Care and Protection of Gaston

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

25-P-96 Appeals Court

CARE AND PROTECTION OF GASTON1

(and one companion case2).

No. 25-P-96.

Bristol. October 10, 2025. – January 16, 2026.

Present: Hand, Hodgens, & Tan, JJ.

Parent and Child, Custody of minor, Care and protection of

minor, Adoption, Dispensing with parent's consent to

adoption. Minor, Care and protection, Custody, Adoption.

Department of Children & Families. Adoption, Dispensing

with parent's consent, Foster parents. Probate Court,

Custody of child, Findings by judge. Interstate Compact on

Placement of Children. Practice, Civil, Care and

protection proceeding, Findings by judge.

Complaint filed in the Bristol Division of the Probate and

Family Court Department on May 30, 2019.

Petition filed in the Bristol Division of the Probate and

Family Court Department on January 27, 2022.

Following an order entered by Susan L. Jacobs, J.,

transferring care and custody of the child to the Department of

Children and Families, the cases were heard by Richard J.

McMahon, J.

1 A pseudonym.

2 Paternity of Gaston.

2

Tsvetelina Gerova-Wilson for the father.

David A. Runkle for the child.

Jeremy Bayless for Department of Children and Families.

TAN, J. The Department of Children and Families

(department) filed a petition to terminate the parental rights

of the father and the mother to their child, Gaston.3 Following

a trial, a judge of the Probate and Family Court found the

father unfit to parent Gaston and that this unfitness would

remain for the foreseeable future, but he also found that it was

not in Gaston's best interests to terminate the father's

parental rights and denied the department's petition to dispense

with the father's consent to adoption.4 The judge did not

explicitly address the department's permanency plan of adoption

in his findings and instead concluded that Gaston's "current

circumstances [were] in furtherance of his best interests."5 The

judge also denied the father's motion for a finding that the

3 In June 2019, a different judge sua sponte transferred

custody of Gaston to the department pursuant to G. L. c. 119,

§ 23 (a) (3).

4 The judge entered a decree terminating the mother's

parental rights to Gaston. The mother has not appealed from

that decree.

5 The judge also entered a final judgment on the father's

complaint to establish paternity. The father's name did not

appear on the birth certificate; he established paternity in

February 2022.

3

department abused its discretion by not providing additional

parenting time (motion for abuse of discretion).6 See Care &

Protection of Rashida, 488 Mass. 217, 221-222 (2021). The

father appeals from the judge's decision finding him unfit and

the denial of his motion for abuse of discretion. The

department and the child appeal from the judge's dismissal of

the department's petition seeking to terminate the father's

parental rights. We affirm the finding of the father's

unfitness and the denial of the father's motion for abuse of

discretion, but, where the judge did not assess the department's

adoption plan and did not specify his reasons for concluding

that maintaining Gaston in his "current circumstances" was in

the child's best interests, we remand the matter to the Probate

and Family court for additional proceedings consistent with this

opinion.

Background. We summarize the trial judge's findings of

fact, which are not disputed.

1. Overview. The parents were engaged in a brief

relationship over three months in late 2015 to early 2016. The

mother became pregnant, was incarcerated during the pregnancy,

6 On July 17, 2023, the judge ordered that the father's

motion be consolidated with the trial.

4

and gave birth to Gaston during her incarceration. The father

resided in Connecticut.

Following his birth in October 2016, Gaston was placed in

the care of his maternal grandfather. In July 2018, Gaston was

placed in the care of a maternal cousin and her spouse, who were

appointed as Gaston's temporary guardians in August 2018. They

resigned as his guardians in June 2019, and a different judge

sua sponte transferred custody of Gaston to the department. In

February 2020, the department placed Gaston with foster parents,

who became his preadoptive parents, and he remains with the same

family. The department initially identified reunification as

Gaston's permanency goal and worked with the parents to prepare

for reunification.

2. The father's compliance with the department's action

plan. The father's tasks on his action plan at the time of

trial included, inter alia, meeting monthly with the

department's social worker; refraining from "substance use

(illicit substances and marijuana)"; following recommendations

of therapeutic providers; notifying the department of any

changes within the household; taking medication as prescribed by

physicians to mitigate any mental or medical health issues;

completing a neuropsychological evaluation, providing a copy to

the department, and following any recommendations; abiding by

the "family time visitation schedule," ensuring that visits are

5

confirmed, and maintaining consistency; and providing requested

information about his relationship pertaining to the

department's assessment of his partner.

