Adoption of Quayla.

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

23-P-303

ADOPTION OF QUAYLA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees of the

Juvenile Court terminating their parental rights to their

daughter, Quayla, pursuant to G. L. c. 119, § 26 and G. L.

c. 210, § 3, approving the plan of the Department of Children

and Families (DCF) for the child's adoption, and ordering two

postadoption visits per year between the parents and Quayla.2 In

their appeals, the parents argue that the trial judge erred in

finding them unfit to parent their child by clear and convincing

evidence, that there was no nexus between the parents' substance

1 A pseudonym.

2 The father also filed a notice of appeal from the denial
of his motion for relief from judgment. In his brief, the
father states he is appealing from the decree terminating his
parental rights. He makes no argument regarding the denial of
his motion for relief from judgment, and we do not consider that
issue. See Mass. R. A. P. 16 (9) (A), as appearing in 481 Mass.
1628 (2019).
abuse and any harm or neglect to the child, and that it was not

in the child's best interests for their parental rights to be

terminated. We affirm.

Background. 1. Factual history. We summarize the facts

as they were found by the trial judge. Both the mother and

father have a history of substance abuse. The mother has been

diagnosed with opioid dependence, and the father has admitted to

having a "drug problem." Both parents have also been charged

with various criminal offenses. In addition to struggling with

substance abuse, the mother has been diagnosed with depression,

anxiety, and attention deficit hyperactivity disorder (ADHD),

and she has not maintained consistent treatment for her mental

health diagnoses.

During her pregnancy with the child, the mother was engaged

in methadone maintenance, but despite that, tested positive for

opiates and benzodiazepines on several occasions and admitted to

using heroin a week or two before the child's birth. The father

was aware of the mother's heroin use. In August 2015, the child

was born with neonatal abstinence syndrome; her urine and

meconium tested positive for opiates and methadone. The child

experienced withdrawal symptoms and was placed on neonatal

morphine. Because she was born substance exposed, a report was

filed with DCF pursuant to G. L. c. 119, § 51A (51A report).

2
The child was placed in DCF custody, and DCF placed her in a

kinship foster home with her aunt and uncle. The child was

reunified with her parents in June 2016.

Between 2016 and 2019, the mother continued to struggle

with substance abuse, testing positive for fentanyl twenty times

and for cocaine twice. However, she did not inform DCF of these

relapses. In August 2019, the police were called to the

parents' apartment complex due to a report of a woman in the

parking lot who appeared to be changing her clothes. The police

arrived and found the mother in the parking lot, and she

presented as slow and lethargic. The mother brought the police

to her apartment, where the father and the child were sleeping.

The apartment was in disarray, with tables knocked over or

lopsided and items all over the floor. The police observed drug

paraphernalia, namely, a spoon and a bag of syringes, in the

apartment. The father had track marks on his arms, and admitted

to the police that he had a drug problem. He claimed the track

marks were old, but the police observed bruising around the

marks, which indicated that they were new. The mother told the

police that she had not used drugs in a year, despite the fact

that she had actually tested positive for drugs several times in

the preceding months. Based on this incident, the police filed

a 51A report.

3
A few days after the incident, DCF conducted an unannounced

home visit, and found that the home was in "deplorable

condition." According to the DCF social worker, the sink was

overflowing with dirty dishes, there was a knife on the counter

that was accessible to the child, there was a table tipped over

and boxes on the floor around it which blocked one entrance to

the bathroom, and there were cigarette burns on the parents'

bedding and cigarette trash on the parents' dresser. At the

time, the mother refused to sign a release for her treatment

providers and refused to allow the social worker to inspect her

medication bottles. The social worker attempted to arrange

another home visit so that she could meet the father, but the

mother canceled one visit and would not arrange another, as she

stated the father would not be available. The social worker

attempted to create a plan for the child to stay with a family

member while DCF confirmed the parents' sobriety, but the mother

refused.

