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-984
ADOPTION OF MILES.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a judge of the Juvenile Court found the
mother unfit to parent her son, Miles, terminated her parental
rights to Miles, approved the adoption plan for Miles proposed
by the Department of Children and Families (department), and
ordered that the mother could have four supervised
posttermination and postadoption visits with Miles per year.2 On
appeal, the mother argues that (1) the finding of unfitness was
not supported by clear and convincing evidence, and (2) the
judge erred in failing to properly consider the mother's
proposed guardianship plan. We affirm.
1 A pseudonym.
2The judge also terminated the parental rights of Miles's putative father (father). The father did not participate in the trial and is not a party to this appeal. Background. We summarize the judge's findings of fact,
reserving certain details for later discussion. The mother has
three children, Miles, Alex, and Nina.3 The department's
involvement with the family began before Miles's birth when, in
October 2018, a report was filed pursuant to G. L. c. 119, § 51A
(51A report), alleging abuse and neglect of the mother's two
older children, Alex and Nina. The 51A report alleged that Alex
and Nina were present when a group of men suspected of being
involved in a nearby shooting ran into the mother's apartment.
Police searched the mother's home and discovered over fifty bags
of heroin and an unsecured firearm located under a pillow on the
mother's bed. The investigation led to the filing of another
51A report alleging that the mother had posted a photograph on
social media of Alex, then five years old, holding a gun.4
The department filed a care and protection petition and was
granted temporary custody of Alex and Nina; the children were
removed from the mother's care and placed with the maternal
grandmother (grandmother). Alex and Nina were reunified with
the mother in late January 2020, and the care and protection
3 The children's names are pseudonyms. The mother's rights to Alex and Nina were not terminated by the judge, and those children are not parties to this appeal.
4 At trial, the mother testified that the gun in the photograph was a BB gun; the judge did not credit this testimony.
2 petition was dismissed. In July 2020, the mother was found
guilty of and placed on probation for Federal charges of
narcotics distribution, and in March 2022, she was found guilty
and placed on probation for State charges of reckless
endangerment of a child and improper storage of a firearm.
Miles was born in July 2020, with no recorded injuries.
For several weeks after Miles's birth, the mother, the father,
and Miles's two siblings lived with the grandmother in the
grandmother's home. The family, excluding the grandmother,
later moved back into the mother's apartment, where the father
and the grandmother were the primary caretakers while the mother
worked. The father did not know how to hold, feed, burp, or
support Miles's body and had to be taught infant-appropriate
care by the mother and the grandmother, including not being
rough with Miles and not holding him up only by his fingers.
The three adults were Miles's only primary caretakers for the
first months of his life.
On September 25, 2020, the mother brought Miles to the
emergency room for a nail tear and skin abrasion to his right
middle finger. The mother reported to hospital staff that Miles
had caught his finger in her necklace while he was "throwing a
fit." On October 20, 2020, the mother brought Miles, then three
months old, to his pediatrician for a routine checkup. At the
appointment, the mother brought to the pediatrician's attention
3 a swollen, red mark on Miles's left clavicle, which she
described as a spider bite. Suspecting a bone fracture, the
pediatrician ordered an X-ray, which revealed a healing left
clavicle fracture between four and ten days old. A mandated
reporter filed a 51A report alleging neglect of Miles.
Miles was admitted to the hospital after the fracture was
diagnosed, and, pursuant to the hospital's nonaccidental trauma
policy, Miles received a skeletal survey, a blood panel, and a
family and genetic history analysis to rule out medical
explanations for the injury. The skeletal survey revealed
numerous additional bone fractures at various stages of healing:
three left rib fractures between three and four weeks old; two
right rib fractures consistent with multiple weeks of healing; a
possible fracture of the eighth rib; a healed left humerus
fracture between ten and thirty days old; a healing left femur
fracture about one week old; a healed right clavicle fracture;
and a healing left tibia fracture. When questioned by medical
personnel as to how Miles was injured, the mother explained that
she had been bathing Miles the night before and grabbed him
tightly under his arm to prevent him from slipping.5 As further
explanation, the mother testified that she had "burped" Miles
"really hard"; the judge did not credit this explanation.
5 The father did not come to the hospital after he was informed of Miles's injuries.
4 Given Miles's age, the locations of the fractures, and the
absence of underlying medical issues, a pediatrician
specializing in child abuse medicine formed the opinion that the
injuries were intentionally inflicted and medically inconsistent
with the mother's explanations.6 All of Miles's caretakers
denied knowing how the injuries occurred or recognizing any
signs of injury before the fractures were diagnosed.