During the pendency of the case, the father completed some

of the action plan tasks, including completing a parenting

assessment and parenting classes, but never provided the

department with a neuropsychological evaluation or written

transition plan for a reunification with Gaston. The father

told the social worker that he had been diagnosed with bipolar

disorder, depression, and an addictive personality. The father

did not take his medication as prescribed to him by his doctor,

preferring to smoke marijuana to reduce his stress.

In June 2020, the father told the department that he was

unsure if he wanted Gaston to be placed with him and reported

that he felt defeated and overwhelmed because of changes in his

family dynamic, conflict with his partner, work, and a lack of

support.

At the foster care review on February 16, 2022, the father

was "expelled" from the meeting because of his "verbal

behavior."

3. The father's visitation. The father had several in-

person visits with Gaston between September 2019 and January

2020, and there were no reported concerns with the visits. At

6

the onset of the COVID-19 pandemic, the department began

providing parenting time through virtual visits.

The father's job as a truck driver required extensive

travel, causing him to miss parenting time. On average, the

father missed every other virtual visit, even when he had

confirmed the appointments. In July 2021, the department

offered the father extra visitation at a visitation center, but

the father refused the visits and declined virtual evening

visits with the child. He told the social worker that he was

not taking any suggestions from the department and alleged that

Gaston was being mentally abused. In July 2021, the father

requested that his visits with Gaston take place every other

week instead of once a week because of the stress of the case

and the drive to and from the visits. The department told the

father that they could discuss unsupervised visits and overnight

visits once he started visiting Gaston more frequently and

things were going well. Following a June 2022 visit, the father

decided to have virtual visits because he did not feel

comfortable having in-person visits in the department offices

where police officers were present.

The child told the social worker that he wants to visit the

father and likes visiting with him. The department made several

attempts to implement a parenting schedule with the father, but

the father's job prevented him from maintaining a consistent

7

schedule with Gaston. The father and Gaston began in-person

visits in visitation centers starting in March 2023. After

three visits, the visitation center terminated the visits

because of reported concerns by the staff. During his visits at

the center, the father complained to the center staff about the

department. There were also concerns about the father's

frustration when Gaston was struggling with an activity and the

father's inability to effectively communicate with him. In

April 2023, the department offered the father a parenting plan

that alternated virtual and in-person visits to limit the

father's driving time. In September 2023, the department

contacted the father to create a visitation schedule, but the

father stated that he could not adhere to a schedule.

4. Interstate Compact on the Placement of Children (ICPC).

In July 2020, the department requested that the Connecticut

Department of Children and Families (Connecticut department)

conduct an ICPC study of the father's home to determine whether

the department could place Gaston with the father. In December

2020, the department received the Connecticut department's ICPC

decision approving placement in the father's home. However, the

ICPC report noted that the father was on the Connecticut

department's list of perpetrators of physical abuse or neglect,

and after receiving the report the department placed a hold on

transitioning Gaston to the father. Following concerns

8

identified in the ICPC report about the father's past cocaine

use, the department asked him to provide a hair follicle test.

The father provided the department hair follicle test results

showing that he tested negative for all substances except

marijuana, for which he informed the department that he had a

medical card. The department also asked the father to provide

identifying information about his partner, whom he named in the

ICPC report as a potential caregiver for Gaston.

In February 2022, the father told the department social

worker that he, his family, and his fiancée7 did not want any

services. The social worker responded that the department

needed to fully assess his partner as a caregiver to ensure the

safety of his home.

That same month, the department requested a second ICPC

home study after the first ICPC home study expired. The second

ICPC home study was subsequently approved but later closed by

the department.

5. The child. In January 2022, the department changed its

primary permanency goal for Gaston to adoption. The foster

parents have been Gaston's longest caregivers and were approved

for adoption in April 2023. The department's adoption plan is

to sponsor the adoption of Gaston with his foster parents, to

7 The father testified at trial that he and his partner were

engaged.

9

whom Gaston has formed an attachment and refers as "Mom" and

"Dad." The foster parents have ensured that Gaston receives

regular medical and dental care. They have provided Gaston with

consistency and routine, and he has become used to the structure

in the foster home.

At the time of trial, Gaston had special education needs

and there were concerns about his reading ability and a speech

delay. Gaston had an individualized education plan (IEP);

received small group instruction and assistance outside the

classroom; and required cues, extra repetition, and multiple

directions.

Discussion. The judge made written findings including

detailed findings about the father's unfitness and its

likelihood of continuing indefinitely. However, he made no

findings about whether the department's plan of adoption served

the child's best interests, instead concluding that the child's

"current circumstances" did so.

