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
23-P-824
ADOPTION OF PAIGE (and a companion case). 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge, upon petition of the Department of
Children and Families (department), found two children in need
of care and protection, granted permanent guardianship of one
child to a kinship guardian, granted custody of the other child
to the department, and terminated the parental rights of the
mother pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.
On appeal, the mother claims the evidence (1) failed to support,
by the requisite standard, several findings of fact and the
corresponding nexus to unfitness and (2) failed to demonstrate
that termination of parental rights served the best interests of
her children. She also claims the judge abused his discretion
by denying posttermination contact without adequately addressing
the children's bond with her. We affirm.
1 Adoption of Rose. The children's names are pseudonyms. Background. At the time of the trial, the mother had two
daughters, ages three and one. The children separately came to
the attention of the department through a series of reports
filed under G. L. c. 119, § 51A (51A report) and substantiated
(with one exception noted below) under G. L. c. 119, § 51B.
Immediately following the birth of the first child in April
2019, a 51A report alleged that the child had been born
substance exposed. Following an investigation, this report was
not substantiated. Months later, on August 5, 2019, a second
5lA report alleged that the mother brought the child to the
emergency room for at least the fifth time, but the child
appeared healthy. The department substantiated the report and
recommended that the mother obtain mental health treatment. On
May 16, 2020, a third 51A report alleged that once again the
mother brought the child to the emergency room after having
taken the child to her pediatrician three times that week
despite the child presenting as healthy. During the department
investigation at the hospital, the mother claimed her roommate
tainted the baby's formula, and while speaking with department
workers, the mother became extremely erratic, started screaming
loudly, and had to be restrained by three security officers.
The mother was hospitalized, and the department took emergency
custody of the child. On May 22, 2020, the department filed a
care and protection petition regarding the child, and on May 29,
2 2020, the child was placed in the third-party custody of a
relative. The child has resided with that kinship family since
that date, and the relative sought guardianship of the child.
On the day of the second child's birth in October 2021, a
51A report alleged that the mother tested positive for
amphetamines and Suboxone. During the ensuing investigation,
the mother apologized for failing to meet with department
workers and failing to return their phone calls. She explained
being afraid that the department would take away her second
child as well. The mother admitted smoking marijuana during her
pregnancy, selling prescribed medications to others, maintaining
unsafe and unstable housing, and failing to obtain mental health
treatment. The department submitted a care and protection
petition to the Juvenile Court on October 4, 2021 with respect
to the second child. On October 8, 2021, the second child was
placed with a kinship foster family. After a move to a
nonkinship home in December 2021, the child has resided with
that preadoptive foster family.
Following an eight-day trial, including nine witnesses and
nineteen exhibits, a Juvenile Court judge primarily found that
the mother failed to acknowledge and address mental health
issues, remained absent during most of the trial, acknowledged
her housing was unsafe and failed to address housing
instability, made unfounded claims about the health of her
3 children, failed to take medication as prescribed and sold
prescribed medication, declined department referrals, and
exhibited a pattern of late or missed child visits. The judge
entered a decree terminating the mother's parental rights as to
both children.
Discussion. "To terminate parental rights to a child and
to dispense with 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). "In determining whether the best interests of
the children will be served by issuing a decree dispensing with
the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "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). Based upon these standards, we discern no error or
abuse of discretion.
4 1. Unfitness. The mother first takes issue with the
judge's characterization of a "possible" substance use disorder
and claims that a mere possibility is not sufficient for a
finding of fact and lacks any nexus to unfitness. Given the
context of the judge's finding, there was no error. In his
written decision, the judge referenced substance use or a
possible use disorder when describing the initial 51A reports on
both newborns, the background that led to the mother's current
Suboxone prescription, the mother's failure to take her
medication as prescribed, the mother's medical history, the
mother's noncompliance with action plans that included substance
use treatment, the mother's selling her prescription medication
to others, and the mother's changed behavior during her trial
testimony after discontinuing her medication. We also note that
in her testimony, the mother repeatedly acknowledged that she
was recovering from a long-term addiction to pills, sold her
prescription medication to others, and used another person's
prescription medication. Considering all this evidence, the
judge did not equate substance use or a possible disorder with
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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
23-P-824
ADOPTION OF PAIGE (and a companion case). 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge, upon petition of the Department of
Children and Families (department), found two children in need
of care and protection, granted permanent guardianship of one
child to a kinship guardian, granted custody of the other child
to the department, and terminated the parental rights of the
mother pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.
On appeal, the mother claims the evidence (1) failed to support,
by the requisite standard, several findings of fact and the
corresponding nexus to unfitness and (2) failed to demonstrate
that termination of parental rights served the best interests of
her children. She also claims the judge abused his discretion
by denying posttermination contact without adequately addressing
the children's bond with her. We affirm.
