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-1162
ADOPTION OF GIA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by the Juvenile
Court judge terminating her parental rights, approving the
adoption plan of the Department of Children and Families (DCF),
and granting her four posttermination and postadoption visits
per year.2 We conclude that the judge properly found clear and
convincing evidence of indefinite parental unfitness caused
primarily by the mother's unaddressed alcohol misuse and failure
to provide a safe and stable home environment, placing the child
at unacceptable physical and psychological risk. Discerning no
significant error in the factual findings or the judge's
1 The child's name is a pseudonym.
2The father of the child was never identified and is not part of this appeal. 1 determination that the child's best interests would be served by
termination, we affirm.
1. Background. a. The mother's failure to address her
problems with alcohol use. The mother has a concerning history
of alcohol misuse, which has consistently undermined her child's
well-being. On two occasions, the mother's public intoxication
led to her arrest. In October 2021, a police officer
encountered the mother and her friend while they were
intoxicated and loudly yelling. The mother's eyes were red, her
speech was slurred, and she was dressed only in a bra and skirt.
She was arrested after refusing to leave the area. The mother
kicked and screamed at the officer, striking him several times.
She also attempted to use her body to prevent her friend's
arrest. The mother admitted to officers that she had drunk
"more than she should." During the trial in this case, she
testified that she could not recall the incident.
In November 2022, the mother was highly intoxicated and
seizing at a bar. Fire and medical personnel were called to the
scene. While emergency response technicians (EMTs) strapped her
onto a stretcher, the mother bit an EMT and attempted to bite a
firefighter. Despite being handcuffed, she was physically and
verbally combative. She was subsequently charged with assault
and battery on medical staff.
2 These arrests affected the child's living situation. In
January 2023, the child's maternal grandmother and a family
friend both petitioned for guardianship out of concern that the
mother could soon be incarcerated. The mother agreed to
guardianship by the family friend to avoid the child's entering
DCF's care. The mother ultimately received probation, and
custody was returned to the mother.
In October 2023, DCF conducted an emergency removal of the
child after the mother tested positive for alcohol use. The
mother had missed an alcohol test and then tested positive two
days later. The mother testified that the result was a false
positive from either her use of mouthwash or contamination from
spilled perfume, which the judge discredited.
In July 2024, the mother relapsed after learning that a
close friend was shot. The mother did not immediately inform
DCF of her relapse, nor was she receptive to services for
alcohol use thereafter. That August, a social worker explained
to the mother that services could help her develop coping skills
to prevent relapses. The social worker testified that, when she
revisited treatment for alcohol misuse that November, the mother
replied that services were "BS." During trial, the mother
vacillated in acknowledging her alcohol misuse. She testified
in November and December 2024 that she struggled with alcohol
3 misuse, but in December 2024 also testified that she did not
have problems with alcohol.
b. Unsafe and unstable home environment. The child has
been exposed to domestic violence and unsafe home conditions on
multiple occasions. The child witnessed the mother act as both
the perpetrator and victim of domestic violence. For example,
in August 2021, the mother was collecting the child from her ex-
girlfriend's home when an argument broke out. The ex-girlfriend
slapped a phone out of the mother's hand while the mother held
the child. The mother then set the child on the ground before
punching the ex-girlfriend in the face. Both individuals were
criminally charged. The mother testified that she understood
that she was in a domestic violence relationship with her ex-
girlfriend.
Following the altercation between the mother and her ex-
girlfriend in 2021, the mother repeatedly engaged the child's
maternal grandmother for childcare while she struggled with
alcohol use, homelessness, and unemployment. The mother would
also leave the child with others, including the family friend.
In May 2022, the maternal grandmother's boyfriend's dog bit
the child for a second time, leading to serious injuries
requiring thirty-five stitches. During the incident, the dog
dragged the child under the kitchen sink. The dog had
4 separately bitten the child's sister. The dog was subsequently
euthanized.
The mother's 2022-2023 relationship with her boyfriend also
exposed the child to violence. In September 2023, the mother
had allegedly been recently evicted from her apartment and was
staying with her boyfriend. The boyfriend lived with his
father, with whom he fought regularly. The child reported that
she and her mother hid in a locked room during altercations.
The mother avoided DCF for several weeks during the subsequent
investigation.
