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-1274
ADOPTION OF MAB.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees issued by a
Juvenile Court judge terminating their parental rights to their
daughter, Mab. We conclude that the judge properly found that
the mother was indefinitely unfit in light of her mental health
problems, her pattern of temporary improvement followed by
decline, and her lack of affirmative progress. We further
conclude that the judge properly found that the father was
indefinitely unfit as he required supports to parent
successfully and abandoned the many supports provided to him by
moving unannounced to New York. As set forth below, the judge
also properly based her conclusions on findings that the mother
and the father both had difficulty parenting their older
children. Further concluding that the trial judge properly
1 A pseudonym. found that the Department of Children and Families (DCF) made
reasonable efforts to reunite the child with the father, we
affirm.2
1. Background. a. The mother's history. The mother has
a long history of mental health problems and has reported
diagnoses of anxiety, panic disorder, depression, attention
deficit hyperactivity disorder (ADHD), and an unspecified
learning disability. In April 2008, after the birth of her
first child, the mother refused to attend therapy or a parenting
program, and she was not prescribed any medication to treat her
mental health. DCF assumed custody of the mother's first child,
and the mother was never reunified with that child.
In March 2014, the mother applied for DCF services as she
admitted that she struggled to take care of her second and third
children.3 Between 2014 and 2019, the mother failed to have
those two children consistently attend daycare or school. In
2018, the mother admitted that her depression caused her to
struggle to get up in the morning, preventing her from helping
her two children attend daycare or school. There is no evidence
that the mother was doing anything to address her mental health
2 The mother does not challenge the judge's finding that DCF made reasonable efforts to reunify the child with her.
3 The mother's second child was born in July 2011, and her third child was born in September 2013.
2 at the time. The mother had multiple angry outbursts against a
social worker at the children's daycare and her mother (maternal
grandmother), whom she was living with at the time. The
maternal grandmother's house was in a state of disarray with a
cockroach infestation and piles of dirty clothes, garbage, and
animal feces throughout the house.
In February 2019, DCF assumed custody of the mother's
second and third children.4 Following removal, the mother
engaged with an individual therapist but never signed a release
for the DCF social worker to speak with the therapist. In 2019,
the mother completed a neuropsychological evaluation, an anger
management class, and a parenting program.
b. The father's history. The father has an intellectual
disability and cannot read or write. In February 2013, DCF
responded to a report of the father's and his then partner's
disinterest in raising the younger of their two children.5 The
father's apartment was filthy as the floor was barely visible
under piles of food, trash, and clothing. The apartment was in
a drastically improved state when the DCF social worker returned
4 The mother was never reunified with her second child. She was briefly reunited with her third child between April 2021 and January 2022.
5 At the time, the father and his then partner had two children, a daughter born in January 2012 and a second daughter born in February 2013.
3 two days later. In July 2013, the father's younger child
sustained second degree burns after the father attempted to give
the child a bath in boiling water. In July 2017, the father's
apartment was again in a state of disarray with unclean surfaces
and old food on the floor. That same month, DCF removed both
children, and the father's parental rights to the younger child
were terminated.
c. Removal of Mab. The mother and the father met before
July 2011, and the child was born in July 2020. At first, the
child lived with the mother and the mother's third child in a
family shelter. In December 2021, the mother, the third child,
and Mab moved into the father's apartment. The following month,
the mother and the father had an argument which escalated to the
mother's threatening the father with a knife, breaking the
kitchen microwave, and dumping food from the refrigerator and
cabinets onto the floor. The mother was arrested, and DCF
removed both children. Mab was temporarily placed with her
paternal aunt before being placed in foster care in February
2022. In August 2023, she was placed in a preadoptive home and
has remained with her preadoptive family since.
d. The mother's involvement postremoval. Following the
removal of the child, the mother initially continued to live
with the father before returning to live with the maternal
4 grandmother. In February 2022, the month following the removal
of the child, DCF referred the mother and the father to
Communitas, a specialized parenting program for persons with
cognitive disabilities. After four or five months, the referral
for the mother was closed as she missed appointments and failed
to cooperate with the parenting aide.
