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
23-P-670
ADOPTION OF DAYTEN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered by a Juvenile
Court judge after trial, finding the mother unfit to parent
Dayten (the child) and terminating her parental rights. The
decree also leaves post-termination visitation between the
mother and the child to the discretion of the child’s pre-
adoptive parents, but does not order that visitation must occur.
The mother contests the finding of unfitness, arguing that there
is an insufficient nexus between her conduct and the alleged
medical neglect of the child. The mother also contends that the
judge abused her discretion in declining to order post-
termination visitation. We are not persuaded and accordingly,
affirm.
Background. The child was born on June 14, 2015. On March
4, 2019, the Department of Children and Families (the
1 A pseudonym. department) filed a petition alleging that the child was in need
of care and protection due to the mother’s medical neglect, and
the child was placed in the department’s custody. The child was
placed with his pre-adoptive family in August 2020, where he has
remained since that time. In February 2021, the mother
stipulated to current unfitness, and to the department’s
assumption of permanent custody of the child. Trial occurred in
May 2022, and the decree entered at its conclusion.2
a. The child’s asthma. The child suffers from severe
persistent asthma. While he was in the mother’s custody, the
child was seen by his pediatrician, Dr. Blasburg, on nine
occasions due to this condition. He was admitted to the
hospital four times -- in February, March, and June of 2018, and
in February 2019. While in the mother’s care and although the
mother was aware of the child’s asthma diagnosis, she failed to
bring the child to numerous scheduled medical appointments with
his pediatrician, specialists, and other providers. The child
was referred to Dr. May, a pulmonologist, in August 2018, but
the mother did not present the child for his initial
appointment. She also failed to bring the child to a scheduled
appointment in January 2019 with Dr. Goshharja, a specialist in
2 The child’s father filed a stipulation with the court agreeing to a finding of parental unfitness, and the father’s parental rights were terminated in July 2020.
2 allergy and asthma. The child was referred to the Boston
Children’s Hospital Medical Home Asthma Program, but after the
child’s initial appointment the mother declined all follow-ups.
In February 2019, the child was treated at Plymouth Pediatric
Associates for symptoms of respiratory distress. When the
mother failed to bring the child to his follow-up appointment
six days later, on February 25, 2019, a mandatory reporter at
that facility filed a 51A report alleging medical neglect. The
department removed the child on March 1.
b. The mother’s smoking. The mother has a history of
cigarette smoking, which persisted long after the child was
diagnosed with asthma. The child has a significant sensitivity
to smoke. Although the mother testified at trial that she never
smoked in the home while the child resided there, the judge
found that she regularly returned indoors after smoking with
items that smelled of smoke, which the judge concluded evidenced
the mother’s failure to appreciate the effects of thirdhand
smoke. After the child was removed, the mother brought items
that smelled of smoke to visits.
The mother’s smoking habit persisted while the child was
still in her care and receiving treatment for asthma, and after
the child was removed. For example, the 51A report filed by the
mandatory reporter at Plymouth Pediatric alleged that during the
child’s nebulizer treatment on February 19, 2019, the mother
3 excused herself to smoke a cigarette outside. The mother was
still smoking at the time of the March 2, 2020 foster care
reviews.
c. Dental issues. Subsequent to the child’s removal in
March 2019, he was found to be suffering from severe dental
decay, with nerve exposure on several teeth and the near total
disintegration of another tooth. The judge found that the
mother had failed to take the child to routine dental
appointments. The mother claimed at trial that the child had
received dental care at Dental Center Pediatrics (Dental Center)
in November 2018. The court did not credit this testimony in
light of other evidence that the child had not been seen by
providers at Dental Center since July 2018. After removal and
shortly before the child’s fourth birthday, in May 2019, the
child underwent dental surgery, during which he received, among
other things, four root canals and five extractions. The mother
admitted at trial that, while the child was in her care, she had
failed to brush the child’s teeth after nebulizer treatments for
his asthma.
