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-303
ADOPTION OF QUAYLA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from decrees of the
Juvenile Court terminating their parental rights to their
daughter, Quayla, pursuant to G. L. c. 119, § 26 and G. L.
c. 210, § 3, approving the plan of the Department of Children
and Families (DCF) for the child's adoption, and ordering two
postadoption visits per year between the parents and Quayla.2 In
their appeals, the parents argue that the trial judge erred in
finding them unfit to parent their child by clear and convincing
evidence, that there was no nexus between the parents' substance
1 A pseudonym.
2 The father also filed a notice of appeal from the denial of his motion for relief from judgment. In his brief, the father states he is appealing from the decree terminating his parental rights. He makes no argument regarding the denial of his motion for relief from judgment, and we do not consider that issue. See Mass. R. A. P. 16 (9) (A), as appearing in 481 Mass. 1628 (2019). abuse and any harm or neglect to the child, and that it was not
in the child's best interests for their parental rights to be
terminated. We affirm.
Background. 1. Factual history. We summarize the facts
as they were found by the trial judge. Both the mother and
father have a history of substance abuse. The mother has been
diagnosed with opioid dependence, and the father has admitted to
having a "drug problem." Both parents have also been charged
with various criminal offenses. In addition to struggling with
substance abuse, the mother has been diagnosed with depression,
anxiety, and attention deficit hyperactivity disorder (ADHD),
and she has not maintained consistent treatment for her mental
health diagnoses.
During her pregnancy with the child, the mother was engaged
in methadone maintenance, but despite that, tested positive for
opiates and benzodiazepines on several occasions and admitted to
using heroin a week or two before the child's birth. The father
was aware of the mother's heroin use. In August 2015, the child
was born with neonatal abstinence syndrome; her urine and
meconium tested positive for opiates and methadone. The child
experienced withdrawal symptoms and was placed on neonatal
morphine. Because she was born substance exposed, a report was
filed with DCF pursuant to G. L. c. 119, § 51A (51A report).
2 The child was placed in DCF custody, and DCF placed her in a
kinship foster home with her aunt and uncle. The child was
reunified with her parents in June 2016.
Between 2016 and 2019, the mother continued to struggle
with substance abuse, testing positive for fentanyl twenty times
and for cocaine twice. However, she did not inform DCF of these
relapses. In August 2019, the police were called to the
parents' apartment complex due to a report of a woman in the
parking lot who appeared to be changing her clothes. The police
arrived and found the mother in the parking lot, and she
presented as slow and lethargic. The mother brought the police
to her apartment, where the father and the child were sleeping.
The apartment was in disarray, with tables knocked over or
lopsided and items all over the floor. The police observed drug
paraphernalia, namely, a spoon and a bag of syringes, in the
apartment. The father had track marks on his arms, and admitted
to the police that he had a drug problem. He claimed the track
marks were old, but the police observed bruising around the
marks, which indicated that they were new. The mother told the
police that she had not used drugs in a year, despite the fact
that she had actually tested positive for drugs several times in
the preceding months. Based on this incident, the police filed
a 51A report.
3 A few days after the incident, DCF conducted an unannounced
home visit, and found that the home was in "deplorable
condition." According to the DCF social worker, the sink was
overflowing with dirty dishes, there was a knife on the counter
that was accessible to the child, there was a table tipped over
and boxes on the floor around it which blocked one entrance to
the bathroom, and there were cigarette burns on the parents'
bedding and cigarette trash on the parents' dresser. At the
time, the mother refused to sign a release for her treatment
providers and refused to allow the social worker to inspect her
medication bottles. The social worker attempted to arrange
another home visit so that she could meet the father, but the
mother canceled one visit and would not arrange another, as she
stated the father would not be available. The social worker
attempted to create a plan for the child to stay with a family
member while DCF confirmed the parents' sobriety, but the mother
refused.