As part of the DCF investigation into the 51A report, the

social worker also spoke with the child's aunt, who expressed

concern about the parents' drug use. The aunt claimed that both

parents appeared to be under the influence at Christmas, and

that the mother appeared to be under the influence two weeks

earlier when she had dropped off the child for an overnight

4
visit. During that visit, the aunt observed that the child had

two burns on her hand. The aunt reported that when the aunt

asked the mother about the burns, the mother claimed that the

child "ran into the cigarette." Following this DCF

investigation, the child was again removed from the parents'

care, and was placed in the same kinship foster home with her

aunt and uncle in which she previously had been placed.

Since the child was removed the second time, the parents

have not consistently cooperated in DCF's efforts to verify

their sobriety. The mother was not consistent with her

methadone dosing, and she tested positive for fentanyl numerous

times between 2020 and 2021. She did not, however, inform DCF

of these positive tests, instead only providing to DCF select

toxicology screens that were negative for illicit substances.

The mother also did not seek detoxification following any of

these relapses, and she provided no verification of a relapse

prevention plan.

The father completed a substance abuse evaluation in

October 2019, but it referred only to historical information and

did not include any clinical assessments or tests, so DCF did

not accept the evaluation as fulfilling the task on his action

plan. The father completed another substance abuse evaluation

in April 2021, eighteen months after it was requested, but the

5
evaluation was largely based on the father's self-report, and he

made several inconsistent or inaccurate statements during the

evaluation. At each home visit, DCF asked Father to verify his

sobriety and to submit to toxicology screens, but he only

submitted one toxicology screen, otherwise refusing.

The parents also did not refrain from illegal activity

while the child was in DCF custody. The mother was charged with

larceny in January 2021, although she alleges that she was

falsely accused. The mother claims that the charge has since

been dismissed, but she did not provide verification, and, at

the time of the termination trial, the charge remained in open

status. In May 2021, the father was charged with a compulsory

insurance violation and a registration violation, although these

charges were later dismissed.

Since the child's second removal, the parents have

consistently attended visits with the child and have behaved

appropriately at those visits. During one visit in 2020, the

father presented with heavy eyelids, prompting concern about his

sobriety. The father completed an unsupervised toxicology

screen several weeks later, but he refused to complete a

supervised screen within twenty-four hours as requested by the

DCF social worker. Additionally, the parents have interfered

with the child's kinship foster placement, badgering the aunt

6
and uncle and making their relationship uncomfortable. As a

result, the child was removed from the kinship foster placement

in June 2020 and placed in a DCF foster home, although the aunt

and uncle remained involved in the child's life, visiting her

and taking her on vacation. The aunt and uncle are willing to

adopt the child upon termination of the parents' parental

rights.

2. Procedural history. Shortly after the child was

removed from the parents' care in 2019, the parents both waived

their rights to a temporary custody hearing. Neither parent

attended the unfitness hearing in July 2021. The trial judge

found that the mother was unfit, but that DCF had not met its

burden of proof as to the father's unfitness. The court entered

a conditional custody order to the father, with the requirement

that the father not allow anyone, including the mother, to spend

the night at the father's residence unless approved by DCF. In

violation of this order, on the child's first overnight visit

with the father under the order, the father allowed the mother

to sleep over. The court therefore vacated the conditional

custody order and found that both the mother and the father were

unfit to parent the child. The parents did not appeal from that

decision.

7
The court held a termination of parental rights trial in

June 2022, and again, neither parent was present. The trial

judge found that both the mother and the father were unfit,

committed the child to the permanent custody of DCF, terminated

both parents' parental rights, approved DCF's plan of adoption

by the kinship foster family, and ordered that the child have

visits with the parents a minimum of two times per year. Both

parents appealed from this decree.

