Adoption of Jody.

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-1373

ADOPTION OF JODY. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the mother

was unfit to parent her son, Jody, and that his best interests

would be served by the termination of her parental rights. The

mother appeals from the decree, arguing that the judge's

unfitness determination relied on conclusions about her mental

health, despite insufficient factual findings on that issue.

Because the judge found that the mother failed to seek

evaluation or treatment for her mental health concerns, as

opposed to finding she had a specific mental health diagnosis,

we conclude the record amply supported the judge's finding of

unfitness and affirm.

Background. We set forth the facts found by the Juvenile

Court judge after trial, saving some facts for later discussion.

1 A pseudonym.
In February 2023, the mother gave birth to the child. The

mother named the child after her romantic partner, whom she

believed to be his biological father. However, the partner was

not listed as the father on the child's birth certificate.

By the time the child was born, the mother had struggled

with substance misuse for most of her life. At the child's

delivery, the mother tested positive for cocaine and fentanyl,

and she was administered methadone to offset withdrawal.

Because the child tested positive for cocaine at birth, a report

alleging neglect pursuant to G. L. c. 119, § 51A, was filed with

the Department of Children and Families (DCF), which took

emergency custody of the child. In an interview with a DCF

investigator, the mother admitted to using fentanyl two or three

times per day over the past year. The mother also said that she

had been living in various motel rooms.

For more than a week following the child's birth, the

mother stayed in the hospital and continued to test positive for

fentanyl, opiates, and methadone. Hospital workers soon

discovered empty syringes and needles in the mother's room, and

they became concerned about the mother's ongoing substance

misuse. Ten days after the child was born, the mother went

outside the hospital without authorization to meet the partner

for what she claimed was a "smoke break." After the mother

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returned to her room, a nurse saw three methadone pills fall out

of her hand.

On February 23, 2023, at a seventy-two hour hearing, a

judge granted custody of the child to the partner, on the

condition that he not permit contact between the mother and the

child without DCF supervision. Less than two weeks later,

police officers responded to a domestic violence report of a

woman striking a man on the head several times in a department

store parking lot. When officers arrived, they saw that the

partner had fresh, bloody scrapes on his face and was holding

the child, who was about one month old. The police arrested the

mother for domestic assault and battery as well as on three

outstanding warrants. Later, the partner admitted to DCF that

the mother had hit him. Because the partner allowed the mother

to have unsupervised contact with the child, he was removed from

the partner's custody and placed in a DCF foster home, where he

has since remained.

In May 2023, DCF provided the mother with an action plan

that tasked her with, among other things, participating in a

substance abuse program, undergoing a psychological evaluation,

and engaging in weekly mental health counselling. Over the next

seven months, the mother failed to engage in those services, did

not communicate regularly with DCF, and did not visit the child.

3
Meanwhile, in November 2023, paternity testing revealed

that the partner is not the child's biological father. The

child's biological father remains unknown. Up to this point,

the mother had not visited the child; she testified that she did

not do so because she believed her partner was the child's

father and would get custody of him. The mother canceled many

scheduled visits with the child and meetings with the DCF social

worker.

On January 3, 2024, when the child was about eleven months

old, the mother visited him for the first time. Following that

visit, the mother resumed her pattern of canceling meetings with

the child and DCF and testified at trial that she did so because

she was either hospitalized or incarcerated. The judge did not

credit the mother's testimony that she would have visited the

child regularly if not for hospitalization or incarceration.

On January 30, 2024, DCF changed its goal for the child

from reunification to adoption. DCF's adoption plan proposed

that the child be adopted by his maternal aunt, who previously

adopted one of the mother's older children. The child's foster

parents support his placement with the aunt, and if for some

reason the aunt cannot adopt the child, they will consider

adopting him.

Four days before trial, the mother reported to DCF that she

had scheduled a future appointment with a psychiatrist. That

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day, the mother signed releases for DCF to obtain her treatment

records, 2 and she visited the child for the second time. Based

on the mother's having visited the child only twice during the

year following his removal, the judge found that the mother "has

no apparent relationship with the child."

After a March 2024 trial, a Juvenile Court judge terminated

the mother's parental rights, and those of any unknown or

unnamed father, and approved DCF's plan for the adoption of the

child. The judge found that the mother suffered from pervasive,

untreated substance misuse, as shown by her history of using

fentanyl, cocaine, and heroin, and her testimony admitting to

having used fentanyl as recently as March 8, 2024. In addition

to the mother's untreated substance misuse, the judge based his

rulings on the mother's domestic violence, criminal history,

homelessness, unemployment, and failure to visit the child. The

mother appeals from the decree terminating her parental rights.

Discussion. The mother argues that the judge's findings of

fact and conclusions of law improperly relied on unsupported

concerns about her mental health. She also contends the judge

2 The mother reported that in December 2023 she began
medication-assisted treatment for her substance misuse. Shortly
before trial, she signed a release for DCF to obtain those
records. However, the release was not signed by a clinician,
and so DCF could not use it to obtain the records. Also shortly
before trial, the mother signed a release for DCF to obtain her
hospital records, but as of trial DCF had not done so.

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did not establish a nexus between her mental health and her

unfitness as a parent.

