NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-939
ADOPTION OF CORA (and three companion cases).1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an evidentiary hearing on a review and
redetermination motion brought by the Department of Children and
Families (department) pursuant to G. L. c. 119, § 26, a judge of
the Juvenile Court terminated the father's parental right to
consent to the adoption of his four children.2 On appeal, the
father principally argues that the evidence did not clearly and
convincingly establish his unfitness and that the judge abused
her discretion in finding that termination would serve the best
interests of the children. Although we agree that certain of
the judge's subsidiary findings are erroneous, we conclude that
those errors do not negate the clear and convincing evidence of
1 Adoption of Ava; Adoption of Sophia; and Adoption of Corey. The children's names are pseudonyms.
2The mother's rights were also terminated. She unfortunately died of cancer in September 2025. unfitness. We are unpersuaded by the father's other arguments.
Therefore, we affirm.
Background. We summarize the judge's factual findings,
reserving some details for later discussion. The mother, a
citizen of the Netherlands, came to the United States in 2015 on
a tourist visa and shortly thereafter married the father, whom
she had met online. She remained in the United States without
lawful immigration status until her death in 2025. The mother
had three children from previous relationships whom she brought
with her from the Netherlands.3
The parents had their first child together, Cora, in April
2016. Ava followed closely after, born prematurely in February
2017. Because Ava was born substance exposed, a mandated
reporter filed a report under G. L. c. 119, § 51A (51A report),
bringing the family to the department's attention for the first
time.
The department initially closed the family's clinical case
in late 2017 but then reopened it a few months later following a
3 None of these three children are at issue in this appeal, although the department did have prior interaction with them. By the time the parents' rights were terminated as to their shared children, the mother's two oldest children had reached the age of majority, and the third, who was named in the care and protection petition, had been returned to his father's permanent custody in the Netherlands and was dismissed from this case. Hereinafter, we shall refer to these three children as the older children.
2 new 51A report. Throughout the next two years, the department
investigated various allegations of excessive school absences by
one of the mother's older children, overcrowded and unsanitary
living conditions in the family home, the children's hygiene and
access to medical care, and the father's substance use.
In January 2020, the family was evicted from their home and
resided temporarily in a hotel until obtaining a shelter
placement. Sophia was born substance exposed in March 2020. At
that time, four of the family's seven children were behind
medically. That fall, the department investigated a 51A report,
evidently from the school district, that the mother's two
school-aged children had not attended school for several months.
The report was screened out based on assurances that one child
would begin attending shortly and that the other child's
transportation issues had been resolved.
The problems persisted in the following years. In 2021,
all of the children remained behind medically, and the
department received another 51A report that one of the school-
aged children was frequently late to or absent from school, but
the family had not documented the reasons. The report was
screened out on the basis that the family was found to lack
transportation and that the school's main concerns were actually
3 with the younger children, although they were not yet legally
required to attend school.
By September 2022, the conditions of the family's shelter
placement were unsanitary, with clothes and other items covering
furniture and blocking walkways, and rotting food both in and
outside of the kitchen. Also in September 2022, approximately
two weeks after the department drafted an emergency services
plan to address the unsanitary housing conditions, the
department discovered that the parents had had another child.
After initially denying his existence, the parents eventually
confirmed that Corey had been born at home in January 2022; the
parents had instructed the older children not to tell anyone.4
Corey had no birth certificate, had received no medical care
since birth, and was malnourished and developmentally delayed.
The department also remained concerned about the older
children's school attendance and lack of medical care. The
department therefore filed this care and protection petition and
was granted emergency custody of all four children.
The children have remained in foster care since removal and
in August 2023 were placed together in the same preadoptive
home. At the October 2023 care and protection trial, both
4 The family's social worker had previously seen the father with baby Corey, but the father falsely said that he was babysitting.
4 parents appeared, the mother testified, and on the second day of
trial the parents stipulated to their unfitness. Neither parent
appeared at the review and redetermination hearing in November
2024.
Discussion. 1. Father's unfitness. We review a judge's
decrees terminating parental rights to consent to adoption "to
determine whether the judge's findings were clearly erroneous
and whether they proved parental unfitness by clear and
convincing evidence." Custody of Eleanor, 414 Mass. 795, 802
(1993). The clear and convincing evidence standard means that,
for the ultimate finding of unfitness, "[t]he requisite proof
must be strong and positive; it must be 'full, clear and
decisive'" (citation omitted). Adoption of Iris, 43 Mass. App.
Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998). Even where some
subsidiary findings are erroneous, a judge's properly supported
findings may be sufficient to prove parental unfitness by the
proper legal standard. See, e.g., Adoption of Daniel, 58 Mass.
