Adoption of Geneva.

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

24-P-749

ADOPTION OF GENEVA. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Geneva appeals from a decree issued by a

judge of the Juvenile Court terminating her parental rights,

dispensing with her consent to adoption, approving Geneva's

adoption plan, and declining to order posttermination or

postadoption visitation. 2 The mother contends that the judge

failed to make independent findings of fact, and impermissibly

adopted the findings and conclusions of law proposed by the

1 A pseudonym.

2The judge also terminated the parental rights of Geneva's
father. He is not a party to this appeal.

Geneva argues for affirmance of the decree. She contends
that there was overwhelming evidence that her mother is unfit to
parent her and that termination of the mother's parental rights
is in her best interest. She notes that this case has "dragged
on for seven years," which has caused her "mental and physical
anguish," and that she is entitled to the stability that
adoption by her preadoptive family will bring her.
Department of Children and Families (department). She further

argues that some of those facts are clearly erroneous, and that

the judge failed to adequately consider her progress in

achieving sobriety and her participation in mental health

treatment in determining that termination of her parental rights

was in Geneva's best interest.

We conclude that although the preferred practice is for the

judge to write an independent set of findings of fact, in this

case the findings are amply supported by the evidence and none

of them are erroneous. We further conclude that the decision to

terminate the mother's parental rights was based on clear and

convincing evidence, which established that she had a long

history of neglecting Geneva and that she suffered from

untreated mental illness and alcohol abuse. Despite the

mother's progress in addressing these issues prior to trial, the

judge did not abuse his discretion in determining that she was

not currently fit to assume parental responsibilities, that her

unfitness would likely continue indefinitely into the future,

and termination was in Geneva's best interests. Accordingly, we

affirm.

Background. In a previous care and protection proceeding,

the mother entered into a written stipulation, which was

approved by the judge, granting permanent custody of Geneva to

the department. Thereafter, following a trial on the

2
department's petition to terminate parental rights, at which the

mother, one of Geneva's preadoptive foster parents, a department

social worker, a forensic trauma evaluator, and a third-party,

visitation supervisor testified, the judge concluded that the

mother was currently unfit to assume parental responsibility for

Geneva and that it served Geneva's best interests to terminate

the mother's parental rights. We summarize the relevant facts

found by the judge as follows, all of which find support in the

record.

The mother struggled for years with substance misuse prior

to Geneva's birth. She began drinking at the age of fifteen and

later used cocaine and marijuana. 3 Geneva was born on May 14,

2015. Within two weeks of her birth, on May 28, 2015, the

department received a report pursuant to G. L. c. 119, § 51A

(51A report), alleging the mother's neglect of Geneva. 4

Specifically, the report, which was later supported, included

allegations that Geneva was severely sunburned and there was a

lack of attachment between the mother and Geneva. When Geneva

was three months old, in August 2015, she qualified for early

3 The mother's struggle with addiction contributed to her
losing custody of her older son, who tested positive for cocaine
at birth. The mother's parental rights to that son were
terminated in 2010, and he has since been adopted.

4 The 51A reports "set the stage" only. Adoption of Chad,
94 Mass. App. Ct. 828, 830 (2019), quoting Custody of Michel, 28
Mass. App. Ct. 260, 267 (1990).

3
intervention services due to developmental deficits but did not

receive the services to which she was entitled because the

mother did not follow through with enrollment. Although the

mother initially agreed to work with a parent partner in

November 2015, the mother did not sign the necessary releases

and ultimately refused the service altogether.

Meanwhile, the mother's living situation was precarious.

Upon Geneva's birth, the two lived together at a residential

shelter. However, by December 2015, they were placed in an

emergency assistance motel due to the mother's "inappropriate

[conduct] with shelter residents and staff, refus[al] to engage

with people of color and refus[al] to engage with shelter

support staff and referred services." During the mother's time

at the motel, staff shared concerns regarding her failure to

follow through with daycare programs, lack of engagement with

mental health and substance abuse treatment, and insufficient

interactions with Geneva. In addition, on one occasion, staff

reported that Geneva was left to sleep on a changing table. On

another occasion, the police responded to a report that the

mother was pushing Geneva's baby carriage, shaking it, and

screaming at Geneva while walking in the rain. Both the mother

and Geneva were soaked and subsequently transported to the

hospital for an evaluation. One month after this incident, a

department social worker conducted a home visit at the shelter

4
motel and observed the mother to have a "flat affect," a lack of

interaction and affection with Geneva, and noted that Geneva was

not verbal.

