Adoption of Mab.

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-1274

ADOPTION OF MAB.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees issued by a

Juvenile Court judge terminating their parental rights to their

daughter, Mab. We conclude that the judge properly found that

the mother was indefinitely unfit in light of her mental health

problems, her pattern of temporary improvement followed by

decline, and her lack of affirmative progress. We further

conclude that the judge properly found that the father was

indefinitely unfit as he required supports to parent

successfully and abandoned the many supports provided to him by

moving unannounced to New York. As set forth below, the judge

also properly based her conclusions on findings that the mother

and the father both had difficulty parenting their older

children. Further concluding that the trial judge properly

1 A pseudonym.
found that the Department of Children and Families (DCF) made

reasonable efforts to reunite the child with the father, we

affirm.2

1. Background. a. The mother's history. The mother has

a long history of mental health problems and has reported

diagnoses of anxiety, panic disorder, depression, attention

deficit hyperactivity disorder (ADHD), and an unspecified

learning disability. In April 2008, after the birth of her

first child, the mother refused to attend therapy or a parenting

program, and she was not prescribed any medication to treat her

mental health. DCF assumed custody of the mother's first child,

and the mother was never reunified with that child.

In March 2014, the mother applied for DCF services as she

admitted that she struggled to take care of her second and third

children.3 Between 2014 and 2019, the mother failed to have

those two children consistently attend daycare or school. In

2018, the mother admitted that her depression caused her to

struggle to get up in the morning, preventing her from helping

her two children attend daycare or school. There is no evidence

that the mother was doing anything to address her mental health

2 The mother does not challenge the judge's finding that DCF
made reasonable efforts to reunify the child with her.

3 The mother's second child was born in July 2011, and her
third child was born in September 2013.

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at the time. The mother had multiple angry outbursts against a

social worker at the children's daycare and her mother (maternal

grandmother), whom she was living with at the time. The

maternal grandmother's house was in a state of disarray with a

cockroach infestation and piles of dirty clothes, garbage, and

animal feces throughout the house.

In February 2019, DCF assumed custody of the mother's

second and third children.4 Following removal, the mother

engaged with an individual therapist but never signed a release

for the DCF social worker to speak with the therapist. In 2019,

the mother completed a neuropsychological evaluation, an anger

management class, and a parenting program.

b. The father's history. The father has an intellectual

disability and cannot read or write. In February 2013, DCF

responded to a report of the father's and his then partner's

disinterest in raising the younger of their two children.5 The

father's apartment was filthy as the floor was barely visible

under piles of food, trash, and clothing. The apartment was in

a drastically improved state when the DCF social worker returned

4 The mother was never reunified with her second child. She
was briefly reunited with her third child between April 2021 and
January 2022.

5 At the time, the father and his then partner had two
children, a daughter born in January 2012 and a second daughter
born in February 2013.

3
two days later. In July 2013, the father's younger child

sustained second degree burns after the father attempted to give

the child a bath in boiling water. In July 2017, the father's

apartment was again in a state of disarray with unclean surfaces

and old food on the floor. That same month, DCF removed both

children, and the father's parental rights to the younger child

were terminated.

c. Removal of Mab. The mother and the father met before

July 2011, and the child was born in July 2020. At first, the

child lived with the mother and the mother's third child in a

family shelter. In December 2021, the mother, the third child,

and Mab moved into the father's apartment. The following month,

the mother and the father had an argument which escalated to the

mother's threatening the father with a knife, breaking the

kitchen microwave, and dumping food from the refrigerator and

cabinets onto the floor. The mother was arrested, and DCF

removed both children. Mab was temporarily placed with her

paternal aunt before being placed in foster care in February

2022. In August 2023, she was placed in a preadoptive home and

has remained with her preadoptive family since.

d. The mother's involvement postremoval. Following the

removal of the child, the mother initially continued to live

with the father before returning to live with the maternal

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grandmother. In February 2022, the month following the removal

of the child, DCF referred the mother and the father to

Communitas, a specialized parenting program for persons with

cognitive disabilities. After four or five months, the referral

for the mother was closed as she missed appointments and failed

to cooperate with the parenting aide.

