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-1373
ADOPTION OF JODY. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the mother
was unfit to parent her son, Jody, and that his best interests
would be served by the termination of her parental rights. The
mother appeals from the decree, arguing that the judge's
unfitness determination relied on conclusions about her mental
health, despite insufficient factual findings on that issue.
Because the judge found that the mother failed to seek
evaluation or treatment for her mental health concerns, as
opposed to finding she had a specific mental health diagnosis,
we conclude the record amply supported the judge's finding of
unfitness and affirm.
Background. We set forth the facts found by the Juvenile
Court judge after trial, saving some facts for later discussion.
1 A pseudonym. In February 2023, the mother gave birth to the child. The
mother named the child after her romantic partner, whom she
believed to be his biological father. However, the partner was
not listed as the father on the child's birth certificate.
By the time the child was born, the mother had struggled
with substance misuse for most of her life. At the child's
delivery, the mother tested positive for cocaine and fentanyl,
and she was administered methadone to offset withdrawal.
Because the child tested positive for cocaine at birth, a report
alleging neglect pursuant to G. L. c. 119, § 51A, was filed with
the Department of Children and Families (DCF), which took
emergency custody of the child. In an interview with a DCF
investigator, the mother admitted to using fentanyl two or three
times per day over the past year. The mother also said that she
had been living in various motel rooms.
For more than a week following the child's birth, the
mother stayed in the hospital and continued to test positive for
fentanyl, opiates, and methadone. Hospital workers soon
discovered empty syringes and needles in the mother's room, and
they became concerned about the mother's ongoing substance
misuse. Ten days after the child was born, the mother went
outside the hospital without authorization to meet the partner
for what she claimed was a "smoke break." After the mother
2 returned to her room, a nurse saw three methadone pills fall out
of her hand.
On February 23, 2023, at a seventy-two hour hearing, a
judge granted custody of the child to the partner, on the
condition that he not permit contact between the mother and the
child without DCF supervision. Less than two weeks later,
police officers responded to a domestic violence report of a
woman striking a man on the head several times in a department
store parking lot. When officers arrived, they saw that the
partner had fresh, bloody scrapes on his face and was holding
the child, who was about one month old. The police arrested the
mother for domestic assault and battery as well as on three
outstanding warrants. Later, the partner admitted to DCF that
the mother had hit him. Because the partner allowed the mother
to have unsupervised contact with the child, he was removed from
the partner's custody and placed in a DCF foster home, where he
has since remained.
In May 2023, DCF provided the mother with an action plan
that tasked her with, among other things, participating in a
substance abuse program, undergoing a psychological evaluation,
and engaging in weekly mental health counselling. Over the next
seven months, the mother failed to engage in those services, did
not communicate regularly with DCF, and did not visit the child.
3 Meanwhile, in November 2023, paternity testing revealed
that the partner is not the child's biological father. The
child's biological father remains unknown. Up to this point,
the mother had not visited the child; she testified that she did
not do so because she believed her partner was the child's
father and would get custody of him. The mother canceled many
scheduled visits with the child and meetings with the DCF social
worker.
On January 3, 2024, when the child was about eleven months
old, the mother visited him for the first time. Following that
visit, the mother resumed her pattern of canceling meetings with
the child and DCF and testified at trial that she did so because
she was either hospitalized or incarcerated. The judge did not
credit the mother's testimony that she would have visited the
child regularly if not for hospitalization or incarceration.
On January 30, 2024, DCF changed its goal for the child
from reunification to adoption. DCF's adoption plan proposed
that the child be adopted by his maternal aunt, who previously
adopted one of the mother's older children. The child's foster
parents support his placement with the aunt, and if for some
reason the aunt cannot adopt the child, they will consider
adopting him.
Four days before trial, the mother reported to DCF that she
had scheduled a future appointment with a psychiatrist. That
4 day, the mother signed releases for DCF to obtain her treatment
records, 2 and she visited the child for the second time. Based
on the mother's having visited the child only twice during the
year following his removal, the judge found that the mother "has
no apparent relationship with the child."