Around the same time, the mother enrolled in an intimate
partners violence (IPV) program. In August 2022, while in a
motor vehicle, the mother and the father engaged in a verbal
fight, leading to the mother's exiting the vehicle when the
father pulled into the breakdown lane. After officers
responded, the father was arrested for assault and battery on a
police officer and resisting arrest. The following month, the
mother was arrested after she assaulted her sister when the
sister made disparaging comments about her. The mother
recognized that her "mental health was everywhere" in that
moment and she checked herself into the emergency room and a
subsequent week-long mental health treatment program. The
mother was prescribed a mood stabilizer and attention deficit
disorder medication. Previously, the mother was prescribed
medication for only her depression.
In August 2023, the mother completed the IPV program but
did not take accountability for her past domestic violence. The
5 following month, the mother was again referred to the parenting
aide from Communitas but the mother again declined to engage
with the service.
The mother attended nearly all her visits with the child
and arrived on time for these visits. In May 2023, the mother's
visits with the child were increased to supervised biweekly
visits of three hours. The mother was appropriately engaged
with the child during visits and responded to the child's needs,
including ending visits early if the child was tired. During
two separate visits in 2023, the mother demonstrated appropriate
emotional regulation as she did not become flustered by
circumstances outside of her control. The judge found that the
mother formed a positive emotional bond with the child.
In April 2023, the DCF social worker referred the mother to
a shelter after she expressed interest in moving out of the
maternal grandmother's house given its uncleanliness. The
mother had experienced housing instability since her first
involvement with DCF in 2008 and experienced homelessness during
the trial. In January 2024, the mother asked for and received a
third referral for a parenting aide through Communitas. The
mother met with the aide weekly and was receptive to the
parenting aide's advice.
6 e. The father's involvement postremoval. Following the
removal of the child, the father accepted and completed the
referral to Communitas. Around the same time, the father
enrolled in and later completed an IPV program. Following
completion of the IPV program, the father enrolled in a
nurturing father's program. In May 2022, the father requested
and received a second referral to another parenting aide but
struggled with absorbing the provided information and missed
appointments.
Throughout his time in Massachusetts, the father engaged
with the Department of Developmental Services (DDS). The
father's DDS provider assisted the father with shopping and
paying rent. Given the father's inability to read or write, the
DCF social worker read aloud the action plan during home visits
and provided copies of the plan to both the father's DDS
provider and his attorney. In May 2022, the father and his
attorney met with the DCF's social worker and DCF's Americans
with Disability Act (ADA) team. From October 2022 through
December 2023, the father attended weekly visits with a
therapist. This therapist worked with the father to improve his
reading and writing.
Beginning in December 2022, the father married and began
visiting New York weekly, where his wife and his wife's two
7 children resided. In August or September 2023, the father moved
his belongings to New York without notifying DCF. The father's
move violated the father's criminal probation conditions. The
father gave contradictory testimony about the move. He
testified on October 5, 2023, that he was living in New York,
but then testified on October 12 that he had moved back to
Massachusetts and expected his wife to move there as well. The
judge found that the latter testimony was false. As late as
March 2024, the DCF social worker had no confirmation of where
the father lived.
Prior to the move, the father had regularly attended his
biweekly visits with the child. After October 2023, the father
failed to attend any in-person visits with the child. In
September 2023, the father was referred to the same parenting
aide he had previously worked with from Communitas but the
father failed to meet with the aide as he lived in New York.
The same month, the father was removed from the nurturing
father's program. When the father visited Massachusetts in
December 2023, he did not visit with the child despite visiting
with one of his other children. Since moving to New York, the
father has not engaged in any services and has made no attempt
to engage with services. Between October 2023 and March 2024,
the DCF social worker was unable to contact the father.
8 In February 2023, the father completed a parenting capacity
evaluation with Dr. Nicole Brisson. She determined that the
father had "very strong conative abilities," meaning the ability
"to learn the parenting skills . . . and the motivation to
continue to improve his parenting and learn ongoing." She
opined that he required supports to parent, such as a DDS
provider or a therapist. At trial, Dr. Brisson acknowledged
that it would be problematic if the father did not have supports
beyond his new wife.
2. Standard of review. "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). "Because
termination of a parent's 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.'" Adoption of Ilona, 459 Mass. 53,
59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350
(1992). "In making this determination, a judge must consider 'a
9 parent's character, temperament, conduct, and capacity to
provide for the child in the same context with the child's
particular needs, affections, and age.'" Adoption of Garret, 92
Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414
Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a
nonexhaustive list of factors to be weighed in determining the
fitness of a parent.