As a result, the department filed another care and
protection petition and obtained temporary custody of Miles,
Alex, and Nina. The mother subsequently waived her right to a
temporary custody hearing, Alex and Nina were placed with the
grandmother, and the department retained temporary custody of
Miles. The department then implemented a series of action plans
for the mother to work toward reunification. The plans required
the mother to address concerns pertaining to her parental
fitness, including: not engaging in dating relationships that
would endanger her and the children; refraining from using and
distributing illegal substances; complying with the terms of her
Federal probation; engaging in individual therapy; participating
in parenting classes, a bonding assessment, and a psychological
6 It is implicit from the judge's findings that he credited the pediatrician's opinion.
5 evaluation; and signing releases of information from her
collaterals to the department.
Due to the mother's lack of engagement with action plan
tasks, inconsistent communication with the department, and an
absence of insight into how Miles's injuries occurred, the
department changed the child's permanency goal from
reunification to adoption on or about April 1, 2022.7 Miles, who
was two years old at the close of evidence in April 2023, has
lived with his foster family since he was approximately three
months old and receives early intervention therapeutic services
for delayed speech and muscle stiffness.
Discussion. 1. Unfitness. When faced with a petition to
terminate parental rights, the judge must find by clear and
convincing evidence that the parent is unfit, and that the
unfitness is likely to continue into the indefinite future. See
Adoption of Lisette, 93 Mass. App. Ct. 284, 296 (2018).
"Parental unfitness is determined by considering a parent's
character, temperament, conduct, and capacity to provide for the
child's particular needs, affections, and age." Adoption of
Anton, 72 Mass. App. Ct. 667, 673 (2008). The judge's
subsidiary findings must be proved by a preponderance of the
evidence and will only be disturbed if clearly erroneous. See
7 By agreement of all parties after trial, Alex and Nina were permanently placed in guardianship of the grandmother.
6 Custody of Eleanor, 414 Mass. 795, 799 (1993). On review, we
give "substantial deference to a judge's decision that
termination of a parent's rights is in the best interest[s] 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 Yalena, 100 Mass. App. Ct.
542, 549 (2021), quoting Adoption of Ilona, 459 Mass. 53, 59
(2011).
The mother challenges the sufficiency of the evidence
supporting the judge's findings that the mother was unfit to
parent Miles and likely to remain so. She identifies six
reasons underpinning the judge's ultimate findings, none of
which she contends amount to the requisite clear and convincing
evidence. We are not persuaded.
a. Miles's injuries. Expert testimony established that
Miles had been abused multiple times by at least one of his
primary caretakers, starting as early as when he was one week
old and up until his removal at three months. While the judge
noted that there was "no direct evidence [the] [m]other
inflicted the injuries, she was a primary caretaker when they
occurred, and she failed to prevent them." See Adoption of
Larry, 434 Mass. 456, 471 (2001) (unfitness may be predicated on
one parent's failure to protect child from another parent's
abuse); Adoption of Lorna, 46 Mass. App. Ct. 134, 140-141 (1999)
7 ("While at least one [parent] had to have abused [the child],
both [parents] were deemed unfit for their inability to protect
the [child] from future abuse").
Indeed, assuming the mother had not abused Miles, she
recognized concerning aspects of the father's caretaking
abilities before Miles's injuries were diagnosed. She had to
"repeatedly" instruct the father not to be rough with Miles and
not to hold him up by just his fingers; she was aware that the
father smoked marijuana daily while taking care of the children;
she knew that the father would become confused and frustrated
when Miles would cry; and she needed to teach the father how to
hold, feed, burp, and support Miles's body appropriately.
Contrast Adoption of Iris, 43 Mass. App. Ct. 95, 102-103 (1997),
S.C., 427 Mass. 582 (1998) ("There was no evidence before the
court that any of [the caretakers] was an inappropriate
caretaker or that the parents had adverse information . . .
which would have alerted them to shortcomings"). The mother
also maintained a relationship with the father for months after
Miles's removal, ultimately ending the relationship for reasons
other than concern for Miles's safety or the safety of her other
children. See Adoption of Larry, 434 Mass. at 469-470.
Further, while the expert opined at trial that it was possible
for an adult caretaker to miss the signs of internal injuries in
a newborn, at least one of Miles's injuries (other than the left
8 clavicle fracture) was discoverable: the detective
investigating the cause of Miles's injuries saw Miles at the
hospital the day he was removed from the mother's care and noted
that his left leg was bent and "not moving like the other limbs
were." As the mother had bathed Miles the night before his
injuries were diagnosed at the hospital, she had close contact
with Miles and thus could have, but failed to, identify the
signs of injury to his left leg.
