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-663
ADOPTION OF TAHI (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a review and redetermination trial that spanned
eight nonconsecutive days between April and November of 2023, a
judge of the Juvenile Court found the mother unfit to assume
parental responsibility for her children, Tahi and Ava,
terminated her parental rights, and approved the proposed
adoption plan of the Department of Children and Families
(department) to place the children with their foster mother.2 In
her findings of facts and conclusions of law, the trial judge
also found that an order of visitation between the children and
the mother was not in the children's best interests. The mother
now appeals, arguing: (1) the trial judge's decision rested on
1 Adoption of Ava. The children's names are pseudonyms.
2On September 9, 2019, the mother had stipulated to and was found unfit to parent Tahi and Ava. The department was then given "permanent" custody of the children. an erroneous finding that the mother had an active substance
abuse problem at the end of trial, and any evidence of the
mother's substance abuse was stale and could not support a
finding of future unfitness; (2) the trial judge abused her
discretion in finding that termination of the mother's parental
rights was in the children's best interests; and (3) the trial
judge erred in refusing to order posttermination and
postadoption visitation with Ava. We affirm.
Discussion. 1. Mother's fitness. The mother argues that
the trial judge failed to properly assess her parental fitness
as it existed at the time of trial but instead relied on stale
evidence relative to her previous substance abuse issues. The
argument is predicated on factual findings in the judge's
decision indicating that the mother used drugs in the summer of
2022, as well as the judge's consideration of the mother's
"ability to maintain a sober lifestyle" and the mother's
"ongoing substance abuse," which were incorporated within the
judge's ultimate unfitness determination.
We begin by first noting that in finding the mother unfit,
the trial judge considered numerous factors, which the mother
does not challenge, alongside the mother's substance abuse
history, including the mother's housing instability, involvement
in domestic violence relationships, and inability to
consistently engage in treatment or to meaningfully engage with
2 the department. As discussed infra, these factors alone were
sufficient to support an unfitness determination.3 Therefore,
even assuming without deciding that the judge mistakenly and
thus erroneously concluded that the mother was using drugs as
recently as the summer of 2022, or had an "ongoing" substance
abuse issue,4 any error was harmless where, as discussed below,
3 The mother argues that the language in the judge's decision that "the paramount issue in this case is Mother's issues with substance abuse" indicates that the judge terminated the mother's rights primarily because of her substance abuse issues. However, later in her decision the judge wrote "Mother's substance abuse and inconsistent treatment is of paramount concern and contributes to her parental unfitness" (emphasis supplied). The judge also used the word "paramount" on two other occasions where she did not reference the mother's substance abuse issues. Therefore, we do not read the judge's use of the word "paramount" to mean "sole" or "exclusive." Additionally, the mother's substance abuse was clearly of "paramount" concern in this case, as it was a primary cause of her children's removal.
4 For example, the mother specifically takes issue with findings of fact, numbers 166 and 173, in the judge's decision. In finding number 166, the judge made an inference that "Mother was struggling with her substance abuse in the summer of 2022" because of her failure to provide certified drug screens in July and August of 2022, as well as her prior testimony that "the 'entire' reason she was not communicating with the Department during certain periods was because she was using drugs during those times." However, the mother's life was considerably disrupted due to domestic violence in the summer of 2022, and the "periods" the mother was referring to in her previous testimony were from "the initiation of the case" over three years prior "and the few months that followed." Therefore, the mother argues that the judge's inference was inaccurate and improper.
Finding number 173 concludes that the mother informed a victim advocate that she had been sober twelve months as of June
3 the "judge's conclusion that the mother was unfit was clearly
and convincingly supported by the judge's [other] subsidiary
findings." Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020).
Furthermore, although "a finding of current unfitness
cannot be based on stale information . . . prior history does
have prognostic value." Adoption of Carla, 416 Mass. 510, 517
(1993). Indeed, "[w]here a person's character is itself in
issue, as a parent's character generally is in custody or
adoption cases, courts have usually held that it may be proved
by evidence of specific acts of misconduct bearing on
character." Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989).
Accordingly, there was no error in the trial judge's
consideration of the mother's entire history of substance abuse
especially where the mother's substance abuse was a central
issue in the initial removal of her children, and evidence was
adduced at trial that the mother's substance abuse remained an
ongoing concern, at least as of 2022. See Adoption of Anton, 72
Mass. App. Ct. 667, 676 (2008) (finding evidence of drug abuse
relevant to parent's "willingness, competence, and availability
to provide care"). Notably, the mother worked with a recovery
support specialist during February and March of 2022 and
2023. However, the advocate's testimony was that the mother informed her that she had been twelve months sober in June of 2022.