Three months later, the father filed a motion for relief

from judgment, arguing that he was unable to attend the

termination trial because it was rescheduled and he was not

provided proper notice of the new date. After an evidentiary

hearing, the trial judge denied the father's motion, as she did

not credit the father's testimony and instead found that he was

aware of the trial date. As discussed in note 2, supra, the

father does not make any arguments about it in his brief, so we

need not consider this issue. See Mass. R. A. P. 16 (9) (A), as

appearing in 481 Mass. 1628 (2019).

Discussion. The parents both argue that the judge erred in

finding them unfit to parent the child and in terminating their

parental rights, because they allege there was no nexus between

their substance abuse and any harm to the. We disagree.

8
To commit a child to DCF's custody, DCF must prove, "by

clear and convincing evidence, that a parent is currently unfit

to further the best interests of a child." Care & Protection of

Erin, 443 Mass. 567, 570 (2005). To find that a parent is unfit

requires "more than ineptitude, handicap, character flaw,

conviction of a crime, unusual life style, or inability to do as

good a job as the child's foster parent." Adoption of

Katharine, 42 Mass. App. Ct. 25, 28 (1997) ("Katharine"). The

trial judge must instead find "grievous shortcomings or

handicaps that put the child's welfare much at hazard." Id.,

quoting Petition of New England Home for Little Wanderers to

Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).

For termination of parental rights, DCF must further prove by

clear and convincing evidence that the child's best interests

are served by the termination of parental rights. Adoption of

Luc, 484 Mass. 139, 144 (2020). On appeal, a trial judge's

findings "must be left undisturbed absent a showing that they

clearly are erroneous." Care & Protection of Martha, 407 Mass.

319, 327 (1990).

Substance abuse is a relevant consideration in a

determination of unfitness, but only where the substance abuse

interferes with a parent's ability to provide minimally

acceptable care of the child. See G. L. c. 210, § 3 (c) (xii);

9
Katharine, 42 Mass. App. Ct. at 31. In Katharine, the parents

both used cocaine regularly and resisted services offered by the

Department of Social Services (DSS)3 to help treat their

addictions. Id. at 25-26. This court found that, even assuming

the parents would continue to use cocaine, id. at 31, their

addictions did not "translate[] automatically into legal

unfitness to act as a parent" absent neglect or abuse of the

child, id. at 34. The findings in Katharine did "not reflect a

history of negligent or abusive care of the daughter," but

rather showed that the parents had "adequately fed and clothed

her, provided for her medical care, supervised her, and loved

her." Id. at 26. The daughter in that case had been born

prematurely and with cocaine in her system, id. at 25, which

could potentially be characterized as abuse (although the court

did not decide that question), but this court found that it was

not enough alone to permit termination of parental rights, as it

could not be repeated as to that child, id. at 28-29. Finally,

this court considered that the parents had been involved in

criminal offenses in the past, but noted that those had occurred

before the daughter was born. Id. at 33.

3 The Department of Children and Families was formerly named
the Department of Social Services.

10
We find that, contrary to the parents' arguments, this case

is distinguishable from Katharine. As in Katharine, the child

was born substance exposed, and the parents both had drug

addictions but nonetheless were resistant to services offered by

DCF. Those facts alone are not sufficient, under Katharine, to

terminate parental rights. However, there is additional

evidence of neglect and harm to the child in this case that was

not present in Katharine. When the child was removed from the

parents' care the second time in August 2019, the home was in

disarray, with tables knocked over and items all over the floor.

Days later, the home remained in "deplorable condition": during

an unannounced home visit, the social worker observed a tipped

over table, boxes on the floor blocking an entrance to the

bathroom, and a knife on the counter that was accessible to the

child. The police also observed drug paraphernalia in the home.

The condition of the home on both occasions posed a risk to the

then four-year-old child.