While the mother contends that the judge erred "by failing
to describe specific acts or omissions showing [the] [m]other
may be at fault for [Miles's] injuries," the judge's subsidiary
findings establish a nexus between Miles's injuries and the
mother's shortcomings. Indeed, "[i]t was not necessary to sort
out the identity of the actual abuser for each incident of
abuse." Adoption of Lorna, 46 Mass. App. Ct. at 141. Where, as
here, there were a discrete number of caretakers who could have
abused Miles, the judge could properly find each unfit for being
"unable to recognize abuse and confront it preventively." Id.
b. Compliance with action plans. The judge also properly
considered the mother's lack of progress with her action plans.
See Adoption of Luc, 484 Mass. 139, 147 (2020). Although the
mother made some positive efforts, including consistent and
appropriate participation in weekly visits with Miles, a number
of key tasks remained uncompleted at the time of trial. The
9 mother had not participated in parenting classes, engaged in a
bonding assessment, or completed a psychological evaluation --
tasks tailored to assessing and developing the mother's
parenting skills, her relationship with Miles, and her insight
into Miles's individual needs and the circumstances of his
removal. The mother also rescinded all releases to the
department in October 2021 and directed all communications
outside of visitation scheduling to be coordinated between the
department and her attorney. This resulted in delayed referrals
to services and prevented the department from monitoring the
mother's progress.
While the mother contends that many of the assigned tasks
bore little relation to the parenting deficiencies identified by
the department, this is belied by the record. Cf. Adoption of
Leland, 65 Mass. App. Ct. 580, 585-586 (2006) (parent's lack of
compliance with action plan not sufficient to support finding of
unfitness where action plan tasks were unrelated to identified
parental deficiencies). A bonding assessment was an appropriate
task, as Miles had difficulty transitioning from his foster home
to supervised visits with the mother. While the mother
completed parenting classes during the first care and protection
proceeding involving her two older children, parenting classes
were added to her action plans here to help the mother gain
insight into Miles's specific age and developmental needs and
10 the unique circumstances of his removal. Further, given the
mother's mental health diagnoses and her own history of trauma,
a psychological evaluation was appropriate to assess how the
department could best meet and support the mother's own needs.
c. Relationship history. The record also supports the
judge's finding that the mother had not sufficiently addressed
other parental shortcomings, including maintaining a
relationship with the father after Miles's injuries were
diagnosed. While the mother testified that she "kicked" the
father out of the house after she learned of Miles's injuries,
the father was present at a virtual visit in April 2021, and at
an in-person visit to the mother's home in October 2021. As the
mother explained to her social worker, her reasons for finally
separating from the father in 2021 were not because she believed
that the father was responsible for Miles's injuries, but
because she felt as though "he was not contributing" and she
needed to "parent him." This demonstrated a lack of insight as
to Miles's safety and the risks posed by maintaining the
relationship and was relevant to the analysis of parental
unfitness. See Adoption of Paula, 420 Mass. 716, 729 (1995).
Based on our review of the record, the judge properly concluded
that the mother's lack of understanding of the risks her
relationship with Miles's father posed to Miles rendered her
unavailable as a "safe parental resource."
11 d. Criminal history. The judge also considered the
mother's criminal history in reaching the determination of
unfitness. In the context of Miles's history of physical abuse,
the mother's 2020 convictions of drug-related offenses and 2022
convictions of reckless endangerment of a child and improper
storage of a firearm, for which she was serving probation during
the pendency of the proceedings, bore on the question whether
the mother was able to serve as a safe parental resource and
maintain a stable living environment. See Adoption of Virgil,
93 Mass. App. Ct. 298, 301 (2018) ("[a] judge . . . need not
wait for disaster to happen but may rely upon past patterns of
parental neglect or misconduct in determining current or future
fitness"); Care & Protection of Quinn, 54 Mass. App. Ct. 117,
125 (2002) (parent's criminal record is relevant to extent it
bears on parental fitness). Notwithstanding the mother's
contention that her criminal history was "stale" because it
preceded Miles's birth, "prior history does have prognostic
value." Adoption of Carla, 416 Mass. 510, 517 (1993). In any
event, the judge's findings of fact, taken as a whole, do not
demonstrate an undue reliance on the mother's past criminal
conduct in reaching the ultimate finding of unfitness, as the
judge considered a "constellation of factors." Adoption of
Greta, 431 Mass. 577, 588 (2000).
