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-133
ADOPTION OF TANYA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a Juvenile Court judge found the mother
and the father unfit to parent their children, terminated their
parental rights, and dispensed with the need for parental
consent to adoption. With leave of a single justice of this
court, the father and the children filed a motion seeking relief
from the decrees, as amended, which was denied. In these
consolidated appeals from the decrees and from the order denying
relief, the mother and the children challenge the judge's
finding that the mother was unfit, contending that it is not
supported by clear and convincing evidence. The mother also
argues that the judge erred because she should have been given
additional time to demonstrate fitness after her home plan in
Mississippi was denied. The father and the children separately
1 Adoption of Devin. The children's names are pseudonyms. argue that the judge erred in not holding an evidentiary hearing
and in denying the motion for relief pursuant to Mass. R.
Civ. P. 60 (b) (6), 365 Mass. 828 (1974). Finally, the children
contend, among other things, that the judge erred in relying on
the denial of the Interstate Compact on the Placement of
Children (ICPC) placements because they had no meaningful
opportunity to appeal that decision and were therefore deprived
of the right to counsel. We affirm.
Background. The mother was in the custody of the
Department of Children and Families (department) from age twelve
to eighteen. In 2006, when the mother was eighteen and the
father was forty-two, they began an eleven-year relationship.
At the time, both the mother and the father were addicted to
crack cocaine and the mother was homeless. The father allowed
the mother to stay with him in a rented room above a bar. Later
in the relationship, the mother obtained section 8 housing, and
the father, who was then homeless, moved in with the mother. In
2013, their daughter, Tanya, was born, and their son, Devin, was
born almost two years later.
The mother and the father's relationship was marred by
substance abuse, untreated mental health issues, and turmoil.
Both before and after giving birth to Tanya, the mother allowed
numerous homeless people to stay in their home, which was a
constant source of tension with the father. In 2018, the mother
2 ended her relationship with the father due to the father's
substance abuse. Soon after separating from the father, the
mother married a person who had been in the department's custody
as a child and who also suffered from a substance abuse disorder
and mental health issues (stepfather). The mother continued to
allow other homeless people to stay at her home while married to
the stepfather, and the police responded several times to the
mother's home for disturbances.
In addition to her struggles with housing and substance
abuse, the mother has never had stable long-term employment.
The mother also suffers from significant mental health issues
and has been diagnosed with bipolar disorder, posttraumatic
stress disorder, anxiety, and depression. Even though the
mother has been hospitalized on several occasions, including for
an overdose and attempted suicide, she has not consistently
engaged in mental health treatment. Similarly, the mother has
had a lengthy substance misuse history including the use of
crack cocaine and Percocet but has admittedly never engaged in
substance abuse treatment.2 Instead of attending a treatment
program, the mother sought religion.
2 The mother also has a criminal history spanning twelve years including charges of sexual conduct for a fee, possession of controlled substances, larceny, and being a common night walker and has been sentenced to the house of correction.
3 The father has been employed seasonally as a paver for the
past thirty-one years as of the date of trial. The father's
substance abuse history spans over thirty years with his longest
period of sobriety being four years in the 1990s. The father
admitted that his substance abuse caused the failure of his past
relationships. The father's criminal history spans over forty
years, and he has been the subject of restraining orders issued
for the protection of the mother and other women.
In October 2018, Tanya, then five years old, was treated in
the emergency room at Morton Hospital suffering from extreme
agitation. The mother reported to hospital staff that Tanya had
become increasingly angry over the past month. When the
stepfather entered Tanya's hospital room, Tanya became
increasingly agitated, but the mother insisted that he stay.
Hospital staff filed a G. L. c. 119, § 51A, report (51A report),
alleging neglect of Tanya by the mother and the stepfather.3 The
next day, while still at the hospital, Tanya disclosed that she
had been sexually abused, and another 51A report was filed.