As part of the DCF investigation into the 51A report, the
social worker also spoke with the child's aunt, who expressed
concern about the parents' drug use. The aunt claimed that both
parents appeared to be under the influence at Christmas, and
that the mother appeared to be under the influence two weeks
earlier when she had dropped off the child for an overnight
4 visit. During that visit, the aunt observed that the child had
two burns on her hand. The aunt reported that when the aunt
asked the mother about the burns, the mother claimed that the
child "ran into the cigarette." Following this DCF
investigation, the child was again removed from the parents'
care, and was placed in the same kinship foster home with her
aunt and uncle in which she previously had been placed.
Since the child was removed the second time, the parents
have not consistently cooperated in DCF's efforts to verify
their sobriety. The mother was not consistent with her
methadone dosing, and she tested positive for fentanyl numerous
times between 2020 and 2021. She did not, however, inform DCF
of these positive tests, instead only providing to DCF select
toxicology screens that were negative for illicit substances.
The mother also did not seek detoxification following any of
these relapses, and she provided no verification of a relapse
prevention plan.
The father completed a substance abuse evaluation in
October 2019, but it referred only to historical information and
did not include any clinical assessments or tests, so DCF did
not accept the evaluation as fulfilling the task on his action
plan. The father completed another substance abuse evaluation
in April 2021, eighteen months after it was requested, but the
5 evaluation was largely based on the father's self-report, and he
made several inconsistent or inaccurate statements during the
evaluation. At each home visit, DCF asked Father to verify his
sobriety and to submit to toxicology screens, but he only
submitted one toxicology screen, otherwise refusing.
The parents also did not refrain from illegal activity
while the child was in DCF custody. The mother was charged with
larceny in January 2021, although she alleges that she was
falsely accused. The mother claims that the charge has since
been dismissed, but she did not provide verification, and, at
the time of the termination trial, the charge remained in open
status. In May 2021, the father was charged with a compulsory
insurance violation and a registration violation, although these
charges were later dismissed.
Since the child's second removal, the parents have
consistently attended visits with the child and have behaved
appropriately at those visits. During one visit in 2020, the
father presented with heavy eyelids, prompting concern about his
sobriety. The father completed an unsupervised toxicology
screen several weeks later, but he refused to complete a
supervised screen within twenty-four hours as requested by the
DCF social worker. Additionally, the parents have interfered
with the child's kinship foster placement, badgering the aunt
6 and uncle and making their relationship uncomfortable. As a
result, the child was removed from the kinship foster placement
in June 2020 and placed in a DCF foster home, although the aunt
and uncle remained involved in the child's life, visiting her
and taking her on vacation. The aunt and uncle are willing to
adopt the child upon termination of the parents' parental
rights.
2. Procedural history. Shortly after the child was
removed from the parents' care in 2019, the parents both waived
their rights to a temporary custody hearing. Neither parent
attended the unfitness hearing in July 2021. The trial judge
found that the mother was unfit, but that DCF had not met its
burden of proof as to the father's unfitness. The court entered
a conditional custody order to the father, with the requirement
that the father not allow anyone, including the mother, to spend
the night at the father's residence unless approved by DCF. In
violation of this order, on the child's first overnight visit
with the father under the order, the father allowed the mother
to sleep over. The court therefore vacated the conditional
custody order and found that both the mother and the father were
unfit to parent the child. The parents did not appeal from that
decision.
7 The court held a termination of parental rights trial in
June 2022, and again, neither parent was present. The trial
judge found that both the mother and the father were unfit,
committed the child to the permanent custody of DCF, terminated
both parents' parental rights, approved DCF's plan of adoption
by the kinship foster family, and ordered that the child have
visits with the parents a minimum of two times per year. Both
parents appealed from this decree.
