Adoption of Paloma.

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-156

ADOPTION OF PALOMA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge issued decrees finding the mother

and the father unfit to parent their daughter (child) and

terminating their parental rights. The mother appeals, arguing

that the Department of Children and Families (department) failed

to meet its burden of proving her unfitness.2 We affirm.

Background. The mother has a lengthy history with the

department. She lost custody of her eldest child (son) after

several reports under G. L. c. 119, § 51A (§ 51A reports), were

filed against her and supported by the department. In June 2014

a § 51A report was filed alleging that the mother's then

boyfriend threw the son, only one month old, at the mother and

1 A pseudonym.

2The father filed a notice of appeal but did not file a
brief or otherwise participate in the appeal.
then hit her across the face in the son's presence. In

September 2014 a second § 51A report was filed alleging that the

mother smoked marijuana while caring for the son, left home in

the middle of the night without securing a caregiver for him,

yelled at him, and practiced unsafe sleeping practices,

including co-sleeping. After finding these allegations to be

supported, the department obtained temporary custody of the son.

Custody was returned to the mother in September 2015, but a

month later several additional § 51A reports were filed alleging

that the mother smoked marijuana while caring for the son, left

him in the care of her mother (maternal grandmother) for long

stretches of time, was verbally abusive toward family members,

and left the maternal grandmother's home and took the son to

Boston without food, clothing, or a place to stay. During its

investigation the department learned that the mother was seeing

a therapist and was diagnosed with bipolar disorder, but refused

to take her prescribed medication and instead self-medicated

with marijuana. The department supported the reports and opened

a case for services.

After the mother refused to engage with services, the

maternal grandmother obtained custody of the son in October

2015. By the time the case was closed in July 2016, the mother

had not met with the department consistently for over six months

and had failed to update her contact information, obtain stable

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housing, complete a substance abuse evaluation, or follow

through with recommendations from her neuropsychological

evaluation. The maternal grandmother refused to allow the

mother to visit the son until the mother engaged in treatment to

address her "aggressive behaviors."

The mother became involved with the department again in

October 2018 when she gave birth to twin girls, including the

child. A § 51A report was filed alleging that the mother tested

positive at delivery for tetrahydrocannabinol and that the

twins' meconium was positive for marijuana, which was consistent

with maternal drug use during the last four to five months of

pregnancy. The mother reported to a hospital social worker that

she was self-medicating her depression and anxiety with

unprescribed marijuana. Later, the department learned that the

mother had tested positive for marijuana at her obstetrician's

office in April, June, and August of 2018. The mother was told

at the time that her marijuana use could cause low birth weight.

While at the hospital after the delivery, the mother

reported that she and the father were living together in

Taunton. After initial phone calls with the parents, the

department attempted to schedule a home visit, but neither

parent returned the department's calls. A social worker made an

unannounced visit to the Taunton apartment but found no evidence

that the family lived there. When the mother finally responded

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to the department's numerous calls, she claimed that the family

was living at the Taunton apartment but had moved out

temporarily because the ceiling caved in. She further stated

that the family was staying with a friend in Carver but refused

to disclose the address.

On October 26, 2018, the mother met with a social worker

outside of the maternal grandmother's home. The mother admitted

to the social worker that she smoked marijuana to cope with her

anxiety and depression and reported that her "anxiety [was]

through the roof" and she was "more depressed." The social

worker was able to schedule a visit at the friend's home in

Carver where the family was temporarily living. There, the

social worker observed unclean conditions, including full trash

bags against the wall, objects strewn over the floor, and piles

of trash swept on the floor but not yet disposed of. The friend

reported that the family stayed with her three to four nights

per week and that she believed they were also living in Taunton,

Middleboro, and Attleboro. The mother denied this and claimed

that the friend's home was her only residence.

The next morning, November 7, 2018, the department learned

that the child's twin sister (twin) died during the night. The

parents had arrived at the hospital at about 1:30 A.M.,

reporting that they awoke to find the twin not breathing. She

was pronounced dead at 2:22 A.M. with an unknown cause of death.

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The parents inaccurately reported to the hospital that they

lived at an address in Taunton.

Upon learning of the twin's death, the department tried to

reach the parents, but its calls went unanswered. The mother

later admitted that she changed her cell phone number on the day

the twin died. The department decided to conduct an emergency

removal of the child but was unable to locate the parents at

their previously reported addresses. When a detective was able

to make contact with the parents, they refused to disclose their

whereabouts, stating that they were living in "Attleboro and

other places." On November 8, 2018, the State police were able

to track the parents' phones to a motel in Wrentham. When

officers and department workers arrived at the motel to take

custody of the child, they observed that the room was dark and

cluttered with piles of boxes and belongings. It appeared that

the family had been living there for some time.

