ADOPTION OF HILDA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: June 3, 2025
• Docket: 24-P-0554
• Status: Unpublished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

24-P-554

ADOPTION OF HILDA (and a companion case).1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals2 from decrees issued by a judge of the

Juvenile Court finding her unfit and terminating her parental

rights to two of her children, Hilda and John.3 She contends

that the judge erred by ordering a suspension of visits with the

children and by finding the mother unfit and terminating her

parental rights. We affirm.

Background. Hilda and John are twins who were born in

January 2017. Four days after their birth, a mandated reporter

1 Adoption of John. The children's names are pseudonyms.

2 No putative father ever appeared in court.

3The mother has five children but has custody of only her youngest child due to an extensive history of substance misuse, police intervention, and domestic violence. None of the other children are subjects of this petition. References hereafter to "the children" are to Hilda and John. filed a report pursuant to G. L. c. 119, § 51A (51A report),

alleging parental neglect based on the removal of the mother's

two older children and the mother's positive toxicology screen

for oxycodone in December 2016. An investigation conducted

pursuant to G. L. c. 119, § 51B (51B investigation), supported

the allegations of neglect, and the department opened a case on

the family but did not remove the children from the mother's

care.

On October 17, 2017, a reporter filed 51A report alleging

that the mother was using intravenous heroin while the children

were in the home, that the mother needed medical attention, and

that the children needed clothing. A subsequent 51B

investigation supported the allegations. When department social

workers arrived at the home, they observed months-old scars on

the mother's arms consistent with heroin use, which contradicted

the mother's claim that she had been sober since 2012. The

department did not remove the children.

On August 2, 2018, the mother, with both children in the

car, slammed head-on into a school bus. The mother suffered a

broken wrist, tibia, and fibula. At the hospital, the mother

appeared intoxicated, and emergency medical services reported

that the mother received up to twelve doses of Narcan.

Emergency room staff saw a crack pipe fall out of the mother's

clothes. John had visible lines from the seatbelt straps, a

2 bruise on his thigh, and a bump on his head. He was admitted to

the hospital for further observation. The department took

temporary custody of the children and filed the instant care and

protection petition on August 3, 2018. The department placed

the children with the foster parents, where they have remained

since the removal.

The department's subsequent investigation supported the

allegation that the mother was under the influence during the

crash. The mother admitted to an emergency medical technician

that she had used three bags of heroin before the crash but

later denied using drugs, stating that she had not used heroin

in days and blamed the accident on lack of sleep. She also

denied receiving Narcan, owning the crack pipe, having suicidal

ideations, or having recent track marks on her arms. The judge

did not credit these denials. The mother could not recall where

she was going that day or why the twins were not in daycare at

the time of the crash. The mother was admitted to the

hospital's inpatient psychiatric unit under an order pursuant to

G. L. c. 123, § 12 (a).

After the psychiatric hold at the hospital, the mother was

committed to a substance abuse treatment facility pursuant to

G. L. c. 123, § 35. She was discharged on September 26, 2018,

approximately fifty-five days after admission. The mother

engaged in substance abuse treatment beginning in November 2018

3 before relapsing in May 2019. Although the mother claimed that

she has remained sober since May 2019, she tested positive for

fentanyl in June of 2021 and alcohol in August of 2021. The

mother had little engagement with substance abuse treatment

providers between December 2019 and May 2021. Between May and

September 2021, the mother completed fourteen sessions at the

Addiction Recovery Institute, where she was diagnosed with

opioid use disorder, unspecified alcohol-related disorder, and

posttraumatic stress disorder. She failed to complete a court-

ordered hair follicle drug screen in 2022.

Between 2021 and 2022, the mother had several interactions

with police. In February 2021, a police officer observed the

mother "actively slamming [her roommate's friend's] head against

the floor." In March 2021, a police officer observed the mother

assault a friend's daughter by grabbing her hair. In April

2021, the mother called the police when she was locked out of

her house, and she appeared intoxicated while interacting with

the responding officers. In May 2022, police responded to the

mother's home for a report of an assault. At the scene, the

mother yelled and swore at the officers, who determined that the

mother was too intoxicated to provide a witness statement.

Throughout the termination proceedings, the mother

maintained that she did not have a problem with alcohol use -- a

claim the judge discredited due to multiple instances in 2021

4 and 2022 where police officers observed the mother to appear

intoxicated.

In late 2018, the mother began visitation with the twins

during her involuntary civil commitment for her substance use

disorder pursuant to G. L. c. 123, § 35. The mother initially

did well during her visits, but in 2019, the children started

exhibiting increasingly negative behaviors immediately before

and after visits. John exhibited night terrors while asleep and

violent behaviors while awake, such as spitting, hair pulling,

and hitting. He also experienced eczema flare-ups around the

times of visits. Hilda "shut down" after visits and requested

not to see the mother.