Around the same time, the mother enrolled in an intimate

partners violence (IPV) program. In August 2022, while in a

motor vehicle, the mother and the father engaged in a verbal

fight, leading to the mother's exiting the vehicle when the

father pulled into the breakdown lane. After officers

responded, the father was arrested for assault and battery on a

police officer and resisting arrest. The following month, the

mother was arrested after she assaulted her sister when the

sister made disparaging comments about her. The mother

recognized that her "mental health was everywhere" in that

moment and she checked herself into the emergency room and a

subsequent week-long mental health treatment program. The

mother was prescribed a mood stabilizer and attention deficit

disorder medication. Previously, the mother was prescribed

medication for only her depression.

In August 2023, the mother completed the IPV program but

did not take accountability for her past domestic violence. The

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following month, the mother was again referred to the parenting

aide from Communitas but the mother again declined to engage

with the service.

The mother attended nearly all her visits with the child

and arrived on time for these visits. In May 2023, the mother's

visits with the child were increased to supervised biweekly

visits of three hours. The mother was appropriately engaged

with the child during visits and responded to the child's needs,

including ending visits early if the child was tired. During

two separate visits in 2023, the mother demonstrated appropriate

emotional regulation as she did not become flustered by

circumstances outside of her control. The judge found that the

mother formed a positive emotional bond with the child.

In April 2023, the DCF social worker referred the mother to

a shelter after she expressed interest in moving out of the

maternal grandmother's house given its uncleanliness. The

mother had experienced housing instability since her first

involvement with DCF in 2008 and experienced homelessness during

the trial. In January 2024, the mother asked for and received a

third referral for a parenting aide through Communitas. The

mother met with the aide weekly and was receptive to the

parenting aide's advice.

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e. The father's involvement postremoval. Following the

removal of the child, the father accepted and completed the

referral to Communitas. Around the same time, the father

enrolled in and later completed an IPV program. Following

completion of the IPV program, the father enrolled in a

nurturing father's program. In May 2022, the father requested

and received a second referral to another parenting aide but

struggled with absorbing the provided information and missed

appointments.

Throughout his time in Massachusetts, the father engaged

with the Department of Developmental Services (DDS). The

father's DDS provider assisted the father with shopping and

paying rent. Given the father's inability to read or write, the

DCF social worker read aloud the action plan during home visits

and provided copies of the plan to both the father's DDS

provider and his attorney. In May 2022, the father and his

attorney met with the DCF's social worker and DCF's Americans

with Disability Act (ADA) team. From October 2022 through

December 2023, the father attended weekly visits with a

therapist. This therapist worked with the father to improve his

reading and writing.

Beginning in December 2022, the father married and began

visiting New York weekly, where his wife and his wife's two

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children resided. In August or September 2023, the father moved

his belongings to New York without notifying DCF. The father's

move violated the father's criminal probation conditions. The

father gave contradictory testimony about the move. He

testified on October 5, 2023, that he was living in New York,

but then testified on October 12 that he had moved back to

Massachusetts and expected his wife to move there as well. The

judge found that the latter testimony was false. As late as

March 2024, the DCF social worker had no confirmation of where

the father lived.

Prior to the move, the father had regularly attended his

biweekly visits with the child. After October 2023, the father

failed to attend any in-person visits with the child. In

September 2023, the father was referred to the same parenting

aide he had previously worked with from Communitas but the

father failed to meet with the aide as he lived in New York.

The same month, the father was removed from the nurturing

father's program. When the father visited Massachusetts in

December 2023, he did not visit with the child despite visiting

with one of his other children. Since moving to New York, the

father has not engaged in any services and has made no attempt

to engage with services. Between October 2023 and March 2024,

the DCF social worker was unable to contact the father.

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In February 2023, the father completed a parenting capacity

evaluation with Dr. Nicole Brisson. She determined that the

father had "very strong conative abilities," meaning the ability

"to learn the parenting skills . . . and the motivation to

continue to improve his parenting and learn ongoing." She

opined that he required supports to parent, such as a DDS

provider or a therapist. At trial, Dr. Brisson acknowledged

that it would be problematic if the father did not have supports

beyond his new wife.

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

9
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 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

10
(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

3. Parental unfitness. a. The mother's unfitness.

"Mental disorder is relevant only to the extent that it affects

the parents' capacity to assume parental responsibility."

Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of

Frederick, 405 Mass. 1, 9 (1989). Here, the mother argues that

the trial judge failed to consider her improved mental health,

particularly after she was prescribed a mood stabilizer in

September 2022. We disagree. In her decision, the trial judge

specifically cited two 2024 visits where the mother exhibited

emotional control in difficult situations and noted the mother's

request for and work with a parenting aide in January 2024.

Accordingly, the judge recognized the mother's improved mental

health since September 2022 but permissibly considered this

recent improvement within the broader context of her overall

history. See Adoption of Jacques, 82 Mass. App. Ct. at 608

("judge was entitled to consider the evidence of her recent

improvements within the context of her earlier and continuing

deficits"). When considered in this context, the mother's

recent improvement fits within an established pattern of

temporary improvement followed by reversion. See id. at 607,

quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989)

11
("Although 'stale information cannot be the basis for a finding

of current parental unfitness . . . [p]rior history . . . has

prognostic value'").

This pattern began in 2008 when the mother refused to

address her mental health, leading to the removal of her first

child. Between 2014 and 2018, the mother admitted to DCF that

she was overwhelmed by her parenting responsibilities,

particularly in ensuring her children attend daycare and school.

The mother subsequently admitted that her unaddressed depression

contributed to her being unable to help her children get to

daycare and school in the morning.

Upon removal of her second and third children in 2019, the

mother showed signs of improvement, enrolling in individual

therapy and completing a neuropsychological evaluation, an anger

management class, and a parenting program. These improvements

proved temporary, however, as the mother was again overwhelmed

by her parental responsibilities following the birth of Mab in

2020 and the return of her third child in 2021. Although the

mother continued to attend individual therapy, she declined to

sign a release of her therapist's notes to the DCF social

worker. After the child was removed in January 2022, the mother

refused to cooperate with her parenting aide, ending the service

after just four or five months. When referred back to the aide

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in September 2023, the mother again refused the service,

insisting that she had "passed" her last session. Moreover, the

mother demonstrated no accountability for her past domestic

violence upon completing the IPV program.

Even after the mother was prescribed a mood stabilizer in

September 2022, the mother failed to show any positive signs of

progress (as opposed to the mere absence of problems) until she

requested a parenting aide referral in January 2024.

Accordingly, in light of the limited affirmative evidence of the

mother's progress, it was reasonable for the judge to rely on

the mother's history of a lack of cooperation with DCF services

and general lack of accountability in determining that the

mother remained indefinitely unfit. Adoption of Luc, 484 Mass.

at 145 ("a judge may rely upon a parent's past conduct with

regard to older children to support a finding of current

unfitness as to a different child, so long as that evidence is

not the sole basis for the judge's unfitness determination").6

6 The mother's argument that the judge placed "undue
emphasis" on the mother's housing instability is unavailing.
The trial judge noted that the mother experienced housing
instability throughout her history with DCF and that the mother
was homeless during the later trial dates. See Adoption of
Knox, 102 Mass. App. Ct. 84, 93 (2023) (judge may consider
"demonstrated inability to provide [the child] a safe and stable
home"). As noted by the trial judge, the mother's housing
instability was "not determinative," but was relevant because it
exemplified the effects of the mother's mental health problems.

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b. The father's unfitness. The father argues that "the

judge diminished Father's positive parenting traits and chose to

focus on his shortcomings due to his mental incapacity." We

disagree. The evidence at trial, particularly the testimony of

Dr. Brisson, established that the father needed a support system

given his cognitive disability. Prior to his engagement in

services, the father demonstrated significant parental

shortcomings, as exemplified by his failure to understand the

risks of his bathing his second child in boiled water.

Moreover, even when engaged in services, the father plainly

needed help as shown by his inability to remember Mab's clothing

sizes, or the grade or school of his oldest child. Moreover,

the father was unable to identify the oldest child's specific

learning disability and the services she received and was

further unable to contact Mab's pediatrician even after being

told how to do so. Accordingly, it was reasonable for the trial

judge to conclude that the "Father's mental deficiencies

necessitate a strong support system for him to adequately care

for [the child]."

Consistent with the evidence at trial and Dr. Brisson's

opinion, the judge noted that, "[w]ith the proper supports,

Father has an equitable opportunity to parent his children."

