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-803
ADOPTION OF KOLLEEN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal involves the welfare of Kolleen (the child) and
her mother's capacity to care for her. After a trial, a
Juvenile Court judge found the mother unfit to care for the
child and terminated her parental rights. On appeal, the mother
challenges the judge's ultimate determination, as well as
certain findings of fact and the decision not to order post-
termination visitation.2 We affirm.
1 The child's name is a pseudonym.
2Although the mother has also claimed that the Juvenile Court lacked subject matter jurisdiction, she has since waived that claim, and we conclude that the operative petition satisfied the statutory requirements to establish jurisdiction. See Care & Protection of Lillian, 445 Mass. 333, 340 (2005); G. L. c. 119, § 24. Background. The child was born in 2013.3 The child was
hospitalized at birth and given morphine to treat withdrawal
symptoms, having been exposed to amphetamines, methamphetamines,
and Suboxone during the mother's pregnancy.
While raising the child, the mother continued to suffer
from drug and alcohol misuse, and she has been diagnosed with
opioid use disorder, alcohol use disorder, attention deficit
hyperactivity disorder (ADHD), depression, and oppositional
defiant disorder (ODD). While she sought treatment for her drug
use between November 2019 and June 2024, her participation in
treatment was sporadic and ultimately unsuccessful. During
treatment, she was advised by her medical provider of the risk
of her continued use of illicit stimulants, which included risk
of "seizure," "cardiac complications," and "psychiatric
emergencies." She nevertheless persisted in misusing illicit
stimulants. And despite her diagnosis and documented alcohol
misuse, the mother has denied her alcohol misuse and refused to
seek treatment for it. The mother has suffered multiple
seizures related to alcohol withdrawal, one of which led to the
child discovering the mother "in a pool of blood."
3 The child's putative father is not listed on the child's birth certificate, did not establish paternity, and is not a party to this appeal or the underlying petition.
2 The mother also struggled to maintain stable and safe
housing while raising the child. Between 2018 and 2020, they
resided in at least four different shelters, and prior to that,
they resided with a man whom the mother knew to be a sex
offender. Additionally, the mother was arrested in May 2017 for
child endangerment, and in August 2018 for assault.
The child's access to education was inconsistent. The
child was enrolled in kindergarten in 2019-2020 but did not
enroll in first grade the following year. The child was absent
from school nineteen times in 2021-2022, and twenty-six times in
2022-2023.
The Department of Children and Families (DCF) opened a case
for services in March 2023. The mother refused to engage with
DCF on multiple occasions during its investigation, and DCF was
awarded temporary custody of the child in May 2023 and has since
retained custody. During that period, the child has entered
foster care, has had consistent school attendance, has attended
therapy, and has regularly visited with her adult sister.
For several months following the child's removal, the
mother declined to engage in home visits or to schedule visits
with the child. The mother began supervised visitation with the
child in December 2023. Although the mother acted appropriately
and appeared sober during some of those visits, she canceled
others with minimal notice and justification, and at other times
3 acted erratically, including calling the child a "retard" and
"moron."
Discussion. We review the judge's findings "with
substantial deference and will not disturb those findings unless
clearly erroneous." Adoption of Cadence, 81 Mass. App. Ct. 162,
166 (2012). We also "defer to the judge's determinations
regarding the best interests of the child, and reverse only
where there is a clear error of law or abuse of discretion."
Id.
1. Termination of parental rights. The mother argues that
there was an insufficient nexus between her substance misuse and
neglect of her child and that several of the judge's findings of
fact concerning the mother's awareness of risks to her health
caused by her substance misuse were unsupported at trial. We
conclude the judge's decision is more than sufficiently
supported by the evidence.
First, we acknowledge that "evidence of alcohol or drug use
is relevant to, but not dispositive of, a parent's willingness,
competence, and availability to provide care" (quotation and
citation omitted). Adoption of Luc, 484 Mass. 139, 147 (2020).
Although "parental rights should not be terminated only because
the parent has a substance use disorder," a parent's
"willingness to engage in treatment is an important
consideration in an unfitness determination where the substance
4 dependence inhibits the parent's ability to provide minimally
acceptable care of the child." Id.
Here, however, the judge's decision to terminate the
mother's parental rights was supported by clear and convincing
evidence of neglect stemming from her long-term, unresolved
substance misuse. See Adoption of Mario, 43 Mass. App. Ct. 767,
772 (1997) (affirming termination of parental rights supported
by mother's having "engaged in a pattern of neglect, due in part
to her drug abuse and resulting instability"). The mother was
diagnosed with opioid use disorder and alcohol use disorder, in
addition to ADHD and ODD. The mother's substance misuse spans
the breadth of the child's life, the child having been exposed
to methamphetamine in utero, necessitating the administration of
morphine at birth. Although the mother engaged in some
treatment for opioid addiction, which was acknowledged by the
judge, she was inconsistent, ceased treatment entirely four
months before trial, and never admitted to her alcohol
dependency or sought professional help in treating it or the
associated withdrawal symptoms it caused. These symptoms
included seizures, during one of which the child discovered the
mother "in a pool of blood." Throughout these struggles, as we
have noted, the mother could not maintain stable housing, and
the child missed a significant amount of school.