During the investigation, the mother reported that Tanya's
behavioral issues began after the father moved out and
coincided, as the judge found, with the stepfather moving into
3 The mother and the father had been the subject of prior 51A and G. L. c. 119, § 51B, reports and investigations. Those allegations of neglect were not supported.
4 the home. The reports of neglect and sexual abuse were not
supported by the department. Tanya was hospitalized for the
treatment of her behavioral issues and anxiety, and on several
subsequent occasions for vision, neurological, and autoimmune
conditions.
In November 2018, a neighbor filed a 51A report alleging
neglect of the children by the mother and the stepfather, and
reported that the children were locked in their rooms for
extended periods of time yelling and screaming while the mother
used crack cocaine and the stepfather used fentanyl. The
department investigated and found that Devin often arrived at
daycare without diapers, clothes, and supplies, and, at times,
arrived at daycare unclean and smelling of urine. Tanya often
arrived at school with dirty hair and clothes and without her
backpack or folder. On December 18, 2018, the department
supported the neighbor's allegations of neglect of the children.
On December 19, 2018, school personnel filed two 51A
reports alleging neglect of Tanya by the mother and sexual abuse
of her by the stepfather, prompting the department to file this
care and protection petition of behalf of both children. When
the department arrived at the mother's home to take temporary
custody, the home smelled of urine, clothing was strewn all
over, and Devin smelled of urine and was dirty. During the
investigation, the mother told the department that Tanya's
5 allegations of sexual abuse were "lies." The mother also told
the department that the stepfather did not live in her home,
which was later discredited by the judge.
After the children were removed, action plans were created
for each parent, which included attending parenting classes,
mental health services, substance abuse services, and domestic
violence services. The action plans also sought to address both
the mother and the father's housing instability. Neither
parent, however, was able to successfully complete much of what
the plans hoped to accomplish. After the removal of the
children, for example, the father continued to suffer with
substance abuse and, often as a result, missed meetings with the
department, was inconsistent with visiting and staying in
contact with the children, had no contact with the department
between April and September of 2019, and again did not maintain
contact with the department for several months in 2021 and 2022.
The father admitted that he did not want to meet with the
department or his children when he relapsed, as he did in July
2019. He further admitted, and the judge found, that his use of
substances was "linked to his mental health" and that he turns
to substances to deal with problems and bad news. The father's
housing instability also continued after the children were
removed, and he resided at a residential treatment program that
could not accommodate children at the time of trial.
6 The mother also continued to struggle with many of the same
issues as she did at the time of the removal of the children.
She was homeless for long periods of time between removal and
the trial. At the time of trial, the mother was behind in
paying her utilities and other bills in Mississippi.4 The mother
relapsed on crack cocaine, missed numerous visits with the
children, and her mental health continued to deteriorate as
evidenced by the fact that police responded six times to her
home for mental health concerns at a time when she was not
engaged in mental health services. In Mississippi, the mother
continued to make poor choices about her partners as well as the
individuals she allowed into her home. Her untreated mental
health issues and instability were also evident at trial, as
demonstrated by her behavior in the court room, refusing to
answer some questions and leaving the courtroom during a social
worker's testimony.
Discussion. 1. Unfitness and the termination of the
mother's parental rights.5 "In deciding whether to terminate a
4 After the mother moved to Mississippi in March 2022, the department submitted two ICPC referrals to the State of Mississippi, but after a home study, the requests for placement of the children were denied based in part on concerns about the stability of her sobriety, failure to engage consistently with an individual therapist, and lack of local supports.
5 No issue regarding the father's fitness as of the time of trial is properly before us, as the father did not oppose or
7 parent's rights, a judge must determine whether there is clear
and convincing evidence that the parent is unfit, and, if so,
whether the child's best interests will be served by terminating
the legal relation between parent and child." Adoption of
Patty, 489 Mass. 630, 637 (2022), quoting Adoption of Ilona, 459
Mass. 53, 59 (2011). See Adoption of Arianne, 104 Mass. App.
