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-89
ADOPTION OF PEDRO. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree of the Juvenile Court
finding her unfit to parent her child, Pedro, terminating her
parental rights as to him, and approving the adoption plan
proposed by the Department of Children and Families (DCF). The
mother also appeals from the trial judge's order for
posttermination and postadoption visitation, arguing that the
judge abused his discretion in ordering only two visits per
year. 2 We affirm.
Background. We summarize the judge's findings of fact
where we find sufficient support in the record. Pedro was born
1 A pseudonym. 2 The mother was the sole parent identified on Pedro's birth certificate, and no other parent came forward to establish parentage of him. DCF met with the putative father in June 2019, but after his failure to participate in the care and protection proceeding, the judge issued an order striking him from the petition. The judge deemed any father unknown and currently unfit to parent Pedro, and a decree entered terminating the unknown father's parental rights. prematurely in May 2019 and hospitalized through the end of July
2019. At that time, the mother had already had extensive
involvement with DCF since 2000. The mother's first three
children were removed from her custody after multiple G. L.
c. 119, § 51A reports (51A report), were filed alleging abuse
and neglect of the children. The mother's parental rights to
the first three children were terminated, and they have since
been adopted. Subsequently, Pedro was born.
DCF opened a new case in May 2019 after a 51A report was
filed alleging neglect of Pedro, based on the mother testing
positive for marijuana two days before Pedro's birth. In August
2019, Pedro was discharged from the hospital into the mother's
custody, and they moved into a family shelter in Brookline. On
August 8, 2019, a staff member at the shelter filed a 51A report
because the mother appeared to be impaired. The emergency
response workers who responded to the shelter reported that the
mother appeared sober. However, within eight hours, shelter
staff filed two additional 51A reports describing the mother as
"unconscious/passed out," and Pedro as having been found "face
down, on the floor." Pedro was transported to Tufts Medical
Center. A subsequent 51A report was filed after the mother
arrived at the emergency room "appearing intoxicated, smelling
of alcohol, slurring her word[s] and [having] glossy eyes." As
2 a result, DCF removed Pedro on an emergency basis and filed a
care and protection petition. 3
Following removal, DCF placed Pedro in a foster home where
he has resided ever since. 4 DCF recommended an inpatient
substance use disorder treatment program for the mother. 5
Instead, she participated in and completed a three-week
outpatient hospital program. Since completing this program, the
mother has participated in multiple other programs, but has not
3 The G. L. c. 119, § 51B, investigation also revealed that the mother's history of problematic substance use and untreated mental illness "likely contributed to the death of a fourth child, who . . . died soon after birth." The judge found that "[a]t the time of [the fourth child's] birth, [the] [m]other tested positive for marijuana" and that the child "was found to have marijuana in her system as well." The mother challenges this finding by the judge as erroneous. The child's counsel concedes in her brief that the "judge did erroneously find that [the fourth child] 'was found to have marijuana in her system'" but contends that this finding is harmless because "[t]he relevant issue was not how the baby died, but the fact that [the] mother was using an illegal substance." We agree that the error was not harmful and that the judge's determination of parental unfitness is supported by clear and convincing evidence as discussed herein. See Adoption of Luc, 484 Mass. 139, 148 (2020). 4 The mother raises concerns about Pedro's foster parents and
their suitability as potential adoptive parents. She notes, inter alia, that Pedro was subjected to inappropriate contact by a ten year old boy whom the foster parents were also fostering. The matter was reported by the foster parents to DCF, and the ten year old was promptly removed from the home. As found by the DCF judge, the child is thriving in a loving and caring environment with the foster parents. 5 Despite the mother's protestations to the contrary, the record
supports the judge's finding that DCF recommended a long-term inpatient treatment program for the mother "[a]t the early onset of the case."
3 been consistent with her treatment. The mother complied with
mental health and substance use treatment and therapy for short
periods of time but did not sustain long term treatment at an
inpatient program. In June 2020, DCF recommended that the
mother complete a neuropsychological evaluation. The mother
responded that she had previously participated in a
neuropsychological evaluation with one of her other children.
She initially agreed to complete the evaluation but failed to
submit an evaluation report to DCF. 6
On May 26, 2021, DCF updated the mother's action plan,
requiring her to participate in substance use disorder and
mental health treatment, individual therapy with a licensed
therapist, an intensive outpatient program, the SMART recovery
program, and a neuropsychological evaluation. However, the
mother missed therapy appointments in April and May 2021,
stopped attending Alcoholic Anonymous meetings, failed to
6 The mother contends that the judge erroneously relied on her failure to produce a new evaluation as evidence of unfitness, and that it was wrong for DCF to seek adoption of Pedro only days after requesting a neuropsychological exam. We disagree and note that the judge's consideration of the mother's refusal to participate in the neuropsychological evaluation was reasonable. See Adoption of Luc, 484 Mass. at 146-147, quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (mother's "fail[ure] to recognize the need for or to engage consistently in treatment" and failure to provide the department with psychological evaluation was "relevant to the determination of unfitness").