5 The mother's persistent struggles with substance misuse
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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
25-P-803
ADOPTION OF KOLLEEN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal involves the welfare of Kolleen (the child) and
her mother's capacity to care for her. After a trial, a
Juvenile Court judge found the mother unfit to care for the
child and terminated her parental rights. On appeal, the mother
challenges the judge's ultimate determination, as well as
certain findings of fact and the decision not to order post-
termination visitation.2 We affirm.
1 The child's name is a pseudonym.
2Although the mother has also claimed that the Juvenile Court lacked subject matter jurisdiction, she has since waived that claim, and we conclude that the operative petition satisfied the statutory requirements to establish jurisdiction. See Care & Protection of Lillian, 445 Mass. 333, 340 (2005); G. L. c. 119, § 24. Background. The child was born in 2013.3 The child was
hospitalized at birth and given morphine to treat withdrawal
symptoms, having been exposed to amphetamines, methamphetamines,
and Suboxone during the mother's pregnancy.
While raising the child, the mother continued to suffer
from drug and alcohol misuse, and she has been diagnosed with
opioid use disorder, alcohol use disorder, attention deficit
hyperactivity disorder (ADHD), depression, and oppositional
defiant disorder (ODD). While she sought treatment for her drug
use between November 2019 and June 2024, her participation in
treatment was sporadic and ultimately unsuccessful. During
treatment, she was advised by her medical provider of the risk
of her continued use of illicit stimulants, which included risk
of "seizure," "cardiac complications," and "psychiatric
emergencies." She nevertheless persisted in misusing illicit
stimulants. And despite her diagnosis and documented alcohol
misuse, the mother has denied her alcohol misuse and refused to
seek treatment for it. The mother has suffered multiple
seizures related to alcohol withdrawal, one of which led to the
child discovering the mother "in a pool of blood."
3 The child's putative father is not listed on the child's birth certificate, did not establish paternity, and is not a party to this appeal or the underlying petition.
2 The mother also struggled to maintain stable and safe
housing while raising the child. Between 2018 and 2020, they
resided in at least four different shelters, and prior to that,
they resided with a man whom the mother knew to be a sex
offender. Additionally, the mother was arrested in May 2017 for
child endangerment, and in August 2018 for assault.
The child's access to education was inconsistent. The
child was enrolled in kindergarten in 2019-2020 but did not
enroll in first grade the following year. The child was absent
from school nineteen times in 2021-2022, and twenty-six times in
2022-2023.
The Department of Children and Families (DCF) opened a case
for services in March 2023. The mother refused to engage with
DCF on multiple occasions during its investigation, and DCF was
awarded temporary custody of the child in May 2023 and has since
retained custody. During that period, the child has entered
foster care, has had consistent school attendance, has attended
therapy, and has regularly visited with her adult sister.
For several months following the child's removal, the
mother declined to engage in home visits or to schedule visits
with the child. The mother began supervised visitation with the
child in December 2023. Although the mother acted appropriately
and appeared sober during some of those visits, she canceled
others with minimal notice and justification, and at other times
3 acted erratically, including calling the child a "retard" and
"moron."
Discussion. We review the judge's findings "with
substantial deference and will not disturb those findings unless
clearly erroneous." Adoption of Cadence, 81 Mass. App. Ct. 162,
166 (2012). We also "defer to the judge's determinations
regarding the best interests of the child, and reverse only
where there is a clear error of law or abuse of discretion."
Id.
1. Termination of parental rights. The mother argues that
there was an insufficient nexus between her substance misuse and
neglect of her child and that several of the judge's findings of
fact concerning the mother's awareness of risks to her health
caused by her substance misuse were unsupported at trial. We
conclude the judge's decision is more than sufficiently
supported by the evidence.
First, we acknowledge that "evidence of alcohol or drug use
is relevant to, but not dispositive of, a parent's willingness,
competence, and availability to provide care" (quotation and
citation omitted). Adoption of Luc, 484 Mass. 139, 147 (2020).
Although "parental rights should not be terminated only because
the parent has a substance use disorder," a parent's
"willingness to engage in treatment is an important
consideration in an unfitness determination where the substance
4 dependence inhibits the parent's ability to provide minimally
acceptable care of the child." Id.