Ct. 716, 720 (2024). "While a decision of unfitness must be
supported by clear and convincing evidence, . . . a judge's
findings will be disturbed only if they are clearly erroneous."
Adoption of Paula, 420 Mass. 716, 729 (1995). "A finding is
clearly erroneous when there is no evidence to support it, or
when, although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed" (quotation and
citation omitted). Adoption of Rhona, 57 Mass. App. Ct. 479,
482 (2003). "We give substantial deference to the judge's
findings of fact and decision, and will 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 Luc, 484
Mass. 139, 144 (2020), quoting Adoption of Ilona, supra at 59.
Parental unfitness is "determined by taking into
consideration a parent's character, temperament, conduct, and
appeal from the unfitness finding, and the father has not briefed that issue on appeal.
8 capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. 705, 711 (1993). Given that the termination of
parental rights is an "extreme step," a judge must decide
whether the parent is currently unfit and whether, "on the basis
of credible evidence, there is a reasonable likelihood that the
parent's unfitness at the time of trial may be only temporary"
(quotations and citations omitted). Adoption of Ilona, 459
Mass. at 59.
To start, to the extent that mother contends that some of
the judge's subsidiary findings of fact are clearly erroneous,
we note that the judge made extensive and comprehensive findings
supporting her determination that the mother was unfit to parent
the children. Even if we were to agree with the mother that a
few of the judge's subsidiary findings were clearly erroneous,6
the record as a whole amply supports the judge's ultimate
conclusion of parental unfitness. See Adoption of Helen, 429
Mass. 856, 859-860 (1999).
Turning to the mother's specific claims of error, the
mother argues that because she owns a trailer in Mississippi,
the judge's conclusion that the mother's "housing instability is
6 For example, the mother correctly points out that the judge's finding that she had claimed to have obtained an associate's degree was clearly erroneous; the mother testified that she "almost" had obtained two of them.
9 longstanding and contributes to [her] parental unfitness" was
unsupported by the evidence. There was no error. The judge was
entitled to factor in the mother's struggles throughout most of
the proceedings with homelessness, her struggles to stay current
on her bills, as well as the effect her substance abuse had on
her ability to keep cash on hand and keep current on said bills
in assessing this factor against the mother. See Adoption of
Helen, 429 Mass. at 860 n.7 (judge's assessment of weight to
give mother's progress entitled to deference). See also
Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting
Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) (while
"stale information cannot be the basis of a finding of current
parental unfitness . . . [p]rior history . . . has prognostic
value").
We discern no error or reliance on stale information in the
judge's conclusion that the mother's "refusal to terminate her
relationship [with the stepfather] contributed to the children
remaining in [the department's] care." The mother's contention
that she "extricated herself from her relationship with [the
stepfather]" is contrary to the judge's findings. A judgment
dismissing the mother's divorce petition was issued in late
December 2022, one month before the trial, and, as the judge
noted, the mother remained legally married to him.
10 The mother also argues that the judge erred by relying on
stale evidence about her substance use disorder, which she
claims was under control by March 2022. The judge did not,
however, credit the mother's testimony that she had been sober
since March 2022 or that she was regularly attending Narcotics
Anonymous (NA) meetings as required by her action plan. And
given the evidence to the contrary, including her failure to
engage in two toxicology screens in any given month as promised,
her failure to appear at numerous appointments, her failure to
participate in outpatient treatment to verify her sobriety as
requested by the department, and her conflicting testimony about
her attendance at NA along with lack of any recent documentation
verifying her attendance, the judge's finding that substance
abuse remained an issue for her was well-supported. See Custody
of Eleanor, 414 Mass. 795, 799 (1993) (judge's assessment of
credibility of witnesses is entitled to deference).