Additionally, there have been several serious but
unexplained incidents of physical violence involving the mother.
For example, in July 2023, she engaged in an altercation with a
woman at a McDonald's while still on probation for assault and
battery. As a result, she was again charged with assault and
battery. In October 2023, the family friend reported that the
mother had asked her to watch the child because the mother
needed to go to the hospital for broken ribs. In March 2024,
the mother canceled a visit, explaining that she had been
assaulted and had a concussion; the maternal grandmother
reported that the police showed up at her home three times
looking for the mother's boyfriend during this time. During a
home visit in March 2024, the mother had an unexplained black
eye. In October 2024, the mother was the victim of a stabbing
5 in the stomach, which required ten stitches. The mother "did
not mention" the stabbing until a DCF worker asked her about it
that December. When questioned during trial about the stabbing,
she testified, "I don't recall anything from that night, no."
The child has appeared aware of her mother's injuries. For
example, she "worried about Mother at times [and] will be
attentive to Mother and any mark, bruise, cut or bandage," and
would "ask Mother what happened and if she is okay." By
contrast, the child has reported feeling "safest" in the family
friend's care.
The mother has historically struggled with homelessness and
generally does not reside in one location for more than a few
months. After the maternal grandmother's boyfriend's dog bit
the child, the mother and the child moved into a hotel.
Although the mother had an apartment at the start of the case,
she lost it shortly thereafter.
Finally, the mother's home has not consistently been
appropriately maintained. During a September 2023 home visit,
social workers observed her apartment in disarray. The kitchen
had plates and pans with old food on them, and the refrigerator
was empty. Later that month, social workers conducted an
unannounced home visit to confirm that she had cleaned the
apartment and purchased food. When the mother did not answer,
social workers called her. She said she was running errands and
6 could not provide a time for when she would return. The mother
refused to schedule another home visit. Social workers finally
were able to visit nine days later. The home was still
disarrayed, though there was now food in the refrigerator. The
home had an abundance of flies. The social workers observed a
screenless open third-floor window; when they suggested closing
the bottom part of the window to prevent the child from falling
out, the mother refused, swore, and asked them to leave.
c. The mother's failure to complete services. As already
discussed, the mother consistently refused to participate in
alcohol misuse services. She also failed to engage adequately
in other recommended treatment, as evidenced by her "on and off"
engagement with mental health services.3
Doctors have diagnosed the mother with bipolar disorder,
depression, posttraumatic stress disorder, and an unspecified
mood disorder. Although she was initially open to treatment,
she inconsistently followed through with referrals. Mental
health professionals found her difficult to reach because she
frequently changed her phone number. She occasionally
maintained incorrect quantities of her prescription medications.
3 Although the mother was somewhat resistant to therapy to address her mental health diagnoses, we acknowledge that she successfully completed several domestic violence, parenting, and anger management classes as of August 2024. Nonetheless, as the judge noted, "much of her involvement in these services occurred after they had been tasks on her Action Plan for months."
7 From September 2023 to January 2024, she did not engage in
recommended mental health outpatient therapy. In August 2024,
she was discharged from a mental health program because of her
lack of attendance. In December 2024, the mother said she would
not attend an intensive outpatient program if she would not
receive credit because there was "no point."
d. Visitation. The mother was granted biweekly supervised
visits following the child's removal. To her credit, she
provided food and planned age-appropriate activities for the
child. Social workers observed that the mother and the child
were closely bonded, and that the mother was supportive and
encouraging.
Unfortunately, the mother's attendance was inconsistent.
She was late for a visit in February 2024 and then canceled a
visit in March 2024. In April 2024, she was again late for a
visit. She canceled a visit in September 2024 on the scheduled
date. DCF canceled the rescheduled meeting after she failed to
provide COVID-19 test results. She failed to confirm visits in
October and December, again leading to their cancellation by
DCF.
2. Termination of parental rights. a. 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,
8 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). "Parental unfitness, as
developed in the case law, means more than ineptitude, handicap,
character flaw, conviction of a crime, unusual life style, or
inability to do as good a job as the child's foster parent."
Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting
Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). "The
judge's fitness determination must be supported by 'specific and
detailed' findings that demonstrate parental unfitness by clear
and convincing evidence." Care & Protection of Gaston, 106
Mass. App. Ct. 450, 456 (2026), quoting Custody of Eleanor, 414
Mass. 795, 799 (1993).
To terminate parental rights, "[t]he judge 'must also find
that the current parental unfitness is not a temporary
condition.'" Adoption of Querida, 94 Mass. App. Ct. 771, 777
(2019), quoting Adoption of Virgil, 93 Mass. App. Ct. 298, 301
(2018). "Where there is evidence that a parent's unfitness is
not temporary, the judge may properly determine that the child's
welfare would be best served by ending all legal relations
between parent and child." Adoption of Cadence, 81 Mass. App.
Ct. 162, 169 (2012) ("Moreover, the judge is not required to
grant the [parent] an indefinite opportunity for reform").
9 "Despite the moral overtones of the statutory term 'unfit,'
the judge's decision was not a moral judgment or a determination
that the mother . . . do[es] not love the child. The inquiry
instead is whether the [mother's] deficiencies or limitations
'place the child at serious risk of peril from abuse, neglect,
or other activity harmful to the child.'" Adoption of Bianca,
91 Mass. App. Ct. 428, 432 n.8 (2017), quoting Care & Protection
of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
b. Alcohol misuse. Despite the mother's clearly loving
her child, she has been unable to overcome significant personal
challenges that prevent her from providing the child with a safe
and stable home environment. Her primary limitation as a parent
is her persistent alcohol misuse. Although substance misuse
alone is not dispositive of parental unfitness, "the 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).
Although the record demonstrates that the mother appeared
to be sober during visits with the child and during home visits
with the social worker, she relapsed on alcohol just four months
before the trial and has displayed a pattern of refusing to
accept services for, or even acknowledge, her alcohol misuse.
This is despite being arrested while being publicly intoxicated
10 and a positive alcohol screen leading to the child's removal.
"Evidence of parents' refusal to cooperate with the department,
including failure to maintain service plans and refusal of
counseling programs, is relevant to the determination of
unfitness." Adoption of Rhona, 63 Mass. App. Ct. 117, 126
(2005).
To be sure, struggling with alcohol misuse alone is not a
sufficient reason to remove a child, and many persons recovering
from such problems are exemplary parents. Here, however, given
its demonstrated impact on her child's safety and stability, the
mother's unwillingness to address this issue by engaging in
services speaks directly to her parental fitness. See Adoption
of Talik, 92 Mass. App. Ct. 367, 373 (2017) ("Given her failure
to continue treatment and her noncompliance with the other
service plan tasks, it was not error for the judge to consider
her substance abuse in assessing her fitness").
c. Unsafe and unstable home environment. Instances of
"familial violence are compelling evidence for a finding of
parental unfitness." Adoption of Talik, 92 Mass. App. Ct. at
374. "Domestic violence may imperil a child's physical safety
and psychological development." Adoption of Jacob, 99 Mass.
App. Ct. 258, 262 (2021). Domestic violence "that has infected
the mother's life [is] . . . a proper factor for the judge to
11 consider in determining unfitness." Adoption of Xarissa, 99
Mass. App. Ct. 610, 618 (2021).
Here, the child has been repeatedly exposed to domestic
violence, placing her psychological development at significant
risk of harm. See Adoption of Jacob, 99 Mass. App. Ct. at 262.
For example, the child witnessed an altercation between her
mother and a former romantic partner in which the mother punched
the latter in the face. Then, despite routine violence
occurring in her boyfriend's home, the mother chose to move her
child into his apartment. "A judge may properly consider a
parent's decision to remain in a relationship with an abusive
partner in determining parental unfitness." Id. at 265. See
also Adoption of Anton, 72 Mass. App. Ct. 667, 675 (2008)
("Empty gestures at separation will not suffice").
The record shows additional indicators of an unsafe and
unstable home environment. The mother has experienced
homelessness in the child's lifetime. She engaged in criminal
behavior that could have led to her incarceration. Despite
social workers' observing an unscreened open window during a
home visit, she refused to close the bottom part of it. Despite
previous bites inflicted on the child by the maternal
grandmother's boyfriend's dog, the mother put the child in a
position to be bitten again, leading to both serious injury and
a move out of stable housing into a hotel. Finally, the
12 mother's multiple unexplained injuries, including a black eye,
broken ribs, and a stabbing wound, suggest that she has put her
own safety at risk, raising the danger that she would become
unavailable to care for the child. See Care & Protection of
Erin, 443 Mass. 567, 572 (2005).
