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-588
ADOPTION OF GINO.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a Juvenile Court judge terminated the
mother's parental rights to her youngest child, Gino. On
appeal, the mother contends that the Department of Children and
Families (department) failed to demonstrate by clear and
convincing evidence that the mother was unfit to assume parental
responsibility, and that the unfitness was likely to continue
into the indefinite future. We affirm.
Background. The mother, thirty-two years old at the time
of trial, dropped out of the ninth grade and suffers from
diagnosed mental health issues, including bipolar disorder,
attention deficit hyperactivity disorder, major depression,
anxiety, posttraumatic stress disorder, and intellectual
impairment. She also is a client of the Department of
1 A pseudonym. Development Services (DDS), which offers support to adults with
intellectual or developmental disabilities. A DDS program
enables her to reside with a host family in the community. In
addition, she receives benefits through Social Security and food
assistance through SNAP. She has experienced a history of
unemployment and housing insecurity, and domestic violence
witnessed by the child.
Due to concerns of neglect, the mother does not have
custody of any of her four children. Her oldest son, born in
2011, has been in the custody of his father since 2013. Her
middle two sons, born in 2016 and 2018, respectively, were
removed from mother's care in 2018, and her parental rights were
terminated three years later. She gave birth to her youngest
son, Gino, the subject of the termination decree here, in
September 2020. As to Gino, department involvement began two
months after his birth, when he was diagnosed with "failure to
thrive." A report filed pursuant to G. L. c. 119, § 51A (51A
report), alleged that the mother neglected the child due to
concerns surrounding the child being underweight. The child
also suffered from additional conditions, including extra digits
on his hands (corrected shortly after birth), a heart murmur,
and he later exhibited delays in walking and speech. The
department investigated the allegation of neglect, substantiated
the concern, and opened a case for services.
2 On March 25, 2022, the event precipitating department
custody of the child occurred when the mother allegedly
brandished a knife and threatened her DDS foster parents during
an argument when the child (then eighteen months old) was
present. The police arrested the mother and charged her with
assault by means of a dangerous weapon, and the department
assumed emergency custody of the child. The mother's foster
parents obtained a restraining order against her, and she became
homeless.
With the child in department custody, concerns remained
about his weight and development. The department filed a care
and protection petition on March 28, 2022. On March 29, the
department filed for temporary custody, and the mother waived
her rights at the hearing the following day. The child's foster
parent discovered a tongue-tie that impacted his ability to
speak. The child required surgery to correct the tongue-tie,
but if the condition had been noticed when the child was
younger, an in-office procedure could have obviated the need for
surgery. He also required surgery to widen his urethral
opening. The child continued to improve his mobility issues and
continued to require speech therapy. His preschool program
included an individualized education program, and he showed
progress in dealing with bouts of emotional dysregulation and
tantrums. The child's "particularized needs are significant and
3 will likely require extraordinary attentiveness and
understanding on the part of his caregiver."
On January 3, 2024, following a trial at which the mother
testified, a judge found the mother (and unnamed father) unfit
and the child in need of care and protection. The judge
approved the department's plan for adoption of the child by his
current foster mother. The judge also determined that
posttermination and postadoption contact between the mother and
the child would be in his best interests, but the judge declined
to enter orders as to the frequency and extent of the contact.
The child has lived with his current foster (now preadoptive)
mother since May 2022.
Discussion. "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). "In determining whether the best interests
of the children will be served by issuing a decree dispensing
with the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "We give substantial deference to a judge's
4 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). "[D]issatisfaction with the judge's weighing of the
evidence" is not a sufficient basis to warrant relief on appeal.
Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
We disagree with the mother's claim that the department's
case "rested on ill-defined concerns" that amounted to "smoke
without fire." To the contrary, the judge exhaustively
considered the factors set forth in G. L. c. 119, § 26, and
G. L. c. 210, § 3 (c), including the best interests of the
child, in making his decision. Of particular note, the judge
concluded that the mother (1) lacked insight into the reasons
for the department's initial and ongoing concerns, (2)
demonstrated extensive housing and employment instability, (3)
lacked insight and understanding of the child's medical needs
and the care required to address them, (4) failed to identify
and acknowledge the child's need for ongoing intensive services,
(5) failed to maintain engagement in supportive services, (6)
failed to consistently attend and be prepared for parent-child
visits, (7) refused to provide any information regarding her
intellectual disability to enable the department to address her
needs, and (8) failed to place the child's needs above her own.
5 We discern no error or abuse of discretion and conclude that the
evidence supported the judge's findings and ultimate
conclusions. See Adoption of Jacques, 82 Mass. App. Ct. at 606.
