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-70
ADOPTION OF NANDO. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a judge of the Juvenile Court issued a
decree finding the mother unfit to parent her son, Nando,
terminated the mother's parental rights, committed Nando to the
permanent custody of the Department of Children and Families
(department), and approved the department's plan for adoption. 2
The mother appeals, arguing that the judge abused her discretion
by prematurely terminating the mother's parental rights while
she was engaging in services and making progress toward parental
fitness. We affirm.
1 A pseudonym.
2The judge also terminated the parental rights of the putative father. He did not participate in the trial and does not join in this appeal. Background. Nando was born substance exposed in June 2022.
He weighed roughly four pounds at birth and tested positive for
fentanyl, cocaine, and methadone. He spent three weeks in the
neonatal intensive care unit to recover from neonatal abstinence
syndrome. The department immediately filed a care and
protection petition pursuant to G. L. c. 119, § 24. The
department took emergency custody of Nando in the hospital and
subsequently moved him into a kinship placement, where he
remained at the time of trial on the termination of parental
rights. In his kinship placement, Nando lives with his older
half-brother, 3 his preadoptive parents, and their five children,
all of whom he has bonded with. The mother has never had
custody of Nando and has never lived with him.
After Nando was born, the mother left the hospital against
medical advice, in part because she wanted to continue using
substances. Between June 2022 and January 2023, the mother's
contacts with the department were sparse. The judge found that
the mother was homeless during this interval. She did not see
Nando at all and did not request any visits with him.
In January 2023, the mother was arrested for threatening
staff members at a detoxification facility. The mother was
3 The mother's parental rights to Nando's half-brother had already been terminated in a prior proceeding.
2 incarcerated for one month on preexisting default warrants. She
subsequently entered a prerelease program and moved into a
residential drug treatment facility as a condition of her
probation. At the time of trial, which took place over six
nonconsecutive days between March 2023 and August 2023, the
mother continued to reside in the drug treatment facility.
Upon arriving at the drug treatment facility in March 2023,
the mother's compliance with the department's family action plan
improved. Notably, the judge found that at the time of trial,
the mother had been sober for five months. Between March 2023
and July 2023, the mother had at least six supervised visits
with Nando. During the visits, she behaved appropriately and
never appeared to be under the influence.
The mother's progress on the family action plan was not
uniformly positive, however. To address the mother's extensive
history of mental health challenges, the family action plan
required the mother to undergo treatment with an individual
therapist. Although the mother testified that she had engaged a
therapist, she failed to sign releases related to her mental
health treatment. The judge did not credit this testimony and
found that the mother had failed to participate in individual
therapy.
The mother also failed to meaningfully address her long-
standing housing insecurity. The drug treatment facility did
3 not allow children to live there, and the mother was required to
remain at the facility as a condition of her probation. The
judge found it was impossible for the mother to take custody of
Nando and that she had no concrete plans for her housing after
leaving the facility. The mother has never lived on her own and
testified that she does not know how to run a household.
At the trial on the termination of her parental rights, the
mother conceded that she was unable to take custody of Nando but
argued that she would become fit by continuing to engage in
services. In her findings and conclusions of law, the judge
ruled that the mother's unfitness was not temporary and that it
was in the best interests of Nando to terminate the mother's
parental rights.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child, the judge must find, by
clear and convincing evidence, that the parent is unfit and that
the child's 'best interests will be served by terminating the
legal relation between parent and child.'" Adoption of Luc, 484
Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53,
59 (2011). The judge "must also find that the current parental
unfitness is not a temporary condition." Adoption of Virgil, 93
Mass. App. Ct. 298, 301 (2018). The judge is afforded
discretion in assessing the evidence and determining the best
interests of the child. See Adoption of Jacob, 99 Mass. App.