4 discussed entering "long-term sober living," a recommendation
that the judge found the mother did not "embrace." The mother
also failed to provide the department with certified drug
screens in July, August, and September of 2022, albeit during a
time when she was moving and was the victim of domestic
violence. To be sure, the mother has engaged in various
substance abuse treatment programs since 2019. However, her
treatment has been sporadic and inconsistent, and as of late
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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
24-P-663
ADOPTION OF TAHI (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a review and redetermination trial that spanned
eight nonconsecutive days between April and November of 2023, a
judge of the Juvenile Court found the mother unfit to assume
parental responsibility for her children, Tahi and Ava,
terminated her parental rights, and approved the proposed
adoption plan of the Department of Children and Families
(department) to place the children with their foster mother.2 In
her findings of facts and conclusions of law, the trial judge
also found that an order of visitation between the children and
the mother was not in the children's best interests. The mother
now appeals, arguing: (1) the trial judge's decision rested on
1 Adoption of Ava. The children's names are pseudonyms.
2On September 9, 2019, the mother had stipulated to and was found unfit to parent Tahi and Ava. The department was then given "permanent" custody of the children. an erroneous finding that the mother had an active substance
abuse problem at the end of trial, and any evidence of the
mother's substance abuse was stale and could not support a
finding of future unfitness; (2) the trial judge abused her
discretion in finding that termination of the mother's parental
rights was in the children's best interests; and (3) the trial
judge erred in refusing to order posttermination and
postadoption visitation with Ava. We affirm.
Discussion. 1. Mother's fitness. The mother argues that
the trial judge failed to properly assess her parental fitness
as it existed at the time of trial but instead relied on stale
evidence relative to her previous substance abuse issues. The
argument is predicated on factual findings in the judge's
decision indicating that the mother used drugs in the summer of
2022, as well as the judge's consideration of the mother's
"ability to maintain a sober lifestyle" and the mother's
"ongoing substance abuse," which were incorporated within the
judge's ultimate unfitness determination.
We begin by first noting that in finding the mother unfit,
the trial judge considered numerous factors, which the mother
does not challenge, alongside the mother's substance abuse
history, including the mother's housing instability, involvement
in domestic violence relationships, and inability to
consistently engage in treatment or to meaningfully engage with
2 the department. As discussed infra, these factors alone were
sufficient to support an unfitness determination.3 Therefore,
even assuming without deciding that the judge mistakenly and
thus erroneously concluded that the mother was using drugs as
recently as the summer of 2022, or had an "ongoing" substance
abuse issue,4 any error was harmless where, as discussed below,
3 The mother argues that the language in the judge's decision that "the paramount issue in this case is Mother's issues with substance abuse" indicates that the judge terminated the mother's rights primarily because of her substance abuse issues. However, later in her decision the judge wrote "Mother's substance abuse and inconsistent treatment is of paramount concern and contributes to her parental unfitness" (emphasis supplied). The judge also used the word "paramount" on two other occasions where she did not reference the mother's substance abuse issues. Therefore, we do not read the judge's use of the word "paramount" to mean "sole" or "exclusive." Additionally, the mother's substance abuse was clearly of "paramount" concern in this case, as it was a primary cause of her children's removal.
4 For example, the mother specifically takes issue with findings of fact, numbers 166 and 173, in the judge's decision. In finding number 166, the judge made an inference that "Mother was struggling with her substance abuse in the summer of 2022" because of her failure to provide certified drug screens in July and August of 2022, as well as her prior testimony that "the 'entire' reason she was not communicating with the Department during certain periods was because she was using drugs during those times." However, the mother's life was considerably disrupted due to domestic violence in the summer of 2022, and the "periods" the mother was referring to in her previous testimony were from "the initiation of the case" over three years prior "and the few months that followed." Therefore, the mother argues that the judge's inference was inaccurate and improper.
Finding number 173 concludes that the mother informed a victim advocate that she had been sober twelve months as of June
3 the "judge's conclusion that the mother was unfit was clearly
and convincingly supported by the judge's [other] subsidiary
findings." Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020).
Furthermore, although "a finding of current unfitness
cannot be based on stale information . . . prior history does
have prognostic value." Adoption of Carla, 416 Mass. 510, 517
(1993). Indeed, "[w]here a person's character is itself in
issue, as a parent's character generally is in custody or
adoption cases, courts have usually held that it may be proved
by evidence of specific acts of misconduct bearing on
character." Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989).
Accordingly, there was no error in the trial judge's
consideration of the mother's entire history of substance abuse
especially where the mother's substance abuse was a central
issue in the initial removal of her children, and evidence was
adduced at trial that the mother's substance abuse remained an
ongoing concern, at least as of 2022. See Adoption of Anton, 72
Mass. App. Ct. 667, 676 (2008) (finding evidence of drug abuse
relevant to parent's "willingness, competence, and availability
to provide care"). Notably, the mother worked with a recovery
support specialist during February and March of 2022 and
2023. However, the advocate's testimony was that the mother informed her that she had been twelve months sober in June of 2022.
