ADOPTION OF FIONA (And Two Companion Cases).

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-1172

ADOPTION OF FIONA (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and child Fiona appeal from decrees issued by a

Juvenile Court judge terminating the mother's parental rights to

her three children and approving the adoption plan proposed by

the Department of Children and Families (DCF). We conclude that

the trial judge properly found that the mother's untreated

problems with substance use and refusal to engage in services,

among other factors, establish her indefinite unfitness to

parent any of the children. Concluding that, based on the

evidence presented at trial, the judge acted within her

1Adoption of Andrea and Adoption of Braden. The children's
names are pseudonyms. Andrea and Braden supported the
termination of parental rights in the Juvenile Court and
continue to do so on appeal. The putative father of the twins,
Fiona and Andrea, filed a pleading surrendering any parental
rights. The judge allowed his motion to withdraw as a party.
All unknown and unnamed fathers were found unfit and their
parental rights terminated. The putative father of Braden did
not appeal the termination of his parental rights.
discretion in finding that freeing the children for adoption was

in their best interests, we affirm the termination of parental

rights. Further concluding that the judge erred in approving

DCF's adoption plan regarding Fiona where the social worker

testified that DCF had not yet acquired the information

necessary to determine the child's best interests, we reverse

that approval and remand for further proceedings.

1. Background. The twin daughters, Fiona and Andrea, were

born in 2011. The mother missed medical appointments for the

twins in December 2019 and May 2020. The mother further failed

to schedule or to attend necessary specialist appointment for

either daughter.

In January 2021, DCF informed the mother that her case

would be kept open until her children became medically up to

date and their school attendance improved. Given her "erratic"

behavior, DCF social workers asked the mother to complete a drug

screening test. The mother refused, stating that she did not

use drugs.

In February 2021, the mother told DCF social workers that

she had been pregnant but no longer was. The mother failed to

provide any further information about the pregnancy at that

meeting and declined services offered. In fact, the mother was

still pregnant. On April 20, 2021, the mother again declined to

complete a drug test, reiterating that she did not use drugs.

2
In May 2021, the mother delivered her fourth child, Braden,

who tested positive for cocaine and opiates. The newborn

experienced immediate and sustained withdrawal symptoms and was

not discharged from the hospital until June 2, 2021. The mother

also tested positive for cocaine and opiates, and police found

illegal drugs and drug paraphernalia on her person after

delivery. The mother later claimed that she used the drugs only

to help with labor pains and denied being "a drug addict."

DCF social workers responded to the hospital and assumed

emergency custody of the newborn. DCF also assumed emergency

custody of the twins, who had been left unattended at home when

the mother went to give birth and were unaware where the mother

was.

When informed that her twin daughters had been placed in

DCF custody, the mother stated that she did not want to see or

speak with them until she regained custody. On May 13, DCF

provided the mother with a thirteen-point department action

plan, requiring the mother, inter alia, to engage in certain

services, complete drug screens, sign all necessary releases,

and complete a psychological and parental assessment. From May

2021 to her trial in November 2022, the mother failed to

meaningfully comply with any of these tasks.

The mother refused to schedule visitation with her children

until June 2021. From June 2021 through November 2023, the

3
mother attended fourteen in-person visits and nine or ten

virtual visits. During that time, the mother confirmed and

subsequently failed to attend nearly twenty other visits.

Occasionally, the mother attempted to confirm visits at the

wrong date or time or failed to confirm until after the mandated

department deadline, resulting in no visitation. Based on the

mother's lack of communication, DCF social workers were unable

to schedule any home visits following April 2021. Between June

2022 and her trial in November 2022, the mother did not attend

any scheduled visits or communicate with DCF. The mother's lack

of visits caused emotional upset to the twins.

When the mother did attend visits, she was routinely late

and often spent part of the visit on her cell phone. The mother

failed to console her newborn son or to care for his specific

medical needs, requiring one of the twins to attend to him

during visits. At other visits, the mother upset the twins by

insulting their clothing or hairstyles.

The mother was repeatedly hospitalized between July and

December 2021 for complications from her drug use. The mother

failed to provide DCF with any information about her

hospitalizations and only once notified DCF that she was in fact

hospitalized. The mother left the hospital numerous times

against medical advice.

4
During their time in foster care, the twins became

medically up to date and showed improvement in both academic

attendance and performance. Although the twins initially lived

together with their maternal step-grandmother, their behavioral

issues required DCF to find different placements for each child.

The twins went through several placements before all siblings

were reunited in the same preadoptive foster home. In August

2022, Fiona was removed from the home because of behavioral

issues, including fighting with her twin sister.

