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-141
ADOPTION OF PATTY. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a judge of the
Juvenile Court terminating her parental rights to her child.
She asserts that (1) there was insufficient evidence to support
the finding of unfitness, and (2) the Department of Children and
Families (department) improperly terminated visits between her
and the child, resulting in prejudice to her at trial. 2 As
discussed in more detail below, after a trial the judge found
that the mother suffers from alcohol misuse and severe anger
management issues. The child has refused in-person visits with
the mother since 2018. We affirm the judge's decree.
1A pseudonym. We use the same pseudonym as adopted by the Supreme Judicial Court in an earlier appeal in this case, Adoption of Patty, 489 Mass. 630, 648 (2022).
2The father's parental rights were also terminated, but he is not a party to this appeal. Background. The child was born in 2010. The department
removed the child from the mother in November 2014 following an
incident in the home where the mother was alleged to have
punched and bitten her boyfriend while intoxicated, and while
the child, then four, was at home. The department filed the
underlying care and protection petition and was granted
temporary custody of the child. In July 2015, the mother
stipulated to her unfitness, and the child was placed in the
permanent custody of the department, though the goal was to work
toward reunification. In July 2016, the mother filed a motion
for review and redetermination pursuant to G. L. c. 119, § 26
(c).
There have been three trials in this matter. The first
took place in February 2020. The mother's parental rights were
terminated but the termination decrees were vacated, and the
case was returned to the trial list. The second trial took
place in September 2020. The judge found mother unfit and
terminated her parental rights. The mother appealed, and, in
May 2022, the Supreme Judicial Court vacated the termination
decree and remanded the matter to the juvenile court. See
Adoption of Patty, 489 Mass. 630, 648 (2022) (manner in which
virtual trial was conducted violated mother's due process
rights).
2 After the termination decree from the second trial was
vacated, in June 2022, the department reopened the mother's
case. 3 In November 2022 the mother filed a pro se motion for
therapeutic visitation, stating that she "anticipate[s] therapy
and [one hour] a week visitation." 4 The child was then twelve
years old. The previous guardian ad litem (GAL) was reappointed
to evaluate the issue of visitation. No further action was
taken until February 2023, when a hearing on the motion
commenced. 5 The motion hearing was eventually consolidated with
the third trial, which began in March 2023. At the conclusion
of the third trial, the judge found the mother unfit and
terminated her parental rights. The following facts are derived
from the detailed findings the judge made in support of that
determination.
3The mother met with the department once that month, but was then incarcerated from July 2022 through October 2022. Despite attempts to locate her, the department was unaware until September 2022 that the mother was incarcerated.
4At the hearing, when the judge asked what the mother was asking him to do, the mother's counsel stated that she was "asking [the judge] to order the [d]epartment . . .to get this child into therapy" and "locate a family therapist to help determine how best to clinically reengage her in therapy with [the mother]."
5The judge noted that the delay between the filing of the motion in November 2022 and the hearing in February 2023 was due to "agreements" amongst the parties, in an attempt, according to her attorney, to resolve the matter short of a hearing.
3 1. Alcohol abuse and anger issues. The mother has a
significant and longstanding history of alcohol misuse. The
department has been involved with the family since 2011, when
the child was one year old, due to concerns about the mother's
alcohol misuse while caring for the child. The mother
periodically engaged in substance abuse treatment, and, at the
time of trial, resided in a sober home. Her periods of sobriety
have been interrupted by relapses in 2014, 2016 (while living at
a sober home), 2017, and 2020.
In addition to alcohol misuse, the mother struggles with
mental health issues including anxiety, depression, and
explosive disorder. She completed several anger management
programs and engaged in therapy. Her therapist testified that
the mother gets dysregulated easily and can become angry and
verbally and physically aggressive when she does not get her
desired outcome. This volatility was apparent in the mother's
interactions with the department, with her own mother, and in
her demeanor at trial. 6 Although the mother denied that she is
6 In November and December 2019, the mother left three voicemail messages for the social worker, calling her a "cunt" in each one and telling the social worker to "watch her back" and that the mother knew where social worker lived. In December 2022, during a meeting with the social worker, the mother stated, "I don't know how this will end, maybe I will throw a bomb, or kidnap [the child]."
4 an angry person, she acknowledged that she struggles to control
her emotions.
The mother's alcohol abuse and volatility have contributed
to her lengthy criminal history. Between 2015 and 2020, the
mother was convicted of a number of charges including assault
and battery (multiple counts), threatening to commit a crime,
violation of a restraining order, and operating under the
influence of liquor, second offense. She was incarcerated for
six months in 2018 on the conviction for violating a restraining
order, and received either probation, a suspended sentence, or a
split sentence for the other convictions. She was incarcerated
at least twice during the pendency of the petition as a result
of violating the conditions of her probation.