The mother has also shown a pattern of neglecting DCF
guidance designed to help her provide her child with requisite
stability. She has notably failed to reliably attend scheduled
parental visits. The record shows that the mother has subjected
the child to five canceled visits and two late arrivals. Most
notably, the pattern of missed visits continued during the
trial, demonstrating that the mother's commitment to becoming a
fit parent did not improve over the course of the case. See
Adoption of Cadence, 81 Mass. App. Ct. at 169 ("Moreover, the
judge is not required to grant [the parent] an indefinite
opportunity for reform").
"Weighing strengths against weaknesses is within the core
competency of the trial judge, who has the benefit not only of
the evidence, but of seeing and assessing the parents
themselves." Adoption of Jacques, 82 Mass. App. Ct. 601, 608
(2012). If environmental factors indicate that a child is
likely to be placed in harm's way, the judge is not required to
wait for a tragedy to occur before "finding a parent unfit and
freeing a child for adoption." Adoption of Breck, 105 Mass.
13 App. Ct. 652, 657 (2025). Clear and convincing evidence of the
mother's persistent alcohol misuse, her failure to engage in or
benefit from services, the child's home circumstances, and
numerous other indicators of proximity to danger posing risks to
the child combine to support the judge's assessment of parental
unfitness.
d. Best interests. Appellate courts "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. at 59. An abuse of discretion is found where
"the judge has reached a result outside the bounds of reasonable
alternatives." Adoption of Mariano, 77 Mass. App. Ct. 656, 660
(2010).
We discern no abuse of discretion in the judge's conclusion
that the best interests of the child would be served by
termination of parental rights in view of the clear and
convincing evidence of the mother's indefinite unfitness and the
child's desire for stability. Here the child reported that she
wanted to stay with her foster family (the family friends
previously selected by the mother) "for ever and ever." See
Adoption of Varnell, 106 Mass. App. Ct. 716, 723 (2026) (child's
wishes "should be considered in assessing his best interests").
14 In light of this evidence, the judge was well justified in
concluding that the permanency resulting from a termination of
parental rights followed by an adoption would be in the child's
best interests.
3. Factual findings. "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. at 799. Here,
the judge found that the mother "has a lengthy history of
substance abuse of both alcohol and prescription medications."
Contrary to the mother's argument, the evidence at trial
supports this finding. Various medical providers expressed
concern about the mother's use of prescription medicines. A
social worker testified that the mother "had multiple bottles
. . . of the same medication" and that the social worker was
unable to count her medication in November 2024 "because [she]
saw that there was too many." Moreover, the social worker
testified that the mother herself "admitted having an issue with
substances . . . towards the end of . . . summer [2024]." The
judge "could permissibly infer" misuse from this evidence.
Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003).
15 The judge found that the mother had lived in her apartment
"since approximately August 2024." The record establishes that
the mother had the apartment by February 29, 2024, although
"[t]he space was not yet furnished and there was an air mattress
on the floor." Even assuming, without deciding, that the judge
was required by this evidence to find that the mother lived in
the apartment since February 2024, the judge's overall finding
of housing instability is well founded. For example, the record
shows that the mother and the child moved into a hotel following
the dog-biting incident in May 2022. In September 2023, the
mother moved the child into her boyfriend's home after being
evicted. She repeatedly put herself at risk of incarceration.
Most important, neither of the challenged factual findings
played an important part in the judge's decision. The judge's
rationale for termination was based on domestic violence, the
mother's misuse of alcohol, her criminality, her failure to be
forthcoming, and her failure to engage in services. At no point
in his summary did the judge rely on the mother's misuse of
prescription medications or the lack of housing between February
16 and August 2024. Accordingly, any error was not prejudicial.
See Adoption of Ulrich, 94 Mass. App. Ct. 668, 680 (2019).
Decree affirmed.
By the Court (Shin, Ditkoff & Tan, JJ.4),
Clerk
Entered: June 30, 2026.
4 The panelists are listed in order of seniority.