4 Ct. 258, 266 (2021). An abuse of discretion occurs when the
judge makes "a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives" (quotation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
a. Unfitness. At trial, the mother conceded that she
could not take custody of Nando because the drug treatment
facility does not allow children to live there. The issue is
whether the judge abused her discretion by finding that the
mother's unfitness was not temporary. We cannot conclude that
the judge abused her discretion. The mother's struggles with
substance misuse, mental illness, and homelessness were long-
standing. See Adoption of Ilona, 459 Mass. at 62 (judge did not
abuse her discretion in terminating parental rights where
parent's shortcomings were long-standing and improvement was not
significant). Although the judge found that the mother had
achieved five months of sobriety at the time of trial, she did
not make the same progress toward addressing her housing and
mental health concerns. See Adoption of Elena, 446 Mass. 24, 30
n.4 (2006) ("sobriety and efforts at rehabilitation at the time
of trial do not require a finding of current fitness"). The
judge found that the mother was not forthright about her failure
to undergo treatment with a therapist and had no concrete plans
for housing.
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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-70
ADOPTION OF NANDO. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a judge of the Juvenile Court issued a
decree finding the mother unfit to parent her son, Nando,
terminated the mother's parental rights, committed Nando to the
permanent custody of the Department of Children and Families
(department), and approved the department's plan for adoption. 2
The mother appeals, arguing that the judge abused her discretion
by prematurely terminating the mother's parental rights while
she was engaging in services and making progress toward parental
fitness. We affirm.
1 A pseudonym.
2The judge also terminated the parental rights of the putative father. He did not participate in the trial and does not join in this appeal. Background. Nando was born substance exposed in June 2022.
He weighed roughly four pounds at birth and tested positive for
fentanyl, cocaine, and methadone. He spent three weeks in the
neonatal intensive care unit to recover from neonatal abstinence
syndrome. The department immediately filed a care and
protection petition pursuant to G. L. c. 119, § 24. The
department took emergency custody of Nando in the hospital and
subsequently moved him into a kinship placement, where he
remained at the time of trial on the termination of parental
rights. In his kinship placement, Nando lives with his older
half-brother, 3 his preadoptive parents, and their five children,
all of whom he has bonded with. The mother has never had
custody of Nando and has never lived with him.
After Nando was born, the mother left the hospital against
medical advice, in part because she wanted to continue using
substances. Between June 2022 and January 2023, the mother's
contacts with the department were sparse. The judge found that
the mother was homeless during this interval. She did not see
Nando at all and did not request any visits with him.
In January 2023, the mother was arrested for threatening
staff members at a detoxification facility. The mother was
3 The mother's parental rights to Nando's half-brother had already been terminated in a prior proceeding.
2 incarcerated for one month on preexisting default warrants. She
subsequently entered a prerelease program and moved into a
residential drug treatment facility as a condition of her
probation. At the time of trial, which took place over six
nonconsecutive days between March 2023 and August 2023, the
mother continued to reside in the drug treatment facility.
Upon arriving at the drug treatment facility in March 2023,
the mother's compliance with the department's family action plan
improved. Notably, the judge found that at the time of trial,
the mother had been sober for five months. Between March 2023
and July 2023, the mother had at least six supervised visits
with Nando. During the visits, she behaved appropriately and
never appeared to be under the influence.
The mother's progress on the family action plan was not
uniformly positive, however. To address the mother's extensive
history of mental health challenges, the family action plan
required the mother to undergo treatment with an individual
therapist. Although the mother testified that she had engaged a
therapist, she failed to sign releases related to her mental
health treatment. The judge did not credit this testimony and
found that the mother had failed to participate in individual
therapy.
The mother also failed to meaningfully address her long-
standing housing insecurity. The drug treatment facility did
3 not allow children to live there, and the mother was required to
remain at the facility as a condition of her probation. The
judge found it was impossible for the mother to take custody of
Nando and that she had no concrete plans for her housing after
leaving the facility. The mother has never lived on her own and
testified that she does not know how to run a household.
At the trial on the termination of her parental rights, the
mother conceded that she was unable to take custody of Nando but
argued that she would become fit by continuing to engage in
services. In her findings and conclusions of law, the judge
ruled that the mother's unfitness was not temporary and that it
was in the best interests of Nando to terminate the mother's
parental rights.
Discussion. 1. Termination of parental rights. "To
terminate parental rights to a child, the judge must find, by
clear and convincing evidence, that the parent is unfit and that
the child's 'best interests will be served by terminating the
legal relation between parent and child.'" Adoption of Luc, 484
Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53,
59 (2011). The judge "must also find that the current parental
unfitness is not a temporary condition." Adoption of Virgil, 93
Mass. App. Ct. 298, 301 (2018). The judge is afforded
discretion in assessing the evidence and determining the best
interests of the child. See Adoption of Jacob, 99 Mass. App.
