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
24-P-749
ADOPTION OF GENEVA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Geneva appeals from a decree issued by a
judge of the Juvenile Court terminating her parental rights,
dispensing with her consent to adoption, approving Geneva's
adoption plan, and declining to order posttermination or
postadoption visitation. 2 The mother contends that the judge
failed to make independent findings of fact, and impermissibly
adopted the findings and conclusions of law proposed by the
1 A pseudonym.
2The judge also terminated the parental rights of Geneva's father. He is not a party to this appeal.
Geneva argues for affirmance of the decree. She contends that there was overwhelming evidence that her mother is unfit to parent her and that termination of the mother's parental rights is in her best interest. She notes that this case has "dragged on for seven years," which has caused her "mental and physical anguish," and that she is entitled to the stability that adoption by her preadoptive family will bring her. Department of Children and Families (department). She further
argues that some of those facts are clearly erroneous, and that
the judge failed to adequately consider her progress in
achieving sobriety and her participation in mental health
treatment in determining that termination of her parental rights
was in Geneva's best interest.
We conclude that although the preferred practice is for the
judge to write an independent set of findings of fact, in this
case the findings are amply supported by the evidence and none
of them are erroneous. We further conclude that the decision to
terminate the mother's parental rights was based on clear and
convincing evidence, which established that she had a long
history of neglecting Geneva and that she suffered from
untreated mental illness and alcohol abuse. Despite the
mother's progress in addressing these issues prior to trial, the
judge did not abuse his discretion in determining that she was
not currently fit to assume parental responsibilities, that her
unfitness would likely continue indefinitely into the future,
and termination was in Geneva's best interests. Accordingly, we
affirm.
Background. In a previous care and protection proceeding,
the mother entered into a written stipulation, which was
approved by the judge, granting permanent custody of Geneva to
the department. Thereafter, following a trial on the
2 department's petition to terminate parental rights, at which the
mother, one of Geneva's preadoptive foster parents, a department
social worker, a forensic trauma evaluator, and a third-party,
visitation supervisor testified, the judge concluded that the
mother was currently unfit to assume parental responsibility for
Geneva and that it served Geneva's best interests to terminate
the mother's parental rights. We summarize the relevant facts
found by the judge as follows, all of which find support in the
record.
The mother struggled for years with substance misuse prior
to Geneva's birth. She began drinking at the age of fifteen and
later used cocaine and marijuana. 3 Geneva was born on May 14,
2015. Within two weeks of her birth, on May 28, 2015, the
department received a report pursuant to G. L. c. 119, § 51A
(51A report), alleging the mother's neglect of Geneva. 4
Specifically, the report, which was later supported, included
allegations that Geneva was severely sunburned and there was a
lack of attachment between the mother and Geneva. When Geneva
was three months old, in August 2015, she qualified for early
3 The mother's struggle with addiction contributed to her losing custody of her older son, who tested positive for cocaine at birth. The mother's parental rights to that son were terminated in 2010, and he has since been adopted.
4 The 51A reports "set the stage" only. Adoption of Chad, 94 Mass. App. Ct. 828, 830 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990).
3 intervention services due to developmental deficits but did not
receive the services to which she was entitled because the
mother did not follow through with enrollment. Although the
mother initially agreed to work with a parent partner in
November 2015, the mother did not sign the necessary releases
and ultimately refused the service altogether.
Meanwhile, the mother's living situation was precarious.
Upon Geneva's birth, the two lived together at a residential
shelter. However, by December 2015, they were placed in an
emergency assistance motel due to the mother's "inappropriate
[conduct] with shelter residents and staff, refus[al] to engage
with people of color and refus[al] to engage with shelter
support staff and referred services." During the mother's time
at the motel, staff shared concerns regarding her failure to
follow through with daycare programs, lack of engagement with
mental health and substance abuse treatment, and insufficient
interactions with Geneva. In addition, on one occasion, staff
reported that Geneva was left to sleep on a changing table. On
another occasion, the police responded to a report that the
mother was pushing Geneva's baby carriage, shaking it, and
screaming at Geneva while walking in the rain. Both the mother
and Geneva were soaked and subsequently transported to the
hospital for an evaluation. One month after this incident, a
department social worker conducted a home visit at the shelter
4 motel and observed the mother to have a "flat affect," a lack of
interaction and affection with Geneva, and noted that Geneva was
not verbal.
