foreseeable future, and that justified the

termination of the father's parental rights.   See Adoption of

Katharine, 42 Mass. App. Ct. 25, 28 (1997).    As in Adoption of

Cadence, 81 Mass. App. Ct. at 174, we may remand the matter for

further proceedings with regard to the department's proposed

adoption plan without vacating that portion of the decree that

terminates the father's rights.14

     Conclusion.   We affirm the decree insofar as it adjudicates

Varik in need of care and protection under G. L. c. 119, § 26,

and terminates the father's parental rights pursuant to G. L.




     14The father also argues that the judge abused her
discretion in denying his request for a continuance. "Whether
to continue any judicial proceeding is a matter entrusted to the
sound discretion of the judge . . . ." Care & Protection of
Quinn, 54 Mass. App. Ct. 117, 120 (2002). See Mass. R. Civ. P.
40 (b), 365 Mass. 802 (1974) ("Continuances shall be granted
only for good cause"). The trial was originally scheduled to
begin on April 9, 2018. It was continued to May 30, 2018, due
to the judge's schedule. That date was agreed to by all counsel
on April 30, 2018, a day when the father was present in court.
On the trial date, the father's counsel did not know why his
client was absent and was unable to reach him by phone. It was
assumed that the father was working out of State. The judge
noted that the case was more than two years old. Based on these
considerations, the judge did not abuse her discretion in
denying the motion to continue. See L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
                                                                 23


c. 210, § 3.   We vacate that portion of the decree approving the

department's adoption plan and remand this matter so that the

judge may promptly, after an evidentiary hearing if necessary,

consider an adequate adoption plan.

                                   So ordered.