d. The mother’s substance abuse. The mother has a long
history of substance abuse, including alcohol abuse and the use
of nonprescribed drugs. She has been addicted to opiates, which
she used intravenously during her pregnancy with the child. She
did not obtain routine prenatal care during her pregnancy. As a
4 result of her substance use, the child was born exposed to
marijuana. The mother has also abused benzodiazepines. In June
2019, the mother admitted both to using substances and to
altering her toxicology screens. In July 2021, the department
learned that the mother signed a restricted release preventing
the department from obtaining her toxicology results from a
substance abuse treatment program. The mother admitted to
relapsing and using benzodiazepines in October and November of
2021 –- five months before trial. She did not seek
detoxification or inpatient treatment following these relapses.
e. Visitation history. Following the child’s removal, the
mother was initially permitted weekly visitation which she
consistently attended through June 2019. After that point, the
mother’s attendance grew less consistent through late 2019 and
January 2020. On one occasion in February 2020, a social worker
assigned to the case raised concerns about the mother’s
appearance, noting that the mother was pale and smelled strongly
of cigarette smoke. After the onset of the COVID-19 pandemic,
the mother was provided thirty-minute video visits. While
visiting with the child in June 2020, the mother presented with
delayed speech, and she was drooling and asking repetitive
questions. The mother claimed that her demeanor was due to a
dental issue of her own but failed to verify this statement, and
the judge did not credit her testimony.
5 The judge found that the reduction in visits between the
mother and the child during the COVID-19 pandemic corresponded
with improvements in the child’s demeanor in the foster home.
Conversely, following visits with the mother and for several
days thereafter, the child exhibited signs of behavioral
regression –- increased tantrums and issues with toilet training
and wetting the bed. During virtual visits with the mother, the
child frequently hid under the desk or attempted to leave the
room. The mother testified that after the child was placed in
his pre-adoptive home, he grew increasingly disengaged during
visits, often refusing to speak with the mother or presenting as
angry. The parties attempted to recommence in-person visits
with the mother in April 2021, but the child became emotional
and violently refused to attend. The mother’s visitation was
reduced to monthly in September 2021, and her attendance
remained inconsistent.
The judge held a three-day trial concerning the termination
of mother’s parental rights in May 2022. The mother opposed the
termination and sought custody of the child or, in the
alternative, proposed that the child be placed with his maternal
grandmother. The judge declined to credit numerous statements
made by the mother during her testimony. On May 26, 2022, the
judge concluded that the mother was unfit, terminated her
6 parental rights, and committed the child to the permanent
custody of the department.
With respect to visitation, as of the time of trial the
mother’s visits remained virtual. By that point, the child had
been residing with his pre-adoptive family for almost two years.
The child had refused in person visits with the mother since
March 2020. At the close of trial, the judge left post-
termination visitation between the mother and the child to the
discretion of the department and, as to post-adoptive
visitation, to the discretion of the adoptive family. This
appeal followed.
Discussion. The mother’s principal argument on appeal is
that the department failed to meet its burden to establish a
“clear nexus” between her conduct –- in particular, her
supervision of the child’s medical and dental health, her
smoking, and her substance use -- and harm to the child. She
also contends that it was improper for the department to use her
failure to bring the child to certain medical providers as
evidence of medical neglect, when the department itself
discontinued use of those providers post-removal. We disagree.
We review a decision to terminate parental rights for abuse
of discretion or clear error of law. Adoption of Elena, 446
Mass. 24, 30 (2006). We afford deference to the trial "judge's
assessment of the weight of the evidence and the credibility of
7 the witnesses" (citation omitted). Adoption of Quentin, 424
Mass. 882, 886 (1997). To terminate parental rights, the trial
"judge must find by clear and convincing evidence, based on
subsidiary findings proved by at least a fair preponderance of
evidence, that the parent is unfit to care for the child and
that termination is in the child's best interests." Adoption of
Jacques, 82 Mass. App. Ct. 601, 606 (2012).
