Adoption of Dayten.

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-670

ADOPTION OF DAYTEN.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered by a Juvenile

Court judge after trial, finding the mother unfit to parent

Dayten (the child) and terminating her parental rights. The

decree also leaves post-termination visitation between the

mother and the child to the discretion of the child’s pre-

adoptive parents, but does not order that visitation must occur.

The mother contests the finding of unfitness, arguing that there

is an insufficient nexus between her conduct and the alleged

medical neglect of the child. The mother also contends that the

judge abused her discretion in declining to order post-

termination visitation. We are not persuaded and accordingly,

affirm.

Background. The child was born on June 14, 2015. On March

4, 2019, the Department of Children and Families (the

1 A pseudonym.
department) filed a petition alleging that the child was in need

of care and protection due to the mother’s medical neglect, and

the child was placed in the department’s custody. The child was

placed with his pre-adoptive family in August 2020, where he has

remained since that time. In February 2021, the mother

stipulated to current unfitness, and to the department’s

assumption of permanent custody of the child. Trial occurred in

May 2022, and the decree entered at its conclusion.2

a. The child’s asthma. The child suffers from severe

persistent asthma. While he was in the mother’s custody, the

child was seen by his pediatrician, Dr. Blasburg, on nine

occasions due to this condition. He was admitted to the

hospital four times -- in February, March, and June of 2018, and

in February 2019. While in the mother’s care and although the

mother was aware of the child’s asthma diagnosis, she failed to

bring the child to numerous scheduled medical appointments with

his pediatrician, specialists, and other providers. The child

was referred to Dr. May, a pulmonologist, in August 2018, but

the mother did not present the child for his initial

appointment. She also failed to bring the child to a scheduled

appointment in January 2019 with Dr. Goshharja, a specialist in

2 The child’s father filed a stipulation with the court agreeing
to a finding of parental unfitness, and the father’s parental
rights were terminated in July 2020.

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allergy and asthma. The child was referred to the Boston

Children’s Hospital Medical Home Asthma Program, but after the

child’s initial appointment the mother declined all follow-ups.

In February 2019, the child was treated at Plymouth Pediatric

Associates for symptoms of respiratory distress. When the

mother failed to bring the child to his follow-up appointment

six days later, on February 25, 2019, a mandatory reporter at

that facility filed a 51A report alleging medical neglect. The

department removed the child on March 1.

b. The mother’s smoking. The mother has a history of

cigarette smoking, which persisted long after the child was

diagnosed with asthma. The child has a significant sensitivity

to smoke. Although the mother testified at trial that she never

smoked in the home while the child resided there, the judge

found that she regularly returned indoors after smoking with

items that smelled of smoke, which the judge concluded evidenced

the mother’s failure to appreciate the effects of thirdhand

smoke. After the child was removed, the mother brought items

that smelled of smoke to visits.

The mother’s smoking habit persisted while the child was

still in her care and receiving treatment for asthma, and after

the child was removed. For example, the 51A report filed by the

mandatory reporter at Plymouth Pediatric alleged that during the

child’s nebulizer treatment on February 19, 2019, the mother

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excused herself to smoke a cigarette outside. The mother was

still smoking at the time of the March 2, 2020 foster care

reviews.

c. Dental issues. Subsequent to the child’s removal in

March 2019, he was found to be suffering from severe dental

decay, with nerve exposure on several teeth and the near total

disintegration of another tooth. The judge found that the

mother had failed to take the child to routine dental

appointments. The mother claimed at trial that the child had

received dental care at Dental Center Pediatrics (Dental Center)

in November 2018. The court did not credit this testimony in

light of other evidence that the child had not been seen by

providers at Dental Center since July 2018. After removal and

shortly before the child’s fourth birthday, in May 2019, the

child underwent dental surgery, during which he received, among

other things, four root canals and five extractions. The mother

admitted at trial that, while the child was in her care, she had

failed to brush the child’s teeth after nebulizer treatments for

his asthma.

d. The mother’s substance abuse. The mother has a long

history of substance abuse, including alcohol abuse and the use

of nonprescribed drugs. She has been addicted to opiates, which

she used intravenously during her pregnancy with the child. She

did not obtain routine prenatal care during her pregnancy. As a

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result of her substance use, the child was born exposed to

marijuana. The mother has also abused benzodiazepines. In June

2019, the mother admitted both to using substances and to

altering her toxicology screens. In July 2021, the department

learned that the mother signed a restricted release preventing

the department from obtaining her toxicology results from a

substance abuse treatment program. The mother admitted to

relapsing and using benzodiazepines in October and November of

2021 –- five months before trial. She did not seek

detoxification or inpatient treatment following these relapses.

e. Visitation history. Following the child’s removal, the

mother was initially permitted weekly visitation which she

consistently attended through June 2019. After that point, the

mother’s attendance grew less consistent through late 2019 and

January 2020. On one occasion in February 2020, a social worker

assigned to the case raised concerns about the mother’s

appearance, noting that the mother was pale and smelled strongly

of cigarette smoke. After the onset of the COVID-19 pandemic,

the mother was provided thirty-minute video visits. While

visiting with the child in June 2020, the mother presented with

delayed speech, and she was drooling and asking repetitive

questions. The mother claimed that her demeanor was due to a

dental issue of her own but failed to verify this statement, and

the judge did not credit her testimony.

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The judge found that the reduction in visits between the

mother and the child during the COVID-19 pandemic corresponded

with improvements in the child’s demeanor in the foster home.