After a March 2024 trial, a Juvenile Court judge terminated
the mother's parental rights, and those of any unknown or
unnamed father, and approved DCF's plan for the adoption of the
child. The judge found that the mother suffered from pervasive,
untreated substance misuse, as shown by her history of using
fentanyl, cocaine, and heroin, and her testimony admitting to
having used fentanyl as recently as March 8, 2024. In addition
to the mother's untreated substance misuse, the judge based his
rulings on the mother's domestic violence, criminal history,
homelessness, unemployment, and failure to visit the child. The
mother appeals from the decree terminating her parental rights.
Discussion. The mother argues that the judge's findings of
fact and conclusions of law improperly relied on unsupported
concerns about her mental health. She also contends the judge
2 The mother reported that in December 2023 she began medication-assisted treatment for her substance misuse. Shortly before trial, she signed a release for DCF to obtain those records.
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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-1373
ADOPTION OF JODY. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found that the mother
was unfit to parent her son, Jody, and that his best interests
would be served by the termination of her parental rights. The
mother appeals from the decree, arguing that the judge's
unfitness determination relied on conclusions about her mental
health, despite insufficient factual findings on that issue.
Because the judge found that the mother failed to seek
evaluation or treatment for her mental health concerns, as
opposed to finding she had a specific mental health diagnosis,
we conclude the record amply supported the judge's finding of
unfitness and affirm.
Background. We set forth the facts found by the Juvenile
Court judge after trial, saving some facts for later discussion.
1 A pseudonym. In February 2023, the mother gave birth to the child. The
mother named the child after her romantic partner, whom she
believed to be his biological father. However, the partner was
not listed as the father on the child's birth certificate.
By the time the child was born, the mother had struggled
with substance misuse for most of her life. At the child's
delivery, the mother tested positive for cocaine and fentanyl,
and she was administered methadone to offset withdrawal.
Because the child tested positive for cocaine at birth, a report
alleging neglect pursuant to G. L. c. 119, § 51A, was filed with
the Department of Children and Families (DCF), which took
emergency custody of the child. In an interview with a DCF
investigator, the mother admitted to using fentanyl two or three
times per day over the past year. The mother also said that she
had been living in various motel rooms.
For more than a week following the child's birth, the
mother stayed in the hospital and continued to test positive for
fentanyl, opiates, and methadone. Hospital workers soon
discovered empty syringes and needles in the mother's room, and
they became concerned about the mother's ongoing substance
misuse. Ten days after the child was born, the mother went
outside the hospital without authorization to meet the partner
for what she claimed was a "smoke break." After the mother
2 returned to her room, a nurse saw three methadone pills fall out
of her hand.
On February 23, 2023, at a seventy-two hour hearing, a
judge granted custody of the child to the partner, on the
condition that he not permit contact between the mother and the
child without DCF supervision. Less than two weeks later,
police officers responded to a domestic violence report of a
woman striking a man on the head several times in a department
store parking lot. When officers arrived, they saw that the
partner had fresh, bloody scrapes on his face and was holding
the child, who was about one month old. The police arrested the
mother for domestic assault and battery as well as on three
outstanding warrants. Later, the partner admitted to DCF that
the mother had hit him. Because the partner allowed the mother
to have unsupervised contact with the child, he was removed from
the partner's custody and placed in a DCF foster home, where he
has since remained.
In May 2023, DCF provided the mother with an action plan
that tasked her with, among other things, participating in a
substance abuse program, undergoing a psychological evaluation,
and engaging in weekly mental health counselling. Over the next
seven months, the mother failed to engage in those services, did
not communicate regularly with DCF, and did not visit the child.
3 Meanwhile, in November 2023, paternity testing revealed
that the partner is not the child's biological father. The
child's biological father remains unknown. Up to this point,
the mother had not visited the child; she testified that she did
not do so because she believed her partner was the child's
father and would get custody of him. The mother canceled many
scheduled visits with the child and meetings with the DCF social
worker.