We conclude that the judge's ultimate finding of unfitness
is supported by the record. In finding the mother currently and
indefinitely unfit, the judge relied on several appropriate
factors and considered them in the context of the children's
particular needs. The judge relied primarily upon the mother's
substance use disorder and mental health issues, "which
prevent[ed] [her] from providing continuous care to the[]
children," from attending visitation to the detriment of her
11 children, and from being a "consistent force[]" in the
children's lives.7 The years of substance abuse by the mother
resulted in the neglect of the children while in her care, as
the children were often unclean, smelled of urine, and were sent
to daycare and school without necessary supplies. See Petitions
of the Dep't of Social Servs. to Dispense with Consent to
Adoption, 399 Mass. 279, 289 (1987) (evidence of parent's
failure to keep stable home life for children and maintain
visitation schedules are "relevant to the determination of
unfitness"). The judge also relied on the mother's inability to
keep her own appointments and her inconsistency in services to
find that the mother would likely not be able to schedule and
maintain the numerous services necessary to care for the special
needs of the children in the future. The evidence amply
supported the judge's conclusion that the mother's character,
temperament, and capacity inhibited her from assuming parental
responsibility that would further the children's best interests.
The mother also claims that the judge improperly rejected
most of her testimony and evidence without explanation. She
also takes issue with the judge's failure to discredit the
testimony of a department social worker despite its
7 These findings demonstrate that, contrary to the mother's argument, the judge made the necessary findings concerning the nexus between the mother's shortcomings and harm to the children.
12 inaccuracies. We are not persuaded, as these arguments "amount
to no more than a disagreement with the judge's weighing of the
evidence and credibility determinations regarding witnesses."
Adoption of Don, 435 Mass. 158, 166 (2001).
In any event, contrary to the mother's claim, the judge did
not ignore evidence favorable to the mother. The judge
acknowledged that the mother had engaged in some treatment
including, at times, attending individual and weekly therapy
sessions. Unfortunately, the mother was not consistent in her
attendance. Also, despite a self-reported sobriety date of
2019, the mother was arraigned on a charge of possession of a
class B substance in 2020, and she admitted to marijuana use
while pregnant in 2020. The mother also admitted to purchasing
Vicodin and Percocet "off the streets" in 2021, using crack
cocaine in 2021, and using substances in 2022.
The judge fairly considered what the mother had
accomplished, but also fairly considered what the mother had
failed to accomplish. "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." Adoption of Ilona, 459 Mass. at 59-60.
See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019)
(parent's failure to benefit from services is "relevant to the
13 determination of unfitness" [citation omitted]). The judge did
not err in concluding that the mother's failure to engage in and
complete treatment for the very issues that resulted in her
separation from her children supported the conclusion that the
children would be subjected to the risk of abuse and neglect if
they were reunited with the mother. The evidence was clear and
convincing and amply supported the judge's determination that
the mother was unfit to parent the children and that her
unfitness was not temporary.
We also discern no clear error in the judge's
determination, supported by clear and convincing evidence, that
the termination of the mother's parental rights was in the best
interests of the children. The judge made numerous findings,
the vast majority of which are uncontested, describing the
children's environment when the mother was their primary
caregiver as including -- a minimally clean home and dirty,
unkempt children and parents; the presence of unfamiliar
homeless persons in the home; inconsistent attention to the
children's services; and the mother sending the children to
school without necessary supplies and being unavailable to
collaterals. All of these conditions culminated in neglect of
the children, and the mother failed to meaningfully engage in
the department's plan to address her deficiencies. The judge
evaluated the provisions of G. L. c. 210, § 3 (c), and found
14 factors (ii), (iii), (iv), (vi), (vii), (viii), (x), and (xii),
to be applicable. The record supports the determination that
termination of the mother's parental rights was in the
children's best interests.
2. Additional time. The mother also argues that the
termination of her parental rights was premature, as she should
have been given additional time to work with the department
after receiving notice that the Mississippi Department of Child
Protective Services had denied placement. We are not persuaded.