4 discussed entering "long-term sober living," a recommendation
that the judge found the mother did not "embrace." The mother
also failed to provide the department with certified drug
screens in July, August, and September of 2022, albeit during a
time when she was moving and was the victim of domestic
violence. To be sure, the mother has engaged in various
substance abuse treatment programs since 2019. However, her
treatment has been sporadic and inconsistent, and as of late
June 2023, well into the trial, the mother was not engaged in
any substance abuse treatment.
2. Termination of parental rights. The mother also
asserts that the trial judge abused her discretion in finding
that the termination of the mother's parental rights was in the
children's best interests. In support of this argument, the
mother avers that the trial judge gave undue weight to the
children's preferences and improperly faulted the mother for
opposing the children's wishes. The mother also contends that
the evidence could not support a finding that she would fail to
meet the children's needs should they be reunified, and that the
trial judge ignored negative evidence regarding the proposed
adoptive placement with the children's foster mother, thereby
failing to make an even-handed assessment of the evidence. We
disagree.
5 "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 Bea, 97 Mass. App. Ct. at
421-422, quoting 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 . . ." (quotation
and citation omitted). Adoption of Jacques, supra. "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 Patty, 489 Mass. 630, 637 (2022), quoting Adoption
of Ilona, 459 Mass. 53, 59 (2011).
Here, ample evidence was adduced at trial to support a
finding by clear and convincing evidence that termination is in
the children's best interests. See Adoption of Bea, 97 Mass.
App. Ct. at 421-422. In January 2019, the department removed
the children from the mother's care due to the mother's
6 substance abuse,5 domestic violence concerns, a lack of medical
care for the children, and inconsistent school attendance for
Tahi. From 2019 through 2021, the mother entered six different
detoxification programs in an effort to treat her drug
addiction. The mother then moved to Alabama in December of
2021. Since the mother has been in Alabama, the mother has
struggled with housing instability and, at the time of trial,
had moved eight times in eighteen months. These residences have
included a domestic violence shelter, an addiction recovery
center, a sober living community, and a shelter that provides
transitional housing to pregnant women. The mother has also
been subjected to domestic violence by romantic partners on
numerous occasions, including in the summer of 2022 by the
father of her youngest child, whom she gave birth to in April of
2023.
At trial, the mother testified that she is currently not
ready for reunification and plans to find stable housing so she
can provide for herself, her infant, Tahi, and Ava at some point
"down the line." While the mother does not currently reside in
a shelter, she testified that six months of rent and
The mother testified that she became addicted to oxycodone 5
and Percocet when they were prescribed to her following complications arising from her pregnancy with Ava. The mother's addiction led to her obtaining non-prescribed painkillers from the street, and later using crack cocaine and fentanyl.
7 accompanying living expenses are funded through a $15,000 grant
she received from a mental health association in Alabama.
However, the judge did not credit the mother's testimony,
finding that the association only covered the mother's first
month's rent of $625 and a $250 security deposit. Therefore,
because, inter alia, the mother continues to lack the stability
to reunify with her children five years after their removal, the
judge did not err in concluding that the mother is presently
unfit to parent the children, the unfitness is likely to
continue into the indefinite future, and that termination of the
mother's rights was in the children's best interest.6 See
Adoption of Bea, 97 Mass. App. Ct. at 421-422. See also
Adoption of Willow, 433 Mass. 636, 647 (2001) (recognizing
importance of stability and that severing legal ties between
mother and children is "critical step" in promoting stability in
children's lives).
6 Contrary to the mother's argument, we do not read the judge's decision to "overly rely on the Children's wishes," give undue weight to Tahi's testimony that he preferred to stay with his foster mother, or "improperly fault" the mother for opposing Tahi's preferences. See Adoption of Nancy, 443 Mass. 512, 518 (2005), quoting Care & Protection of Georgette, 439 Mass. 28, 36 (2003) (children's preferences "are entitled to weight in custody proceedings"). Cf. Guardianship of Raya, 103 Mass. App. Ct. 531, 535 (2023) (although judge must consider child's preference, "a teenager cannot render her parent unfit by the simple expedient of refusing to engage with that parent").
8 Furthermore, we disagree with the mother that the trial
judge ignored negative evidence about the proposed adoptive
placement and therefore failed to make an even-handed assessment
of the evidence on the issue of the children's best interests.