4 Ct. 258, 266 (2021). An abuse of discretion occurs when the
judge makes "a clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives" (quotation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
a. Unfitness. At trial, the mother conceded that she
could not take custody of Nando because the drug treatment
facility does not allow children to live there. The issue is
whether the judge abused her discretion by finding that the
mother's unfitness was not temporary. We cannot conclude that
the judge abused her discretion. The mother's struggles with
substance misuse, mental illness, and homelessness were long-
standing. See Adoption of Ilona, 459 Mass. at 62 (judge did not
abuse her discretion in terminating parental rights where
parent's shortcomings were long-standing and improvement was not
significant). Although the judge found that the mother had
achieved five months of sobriety at the time of trial, she did
not make the same progress toward addressing her housing and
mental health concerns. See Adoption of Elena, 446 Mass. 24, 30
n.4 (2006) ("sobriety and efforts at rehabilitation at the time
of trial do not require a finding of current fitness"). The
judge found that the mother was not forthright about her failure
to undergo treatment with a therapist and had no concrete plans
for housing.
5 The mother argues that the judge should have given her six
more months to continue her recovery with the aim of becoming
fit to parent Nando. The judge was not required to wait in
abeyance for an uncertain recovery. See Adoption of Elena, 446
Mass. at 34 n.6 ("A judge may say 'enough' when faced with an
indeterminate period of time required for parental recovery, if
recovery is a viable possibility"). Between June 2022 and
January 2023, the mother had virtually no contact with the
department and never visited Nando. See id. at 32 (mother made
no effort to contact children during the four months after they
were removed from her care and did not engage in services during
that time). Only after the mother's arrest and detoxification
did she begin to engage with the family action plan. As the
judge observed, the mother's progress was "too little, too
late."
Even after this point, the mother's compliance with the
family action plan was inconsistent at best. See Adoption of
Rhona, 63 Mass. App. Ct. 117, 126 (2005) (parent's failure to
cooperate with department's service plan was relevant to
determination of unfitness). The judge found that the mother
failed to consult with an individual therapist to address her
mental health conditions. The mother's lack of a concrete
housing plan was also probative of permanent unfitness, given
that she had never lived on her own before. The mother's
6 progress in maintaining her sobriety is commendable. We cannot
conclude, however, that the judge abused her discretion in
terminating parental rights where the mother's shortcomings were
persistent and her attention to the family action plan was both
belated and incomplete. See Adoption of Flavia, 104 Mass. App.
Ct. 40, 50 (2024) (even where there are recent improvements,
court may view a "constellation of factors" combined with "lack
of transparency" that "creates a likelihood that old patterns
of . . . unhealthy behavior may recur" [citation omitted]).
b. Best interests of the child. The judge did not abuse
her discretion by concluding that the best interests of Nando
would be served by terminating the mother's parental rights.
See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017) (judge
must determine whether termination of parental rights is in
child's best interests). The judge found that Nando's
preadoptive parents have cared for his special needs, which
include verbal and developmental delays. In comparison, the
judge concluded that the mother lacked an interest in Nando's
health, did not understand his needs, and had not attended his
medical appointments or communicated with his doctors. See
Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986) (child's
special needs relevant in determining parental fitness as to
that child). Further, Nando has formed strong bonds with his
kinship preadoptive parents, whom he refers to as "mama" and
7 "dada." The judge did not abuse her discretion by concluding
that removing Nando from his kinship placement would cause
significant psychological harm and that termination of the
mother's parental rights was in the child's best interests. 4
Decree affirmed.
By the Court (Blake, C.J., Meade & Grant, JJ. 5),
Clerk
Entered: March 26, 2025.
4 In her brief, the mother viewed with disfavor the judge's use of the term "substance abuse." This issue was not raised before the Juvenile Court and is waived. See Adoption of Willow, 433 Mass. 636, 651 (2001). See also Standards on Substance Use Disorder & Mental Health Conditions, adopted by the Supreme Judicial Court on October 10, 2023, after the decree issued in this case. Regardless, the mother conceded at oral argument that this was not an appellate argument.
5 The panelists are listed in order of seniority.