On November 29, 2022, trial began. The mother was not

present. The mother's attorney indicated that the mother was

aware of the trial date and had been expected to attend. Twenty

minutes after the start of the trial, the judge called the

mother to determine her whereabouts. The mother stated she had

only just woken up and would be there in fifteen minutes. The

mother never showed up to the trial and declined multiple

subsequent calls from the judge. The mother never provided an

explanation for her absence. The judge ultimately drew a

negative inference from the mother's absence.

At the time of trial, Andrea and Braden were placed in the

same foster home, and the adoption plan was for them both to be

adopted by the foster family. Fiona was in a residential

treatment program, where she was doing well. DCF's plan for

Fiona was for her to be adopted by the same foster family. The

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social worker, however, testified that DCF was "waiting on the

return of the child assessments," which were needed to

"determine what is in their best interest for a final living

situation."2

The judge found the mother unfit and terminated her parental

rights to each of the children. This appeal followed.

2. Standard of review. "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). "Because

termination of a parent's rights is an 'extreme step,' . . . a

judge must decide both 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.'" Adoption of Ilona, 459 Mass. 53,

59 (2011), quoting Adoption of Carlos, 413 Mass. 339, 350

(1992). "In making this determination, a judge must consider 'a

parent's character, temperament, conduct, and capacity to

2 As is discussed infra, after trial the child assessments
revealed that adoption by the foster family was no longer
viable.

6
provide for the child in the same context with the child's

particular needs, affections, and age.'" Adoption of Garret, 92

Mass. App. Ct. 664, 671 (2018), quoting Adoption of Mary, 414

Mass. 705, 711 (1993). General Laws c. 210, § 3 (c), provides a

nonexhaustive list of factors to be weighed in determining the

fitness of a parent.

Where there is clear and convincing evidence that the

parent is unfit and likely to remain so, we give substantial

deference to the trial judge's decision regarding the child's

best interests 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. at 59. "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.'" Adoption of Larry, 434 Mass. 456, 462 (2001),

quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse

of discretion exists where the decision "amounts to a 'clear

error of judgment' that falls 'outside the range of reasonable

alternatives.'" Adoption of Talik, 92 Mass. App. Ct. 367, 375

(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

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3. Termination of parental rights. a. Unfitness. The

mother argues that the trial judge made several errors in her

findings of fact. The evidence at trial, specifically the

testimony of the mother's DCF social worker, supported the

judge's finding that the mother did not sign DCF releases while

hospitalized between July and December 2021, did not maintain

ongoing communication with DCF during this time, and did not

timely seek additional time for the completion of action plan

items. See R.D. v. A.H., 454 Mass. 706, 719 (2009), quoting

Care & Protection of Three Minors, 392 Mass. 704, 711 (1984)

("It is within the judge's discretion to evaluate the

credibility of witnesses and to make [her] findings of fact

accordingly"). That the mother may have sent a "vague" e-mail

in 2022 that was inadequate to allow DCF to work with a private

social worker to set up a home visit does not leave us "with the

definite and firm conviction that a mistake has been committed."

Adoption of Larry, 434 Mass. at 462, quoting Custody of Eleanor,

414 Mass. at 799 (1993). Similarly, that the mother's attorney

asked for additional time for the mother to participate in

services "minutes before a foster care review" does not

seriously detract from the judge's finding that the mother "did

not timely seek additional time for action plan tasks."

The mother and Fiona further argue that the judge erred in

finding a nexus between the mother's problems with substance use

8
and any harm or danger to the children. "Evidence of alcohol or

drug abuse is . . . relevant to a parent's willingness,

competence, and availability to provide care." Adoption of

Anton, 72 Mass. App. Ct. 667, 676 (2008). A parent's substance

use disorder, however, is not sufficient to justify termination

of the parent's parental rights "[w]ithout a showing that the

mother's drug and alcohol use rendered her unable to provide

minimally acceptable care for her child." Adoption of Zoltan,

71 Mass. App. Ct. 185, 191 (2008).

Here, the evidence showed that the mother's drug use

negatively impacted each of the three children. The newborn

tested positive for cocaine and opiates and suffered prolonged

withdrawal effects requiring nearly a month-long

hospitalization. Prior to birth, the mother was deceptive with

DCF about her pregnancy status, declined offered services, and

refused to participate in drug screenings. The mother failed to

arrange for the care of the twins during her delivery, leaving

them unattended and unaware of what was happening until DCF

assumed custody of them.