Three months later, the father filed a motion for relief
from judgment, arguing that he was unable to attend the
termination trial because it was rescheduled and he was not
provided proper notice of the new date. After an evidentiary
hearing, the trial judge denied the father's motion, as she did
not credit the father's testimony and instead found that he was
aware of the trial date. As discussed in note 2, supra, the
father does not make any arguments about it in his brief, so we
need not consider this issue. See Mass. R. A. P. 16 (9) (A), as
appearing in 481 Mass. 1628 (2019).
Discussion. The parents both argue that the judge erred in
finding them unfit to parent the child and in terminating their
parental rights, because they allege there was no nexus between
their substance abuse and any harm to the. We disagree.
8 To commit a child to DCF's custody, DCF must prove, "by
clear and convincing evidence, that a parent is currently unfit
to further the best interests of a child." Care & Protection of
Erin, 443 Mass. 567, 570 (2005). To find that a parent is unfit
requires "more than ineptitude, handicap, character flaw,
conviction of a crime, unusual life style, or inability to do as
good a job as the child's foster parent." Adoption of
Katharine, 42 Mass. App. Ct. 25, 28 (1997) ("Katharine"). The
trial judge must instead find "grievous shortcomings or
handicaps that put the child's welfare much at hazard." Id.,
quoting Petition of New England Home for Little Wanderers to
Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).
For termination of parental rights, DCF must further prove by
clear and convincing evidence that the child's best interests
are served by the termination of parental rights. Adoption of
Luc, 484 Mass. 139, 144 (2020). On appeal, a trial judge's
findings "must be left undisturbed absent a showing that they
clearly are erroneous." Care & Protection of Martha, 407 Mass.
319, 327 (1990).
Substance abuse is a relevant consideration in a
determination of unfitness, but only where the substance abuse
interferes with a parent's ability to provide minimally
acceptable care of the child. See G. L. c. 210, § 3 (c) (xii);
9 Katharine, 42 Mass. App. Ct. at 31. In Katharine, the parents
both used cocaine regularly and resisted services offered by the
Department of Social Services (DSS)3 to help treat their
addictions. Id. at 25-26. This court found that, even assuming
the parents would continue to use cocaine, id. at 31, their
addictions did not "translate[] automatically into legal
unfitness to act as a parent" absent neglect or abuse of the
child, id. at 34. The findings in Katharine did "not reflect a
history of negligent or abusive care of the daughter," but
rather showed that the parents had "adequately fed and clothed
her, provided for her medical care, supervised her, and loved
her." Id. at 26. The daughter in that case had been born
prematurely and with cocaine in her system, id. at 25, which
could potentially be characterized as abuse (although the court
did not decide that question), but this court found that it was
not enough alone to permit termination of parental rights, as it
could not be repeated as to that child, id. at 28-29. Finally,
this court considered that the parents had been involved in
criminal offenses in the past, but noted that those had occurred
before the daughter was born. Id. at 33.
3 The Department of Children and Families was formerly named the Department of Social Services.
10 We find that, contrary to the parents' arguments, this case
is distinguishable from Katharine. As in Katharine, the child
was born substance exposed, and the parents both had drug
addictions but nonetheless were resistant to services offered by
DCF. Those facts alone are not sufficient, under Katharine, to
terminate parental rights. However, there is additional
evidence of neglect and harm to the child in this case that was
not present in Katharine. When the child was removed from the
parents' care the second time in August 2019, the home was in
disarray, with tables knocked over and items all over the floor.
Days later, the home remained in "deplorable condition": during
an unannounced home visit, the social worker observed a tipped
over table, boxes on the floor blocking an entrance to the
bathroom, and a knife on the counter that was accessible to the
child. The police also observed drug paraphernalia in the home.
The condition of the home on both occasions posed a risk to the
then four-year-old child.