App. Ct. 195, 200-201 (2003) (concluding, despite three
erroneous subsidiary findings, that overall finding of unfitness
was supported where supported findings "demonstrated that close
attention has been paid to the record"). Cf. Custody of
Eleanor, supra at 802 n.12 (reversal warranted where properly
supported findings insufficient to prove unfitness).
5 a. Negative inference. "Where a parent has notice of a
proceeding to determine his parental rights and the parent does
not attend or provide an explanation for not attending, the
absence may suggest that the parent has abandoned his rights in
the child or cannot meet the child's best interests." Adoption
of Talik, 92 Mass. App. Ct. 367, 371-372 (2017). A trial judge
may draw this negative inference when doing so is "fair and
reasonable based on all the circumstances and evidence before"
her. Id. at 372, quoting Singh v. Capuano, 468 Mass. 328, 334
(2014). The judge here drew such an inference against the
father, and we review that decision for abuse of discretion.
See Adoption of Talik, supra.
The father argues that the inference was inappropriate here
because on the day of the hearing he was at the hospital with
the mother for her cancer treatment. Although we are
sympathetic to the father's situation, we cannot say that the
judge abused her discretion in the circumstances.
The judge had before her only the father's unsworn
representation, made through counsel, that he was at the
hospital with the mother.5 After the first day of the hearing,
The department argues further that there was little 5
evidence, at the time of trial, that the mother had cancer, as she had not provided documentation of such a diagnosis to the department, despite their requests that she do so. Whether it was appropriate for the judge to draw a negative inference
6 the judge held the evidence open to give the parents an
opportunity to appear, or to submit evidence of the mother's
cancer and of both parents' presence at the hospital. The only
evidence thereafter submitted by either parent was a photograph
of a hospital wristband displaying the mother's personal
information and showing that she was admitted on the same day
the hearing commenced. There was no evidence that the father
was present at the hospital. Moreover, the judge also
considered that the father had several open warrants at the
The judge was not required to credit the father's
explanation that he was at the hospital.6 See Custody of
Eleanor, 414 Mass. at 799 (deference given to judge's assessment
of credibility and weighing of conflicting evidence). The judge
could reasonably have concluded that the father was
(1) unwilling or unable to make the minimal effort required to
provide some evidence of his whereabouts, or (2) unwilling to
against the mother, does not affect her ability to do so against the father. We nonetheless note that the judge's expressed doubts about the mother's cancer and the father's presence with the mother, may have inadvertently diminished confidence in the fairness of the decision. See Adoption of Norbert, 83 Mass. App. Ct. 542, 547 (2013) (judge must avoid appearance of partisanship).
6 We see no merit to the father's argument that the judge imputed to him the mother's lack of credibility.
7 come to the court house to protect his relationship with the
children where doing so meant he would be required to address
his open criminal cases, or (3) both. It was thus within the
judge's discretion to draw the negative inference against the
father and consider it, among other factors, in finding the
father unfit.
b. Mental health and substance use. The father argues
that there was insufficient evidence to support the judge's
findings of the father's mental health struggles and substance
use, and, as a result, there was no nexus between any such
deficiencies and his parental fitness. See Adoption of Jacob,
99 Mass. App. Ct. 258, 265 (2021) (nexus requirement). We
address each issue in turn.
As to mental health, we agree with the father that the
department did not establish by a preponderance of the evidence
that he had any such problems. The judge made a passing
reference to the fact that, "[a]t some point, Father was engaged
in therapy," but otherwise did not make any factual findings
relating to the father's mental health. Although the record
indicates that the father either denied having any mental health
problems or would not give the department information about any
such problems, those do not constitute evidence that such
problems existed. The judge nevertheless concluded that both
8 parents "struggle with grievous shortcomings" including
"unaddressed mental health concerns." Although it is not
entirely clear that the judge intended to find that each parent
suffered from all of the shortcomings she listed, any finding
that the father struggles with mental health was clearly
erroneous.