"[T]he parent's willingness to engage in treatment is an

important consideration in an unfitness determination where the

substance dependence inhibits the parent's ability to provide

minimally acceptable care of the child." Adoption of Luc, 484

Mass. 139, 147 (2020). Here, the evidence demonstrated that the

9
mother's unwillingness to admit and treat her substance use

disorder and associated health diagnoses negatively affected her

children. Starting in January 2021, the mother lied to DCF

employees about her substance use disorder and never completed

any required drug screening tests. When her substance abuse

disorder resulted in numerous hospitalizations between July and

December 2021, the mother refused to provide medical releases to

DCF, failed to engage in consistent communication with DCF, and

repeatedly left the hospital against medical advice only to

return for assistance on a different day. Id., quoting

Petitions of the Dep't of Social Servs. to Dispense with Consent

to Adoption, 399 Mass 279, 289 (1987) ("the mother's

unwillingness to adhere to DCF's service plan, which required

her to obtain treatment for her mental health challenges and

substance use disorder, is 'relevant to the determination of

unfitness'"). It was in this period that the mother's visits

became spotty and unsatisfactory before ending altogether.

Moreover, the mother's inability to address her own medical

diagnoses mirrors her failure to adequately address those of her

children. Adoption of Lisette, 93 Mass. App. Ct. 284, 295

(2018) (affirming termination decree where mother "does not

fully understand the scope of [the child's] medical issues"

given failure to obtain necessary medical services). Prior to

DCF involvement in 2021, the twins were overdue for physical

10
examinations by nearly three years and required the scheduling

of specific medical appointments.

During visits with her children, the mother showed a lack

of understanding about her son's asthma and treatment and

indifference to his general care, deferring supervision and

treatment to her daughters. In one instance, the mother

informed the twins and the accompanying social worker that her

son was "crying too much," and that he would need to change his

behavior when he came home as "he's got to get used to her

somehow." The mother's consistent failure to address her own or

her children's medical needs provided substantial support for

the judge's conclusion that her unfitness was likely to continue

indefinitely.

Finally, the mother's argument that her past parenting

success establishes the likelihood of her future fitness is

unpersuasive. The mother ignores that the record demonstrates

that her problems with substance use have dramatically worsened

since her pregnancy with Braden, degenerating into multiple

hospitalizations. The mother's unwillingness to meet her

children's medical or academic needs prior to DCF custody has

expanded into her unwillingness to communicate with DCF or to

comply with the action plan following removal of the children.

The mother's failure to seek or accept services prior to May

2021 persisted throughout the entirety of proceedings despite

11
her access to nondepartment programs and an independent social

worker. Notably, the mother failed to attend her own children's

best interests trial. Given the lack of evidence of any

discernible progress by the mother after 2021, it was reasonable

for the trial judge to find, by clear and convincing evidence,

that the mother's present unfitness will continue indefinitely.

b. Best interests. It is not enough, however, merely to

determine that the parent is unfit and that the parent's

unfitness is likely to continue indefinitely. To terminate

parental rights, the judge must also determine that "the child's

best interests will be served by terminating the legal relation

between parent and child." Adoption of Ilona, 459 Mass. at 59.

As stated, this determination is within a judge's discretion.

See Adoption of Nancy, 443 Mass. 512, 516 (2005). Here, the

judge reasonably found that termination was in the best

interests of each of the children because it freed them for

adoption.

The trial evidence at the time the judge issued her

findings was that both Andrea and Braden had been placed in the

same home with a foster family that intended to adopt them.

Fiona had been placed in that home, but by February 2022 had

been removed because she was stealing and damaging the home and

getting into physical fights with her twin sister. In May 2022,

she would not discuss the possibility of adoption (or anything

12
about the future) with DCF. In August, however, she was placed

in a residential treatment program. The evidence before the

judge was that Fiona was "very much improved," "getting student

of the day multiple times a week," "participating with her

peers," and no longer getting into physical fights. The judge

was also told that "[t]he girls have been getting along" and

"would like to be together in the future." Moreover, counsel

for Fiona twice told the trial judge at trial that Fiona wished

to be freed for adoption. Based on that trial evidence, the

trial judge acted within her discretion in determining that

being freed for adoption was in Fiona's best interests. See

Adoption of Jacques, 82 Mass. App. Ct. at 610.3

Complicating the situation is a February 2023 permanency

report that was filed and considered by the judge in February

and March 2023 after the trial concluded such that it was not

part of the record at the time that the judge issued her

findings. That report revealed that, at some point before

February 2023, an external agency child assessment stated that

the twins should not be placed together. By this point, the

3 Similarly, based on this evidence, we discern no error in
the judge's finding that it was likely that Fiona would be
adopted by the preadoptive family. The judge recognized the
different situations faced by Fiona and Andrea and made a
reasonable prediction based on the evidence before her.

13
preadoptive family was not willing to adopt Fiona.4 This

information, however, was not a part of the trial record when

the judge issued her findings and thus we cannot consider it.5

"We address the propriety of the judge's orders based on the

evidence introduced at trial, and not on posttrial events."