To start, the judge granted three motions to continue the trial
submitted by the mother; the third continuance granted in May
2022 was based on the pending ICPC. After the denial of the
ICPC placement requests, the judge continued the trial again in
November 2022 on the motion of the father, resulting in
additional time for mother to establish herself in Mississippi.
The mother cites no authority that would have required the
judge, sua sponte, to give her additional time to engage in
services in Mississippi or to establish deeper ties in the
community. We find no support in the law for the proposition
that a parent is entitled to additional time to engage in
services after the judge has appropriately concluded that the
parent's unfitness is not temporary. We therefore see no abuse
of discretion.
15 3. Claims that the decrees and the rule 60 (b) order are
void. On appeal, the children claim that the judge should have
found that the amended decrees are void because the children's
due process and other legal rights were violated where, among
other things, they were unable to challenge the denial of the
adverse ICPC placement decisions pursuant to Mass. R. Civ. P.
60 (b), 365 Mass. 828 (1974), and were denied the right to
appointed counsel in Mississippi to mount a challenge. These
arguments are not properly before us for two reasons. First,
these arguments were raised before the single justice, and she
did not give the children, or the parents leave to seek relief
in the Juvenile Court on this basis. Second, the children did
not raise these issues with the trial judge before the decrees
entered. See R.W. Granger & Sons, Inc. v. J & S Insulation,
Inc., 435 Mass. 66, 73-74 (2001); Adoption of Larry, 434 Mass.
456, 470 (2001). In any event, the children and the parents,
each represented separately by appointed counsel, had the full
opportunity to challenge the "flawed" home study, the process,
and the adverse placement decisions at the best interests trial.8
There was no error in the judge's conclusion that the amended
8 We also note that the ICPC decisions were just one factor among many relied upon in finding the mother unfit and terminating her parental rights.
16 decrees were not void and, therefore, there was no basis to
conclude that the rule 60 (b) order was void.
4. Motion to vacate decrees. While the direct appeal of
the decrees was pending, the father, the mother, and the
children moved jointly to stay the appeal and for leave to file
a motion for relief from judgment. A single justice of this
court allowed the motion, but "limited solely to the issue of
whether the father's current circumstances justify relief from
the decree." After a nonevidentiary hearing, the same Juvenile
Court judge that presided over the trial denied the motion. The
father and the children now appeal from the order denying the
rule 60 (b) motion.
We review the denial of a motion for relief from judgment
"for a clear abuse of discretion" (citation omitted). Adoption
of Quan, 470 Mass. 1013, 1014 (2014). Rule 60(b) allows for
relief from a final judgment or decree "only in extraordinary
circumstances." Care & Protection of Georgette, 54 Mass. App.
Ct. 778, 788 (2002), S.C., 439 Mass. 28 (2003). The judge has
substantial discretion in deciding a rule 60 (b) (6) motion,
including whether to hold an evidentiary hearing.9 See id. at
787.
We discern no abuse of discretion or error in the judge's 9
decision not to hold an evidentiary hearing here. The single justice gave the judge discretion "to hold whatever proceedings
17 Here, the judge's extensive factual findings and
conclusions of law issued in support of the original decrees,
which she continued to stand by, coupled with the judge's
reasoning in her decision on the motion to vacate, provide an
adequate basis for the judge's decision that the father did not
establish the required post-trial "extraordinary circumstances"
warranting relief from the decrees. The father and the children
have not met their burden of showing that the motion judge --
the same judge who presided over the care and protection
proceedings and the trial terminating his parental rights --
committed a clear abuse of discretion in denying the motion.
First, the judge did not abuse her discretion in finding
that relief from the decrees was not warranted because of the
father's continued sobriety (a period covering, by the father's
account, at most two years at the time the rule 60 [b] motion
was filed). The judge noted in her original findings that the
father has had a substance use disorder for over thirty years.