While parents have the fundamental right to parent their
children, that right must give way should the safety and welfare
of the child require state intervention. Petition of the New
Home for Little Wanderers to Dispense with Consent to Adoption,
383 Mass. 573, 587-589 (1981); Adoption of Greta, 431 Mass. 577,
587 (2007). In finding parental unfitness, the trial judge must
consider "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
Quentin, 424 Mass. at 886, quoting Adoption of Mary, 414 Mass.
705, 711 (1993). The judge may "rely upon prior patterns of
ongoing, repeated, serious parental neglect." Adoption of
Kimberly, 414 Mass. 526, 529 (1993), quoting Adoption of Diane,
400 Mass. 196, 204 (1987).
1. The nexus between the judge’s findings and medical
neglect. At bottom, the mother’s argument is that there is an
insufficient nexus between the judge’s findings and the
8 conclusion that the mother was and would remain unfit to care
for the child. The mother asserts that she was meeting the
child’s "basic needs," and that the concerns with medical
neglect were overstated.
As noted above, it is not our role to substitute our own
weighing of the evidence for that of the trial judge, but in any
event here the evidence of past neglect was consistent,
substantial, and continuing. This court has explained that
"[t]he specialized needs of a particular child when combined
with the deficiencies of a parent's character, temperament,
capacity, or conduct may clearly establish parental unfitness."
Petitions of the Dep't of Soc. Services to Dispense with Consent
to Adoption, 18 Mass. App. Ct. 120, 125 (1984), citing Petitions
of the Dep't of Soc. Services to Dispense with Consent to
Adoption, 389 Mass. 793, 799-800 (1983); Petition of the Dep't
of Soc. Services to Dispense with Consent to Adoption, 16 Mass.
App. Ct. 965, 966 (1983). Here, the evidence of prior medical
neglect included a marked failure to attend properly to the
child’s severe asthma issues. The child was repeatedly
hospitalized in the year before removal, yet the mother was
inconsistent in bringing the child to appointments with medical
providers regarding the issue. The child was hospitalized again
in February 2019, yet the mother missed another medical
appointment with the child’s doctor within a matter of days of
9 discharge, shortly before the child was removed. The child’s
doctor confirmed that the asthma issues were acute, yet the
mother minimized the child’s condition, including in her trial
testimony.
a. The mother’s smoking. The mother continued to smoke
and to bring smoke into the child’s presence, despite knowing
that smoke was a trigger of the child's asthma. The mother’s
smoking continued after the child was removed, and the mother
remains living in a residence where smokers are present. Others
have also observed the mother smoking while the child was
present, including outside a medical facility where the child
was being seen for his asthma. The mother’s failure to
acknowledge the potential harmful effects of cigarette smoke on
the child and the evidence of her continued proximity to
cigarette smoke support the conclusion that she is unfit to
parent this asthmatic child.
b. Dental neglect. After removal, it became apparent that
the medical neglect extended to dental neglect as well. "Where
a parent is ineffective in obtaining medical care for a child,
causing neglect of the child, it is relevant to finding of
unfitness." Adoption of Anton, 72 Mass. App. Ct. 667, 676
(2008), citing Adoption of Ramon, 41 Mass. App. Ct. 709, 711
(1996). The mother failed to take the child to routine dental
appointments, admitted that she was supposed to brush the
10 child’s teeth after asthma treatments but did not do so, and
gave the child high-sugar beverages several times per day. The
child’s resulting significant dental decay led to an involved
oral surgery. While the mother disputes that she knew of the
dangers of dental decay and gum disease related to nebulizer
treatments, that argument is beside the point. The child’s
dental problems were extensive (including one tooth that had
disintegrated), and it was reasonable to infer that these
problems could not have gone unnoticed absent neglect by the
mother.
c. Substance abuse. The mother’s substance abuse was
ongoing, and it was reasonable to infer that the substance abuse
had affected the mother’s care and might affect it again in the
future. A history of substance abuse is "relevant to a parent’s
willingness, competence, and availability to provide care,"
Adoption of Anton, 72 Mass. App. Ct. at 676, provided there is a
sufficient nexus between the substance use and unfitness. See
Care & Protection of Bruce, 44 Mass. App. Ct. 758, 763 (1998).