1. Standard of review. "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). "[A] judge

must decide both whether the parent is currently unfit and

10

whether, on the basis of credible evidence, there is a

reasonable likelihood that the parent's unfitness at the time of

trial may be only temporary" (quotations and citations omitted).

Id. In determining whether the parent's unfitness is temporary,

the judge must consider factors including whether "there is a

reasonable expectation that the parent will not be able to

provide proper care or custody within a reasonable time

considering the age of the child." G. L. c. 210, § 3 (c) (vi).

Because termination of parental rights is an "extreme step,"

"[t]he natural bond between parent and child should not be

permanently severed unless the child's present or future welfare

demands it." Adoption of Carlos, 413 Mass. 339, 350 (1992).

"Parental unfitness is determined by considering a parent's

character, temperament, conduct, and capacity to provide for the

child's particular needs, affections, and age." Care &

Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).

"[W]e require that the judge articulate specific and

detailed findings in support of a conclusion that termination is

appropriate, demonstrating that [the judge] has given the

evidence close attention." Adoption of Nancy, 443 Mass. 512,

514-515 (2005). "Subsidiary findings must be supported by a

11

preponderance of evidence, . . . and none of the findings will

be disturbed unless clearly erroneous."8 Id. at 515.

On review, "we must determine whether the trial judge

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

Adoption of Elena, 446 Mass. 24, 30 (2006). The judge's fitness

determination must be supported by "specific and detailed"

findings that demonstrate parental unfitness by clear and

convincing evidence. Custody of Eleanor, 414 Mass. 795, 799

(1993). "Unless shown to be clearly erroneous, we do not

disturb the judge's findings, which are entitled to substantial

deference." Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607

(2012). "We accord deference to a trial judge's assessment of

the credibility of witnesses and the weight of the evidence."

Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011).

2. The father's unfitness. The father contends that the

evidence was insufficient to support the judge's finding of

unfitness because the judge gave improper weight to the father's

lack of parenting time where the department "exercised absolute

power and control" over the father's time with the child. We

8 None of the parties argue that the findings of fact are

clearly erroneous.

12

disagree and conclude that the judge did not err in finding the

father unfit.

The evidence at trial supported the judge's findings that

the father failed to visit Gaston consistently and failed to

make progress toward unsupervised or overnight visits. When

determining a parent's fitness, one factor a judge shall

consider is the willful failure to visit a child when the child

is not in the parent's custody. G. L. c. 210, § 3 (c) (x). See

Care & Protection of Vick, 89 Mass. App. Ct. at 708. Although

the father's employment constraints contributed to his

unavailability for some visits, the judge properly found that

the father "contributed substantially to the lack of progress in

expanding his relationship with his son" by "putting his own

needs or preferences before [Gaston's]." The father declined

the department's offer of additional visits with Gaston, saying

that he did not like visitation centers, and he also refused

virtual visits because he did not want to have visits with

Gaston when he was in the foster home. The father canceled a

visit in May 2021 because the primary social worker, with whom

the father felt more comfortable, was unavailable to supervise.

Despite attempts made by three different social workers, the

department could not establish a consistent parenting schedule

with the father. At times, notwithstanding the availability of

in-person visits, the father went significant periods without

13

seeing Gaston in person. He had only eight in-person visits

with Gaston in 2023 even though the department offered him

weekly visits. The father's visits in the community were

stopped after he made social media posts about hiring a private

investigator to investigate one of the department social

workers. The record amply demonstrates that the father

willfully failed to visit Gaston consistently and supports the

judge's finding that the father had failed to "maintain[]

sufficiently significant and meaningful contact with [Gaston]."

It is not necessary, as the father contends, that the judge have

found that the father would endanger Gaston.

The father argues that the judge improperly focused on

Gaston's bond with his foster parents. We disagree. The bond

between a child and foster parents, while not dispositive, is "a

factor that has weight in the ultimate balance" (citation

omitted). Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203

(2003). See G. L. c. 210, § 3 (c) (vii). The child had been

placed with the foster parents since February 2020, and they

have provided him with consistency and routine. The judge found

that it was unclear from the evidence how the father would

provide consistency and routine for Gaston or care for him while

working. As previously noted, Gaston has special education

needs and requires additional attention to his needs, and his

foster parents have continued his IEP services. Crediting the

14

testimony of an expert witness, the judge found that Gaston had

"formed a strong and positive attachment with his foster

parents" and that removing him from them could cause serious

harm, affect his ability to trust future caregivers, and lead to

possible mental health disorders.