In 2020, the visits transitioned to video calls due to the

COVID-19 pandemic. Between March and May 2020, the mother's

attentiveness during the virtual visits waned. During the

summer of 2020, the virtual visits lasted no more than thirty

minutes, sometimes stopping due to John's aggressive behaviors.

Attempting to address the children's increasing behavioral

issues before and after the visits, the department created an

emergency action plan outlining expectations for the mother.

However, the children's behavioral issues continued to increase,

and the department suspended visits for six weeks beginning in

July 2020, partly based on the recommendation of the twins'

pediatrician.

5 The suspension of visits continued to October 2020. During

this period, the twins' negative behavioral and physical

symptoms subsided. On September 15, 2020, the mother moved to

enjoin the department from continuing the suspension. The judge

granted this motion on October 26, 2020, explaining that "the

department has [neither] developed a plan to resume visitation

nor brought the matter before the Court to ask the Court to make

'specific findings demonstrating that parental visits will harm

the child(ren)' pursuant to 110 CMR 7.128."

When the visits resumed, so did the twins' negative

behaviors and physical symptoms. In November 2020, the

pediatrician reported that Hilda had become "very clingy and

anxious," refusing to sleep in her bed because she was "afraid

that they will take her." Hilda also began experiencing eczema

episodes.

On February 1, 2021, the children filed an emergency motion

to suspend parent-child visitation for an indefinite period.

The judge granted this motion on a temporary basis and

subsequently held an evidentiary hearing on the children's

motion. On May 11, 2021, the judge granted the children's

motion, finding by clear and convincing evidence that the visits

were harmful to the children and were causing their negative

behaviors and physical symptoms. The judge found that the

mother insisted that the twins call her "Mommy" during visits

6 against their wishes and did not understand the children's

"developmental or emotional needs." The judge recognized that

her written decision was "timely, but brief" and acknowledged

her "obligation to make specific findings demonstrating parental

visits will harm the child[ren]." The judge reserved "the right

to make further specific findings of fact should the parties

file an appeal."

Following four nonconsecutive days of trial in June and

August of 2022, the judge found the mother unfit and terminated

her parental rights. She issued comprehensive findings of fact

and conclusions of law, which are supported by the record.

Discussion. 1. Suspension of visits. The mother contends

that the judge erred in ordering a temporary suspension of

visits pending a hearing on the same issue because the order was

unsupported by the evidence and violated the mother's due

process rights. We are not persuaded.

"Biological parents are entitled to visitation with their

child so long as the visits are not harmful to 'the welfare of

the child and the public interest.'" Adoption of Rhona, 57

Mass. App. Ct. 479, 488 (2003), quoting G. L. c. 119, § 35.

Generally, "the visitation right is . . . subject to adjustment

for temporary, unusual, or extraordinary circumstances, in the

reasonable discretion of the department." Thaddeus v. Secretary

of the Executive Office of Health & Human Servs., 101 Mass. App.

7 Ct. 413, 422 (2022). For example, "[t]he department can . . .

restrict the duration or frequency of the parent-child visits if

the visits have a negative impact on the child." Id., citing

Adoption of Darlene, 99 Mass. App. Ct. 696, 701 (2021). Here,

the judge had the authority to determine whether visits with the

mother were harmful to the children. "Department regulations

prohibit the termination of visits 'unless the matter is brought

before a judge, and the judge makes specific findings

demonstrating that parental visits will harm the child or the

public welfare.'" Adoption of Rhona, supra at 488-489, quoting

110 Code Mass. Regs. § 7.128 (1998). We review the judge's

order to temporarily suspend visits for abuse of discretion.

See Thaddeus, supra at 423 n.12.

On February 2, 2021, the judge held an emergency hearing on

the children's motion to suspend visits. The judge considered

affidavits from attorneys for the children and the department, a

letter from the children's pediatrician, and a clinical support

options safety plan for the children. The evidence detailed the

physical, emotional, and mental impacts of continued visitation

following the judge's order to resume visits on October 26,

2020. The children experienced trouble sleeping and "visibly

large eczema skin flare-ups" immediately before and after

visits. John had tantrums during and after visits, including

throwing chairs across the room, shutting the pantry door on his

8 leg, biting the foster mother, stabbing at objects, and

intentionally hitting his head on the floor. John also

regressed in his learning. Hilda became dysregulated after

visits, and both children expressed their desire not to visit

with the mother. At the conclusion of the emergency hearing,

the judge expressed concern about the children and ordered the

suspension of visits.

The evidence supports the judge's decision to temporarily

suspend visits. Both children exhibited significant negative

physical, emotional, and mental effects from continued visits

with the mother. Adoption of Rhona, 57 Mass. App. Ct. at 488.