4 complete the SMART recovery program, and did not submit a
current neuropsychological as requested.
The mother has experienced multiple substance use-related
relapses since Pedro's birth. Evidence adduced at trial
supported the judge's determination that the mother was not able
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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-89
ADOPTION OF PEDRO. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree of the Juvenile Court
finding her unfit to parent her child, Pedro, terminating her
parental rights as to him, and approving the adoption plan
proposed by the Department of Children and Families (DCF). The
mother also appeals from the trial judge's order for
posttermination and postadoption visitation, arguing that the
judge abused his discretion in ordering only two visits per
year. 2 We affirm.
Background. We summarize the judge's findings of fact
where we find sufficient support in the record. Pedro was born
1 A pseudonym. 2 The mother was the sole parent identified on Pedro's birth certificate, and no other parent came forward to establish parentage of him. DCF met with the putative father in June 2019, but after his failure to participate in the care and protection proceeding, the judge issued an order striking him from the petition. The judge deemed any father unknown and currently unfit to parent Pedro, and a decree entered terminating the unknown father's parental rights. prematurely in May 2019 and hospitalized through the end of July
2019. At that time, the mother had already had extensive
involvement with DCF since 2000. The mother's first three
children were removed from her custody after multiple G. L.
c. 119, § 51A reports (51A report), were filed alleging abuse
and neglect of the children. The mother's parental rights to
the first three children were terminated, and they have since
been adopted. Subsequently, Pedro was born.
DCF opened a new case in May 2019 after a 51A report was
filed alleging neglect of Pedro, based on the mother testing
positive for marijuana two days before Pedro's birth. In August
2019, Pedro was discharged from the hospital into the mother's
custody, and they moved into a family shelter in Brookline. On
August 8, 2019, a staff member at the shelter filed a 51A report
because the mother appeared to be impaired. The emergency
response workers who responded to the shelter reported that the
mother appeared sober. However, within eight hours, shelter
staff filed two additional 51A reports describing the mother as
"unconscious/passed out," and Pedro as having been found "face
down, on the floor." Pedro was transported to Tufts Medical
Center. A subsequent 51A report was filed after the mother
arrived at the emergency room "appearing intoxicated, smelling
of alcohol, slurring her word[s] and [having] glossy eyes." As
2 a result, DCF removed Pedro on an emergency basis and filed a
care and protection petition. 3
Following removal, DCF placed Pedro in a foster home where
he has resided ever since. 4 DCF recommended an inpatient
substance use disorder treatment program for the mother. 5
Instead, she participated in and completed a three-week
outpatient hospital program. Since completing this program, the
mother has participated in multiple other programs, but has not
3 The G. L. c. 119, § 51B, investigation also revealed that the mother's history of problematic substance use and untreated mental illness "likely contributed to the death of a fourth child, who . . . died soon after birth." The judge found that "[a]t the time of [the fourth child's] birth, [the] [m]other tested positive for marijuana" and that the child "was found to have marijuana in her system as well." The mother challenges this finding by the judge as erroneous. The child's counsel concedes in her brief that the "judge did erroneously find that [the fourth child] 'was found to have marijuana in her system'" but contends that this finding is harmless because "[t]he relevant issue was not how the baby died, but the fact that [the] mother was using an illegal substance." We agree that the error was not harmful and that the judge's determination of parental unfitness is supported by clear and convincing evidence as discussed herein. See Adoption of Luc, 484 Mass. 139, 148 (2020). 4 The mother raises concerns about Pedro's foster parents and
their suitability as potential adoptive parents. She notes, inter alia, that Pedro was subjected to inappropriate contact by a ten year old boy whom the foster parents were also fostering. The matter was reported by the foster parents to DCF, and the ten year old was promptly removed from the home. As found by the DCF judge, the child is thriving in a loving and caring environment with the foster parents. 5 Despite the mother's protestations to the contrary, the record
supports the judge's finding that DCF recommended a long-term inpatient treatment program for the mother "[a]t the early onset of the case."
3 been consistent with her treatment. The mother complied with
mental health and substance use treatment and therapy for short
periods of time but did not sustain long term treatment at an
inpatient program. In June 2020, DCF recommended that the
mother complete a neuropsychological evaluation. The mother
responded that she had previously participated in a
neuropsychological evaluation with one of her other children.