Although the father accepted and productively utilized some

action plan services, such as providing urine screens and

engaging in therapy, he failed to complete all his department

action plan tasks, which included providing the department with

results of a neuropsychological examination. "Even if a parent

engages in some of the services offered by the department, 'mere

participation in the services does not render a parent fit

without evidence of appreciable improvement in [the parent's]

ability to meet the needs of the child[].'" Adoption of Breck,

105 Mass. App. Ct. 652, 660 (2025), quoting Adoption of Ulrich,

94 Mass. App. Ct. 668, 677 (2019). The father told the

department social worker that he did not need to meet the action

plan because he had already completed several of the

requirements. He also told the social worker that he, his

family, and his fiancée did not want any services. "Evidence of

parents' refusal to cooperate with the department, including

failure to maintain service plans . . . , is relevant to the

determination of unfitness." Adoption of Rhona, 63 Mass. App.

Ct. 117, 126 (2005). The judge properly considered evidence

15

that the father had refused or failed to consistently utilize

the services offered to him. There was no error.

The father's contention that the two ICPC home studies

approving Gaston's placement with him undermine the judge's

finding of unfitness is similarly unavailing. The judge was not

bound to weigh the conclusions of the ICPC studies, and the

father fails to provide any authority showing otherwise. See

Care & Protection of Benjamin, 403 Mass. 24, 25-26 (1988)

(determining whether child is in need of care and protection is

decision for judge to make, not for department or other party).

Based on information in the first ICPC study, the department put

a hold on transitioning Gaston while it followed up on concerns

about the father's fiancée and the father's drug use. When the

department asked the father for additional information about his

fiancée, he hesitated to share information about her background

and did not want the department involved with his partner. At

the time of trial, the father's fiancée had a "breathalyzer" in

her car, and the judge did not credit the father's testimony

that he knew nothing about her substance misuse history or her

criminal record.

The ICPC report also noted Gaston's diagnosis of

developmental delays and that he qualified for an IEP but that

the father did not believe that Gaston had any developmental

delay. "Parental unfitness must be determined by taking into

16

consideration a parent's . . . capacity to provide for the . . .

child's particular needs . . . ." Adoption of Mary, 414 Mass.

705, 711 (1993). The judge did not err in his weighing of the

ICPC home studies.

We also find unpersuasive the father's contention that the

judge failed to properly consider evidence of the father's

mistrust in the department when determining the cause of his

insufficient parenting time.9 The judge expressly found that the

father believed that the department was discriminating against

him and that he does not trust the system. The judge's

"specific and detailed" findings on that point "demonstrat[e]

that close attention has been given the evidence." See Care &

Protection of Laura, 414 Mass. 788, 791 (1993). The judge did

not err.

3. Motion for abuse of discretion. The father contends

that the judge erred in denying his motion for abuse of

9 The father points to the judge's finding that the father

called the foster family "racist" but argues the judge failed to

make any findings about the father's concerns that the

department used his race and religion as obstacles to

reunification. The father testified that a department worker

called him and said that he was "going to make the perfect angry

[B]lack man." A judge need not address every piece of evidence

in a lengthy trial. In any event, the evidence in the record

amply supported the father's unfitness. Adoption of Franklin,

99 Mass. App. Ct. 787, 799 (2021) (evidence of father's

unfitness overwhelming even if judge's findings did not

acknowledge or highlight some factors in father's favor).

17

discretion and requesting additional parenting time. He argued

in that motion that the department abused its discretion by

failing to make reasonable efforts to provide him with visits,

"arbitrarily and capriciously interfering with [his] visits,

instilling fear in the child during visits, and refusing to

treat [the father] in a respectful, professional, effective

manner." For the reasons described above, we see no abuse of

discretion in the judge's ruling as the father was the one who

declined the department's numerous offers to schedule

visitation.

4. Best interests determination. a. Assessment of

adoption plan. In parental rights termination proceedings, "the

judge is statutorily obligated to assess the adoption plan

proposed by the department to determine whether the best

interests of the child would be served by a termination decree

with that plan." Adoption of Vito, 431 Mass. 550, 568 (2000),

citing G. L. c. 210, § 3 (b), (c). In determining whether the

best interests of the child will be served by granting a

petition for adoption without the need for parental consent,

"the court shall consider the ability, capacity, fitness and

readiness of the child's parents . . . to assume parental

responsibility, and shall also consider the plan proposed by the

department or other agency initiating the petition." G. L.

c. 210, § 3 (c). "[T]he judge considering an adoption plan must

18

make specific findings reflecting careful evaluation of the

suitability of the [department's] proposal." Adoption of Lars,

46 Mass. App. Ct. 30, 31 (1998).

The child contends that the judge erred by failing to

consider the department's proposed plan of adoption. We agree.