In July 2016, the mother and Geneva moved in with the

mother's former foster family. The family subsequently shared

concerns regarding the mother's presentation, alcohol use, and

ability to provide sufficient care for Geneva. In April of

2017, the department received two 51A reports alleging neglect

as the mother was observed by police to be "incoherent, under

the influence, and suffering from mental health issues."

The department assumed emergency custody of Geneva after

receiving an additional 51A report filed on June 14, 2017, which

was later supported, alleging that the mother was abusing

alcohol while caring for Geneva, as evidenced by her slurring

her words, acting incoherently, and sleeping all day while

Geneva was in her care. At the time, Geneva was twenty-five

months old and "was found to be developmentally delayed with a

sad and flat affect and to be non-verbal." Geneva had three

short-term foster placements until she was placed in her current

preadoptive home on July 5, 2017.

After the department obtained custody of Geneva, the mother

was offered services and action plans were created. The action

plans, which were modified over time, required the mother to,

among other things, abstain from alcohol, complete a

5
neuropsychological evaluation, attend parenting group classes,

maintain stable housing, and engage in vocational training. The

mother made efforts toward completing several of these tasks,

and she complied with a portion of the tasks assigned to her.

However, contrary to her claim, she did not maintain sobriety

and she was not able to achieve improvement in her parenting

skills and judgment. 5

Additionally, and notably, the mother failed to engage

appropriately with Geneva during visits. The social workers who

were present during visits at various locations observed that

Geneva had very limited interactions with the mother, did not

answer her questions, and would move herself to be physically

distant from the mother. It appeared that Geneva did not enjoy

the visits and that they caused her anxiety. The judge found,

"Geneva who otherwise is amiable and chatty with her foster

parents, social workers and others does not talk about her

mother almost at all except to express displeasure to have to

attend visits."

5 As the judge found, the department offered several
parenting services to the mother, including three parent
partners and two in-home therapy teams. Many of these services
ended because of the mother's lack of engagement with the
service provider and lack of increase in the mother's parenting
skills and judgment. The judge further found that "Mother has
not accepted treatment programs in full and chose the pieces she
felt served her needs."

6
Based on the mother's interactions with Geneva during

visits and her failure to engage in ongoing mental health and

therapeutic services, the department changed the goal for Geneva

to adoption in March 2018. Four months later, on July 19, 2018,

the mother gave birth to her third child (son), who has been

removed from the mother's custody three times due to concerns of

neglect and the mother's consumption of alcohol. 6 The department

arranged for visits between the mother, Geneva and the new baby,

but the visits were not successful. The mother could not

supervise both children and Geneva increasingly became

disengaged.

At the time of trial in November 2022, Geneva was seven

years old. The judge found that Geneva wanted to be adopted by

her preadoptive family and had expressed frustration over the

fact that her adoption has not been finalized. The judge also

found that Geneva had developed a strong and healthy attachment

with her preadoptive parents and would be negatively affected if

6 In July 2019, the son was removed from the mother's
custody after a 51A report alleged that she was under the
influence while caring for him, and she had admitted to police
that she had consumed at least ten beers and two wine coolers.
The son was removed from the mother's care again after she
failed a breathalyzer test, a condition for custody, in April
2020. He was removed a third time after the mother tested
positive for alcohol on March 19, 2021, a day after she entered
into the written stipulation finding the mother unfit and giving
the department permanent custody of Geneva.

7
she were to be removed from their care. Geneva was engaged in

numerous extracurricular activities and the preadoptive family

was providing a "healthy, safe, and stimulating upbringing for

[Geneva]." With regard to the mother's ability to parent Geneva

currently or in the future, the judge noted that the mother

failed to acknowledge and address her "long history of drug

overdoses, alcohol arrests, alcohol hospitalizations, physically

violent encounters with others,[7] psychiatric hospitalizations,

and mental health encounters." Thus, despite some progress in

achieving sobriety and participating in mental health treatment,

the judge concluded that termination of the mother's parental

rights was in Geneva's best interests.

