ADOPTION OF ADDI (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

23-P-522

ADOPTION OF ADDI (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree and judgment issued by a

Juvenile Court judge finding her unfit as to her two children,2

terminating her parental rights with respect to her daughter,

and finding that the separate permanency plans proposed by the

Department of Children and Families (DCF) were in each child's

best interests.3 On appeal, the mother claims that the judge

erred by finding her unfit and abused her discretion by

approving DCF's permanency plans. We affirm.

1 Care and protection of Robert.

2 Both of the children's names are pseudonyms.

3 The daughter's putative father failed to appear at the
temporary custody hearing or the trial in this matter. The
judge found him unfit and terminated his parental rights. The
son's father was present at trial via Zoom, as he had been
previously deported to Brazil after an alleged incident of
domestic violence against the mother. The father stipulated to
the judgment that he was unavailable to parent his son. The
judge found the son's father currently unfit but did not
terminate his parental rights.
Discussion. The mother first argues that the judge erred

by determining that DCF met its burden to establish her parental

unfitness clearly and convincingly because the findings do not

show any nexus between her mental health and substance abuse

issues and her ability to provide the minimally acceptable level

of care to her children. We disagree.

"When reviewing a decision to terminate parental rights, we

must determine whether the trial judge has abused his discretion

or committed a clear error of law." Adoption of Elena, 446

Mass. 24, 30 (2006). "[T]he judge's assessment of the weight of

the evidence and the credibility of the witnesses is entitled to

deference" (citation omitted). Adoption of Quentin, 424 Mass.

882, 886 (1997).

"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). "Clear and convincing evidence is evidence

that is 'strong, positive and free from doubt.'" Adoption of

Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018), quoting Stone

v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975).

The evidence "must be sufficient to convey a high degree of

2
probability that the proposition is true" (quotations and

citations omitted). Adoption of Rhona, 57 Mass. App. Ct. 479,

488 (2003) (Rhona I).

"Parental unfitness must be determined by taking into

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

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Adoption of

Quentin, supra, quoting Adoption of Mary, 414 Mass. 705, 711

(1993). A trial judge is permitted to use "past conduct,

medical history, and present events to predict future ability

and performance as a parent." Care and Protection of Bruce, 44

Mass. App. Ct. 758, 761 (1998). "Evidence of alcohol or drug

abuse is also relevant to a parent's willingness, competence,

and availability to provide care." Adoption of Anton, 72 Mass.

App. Ct. 667, 676 (2008). However, there must be some nexus

between such evidence and parental fitness. See Care and

Protection of Bruce, supra at 763.

In this case, the evidence presented at trial showed that

the mother has an extensive history of substance use and mental

health issues that have "remained effectively untreated

throughout the duration of this case." The mother admitted to

abusing heroin and prescription drugs until she was three and a

half months pregnant with the daughter, as well as to using

marijuana throughout that pregnancy. DCF expressed its concerns

3
regarding the mother's marijuana use during pregnancy and while

serving as the primary caretaker for the child. Despite this

admonition, the mother tested positive for methadone and

marijuana on six occasions during her second pregnancy, and the

son was born with both substances in his system. As a result,

the son suffered from muscle tightness in his legs, causing his

legs to be bowed and his feet turned in.

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

was filed a year prior to the son's birth because the daughter

allegedly witnessed an altercation between the mother and the

mother's brother, which resulted in the maternal grandparents

filing a restraining order against the mother. The reporter

cited concerns about the mother's history of substance use,

especially with heroin; potential relapse; and behavior with

other household members, including her fighting with family and

calling her parents vulgar names while the daughter was present.

The maternal grandmother alleged that the mother left the

daughter unsupervised and that she had left drug paraphernalia

in her room at the maternal grandparents' house.

Although she has received substance abuse treatment on and

off since 2013, the mother has frequently relapsed. Because of

ample evidence indicating the contrary, the judge did not credit

the mother's testimony that she had been sober for four years

4
before relapsing in August of 20214 and then had been sober

since, up to the time of trial.

Regarding the mother's mental health issues, she testified

at the time of trial that she was diagnosed with anxiety,

depression, and post-traumatic stress disorder, and she has also

been diagnosed with attention-deficit hyperactivity disorder.

The mother was first civilly committed pursuant to G. L. c. 123,

§ 12, in 2014. The mother's mental health took a steep decline

in the summer of 2020, when she began exhibiting delusions,

paranoia, and possible hallucinations. As the judge described,

"[the mother] was certain she was being followed, that DCF was

tapping her phone, that she was fighting monsters/goblins, and

that everyone was against her. Her moods were erratic and

oscillated unpredictably between happy and sad." The mother's

delusional thinking was also evident in her inappropriate

interactions with and beliefs regarding her former social

worker. The mother was civilly committed twice between the

summer of 2020 and April of 2021, and she also went to the

hospital at least three times in February of 2021, alone, for

extreme anxiety and panic attacks.

4 On August 20, 2021, the police responded to a possible overdose
at the mother's residence, where she was found with ice on her
and an empty Narcan container next to her.

5
After describing the mother's substance abuse and

manifestations of her mental illnesses, the judge made several

conclusions of law in which she described how the mother's

issues impacted her ability to parent the children. The judge

determined that the "[m]other's concerning behaviors, delusions,

paranoia, substance use, and history of housing instability5 are

barriers to her providing a safe and stable environment for her

children. Because she has not successfully addressed any of

these issues and has not demonstrated an enduring ability or

desire to do so, [the mother] is unable to provide for the care

and protection of the subject children and this inability is

likely to persist for the foreseeable future." Most notably,

the judge stated:

"What makes [the mother's] problematic behavior more
concerning is that it sometimes occurs in the presence of
the children. On many occasions, [the mother] failed to
maintain appropriate conversations in front of the
children, and she had to be redirected a number of times
during in-office visits. [The mother] has difficulty
maintaining boundaries and refraining from inappropriate
conversations. This has resulted in chaotic and
disorganized visits with the children. [The mother] has
been unable to demonstrate positive parenting skills during
her visits with the children throughout the pendency of
this case. Although she has required less direction during
more recent visits, she continues to speak poorly of the
maternal grandparents in front of the children and does not
engage in appropriate conversations with her children.

