Adoption of Harper.

• Court: Massachusetts Appeals Court
• Decided: July 9, 2026
• Docket: 25-P-0840
• Status: Unpublished

Opinion

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-840

ADOPTION OF HARPER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a judge of the

Juvenile Court finding her unfit and terminating her parental

rights to her daughter, Harper.2 See G. L. c. 119, § 26; G. L.

c. 210, § 3. On appeal, the mother argues that there was

insufficient evidence that her parental unfitness was not

temporary. For the reasons herein, we affirm.

Background. We summarize the judge's factual findings,

supplemented where needed by undisputed facts in the record.

The mother began her relationship with Harper's father in

2014. In 2014, the father moved from Massachusetts to Georgia

1 A pseudonym.

2The father's parental rights were terminated in the same proceeding. He has not appealed. to "turn around his life," but upon returning to Massachusetts

in 2015, the father began residing with the mother full time.

In 2019, the mother was asked by her employer to take a

drug screen after she was seen "nodding off" at her desk. The

mother failed this drug screen. The mother retained her

employment but was subject to sporadic drug screenings; which,

according to the maternal grandmother, the mother either failed

or failed to complete. The mother's employment was terminated

thereafter.

The mother first became aware of her pregnancy with Harper

on April 21, 2022. In June of 2022, at her initial prenatal

care appointment, the mother tested positive for marijuana and

opiates. At this appointment, the mother agreed to participate

in drug screenings going forward, but upon returning for

subsequent appointments, the mother refused to participate in

the screens because she "knew [she] was most likely going to

fail."

In December 2022, Harper was born. At the time of her

birth, Harper tested positive for fentanyl. The following day,

the Department of Children and Families (department) received a

report pursuant to G. L. c. 119, § 51A (51A report), alleging

abuse and neglect of Harper by the mother because she exposed

Harper to substances like marijuana and fentanyl. As a result

of her exposure to fentanyl, Harper experienced withdrawal

2 symptoms which required a longer hospital stay and several

morphine treatments.3

The department conducted an investigation of the

allegations contained in the 51A report, pursuant to G. L.

c. 119, § 51B, during which the mother admitted to "taking

pills" that she received from a friend to treat generalized

pain. The mother specifically admitted to taking a pill "a few

days before giving birth," but said that she did not know that

the pill contained fentanyl. During the investigation, the

mother also claimed that she could "stop whenever she wants."

The investigator noted, however, that the mother was "[un]able

to clearly state why she was taking the pills she got from the

friend."

The department filed a petition in December 2022 alleging

that Harper was in need of care and protection, and obtained

temporary custody of Harper. After being released from the

hospital, Harper was placed with her maternal grandmother, at

the department's recommendation. Meanwhile, the department

developed an interim action plan for the mother and the father.

Pursuant to the action plan, the mother enrolled in a

detoxification program on December 24, 2022, but left twenty-six

3 Following her discharge from the hospital, Harper continued to experience withdrawal symptoms for the next three to four months.

3 hours later without obtaining treatment. The department's

social worker then referred the mother to intensive outpatient

treatment, which the mother chose to attend virtually rather

than in person.

A temporary custody hearing was held on January 24, 2023,

during which the mother tested positive for fentanyl and

norfentanyl -- a result that the mother denied initially, but

later admitted was accurate. Accordingly, the judge ordered the

mother to comply with toxicology screens going forward. Despite

stating that she understood the process by which she was

expected to take and submit the court-ordered screenings, the

mother did not submit any drug screens for the entire pendency

of this case. The mother reportedly said that she was "scared"

to submit to testing but would not elaborate further. In

January 2023, the mother re-entered the detoxification program,

and, after leaving the program roughly six days later,

maintained to the department that she was "sober" for the entire

pendency of this case.

In February of 2023, the mother resumed intensive

outpatient treatment, which she completed in April of 2023.

During this time, the department remained concerned about the

mother's substance use. This concern stemmed from a home visit

in March of 2023, where the mother appeared drowsy, and was seen

nodding off. The department also referred the mother to a

4 program that offered "intensive, trauma-informed combined in-

home treatment and case management for DCF involved families

impacted by substance use," which was set to begin in March

2023. The mother failed to appear at a subsequent provider

meeting designed to discuss the benefits of the program. The

department kept the program in place, however, and the mother

completed the program in June of 2023.

The mother terminated outpatient program services -- which

included weekly, virtual counselling sessions with a licensed,

independent social worker -- when the social worker left the

agency. At that time, the mother stated that she would not

engage in counselling with a new social worker, and she claimed

that she was not using substances, a claim that the judge did

not credit at trial. The social worker reported that she could

not see any changes in the mother as a result of the sessions,

and the mother was not able to verbalize what she had been

learning from the outpatient program. Beyond meeting with a

recovery coach, the mother did not engage with any substance

abuse treatment from August of 2023 until trial commenced in

September of 2024.

During this time, several incidents sustained the

department's concerns regarding the mother's substance use. For

instance, on June 2, 2024, at approximately 9 P.M., police

officers found the mother asleep behind the wheel of a car that

5 was parked at a gas pump. Upon being approached by police, the

mother maintained that she had merely parked at the gas pump and

fallen asleep. Furthermore, in or around July 2024, the

maternal grandmother went to the mother's apartment for a

wellness check, whereupon she found the mother's apartment door

unlocked and open, and the mother lying on the couch with her

eyes closed. The maternal grandmother yelled the mother's name

repeatedly and the mother did not move. The maternal

grandmother testified that she was frightened by the idea of

touching the mother because she thought that the mother might

have "taken too much, [and] that she wasn't going to wake up."

