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
25-P-114
ADOPTION OF SIMON.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a Juvenile Court
judge finding the mother unfit and terminating her parental
rights to her child, Simon. See G. L. c. 119, § 26; G. L.
c. 210, § 3. The mother presented as disorganized and
dysregulated, had inappropriate visits with Simon and paranoid
interactions with others, had persistent housing instability,
and demonstrated a lack of understanding of Simon's special
needs or her own mental health challenges. Despite significant
mental health diagnoses, she declined to take prescribed
medications consistently to manage her mental health even though
the medications improved her symptoms. This evidence provided
sufficient support for the judge’s determinations. Accordingly,
we affirm.
1 The child's name is a pseudonym. Background. 1. Present involvement with the Department of
Children and Families (DCF). Simon was born in June of 2021.
His father is not meaningfully involved in his life and has not
been a party to these proceedings. The mother tested positive
for marijuana use while she was pregnant in April 2021, but she
tested negative in the following month. Shortly after Simon's
birth, DCF received a report pursuant to G. L. c. 51A (51A
report) which prompted DCF to complete a G. L. c. 51B
investigation. DCF concluded that the mother's mental health,
substance use, and parental capacity required further
assessment. DCF did not take custody of Simon at that time.
In July 2021, DCF received another 51A report alleging that
the mother was neglecting the child and acting erratically. On
July 27, 2021, DCF employees conducted an unannounced home
visit. The mother exhibited paranoid thinking, reporting that
her neighbors and family members were breaking into her
apartment, tampering with baby formula, and hacking her email.
DCF employees noted that the mother reported all of these
concerns while holding her newborn child in one arm with his
head unsupported and hanging down. At the request of DCF
employees, the mother was taken to the hospital for a
psychiatric evaluation. DCF took emergency custody of the five-
week-old child that day.
2 The next day, DCF filed a care and protection petition. On
August 3, 2021, DCF was granted temporary custody of the child.
Soon afterward, DCF placed the child with the mother's aunt, who
is still providing care. The goal of reunification was
ultimately changed to adoption in June of 2023 and a trial
commenced on August 21, 2024.
2. The mother. The judge's findings reveal that the
mother has been diagnosed with bipolar disorder and
schizophrenia. Her symptoms include a pattern of paranoia and
delusions. She has been hospitalized for mental health concerns
roughly five times in the last thirteen years. The mother's
most recent hospitalization for psychosis was in May 2021, while
she was pregnant with Simon. The mother has been prescribed at
least four different psychotropic medications since 2013, but
she has struggled to take any of them consistently even though
she was observed to exhibit more organized and regulated
behavior when she took her medication.
When Simon was born in the summer of 2021, the mother had
permanent housing, obtained with a Section 8 housing voucher.
The mother lost her Section 8 housing voucher in February 2022.
She was homeless and staying with various family members from
February 2022 until trial began in August 2024, when she
testified that she had just recently secured housing. It
3 appeared, however that the mother had not yet moved into the new
apartment when the trial took place.
A. Engagement with services. 1. Visitation. Initially,
from August 2021 to October 2022, the mother regularly attended
weekly supervised visits with the child at the placement home.
The mother was able to see the child for up to eight hours a
week during this time. The placement family expressed some
minor concerns about the mother's not being on-time for visits
and engaging with the child in age-appropriate ways, but they
reported no major concerns to DCF. Two DCF social workers
observed positive interactions and noted the mother's progress,
but one also noted that the mother became angry at the idea of
the child's taking swimming lessons and a visit had to be cut
short. Nonetheless, the parent-child visitation was largely
successful from August 2021 to October 2022 and the goal
remained reunification.
On October 18, 2022, the mother arrived at the maternal
aunt's home unannounced and intoxicated, at 2 A.M. The aunt
recalled the mother demanding to see the child during this
incident. Police responded to the home and escorted the mother
away.