Here the evidence of substance abuse was not only in the past,
but continued up to the time of trial.
The mother has consistently failed to be honest with the
department regarding results of her toxicology screens, even
admitting to altering the results of tests in 2019. The
department raised concerns about whether the mother was under
11 the influence of substances during a virtual visit with the
child in June 2020. The mother relapsed in her use of
benzodiazepines as late as November 2021, and despite being
aware of the dangers of withdrawal, did not seek inpatient
treatment. There was no error in the judge considering such
recent issues with ongoing substance use as evidence that the
mother’s unfitness would continue into the future.
d. Discontinuation of relationships with medical
providers. Finally, the mother suggests that the finding of
unfitness was inappropriate because the department discontinued
relationships with certain medical providers despite previously
faulting the mother for failing to utilize the same services.
The fact that the department adjusted the child’s medical
treatment plan post-removal does not bear on the mother’s
neglect of the child while the child was in her care. The
mother failed to attend scheduled appointment with current
providers and made no alternative arrangements for the child to
be seen by other service providers. Conversely, as the child’s
medical condition was better understood during the months after
removal, it was appropriate for the department to make changes
to the list of the child’s service providers. For instance, the
child was no longer in need of follow-up care from an allergist
when it was determined that the child did not have any
allergies.
12 Given the judge’s findings regarding the mother’s failure
to properly address (and instead to minimize) the child’s
special medical needs as well as the mother’s smoking, her
neglect of the child’s dental needs, and the potential dangers
of her ongoing substance abuse, we are satisfied that there
exists a sufficient nexus to support the judge’s finding of
unfitness.
2. Post-termination visitation. Finally, the mother
argues that it was improper for the judge to fail to require
post-termination visitation. We review a decision declining to
order post-termination or post-adoption visitation for abuse of
discretion. See Adoption of Xarissa, 99 Mass. App. Ct. 610,
623-624 (2021), citing Adoption of Ilona, 459 Mass. 53, 66
(2011). In determining the appropriateness of post-termination
visitation, "a judge should consider, among other factors,
whether there is a 'significant, existing bond with the
biological parent' whose rights have been terminated[,]. . .
whether a preadoptive family has been identified[,] and, if so,
whether the child 'has formed strong, nurturing bonds' with that
family." Adoption of Iliona, supra at 63-64, quoting Adoption
of Vito, 431 Mass. at 563. Protecting the best interests of the
child is the overriding concern. Adoption of Terrence, 57 Mass.
App. Ct. 832, 839 (2003), quoting Adoption of Vito, supra at 562
("The judge's discretion is not . . . unfettered, but must be
13 'grounded in the over-all best interests of the child, based on
emotional bonding and other circumstances of the actual personal
relationship of the child and the biological parent, not in the
rights of the biological parent nor the legal consequences of
their natural relation'").
Here, the judge acted within her discretion in declining to
order post-termination and post-adoption visitation between the
child and the mother. As discussed above, the evidence did not
show a strong existing bond between the child and the mother at
the time of trial. The mother’s visitations began being
inconsistent in late 2019, and during the pandemic the virtual
visits were relatively brief, and the child evidenced signs of
significant behavioral regression and emotional distress. Even
during virtual visits with the mother, the child frequently
appeared disengaged, attempted to leave the room, or hid from
view. At the time of trial, the child was emotionally bonded to
his pre-adoptive family. Under these facts, it cannot be said
that the judge abused her discretion in failing to order post-
termination visitation and in leaving post-adoption visitation
14 to the discretion of the child’s adoptive parents. See Adoption
of Vito, 431 Mass. at 563.
Decree affirmed.
By the Court (Green, C.J., Neyman & Englander, JJ.3),
Assistant Clerk
Entered: March 26, 2024.
3 The panelists are listed in order of seniority.