The judge did not make any findings about whether the

department's adoption plan was in Gaston's best interests. The

department's adoption plan was sufficiently detailed and

included much of the same information found in the judge's

findings of fact -- that Gaston had special education needs and

was receiving services to address those needs while in the

foster parents' care. The plan stated that the foster parents

"have provided excellent care for [Gaston], who is very attached

to both foster parents." The judge also acknowledged Gaston's

attachment to the foster parents in his findings. Nevertheless,

the judge did not assess whether the adoption plan served

Gaston's best interests. In the absence of findings by the

judge about the suitability of the adoption plan, we are unable

to determine whether the evidence supported the judge's

conclusion that the termination of the father's parental rights

was not in Gaston's best interests. See Adoption of Gabrielle,

39 Mass. App. Ct. 484, 488 (1995). On remand, the judge must

make specific findings showing careful assessment of the

19

appropriateness of the adoption plan. Adoption of Lars, 46

Mass. App. Ct. at 31.

b. The judge's determination that Gaston's "current

circumstances" served his best interests. The department and

the child also contend that the judge erred in his conclusion

that termination of the father's parental rights was not in

Gaston's best interests despite finding that the father was

unfit to meet Gaston's needs and that the unfitness would

continue into the foreseeable future. See Adoption of Ilona,

459 Mass. at 59-60 (termination of parental rights requires that

unfitness not be "only temporary," and, "[b]ecause childhood is

fleeting, a parent's unfitness is not temporary if it is

reasonably likely to continue for a prolonged or indeterminate

period"). We agree. Because the reasoning behind the judge's

determination that Gaston's "current circumstances [are] in

furtherance of [Gaston's] best interests"10 is not apparent on

10At the time of trial, Gaston remained in the department's

legal custody. Although he continued to live with the foster

parents, who the judge found had appropriately cared for him for

most of his life and with whom he had developed an attachment,

the judge did not free Gaston for adoption. If, as we infer,

the judge had concerns that it was in the child's best interests

for the father to remain a part of Gaston's life, the judge

could have terminated the father's parental rights and then

ordered posttermination and postadoption contact if he

determined doing so was in Gaston's best interests. See

Adoption of Ilona, 459 Mass. 53, 63 (2011). The parties are

free to address this point on remand.

20

the record, we remand the matter for clarification, with a

reminder that "the proper focus of termination proceedings is

the welfare of the child." Adoption of Gregory, 434 Mass. 117,

121 (2001). "[A] judge considering termination also must

consider the child's unqualified right to permanency and

stability." Care & Protection of Zeb, 489 Mass. 783, 789

(2022). See Guardianship of Estelle, 70 Mass. App. Ct. 575,

578-579 (2007) (case remanded because of "apparent ambivalence

of the judge," who, rather than finding father "fit" or "unfit,"

"attempted to steer to a middle ground" allowing judge to

"maintain some degree of control of the situation without

jeopardizing the father's ability to develop a relationship with

the child"). Cf. Adoption of Arianne, 104 Mass. App. Ct. 716,

721 (2024) (judge abused discretion in terminating mother's

parental rights where findings did not show unfitness likely to

continue indefinitely).

Conclusion. We affirm the judgment entered on the father's

complaint to establish paternity denying the father's request

for custody of the child and ordering custody to remain with the

department. The order denying the father's motion for abuse of

discretion is also affirmed. The decree of custody finding the

child without proper guardianship because of the father's

unfitness and granting responsibility for the care and custody

of the child to the department pursuant to G. L. c. 119,

21

§ 23 (a) (3), is also affirmed.11 The decree dismissing the

department's G. L. c. 210, § 3, petition as to the father is

vacated, and the case is remanded to the Probate and Family

Court for further proceedings consistent with this opinion.12

So ordered.

11In light of our conclusion, we need not reach the child's

argument that the judge applied the wrong legal standard by

finding that the department failed to prove that terminating the

father's rights was "undoubtedly" in Gaston's best interests.

12When evaluating the adoption plan, the judge may consider

additional evidence if necessary, including any other competing

permanency plans proposed by other parties. See Adoption of

Dora, 52 Mass. App. Ct. 472, 475 (2001) ("In cases where the

parents have offered a competing plan, the 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"). As we stated in Estelle, "[w]e do not seek to dictate an

outcome. The judge who hears the evidence, observes the

parties, and is most familiar with the circumstances remains in

the best position to make the judgment." Guardianship of

Estelle, 70 Mass. App. Ct. 575, 579 (2007).

In evaluating what the child's "current circumstances" are,

the judge may also wish to take additional evidence, as we

recognize that circumstances may have changed given the passage

of time.