Adoption of Pedro.

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-89

ADOPTION OF PEDRO. 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, Pedro, terminating her

parental rights as to him, and approving the adoption plan

proposed by the Department of Children and Families (DCF). The

mother also appeals from the trial judge's order for

posttermination and postadoption visitation, arguing that the

judge abused his discretion in ordering only two visits per

year. 2 We affirm.

Background. We summarize the judge's findings of fact

where we find sufficient support in the record. Pedro was born

1 A pseudonym.
2 The mother was the sole parent identified on Pedro's birth
certificate, and no other parent came forward to establish
parentage of him. DCF met with the putative father in June
2019, but after his failure to participate in the care and
protection proceeding, the judge issued an order striking him
from the petition. The judge deemed any father unknown and
currently unfit to parent Pedro, and a decree entered
terminating the unknown father's parental rights.
prematurely in May 2019 and hospitalized through the end of July

2019. At that time, the mother had already had extensive

involvement with DCF since 2000. The mother's first three

children were removed from her custody after multiple G. L.

c. 119, § 51A reports (51A report), were filed alleging abuse

and neglect of the children. The mother's parental rights to

the first three children were terminated, and they have since

been adopted. Subsequently, Pedro was born.

DCF opened a new case in May 2019 after a 51A report was

filed alleging neglect of Pedro, based on the mother testing

positive for marijuana two days before Pedro's birth. In August

2019, Pedro was discharged from the hospital into the mother's

custody, and they moved into a family shelter in Brookline. On

August 8, 2019, a staff member at the shelter filed a 51A report

because the mother appeared to be impaired. The emergency

response workers who responded to the shelter reported that the

mother appeared sober. However, within eight hours, shelter

staff filed two additional 51A reports describing the mother as

"unconscious/passed out," and Pedro as having been found "face

down, on the floor." Pedro was transported to Tufts Medical

Center. A subsequent 51A report was filed after the mother

arrived at the emergency room "appearing intoxicated, smelling

of alcohol, slurring her word[s] and [having] glossy eyes." As

2
a result, DCF removed Pedro on an emergency basis and filed a

care and protection petition. 3

Following removal, DCF placed Pedro in a foster home where

he has resided ever since. 4 DCF recommended an inpatient

substance use disorder treatment program for the mother. 5

Instead, she participated in and completed a three-week

outpatient hospital program. Since completing this program, the

mother has participated in multiple other programs, but has not

3 The G. L. c. 119, § 51B, investigation also revealed that the
mother's history of problematic substance use and untreated
mental illness "likely contributed to the death of a fourth
child, who . . . died soon after birth." The judge found that
"[a]t the time of [the fourth child's] birth, [the] [m]other
tested positive for marijuana" and that the child "was found to
have marijuana in her system as well." The mother challenges
this finding by the judge as erroneous. The child's counsel
concedes in her brief that the "judge did erroneously find that
[the fourth child] 'was found to have marijuana in her system'"
but contends that this finding is harmless because "[t]he
relevant issue was not how the baby died, but the fact that
[the] mother was using an illegal substance." We agree that the
error was not harmful and that the judge's determination of
parental unfitness is supported by clear and convincing evidence
as discussed herein. See Adoption of Luc, 484 Mass. 139, 148
(2020).
4 The mother raises concerns about Pedro's foster parents and

their suitability as potential adoptive parents. She notes,
inter alia, that Pedro was subjected to inappropriate contact by
a ten year old boy whom the foster parents were also fostering.
The matter was reported by the foster parents to DCF, and the
ten year old was promptly removed from the home. As found by
the DCF judge, the child is thriving in a loving and caring
environment with the foster parents.
5 Despite the mother's protestations to the contrary, the record

supports the judge's finding that DCF recommended a long-term
inpatient treatment program for the mother "[a]t the early onset
of the case."

3
been consistent with her treatment. The mother complied with

mental health and substance use treatment and therapy for short

periods of time but did not sustain long term treatment at an

inpatient program. In June 2020, DCF recommended that the

mother complete a neuropsychological evaluation. The mother

responded that she had previously participated in a

neuropsychological evaluation with one of her other children.