Discussion. "In deciding whether to terminate a parent's

rights, a judge must determine whether there is clear and

convincing evidence that the parent is unfit and, if the parent

is unfit, whether the child's best interests will be served by

terminating the legal relation between parent and child."

Adoption of Ilian, 91 Mass. App. Ct. 727, 729 (2017), quoting

Adoption of Ilona, 459 Mass. 53, 59 (2011). "When reviewing a

decision to terminate parental rights, we must determine whether

the trial judge abused his discretion or committed a clear error

7 In 2018, the mother reported an extensive history of
domestic violence in two prior relationships. She had
reconstructive surgery to her face due to being assaulted by
abusive partners and may have suffered a traumatic brain injury.

8
of law." Adoption of Elena, 446 Mass. 24, 30 (2006). "When

making this determination, subsidiary findings of fact must be

supported by a preponderance of the evidence, with the ultimate

determination of unfitness based upon clear and convincing

evidence." Adoption of Rhona, 63 Mass. App. Ct. 117, 124

(2005).

1. Findings of fact. The mother asserts that the judge

erred by largely adopting the department's proposed findings of

fact. While it is true that many of the judge's findings

closely track those proposed by the department, and therefore

are "subjected to stricter scrutiny by an appellate court[,]"

(citation omitted), Adoption of Hank, 52 Mass. App. Ct. 689, 693

(2001), the findings "are not to be rejected out-of-hand, and

they will stand if supported by evidence." Care & Protection of

Olga, 57 Mass. App. Ct. 821, 823-824 (2003), quoting First Pa.

Mtge. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n.12

(1985). Although we emphasize that the preferred practice is

for the judge to issue independent findings, 8 we may not reject

findings -- even those "lifted wholesale" from one party's

8 Our cases have consistently held that "[p]roceedings aimed
at dispensing with parental consent to adoption involve high
stakes and deeply important personal rights. It is critical,
therefore, that the judge's decision reflects careful factual
inspection [of the evidence] and specific and detailed findings
by the judge" (quotation and citations omitted). Care &
Protection of Olga, 57 Mass. App. Ct. at 823.

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proposal -- if they are supported by the evidence. Care &

Protection of Olga, supra. See Adoption of Hank, supra (where

"a judge has adopted a party's proposed findings verbatim[,] we

continue to review those findings under the clearly erroneous

standard"). Here, the judge explicitly acknowledged that he

relied on the department's submission and further stated that he

had conducted an independent review of the evidence. 9 The

judge's findings, including those adopted from the department's

submission, are sufficiently supported by the evidence in the

record, 10 and, more importantly, support the judge's ultimate

conclusion that the mother is currently unfit, her unfitness is

likely to continue into the indefinite future, and that

terminating her parental rights is in Geneva's best interests.

9 The judge wrote that "[a]ny adoption of proposed findings
in whole or part was done to conserve resources as the proposed
findings reflected the facts as I find upon independent
consideration."

10We note that a number of the judge's findings are taken
from a summary contained in the forensic trauma evaluation
prepared by Christina Chludzinski, who was qualified at trial as
an expert in child forensic evaluations. In fact, the
department's proposed findings incorporate many portions of this
summary verbatim. The report itself was introduced as a joint
exhibit at trial with no limitations. Chludzinski also
testified that she conducted a "thorough review" of all relevant
records in conducting her evaluation. As such, it was
reasonable for the judge to rely on this report in making his
findings.

10
The mother also argues that certain findings of fact -- one

concerning positive tests for alcohol, and the other concerning

the psychological harm to Geneva should she be removed from her

preadoptive home -- are clearly erroneous. "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" (quotation and

citation omitted). Custody of Eleanor, 414 Mass. 795, 799

(1993). We discern no merit to either challenge.

First, with respect to the alcohol tests, the mother argues

that finding number thirty-four, which states that she tested

positive for alcohol "several times," is both misleading and

clearly erroneous because she was tested approximately 2,496

times and of those tests only three were positive. 11 This claim

does not require extensive discussion because even if we were to

accept the mother's assertion that the finding is misleading,

there was substantial evidence of the mother's misuse of alcohol

and the extent to which it impacted her ability to parent Geneva

11The judge found that "Mother's positive[] [breath test
results] were often near court dates and times of other stress.
She denies alcohol relapse during these periods. The Court did
not credit her testimony on this point."