Here, however, the judge's decision to terminate the
mother's parental rights was supported by clear and convincing
evidence of neglect stemming from her long-term, unresolved
substance misuse. See Adoption of Mario, 43 Mass. App. Ct. 767,
772 (1997) (affirming termination of parental rights supported
by mother's having "engaged in a pattern of neglect, due in part
to her drug abuse and resulting instability"). The mother was
diagnosed with opioid use disorder and alcohol use disorder, in
addition to ADHD and ODD. The mother's substance misuse spans
the breadth of the child's life, the child having been exposed
to methamphetamine in utero, necessitating the administration of
morphine at birth. Although the mother engaged in some
treatment for opioid addiction, which was acknowledged by the
judge, she was inconsistent, ceased treatment entirely four
months before trial, and never admitted to her alcohol
dependency or sought professional help in treating it or the
associated withdrawal symptoms it caused. These symptoms
included seizures, during one of which the child discovered the
mother "in a pool of blood." Throughout these struggles, as we
have noted, the mother could not maintain stable housing, and
the child missed a significant amount of school.
5 The mother's persistent struggles with substance misuse
caused "a pattern of neglect." Adoption of Mario, 43 Mass. App.
Ct. at 772. Furthermore, the mother's unwillingness to
consistently engage in opioid treatment and to treat or even
acknowledge her diagnosed alcohol use disorder are "important
consideration[s]" on which the judge properly relied to
substantiate his unfitness decision.4 Adoption of Luc, 484 Mass.
at 147.
We also disagree with the mother's contentions that DCF
failed to provide a "sufficiently detailed" adoption plan and
that the judge's decision to adopt the proposed plan was not in
the child's best interest. See Adoption of Varik, 95 Mass. App.
4 Ten of the judge's findings of facts stating that the mother had been advised by medical providers to avoid using alcohol along with Adderall are unsupported by the record. However, the mother's medical records indicate that she was advised that "using illicit stimulants" created a risk of "seizure," "cardiac complications," and "psychiatric emergencies," and she persisted in using illicit stimulants even after being apprised of these risks. The record also indicates, and the mother acknowledged at trial, that she had been advised to reduce her alcohol intake due to her impaired liver function and the increased risk of respiratory depression when ingested concurrently with suboxone, along with the risk of acute intoxication. She persisted in consuming alcohol, nonetheless. Although the records do not indicate that the providers addressed the risks of alcohol and Adderall together, and so the judge's findings to that effect were in error, such error was harmless. The important point is that the mother was warned that her behavior could cause seizures, medical emergencies, and even death, but she engaged in that behavior nonetheless, and experienced seizures and medical emergencies. See Care & Protection of Frank, 409 Mass. 492, 499 (1991).
6 Ct. 762, 770-771 (2019). Although DCF must present and the
judge must consider a permanency plan, G. L. c. 210, § 3, that
plan need not be "fully developed" at the time of trial,
Adoption of Paula, 420 Mass. 716, 722 n.7 (1995), but rather
need only provide enough information "that the judge may
properly evaluate the suitability of [DCF]'s proposal."
Adoption of Willow, 433 Mass. 636, 652-653 (2001).
The plan proposed by DCF in this case was adequate and, as
such, supported the judge's decision that it was in the child's
best interest "to end all legal relations between parent and
child." Adoption of Nancy, 443 Mass at 515. The proposed plan
described the child's current placement in a licensed foster
home. The foster parents wished to adopt the child and were
preparing for permanent placement, the home was being evaluated
to ensure that it contained adequate safety features and space
for the child, the child had no special needs, and the child's
medical and educational needs were being met. That the plan
also indicated that DCF had explored placement in the care of
the child's adult sister and had attempted to aid the sister in
securing stable housing supports the sufficiency of the plan's
details. Cf. Adoption of Varik, 95 Mass. App. Ct. at 771 (plan
held inadequate where DCF had not pursued request to review
suitability of kinship placement with aunt). It is a strength,
rather than a deficiency, in the plan that it is flexible enough
7 to allow a kinship placement if that becomes practical. Under
either scenario, the termination of the mother's parental rights
will enable the child's guardian to care for the child without
interference. The plan's details, considered "in combination
with the overwhelming evidence presented at trial concerning the
mother's unfitness and the child[]'s best interests," supported
the judge's decision to terminate the mother's parental rights.
Adoption of Willow, 433 Mass. at 653.
2. Post-termination visitation rights. Lastly, we affirm
the judge's decision not to order post-termination visitation
rights. This decision must be based on the best interests of
the child, Adoption of Douglas, 473 Mass. 1024, 1027-1028
(2016). Although we acknowledge the bond between the mother and
the child, the existence of such a bond does not mean that
continued visitation "would assist [the child] in her
transition." Adoption of Helga, 97 Mass. App. Ct. 521, 531
(202). Rather, given the mother's history of missing visits
after the child was removed from her care, lack of contact, and
erratic and behavior, we do not find the judge's decision to be
an abuse of discretion. Adoption of Xarissa, 99 Mass. App. Ct.
610, 625 (2021) (reviewing post-termination visitation order
8 based on inconsistency and inappropriateness of post-removal
visits).
Decree affirmed.
By the Court (Vuono, Ditkoff & D'Angelo, JJ.5),
Clerk
Entered: March 3, 2026.
5 The panelists are listed in order of seniority.