Furthermore, the record demonstrates that the judge took a

thoughtful approach to her decisions about visitation throughout

the pendency of the case. Notably, she granted the mother's

September 2020 motion to enjoin the department's initial

suspension of visitation, allowing the mother and the children a

second chance at visitation before a more significant

suspension. We discern no error in the judge's decision to

temporarily suspend the visits.

The mother contends that the temporary suspension

nonetheless violated her right to due process.4 We are not

4 The mother also contends that certain comments made by the judge at the conclusion of the full evidentiary hearing on the visitation issue further support her due process claim. Such

9 persuaded. "Due process is satisfied by providing notice and an

opportunity to be heard." Adoption of Talik, 92 Mass. App. Ct.

367, 375 n.9 (2017). The mother received notice of the

department's intent to suspend visitation in July 2020. The

mother successfully enjoined this suspension once it had

exceeded its stated six-week duration. In February 2021, the

children moved for another suspension of visits. The mother was

represented at an emergency hearing on this motion the following

day and at the subsequent evidentiary hearing. We conclude that

the mother's due process rights were not violated where she had

opportunities to be heard at multiple proceedings, including a

successful motion to enjoin the department's initial suspension

of visits.5

2. Unfitness and best interests of the children. The

mother contends that the judge erred in finding her unfit and

terminating her parental rights because the judge improperly

comments are not relevant to our inquiry because "[w]e look to the judge's thorough written decisions, made after consideration of the arguments at the hearings and the parties' papers, rather than to the 'thinking out loud' type of comments . . . made while grappling with the scope of the relevant law and seeking comment from counsel in considering different analyses." Commonwealth v. Spencer, 465 Mass. 32, 45 (2013).

5 We note that the mother never filed a motion to reconsider, a motion to reinstate visits, a motion for abuse of discretion, or an interlocutory appeal of the judge's decision.

10 relied on the limited bond between her and the twins caused by

the suspension of visits. We disagree.

"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

Ilona, 459 Mass. 53, 59 (2011). Subsidiary findings must be

proven by a fair preponderance of evidence. Adoption of

Quentin, 424 Mass. 882, 886 (1997).

The mother argues that the judge erred in finding her unfit

because the department engaged in the "unseemly" practice of

suspending visitation "and then trying to leverage the

subsequent deterioration in the parent-child relationship in

judicial proceedings." Adoption of Franklin, 99 Mass. App. Ct.

787, 796 (2021). This argument fails because the judge did not

consider the mother's lack of visits with the children in the

year preceding the trial. The judge evaluated the provisions of

G. L. c. 210, § 3 (c), and found factors (ii), (iii), (iv),

(vi), (vii), (viii), (x), and (xii) to be applicable. Factors

the judge considered include the mother's serious motor vehicle

crash while driving impaired with the children, the mother's

inability to appreciate the dangers of her continued use of

alcohol and opiates, the mother's extensive history of physical

11 altercations and police contact, and the specialized needs of

the twins related to their emotional dysregulation. These

factors, along with the other factors described by the judge in

her findings of fact, support the judge's finding of the

mother's unfitness by clear and convincing evidence. Adoption

of Anton, 72 Mass. App. Ct. 667, 676 (2008) (evidence of alcohol

or drug abuse relevant to "parent's willingness, competence, and

availability to provide care"). See Adoption of Chad, 94 Mass.

App. Ct. 828, 838 (2019), quoting Adoption of Zoltan, 71 Mass.

App. Ct. 185, 188 (2008) ("[T]he issue [of unfitness] is not

'whether the parent is a good one, let alone an ideal one;

rather, the inquiry is whether the parent is so bad as to place

the child at serious risk of peril from abuse, neglect, or other

activity harmful to the child'").

The judge's finding that terminating the mother's parental

rights was in the children's best interests was supported by

clear and convincing evidence. "We 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. Since August 2018, the children have resided in

their current placement with the preadoptive parents. The

preadoptive parents are currently meeting the children's needs.

12 The judge found that while both children have individualized

education plans, "they are otherwise developmentally on target."

The importance of establishing permanency for the children, who

have resided with the same preadoptive parents since their

removal from the mother, supports the judge's finding that

termination of the mother's rights is in the children's best

interests. "The Supreme Judicial Court has emphasized the

importance of achieving stability and permanency in children's

lives and in decrees dispensing with parental rights." Adoption

of Thea, 78 Mass. App. Ct. 818, 824 (2011), citing Adoption of

Nancy, 443 Mass. 512, 517 (2005). Accordingly, we conclude that

the judge did not abuse her discretion in terminating the

mother's parental rights. See Adoption of Ilona, supra.

We discern no error in the judge's unfitness determination

and her decision to terminate the mother's parental rights,

where the mother did not challenge any of the judge's factual

13 findings, and the judge did not rely on the lack of visitation

between the mother and the children.

Decrees affirmed.

By the Court (Rubin, Neyman & Tan, JJ.6),

Clerk

Entered: June 3, 2025.

6 The panelists are listed in order of seniority.