In July 2016, the mother and Geneva moved in with the
mother's former foster family. The family subsequently shared
concerns regarding the mother's presentation, alcohol use, and
ability to provide sufficient care for Geneva. In April of
2017, the department received two 51A reports alleging neglect
as the mother was observed by police to be "incoherent, under
the influence, and suffering from mental health issues."
The department assumed emergency custody of Geneva after
receiving an additional 51A report filed on June 14, 2017, which
was later supported, alleging that the mother was abusing
alcohol while caring for Geneva, as evidenced by her slurring
her words, acting incoherently, and sleeping all day while
Geneva was in her care. At the time, Geneva was twenty-five
months old and "was found to be developmentally delayed with a
sad and flat affect and to be non-verbal." Geneva had three
short-term foster placements until she was placed in her current
preadoptive home on July 5, 2017.
After the department obtained custody of Geneva, the mother
was offered services and action plans were created. The action
plans, which were modified over time, required the mother to,
among other things, abstain from alcohol, complete a
5 neuropsychological evaluation, attend parenting group classes,
maintain stable housing, and engage in vocational training. The
mother made efforts toward completing several of these tasks,
and she complied with a portion of the tasks assigned to her.
However, contrary to her claim, she did not maintain sobriety
and she was not able to achieve improvement in her parenting
skills and judgment. 5
Additionally, and notably, the mother failed to engage
appropriately with Geneva during visits. The social workers who
were present during visits at various locations observed that
Geneva had very limited interactions with the mother, did not
answer her questions, and would move herself to be physically
distant from the mother. It appeared that Geneva did not enjoy
the visits and that they caused her anxiety. The judge found,
"Geneva who otherwise is amiable and chatty with her foster
parents, social workers and others does not talk about her
mother almost at all except to express displeasure to have to
attend visits."
5 As the judge found, the department offered several parenting services to the mother, including three parent partners and two in-home therapy teams. Many of these services ended because of the mother's lack of engagement with the service provider and lack of increase in the mother's parenting skills and judgment. The judge further found that "Mother has not accepted treatment programs in full and chose the pieces she felt served her needs."
6 Based on the mother's interactions with Geneva during
visits and her failure to engage in ongoing mental health and
therapeutic services, the department changed the goal for Geneva
to adoption in March 2018. Four months later, on July 19, 2018,
the mother gave birth to her third child (son), who has been
removed from the mother's custody three times due to concerns of
neglect and the mother's consumption of alcohol. 6 The department
arranged for visits between the mother, Geneva and the new baby,
but the visits were not successful. The mother could not
supervise both children and Geneva increasingly became
disengaged.
At the time of trial in November 2022, Geneva was seven
years old. The judge found that Geneva wanted to be adopted by
her preadoptive family and had expressed frustration over the
fact that her adoption has not been finalized. The judge also
found that Geneva had developed a strong and healthy attachment
with her preadoptive parents and would be negatively affected if
6 In July 2019, the son was removed from the mother's custody after a 51A report alleged that she was under the influence while caring for him, and she had admitted to police that she had consumed at least ten beers and two wine coolers. The son was removed from the mother's care again after she failed a breathalyzer test, a condition for custody, in April 2020. He was removed a third time after the mother tested positive for alcohol on March 19, 2021, a day after she entered into the written stipulation finding the mother unfit and giving the department permanent custody of Geneva.
7 she were to be removed from their care. Geneva was engaged in
numerous extracurricular activities and the preadoptive family
was providing a "healthy, safe, and stimulating upbringing for
[Geneva]." With regard to the mother's ability to parent Geneva
currently or in the future, the judge noted that the mother
failed to acknowledge and address her "long history of drug
overdoses, alcohol arrests, alcohol hospitalizations, physically
violent encounters with others,[7] psychiatric hospitalizations,
and mental health encounters." Thus, despite some progress in
achieving sobriety and participating in mental health treatment,
the judge concluded that termination of the mother's parental
rights was in Geneva's best interests.