On January 3, 2024, when the child was about eleven months
old, the mother visited him for the first time. Following that
visit, the mother resumed her pattern of canceling meetings with
the child and DCF and testified at trial that she did so because
she was either hospitalized or incarcerated. The judge did not
credit the mother's testimony that she would have visited the
child regularly if not for hospitalization or incarceration.
On January 30, 2024, DCF changed its goal for the child
from reunification to adoption. DCF's adoption plan proposed
that the child be adopted by his maternal aunt, who previously
adopted one of the mother's older children. The child's foster
parents support his placement with the aunt, and if for some
reason the aunt cannot adopt the child, they will consider
adopting him.
Four days before trial, the mother reported to DCF that she
had scheduled a future appointment with a psychiatrist. That
4 day, the mother signed releases for DCF to obtain her treatment
records, 2 and she visited the child for the second time. Based
on the mother's having visited the child only twice during the
year following his removal, the judge found that the mother "has
no apparent relationship with the child."
After a March 2024 trial, a Juvenile Court judge terminated
the mother's parental rights, and those of any unknown or
unnamed father, and approved DCF's plan for the adoption of the
child. The judge found that the mother suffered from pervasive,
untreated substance misuse, as shown by her history of using
fentanyl, cocaine, and heroin, and her testimony admitting to
having used fentanyl as recently as March 8, 2024. In addition
to the mother's untreated substance misuse, the judge based his
rulings on the mother's domestic violence, criminal history,
homelessness, unemployment, and failure to visit the child. The
mother appeals from the decree terminating her parental rights.
Discussion. The mother argues that the judge's findings of
fact and conclusions of law improperly relied on unsupported
concerns about her mental health. She also contends the judge
2 The mother reported that in December 2023 she began medication-assisted treatment for her substance misuse. Shortly before trial, she signed a release for DCF to obtain those records. However, the release was not signed by a clinician, and so DCF could not use it to obtain the records. Also shortly before trial, the mother signed a release for DCF to obtain her hospital records, but as of trial DCF had not done so.
5 did not establish a nexus between her mental health and her
unfitness as a parent.
"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" (citation omitted). Adoption of Yalena,
100 Mass. App. Ct. 542, 549 (2021). "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. 53, 59 (2011).
The mother argues that out of the judge's one hundred
enumerated findings of fact, "not a single one relates to or
even mentions Mother's mental health." In making that argument,
the mother apparently ignores the facts on that subject set
forth in the introductory section of the judge's findings of
fact and in his conclusions of law. Moreover, in the findings
of fact section, the judge did make findings relevant to the
mother's mental health. The judge found that the mother "has
not completed a psychological evaluation" and "has not
participated in . . . therapeutic services." The judge also
6 found that shortly before trial the mother told the DCF social
worker that she had scheduled a future appointment with a
psychiatrist. 3 In light of the judge's finding that the mother
had a longstanding pattern of "making claims and not following
through," the judge was not required to conclude that the
mother's scheduling a single psychiatric appointment amounted to
meaningfully engaging in services. See Custody of Two Minors,
396 Mass. 610, 621 (1986) ("The court is permitted to assess
prognostic evidence derived from prior patterns of
parental . . . misconduct in determining future fitness").
These findings did relate to the mother's mental health, and
they supported the judge's conclusions of law that followed.
See Adoption of Luc, 484 Mass. 139, 147 (2020) (mother's failure
to provide DCF with psychological evaluation was relevant to
unfitness inquiry).
In his conclusions of law, the judge stated: "Despite
Mother's ongoing mental health concerns, she has never
meaningfully engaged in mental health or therapeutic services.
She has never completed a psychological assessment to even gain
an understanding of what her mental health needs or possible
3 The judge did not hear evidence as to whether the mother attended that appointment. That fact is immaterial to our analysis.