Since this petition was filed, [the mother] has been unable
to appreciate the problematic nature of her behavior, and

5 At the time of trial, the mother's housing instability had been
ongoing since approximately June of 2018.

6
she continues to believe that her behavior does not pose a
threat to her children or impact her parental fitness. Due
to [the mother's] substance use, mental health concerns,
and inappropriate behaviors towards others involved in this
case, the Court finds that [m]other is unable to provide a
stable environment for the children."

Even further, the judge stated that the mother

"has shown an inability to control unparental traits of
character or conduct and to appreciate how this behavior
impedes her ability to perform her parental
obligations . . . [and the mother's] delusional, paranoid,
and erratic behavior poses a risk to herself and those
around her. [The mother] has been unstable for a
significant period of time and even after reportedly
participating in numerous treatment programs and therapy,
these behaviors have not been ameliorated."

The above-mentioned conclusions, in addition to others not

mentioned herein, establish a nexus between the mother's

substance use and mental health issues and her ability to parent

the children. See Adoption of Jacques, 82 Mass. App. Ct.at 609.6

We also disagree with the mother's claim that the judge

erred in finding that DCF's permanency plans, which propose that

the daughter be formally adopted by her maternal grandparents

and the son be reunified with his father once the father's

6 The mother also erroneously argues that the judge ignored or
overlooked significant evidence favorable to the mother in
finding her unfit. The judge made numerous findings of fact
that were favorable to her, including those detailing the
mother's engagement with treatment, how her "house was clean and
neat," that she had been consistent with her visits, and that
she "has a well-developed bond with both children and likes to
bring activities and snacks to her visits." To the extent the
judge erred in failing to include any other favorable evidence
in her findings, such evidence does not outweigh the evidence
indicating the mother's parental unfitness.

7
temporary unavailability has abated, are in each child's best

interests. "In determining whether the best interests of the

child will be served by issuing a decree dispensing with the

need for consent [to adoption] . . . , the court shall consider

the ability, capacity, fitness and readiness of the child's

parents or other person named in [G. L. c. 210, § 2,] to assume

parental responsibility, and shall also consider the plan

proposed by the department or other agency initiating the

petition." G. L. c. 210, § 3 (c). "The 'best interests of the

child' standard requires the trial judge to make a discretionary

decision based on her experience and judgment, and [it] will not

be overturned unless it amounts to an abuse of discretion or a

clear error of law" [citation omitted]. Adoption of Garret, 92

Mass. App. Ct. 664, 675 (2018).

As discussed above, the mother is unfit to care for both

children. Regarding adoption of the daughter, she began

residing with the maternal grandparents in September of 2020 and

continued to do so at the time of trial. The maternal

grandparents have been "the only stable caregivers that [the

daughter has] known," and she has benefitted from the structure,

predictability, and consistency of the home. Additionally,

"there has been no evidence of any risk to the children while in

their maternal grandparents' custody" or "that the maternal

grandparents are inappropriate or irresponsible caregivers."

8
"The Supreme Judicial Court has emphasized the importance of

achieving stability and permanency in children's lives and in

decrees dispensing with parental rights." Adoption of Thea, 78

Mass. App. Ct. 818, 824 (2011). Thus, we see no abuse of

discretion or error in the judge's determination that adoption

of the daughter by the maternal grandparents is in her best

interests.

Nor is there any abuse of discretion in the judge's

treatment of DCF's current plan to reunify the son with his

father. Parents possess a "natural right to the custody of

their children." See Petition of the Dep't of Pub. Welfare to

Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981).

The judge found that the nature of the relationship between the

mother and the son's father "as it relates to actual domestic

violence" was "uncertain." Moreover, at the time of trial, the

son had monthly visits with his half-brothers on his father's

side and weekly virtual visits with his father. The record

indicates that the son's father has been teaching him how to

speak Portuguese and will allow him to maintain his relationship

with his American family if the son does move to Brazil. Based

on the differences between the children as to age, their

involvement with DCF, and relationship with their fathers, the

judge recognized that different permanency plans could be in

their best interests. See Adoption of Garret, 92 Mass. App. Ct.

9
at 675-676 (concluding no abuse of discretion in judge's

differing best interests determinations). However, the judge

did not approve DCF's plan for reunification with the father.

Indeed, the judge declined to terminate the mother's parental

rights, pointedly leaving open the possibility that her

unfitness as to the son "could be appropriately addressed

through service engagement and evidence of positive parental

progress." Finally, the son will remain in the care of his

maternal grandparents until the father's availability is

10
established, giving the mother the opportunity to ameliorate the

concerns leading to the son's removal in the meantime.7

The decree terminating the
mother's rights as to Addi
is affirmed. The judgment
as to Robert is affirmed.

By the Court (Meade,
Massing & Sacks, JJ.8),

Assistant Clerk

Entered: January 4, 2024.

7 The mother's claim that terminating her parental rights as to
the daughter was improper because the maternal grandparents
could have received a guardianship of her is waived, as she did
not request a guardianship below. See Petition of Dep't of Soc.
Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697
(1984). The mother's remaining claim, that a sibling visitation
order should have been granted, is premature at this time
because both siblings are currently residing with the maternal
grandparents.

8 The panelists are listed in order of seniority.

11