Between 1998 and 2020, the mother was the defendant on four
harassment prevention orders and fourteen abuse prevention
orders. The 2020 harassment prevention orders stemmed from the
mother's attempts to locate the child in foster care. In 2019,
she googled the child's name and found a record associated with
a certain church. The mother went to the Christmas Eve service
at that church and thought she saw the child getting into a car.
The mother then followed the car to a nearby home, knocked on
the door, and asked the teenager who answered if Patty was
there. When the teenager told the mother that the child had
just left, the mother wrote a note stating, "[Patty] is not
5 yours," and left the note under the door mat. A resident of the
home obtained a harassment prevention order against the mother.
2. Visitation history. The mother has not had visitation
with the child since October 2018. Prior to that, from 2014,
when the child was removed, to October 2018, the mother and the
child had fairly regular visitation. These visits took place at
the department's area office, in the community, or at jail if
the mother was incarcerated. By all accounts, the visits
generally went well.
However, during a visit in February 2018 while the mother
was incarcerated, the mother asked the child, then seven years
old, whether she had ever sent the child to school dirty,
whether she was ever mean to the child, and whether the child
had ever seen her smoking cigarettes. The mother was emotional
throughout the visit, and, following this visit, the mother did
not want the child to visit her at jail. Visits resumed upon
the mother's release from jail and occurred monthly between
April and July 2018, at which the mother behaved appropriately,
but by the end of August 2018, the mother was again
incarcerated.
In October 2018, the mother had moved from jail to a
transition program. During a visit at that program, the mother
asked the child (who was then eight years old, and had been
6 moved to a preadoptive home two months earlier) whether the
child liked her foster mother more than the mother and stated
that she needed to know about where the child was living. Later
in the visit, the child drew a picture and offered it to the
mother. The mother refused to take the picture, telling the
child to take it home to her "real mother." The social worker
attempted to redirect the mother, without success, and therefore
decided to end the visit as Patty was "hysterical." As the
child was making her way to the building exit with the social
worker, the mother picked the child up and brought her back to
the visitation room. The child asked to be put down but the
mother did not do so until she was prompted by the social
worker. The child later told the social worker that she was
afraid to see her mother because she was afraid her mother would
pick her up and squeeze her again and that it hurt.
Following the mother's release from incarceration at the
end of December 2018, the department scheduled three visits the
following month, but the child refused to go. 7 On January 24,
2019, the mother had a supervised phone call with the child.
The call ended with the child crying hysterically in response to
a comment made by the mother. In February 2019, the mother
7 The mother had been sent back to jail following the visit after an altercation with a correction officer at the transition program.
7 filed a motion seeking to compel visitation. The court
appointed a GAL to evaluate the issue of visitation and the
child's refusal to attend visits, but the mother later withdrew
her motion to compel visitation.
Between March and August 2019, the mother was not
responsive to the department's attempts to contact her. When
the mother contacted the department in August 2019, she
requested visits with the child. The social worker told the
mother that the child did not want to visit with the mother.
The mother responded that she did not care what the child
thought.
From the last in-person visit in October 2018, through the
end of the second trial in 2020, the department continued to
schedule visits between the child and the mother and worked to
make the child more comfortable with visits. The social worker
would speak to the child the day before the scheduled visit to
see if the child wanted to attend, and would speak with her
again on the day of the visit to see if the child had changed
her mind. The child never changed her mind and continued to
refuse visits and calls with the mother. The child has
expressed fear that the mother would try to take her from a
visit or try to kidnap her. The department asked the child's
therapists to address her relationship with the mother and her
fears about having contact with the mother, and offered to have
8 a police officer present at the visits, but the child continued
to refuse visits.
Discussion. On appeal, the mother contends that (1) the
evidence was insufficient to support the judge's determination
that she was unfit, and (2) the department improperly terminated
her visitation with the child, which prejudiced her at trial.
We address each contention in turn.
1. Unfitness. A judge's decision to terminate parental
rights must be supported by "clear and convincing evidence,
based on subsidiary findings proved by at least a fair
preponderance of the evidence, that the parent is unfit to care
for the child and that termination is in the child's best
interests." Adoption of Arianne, 104 Mass. App. Ct. 716, 720
(2024), quoting Adoption of Xarissa, 99 Mass. App. Ct. 610, 615
(2021). "We give substantial deference to the judge's decision
to terminate parental rights 'and reverse only where the
findings of fact are clearly erroneous or where there is clear
error of law or abuse of discretion.'" Adoption of Arianne,
supra, quoting Adoption of Valentina, 97 Mass. App. Ct. 130, 137
(2020).
The mother claims error in the judge's finding of
unfitness, asserting that the judge relied on stale evidence
where, prior to trial, the mother had over two years of sobriety
and was actively addressing her anger issues. The mother also
9 argues that no nexus was shown between her anger issues and her
ability to parent the child.
