Adoption of Yolanda.

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

22-P-722

ADOPTION OF YOLANDA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree of the Juvenile Court

finding her unfit to parent her child, Yolanda; terminating her

parental rights as to Yolanda; and approving the adoption plan

proposed by the Department of Children and Families (DCF or

department).2 We affirm.

Background. Yolanda was born in August 2013. On May 11,

2017, DCF filed the instant care and protection petition and

obtained emergency custody of Yolanda based on concerns

regarding domestic violence between the mother and father in

Yolanda's presence, the mother's substance use, and the mother's

untreated mental health issues. A seventeen-day trial regarding

the termination of the mother's parental rights was held between

August 16, 2021, and October 28, 2021, during which the judge

1 A pseudonym.
2 The child's father did not appeal from the earlier termination
of his parental rights and is not a party to this appeal.
admitted eighty-three exhibits3 and heard testimony from eight

witnesses, including the mother.4 On November 22, 2021, the

judge found the mother unfit to parent Yolanda, adjudicated

Yolanda in need of care and protection, terminated the mother's

parental rights, dispensed with the need for parental consent to

adoption, approved DCF's proposed adoption plan for Yolanda to

be placed with her foster mother, and ordered four

posttermination visits per year. The mother's appeal followed.

Discussion. "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). When determining

whether to take the "extreme step of terminating the parent and

child's legal relationship . . . it is appropriate for a judge

to consider 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). Care & Protection of Zeb, 489 Mass. 783, 788 (2022).

3 One exhibit was withdrawn and two others were stricken during
the trial.
4 The mother did not appear for trial on three dates due to

migraines.

2
"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). When

reviewing such determinations, "the judge's assessment of the

weight of the evidence and the credibility of the witnesses is

entitled to deference." Custody of Eleanor, 414 Mass. 795, 799

(1993).

The mother argues that the evidence did not clearly and

convincingly support the judge's finding that she is unfit to

parent Yolanda. Specifically, she contends that the judge

erroneously (1) based her determination of unfitness on DCF's

general concerns regarding her compliance with and benefit

received from services, and (2) relied on past circumstances and

speculation, failing to account for the mother's "recent

positive gains."5 Adoption of Paula, 420 Mass. 716, 731 (1995).

We disagree.

5 The mother also challenges the judge's subsidiary findings of
fact nos. 128 through 138 regarding her failure to consistently
and timely provide signed releases to DCF. While the mother
provided limited releases at certain points throughout the
pendency of this case, the record demonstrates that the mother
repeatedly failed to provide timely, full releases with respect
to her treatment and hospitalization upon DCF's request. See
Adoption of Larry, 434 Mass. 456, 462 (2001) (finding is clearly
erroneous where "there is no evidence to support it," or
reviewing court "is left with the definite and firm conviction

3
The judge made extensive findings6 supporting her conclusion

that the mother was unfit by clear and convincing evidence. The

record supports the judge's findings that, inter alia: the

mother has a history of abusive relationships and substance

misuse; she has repeatedly failed to acknowledge her own

substance use and the harm to Yolanda caused by exposure to

domestic violence; she has not consistently engaged with

required services or provided timely, full releases to the

department; her economic situation is unstable; she has failed

to meaningfully address her own physical and mental health

issues; she has not been forthcoming to her providers or the

department about her mental health; and she has had issues with

confirming visits, arriving on time, and having inappropriate

conversations with Yolanda wherein she has invalidated Yolanda's

exposure to domestic violence. Furthermore, the judge properly

considered the required factors set forth in G. L. c. 210,

§ 3 (c), and found factors (ii), (iii), (iv), (vi), (vii),

(viii), (x), and (xii) applicable to her determination that the

that a mistake has been committed" [citation omitted]); Adoption
of Yalena, 100 Mass. App. Ct. at 547 n.10. "[T]he judge's
assessment of the weight of the evidence and the credibility of
the witnesses is entitled to deference." Custody of Two Minors,
396 Mass. 610, 618 (1986).
6 The judge made 406 findings of fact and forty-six conclusions

of law that "are both specific and detailed, demonstrating, as
we require, that close attention was given to the evidence."
Adoption of Don, 435 Mass. 158, 165 (2001).

4
mother was unfit. We discern no clear error in the judge's

finding that the mother is unfit to parent Yolanda, a finding

that is supported by clear and convincing evidence.