She initially agreed to complete the evaluation but failed to

submit an evaluation report to DCF. 6

On May 26, 2021, DCF updated the mother's action plan,

requiring her to participate in substance use disorder and

mental health treatment, individual therapy with a licensed

therapist, an intensive outpatient program, the SMART recovery

program, and a neuropsychological evaluation. However, the

mother missed therapy appointments in April and May 2021,

stopped attending Alcoholic Anonymous meetings, failed to

6 The mother contends that the judge erroneously relied on her
failure to produce a new evaluation as evidence of unfitness,
and that it was wrong for DCF to seek adoption of Pedro only
days after requesting a neuropsychological exam. We disagree
and note that the judge's consideration of the mother's refusal
to participate in the neuropsychological evaluation was
reasonable. See Adoption of Luc, 484 Mass. at 146-147, quoting
Petitions of the Dep't of Social Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987) (mother's "fail[ure] to
recognize the need for or to engage consistently in treatment"
and failure to provide the department with psychological
evaluation was "relevant to the determination of unfitness").

4
complete the SMART recovery program, and did not submit a

current neuropsychological as requested.

The mother has experienced multiple substance use-related

relapses since Pedro's birth. Evidence adduced at trial

supported the judge's determination that the mother was not able

to maintain sobriety. 7 In January and February 2020, she was

arrested for failing to participate in SCRAM alcohol monitoring

testing. Then, in December 2020, she was charged with operating

a motor vehicle under the influence. She was found guilty and

incarcerated for sixty days.

Following removal of the Pedro, the mother had weekly

supervised visits with him. While she consistently attended all

visits as scheduled from August 2019 to October 2019, she began

to miss some visits in December 2019. The mother's attendance

rate decreased in 2020. 8 In January 2021, the mother attended a

7 The mother has an extensive history of community disturbances
and involvement with the criminal justice system. Between June
2019 and September 2020, three abuse prevention orders were
issued against the mother, and a domestic disturbance complaint
was filed against her. She violated two of the abuse prevention
orders.
8 The mother contends that the judge’s finding that "[a]s of June

2020, the foster mother reported that [the] [m]other had not
been present for twenty-five percent of the visits" was
erroneous and that the foster mother never mentioned the figure
"twenty-five percent" in her testimony. However, on November
15, 2021, the foster mother did in fact testify that she "had a
log where [the] [m]other missed [twenty-five percent] of the
visits."

5
supervised in-person visit with Pedro and admitted to using

marijuana prior to the visit.

In June 2020, DCF changed Pedro's permanency goal from

reunification with the mother to adoption. In July 2020, DCF

mailed letters to all known maternal family members in an effort

to identify potential kinship placements. 9 DCF did not receive a

response from any family members. Ultimately, Pedro's foster

parents, with whom he had lived for two years at the time of

trial, committed to adopting him. Following a trial in November

2021, the judge ordered the entry of a decree finding the mother

unfit 10 and terminating her parental rights. The judge also

ordered two annual posttermination and postadoption visits

between the mother and Pedro. The mother appeals from the

decree.

9 The mother argues that DCF failed to comply with 110 Code Mass.
Regs. § 7.101(2) (2009), which requires DCF to "consider,
consistent with the best interests of the child . . . placement
with a kinship family." However, that regulation requires only
that "reasonable effort[s] should be made to place a child in
accordance with . . . [§] 7.101(2)." The record indicates that
DCF indeed mailed letters to all known maternal family members
in July 2020, but received no responses. In addition, the
mother was provided family resource applications, but "DCF
didn't receive any applications back from family members."
10 "Despite the moral overtones of the statutory term 'unfit,'

the judge's decision was not a moral judgment or a determination
that the mother . . . [does] not love the child" (citation
omitted). Adoption of Bea, 97 Mass. App. Ct. 416, 417 n.2
(2020).

6
Discussion. 1. Unfitness and termination of parental

rights. The mother contends that some of the judge's findings

of fact were erroneous, 11 and absent those findings, DCF did not

meet its burden to prove parental unfitness by clear and

convincing evidence. We disagree. Even assuming that some of

the challenged findings were erroneous, 12 the remaining evidence

of unfitness was overwhelming.

"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 Jacques, 82 Mass. App. Ct.

601, 606 (2012). "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

11 Specifically, the mother argues that the record did not
support the judge's findings (1) that the mother's fourth child,
who died shortly after birth, was found to have marijuana in
[her] system, (2) that the two 51A reports dated July 18 and 29,
2019, made reference to the mother's mental health issues, (3)
that DCF recommended that the mother enter a long-term inpatient
treatment program at the outset of the case and that she failed
to do so, and (4) that the mother was not present for twenty-
five percent of visits with Pedro as of June 2020 and that she
was "confrontational" on a visit in late June 2020.
12 As discussed in note 3, supra, the judge's finding that the

mother's fourth child, who died shortly after birth, was found
to have marijuana in her system was erroneous.