The judge properly credited the father for engaging "in

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individual therapy . . . , DDS services, an IPV program, a

parenting class, and with numerous parent aides." This positive

engagement, however, was completely undone by the father's

unannounced and unacknowledged move to New York. By not

providing DCF or DDS notice of his move, the father effectively

abandoned the services he required and had come to rely on to

parent successfully. Moreover, the move was compounded by the

father's failure to seek New York-based services. The evidence

at trial, corroborated by Dr. Brisson, established that the

father could not rely on only his new wife for support.

Finally, the father's abandonment of his needed services

must be considered in light of his effective abandonment of the

child. After October 2023, the father maintained only virtual

visits with the child and failed to visit the child when he

returned to Massachusetts to visit his oldest child. Given the

father's near complete disengagement with DCF and the child

since October 2023, it was reasonable for the trial judge to

conclude that the father was indefinitely unfit.

4. Reasonable efforts. "The department is 'required to

make reasonable efforts to strengthen and encourage the

integrity of the family before proceeding with an action

designed to sever family ties.'" Adoption of West, 97 Mass.

App. Ct. 238, 241 (2020), quoting Adoption of Lenore, 55 Mass.

15
App. Ct. 275, 278 (2002). "A judge's determination that the

department made reasonable efforts will not be reversed unless

clearly erroneous." Adoption of West, supra at 242.

Here, the record at trial supported the judge's finding

that DCF made reasonable efforts to reunite the father and the

child. Indeed, the evidence showed that, from the outset, DCF

appropriately tailored its services to the father's cognitive

disability. Within a month of the child's removal, DCF referred

the father to a parenting aide who specialized in working with

those with cognitive disabilities. After this service concluded

and the father met with DCF's ADA team in May 2022, DCF

immediately referred the father to a second parenting aide who

had previously worked with those with cognitive disabilities.

In September 2023, DCF referred the father to the Communitas

parenting aide he had first worked with, but the father did not

meet with the aide as he was then living in New York. Moreover,

given the father's inability to read or write, the DCF social

worker read aloud the action plan tasks and "would try to use

language that was easy to understand" during home visits and

provided copies of the plan to both the father and his attorney.

Finally, between October 2022 and December 2023, the father

attended weekly visits with a therapist who worked with the

father to improve his reading and writing.

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The father's argument that DCF did not make reasonable

efforts to reunite him with the child because it failed to offer

him services while he was in New York is unpersuasive. The

evidence at trial shows that the father never definitively told

his social worker that he had moved to New York and indeed

falsely testified that he had moved back to Massachusetts.

Given the fact that the father initially was only visiting New

York weekly and that the father testified to such in August

2023, it was not immediately apparent that the father had in

fact permanently moved to New York as of the fall of 2023.

Although the father testified in October 2023 that he lived in

New York, his social worker was unable to contact him between

October 2023 and March 2024 to confirm that the father had in

fact permanently moved to New York. If the father had been

forthcoming about his move in the fall of 2023, DCF would have

had a fair opportunity to engage its counterpart in New York in

providing services.7 Accordingly, the trial judge reasonably

7 For the same reason, the father's claim that DCF failed to
initiate an Interstate Compact on the Placement of Children
(ICPC) request is unpersuasive. Moreover, there is nothing in
the ICPC statute, St. 1963, c. 452, § 1, that requires DCF to
make an ICPC request when a parent moves out of state. Instead,
"ICPC applies when an agency seeks to transfer a child out of
State 'for placement in foster care or as a preliminary to a
possible adoption.'" Adoption of Zaden, 104 Mass. App. Ct. 523,
526 (2024), quoting St. 1963, c. 452, § 1.

17
concluded that DCF made reasonable efforts. Adoption of Yalena,

100 Mass. App. Ct. 542, 554 (2021) ("The department's obligation

to make reasonable efforts to reunify the child with the mother

is contingent upon her obligation to substantially fulfill her

parental responsibilities [including seeking and using

appropriate services]").

Decrees affirmed.

By the Court (Ditkoff, Hand &
Grant, JJ.8),

Clerk

Entered: August 12, 2025.

8 The panelists are listed in order of seniority.

18