She initially agreed to complete the evaluation but failed to
submit an evaluation report to DCF. 6
On May 26, 2021, DCF updated the mother's action plan,
requiring her to participate in substance use disorder and
mental health treatment, individual therapy with a licensed
therapist, an intensive outpatient program, the SMART recovery
program, and a neuropsychological evaluation. However, the
mother missed therapy appointments in April and May 2021,
stopped attending Alcoholic Anonymous meetings, failed to
6 The mother contends that the judge erroneously relied on her failure to produce a new evaluation as evidence of unfitness, and that it was wrong for DCF to seek adoption of Pedro only days after requesting a neuropsychological exam. We disagree and note that the judge's consideration of the mother's refusal to participate in the neuropsychological evaluation was reasonable. See Adoption of Luc, 484 Mass. at 146-147, quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (mother's "fail[ure] to recognize the need for or to engage consistently in treatment" and failure to provide the department with psychological evaluation was "relevant to the determination of unfitness").
4 complete the SMART recovery program, and did not submit a
current neuropsychological as requested.
The mother has experienced multiple substance use-related
relapses since Pedro's birth. Evidence adduced at trial
supported the judge's determination that the mother was not able
to maintain sobriety. 7 In January and February 2020, she was
arrested for failing to participate in SCRAM alcohol monitoring
testing. Then, in December 2020, she was charged with operating
a motor vehicle under the influence. She was found guilty and
incarcerated for sixty days.
Following removal of the Pedro, the mother had weekly
supervised visits with him. While she consistently attended all
visits as scheduled from August 2019 to October 2019, she began
to miss some visits in December 2019. The mother's attendance
rate decreased in 2020. 8 In January 2021, the mother attended a
7 The mother has an extensive history of community disturbances and involvement with the criminal justice system. Between June 2019 and September 2020, three abuse prevention orders were issued against the mother, and a domestic disturbance complaint was filed against her. She violated two of the abuse prevention orders. 8 The mother contends that the judge’s finding that "[a]s of June
2020, the foster mother reported that [the] [m]other had not been present for twenty-five percent of the visits" was erroneous and that the foster mother never mentioned the figure "twenty-five percent" in her testimony. However, on November 15, 2021, the foster mother did in fact testify that she "had a log where [the] [m]other missed [twenty-five percent] of the visits."
5 supervised in-person visit with Pedro and admitted to using
marijuana prior to the visit.
In June 2020, DCF changed Pedro's permanency goal from
reunification with the mother to adoption. In July 2020, DCF
mailed letters to all known maternal family members in an effort
to identify potential kinship placements. 9 DCF did not receive a
response from any family members. Ultimately, Pedro's foster
parents, with whom he had lived for two years at the time of
trial, committed to adopting him. Following a trial in November
2021, the judge ordered the entry of a decree finding the mother
unfit 10 and terminating her parental rights. The judge also
ordered two annual posttermination and postadoption visits
between the mother and Pedro. The mother appeals from the
decree.
9 The mother argues that DCF failed to comply with 110 Code Mass. Regs. § 7.101(2) (2009), which requires DCF to "consider, consistent with the best interests of the child . . . placement with a kinship family." However, that regulation requires only that "reasonable effort[s] should be made to place a child in accordance with . . . [§] 7.101(2)." The record indicates that DCF indeed mailed letters to all known maternal family members in July 2020, but received no responses. In addition, the mother was provided family resource applications, but "DCF didn't receive any applications back from family members." 10 "Despite the moral overtones of the statutory term 'unfit,'
the judge's decision was not a moral judgment or a determination that the mother . . . [does] not love the child" (citation omitted). Adoption of Bea, 97 Mass. App. Ct. 416, 417 n.2 (2020).
6 Discussion. 1. Unfitness and termination of parental
rights. The mother contends that some of the judge's findings
of fact were erroneous, 11 and absent those findings, DCF did not
meet its burden to prove parental unfitness by clear and
convincing evidence. We disagree. Even assuming that some of
the challenged findings were erroneous, 12 the remaining evidence
of unfitness was overwhelming.
"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). "Parental unfitness is determined by
considering a parent's character, temperament, conduct, and
capacity to provide for the child's particular needs,
11 Specifically, the mother argues that the record did not support the judge's findings (1) that the mother's fourth child, who died shortly after birth, was found to have marijuana in [her] system, (2) that the two 51A reports dated July 18 and 29, 2019, made reference to the mother's mental health issues, (3) that DCF recommended that the mother enter a long-term inpatient treatment program at the outset of the case and that she failed to do so, and (4) that the mother was not present for twenty- five percent of visits with Pedro as of June 2020 and that she was "confrontational" on a visit in late June 2020. 12 As discussed in note 3, supra, the judge's finding that the
mother's fourth child, who died shortly after birth, was found to have marijuana in her system was erroneous.