11
apart from what the mother perceives to be positive evidence of

her sobriety.

Next, the mother challenges the judge's finding that Geneva

would suffer psychological harm should she be removed from her

preadoptive family (finding number sixty-one). However, the

judge was entitled to credit the expert testimony of the

forensic trauma evaluator, who concluded that Geneva would like

to be adopted and would likely be psychologically harmed if she

were separated from her foster family. See Custody of Eleanor,

414 Mass. at 799 ("the judge's assessment of the weight of the

evidence and the credibility of the witnesses is entitled to

deference").

Finally, as to the mother's claim that the judge erred by

failing to consider how potential harm to Geneva could be

alleviated should she be removed from her preadoptive home, any

such failure (and we discern none) would have no bearing on the

ultimate issue. In other words, because the evidence fully

supported the department's plan for Geneva to be adopted by her

preadoptive family, it was not necessary to address the issue of

how best to accomplish her removal. See Care & Protection of

Olga, 57 Mass. App. Ct. at 824-825.

2. Unfitness determination. The mother contends that even

if the judge's findings of fact are not clearly erroneous, the

judge abused his discretion in terminating her parental rights

12
because the facts as found were not sufficient to support a

determination of unfitness by clear and convincing evidence. We

acknowledge, as the mother asserts, that the department has the

burden of proof; however, we are not persuaded that the judge

committed an error of law or abused his discretion. See

Adoption of Xarissa, 99 Mass. App. Ct. 610, 615-616 (2021)

("[w]here 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" [quotation and citation omitted]). Here,

the judge's determinations as to the mother's present and future

unfitness are supported by sufficient evidence to meet the

requisite standard and the subsidiary findings regarding the

mother's substance use, unaddressed mental health issues,

history of child neglect, lack of parenting skills, failure to

improve those skills through services, and refusal to cooperate

with the department.

Furthermore, contrary to the mother's assertion, the judge

properly considered all the evidence in determining that the

mother was not likely to meet Geneva's needs in the future. He

did not rely exclusively on "past history of alcohol and

substance use" in his determination of unfitness. Instead, the

13
judge found that despite evidence of the mother's sobriety at

the time of trial, the mother had not made any "real progress in

recovery from her addiction/substance abuse problems which have

already le[]d to three children's removal and the adoption of

the oldest child." In sum, the judge acted within his

discretion when he considered the mother's decades-long pattern

of substance abuse and declined to credit her testimony

regarding sobriety. See Custody of Eleanor, 414 Mass. at 799-

800; Adoption of Yvonne, 99 Mass. App. Ct. 574, 581 (2021).

The mother also challenges the judge's conclusion that her

struggles with mental health warranted a finding of unfitness.

A "[m]ental [health] disorder is relevant only to the extent

that it affects the parent['s] capacity to assume parental

responsibility, and ability to deal with a child's special

needs." Adoption of Frederick, 405 Mass. 1, 9 (1989). Here,

the record contains evidence of a nexus between the mother's

unaddressed mental health issues and her ability to parent.

While there is evidence of the mother's eventual engagement in

mental health treatment, the judge was entitled to "rely upon

past patterns of parental neglect or misconduct in determining

current or future fitness." Adoption of Virgil, 93 Mass. App.

Ct. 298, 301 (2018).

Lastly, the mother argues that the judge failed to consider

several facts in her favor. While the record contains some

14
evidence of the mother's appropriate behavior during visits and

her completion of certain action plan tasks, a host of other

factors supported the determination of unfitness. We note that

the mother does not challenge the judge's findings concerning

her lack of engagement in services apart from stating that

"[h]er resistance to [the department] was a typical response for

[department] clients." Nor does she contest the instances where

she neglected her children. Our review leads us to conclude

that the mother's arguments "amount to no more than a

disagreement with the judge's weighing of the evidence and

credibility determinations regarding witnesses." Adoption of

Don, 435 Mass. 158, 166 (2001).

Decree affirmed.

By the Court (Rubin, Hand &
Smyth, JJ. 12),

Clerk

Entered: May 21, 2025.

12 The panelists are listed in order of seniority.

15