Cognitive limitations. The record contradicts the mother's
contention that the judge found her unfit merely "because of her
cognitive limitations." This contention is at odds with the
judge's comprehensive findings and conclusions as well as the
judge's cautionary note that he "considered the evidence in the
aggregate, and ha[d] not given conclusive weight to any single
component standing alone." The judge's conclusions show his
concern was not with cognitive limitations per se, but with the
mother's "lack of insight regarding her mental health history
and intellectual disability." In particular, she was "not . . .
forthright with information about her disability," and she
"hampered the Department's ability to understand[] her needs"
and provide appropriate services. She identified "stable
housing as the only obstacle she needs to overcome."
The record is replete with examples where the mother's lack
of insight into her own limitations impaired her ability to
understand and meet the child's basic needs. While
acknowledging that the mother brought the child to all his
medical appointments, the judge found that the mother ultimately
"did not follow instructions and/or recommendations from
providers, with attendant consequences on [the child's]
6 health/wellbeing." The judge also noted, "Despite contrary
reports, Mother also represented that the baby consistently
gained weight, never lost weight, and was never underweight."
When the child was two months old, the mother disclosed that he
cried every two hours after feeding, but she would insist on
waiting three to four hours to feed him. See Adoption of
Oliver, 28 Mass. App. Ct. 620, 625 (1990) (parent found unfit
where infant hospitalized for inability to gain weight and
parent showed "no comprehension of his problems and does not
acknowledge that he has problems"). Also, after attending the
child's medical appointments, the mother still lacked insight
into his medical needs as the mother called the nutrition plan
formulated by the Grow Clinic "useless," and independently
stopped giving the child appropriate supplemental food. The
judge expressly found that the mother "continues to demonstrate
a lack of insight and understanding of [the child's] medical
needs despite attending the majority of his appointments, and it
is unclear whether she would be willing and/or able to follow
his [health] provider's instructions." Given that the mother
"still does not agree with [the child's] diagnosis of failure to
thrive" or that his small size was not due to genetics alone,
but rather was due to his diet and nutritional intake, the
evidence supported the judge's unfitness determination. See
Adoption of Dora, 52 Mass. App. Ct. 472, 478 (2001) (noting
7 failure to heed medical advice when child was ill as evidence of
parental unfitness).
Employment and housing instability. We disagree with the
mother's further assertion that the judge's finding regarding
her inability to secure a stable home environment was
unsupported by the evidence. "While homelessness, poverty, and
financial instability alone are not sufficient to terminate a
person's parental rights, they are proper considerations in an
unfitness determination." Adoption of Virgil, 93 Mass. App. Ct.
298, 303 (2018). Here, the judge properly considered these
factors as part of his overall analysis, and his findings and
conclusions are supported by the evidence. For the majority of
her adult life, the mother has been unemployed and dependent on
individuals and service providers for housing. While pregnant
with the child, the mother obtained housing in a DDS mentor
home, and she remained there after the child's birth.
Unfortunately, the mother disrupted this placement when she
threatened her host family with a knife, and she then became
homeless. Since that incident, the mother has struggled to
maintain stable housing, moving between shelters, homes of
family and friends, and additional DDS home placements. See
Adoption of Vito, 431 Mass. 550, 555 (2000) (inadequate housing
properly considered along with other evidence of unfitness).
8 The judge did consider the mother's most recent move into
DDS housing at the time of trial. The judge concluded, however,
that it was "unclear whether her current DDS placement is able
and/or willing to accommodate placement of [the child]." As the
judge noted, the mother did not provide her social worker with
her current address or allow the department to view the
residence and conduct a home visit to assess its appropriateness
for placement of the child. See Adoption of Yvonne, 99 Mass.
App. Ct. 574, 581 (2021) (judge properly considered housing
instability where the department was "unable to verify the
mother's living situation or conduct home visits"). Moreover,
the judge was not required to give greater weight to a current
housing placement of three months when balanced against a long
history of unstable housing. See Adoption of Abigail, 23 Mass.
App. Ct. 191, 196 (1986) ("A past pattern of behavior is . . .
not irrelevant; it has prognostic value"). Thus, there was
ample evidence for the judge to find that the mother's housing
instability contributed to her current parental unfitness.
Child visits. The mother next faults the judge for his
"wholly unreasonable" inferences drawn from the mother's failure
to avail herself of two "day passes" to visit with the child.
We disagree. The day pass is designed to provide "an
opportunity [for the parent] to demonstrate her ability to be a
full-time caregiver for [the child] moving forward." The day-
9 pass issue was just one of many instances cited by the judge as
evidence showing a lack of the mother's engagement with the
child: she frequently arrived late to visits despite being
unemployed; she failed to bring diapers, wipes, and nutritional
food to visits; and she needed to be reminded to change the
child's diaper during visits. See Adoption of Frederick, 405
Mass. 1, 7 (1989) (mother's inability to engage or interact with
child during visits factored into unfitness); Adoption of Darla,
56 Mass. App. Ct. 519, 522 (2002) (unfitness shown by failure of
parents to visit child).
We do not read the judge's findings as holding the mother's
financial circumstances against her regarding the day passes.