The child was removed from the parents' custody, and the

department filed a care and protection petition the same day.

The next day, a social worker met with the parents to discuss

the reasons for the removal and the parents' interim action

plan. When the mother saw that the action plan mentioned her

prior department case involving the son, she became irate,

started swearing, and accused the social worker of targeting

her. At some point in November 2018, an autopsy revealed that

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the twin's cause of death was sudden infant death syndrome

(SIDS).3

After a seventy-two hour hearing, which extended over

several months and concluded in March 2019, the department

maintained temporary custody of the child. In July 2019 the

child's goal was changed to permanency through adoption because

the parents had not completed any action plan tasks or engaged

with any services. As a result the department was unable to

assess their ability to care for the child.

Throughout the pendency of the case, the mother made it

clear that she was not interested in working with the department

in any way and would communicate only to schedule parent-child

visitation. The mother also repeatedly engaged in threatening

and violent behavior toward department workers. During her

first visit with the child in December 2018, the mother became

upset when the social worker warned her not to have

inappropriate conversations in front of the child and said,

"Let's take this somewhere more appropriate," causing the social

worker to ask a police officer to intervene. At a visit in

February 2019, the parents became upset they were not informed

that the child was teething, and they became aggressive toward

the social worker. The mother called the social worker a

3 The exact date of the autopsy is unclear from the record.

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"fucking cunt" and a "bitch" and threw a backpack at her.

Despite multiple warnings, the mother did not calm down.

Because of the parents' behavior, the department temporarily

halted visitation until it could meet with the parents and their

attorneys, and it agreed to resume visitation only with a police

detail present.

The parents also made numerous threats to department

workers over the phone and in voicemails, causing the department

to put safety plans in place. In March 2019 the mother said to

the department's area program manager, "Fuck you. I hope you

die and get a bullet in your head." The mother further said

that, if the department did not bring the child to her

grandmother in Florida, it "would be hearing from [the]

[f]ather." When told that this language was threatening, the

parents replied, "We don't make threats. We make promises." On

another occasion the mother told a social worker, "This bitch

needs to watch her back because I'll get you."

The parents' anger and aggression interfered with

facilitating parent-child visits, and they refused to attend

visits except on their own terms. The parents claimed they were

only available for visits from 4 to 5 P.M. on Fridays or

Saturdays after noon. The department made a referral to a

visitation center, which offered the parents a biweekly slot on

Mondays from 4 to 6 P.M. The mother declined, stating, "I need

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to do things for myself after work hours"; when asked whether

she could do 5 P.M., the mother stated she was "unavailable."

The mother did not visit with the child for six months beginning

in September 2019. When she did attend visits, she sometimes

arrived late and took the position that "[n]othing comes before

work." She also had concerning interactions with the child

during visits. On one occasion the mother refused to give the

child a bottle and became angry when she realized that the child

was using a pacifier, both prescribed by the child's

pediatrician. When the child (then less than one year old)

started crying, the mother said, "Enough is enough." Another

time, when the child screamed and tried to get off the father's

lap, the mother told him to "restrain" the child because that is

how to discipline children and that, if the child wants to "hit

her head she can. She will have to learn the hard way."

At no time was the department able to view the parents'

home or confirm their whereabouts because they refused to

disclose their address or allow home visits. After the case was

filed, the parents appeared to be moving between various motels,

but they did not allow the department to see where they were

living. The department made a referral to its housing

specialist, who tried to contact the parents three times in

December 2020 with no success.

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The department also made several attempts to address the

mother's mental health issues with therapy, but she declined.

The mother claimed that she was unable to participate because

she worked full time and that the father was her "therapist"

despite his having no specialized training. The mother admitted

at trial that she continued to consume marijuana in such large

amounts that "it would take a long time for the marijuana to

come out of her system."

In July 2020 the child was placed in a kinship preadoptive

home. At the time of trial, the child was up to date medically,

had no specialized needs, and had reached all developmental

milestones. The department conducted several visits of the

preadoptive home and reported it had no concerns about the home

or the family.

Discussion. "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." Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

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affections, and age." Care & Protection of Vick, 89 Mass. App.

Ct. 704, 706 (2016).