1 Adoption of Rose. The children's names are pseudonyms. Background. At the time of the trial, the mother had two
daughters, ages three and one. The children separately came to
the attention of the department through a series of reports
filed under G. L. c. 119, § 51A (51A report) and substantiated
(with one exception noted below) under G. L. c. 119, § 51B.
Immediately following the birth of the first child in April
2019, a 51A report alleged that the child had been born
substance exposed. Following an investigation, this report was
not substantiated. Months later, on August 5, 2019, a second
5lA report alleged that the mother brought the child to the
emergency room for at least the fifth time, but the child
appeared healthy. The department substantiated the report and
recommended that the mother obtain mental health treatment. On
May 16, 2020, a third 51A report alleged that once again the
mother brought the child to the emergency room after having
taken the child to her pediatrician three times that week
despite the child presenting as healthy. During the department
investigation at the hospital, the mother claimed her roommate
tainted the baby's formula, and while speaking with department
workers, the mother became extremely erratic, started screaming
loudly, and had to be restrained by three security officers.
The mother was hospitalized, and the department took emergency
custody of the child. On May 22, 2020, the department filed a
care and protection petition regarding the child, and on May 29,
2 2020, the child was placed in the third-party custody of a
relative. The child has resided with that kinship family since
that date, and the relative sought guardianship of the child.
On the day of the second child's birth in October 2021, a
51A report alleged that the mother tested positive for
amphetamines and Suboxone. During the ensuing investigation,
the mother apologized for failing to meet with department
workers and failing to return their phone calls. She explained
being afraid that the department would take away her second
child as well. The mother admitted smoking marijuana during her
pregnancy, selling prescribed medications to others, maintaining
unsafe and unstable housing, and failing to obtain mental health
treatment. The department submitted a care and protection
petition to the Juvenile Court on October 4, 2021 with respect
to the second child. On October 8, 2021, the second child was
placed with a kinship foster family. After a move to a
nonkinship home in December 2021, the child has resided with
that preadoptive foster family.
Following an eight-day trial, including nine witnesses and
nineteen exhibits, a Juvenile Court judge primarily found that
the mother failed to acknowledge and address mental health
issues, remained absent during most of the trial, acknowledged
her housing was unsafe and failed to address housing
instability, made unfounded claims about the health of her
3 children, failed to take medication as prescribed and sold
prescribed medication, declined department referrals, and
exhibited a pattern of late or missed child visits. The judge
entered a decree terminating the mother's parental rights as to
both children.
Discussion. "To terminate parental rights to a child and
to dispense with 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). "In determining whether the best interests of
the children will be served by issuing a decree dispensing with
the need for consent, a 'court shall consider the ability,
capacity, fitness and readiness of the child's parents.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.
c. 210, § 3 (c). "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). Based upon these standards, we discern no error or
abuse of discretion.
4 1. Unfitness. The mother first takes issue with the
judge's characterization of a "possible" substance use disorder
and claims that a mere possibility is not sufficient for a
finding of fact and lacks any nexus to unfitness. Given the
context of the judge's finding, there was no error. In his
written decision, the judge referenced substance use or a
possible use disorder when describing the initial 51A reports on
both newborns, the background that led to the mother's current
Suboxone prescription, the mother's failure to take her
medication as prescribed, the mother's medical history, the
mother's noncompliance with action plans that included substance
use treatment, the mother's selling her prescription medication
to others, and the mother's changed behavior during her trial
testimony after discontinuing her medication. We also note that
in her testimony, the mother repeatedly acknowledged that she
was recovering from a long-term addiction to pills, sold her
prescription medication to others, and used another person's
prescription medication. Considering all this evidence, the
judge did not equate substance use or a possible disorder with
unfitness and properly considered it as "a contributing factor"
to other issues. Adoption of Xarissa, 99 Mass. App. Ct. 610,
618 (2021).
The mother next contends that the evidence did not show a
nexus between the mother's mental health and her parenting
5 ability. We disagree. The evidence, including the mother's own
testimony, demonstrated that she suffered from significant
mental health challenges. For example, she testified that she
had been in therapy since the age of eight or nine, she took
prescribed medication for "psychosis depression" for one and
one-half years after the birth of her first child, she was
hospitalized in a mental health facility, and she regularly sees
a psychiatrist every two weeks, a behavioral doctor every two
weeks, and a therapist every other week. Although denying any
mental health condition beyond "circumstantial anxiety," the
mother repeatedly sought medical care for a healthy child,
brought her child to the hospital for medically unnecessary
care, became extremely erratic, started screaming loudly, and
had to be restrained by three security officers. Thus, the
mother's mental health directly impacted the care of a child,
less than a year old, and bore directly on her "capacity to
assume parental responsibility." Adoption of Frederick, 405
Mass. 1, 9 (1989).