As to substance use, however, we disagree with the father's
claim that the department's proof was inadequate. The
department presented evidence that in late 2018, the father
admitted to using heroin multiple times a day, and brought it to
work, causing him to lose the job that was the family's sole
source of income. The evidence was in the form of a police
report, which the judge admitted to show the department social
worker's understanding. The father had also been arrested for
possession of heroin in June 2024, five months before the review
and redetermination hearing. Both he and the mother had heroin
on their persons. The father denied that these incidents
occurred. He refused to complete drug screenings ordered
through the court's probation department. The department had
obtained a substance treatment referral for him but, despite
repeated efforts, had been unable to contact him. This gave the
9 judge sufficient basis to be concerned that the father was
misusing heroin.7
Even so, the department failed to show any strong
connection between these concerns and the father's current and
future ability to provide minimally acceptable care for the
children. The judge made no findings indicating that the
father's substance use ever caused him to behave inappropriately
or unsafely around the children. Nor did she find any
connection between the father's substance use and the neglect
that the children experienced in the parents' care. While
illegal substance use is certainly not an ideal parenting trait,
it is not itself a basis to find a parent unfit absent a link to
some abuse or neglect of the children. See Adoption of
Katharine, 42 Mass. App. Ct. 25, 33-34 (1997). No such link was
found here.8
7 We note that, unlike the mother, the father's action plan tasks did not include that he refrain from substance use, but it did include that he refrain from purchasing illegal substances and complete a substance abuse evaluation and adhere to all recommendations. While an action plan may illustrate the department's concerns about a parent's deficiencies, and a parent's noncompliance with the plan is relevant to determining unfitness, see Adoption of Yalena, 100 Mass. App. Ct. 542, 552- 553 (2021); Adoption of Leland, 65 Mass. App. Ct. 580, 585 (2006), a judge is by no means restricted to considering only those issues that concerned the department.
8 Although the father may have lost his job in 2018 due to drug use, he was employed at the time of the review and redetermination hearing. And the judge made no finding that his
10 However, even though the department did not demonstrate a
link between the father's substance use and the neglect of his
children, it did not need to do so if the neglect alone was
sufficient to establish unfitness, see Custody of a Minor, 377
Mass. 876, 883 (1979) (pattern of parental neglect sufficient to
determine unfitness), the issue to which we now turn.
c. Neglect. The father argues that the judge erroneously
found the children to have suffered severe neglect, where the
evidence shows that they were happy and loved. We have no doubt
that the father loves his children, and his bond with them is
reflected in the judge's order for posttermination and
postadoption visitation. Nevertheless, his argument does not
negate the judge's findings about neglect, nor are those
findings clearly erroneous.
To begin, a primary concern while the parents had custody
was that the children were frequently without health insurance,
despite their eligibility for MassHealth, and were behind on
medical appointments and vaccinations. When the children came
into care, Cora and Sophia were up to date with immunizations,
but Ava was not, nor was their older half-sibling, who was also
removed. None of the girls had ever been to a dentist, and
arrest for heroin possession in 2024 showed a likelihood of future enforced separation from or other harm to the children.
11 their teeth were in poor condition. Most concerningly, there
was no record of Corey ever being seen by a medical provider in
his first eight months of life, and the judge did not credit the
mother's account of taking Corey to an unspecified hospital in
another State under a false name. From this evidence, the judge
could properly have found that the children were subject to
medical and dental neglect while in their parents' care.
The judge also considered that the parents did not provide
for the then-youngest children's consistent participation in
early intervention at the beginning of the case (when Sophia and
Corey were not yet born). The department had referred Ava for
early intervention in 2017, but in 2018 her attendance at
appointments was inconsistent; as of 2019, her early
intervention worker had not seen her for "a while"; and as of
2020, her attendance was "poor." The department completed
another early intervention referral in 2020, but "the parents
did not meet with the service because they did not have a
phone." The judge found this was "not a valid excuse to avoid
Early Intervention services -- or any other services -- for the
children."9 As of mid-2023, the parents were not in regular
contact with recommended early intervention programs. Against
this backdrop, the judge could appropriately be concerned that
9 The mother refused to accept a free phone.
12 the younger children would face "educational neglect" similar to
what schools had reported about their older siblings' attendance
problems.
Moreover, "[t]he cleanliness of a parent's home is an
appropriate factor for consideration in determination of that
parent's fitness" (citation omitted). Care & Protection of
Vick, 89 Mass. App. Ct. 704, 706 (2016). The poor condition of
the family's home was an ongoing and worsening problem over the
years. In 2019, before the family lost their home, there were
items piled from floor to ceiling filling portions of multiple
rooms, the kitchen sink was full of multiple days' worth of
dirty dishes, food was left out on the counter, and there was an
"overpowering" odor of feline urine. The parents refused an
offer of home cleaning services.
By September 2022, shortly before the children were
removed, conditions had worsened; the family's home was so
cluttered that it became difficult to move between rooms, there
was rotting food in the refrigerator, and a pot by the kitchen
door was "covered with maggots." The judge saw photographs
confirming these reports. Such conditions further demonstrate
that the father was unable to provide appropriate, safe, and
hygienic housing for his children. See Adoption of Vito, 47
Mass. App. Ct. 349, 353 (1999), S.C., 431 Mass. 550 (2000)
13 (inability to secure adequate housing was factor bearing on
fitness). See also 110 Code Mass. Regs. § 2.00 (2016) (defining
"Neglect" to include failure to provide children with minimally
adequate shelter).