7 diagnoses are." 4 Thus, the judge expressed that the mother had
mental health "concerns," which could be alleviated or treated
by her engaging in the services recommended on her action plan.
Contrary to the mother's assertion that the judge "erroneously
determined . . . that Mother has mental health issues," the
judge's references to the mother's "ongoing mental health
concerns" did not amount to a conclusion that she had a mental
health disorder. See Adoption of Yvonne, 99 Mass. App. Ct. 574,
580 (2021) (considering incidents of "concerning behaviors"
without reaching conclusion that mother had mental health
disorder). Here, the judge made no finding that the mother
suffers from "a particular condition" (citation omitted).
Adoption of Zoltan, 71 Mass. App. Ct. 185, 191 (2008) (mother's
alleged anger management issues not significantly supportive of
unfitness). The judge's decision, therefore, did not rely on
the mother's mental health as an "improper factor." Adoption of
Eden, 88 Mass. App. Ct. 293, 296 (2015) (unproven allegation of
sexual abuse was improper factor).
4 The mother also challenges the following conclusions: (1) "Mother has not demonstrated any observable changes as to insight into her shortcomings, . . . [including] mental health"; (2) "Mother's lack of insight into her . . . mental health . . . continue[s] to put the child at risk of further harm"; and (3) "Mother's mental health and sobriety are a concern to this Court."
8 Rather, the significance of the judge's references to the
mother's mental health concerns is that the mother failed to
seek diagnosis of or treatment for those concerns. See Adoption
of Luc, 484 Mass. at 145 (affirming termination decree where
judge considered parent's "ongoing pattern of untreated mental
health and substance use disorders"). See also Adoption of
Leonard, 103 Mass. App. Ct. 419, 423 (2023) (no error in finding
that parent's untreated mental health issues endangered child).
Given the evidence that the mother did not take any diagnostic
or preventative care of her mental health, by way of a
psychological evaluation or other services, the judge was
warranted in concluding that the mother had no "understanding of
what her mental health needs or possible diagnoses are." See
Adoption of Yalena, 100 Mass. App. Ct. at 552-553 (considering
parent's "minimal insight into her parenting deficits" and lack
of "any measurable improvement"). See also Adoption of Flavia,
104 Mass. App. Ct. 40, 48-50 (2024) (considering parent's
inability to recognize severity of her addiction).
The mother's failure to investigate her mental health also
demonstrated "unwillingness to adhere to DCF's service plan,
which . . . is relevant to the determination of unfitness"
(quotation and citation omitted). Adoption of Luc, 484 Mass. at
147. Though the mother contends there is "scant evidence"
showing that DCF was concerned about the mother's mental health,
9 the record shows otherwise. DCF's action plan included tasks
targeting the mother's mental health. Yet the mother did not
engage in the recommended services and often failed to
communicate with DCF, leaving DCF to conclude that she was
noncompliant. See Adoption of Oren, 96 Mass. App. Ct. 842, 845
& n.5 (2020) (parent's failure to participate in therapy, as
required by her action plan, was relevant to fitness inquiry).
Even if the judge's lack of a more specific finding as to
the nature of the mother's "mental health concerns" amounted to
error, we would consider it nonprejudicial. See Adoption of
Breck, 105 Mass. App. Ct. 652, 663 n.7 (2025). Cf. Adoption of
Bea, 97 Mass. App. Ct. 416, 426-427 (2020) (given "extensive"
findings supporting unfitness, any error in admission of expert
testimony was harmless). The judge's decision was "amply
supported" by subsidiary findings pertaining to the mother's
substance misuse, homelessness, criminal history, domestic
violence, and failure to visit the child, and each of those
10 findings was supported by the record. Adoption of Helen, 429
Mass. 856, 859 (1999).
Decrees affirmed.
By the Court (Ditkoff, Hand & Grant, JJ. 5),
Clerk
Entered: July 30, 2025.
5 The panelists are listed in order of seniority.