Additionally, the child's aunt reported to the DCF social

worker that during a visit two weeks earlier, she had noticed

burns on the child's hand, and the mother had stated they

occurred when the child "ran into a cigarette." Whether the

burns were caused intentionally or accidentally, they are at the

very least evidence that the child was not being sufficiently

11
supervised. Taken together with the cigarette burns observed on

the parents' bedding and cigarette trash on their dresser, the

evidence suggests that the parents were not taking adequate

precautions while smoking.

Finally, neither parent refrained from engaging in illegal

activity during the course of the DCF case. The mother was

charged with larceny in January 2021. Although she claims that

she was falsely accused, and stated that the charge had been

dismissed, the judge was not bound to credit that testimony. In

May 2021, the father was charged with a compulsory insurance

violation and a registration violation, although those charges

were later dismissed. While the parents in Katharine both had

been involved in criminal offenses prior to the child's birth,

they were not involved in any after the child's birth, let alone

during the pendency of the DSS case against them. Katharine, 42

Mass. App. Ct. at 33.

Therefore, the parents' argument that this case is

indistinguishable from Katharine fails. As this Court held in

Katharine, a court cannot "predict catastrophe when the care of

the child to date has been, on the whole, satisfactory," but the

court may "make a prognosis of damage to a child because of a

previous pattern of abuse or neglect." Id. at 33. As the child

in this case has been harmed as a result of the parents'

12
substance abuse, termination of their parental rights is not

barred by Katharine.

The mother also argues that the judge's findings that she

"cherry-picked" and altered her drug screens were clearly

erroneous. The judge found that the mother selected only

certain screens to send to DCF, all of which showed she tested

negative for illicit substances, despite the fact that other

screens that she chose not to send showed a positive result.

She also found that the mother had altered certain screens

before sending them to DCF. The mother argues that there was no

evidence in the record to support these findings, as the DCF

court reports state only that DCF "received" drug screens, but

do not specify from whom, so the mother may not have had any

discretion over which screens DCF received or what they said.

The judge's findings on this issue were not clearly

erroneous, as there was testimony supporting them. At the

hearing on July 20, 2021, the DCF social worker testified that

the mother had signed only limited releases for her providers,

meaning that DCF could not access the drug screens directly from

the mother's provider. Then, at the termination trial on June

16, 2022, another DCF social worker testified that DCF had

previously received drug screens directly from the mother and

that she had finally signed releases in May 2022. The social

13
worker also testified that a screen the mother had given DCF was

altered and did not match the screen provided directly from the

provider. From this testimony, the judge reasonably found that

the mother selected only certain favorable screens to send to

DCF and altered at least one.

The father argues that the judge made a clear error in

finding that he struggled with substance abuse at the time of

trial. DCF bears the burden to show by clear and convincing

evidence that a parent is currently unfit. Care & Protection of

Erin, 443 Mass. at 570. The evidence before the court showed

that the police observed track marks on the father's arms in

August 2019, which the father stated were old, but the police

officer saw bruising around them, which he stated indicated that

they were new. The police also observed drug paraphernalia in

the home at that time, and the father admitted to police that he

had a "drug problem." The father submitted the results of a

substance abuse evaluation to DCF in October 2019, but it did

not indicate what, if any, testing was completed, and mostly

contained information about the mother. Therefore, DCF

requested a new substance abuse evaluation, which father did not

complete until April 2021, and which the court found contained

contradictory statements.

14
The father is correct that his action plans, unlike the

mother's, did not require that he submit drug screens to DCF,

although they did require that he "[a]bstain from all alcohol

and drug use and demonstrate a commitment to maintaining a sober

lifestyle by refraining from engaging with individuals who are

using/abusing alcohol/drugs." In December 2021, a task was

added stating, "If there are concerns regarding presentation and

sobriety during visitation, [DCF] . . . will encourage you to

submit a supervised drug screen/swab/blood test within 24

hours." There was also testimony from the DCF social worker

that DCF had asked the father to verify his sobriety at every

home visit since the case opened, at least thirty-three times.

