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-1172
ADOPTION OF FIONA (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and child Fiona appeal from decrees issued by a
Juvenile Court judge terminating the mother's parental rights to
her three children and approving the adoption plan proposed by
the Department of Children and Families (DCF). We conclude that
the trial judge properly found that the mother's untreated
problems with substance use and refusal to engage in services,
among other factors, establish her indefinite unfitness to
parent any of the children. Concluding that, based on the
evidence presented at trial, the judge acted within her
1Adoption of Andrea and Adoption of Braden. The children's names are pseudonyms. Andrea and Braden supported the termination of parental rights in the Juvenile Court and continue to do so on appeal. The putative father of the twins, Fiona and Andrea, filed a pleading surrendering any parental rights. The judge allowed his motion to withdraw as a party. All unknown and unnamed fathers were found unfit and their parental rights terminated. The putative father of Braden did not appeal the termination of his parental rights. discretion in finding that freeing the children for adoption was
in their best interests, we affirm the termination of parental
rights. Further concluding that the judge erred in approving
DCF's adoption plan regarding Fiona where the social worker
testified that DCF had not yet acquired the information
necessary to determine the child's best interests, we reverse
that approval and remand for further proceedings.
1. Background. The twin daughters, Fiona and Andrea, were
born in 2011. The mother missed medical appointments for the
twins in December 2019 and May 2020. The mother further failed
to schedule or to attend necessary specialist appointment for
either daughter.
In January 2021, DCF informed the mother that her case
would be kept open until her children became medically up to
date and their school attendance improved. Given her "erratic"
behavior, DCF social workers asked the mother to complete a drug
screening test. The mother refused, stating that she did not
use drugs.
In February 2021, the mother told DCF social workers that
she had been pregnant but no longer was. The mother failed to
provide any further information about the pregnancy at that
meeting and declined services offered. In fact, the mother was
still pregnant. On April 20, 2021, the mother again declined to
complete a drug test, reiterating that she did not use drugs.
2 In May 2021, the mother delivered her fourth child, Braden,
who tested positive for cocaine and opiates. The newborn
experienced immediate and sustained withdrawal symptoms and was
not discharged from the hospital until June 2, 2021. The mother
also tested positive for cocaine and opiates, and police found
illegal drugs and drug paraphernalia on her person after
delivery. The mother later claimed that she used the drugs only
to help with labor pains and denied being "a drug addict."
DCF social workers responded to the hospital and assumed
emergency custody of the newborn. DCF also assumed emergency
custody of the twins, who had been left unattended at home when
the mother went to give birth and were unaware where the mother
was.
When informed that her twin daughters had been placed in
DCF custody, the mother stated that she did not want to see or
speak with them until she regained custody. On May 13, DCF
provided the mother with a thirteen-point department action
plan, requiring the mother, inter alia, to engage in certain
services, complete drug screens, sign all necessary releases,
and complete a psychological and parental assessment. From May
2021 to her trial in November 2022, the mother failed to
meaningfully comply with any of these tasks.
The mother refused to schedule visitation with her children
until June 2021. From June 2021 through November 2023, the
3 mother attended fourteen in-person visits and nine or ten
virtual visits. During that time, the mother confirmed and
subsequently failed to attend nearly twenty other visits.
Occasionally, the mother attempted to confirm visits at the
wrong date or time or failed to confirm until after the mandated
department deadline, resulting in no visitation. Based on the
mother's lack of communication, DCF social workers were unable
to schedule any home visits following April 2021. Between June
2022 and her trial in November 2022, the mother did not attend
any scheduled visits or communicate with DCF. The mother's lack
of visits caused emotional upset to the twins.
When the mother did attend visits, she was routinely late
and often spent part of the visit on her cell phone. The mother
failed to console her newborn son or to care for his specific
medical needs, requiring one of the twins to attend to him
during visits. At other visits, the mother upset the twins by
insulting their clothing or hairstyles.
The mother was repeatedly hospitalized between July and
December 2021 for complications from her drug use. The mother
failed to provide DCF with any information about her
hospitalizations and only once notified DCF that she was in fact
hospitalized. The mother left the hospital numerous times
against medical advice.
4 During their time in foster care, the twins became
medically up to date and showed improvement in both academic
attendance and performance. Although the twins initially lived
together with their maternal step-grandmother, their behavioral
issues required DCF to find different placements for each child.
The twins went through several placements before all siblings
were reunited in the same preadoptive foster home. In August
2022, Fiona was removed from the home because of behavioral
issues, including fighting with her twin sister.