We are not persuaded. The record amply supports the
judge's findings, and we discern no abuse of discretion or error
of law in the judge's ultimate conclusion that the mother was
unfit, and that termination of her parental rights was in the
child's best interest. Although at the time of trial the mother
had been sober for over two years, she had a significant history
of alcohol abuse. She had also stopped taking vivitrol, a
medication which blocks the effects of opioids and alcohol,
approximately five months before trial. The judge properly
considered the mother's current sobriety in light of her long-
standing history of alcohol abuse, her multiple relapses after
long periods of sobriety, as well as her cessation of
medication-assisted treatment.
Moreover, the judge acknowledged the mother's engagement in
anger management and therapy but found that it was outweighed by
the mother's lack of insight into how her behavior harmed the
child and led to the child's removal, as well as the judge's own
observation of the mother during trial. 8 Among other things, the
judge found that the mother (1) was unable to control her
8 The mother had also stopped taking her prescribed medications, including medication for anxiety and a mood stabilizer, out of spite towards the department.
10 behavior throughout the trial; (2) believed that the petition
was "bogus" (as written in her November 2022 motion); and (3)
showed complete disregard for the child's stated desire not to
have any contact with the mother. The judge expressed "grave
concerns" about the mother's efforts to locate the child while
in foster care (which included following a family home from
church on Christmas Eve and returning to that home on multiple
occasions thereafter), noting the mother's inability to
recognize the severity of her actions and their impact on the
child. The judge further found that the mother had demonstrated
an inability to (1) maintain stable and continuous housing; (2)
maintain consistent contact with the department; and (3)
meaningfully benefit from, or improve her parenting skills by
participating in anger management and therapy. There was no
error.
The mother also challenges a number of the judge's
subsidiary findings and conclusions of law as clearly erroneous.
We are, again, unpersuaded, as there is ample record support for
the challenged findings and conclusions, the majority of which
are based on testimony presented during the trial. 9 We see
9 For example, the judge found that the mother threatened to kidnap the child. The judge was not required to credit the mother's contention that she was merely venting when she made the statement. The mother testified that she had said "stuff like that out of anger in the past." However, there was evidence presented that the mother went to great lengths to locate the
11 nothing in the record that warrants disturbing the judge's
weighing of the evidence or her credibility determinations. 10
See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).
2. Visitation. The mother contends that the department
improperly "terminated" her visits with the child in violation
of its own regulations, and that she was prejudiced at trial by
the lack of visitation for over four years. Again, we are not
persuaded.
There is no question that if the department seeks to
"terminate" visitation, the matter must be brought before a
judge and the judge must make a specific finding that parental
visitation will harm the child or the public welfare before
visits may be terminated. See 110 Code Mass. Regs. § 7.128
(2011). Here, however, it cannot be said that the department's
actions equated to terminating, or seeking to terminate, visits.
To the contrary, the department's actions contradicted
"termination"; the department continued to schedule visits and
to check in with the child, it encouraged the child's therapists
child's foster home and admitted, proudly, to knowing where the child currently resides and having seen her several times in a particular town.
10We acknowledge the accuracy of mother's challenge to finding 168, regarding the date the child's engagement in therapy ended. However, any error in that finding is harmless as the mother's reasoning for filing her motion for therapeutic visitation was not relevant to the determination of her unfitness.
12 to work with the child on her willingness to visit her mother,
and attempted to address the child's safety concerns by offering
to have a police officer present at the visits. Indeed, at the
hearing on the mother's motion, counsel for the department
confirmed that if the child requested a visit, the department
would make it happen.
The department's actions in this case contrast sharply with
the cases which have addressed actual "termination" of
visitation. In those cases, it was abundantly clear that the
department did in fact terminate visits. See Adoption of
Franklin, 99 Mass. App. Ct. 787, 796 n.14 (2021) (department
conceded that unilateral decision not to schedule any more
visits was nothing other than termination of visits); Adoption
of Linus, 73 Mass. App. Ct. 815, 817 & n.4, 822 (2009)
(department suspended visitation, primarily due to parents
bringing unsuitable snacks); Adoption of Rhona, 57 Mass. App.
Ct. 479, 489-490 (2003) (visits terminated after department
supervisor declared one visit "a circus," and told mother she
would have to go to court to reinstate visits).
Moreover, even if the department's actions could somehow be
equated to termination, reversal would not be necessary as the
mother has not demonstrated that she was prejudiced by the lack
of visits. It is clear from the record that the absence of
visitation played a minimal role in the termination of the
13 mother's parental rights. See Adoption of Franklin, 99 Mass.
App. Ct. at 799 (fact that father had seen children once in over
two years played limited role in judge's finding of unfitness or
decision to terminate father's parental rights). Rather, the
judge emphasized that the mother's "mental health issues and
uncontrolled anger and emotions," the severity of which was
demonstrated by her behavior throughout the pendency of the
14 petition and in the courtroom, "impair her ability to parent her
child and to look out for the best interest of her child."
Decree affirmed.
By the Court (Englander, Hershfang & Brennan, JJ. 11),
Clerk
Entered: March 12, 2025.
11 The panelists are listed in order of seniority.