Where there is clear and convincing evidence that the
parent is unfit and likely to remain so, we give substantial
deference to the trial judge's decision regarding the child's
best interests 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. "A
finding is clearly erroneous when there is no evidence to
support it, or when, 'although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Adoption of Larry, 434 Mass. 456, 462 (2001),
quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse
of discretion exists where the decision "amounts to a 'clear
error of judgment' that falls 'outside the range of reasonable
alternatives.'" Adoption of Talik, 92 Mass. App. Ct. 367, 375
10 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
3. Parental unfitness. a. The mother's unfitness.
"Mental disorder is relevant only to the extent that it affects
the parents' capacity to assume parental responsibility."
Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of
Frederick, 405 Mass. 1, 9 (1989). Here, the mother argues that
the trial judge failed to consider her improved mental health,
particularly after she was prescribed a mood stabilizer in
September 2022. We disagree. In her decision, the trial judge
specifically cited two 2024 visits where the mother exhibited
emotional control in difficult situations and noted the mother's
request for and work with a parenting aide in January 2024.
Accordingly, the judge recognized the mother's improved mental
health since September 2022 but permissibly considered this
recent improvement within the broader context of her overall
history. See Adoption of Jacques, 82 Mass. App. Ct. at 608
("judge was entitled to consider the evidence of her recent
improvements within the context of her earlier and continuing
deficits"). When considered in this context, the mother's
recent improvement fits within an established pattern of
temporary improvement followed by reversion. See id. at 607,
quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989)
11 ("Although 'stale information cannot be the basis for a finding
of current parental unfitness . . . [p]rior history . . . has
prognostic value'").
This pattern began in 2008 when the mother refused to
address her mental health, leading to the removal of her first
child. Between 2014 and 2018, the mother admitted to DCF that
she was overwhelmed by her parenting responsibilities,
particularly in ensuring her children attend daycare and school.
The mother subsequently admitted that her unaddressed depression
contributed to her being unable to help her children get to
daycare and school in the morning.
Upon removal of her second and third children in 2019, the
mother showed signs of improvement, enrolling in individual
therapy and completing a neuropsychological evaluation, an anger
management class, and a parenting program. These improvements
proved temporary, however, as the mother was again overwhelmed
by her parental responsibilities following the birth of Mab in
2020 and the return of her third child in 2021. Although the
mother continued to attend individual therapy, she declined to
sign a release of her therapist's notes to the DCF social
worker. After the child was removed in January 2022, the mother
refused to cooperate with her parenting aide, ending the service
after just four or five months. When referred back to the aide
12 in September 2023, the mother again refused the service,
insisting that she had "passed" her last session. Moreover, the
mother demonstrated no accountability for her past domestic
violence upon completing the IPV program.
Even after the mother was prescribed a mood stabilizer in
September 2022, the mother failed to show any positive signs of
progress (as opposed to the mere absence of problems) until she
requested a parenting aide referral in January 2024.
Accordingly, in light of the limited affirmative evidence of the
mother's progress, it was reasonable for the judge to rely on
the mother's history of a lack of cooperation with DCF services
and general lack of accountability in determining that the
mother remained indefinitely unfit. Adoption of Luc, 484 Mass.
at 145 ("a judge may rely upon a parent's past conduct with
regard to older children to support a finding of current
unfitness as to a different child, so long as that evidence is
not the sole basis for the judge's unfitness determination").6
6 The mother's argument that the judge placed "undue emphasis" on the mother's housing instability is unavailing. The trial judge noted that the mother experienced housing instability throughout her history with DCF and that the mother was homeless during the later trial dates. See Adoption of Knox, 102 Mass. App. Ct. 84, 93 (2023) (judge may consider "demonstrated inability to provide [the child] a safe and stable home"). As noted by the trial judge, the mother's housing instability was "not determinative," but was relevant because it exemplified the effects of the mother's mental health problems.
13 b. The father's unfitness. The father argues that "the
judge diminished Father's positive parenting traits and chose to
focus on his shortcomings due to his mental incapacity." We
disagree. The evidence at trial, particularly the testimony of
Dr. Brisson, established that the father needed a support system
given his cognitive disability. Prior to his engagement in
services, the father demonstrated significant parental
shortcomings, as exemplified by his failure to understand the
risks of his bathing his second child in boiled water.
Moreover, even when engaged in services, the father plainly
needed help as shown by his inability to remember Mab's clothing
sizes, or the grade or school of his oldest child. Moreover,
the father was unable to identify the oldest child's specific
learning disability and the services she received and was
further unable to contact Mab's pediatrician even after being
told how to do so. Accordingly, it was reasonable for the trial
judge to conclude that the "Father's mental deficiencies
necessitate a strong support system for him to adequately care
for [the child]."