On several occasions, the father stopped using substances (on
deemed necessary to decide the motion." As the father concedes, an evidentiary hearing was not required. See Adoption of Marc, 49 Mass. App. Ct. 798, 800 (2000). The judge's decision on the rule 60 (b) motion, moreover, demonstrates that she considered and credited the evidence of many improvements documented in the father's affidavit, negative drug screens, and letters from the father's therapist, sponsor, and residential treatment program, but nevertheless found the evidence inadequate to show material changes rising to the level of extraordinary circumstances that would justify relief.
18 one occasion in the 1990s for a four-year period), but he always
relapsed. His substance abuse, which is linked to his mental
health, prevented him from having any contact with the children
for lengthy periods. The judge could reasonably have inferred
that the father's consistent history of relapsing had prognostic
value. See Adoption of Jacques, 82 Mass. App. Ct. at 607-608.
Additionally, the father's substance abuse was not the sole
reason for the finding of unfitness and the termination of his
parental rights. The father's failure to treat his mental
health consistently was an important factor as well. To the
extent the father argues that he has made substantial
improvements, the father has never been the primary caretaker of
the children, each of whom has specialized needs. While he
successfully engaged in services in the structured residential
treatment program and the graduate house,10 he admits that in the
past he has turned to substances in stressful situations. As of
the hearing date, he was still unable to provide a safe housing
environment for his children. Indeed, stable housing was
10The father demonstrated that he had been in therapy and counseling for almost two years at the time of the hearing, and the judge commended him for doing well. However, the judge was understandably skeptical that any great progress had been made in such a short period of time, especially in light of the father's admittedly erratic past attempts at counseling. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (despite recent cooperation and good intentions no error where record supported judge's finding that parents had not made sufficient progress).
19 something the children never experienced while in the father's
care. In short, the judge did not abuse her discretion in
concluding that the decrees should stand despite the father's
claim that he made great progress.
We also discern no undue reliance on the delay in filing
the rule 60 (b) motion or on principles of finality. The judge
based her order primarily on the father's lack of a meritorious
contention that would alter her detailed and extensive findings
and determinations embodied in the original decrees -- a
decision she noted that remained unchanged by the children's
lack of definite placements.11
To the extent that the father further argues that the
motion should have been allowed because of the disruptions in
the department's adoption plans, the department is not required
to relitigate the rights of an unfit parent simply because of
changes in the plans, particularly where, as here, there is no
extraordinary change shown in that parent's fitness. The judge
did not abuse her discretion in denying the motion on this
basis.
11The father's "perfunctory" argument that the decree terminating his parental rights should be vacated because it is "no longer equitable" is unavailing. See Adoption of Yvonne, 99 Mass. App. Ct. 574, 585 n.18 (2021).
20 5. The children's changed circumstances. As the
children's attorney admitted at the hearing on the rule 60 (b)
motion, the children's current status was not properly before
the judge in that proceeding.12 See Adoption of Nate, 69 Mass.
App. Ct. 371, 375, 377 (2007) (department's lack of progress in
securing placement for child was not grounds to vacate
termination decree; proper procedure for addressing department's
progress in developing plans for children is permanency hearing
under G. L. c. 119, § 29B). See also Adoption of Scott, 59
Mass. App. Ct. 274, 277 (2003) ("in the absence of extraordinary
circumstances . . . the [parent] may not rely on posttrial
changes in a proposed plan for the child to reopen the
proceedings"). For the same reason, the children's and the
father's arguments concerning the children's changed
circumstances are not properly before this court, and we do not
consider arguments that either plainly exceed the scope of the
12We note that these arguments also exceeded the scope of the single justice's narrow order. In response to arguments about the children's status, the judge retained jurisdiction over the case and advanced the permanency hearing, the appropriate forum for raising these issues. See G. L. c. 119, § 29B.
21 single justice's order or that could have but were not raised at
trial.
Amended decrees affirmed.
Order denying rule 60 (b) motion affirmed.
By the Court (Meade, Neyman & Walsh, JJ.13),
Clerk
Entered: December 5, 2025.
13 The panelists are listed in order of seniority.