"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" (citation omitted). Adoption of Yalena,

100 Mass. App. Ct. 542, 549 (2021). "We give substantial

deference to a judge's decision that termination of a parent's

rights is in the best interest of the child, and reverse only

where the findings of fact are clearly erroneous or where there

is a clear error of law or abuse of discretion." Adoption of

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

The mother argues that out of the judge's one hundred

enumerated findings of fact, "not a single one relates to or

even mentions Mother's mental health." In making that argument,

the mother apparently ignores the facts on that subject set

forth in the introductory section of the judge's findings of

fact and in his conclusions of law. Moreover, in the findings

of fact section, the judge did make findings relevant to the

mother's mental health. The judge found that the mother "has

not completed a psychological evaluation" and "has not

participated in . . . therapeutic services." The judge also

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found that shortly before trial the mother told the DCF social

worker that she had scheduled a future appointment with a

psychiatrist. 3 In light of the judge's finding that the mother

had a longstanding pattern of "making claims and not following

through," the judge was not required to conclude that the

mother's scheduling a single psychiatric appointment amounted to

meaningfully engaging in services. See Custody of Two Minors,

396 Mass. 610, 621 (1986) ("The court is permitted to assess

prognostic evidence derived from prior patterns of

parental . . . misconduct in determining future fitness").

These findings did relate to the mother's mental health, and

they supported the judge's conclusions of law that followed.

See Adoption of Luc, 484 Mass. 139, 147 (2020) (mother's failure

to provide DCF with psychological evaluation was relevant to

unfitness inquiry).

In his conclusions of law, the judge stated: "Despite

Mother's ongoing mental health concerns, she has never

meaningfully engaged in mental health or therapeutic services.

She has never completed a psychological assessment to even gain

an understanding of what her mental health needs or possible

3 The judge did not hear evidence as to whether the mother
attended that appointment. That fact is immaterial to our
analysis.

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diagnoses are." 4 Thus, the judge expressed that the mother had

mental health "concerns," which could be alleviated or treated

by her engaging in the services recommended on her action plan.

Contrary to the mother's assertion that the judge "erroneously

determined . . . that Mother has mental health issues," the

judge's references to the mother's "ongoing mental health

concerns" did not amount to a conclusion that she had a mental

health disorder. See Adoption of Yvonne, 99 Mass. App. Ct. 574,

580 (2021) (considering incidents of "concerning behaviors"

without reaching conclusion that mother had mental health

disorder). Here, the judge made no finding that the mother

suffers from "a particular condition" (citation omitted).

Adoption of Zoltan, 71 Mass. App. Ct. 185, 191 (2008) (mother's

alleged anger management issues not significantly supportive of

unfitness). The judge's decision, therefore, did not rely on

the mother's mental health as an "improper factor." Adoption of

Eden, 88 Mass. App. Ct. 293, 296 (2015) (unproven allegation of

sexual abuse was improper factor).

4 The mother also challenges the following conclusions:
(1) "Mother has not demonstrated any observable changes as to
insight into her shortcomings, . . . [including] mental health";
(2) "Mother's lack of insight into her . . . mental health . . .
continue[s] to put the child at risk of further harm"; and
(3) "Mother's mental health and sobriety are a concern to this
Court."

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Rather, the significance of the judge's references to the

mother's mental health concerns is that the mother failed to

seek diagnosis of or treatment for those concerns. See Adoption

of Luc, 484 Mass. at 145 (affirming termination decree where

judge considered parent's "ongoing pattern of untreated mental

health and substance use disorders"). See also Adoption of

Leonard, 103 Mass. App. Ct. 419, 423 (2023) (no error in finding

that parent's untreated mental health issues endangered child).

Given the evidence that the mother did not take any diagnostic

or preventative care of her mental health, by way of a

psychological evaluation or other services, the judge was

warranted in concluding that the mother had no "understanding of

what her mental health needs or possible diagnoses are." See

Adoption of Yalena, 100 Mass. App. Ct. at 552-553 (considering

parent's "minimal insight into her parenting deficits" and lack

of "any measurable improvement"). See also Adoption of Flavia,

104 Mass. App. Ct. 40, 48-50 (2024) (considering parent's

inability to recognize severity of her addiction).

The mother's failure to investigate her mental health also

demonstrated "unwillingness to adhere to DCF's service plan,

which . . . is relevant to the determination of unfitness"

(quotation and citation omitted). Adoption of Luc, 484 Mass. at

147. Though the mother contends there is "scant evidence"

showing that DCF was concerned about the mother's mental health,

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the record shows otherwise. DCF's action plan included tasks

targeting the mother's mental health. Yet the mother did not

engage in the recommended services and often failed to

communicate with DCF, leaving DCF to conclude that she was

noncompliant. See Adoption of Oren, 96 Mass. App. Ct. 842, 845

& n.5 (2020) (parent's failure to participate in therapy, as

required by her action plan, was relevant to fitness inquiry).

Even if the judge's lack of a more specific finding as to

the nature of the mother's "mental health concerns" amounted to

error, we would consider it nonprejudicial. See Adoption of

Breck, 105 Mass. App. Ct. 652, 663 n.7 (2025). Cf. Adoption of

Bea, 97 Mass. App. Ct. 416, 426-427 (2020) (given "extensive"

findings supporting unfitness, any error in admission of expert

testimony was harmless). The judge's decision was "amply

supported" by subsidiary findings pertaining to the mother's

substance misuse, homelessness, criminal history, domestic

violence, and failure to visit the child, and each of those

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findings was supported by the record. Adoption of Helen, 429

Mass. 856, 859 (1999).

Decrees affirmed.

By the Court (Ditkoff, Hand &
Grant, JJ. 5),

Clerk

Entered: July 30, 2025.

5 The panelists are listed in order of seniority.

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