After the October 18 incident, the placement family was no
longer comfortable with the mother's visits occurring at their
4 home and after a short delay, visits resumed in the DCF office
or in the community, supervised by DCF. As time went on, the
mother's behavior towards Simon at the DCF-supervised visits
became increasingly inconsistent. Her conduct wavered between
affectionate and appropriate interactions with Simon and
distracted, short-tempered interactions with Simon and with DCF
staff. The mother's attendance at visits also declined as time
went on. She missed a visit in March 2023 for failure to arrive
on time, and another in April 2023 for failure to arrive at all.
The mother failed to confirm six visits between October 2023 and
February 2024, and all six were cancelled as a result. Between
March 2024 and the beginning of the trial in August 2024,
however, the mother's attendance at visits improved. DCF
reported that the mother missed only one visit during this
period.
2. DCF action plans. Beginning in February 2022, DCF
provided the mother with various action plans. The judge
largely credited DCF's testimony about the mother's failure to
complete her action plan tasks -- particularly tasks addressing
her parenting capabilities and requirements that she manage her
mental health by coordinating with her treatment team and taking
prescribed medication.
5 3. Mental health treatment and medication compliance. In
the years since Simon was removed from the mother's care, DCF
required her to obtain mental health treatment. Between March
and the fall of 2022, the mother attended individual therapy bi-
weekly. Then, after changing health care providers, the mother
began seeing another therapist in January 2023. She
consistently met with this same therapist on a weekly or bi-
weekly basis until trial in August 2024. However, the mother
never developed a consistent routine meeting with DCF parent
aides as required by her DCF action plans, although she did
attend some meetings.
The mother has been prescribed various psychotropic
medications to treat her mental illness since her diagnosis in
2013, but she has not been willing or able to take them
consistently for more than a few months at a time. From March
to June of 2022, the mother was taking her medication as
prescribed. During those months, the mother was able to
accurately describe her diagnosis and take ownership of her
mental health issues. She also demonstrated more organized and
regulated behavior and her interactions with Simon were
positive. When the mother stopped taking her medication in June
2022, her therapist witnessed her presentation declining. The
mother's behavior at trial in the fall of 2024 was extremely
6 dysregulated and erratic, and she testified that she had not
been taking any medication that summer. The mother also
repeatedly became agitated when service providers brought up
medication during their appointments.
The mother has claimed that her bipolar disorder is
asymptomatic and does not require medication. She has also
expressed resentment towards DCF for requiring medication
compliance as a part of treatment. The mother has not clearly
articulated an explanation for her resistance to taking
medication, but she has mentioned experiencing side effects like
weight gain and increased heart rate in the past. The mother
believes that the people around her, especially her family, make
her mental health worse, and that medication will not solve
that. Ultimately, the mother's position is that she does not
require psychotropic medication to manage her illness.
3. Simon's progress. Simon is now over four years old and
has been living with the maternal aunt since August 2021. Simon
participated in early intervention services based on speech
development concerns and was diagnosed with autism in 2023. The
mother is aware of this diagnosis but does not necessarily agree
with it, and she would prefer to seek a second opinion. Simon
has also been diagnosed with the sickle-cell trait, which the
mother does not believe is possible.
7 Simon has developed a very strong bond with the maternal
aunt since being placed in her home. Simon has access to a
large extended family through this kinship placement, and the
maternal aunt has created a consistent routine that meets
Simon's needs. The placement home has a bedroom for Simon with
a toddler bed and age-appropriate toys, including sensory toys
specifically beneficial for autistic children. DCF workers have
confirmed that Simon is safe and well cared for, and that the
placement home is clean and baby proofed.