We are not suggesting, nor did the trial judge suggest,
that the mother intentionally harmed or attempted to harm her
children. To the contrary, the record shows a mother who
clearly loves her children, but was beset by significant
difficulties that she never fully acknowledged or addressed
despite recommendations and assistance from the department to
6 help her do so. "[T]he State's interest in protecting children
from suffering harm at the hands of their parents may properly
be preventive as well as remedial." Custody of a Minor, 378
Mass. 712, 714 (1979).
As a final challenge to the unfitness determination, the
mother claims that the judge's concerns about her housing and
financial situation and the mother's failure to attend the
entirety of the trial are insufficient to sustain the
department's burden. As the judge ruled, he "considered the
evidence in the aggregate, and has not given conclusive weight
to any single component standing alone." Also, the record fully
supported the judge's housing concern. The mother continued to
live with the man she believed tainted her child's formula and
had no concrete plan in place to live elsewhere apart from a
general aspiration to remain on waiting lists until she could
move into a nicer place. The mother even testified that she had
concerns about her children being around this man. Despite
these concerns, the mother rejected other options provided by
the department to leave the apartment.
We also discern no abuse of discretion based on the judge's
consideration of the mother's absence from most of the trial.
See Adoption of Helga, 97 Mass. App. Ct. 521, 526 (2020) ("Even
though the mother testified at trial, the judge could reasonably
conclude that her failure to appear for the last two days,
7 without an adequate explanation, was evidence that she was not
making efforts to be reunited with her children"); Adoption of
Talik, 92 Mass. App. Ct. 367, 372 (2017) ("a trial judge has
discretion to determine whether to draw an adverse inference
from a parent's absence"). Although the mother claimed that her
absence stemmed from emotional strain rather than a lack of
desire to "fight" for her children, the judge was not obligated
to credit this testimony.
2. Best interests. The mother next contends that the
judge’s findings do not demonstrate that termination of the
mother’s parental rights is in the best interests of the
children, particularly when one of the children has been placed
in a guardianship. The judge concluded that the children's best
interests will be served by a termination decree because the
mother "has failed to engage in services aimed to address her
parenting deficiencies including possible substance use, mental
health struggles, and housing instability." He further found
that, because of the "severity of these issues and the length of
time" over which the mother has failed to address them, the
mother "is not able, fit, or ready to assume parental
responsibility for the subject children."
As more fully set forth in the previous discussion on
unfitness, the judge's conclusions are supported by the
evidence, and we discern no error of law or abuse of discretion
8 regarding the best interests of the children. See Adoption of
Ilona, 459 Mass. at 59. Additionally, the record showed the
mother missed many visits with the children and was often late,
and the mother acknowledged that she was unable to bond with the
second child. By contrast, the first child has a secure
attachment in her current placement, and the second child
appears "comforted" by being around her preadoptive family.
Contrary to the mother's contention, the prospect of a
guardianship does not require a different result.
"[T]ermination is in the best interests of a child when it would
bring some measure of stability to the child's life." Adoption
of Xarina, 93 Mass. App. Ct. 800, 803 (2018). Even if the goal
for one child is guardianship, "termination of the mother's
rights 'significantly eases the [child's] path to a stable
placement.'" Id., quoting Adoption of Willow, 433 Mass. 636,
647 (2001). The judge here concluded that "a grant of permanent
guardianship of [the first child] to [her guardian], serves her
best[] interests," noting that the child has lived with the
guardian since May of 2020 as well as the aforementioned secure
attachment to the guardian. "Stability in the lives of children
is important, particularly in a case that has continued for a
long period of time in the hope that the [parent] could and
would successfully rehabilitate [herself]." Adoption of Nancy,
443 Mass. at 517.
9 3. Posttermination contact. Finally, the mother contends
that the judge abused his discretion by declining to order post-
termination contact between her and the children. The judge
determined that an order of visitation with the mother was not
required "to serve the best interests of the children," but also
that "nothing contained herein shall be deemed to preclude
contact" with the children as the "guardian or adoptive parent
may deem appropriate in the future." The mother argues that the
judge did not adequately consider the bond the children had with
her. We disagree. A "necessary condition" for a court order
for posttermination visitation "is a finding, supported by the
evidence, that continued contact is currently in the best
interests of the child." Adoption of Vito, 431 Mass. 550, 564
(2000). The record here shows that the judge did consider
whether such an order would be in the best interests of the
children, and he concluded that it would not.
Given the judge's meticulous factual findings, thoughtful
conclusions, and the overall purpose of using visitation to help
children negotiate the path from one family to another, we
discern no abuse of discretion.
Decrees affirmed.
By the Court (Neyman, Hershfang & Hodgens, JJ. 2),
2 The panelists are listed in order of seniority.
10 Assistant Clerk
Entered: May 24, 2024.