Here, the department met its burden of proving the mother's

unfitness by clear and convincing evidence. The department was

justified in removing the child on an emergency basis, in light

of the twin's death, the mother's substance use and mental

health issues, and her unclear housing situation.4 In the over

two years between the removal and the commencement of trial, the

mother refused to cooperate with the department or engage in

services, leaving the department unable to assess her ability to

parent the child. Where the department had legitimate concerns

about the child's safety and wellbeing in the mother's care, the

mother's total refusal to cooperate with the department was a

significant factor in assessing her fitness. See Adoption of

Rhona, 63 Mass. App. Ct. 117, 126 (2005). This is especially so

where the concerns raised in this case were the same ones that

led to the mother previously losing custody of her son. See

4 The mother acknowledges that the twin's death justified
the emergency removal of the child. To the extent the mother
argues that the department failed to make reasonable efforts to
return the child to her care after the autopsy revealed that the
twin died of SIDS, she did not file a motion raising this
argument in the trial court, nor did she file a petition to a
single justice of this court challenging the temporary custody
order. Any issues concerning the initial removal have now been
subsumed by the judge's decision after trial. The mother does
not challenge the judge's finding, based on the evidence at
trial, that the department satisfied its obligation to make
reasonable efforts.

10
Adoption of Diane, 400 Mass. 196, 204 (1987) ("The judge could

properly rely upon prior patterns of ongoing, repeated, serious

parental neglect . . . in determining current unfitness").

The department presented evidence that those concerns

persisted and went unaddressed during this case because of the

mother's failure to participate in services. The mother

continued to struggle with housing instability, was untruthful

or unforthcoming about her whereabouts, and would not allow a

home visit throughout the pendency of the case. Even when the

department provided a referral to a housing specialist, the

mother refused to engage. See Adoption of Oren, 96 Mass. App.

Ct. 842, 845 (2020) (inability to maintain stable housing may be

considered in determining parental fitness). The mother also

declined therapy to treat her mental health issues, continuing

instead to self-medicate with heavy marijuana use. "In addition

to mental health concerns, evidence of alcohol or drug use is

relevant to, but not dispositive of, 'a parent's willingness,

competence, and availability to provide care.'" Adoption of

Luc, 484 Mass. 139, 147 (2020), quoting Care & Protection of

Frank, 409 Mass. 492, 494 (1991).

Furthermore, the mother's behavior during these proceedings

supported the judge's conclusion that she lacked the temperament

and capacity to provide for the child's needs, especially when

considering the child's young age. See Care & Protection of

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Vick, 89 Mass. App. Ct. at 707-708. The judge made detailed

findings about the mother's verbal and physical abuse of

department workers, which often occurred in front of the child.

See Adoption of Yvonne, 99 Mass. App. Ct. 574, 580 (2021)

(proper for judge to consider mother's threats to department

staff in assessing her fitness). The judge further found that

the mother was "combative and disruptive" throughout trial,

showing that her "violence of temper" persisted. See id. ("A

parent's behavior during trial and her ability to manage anger

are relevant to parental fitness"). The mother's violent and

threatening conduct necessitated a police detail during parent-

child visitation, which affected the number of visits that the

mother could have with the child. In addition, the mother's

unreasonable limitations on when she would attend visits

resulted in long stretches of time where she did not see the

child, which the mother acknowledged was detrimental to

developing a bond between them. The mother's attitude toward

visits demonstrated her lack of focus on parenting the child and

her inability or unwillingness to put the child's needs above

her own. See Care & Protection of Vieri, 92 Mass. App. Ct. 402,

405 (2017) (parent's inconsistent attendance at visits relevant

to determination of unfitness). The mother also displayed a

lack of understanding of the child's needs during the visits she

12
did attend, yet declined to participate in a parenting class,

claiming there was no need for it.

This "constellation of factors" established the mother's

unfitness by clear and convincing evidence. Adoption of Greta,

431 Mass. 577, 588 (2000). Although the mother was undoubtedly

grieving the loss of the twin, her failure to engage with her

action plan tasks for years left her parenting deficits

unaddressed and prevented her from assuming parental

responsibility for the child. The judge thus did not err in

finding the mother unfit. For the same reasons, the judge was

within her discretion to conclude that the mother's unfitness

was not merely temporary and that termination of her parental

rights would serve the child's best interests. See Adoption of

Ilona, 459 Mass. 53, 59-60 (2011).

Decree affirmed.

By the Court (Rubin, Shin &
Hodgens, JJ.5),

Clerk

Entered: January 14, 2025.

5 The panelists are listed in order of seniority.

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