Discussion. "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 Ilian, 91 Mass. App. Ct. 727, 729 (2017), quoting
Adoption of Ilona, 459 Mass. 53, 59 (2011). "When reviewing a
decision to terminate parental rights, we must determine whether
the trial judge abused his discretion or committed a clear error
7 In 2018, the mother reported an extensive history of domestic violence in two prior relationships. She had reconstructive surgery to her face due to being assaulted by abusive partners and may have suffered a traumatic brain injury.
8 of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "When
making this determination, subsidiary findings of fact must be
supported by a preponderance of the evidence, with the ultimate
determination of unfitness based upon clear and convincing
evidence." Adoption of Rhona, 63 Mass. App. Ct. 117, 124
(2005).
1. Findings of fact. The mother asserts that the judge
erred by largely adopting the department's proposed findings of
fact. While it is true that many of the judge's findings
closely track those proposed by the department, and therefore
are "subjected to stricter scrutiny by an appellate court[,]"
(citation omitted), Adoption of Hank, 52 Mass. App. Ct. 689, 693
(2001), the findings "are not to be rejected out-of-hand, and
they will stand if supported by evidence." Care & Protection of
Olga, 57 Mass. App. Ct. 821, 823-824 (2003), quoting First Pa.
Mtge. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n.12
(1985). Although we emphasize that the preferred practice is
for the judge to issue independent findings, 8 we may not reject
findings -- even those "lifted wholesale" from one party's
8 Our cases have consistently held that "[p]roceedings aimed at dispensing with parental consent to adoption involve high stakes and deeply important personal rights. It is critical, therefore, that the judge's decision reflects careful factual inspection [of the evidence] and specific and detailed findings by the judge" (quotation and citations omitted). Care & Protection of Olga, 57 Mass. App. Ct. at 823.
9 proposal -- if they are supported by the evidence. Care &
Protection of Olga, supra. See Adoption of Hank, supra (where
"a judge has adopted a party's proposed findings verbatim[,] we
continue to review those findings under the clearly erroneous
standard"). Here, the judge explicitly acknowledged that he
relied on the department's submission and further stated that he
had conducted an independent review of the evidence. 9 The
judge's findings, including those adopted from the department's
submission, are sufficiently supported by the evidence in the
record, 10 and, more importantly, support the judge's ultimate
conclusion that the mother is currently unfit, her unfitness is
likely to continue into the indefinite future, and that
terminating her parental rights is in Geneva's best interests.
9 The judge wrote that "[a]ny adoption of proposed findings in whole or part was done to conserve resources as the proposed findings reflected the facts as I find upon independent consideration."
10We note that a number of the judge's findings are taken from a summary contained in the forensic trauma evaluation prepared by Christina Chludzinski, who was qualified at trial as an expert in child forensic evaluations. In fact, the department's proposed findings incorporate many portions of this summary verbatim. The report itself was introduced as a joint exhibit at trial with no limitations. Chludzinski also testified that she conducted a "thorough review" of all relevant records in conducting her evaluation. As such, it was reasonable for the judge to rely on this report in making his findings.
10 The mother also argues that certain findings of fact -- one
concerning positive tests for alcohol, and the other concerning
the psychological harm to Geneva should she be removed from her
preadoptive home -- are clearly erroneous. "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" (quotation and
citation omitted). Custody of Eleanor, 414 Mass. 795, 799
(1993). We discern no merit to either challenge.
First, with respect to the alcohol tests, the mother argues
that finding number thirty-four, which states that she tested
positive for alcohol "several times," is both misleading and
clearly erroneous because she was tested approximately 2,496
times and of those tests only three were positive. 11 This claim
does not require extensive discussion because even if we were to
accept the mother's assertion that the finding is misleading,
there was substantial evidence of the mother's misuse of alcohol
and the extent to which it impacted her ability to parent Geneva
11The judge found that "Mother's positive[] [breath test results] were often near court dates and times of other stress. She denies alcohol relapse during these periods. The Court did not credit her testimony on this point."