Instead, the judge expressly "recognize[d] that Mother has a
limited income" but she "was not able to identify or ask for
specific supports from the Department or service providers to
enable her" to spend time with the child. The judge further
noted that the department "worked extensively" with the mother
to make the day pass work and agreed to provide her with a
stroller, car seat, and lunch box to ensure a successful visit.
Her only obligation was to "formulate a plan" (including pick
up, drop off, and nap times) to care for him from 9 A.M. to
5 P.M. She produced no plan and pulled the plug on the visit at
the last minute, protesting that she needed one hundred dollars
for travel and food. The department provided a second
10 opportunity for a day pass, but the mother did not produce any
plan, and the day pass did not go forward. The judge could
properly consider the day-pass issue in evaluating whether the
mother had the "capacity to provide for the child in the same
context with the child's particular needs, affections, and age."
Adoption of Mary, 414 Mass. 705, 711 (1993).
Action plan. Next, we turn to the mother's claims
regarding her action plan compliance. First, she contends that
the judge erred by attaching any significance to her failure to
complete a neuropsychological evaluation, because that task was
removed from the action plan. Second, she contends that
parenting classes should not have been included in the action
plan.
We agree with the mother that the department removed the
neuropsychological evaluation from the action plan. The judge's
findings, supported by the record, so indicate: "In August
2023, Mother's Action Plan was updated and the task requesting
she complete a neuropsychological evaluation was removed." We
need not decide whether this factual finding precluded the judge
from concluding that the mother's failure to complete the
neuropsychological evaluation indicated, as the judge put it,
that she "resisted or outright refused some services outlined in
her Action Plans." Even if the judge erred, "there was no
resulting prejudice." Adoption of Luc, 484 Mass. 139, 148
11 (2020). See Adoption of Eden, 88 Mass. App. Ct. 293, 297 (2015)
("where a decision terminating parental rights contains a small
number of minor factual errors, we may nonetheless affirm the
decree without recourse to a remand to the trial court").
Because of the extensive evidence supporting unfitness, an
isolated error does not require remand of this case to the trial
court.
As to mother's failure to take parenting classes, we do not
agree that the judge should have disregarded the mother's
failure to complete this task in light of the record before him.
The parenting class was part of the action plan, and the
"failure to follow service plan tasks . . . may be relevant to
determining parental unfitness." Adoption of Leland, 65 Mass.
App. Ct. 580, 585 (2006). Beyond that consideration, the judge
found that a parenting class would have been helpful for the
mother to understand the child's milestones, medical needs,
early intervention involvement, "challenges, speech and language
needs, and overall development." The judge properly considered
the mother's resistance to parenting classes, and the weight he
assigned to that evidence was within his discretion. See
Adoption of Quentin, 424 Mass. at 886 n.3.
Even if, as the mother contends, she substantially complied
with all other action plan tasks, we discern no error by the
judge. Indeed, the judge credited testimony and reports
12 specifically recognizing that the mother consistently engaged in
individual therapy and worked with family stabilization
services. Despite her participation, the mother did not show
progress in understanding her shortcomings and stated
"repeatedly that she is an 'awesome parent' and the only thing
she needs to improve upon is finding stable housing." Even
though the mother engaged in some services, the judge concluded
that the mother's participation did not necessarily translate
into an understanding of her parenting deficiencies. See Care &
Protection of Martha, 407 Mass. 319, 328 (1990). We discern no
error in this determination. The judge was not obliged to
believe that the parenting skills of the mother had improved
simply because she cooperated with the department or showed good
intentions. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143
(1999).
Future unfitness. In terminating parental rights, it is
also "appropriate for a judge to consider 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"
(citation omitted). Care & Protection of Zeb, 489 Mass. 783,
788 (2022). "Because childhood is fleeting, a parent's
unfitness is not temporary if it is reasonably likely to
continue for a prolonged or indeterminate period." Adoption of
Ilona, 459 Mass. at 60.
13 As evidence of her temporary unfitness, the mother points
to a line in a twenty-three page report of an expert clinician
noting that the mother "is capable of providing for [the
child's] basic needs with strong social support." The
clinician's statement is qualified by the crucial next sentence:
"However, she doesn't acknowledge that support is needed in
caring for a child." Evidence before the judge demonstrated
that the mother is resistant to support services because she
does not believe that she needs help parenting. See Adoption of
Luc, 484 Mass. at 146-147 (failure to recognize need for or to
engage consistently in treatment is relevant to determination of
unfitness). Thus, even though evidence shows that the mother
loves the child, made efforts to participate in many department
services, and had some parenting strengths, the record supports
the judge's determination that the mother is unable to
14 comprehend the necessary steps towards obtaining and maintaining
a safe environment for her child and that the mother "will
remain unfit indefinitely."
Decree affirmed.
By the Court (Meade, Sacks & Hodgens, JJ.2),
Clerk
Entered: February 11, 2025.
2 The panelists are listed in order of seniority.