On November 29, 2022, trial began. The mother was not
present. The mother's attorney indicated that the mother was
aware of the trial date and had been expected to attend. Twenty
minutes after the start of the trial, the judge called the
mother to determine her whereabouts. The mother stated she had
only just woken up and would be there in fifteen minutes. The
mother never showed up to the trial and declined multiple
subsequent calls from the judge. The mother never provided an
explanation for her absence. The judge ultimately drew a
negative inference from the mother's absence.
At the time of trial, Andrea and Braden were placed in the
same foster home, and the adoption plan was for them both to be
adopted by the foster family. Fiona was in a residential
treatment program, where she was doing well. DCF's plan for
Fiona was for her to be adopted by the same foster family. The
5 social worker, however, testified that DCF was "waiting on the
return of the child assessments," which were needed to
"determine what is in their best interest for a final living
situation."2
The judge found the mother unfit and terminated her parental
rights to each of the children. This appeal followed.
2. Standard of review. "To terminate parental rights to a
child and to dispense with parental consent to adoption, a 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). "Because
termination of a parent's rights is an 'extreme step,' . . . a
judge must decide both whether the parent is currently unfit and
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.'" Adoption of Ilona, 459 Mass. 53,
59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350
(1992). "In making this determination, a judge must consider 'a
parent's character, temperament, conduct, and capacity to
2 As is discussed infra, after trial the child assessments revealed that adoption by the foster family was no longer viable.
6 provide for the child in the same context with the child's
particular needs, affections, and age.'" Adoption of Garret, 92
Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414
Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a
nonexhaustive list of factors to be weighed in determining the
fitness of a parent.
Where there is clear and convincing evidence that the
parent is unfit and likely to remain so, we give substantial
deference to the trial judge's decision regarding the child's
best interests 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. at 59. "A
finding is clearly erroneous when there is no evidence to
support it, or when, 'although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),
quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse
of discretion exists where the decision "amounts to a 'clear
error of judgment' that falls 'outside the range of reasonable
alternatives.'" Adoption of Talik, 92 Mass. App. Ct. 367, 375
(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
7 3. Termination of parental rights. a. Unfitness. The
mother argues that the trial judge made several errors in her
findings of fact. The evidence at trial, specifically the
testimony of the mother's DCF social worker, supported the
judge's finding that the mother did not sign DCF releases while
hospitalized between July and December 2021, did not maintain
ongoing communication with DCF during this time, and did not
timely seek additional time for the completion of action plan
items. See R.D. v. A.H., 454 Mass. 706, 719 (2009), quoting
Care & Protection of Three Minors, 392 Mass. 704, 711 (1984)
("It is within the judge's discretion to evaluate the
credibility of witnesses and to make [her] findings of fact
accordingly"). That the mother may have sent a "vague" e-mail
in 2022 that was inadequate to allow DCF to work with a private
social worker to set up a home visit does not leave us "with the
definite and firm conviction that a mistake has been committed."
Adoption of Larry, 434 Mass. at 462, quoting Custody of Eleanor,
414 Mass. at 799 (1993). Similarly, that the mother's attorney
asked for additional time for the mother to participate in
services "minutes before a foster care review" does not
seriously detract from the judge's finding that the mother "did
not timely seek additional time for action plan tasks."
The mother and Fiona further argue that the judge erred in
finding a nexus between the mother's problems with substance use
8 and any harm or danger to the children. "Evidence of alcohol or
drug abuse is . . . relevant to a parent's willingness,
competence, and availability to provide care." Adoption of
Anton, 72 Mass. App. Ct. 667, 676 (2008). A parent's substance
use disorder, however, is not sufficient to justify termination
of the parent's parental rights "[w]ithout a showing that the
mother's drug and alcohol use rendered her unable to provide
minimally acceptable care for her child." Adoption of Zoltan,
71 Mass. App. Ct. 185, 191 (2008).
Here, the evidence showed that the mother's drug use
negatively impacted each of the three children. The newborn
tested positive for cocaine and opiates and suffered prolonged
withdrawal effects requiring nearly a month-long
hospitalization. Prior to birth, the mother was deceptive with
DCF about her pregnancy status, declined offered services, and
refused to participate in drug screenings. The mother failed to
arrange for the care of the twins during her delivery, leaving
them unattended and unaware of what was happening until DCF
assumed custody of them.