There is no merit to the mother's argument that the judge

erroneously based her unfitness determination on DCF's general

concerns regarding the mother's compliance with and benefit

received from services. It is clear from the judge's thoughtful

and comprehensive findings that her determination of unfitness

was based on a "constellation of factors." Adoption of Greta,

431 Mass. 577, 588 (2000). Furthermore, the record supports the

judge's determination that while the mother participated in some

services, she did not gain "sufficient insight into how those

services impact her daily life or have changed her parental

abilities."7 Despite her participation in domestic violence

programs, for example, the mother has continually minimized the

extent of the abuse she suffered, failed to maintain a

restraining order against the father, and invalidated Yolanda's

7 The judge stated in her conclusions of law that "[e]ven when
parents substantially comply with service plans, they may still
be found unfit if they do not demonstrate that they have
benefitted from the services provided." To be clear, the burden
to prove current parental unfitness by clear and convincing
evidence is on the department, and "[t]hat burden never shifts
to the parents." Adoption of Lorna, 46 Mass. App. Ct. 134, 139
(1999). Notwithstanding the judge's use of the word
"demonstrate," we discern no clear error or abuse of discretion
where there was evidence in the record to support the judge's
determination that the mother did not sufficiently "benefit from
services aimed at remediating her parenting deficits."

5
exposure to domestic violence during visitation. See Adoption

of Paula, 420 Mass. at 730 (mother's participation in services

"had not appreciably improved her capacity to 'meet the complex

emotional and physical needs of her children'").

Contrary to the mother's assertion, the judge did consider

the mother's "recent positive gains." Adoption of Paula, 420

Mass. at 731. The judge acknowledged, for example, that the

mother has lived in the same apartment for the last three years,

she has not had reported contact with the father since 2019, and

she has been more consistent with participation in services

since March of 2020. However, "the judge was entitled to

consider the evidence of her recent improvements within the

context of her earlier and continuing deficits." Adoption of

Jacques, 82 Mass. App. Ct. 601, 608 (2012). See Custody of Two

Minors, 396 Mass. 610, 621 (1986) (judge may properly consider

"prognostic evidence derived from prior patterns of parental

neglect or misconduct in determining future fitness and the

likelihood of harm to the child"). "Based on the judge's

findings in this instance, it is apparent that the mother's

gains were offset by continuing deficits, many of which were

highlighted by the mother's lack of credibility on a number of

fronts."8 Adoption of Jacques, supra.

8 The judge found the mother to be not credible with respect to
her testimony that she, inter alia: has not been in a

6
Throughout the pendency of this case, Yolanda has had

seventeen different placements due in large part to her

specialized needs associated with her posttraumatic stress

disorder and "high-risk behaviors" including self-harm,

aggression toward people and animals, and lying. Since moving

in with her preadoptive mother in March 2019 and engaging in

therapeutic services, however, Yolanda's behavior and ability to

express herself verbally have improved significantly. The

record supports the judge's finding that the preadoptive mother

has provided a safe, stable environment for Yolanda and the two

have developed a strong bond such that removal "would likely

cause serious psychological harm" to Yolanda. G. L. c. 210,

§ 3 (c) (vii). See Adoption of Astrid, 45 Mass. App. Ct. 538,

545 (1998). That the mother is unable to identify Yolanda's

behavioral needs and has not been forthcoming about nor

consistently engaged in services to address her own trauma and

mental health issues further supports the judge's determination

that the mother is not equipped to care for Yolanda's ongoing

relationship with the father since 2013 and has not had contact
with him since 2017; was not involved in the incident in January
of 2019 wherein she and the father broke into the father's
girlfriend's home and assaulted her; forgot to renew her
restraining order against the father; has been taking her
medications regularly since October 2020; only used cocaine on
one occasion; completed substance abuse treatment in 2018 and
2019; and was honest to her providers regarding her psychiatric
hospitalization in 2020.

7
specialized needs. See Adoption of Jacques, 82 Mass. App. Ct.

at 608-609.

We are likewise not persuaded by the mother's assertion

that the judge abused her discretion by terminating the mother's

parental rights without allowing the mother to demonstrate that

her unfitness, if any, was temporary. The mother points to her

work with a family support clinician from 2020 to 2021, and

maintains that she demonstrated improved parenting skills during

visitation in 2021. However, as recently as May 2021, the

mother engaged in inappropriate conversations with Yolanda

during visitation including, inter alia, telling Yolanda that if

she were adopted, she would never see the mother again.

Moreover, the record supports the judge's finding that it would

take years of consistent therapeutic treatment to address the

mother's psychological issues stemming from her trauma-related

stress and anxiety disorders that limit her ability to parent

Yolanda, who has specialized behavioral and educational needs

that the mother is not equipped to address. Accordingly, "while

we appreciate that the mother has made commendable efforts and

has shown concern and affection for [Yolanda]," we discern no

clear error nor abuse of discretion in the judge's determination

that the mother is unfit,9 her unfitness is not merely a

9 We note that "[d]espite the moral overtones of the statutory
term 'unfit,' the judge's decision was not a moral judgment or a

8
temporary condition, and that termination of the mother's

parental rights is in Yolanda's best interests. Adoption of

Jacques, 82 Mass. App. Ct. at 609.

Decree affirmed.

By the Court (Neyman, Sacks &
Hodgens, JJ.10),

Clerk

Entered: May 15, 2023.

determination that the mother . . . [does] not love the child"
(quotations and citation omitted). Adoption of Bea, 97 Mass.
App. Ct. 416, 417 n.2 (2020).
10 The panelists are listed in order of seniority.

9