The father argues that the judge's finding of neglect was
erroneous, as evidenced by the department's not removing the
children sooner. We are unpersuaded. First, the fact that the
department did not remove the children sooner is not affirmative
evidence of anything. Second, accepting that the children had
not yet experienced serious harm from the parents' neglect prior
to removal, "neither agencies responsible for the welfare of
children nor judges sitting on these sorts of custodial
questions need to wait for inevitable disaster to happen."
Adoption of Katharine, 42 Mass. App. Ct. at 32. See Adoption of
Inez, 428 Mass. 717, 724 (1999) ("At some point the court must
say, 'Enough,' . . . and act in the children's best interests"
[citation omitted]).
Indeed, the children were already beginning to experience
the consequences of their ongoing neglect. When entering care,
Cora (then six and one-half years old) and Ava (then five and
one-half) still required pullups, and Ava would relieve herself
wherever she happened to be -- issues that were quickly remedied
after they were removed from their parents' custody. All three
14 girls had cavities due to lack of dental care. Sophia had an
untreated lazy eye. Corey was malnourished, had no medical
records, and had delays in growth and in fine motor and language
milestones. Furthermore, the parents had a pattern of
neglecting the older children's routine medical care and of
tolerating continually worsening sanitary conditions in their
home. Taking all of this evidence into consideration, the judge
properly found that the children had been neglected, were likely
to continue to face such neglect, and that the father was unfit
because he was unable to meet the children's basic needs at the
time of trial and likely indefinitely.
Finally, to the extent that the father argues that the
judge erroneously found that the children have "specialized
needs," we disagree. The record supports the judge's finding,
that Cora was behind academically, Ava was diagnosed with
attention deficit hyperactivity disorder, Sophia had ongoing
treatment involving multiple doctors for her lazy eye, and Corey
was developmentally delayed and being assessed for an
individualized education program. These findings reflect that
all of the children have some type of specialized educational or
medical need. These needs,10 combined with what the judge found
10 We understand the term "specialized needs," as used in the judge's decision, to refer to each child's particular needs. See Adoption of Warren, 44 Mass. App. Ct. 620, 626 (1998)
15 was the father's lack of familiarity with and inability to
provide for these needs, "clearly establish parental unfitness."
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 18 Mass. App. Ct. 120, 125 (1984) (specialized
needs of particular child combined with parental deficiencies
"may clearly establish unfitness").
2. Best interests of the children. "We give substantial
deference to a judge's decision that termination of a parent's
rights is in the best interest of the child, and reverse only
where the findings of fact are clearly erroneous or where there
is a clear error of law or abuse of discretion." Adoption of
Ilona, 459 Mass. 53, 59 (2011). Although parental unfitness
does not always mandate a conclusion that the best interests of
the children are served by termination of parental rights, see
Adoption of Varnell, 106 Mass. App. Ct. 716, 722 (2026), "the
tests are not separate and distinct but cognate and connected"
(citation omitted). Guardianship of Keanu, 100 Mass. App. Ct.
64, 76 (2021).
Here, the evidence established that the children were
subject to neglect while in their parents' care, the parents did
("parental fitness must be evaluated in the context of a particular child's needs"). The meaning of the term "special needs" as used by the judge at the hearing, is not entirely clear, but is of no moment, as her findings regarding specialized needs were supported by the evidence.
16 not improve despite years of departmental involvement,11 the
children's needs were being met in their preadoptive home, and
they were strongly attached to their preadoptive parents. Given
the paucity of evidence that the father was likely to become a
fit parent in the future, see Adoption of Bianca, 91 Mass. App.
Ct. 428, 431 (2017), the judge did not abuse her discretion in
concluding that termination of the father's rights, in order to
provide the children stability in the shared home where their
needs were met, was in their best interests.12
Decrees affirmed.
By the Court (Meade, Sacks & Wood, JJ.13),
Clerk
Entered: June 22, 2026.
11Indeed, the increasingly unsanitary conditions of the home and the parents' decision to never seek medical care for Corey, and to conceal his birth, indicate that the parents' neglect increased, rather than lessened, over the years.
12We have not overlooked the father's remaining arguments, including that the children desire to and would not be harmed by transitioning back to his care and that he would be able to address their needs during such a transition. What we have already said is sufficient to address these arguments. Additionally, whether the judge erred (as the father asserts) in taking judicial notice of the availability of Wi-Fi in hospitals, or of the (late) mother's eligibility for health insurance, is immaterial to our decision.
13 The panelists are listed in order of seniority.