Adoption of Willow, 433 Mass. 636, 644 n.8 (2001). Accord

Adoption of Inez, 428 Mass. 717, 722 (1999) (criticizing Appeals

Court for considering posttrial affidavits). Based on the

evidence before the judge at the time she issued her findings,

the judge acted within her discretion in terminating the

mother's parental rights to free the children for adoption.

4. Adoption plan. An adoption plan need not be "'fully

developed' in order to support a termination order, but it must

provide 'sufficient information about the prospective adoptive

placement "so that the judge may properly evaluate the

suitability of the department's proposal."'" Adoption of Varik,

95 Mass. App. Ct. 762, 770 (2019), quoting Adoption of Willow,

433 Mass. 636, 652 (2001). To determine the sufficiency of the

plan, the judge may consider evidence and testimony "regarding

4 Similarly, at some point prior to December 2023, Andrea
was removed from the preadoptive home. She continues to support
termination to be freed for adoption.

5 After the judge issued her findings, the parties entered
this report into the trial record but made no request for the
judge to reconsider the decrees or even to amend her findings.

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unfitness and the child's best interests, in addition to the

written plan." Adoption of Varik, supra. The judge's

determination that a particular plan is in the child's best

interests "presents 'a classic example of a discretionary

decision' to which we accord substantial deference." Adoption

of Jacob, 99 Mass. App. Ct. 258, 272 (2021), quoting Adoption of

Peggy, 436 Mass. 690, 705, cert. denied sub nom. S.T. v.

Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002).

Here, even considering only the trial evidence, the

adoption plan was deficient concerning Fiona. DCF's plan was

for Fiona to be placed with the preadoptive family, but the

social worker testified that this plan was "waiting on the

return of the child assessments," which were necessary "to help

us determine what is in their best interest for a final living

situation." Without the necessary information to determine a

suitable placement, this plan was far from ready to be approved.

To be sure, where matters are unsettled, it might be necessary

"to allow for flexibility in the plan." Adoption of Xarissa, 99

Mass. App. Ct. 610, 622 (2021). Rather than create a "written

plan [that] discussed in detail the child's mental health and

behavioral needs," id., however, the plan here blindly relied on

adoption by the preadoptive family despite recognizing that this

option might well neither be available nor in the child's best

interests. As "we may remand the matter for further proceedings

15
with regard to the department's proposed adoption plan without

vacating that portion of the decree that terminates the

[parent's] rights," Adoption of Varik, 95 Mass. App. Ct. at 774,

we vacate that portion of the decree that approves the adoption

plan and remand for further proceedings on this issue.

5. Visitation. The judge ordered parental visitation with

Fiona at least twice in 2023, once per year starting in 2024,

and after adoption only if the mother is sober and the adoptive

parent "agrees that it is not harmful to the child." Fiona (but

not the mother) challenges this order.6 At trial, however, Fiona

requested that there be no order of visitation and the issue,

therefore, is waived. See Adoption of Ursa, 103 Mass. App. Ct.

558, 570 (2023).

In any event, "[a] trial judge's decision whether to order

visitation between a child and a parent whose parental rights

have been terminated is reviewed for an abuse of discretion."

Adoption of Xarissa, 99 Mass. App. Ct. at 623-624. The mere

existence of parent-child bond is insufficient to require

frequent visitation, as "[t]he purpose of such contact is not to

strengthen the bonds between the child and [her] biological

6 Fiona also challenges the absence of an order of sibling
visitation. After Fiona filed her brief, the trial judge
laudably acknowledged that she had erred in not ordering sibling
visitation and entered an order for such visitation.
Accordingly, this issue is moot.

16
mother or father, but to assist the child as [she] negotiates

. . . the tortuous path from one family to another." Adoption

of Douglas, 473 Mass. 1024, 1028 (2016), quoting Adoption of

Vito, 431 Mass. 550, 564-565 (2000). Here, "[a]s the matter

progressed, the mother became less and less consistent with

visits." Adoption of Xarissa, supra at 624. The mother

"stopped visiting with the children by June 2022 and had missed

5 months of opportunities for family time as of the time of

trial," missed the termination trial, and abandoned the legal

proceedings. Under these circumstances, "the judge acted within

her discretion in finding a bond between the mother and child,

but concluding that requiring one court-ordered visit per year

was in the child's best interests." Id. at 625.

6. Conclusion. With regard to Fiona, we vacate that

portion of the decree approving DCF's adoption plan and remand

this matter for further proceedings in accordance with this

17
decision. In all other respects, the decrees as to the children

are affirmed.

So ordered.

By the Court (Blake,
Ditkoff & D'Angelo, JJ.7),

Clerk

Entered: October 31, 2024.

7 The panelists are listed in order of seniority.

18