"[T]he parent's willingness to engage in treatment is an
important consideration in an unfitness determination where the
substance dependence inhibits the parent's ability to provide
minimally acceptable care of the child." Adoption of Luc, 484
Mass. 139, 147 (2020). Here, the evidence demonstrated that the
9 mother's unwillingness to admit and treat her substance use
disorder and associated health diagnoses negatively affected her
children. Starting in January 2021, the mother lied to DCF
employees about her substance use disorder and never completed
any required drug screening tests. When her substance abuse
disorder resulted in numerous hospitalizations between July and
December 2021, the mother refused to provide medical releases to
DCF, failed to engage in consistent communication with DCF, and
repeatedly left the hospital against medical advice only to
return for assistance on a different day. Id., quoting
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass 279, 289 (1987) ("the mother's
unwillingness to adhere to DCF's service plan, which required
her to obtain treatment for her mental health challenges and
substance use disorder, is 'relevant to the determination of
unfitness'"). It was in this period that the mother's visits
became spotty and unsatisfactory before ending altogether.
Moreover, the mother's inability to address her own medical
diagnoses mirrors her failure to adequately address those of her
children. Adoption of Lisette, 93 Mass. App. Ct. 284, 295
(2018) (affirming termination decree where mother "does not
fully understand the scope of [the child's] medical issues"
given failure to obtain necessary medical services). Prior to
DCF involvement in 2021, the twins were overdue for physical
10 examinations by nearly three years and required the scheduling
of specific medical appointments.
During visits with her children, the mother showed a lack
of understanding about her son's asthma and treatment and
indifference to his general care, deferring supervision and
treatment to her daughters. In one instance, the mother
informed the twins and the accompanying social worker that her
son was "crying too much," and that he would need to change his
behavior when he came home as "he's got to get used to her
somehow." The mother's consistent failure to address her own or
her children's medical needs provided substantial support for
the judge's conclusion that her unfitness was likely to continue
indefinitely.
Finally, the mother's argument that her past parenting
success establishes the likelihood of her future fitness is
unpersuasive. The mother ignores that the record demonstrates
that her problems with substance use have dramatically worsened
since her pregnancy with Braden, degenerating into multiple
hospitalizations. The mother's unwillingness to meet her
children's medical or academic needs prior to DCF custody has
expanded into her unwillingness to communicate with DCF or to
comply with the action plan following removal of the children.
The mother's failure to seek or accept services prior to May
2021 persisted throughout the entirety of proceedings despite
11 her access to nondepartment programs and an independent social
worker. Notably, the mother failed to attend her own children's
best interests trial. Given the lack of evidence of any
discernible progress by the mother after 2021, it was reasonable
for the trial judge to find, by clear and convincing evidence,
that the mother's present unfitness will continue indefinitely.
b. Best interests. It is not enough, however, merely to
determine that the parent is unfit and that the parent's
unfitness is likely to continue indefinitely. To terminate
parental rights, the judge must also determine that "the child's
best interests will be served by terminating the legal relation
between parent and child." Adoption of Ilona, 459 Mass. at 59.
As stated, this determination is within a judge's discretion.
See Adoption of Nancy, 443 Mass. 512, 516 (2005). Here, the
judge reasonably found that termination was in the best
interests of each of the children because it freed them for
adoption.
The trial evidence at the time the judge issued her
findings was that both Andrea and Braden had been placed in the
same home with a foster family that intended to adopt them.
Fiona had been placed in that home, but by February 2022 had
been removed because she was stealing and damaging the home and
getting into physical fights with her twin sister. In May 2022,
she would not discuss the possibility of adoption (or anything
12 about the future) with DCF. In August, however, she was placed
in a residential treatment program. The evidence before the
judge was that Fiona was "very much improved," "getting student
of the day multiple times a week," "participating with her
peers," and no longer getting into physical fights. The judge
was also told that "[t]he girls have been getting along" and
"would like to be together in the future." Moreover, counsel
for Fiona twice told the trial judge at trial that Fiona wished
to be freed for adoption. Based on that trial evidence, the
trial judge acted within her discretion in determining that
being freed for adoption was in Fiona's best interests. See
Adoption of Jacques, 82 Mass. App. Ct. at 610.3
Complicating the situation is a February 2023 permanency
report that was filed and considered by the judge in February
and March 2023 after the trial concluded such that it was not
part of the record at the time that the judge issued her
findings. That report revealed that, at some point before
February 2023, an external agency child assessment stated that
the twins should not be placed together. By this point, the
3 Similarly, based on this evidence, we discern no error in the judge's finding that it was likely that Fiona would be adopted by the preadoptive family. The judge recognized the different situations faced by Fiona and Andrea and made a reasonable prediction based on the evidence before her.
13 preadoptive family was not willing to adopt Fiona.4 This
information, however, was not a part of the trial record when
the judge issued her findings and thus we cannot consider it.5
"We address the propriety of the judge's orders based on the
evidence introduced at trial, and not on posttrial events."