"The best interests of a child is a question that presents the
trial judge with a classic example of a discretionary decision
. . . [where] much must be left to the trial judge's experience
and judgment" (quotations and citations omitted). Adoption of
Hugo, 428 Mass. 219, 225 (1998). Here, the negative evidence
that mother references is a G. L. c. 119, § 51A (51A report)
report that was filed in 2021 alleging neglect of Ava by her
foster sister, who allegedly put hot sauce and detergent in
Ava's mouth while she was babysitting her. However, this report
was screened out,7 and a social worker for the department
testified that the foster mother complied with the department's
recommendation that she should not allow the foster sister to be
in a caretaking role for Ava. Therefore, although the judge did
not make specific factual findings regarding the allegations
within the 51A report or the foster sister's caretaking
7 A 51A report is "screened out" when the department determines that the reported allegations do not meet their criteria for abuse and neglect and therefore will not be investigated further. See Gotay v. Creen, 495 Mass. 537, 539 n.6 (2025).
9 abilities,8 there is no evidence to support a conclusion that the
judge failed to make an even-handed assessment of the evidence.9
3. Visitation. The mother finally argues that the trial
judge erred by refusing to order posttermination and
postadoption visitation with Ava. This argument is also
unavailing.
We review a decision declining to order posttermination and
postadoption visitation for an abuse of discretion. See
Adoption of Xarissa, 99 Mass. App. Ct. 610, 623-624 (2021),
citing Adoption of Ilona, 459 Mass. at 66. In determining the
appropriateness of visitation, "a judge should consider, among
other factors, whether there is a significant, existing bond
with the biological parent whose rights have been terminated"
(quotation and citation omitted). Adoption of Iliona, supra at
63-64. "A judge may also take into account whether a
preadoptive family has been identified[,] and, if so, whether
8 The mother also argues that the judge ignored that the foster mother "had a breakdown" with the foster sister "over the issue of underage marijuana usage." However, the foster mother testified as to why the foster sister left her home and did not cite marijuana usage as a reason.
9 The mother makes a general argument that the judge failed to fairly assess the evidence because she erroneously discredited favorable testimony from the mother while crediting favorable evidence from the department. However, we afford deference to the trial judge's credibility determinations and find no reason not to do so here. See Custody of Eleanor, 414 Mass. 795, 799 (1993).
10 the child has formed strong, nurturing bonds with that family"
(quotation and citation omitted). Id. Protecting the best
interests of the child is the overriding concern. See Adoption
of Terrence, 57 Mass. App. Ct. 832, 839 (2003).
Here, we discern no abuse of discretion in the judge's
ultimate refusal to issue an order requiring visitation between
the mother and Ava. See Adoption of Xarissa, 99 Mass. App. Ct.
at 623-624. At trial, the mother testified that she did not
visit with Ava between October 2019 and May 2022.10 In June
2022, the mother missed a virtual visit with her children one
month after her visits had resumed, citing confusion over the
time difference between Alabama and Massachusetts, an
explanation that was not credited by the judge. The mother also
failed to confirm her scheduled August 2022 visit, which had
been scheduled by the department. While Ava's visits with the
mother increased in 2023, and Ava appeared happy to attend some
of the visits, the mother points to no evidence adduced at trial
to support a "significant, existing bond" (citation omitted),
10The mother testified that the department refused to allow her to visit her children for a "large amount of months" because "they could not verify my sobriety because I wasn't engaged in services."
11 Adoption of Ilona, 459 Mass. at 63-64, between the mother and
Ava -- a point made by the judge in her conclusions of law.11
Conversely, there was substantial evidence that Ava has
formed a strong bond with her preadoptive family. See Adoption
of Ilona, 459 Mass. at 64. For example, the foster mother
testified that Ava has a "typical sibling" relationship with her
two biological children and that they all "get along really
well." The foster mother also testified that Ava is generally
happy and "easygoing" and often sits on her lap to seek comfort.
Additionally, a department social worker who observed the foster
mother interact with Ava testified that Ava appears very
comfortable around the foster mother, and that the foster mother
engages in a lot of activities with Ava such as bringing her to
sporting events, painting classes, and concerts. Tahi testified
that he wishes to stay in the same home as Ava and that Ava also
wishes to stay in the home. The foster mother, moreover, also
has never refused a visit between the children and the mother.
Accordingly, because there was limited evidence of an existing
bond between Ava and the mother, the judge did not abuse her
discretion by concluding visitation was not in Ava's best
11We disagree with the mother that the trial judge failed to distinguish between the bond Tahi has with his mother and the bond Ava has with her mother. Rather, the judge made distinct findings as to each of the child's respective bonds.
12 interests and leaving future visitation to the adoptive parent.12
See Adoption of Ilona, supra at 63-64.
Decrees affirmed.
By the Court (Meade, Desmond & D'Angelo, JJ.13),
Clerk
Entered: April 30, 2025.
12The judge was entitled to issue a superseding ruling and order of visitation to be encompassed within the final decrees.
13 The panelists are listed in order of seniority.