ADOPTION OF TAHI (And a Companion Case).

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.

13