7 affections, and age." Care & Protection of Vick, 89 Mass. App.
Ct. 704, 706 (2016). We give substantial deference to the
judge's findings, which we do not disturb unless they are
clearly erroneous. See Adoption of Jacques, supra at 606-607.
The mother's unfitness resulted from a "constellation of
factors." Adoption of Greta, 431 Mass. 577, 588 (2000). The
evidence supported the judge's finding that, inter alia, the
mother was unfit to parent Pedro and her unfitness was likely to
continue into the indefinite future to a near certitude, the
mother failed to provide Pedro with adequate care, and the
mother's substance abuse and mental illness history, which
resulted in the adoption of three older children, continued to
affect her in a way that made her unfit to parent and care for
Pedro. See Adoption of Ramon, 41 Mass. App. Ct. 709, 717-718
(1996).
While the mother concedes that her history of problematic
substance use played a significant role in the removal of her
three older children, she argues that the judge relied on stale
evidence of her substance use history by claiming that, from
2012 to 2019, she had been intoxicated only once. She also
argues that her relapses between 2019 and 2021 do not establish
that she was unfit to parent Pedro or that any unfitness is
likely to continue. Contrary to her claims, the record reflects
that the mother was intoxicated on multiple occasions between
8 2012 and 2018, at times to the point of being placed in
protective custody. The mother's more recent behavior,
delineated throughout the judge's comprehensive findings of fact
and conclusions of law, further demonstrates the mother's
ongoing pattern of problems with substance use. Viewed in
combination with the mother's failure to consistently engage in
services and other factors described above, the mother's
argument is unavailing. "[A] judge [can] properly rely upon
prior patterns of ongoing, repeated, serious parental neglect,
abuse, and misconduct in determining current unfitness."
Adoption of Diane, 400 Mass. 196, 204 (1987).
As to termination of parental rights, the judge evaluated
the provisions of G. L. c. 210, § 3 (c), and found factors
(ii), (v), (vi), (vii), (viii), and (xii) to be applicable. The
record supports this determination. Moreover, as detailed
above, in light of the mother's ongoing history of substance use
issues, involvement with the criminal justice system, and
inability and unwillingness to recognize and address her
parental deficits, there was ample record evidence to support
the judge's findings and determination that the mother was unfit
and that termination of her parental rights was in the child's
best interests.
2. Posttermination and postadoption visitation. We are
likewise unpersuaded by the mother's argument that the judge
9 abused his discretion in ordering only two posttermination and
postadoption visits between the mother and Pedro each year.
Judges have broad discretion to order posttermination and
postadoption visitation between the parent and child. See
Adoption of Douglas, 473 Mass. 1024, 1027 (2016). A two-part
inquiry informs a judge's decision to order visitation: "First,
is visitation in the child's best interest? Second, in cases
where a family is ready to adopt the child, is an order of
visitation necessary to protect the child's best interest, or
may decisions regarding visitation be left to the judgment of
the adoptive family?" Adoption of Ilona, 459 Mass. 53, 63
(2011). To determine whether visitation is in the child's best
interest, a judge should consider "whether there is 'a
significant existing bond with the biological parent' whose
rights have been terminated." Id. at 63-64, quoting Adoption of
Vito, 431 Mass. 550, 563 (2000).
Here, the judge determined that posttermination and
postadoption visitation between Pedro and the mother was in
Pedro's best interest based on their emotional bond, despite the
mother's inconsistency in confirming and attending visits. The
judge properly sought to "balance the benefit to the child of an
order of visitation that will provide assurance that the child
will be able to maintain contact with [the mother], with the
intrusion that an order imposes on the rights of the adoptive
10 parents." Adoption of Ilona, 459 Mass. at 64. We further note
that "[t]he purpose of [posttermination and postadoption
visitation] is not to strengthen the bonds between the child and
his biological mother or father, but to assist the child as he
negotiates, often at a very young age, the tortuous path from
one family to another." Adoption of Vito, 431 Mass. at 564-565.
On the record before us, we cannot say that the judge's decision
to order two annual visits was "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 and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014).
Decree affirmed.
By the Court (Neyman, Henry & Ditkoff, JJ. 13),
Clerk
Entered: November 20, 2023.
13 The panelists are listed in order of seniority.