4. Termination of parental rights. After a trial in the
fall of 2024, and for the reasons described above, the judge
found the mother unfit to parent her child. Furthermore, the
judge determined that it was in Simon's best interests to
terminate the mother's parental rights. The judge also decided
not to order posttermination visitation for the mother and left
that choice up to the discretion of the adoptive parent, the
mother's aunt.2
2 Because the mother did not address the issue of posttermination visitation orders in her written brief, we do not consider it on appeal. See Board of Registration in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010) (argument not made in brief but raised for first time at oral argument is waived). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
8 Discussion. 1. Standard of review. "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"
(citation omitted). Adoption of Darlene, 99 Mass. App. Ct. 696,
702 (2021). See Adoption of Ilona, 459 Mass. 53, 59 (2011).
"Because termination of a parent's rights is an 'extreme
step,'. . . a judge must decide both whether the parent is
currently unfit and whether . . . 'there is a reasonable
likelihood that the parent's unfitness at the time of trial may
be only temporary'" (citations omitted). Adoption of Ilona,
supra at 59. "Even where a parent has participated in programs
and services and demonstrated some improvement, we rely on the
trial judge to weigh the evidence in order to determine whether
there is a sufficient likelihood that the parent's unfitness is
temporary." Id. at 59-60.3 We recognize that, in the context of
parental fitness, the "judge who hears the evidence, observes
3 The mother does not explicitly address the judge's finding that her unfitness is likely indefinite in her written brief. Accordingly, we do not address this issue further. See Board of Reg. in Med., 457 Mass. at 743 n.12. Mass. R. A. P. 16 (a) (9) (A).
9 the parties, and is most familiar with the circumstances remains
in the best position to make the judgment [regarding fitness]."
Adoption of Lisette, 93 Mass. App. Ct. 284, 292 (2018), quoting
Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007).
"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. at 59. An abuse of
discretion occurs only where "the judge made 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).
2. The mother's unfitness. We review the judge's decision
to assess whether the mother's unfitness was, in fact, supported
by clear and convincing evidence. See Adoption of Darlene, 99
Mass. App. Ct. at 702-703. When making such a determination,
the judge must "make specific and detailed findings
demonstrating that close attention had been given [to] the
evidence." Adoption of Leland, 65 Mass. App. Ct. 580, 583
(2006). A finding of unfitness is "not a moral judgment or a
determination that the mother. . . [does] not love the child"
10 (citations omitted). Adoption of Bea, 97 Mass. App. Ct. 416,
417 n.2 (2020). Rather, "parental unfitness means grievous
shortcomings or handicaps that put the child's welfare much at
hazard" (quotations and citations omitted). Adoption of Jacob,
99 Mass. App. Ct. 258, 262 (2021).
In ascertaining parental fitness, the judge "may consider
past conduct to predict future ability and performance."
(quotation and citation omitted). Adoption of Jacob, 99 Mass.
App. Ct. at 262. A parent's mental disorder is relevant only
"to the extent that it affects the [parent's] capacity to assume
parental responsibility, and ability to deal with a child's
special needs" (quotations and citations omitted). Adoption of
Luc, 484 Mass. 139, 146 (2020). "A parent may be found unfit
because of mental deficiencies, but only where it is shown that
such 'deficiencies impair[] her ability to protect and care for
the child[].'" Adoption of Chad, 94 Mass. App. Ct. 828, 838
(2019), quoting Adoption of Quentin, 424 Mass. 882, 888-889
(1997).
In the present case, after a six-day trial, the judge made
144 findings of fact and twenty-eight conclusions of law. In
his lengthy findings, he demonstrated the close attention he had
given to the evidence. See Adoption of Quentin, 424 Mass. at
886. The judge was properly concerned about the mother's
11 inability to understand the effect that her unmedicated mental
illness has on her ability to parent. Despite the fact that the
mother consistently engaged in individual therapy for much of
the period leading up to trial, she continually refused to
follow medical recommendations to manage her bipolar disorder.
See Adoption of Luc, 484 Mass. at 147 (mother's "unwillingness
to adhere to DCF service plan, which required her to obtain
treatment for her mental health challenges . . . is relevant to
the determination of unfitness" [quotation and citation
omitted]). Her noncompliance with medication was of particular
concern to the judge, especially given her erratic and
dysregulated behavior at trial as evidenced by her unresponsive
and meandering answers to questions.