The mother woke up after the maternal grandmother touched her a

few times.

Additionally, from December of 2022 until the time of

trial, the mother visited Harper several times per week, each

time under the maternal grandmother's supervision. Once per

month, a department social worker supervised a visit. Based on

the observations of these supervisors, the department had

concerns regarding the mother's behavior while attending to

Harper. The mother was once seen entering the maternal

grandmother's home upset and "slamming down" her keys and items

before approaching Harper. Moreover, the maternal grandmother

reported that the mother was often on her cell phone during

visits, appearing "distracted." The mother also displayed

6 difficulties accepting the boundaries that the maternal

grandmother had put in place regarding the frequency of the

mother's visits. On one occasion, during an argument with the

maternal grandmother, the mother yelled that she would rather

Harper be in a foster home than with the maternal grandmother.

Furthermore, the maternal grandmother recalled a visit where the

mother appeared to be under the influence of drugs, as she had

difficulty keeping her eyes open and her speech was slurred and

slow.

Trial commenced on September 5, 2024, during which the

mother (1) conceded that she was currently unfit to care for

Harper, and (2) testified that she had used Oxycodone throughout

the pendency of the case, claiming that her "sober date" was

August 29, 2024, a week before trial. As noted by the judge,

the mother's admission at trial contradicted her prior claims to

the department that she had remained sober since her discharge

from the detoxification program in February of 2023. The judge

entered decrees finding the mother and the father unfit and

terminating their parental rights on November 1, 2024. The

judge granted the maternal grandmother permanent custody of

Harper, approving the plan set forth by the department at trial.

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

7 is unfit, 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). Recognizing that

the termination of parental 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" (quotations and citations omitted).

Id. "Because childhood is fleeting, a parent's unfitness is not

temporary if it is reasonably likely to continue for a prolonged

or indeterminate period." Id. at 60.

"We review the judge's findings with substantial deference,

recognizing her discretion to evaluate a witness's credibility

and to weigh the evidence," Adoption of Nancy, 443 Mass. 512,

515 (2005), "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 60.

Here, the mother does not challenge the judge's conclusion

that she was unfit at the time of the decree, or that the

department made "reasonable efforts" to unify her with Harper --

conclusions for which, in any event, we discern no abuse of

discretion or error of law. Rather, the mother asserts that the

judge's conclusion that her unfitness would "continue

undiminished into the future with an attendant harmful effect on

8 [Harper]" lacked support by clear and convincing evidence.

Specifically, the mother contends that, notwithstanding her

history of substance use and unfitness at the time of the

decree, the department failed to establish a nexus between her

substance use and a risk to Harper in the future. See Adoption

of Katharine, 42 Mass. App. Ct. 25, 34 (1997) (explaining that

substance misuse disorder, without "a showing that a . . .

parent has been neglectful or abusive in the care of that

parent's child," does not "translate[] automatically into legal

unfitness to act as a parent"). Having carefully reviewed the

record, "[w]e see no basis for disturbing the judge's view of

the evidence." Adoption of Quentin, 424 Mass. 882, 886 n.3

(1997).

Notably, the judge based her conclusion that the mother's

unfitness was not temporary, only in part, on the mother's

failure to maintain sobriety throughout the pendency of the

case. The judge also properly considered the mother's failure

to "take[] her substance abuse seriously" in determining that

the mother's unfitness was likely to continue indefinitely.

Specifically, the judge found that although the mother had

engaged in some of the services recommended by the department,

she nevertheless (1) "fail[ed] to see the need for certain

services, (2) "continue[d] to minimize her history [of substance

abuse], and (3) "ha[d] not benefited from the select few

9 services to which she engaged." See Adoption of Ilona, 459

Mass. at 59-60 ("Even where a parent has participated in

programs and services and demonstrated some improvement, we rely

on the trial judge to weigh the evidence in order to determine

whether there is a sufficient likelihood that the parent's

unfitness is temporary"). See also Adoption of Ulrich, 94 Mass.

App. Ct. 668, 677 (2019) (parent's failure to benefit from

services is "relevant to the determination of unfitness"

[citation omitted]).

Given that the mother does not contest that she was unfit

at the time of the decree, the judge acted well within her

discretion in determining that the mother's unfitness was not

temporary where the mother's unwillingness to meaningfully

engage in services was abundantly clear from the record. See

Adoption of Luc, 484 Mass. 139, 147 (2020) ("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"). Furthermore, the judge's finding that the

mother was impaired during visits with Harper undermines the

mother's claim that there was no foreseeable risk posed by her

substance misuse. Such a finding, coupled with the mother's

failure to properly address her drug usage, makes reasonable the

judge's conclusion that the mother's unfitness was not temporary

10 and was likely to continue into the foreseeable future. See

Adoption of Ilona, 459 Mass. at 59 ("judge's conclusion that a

parent's unfitness is temporary must . . . not [rest] on a

'faint hope'" [citation omitted]); Adoption of Katharine, 42

Mass. App. Ct. at 32-33 ("[Judges] may consider past conduct to

predict future ability and performance").

Accordingly, the judge's findings that Harper was in need

of care and protection, and decision to commit Harper to the

permanent custody of the maternal grandmother, were sound. The

decree terminating the mother's parental rights and dispensing

with the need for her consent to Harper's adoption is affirmed.

So ordered.

By the Court (Vuono, Henry & Singh, JJ.4),

Clerk

Entered: July 9, 2026.

4 The panelists are listed in order of seniority.