Additionally, the child's aunt reported to the DCF social
worker that during a visit two weeks earlier, she had noticed
burns on the child's hand, and the mother had stated they
occurred when the child "ran into a cigarette." Whether the
burns were caused intentionally or accidentally, they are at the
very least evidence that the child was not being sufficiently
11 supervised. Taken together with the cigarette burns observed on
the parents' bedding and cigarette trash on their dresser, the
evidence suggests that the parents were not taking adequate
precautions while smoking.
Finally, neither parent refrained from engaging in illegal
activity during the course of the DCF case. The mother was
charged with larceny in January 2021. Although she claims that
she was falsely accused, and stated that the charge had been
dismissed, the judge was not bound to credit that testimony. In
May 2021, the father was charged with a compulsory insurance
violation and a registration violation, although those charges
were later dismissed. While the parents in Katharine both had
been involved in criminal offenses prior to the child's birth,
they were not involved in any after the child's birth, let alone
during the pendency of the DSS case against them. Katharine, 42
Mass. App. Ct. at 33.
Therefore, the parents' argument that this case is
indistinguishable from Katharine fails. As this Court held in
Katharine, a court cannot "predict catastrophe when the care of
the child to date has been, on the whole, satisfactory," but the
court may "make a prognosis of damage to a child because of a
previous pattern of abuse or neglect." Id. at 33. As the child
in this case has been harmed as a result of the parents'
12 substance abuse, termination of their parental rights is not
barred by Katharine.
The mother also argues that the judge's findings that she
"cherry-picked" and altered her drug screens were clearly
erroneous. The judge found that the mother selected only
certain screens to send to DCF, all of which showed she tested
negative for illicit substances, despite the fact that other
screens that she chose not to send showed a positive result.
She also found that the mother had altered certain screens
before sending them to DCF. The mother argues that there was no
evidence in the record to support these findings, as the DCF
court reports state only that DCF "received" drug screens, but
do not specify from whom, so the mother may not have had any
discretion over which screens DCF received or what they said.
The judge's findings on this issue were not clearly
erroneous, as there was testimony supporting them. At the
hearing on July 20, 2021, the DCF social worker testified that
the mother had signed only limited releases for her providers,
meaning that DCF could not access the drug screens directly from
the mother's provider. Then, at the termination trial on June
16, 2022, another DCF social worker testified that DCF had
previously received drug screens directly from the mother and
that she had finally signed releases in May 2022. The social
13 worker also testified that a screen the mother had given DCF was
altered and did not match the screen provided directly from the
provider. From this testimony, the judge reasonably found that
the mother selected only certain favorable screens to send to
DCF and altered at least one.
The father argues that the judge made a clear error in
finding that he struggled with substance abuse at the time of
trial. DCF bears the burden to show by clear and convincing
evidence that a parent is currently unfit. Care & Protection of
Erin, 443 Mass. at 570. The evidence before the court showed
that the police observed track marks on the father's arms in
August 2019, which the father stated were old, but the police
officer saw bruising around them, which he stated indicated that
they were new. The police also observed drug paraphernalia in
the home at that time, and the father admitted to police that he
had a "drug problem." The father submitted the results of a
substance abuse evaluation to DCF in October 2019, but it did
not indicate what, if any, testing was completed, and mostly
contained information about the mother. Therefore, DCF
requested a new substance abuse evaluation, which father did not
complete until April 2021, and which the court found contained
contradictory statements.
14 The father is correct that his action plans, unlike the
mother's, did not require that he submit drug screens to DCF,
although they did require that he "[a]bstain from all alcohol
and drug use and demonstrate a commitment to maintaining a sober
lifestyle by refraining from engaging with individuals who are
using/abusing alcohol/drugs." In December 2021, a task was
added stating, "If there are concerns regarding presentation and
sobriety during visitation, [DCF] . . . will encourage you to
submit a supervised drug screen/swab/blood test within 24
hours." There was also testimony from the DCF social worker
that DCF had asked the father to verify his sobriety at every
home visit since the case opened, at least thirty-three times.