12 e. Mental health and Miles's particularized needs. The
mother is diagnosed with anxiety and depression, for which she
does not take prescription medication. While the mother
reported continuous participation in individual therapy, the
department was no longer able to monitor her progress in therapy
or assess the content of her sessions after she rescinded
releases of information in October 2021. Contrary to the
mother's contention, the judge's consideration of her mental
health as a factor in his determination of her unfitness was not
based solely on the number or frequency of her therapy sessions.
Indeed, rescinding releases of information pertaining to her
progress and participation in therapy and failing to complete a
psychological evaluation also demonstrated a lack of consistency
in addressing the department's concerns regarding the effects of
her mental health, if any, on her ability to parent Miles. See
Adoption of Luc, 484 Mass. at 146-147 (failure to recognize need
for or to engage consistently in treatment is relevant to
determination of unfitness).
As to Miles's particularized needs, at two years old, he
had only spoken one word and was receiving (1) early
intervention services for verbal delays and (2) physical therapy
for muscle stiffness. While the mother was aware of his
developmental delays and the services he was receiving, she did
not request to be involved or demonstrate an understanding of
13 Miles's needs. As such, the judge properly considered the
mother's inconsistent participation in mental health services
and her lack of understanding of Miles's needs as factors
bearing on the mother's current and future fitness. See
Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986) (child's
particular needs relevant to determining parental fitness as to
that child).
Taken together, the judge's findings provide clear and
convincing evidence of the mother's current and indefinite
unfitness, and that termination of her parental rights was in
Miles's best interests. See Adoption of Yalena, 100 Mass. App.
Ct. at 552-553.
2. Adoption plan. After finding a parent unfit, the judge
is required to assess all placement plans and "determine which
placement will serve the best interests of the child." Adoption
of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The judge's
assessment of each plan must be "even handed," regardless of
which party offered the plan. Adoption of Hugo, 428 Mass. 219,
226 & n.8 (1998), cert. denied sub nom. Hugo P. v. George P.,
526 U.S. 1034 (1999). "In choosing among placement plans, it
falls to the sound discretion of the trial judge to determine
what is in the best interests of the child, and our review on
appeal is one of substantial deference" (quotation and citation
14 omitted). Adoption of Bianca, 91 Mass. App. Ct. 428, 434
(2017).
The mother argues that the judge erred in failing to
consider guardianship with the grandmother as an alternative to
the department's proposed adoption plan.8 We disagree. The
judge considered the protective concerns regarding the
grandmother as a placement option, as the perpetrator of Miles's
injuries was still undetermined and the grandmother was one of
his caretakers during the period in which he sustained the
multiple, intentionally-inflicted injuries.9 The judge also
heard testimony from the grandmother that she was unaware of
Miles's speech delay and developmental needs. To the extent the
mother argues that the judge should have given greater
consideration to the grandmother as a kinship placement with a
shared cultural background to Miles, "[a] biological and/or
8 The department contends that the mother did not adequately present the grandmother as an alternative placement plan and has therefore waived this argument. We disagree, as the mother's trial counsel requested that, in addition to the grandmother's petition for guardianship of Miles, the grandmother be considered as an alternative to the department's proposed placement plan. Cf. Adoption of Stuart, 39 Mass. App. Ct. 380, 393 (1995) (discussing statutory requirement that department's proposed plan "have content and substance enough to permit the court to meaningfully evaluate" it).
9 While the grandmother was not caring for Miles in the weeks leading up to his removal, she was one of his primary caretakers during the timeframes in which he sustained injuries.
15 cultural match between child and caretaker is a desirable aim;
but it is a single factor among many" in determining the child's
best interests. Adoption of Irene, 54 Mass. App. Ct. 613, 622-
623 (2002).10
In contrast, the department proposed, and the judge
approved, a plan under which Miles would be adopted by his
foster parents. The judge appropriately considered that Miles,
who was two years old at the close of evidence, had lived with
his foster parents since he was three months old and was
thriving in their care, and that Miles had established a strong
bond with them. Miles was also receiving early intervention
therapeutic services and making progress with his development
while in the foster parents' care. Considering all the facts
before him, the judge contemplated both plans and acted within
10The judge also dismissed the guardianship petition filed by the grandmother; the grandmother did not appeal.
16 his discretion in determining that adoption by the foster family
was in Miles's best interests.
Decrees affirmed.
By the Court (Desmond, Smyth & Tan, JJ.11),
Clerk
Entered: August 21, 2025.
11 The panelists are listed in order of seniority.