Adoption of Willow, 433 Mass. 636, 644 n.8 (2001). Accord
Adoption of Inez, 428 Mass. 717, 722 (1999) (criticizing Appeals
Court for considering posttrial affidavits). Based on the
evidence before the judge at the time she issued her findings,
the judge acted within her discretion in terminating the
mother's parental rights to free the children for adoption.
4. Adoption plan. An adoption plan need not 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 Varik,
95 Mass. App. Ct. 762, 770 (2019), quoting Adoption of Willow,
433 Mass. 636, 652 (2001). To determine the sufficiency of the
plan, the judge may consider evidence and testimony "regarding
4 Similarly, at some point prior to December 2023, Andrea was removed from the preadoptive home. She continues to support termination to be freed for adoption.
5 After the judge issued her findings, the parties entered this report into the trial record but made no request for the judge to reconsider the decrees or even to amend her findings.
14 unfitness and the child's best interests, in addition to the
written plan." Adoption of Varik, supra. The judge's
determination that a particular plan is in the child's best
interests "presents 'a classic example of a discretionary
decision' to which we accord substantial deference." Adoption
of Jacob, 99 Mass. App. Ct. 258, 272 (2021), quoting Adoption of
Peggy, 436 Mass. 690, 705, cert. denied sub nom. S.T. v.
Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002).
Here, even considering only the trial evidence, the
adoption plan was deficient concerning Fiona. DCF's plan was
for Fiona to be placed with the preadoptive family, but the
social worker testified that this plan was "waiting on the
return of the child assessments," which were necessary "to help
us determine what is in their best interest for a final living
situation." Without the necessary information to determine a
suitable placement, this plan was far from ready to be approved.
To be sure, where matters are unsettled, it might be necessary
"to allow for flexibility in the plan." Adoption of Xarissa, 99
Mass. App. Ct. 610, 622 (2021). Rather than create a "written
plan [that] discussed in detail the child's mental health and
behavioral needs," id., however, the plan here blindly relied on
adoption by the preadoptive family despite recognizing that this
option might well neither be available nor in the child's best
interests. As "we may remand the matter for further proceedings
15 with regard to the department's proposed adoption plan without
vacating that portion of the decree that terminates the
[parent's] rights," Adoption of Varik, 95 Mass. App. Ct. at 774,
we vacate that portion of the decree that approves the adoption
plan and remand for further proceedings on this issue.
5. Visitation. The judge ordered parental visitation with
Fiona at least twice in 2023, once per year starting in 2024,
and after adoption only if the mother is sober and the adoptive
parent "agrees that it is not harmful to the child." Fiona (but
not the mother) challenges this order.6 At trial, however, Fiona
requested that there be no order of visitation and the issue,
therefore, is waived. See Adoption of Ursa, 103 Mass. App. Ct.
558, 570 (2023).
In any event, "[a] trial judge's decision whether to order
visitation between a child and a parent whose parental rights
have been terminated is reviewed for an abuse of discretion."
Adoption of Xarissa, 99 Mass. App. Ct. at 623-624. The mere
existence of parent-child bond is insufficient to require
frequent visitation, as "[t]he purpose of such contact is not to
strengthen the bonds between the child and [her] biological
6 Fiona also challenges the absence of an order of sibling visitation. After Fiona filed her brief, the trial judge laudably acknowledged that she had erred in not ordering sibling visitation and entered an order for such visitation. Accordingly, this issue is moot.
16 mother or father, but to assist the child as [she] negotiates
. . . the tortuous path from one family to another." Adoption
of Douglas, 473 Mass. 1024, 1028 (2016), quoting Adoption of
Vito, 431 Mass. 550, 564-565 (2000). Here, "[a]s the matter
progressed, the mother became less and less consistent with
visits." Adoption of Xarissa, supra at 624. The mother
"stopped visiting with the children by June 2022 and had missed
5 months of opportunities for family time as of the time of
trial," missed the termination trial, and abandoned the legal
proceedings. Under these circumstances, "the judge acted within
her discretion in finding a bond between the mother and child,
but concluding that requiring one court-ordered visit per year
was in the child's best interests." Id. at 625.
6. Conclusion. With regard to Fiona, we vacate that
portion of the decree approving DCF's adoption plan and remand
this matter for further proceedings in accordance with this
17 decision. In all other respects, the decrees as to the children
are affirmed.
So ordered.
By the Court (Blake, Ditkoff & D'Angelo, JJ.7),
Clerk
Entered: October 31, 2024.
7 The panelists are listed in order of seniority.