The court found that the father had only submitted one drug
screen to DCF, which was unsupervised, several weeks after a
February 2020 visit at which he presented with heavy eyelids.
The court also found that a supervised screen was requested, but
the father failed to submit one, and the judge drew the
inference that it would have been positive. The father contends
that he had actually taken five drug screens since the DCF case
opened, as he reported during his second substance abuse
evaluation.
The judge's findings regarding the father's failure to
maintain sobriety were not clearly erroneous. When the child
15 was removed, the police officer observed what he said were new
track marks on the father's arms, and drug paraphernalia in the
home. The father was also not forthcoming in either of his
substance abuse evaluations about his history of drug use.
Although his action plans did not require that the father submit
drug screens, they did require that the father "[c]ooperate with
any additional recommendations made by DCF and other
professionals," and the DCF social worker testified that the
father was asked to verify his sobriety at every home visit
throughout the pendency of the case. Although the father did
report during his substance abuse evaluation that he had taken
five drug screens since the case began, he did not report that
they had been submitted to DCF. Taken together, this evidence
was sufficient for the judge to find that the father had a
current substance abuse issue at the time of trial.
Even if the judge did err in her finding's regarding the
father's substance abuse, any error would have been harmless, as
there was other evidence sufficient to show the father's
unfitness. The father, despite knowing about the mother's
substance abuse, including her use of heroin during pregnancy
and her relapses, did not report it to DCF or to the mother's
substance abuse treatment provider, nor did he take any steps to
protect the child from potential harm or neglect caused by the
16 mother. Even after the trial judge had found the mother unfit
and issued a conditional custody order to the father, the father
immediately violated the order by allowing the mother to sleep
over during the child's first overnight visit with him. As we
have already concluded that the child was harmed due to the
mother's substance abuse, the father's failure to acknowledge
this as an issue and his willingness to put the child at risk of
harm constitute unfitness. The father and the mother also
failed to attend either hearing at which their fitness to parent
the child would be decided, and it was proper for the judge to
draw a negative inference from their absence. See Adoption of
Talik, 92 Mass. App. Ct. 367, 371 (2017).
Finally, both the mother and the father challenge the
judge's determination that termination of their parental rights
was in the child's best interest. In particular, the father
argues that the judge did not consider the father's ability to
provide for the child and their strong relationship , and the
mother argues that the child expressed a desire to return home
and was bonded with the parents. In fact, the judge took note
of the parents' jobs and financial situation, including the fact
that the maternal grandmother had provided financial support to
the parents. The judge also explicitly considered the parents'
mostly consistent compliance with visitation, the fact that they
17 behaved appropriately and came prepared, and the child's
expressed desire to return to the parents' care. In a best
interest determination, the court should take into account the
child's wishes, but they are not outcome determinative. See
Adoption of Nancy, 443 Mass. 512, 518 (2005). The court clearly
did consider the bond between the child and the parents, as she
ordered post-adoption visitation. However, the judge should
also consider a lengthy separation between the parents and
child, and a child's bond with the current custodian. See
Adoption of Frederick, 405 Mass. 1, 7 (1989). In this case, the
child has not lived with the parents since 2019 and has
developed a strong bond with her aunt and uncle, who are willing
to adopt her.
The mother also argues that, because the kinship foster
family did not allow the child to continue living with them
after June 2020, their adoption of the child would not be in her
best interests. However, the judge found that the kinship foster
family had made that decision due to the parent's interference
and fears that the child would be removed a third time. The
family also maintained a relationship with the child even after
June 2020, visiting with her consistently and taking her on
vacations.
18 Based on all of these considerations, the judge did not
abuse her discretion in finding that the child's best interests
would be served by termination of parental rights.
Decrees affirmed.
Order denying motion for relief from judgment affirmed.
By the Court (Vuono, Rubin & Smyth, JJ.4),
Clerk
Entered: June 27, 2024.
4 The panelists are listed in order of seniority.