7
affections, and age." Care & Protection of Vick, 89 Mass. App.

Ct. 704, 706 (2016). We give substantial deference to the

judge's findings, which we do not disturb unless they are

clearly erroneous. See Adoption of Jacques, supra at 606-607.

The mother's unfitness resulted from a "constellation of

factors." Adoption of Greta, 431 Mass. 577, 588 (2000). The

evidence supported the judge's finding that, inter alia, the

mother was unfit to parent Pedro and her unfitness was likely to

continue into the indefinite future to a near certitude, the

mother failed to provide Pedro with adequate care, and the

mother's substance abuse and mental illness history, which

resulted in the adoption of three older children, continued to

affect her in a way that made her unfit to parent and care for

Pedro. See Adoption of Ramon, 41 Mass. App. Ct. 709, 717-718

(1996).

While the mother concedes that her history of problematic

substance use played a significant role in the removal of her

three older children, she argues that the judge relied on stale

evidence of her substance use history by claiming that, from

2012 to 2019, she had been intoxicated only once. She also

argues that her relapses between 2019 and 2021 do not establish

that she was unfit to parent Pedro or that any unfitness is

likely to continue. Contrary to her claims, the record reflects

that the mother was intoxicated on multiple occasions between

8
2012 and 2018, at times to the point of being placed in

protective custody. The mother's more recent behavior,

delineated throughout the judge's comprehensive findings of fact

and conclusions of law, further demonstrates the mother's

ongoing pattern of problems with substance use. Viewed in

combination with the mother's failure to consistently engage in

services and other factors described above, the mother's

argument is unavailing. "[A] judge [can] properly rely upon

prior patterns of ongoing, repeated, serious parental neglect,

abuse, and misconduct in determining current unfitness."

Adoption of Diane, 400 Mass. 196, 204 (1987).

As to termination of parental rights, the judge evaluated

the provisions of G. L. c. 210, § 3 (c), and found factors

(ii), (v), (vi), (vii), (viii), and (xii) to be applicable. The

record supports this determination. Moreover, as detailed

above, in light of the mother's ongoing history of substance use

issues, involvement with the criminal justice system, and

inability and unwillingness to recognize and address her

parental deficits, there was ample record evidence to support

the judge's findings and determination that the mother was unfit

and that termination of her parental rights was in the child's

best interests.

2. Posttermination and postadoption visitation. We are

likewise unpersuaded by the mother's argument that the judge

9
abused his discretion in ordering only two posttermination and

postadoption visits between the mother and Pedro each year.

Judges have broad discretion to order posttermination and

postadoption visitation between the parent and child. See

Adoption of Douglas, 473 Mass. 1024, 1027 (2016). A two-part

inquiry informs a judge's decision to order visitation: "First,

is visitation in the child's best interest? Second, in cases

where a family is ready to adopt the child, is an order of

visitation necessary to protect the child's best interest, or

may decisions regarding visitation be left to the judgment of

the adoptive family?" Adoption of Ilona, 459 Mass. 53, 63

(2011). To determine whether visitation is in the child's best

interest, a judge should consider "whether there is 'a

significant existing bond with the biological parent' whose

rights have been terminated." Id. at 63-64, quoting Adoption of

Vito, 431 Mass. 550, 563 (2000).

Here, the judge determined that posttermination and

postadoption visitation between Pedro and the mother was in

Pedro's best interest based on their emotional bond, despite the

mother's inconsistency in confirming and attending visits. The

judge properly sought to "balance the benefit to the child of an

order of visitation that will provide assurance that the child

will be able to maintain contact with [the mother], with the

intrusion that an order imposes on the rights of the adoptive

10
parents." Adoption of Ilona, 459 Mass. at 64. We further note

that "[t]he purpose of [posttermination and postadoption

visitation] is not to strengthen the bonds between the child and

his biological mother or father, but to assist the child as he

negotiates, often at a very young age, the tortuous path from

one family to another." Adoption of Vito, 431 Mass. at 564-565.

On the record before us, we cannot say that the judge's decision

to order two annual visits was "a clear error of judgment in

weighing the factors relevant to the decision such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

Decree affirmed.

By the Court (Neyman, Henry &
Ditkoff, JJ. 13),

Clerk

Entered: November 20, 2023.

13 The panelists are listed in order of seniority.

11