ADOPTION OF TANYA (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

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.

22