Beyond issues of temperament, the judge focused on the
mother's lack of insight into how her own behavior and illness
led to the child's removal. The judge properly weighed (1) the
impact of the mother's mental illness on her ability to parent
the child, and (2) her past behavior as a predictor of her
future parenting ability. See Adoption of Luc, 484 Mass. at
146; Adoption of Jacob, 99 Mass. App. Ct. at 262. Here, there
was sufficient analysis of the nexus between the mother's
parenting ability and her mental illness.
12 Furthermore, the judge thoroughly considered the mother's
inconsistent engagement with DCF services and difficulty
interacting with Simon in age-appropriate ways. We recognize
that, before October 2022, and again between March and August
2024, the mother was reliable in attending visitation,
especially considering that she was homeless at the time.
Despite that success, the mother's life lacks stability, and her
behavior at visits with Simon was sometimes unpredictable and
volatile. Simon also has special needs that the mother does not
seem to fully understand or recognize. The judge found that the
mother's engagement in individual therapy and parenting classes,
though commendable, did not translate into an ability to improve
her parenting skills or ability to care for Simon. And finally,
Simon's needs are being met by the pre-adoptive family
placement. The judge properly considered the relevant factors
in his overall determination that the mother is unfit to parent
Simon.
For these reasons, we discern no clear error in the judge's
determination that the mother is unfit and that "her unfitness
is likely to continue into the indefinite future to a near
certitude."
3. The child's best interests. The record likewise
supports the judge's findings and ultimate conclusion that the
13 termination of the mother's rights was in [Simon's] best
interests. See Adoption of Yalena, 100 Mass. App. Ct. 542, 533
(2021). "[T]he best interests analysis . . . requires a court
to focus on the various factors unique to the situation of the
[child] for whom it must act." Custody of a Minor, 375 Mass.
733, 753 (1978). "The standard for parental unfitness and the
standard for termination are not separate and distinct, but
'reflect different degrees of emphasis on the same factors.'"
Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting Petition
of the New England Home for Little Wanderers to Dispense with
Consent to Adoption, 367 Mass. 631, 641 (1975). "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 . . . to assume parental responsibility and
shall also consider the plan proposed by the department or other
agency initiating the petition.'" Adoption of Nancy, 443 Mass.
at 515-516, quoting G. L. c. 210, § 3 (c).
The judge found that the mother "is presently unfit to
assume parental responsibility for the subject child"; that her
unfitness is "likely to continue"; and that the child's best
interests "would be best served by the termination of parental
rights of [the mother]." This decision was based on his
14 thorough review of record evidence of the mother's ability and
capacity to parent Simon. The judge also properly considered
Simon's interests in remaining with the preadoptive family, who,
he found, have been effectively, safely, and successfully
parenting Simon since infancy. The judge found that there is a
significant relationship between Simon and the preadoptive
placement, and no such relationship between the child and the
mother. The judge found that Simon's special needs are also
currently being met, and the judge was justifiably concerned
about whether the mother would be willing or able to provide an
appropriate level of care to meet his special needs. All of
these findings are well supported by the evidence and we
perceive no clear error or abuse of discretion.
Finally, the judge considered the provisions of G. L.
c. 210, § 3 (c), and found factors (ii), (iii), (v), (vi),
(vii), (viii), and (xii) to be applicable. We discern no clear
error or abuse of discretion in the judge's analysis of the
relevant factors. The record evidence provides clear support
for the judge's findings and determination that the mother is
unfit, that she is likely to remain so indefinitely, and that
15 termination of her parental rights was in Simon's best
interests.
Decree affirmed.
By the Court (Ditkoff, D'Angelo & Wood, JJ.4),
Clerk
Entered: November 21, 2025.
4 The panelists are listed in order of seniority.