Consistent with the evidence at trial and Dr. Brisson's
opinion, the judge noted that, "[w]ith the proper supports,
Father has an equitable opportunity to parent his children."
The judge properly credited the father for engaging "in
14 individual therapy . . . , DDS services, an IPV program, a
parenting class, and with numerous parent aides." This positive
engagement, however, was completely undone by the father's
unannounced and unacknowledged move to New York. By not
providing DCF or DDS notice of his move, the father effectively
abandoned the services he required and had come to rely on to
parent successfully. Moreover, the move was compounded by the
father's failure to seek New York-based services. The evidence
at trial, corroborated by Dr. Brisson, established that the
father could not rely on only his new wife for support.
Finally, the father's abandonment of his needed services
must be considered in light of his effective abandonment of the
child. After October 2023, the father maintained only virtual
visits with the child and failed to visit the child when he
returned to Massachusetts to visit his oldest child. Given the
father's near complete disengagement with DCF and the child
since October 2023, it was reasonable for the trial judge to
conclude that the father was indefinitely unfit.
4. Reasonable efforts. "The department is 'required to
make reasonable efforts to strengthen and encourage the
integrity of the family before proceeding with an action
designed to sever family ties.'" Adoption of West, 97 Mass.
App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass.
15 App. Ct. 275, 278 (2002). "A judge's determination that the
department made reasonable efforts will not be reversed unless
clearly erroneous." Adoption of West, supra at 242.
Here, the record at trial supported the judge's finding
that DCF made reasonable efforts to reunite the father and the
child. Indeed, the evidence showed that, from the outset, DCF
appropriately tailored its services to the father's cognitive
disability. Within a month of the child's removal, DCF referred
the father to a parenting aide who specialized in working with
those with cognitive disabilities. After this service concluded
and the father met with DCF's ADA team in May 2022, DCF
immediately referred the father to a second parenting aide who
had previously worked with those with cognitive disabilities.
In September 2023, DCF referred the father to the Communitas
parenting aide he had first worked with, but the father did not
meet with the aide as he was then living in New York. Moreover,
given the father's inability to read or write, the DCF social
worker read aloud the action plan tasks and "would try to use
language that was easy to understand" during home visits and
provided copies of the plan to both the father and his attorney.
Finally, between October 2022 and December 2023, the father
attended weekly visits with a therapist who worked with the
father to improve his reading and writing.
16 The father's argument that DCF did not make reasonable
efforts to reunite him with the child because it failed to offer
him services while he was in New York is unpersuasive. The
evidence at trial shows that the father never definitively told
his social worker that he had moved to New York and indeed
falsely testified that he had moved back to Massachusetts.
Given the fact that the father initially was only visiting New
York weekly and that the father testified to such in August
2023, it was not immediately apparent that the father had in
fact permanently moved to New York as of the fall of 2023.
Although the father testified in October 2023 that he lived in
New York, his social worker was unable to contact him between
October 2023 and March 2024 to confirm that the father had in
fact permanently moved to New York. If the father had been
forthcoming about his move in the fall of 2023, DCF would have
had a fair opportunity to engage its counterpart in New York in
providing services.7 Accordingly, the trial judge reasonably
7 For the same reason, the father's claim that DCF failed to initiate an Interstate Compact on the Placement of Children (ICPC) request is unpersuasive. Moreover, there is nothing in the ICPC statute, St. 1963, c. 452, § 1, that requires DCF to make an ICPC request when a parent moves out of state. Instead, "ICPC applies when an agency seeks to transfer a child out of State 'for placement in foster care or as a preliminary to a possible adoption.'" Adoption of Zaden, 104 Mass. App. Ct. 523, 526 (2024), quoting St. 1963, c. 452, § 1.
17 concluded that DCF made reasonable efforts. Adoption of Yalena,
100 Mass. App. Ct. 542, 554 (2021) ("The department's obligation
to make reasonable efforts to reunify the child with the mother
is contingent upon her obligation to substantially fulfill her
parental responsibilities [including seeking and using
appropriate services]").
Decrees affirmed.
By the Court (Ditkoff, Hand & Grant, JJ.8),
Clerk
Entered: August 12, 2025.
8 The panelists are listed in order of seniority.