The court found that the father had only submitted one drug

screen to DCF, which was unsupervised, several weeks after a

February 2020 visit at which he presented with heavy eyelids.

The court also found that a supervised screen was requested, but

the father failed to submit one, and the judge drew the

inference that it would have been positive. The father contends

that he had actually taken five drug screens since the DCF case

opened, as he reported during his second substance abuse

evaluation.

The judge's findings regarding the father's failure to

maintain sobriety were not clearly erroneous. When the child

15
was removed, the police officer observed what he said were new

track marks on the father's arms, and drug paraphernalia in the

home. The father was also not forthcoming in either of his

substance abuse evaluations about his history of drug use.

Although his action plans did not require that the father submit

drug screens, they did require that the father "[c]ooperate with

any additional recommendations made by DCF and other

professionals," and the DCF social worker testified that the

father was asked to verify his sobriety at every home visit

throughout the pendency of the case. Although the father did

report during his substance abuse evaluation that he had taken

five drug screens since the case began, he did not report that

they had been submitted to DCF. Taken together, this evidence

was sufficient for the judge to find that the father had a

current substance abuse issue at the time of trial.

Even if the judge did err in her finding's regarding the

father's substance abuse, any error would have been harmless, as

there was other evidence sufficient to show the father's

unfitness. The father, despite knowing about the mother's

substance abuse, including her use of heroin during pregnancy

and her relapses, did not report it to DCF or to the mother's

substance abuse treatment provider, nor did he take any steps to

protect the child from potential harm or neglect caused by the

16
mother. Even after the trial judge had found the mother unfit

and issued a conditional custody order to the father, the father

immediately violated the order by allowing the mother to sleep

over during the child's first overnight visit with him. As we

have already concluded that the child was harmed due to the

mother's substance abuse, the father's failure to acknowledge

this as an issue and his willingness to put the child at risk of

harm constitute unfitness. The father and the mother also

failed to attend either hearing at which their fitness to parent

the child would be decided, and it was proper for the judge to

draw a negative inference from their absence. See Adoption of

Talik, 92 Mass. App. Ct. 367, 371 (2017).

Finally, both the mother and the father challenge the

judge's determination that termination of their parental rights

was in the child's best interest. In particular, the father

argues that the judge did not consider the father's ability to

provide for the child and their strong relationship , and the

mother argues that the child expressed a desire to return home

and was bonded with the parents. In fact, the judge took note

of the parents' jobs and financial situation, including the fact

that the maternal grandmother had provided financial support to

the parents. The judge also explicitly considered the parents'

mostly consistent compliance with visitation, the fact that they

17
behaved appropriately and came prepared, and the child's

expressed desire to return to the parents' care. In a best

interest determination, the court should take into account the

child's wishes, but they are not outcome determinative. See

Adoption of Nancy, 443 Mass. 512, 518 (2005). The court clearly

did consider the bond between the child and the parents, as she

ordered post-adoption visitation. However, the judge should

also consider a lengthy separation between the parents and

child, and a child's bond with the current custodian. See

Adoption of Frederick, 405 Mass. 1, 7 (1989). In this case, the

child has not lived with the parents since 2019 and has

developed a strong bond with her aunt and uncle, who are willing

to adopt her.

The mother also argues that, because the kinship foster

family did not allow the child to continue living with them

after June 2020, their adoption of the child would not be in her

best interests. However, the judge found that the kinship foster

family had made that decision due to the parent's interference

and fears that the child would be removed a third time. The

family also maintained a relationship with the child even after

June 2020, visiting with her consistently and taking her on

vacations.

18
Based on all of these considerations, the judge did not

abuse her discretion in finding that the child's best interests

would be served by termination of parental rights.

Decrees affirmed.

Order denying motion for
relief from judgment
affirmed.

By the Court (Vuono, Rubin &
Smyth, JJ.4),

Clerk

Entered: June 27, 2024.

4 The panelists are listed in order of seniority.

19