11 apart from what the mother perceives to be positive evidence of
her sobriety.
Next, the mother challenges the judge's finding that Geneva
would suffer psychological harm should she be removed from her
preadoptive family (finding number sixty-one). However, the
judge was entitled to credit the expert testimony of the
forensic trauma evaluator, who concluded that Geneva would like
to be adopted and would likely be psychologically harmed if she
were separated from her foster family. See Custody of Eleanor,
414 Mass. at 799 ("the judge's assessment of the weight of the
evidence and the credibility of the witnesses is entitled to
deference").
Finally, as to the mother's claim that the judge erred by
failing to consider how potential harm to Geneva could be
alleviated should she be removed from her preadoptive home, any
such failure (and we discern none) would have no bearing on the
ultimate issue. In other words, because the evidence fully
supported the department's plan for Geneva to be adopted by her
preadoptive family, it was not necessary to address the issue of
how best to accomplish her removal. See Care & Protection of
Olga, 57 Mass. App. Ct. at 824-825.
2. Unfitness determination. The mother contends that even
if the judge's findings of fact are not clearly erroneous, the
judge abused his discretion in terminating her parental rights
12 because the facts as found were not sufficient to support a
determination of unfitness by clear and convincing evidence. We
acknowledge, as the mother asserts, that the department has the
burden of proof; however, we are not persuaded that the judge
committed an error of law or abused his discretion. See
Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021)
("[w]here 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" [quotation and citation omitted]). Here,
the judge's determinations as to the mother's present and future
unfitness are supported by sufficient evidence to meet the
requisite standard and the subsidiary findings regarding the
mother's substance use, unaddressed mental health issues,
history of child neglect, lack of parenting skills, failure to
improve those skills through services, and refusal to cooperate
with the department.
Furthermore, contrary to the mother's assertion, the judge
properly considered all the evidence in determining that the
mother was not likely to meet Geneva's needs in the future. He
did not rely exclusively on "past history of alcohol and
substance use" in his determination of unfitness. Instead, the
13 judge found that despite evidence of the mother's sobriety at
the time of trial, the mother had not made any "real progress in
recovery from her addiction/substance abuse problems which have
already le[]d to three children's removal and the adoption of
the oldest child." In sum, the judge acted within his
discretion when he considered the mother's decades-long pattern
of substance abuse and declined to credit her testimony
regarding sobriety. See Custody of Eleanor, 414 Mass. at 799-
800; Adoption of Yvonne, 99 Mass. App. Ct. 574, 581 (2021).
The mother also challenges the judge's conclusion that her
struggles with mental health warranted a finding of unfitness.
A "[m]ental [health] disorder is relevant only to the extent
that it affects the parent['s] capacity to assume parental
responsibility, and ability to deal with a child's special
needs." Adoption of Frederick, 405 Mass. 1, 9 (1989). Here,
the record contains evidence of a nexus between the mother's
unaddressed mental health issues and her ability to parent.
While there is evidence of the mother's eventual engagement in
mental health treatment, the judge was entitled to "rely upon
past patterns of parental neglect or misconduct in determining
current or future fitness." Adoption of Virgil, 93 Mass. App.
Ct. 298, 301 (2018).
Lastly, the mother argues that the judge failed to consider
several facts in her favor. While the record contains some
14 evidence of the mother's appropriate behavior during visits and
her completion of certain action plan tasks, a host of other
factors supported the determination of unfitness. We note that
the mother does not challenge the judge's findings concerning
her lack of engagement in services apart from stating that
"[h]er resistance to [the department] was a typical response for
[department] clients." Nor does she contest the instances where
she neglected her children. Our review leads us to conclude
that the mother's arguments "amount to no more than a
disagreement with the judge's weighing of the evidence and
credibility determinations regarding witnesses." Adoption of
Don, 435 Mass. 158, 166 (2001).
Decree affirmed.
By the Court (Rubin, Hand & Smyth, JJ. 12),
Clerk
Entered: May 21, 2025.
12 The panelists are listed in order of seniority.