Conversely, following visits with the mother and for several

days thereafter, the child exhibited signs of behavioral

regression –- increased tantrums and issues with toilet training

and wetting the bed. During virtual visits with the mother, the

child frequently hid under the desk or attempted to leave the

room. The mother testified that after the child was placed in

his pre-adoptive home, he grew increasingly disengaged during

visits, often refusing to speak with the mother or presenting as

angry. The parties attempted to recommence in-person visits

with the mother in April 2021, but the child became emotional

and violently refused to attend. The mother’s visitation was

reduced to monthly in September 2021, and her attendance

remained inconsistent.

The judge held a three-day trial concerning the termination

of mother’s parental rights in May 2022. The mother opposed the

termination and sought custody of the child or, in the

alternative, proposed that the child be placed with his maternal

grandmother. The judge declined to credit numerous statements

made by the mother during her testimony. On May 26, 2022, the

judge concluded that the mother was unfit, terminated her

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parental rights, and committed the child to the permanent

custody of the department.

With respect to visitation, as of the time of trial the

mother’s visits remained virtual. By that point, the child had

been residing with his pre-adoptive family for almost two years.

The child had refused in person visits with the mother since

March 2020. At the close of trial, the judge left post-

termination visitation between the mother and the child to the

discretion of the department and, as to post-adoptive

visitation, to the discretion of the adoptive family. This

appeal followed.

Discussion. The mother’s principal argument on appeal is

that the department failed to meet its burden to establish a

“clear nexus” between her conduct –- in particular, her

supervision of the child’s medical and dental health, her

smoking, and her substance use -- and harm to the child. She

also contends that it was improper for the department to use her

failure to bring the child to certain medical providers as

evidence of medical neglect, when the department itself

discontinued use of those providers post-removal. We disagree.

We review a decision to terminate parental rights for abuse

of discretion or clear error of law. Adoption of Elena, 446

Mass. 24, 30 (2006). We afford deference to the trial "judge's

assessment of the weight of the evidence and the credibility of

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the witnesses" (citation omitted). Adoption of Quentin, 424

Mass. 882, 886 (1997). To terminate parental rights, the trial

"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).

While parents have the fundamental right to parent their

children, that right must give way should the safety and welfare

of the child require state intervention. Petition of the New

Home for Little Wanderers to Dispense with Consent to Adoption,

383 Mass. 573, 587-589 (1981); Adoption of Greta, 431 Mass. 577,

587 (2007). In finding parental unfitness, the trial judge must

consider "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, 424 Mass. at 886, quoting Adoption of Mary, 414 Mass.

705, 711 (1993). The judge may "rely upon prior patterns of

ongoing, repeated, serious parental neglect." Adoption of

Kimberly, 414 Mass. 526, 529 (1993), quoting Adoption of Diane,

400 Mass. 196, 204 (1987).

1. The nexus between the judge’s findings and medical

neglect. At bottom, the mother’s argument is that there is an

insufficient nexus between the judge’s findings and the

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conclusion that the mother was and would remain unfit to care

for the child. The mother asserts that she was meeting the

child’s "basic needs," and that the concerns with medical

neglect were overstated.

As noted above, it is not our role to substitute our own

weighing of the evidence for that of the trial judge, but in any

event here the evidence of past neglect was consistent,

substantial, and continuing. This court has explained that

"[t]he specialized needs of a particular child when combined

with the deficiencies of a parent's character, temperament,

capacity, or conduct may clearly establish parental unfitness."

Petitions of the Dep't of Soc. Services to Dispense with Consent

to Adoption, 18 Mass. App. Ct. 120, 125 (1984), citing Petitions

of the Dep't of Soc. Services to Dispense with Consent to

Adoption, 389 Mass. 793, 799-800 (1983); Petition of the Dep't

of Soc. Services to Dispense with Consent to Adoption, 16 Mass.

App. Ct. 965, 966 (1983). Here, the evidence of prior medical

neglect included a marked failure to attend properly to the

child’s severe asthma issues. The child was repeatedly

hospitalized in the year before removal, yet the mother was

inconsistent in bringing the child to appointments with medical

providers regarding the issue. The child was hospitalized again

in February 2019, yet the mother missed another medical

appointment with the child’s doctor within a matter of days of

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discharge, shortly before the child was removed. The child’s

doctor confirmed that the asthma issues were acute, yet the

mother minimized the child’s condition, including in her trial

testimony.

a. The mother’s smoking. The mother continued to smoke

and to bring smoke into the child’s presence, despite knowing

that smoke was a trigger of the child's asthma. The mother’s

smoking continued after the child was removed, and the mother

remains living in a residence where smokers are present. Others

have also observed the mother smoking while the child was

present, including outside a medical facility where the child

was being seen for his asthma. The mother’s failure to

acknowledge the potential harmful effects of cigarette smoke on

the child and the evidence of her continued proximity to

cigarette smoke support the conclusion that she is unfit to

parent this asthmatic child.

b. Dental neglect. After removal, it became apparent that

the medical neglect extended to dental neglect as well. "Where

a parent is ineffective in obtaining medical care for a child,

causing neglect of the child, it is relevant to finding of

unfitness." Adoption of Anton, 72 Mass. App. Ct. 667, 676

(2008), citing Adoption of Ramon, 41 Mass. App. Ct. 709, 711

(1996). The mother failed to take the child to routine dental

appointments, admitted that she was supposed to brush the

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child’s teeth after asthma treatments but did not do so, and

gave the child high-sugar beverages several times per day. The

child’s resulting significant dental decay led to an involved

oral surgery. While the mother disputes that she knew of the

dangers of dental decay and gum disease related to nebulizer

treatments, that argument is beside the point. The child’s

dental problems were extensive (including one tooth that had

disintegrated), and it was reasonable to infer that these

problems could not have gone unnoticed absent neglect by the

mother.

c. Substance abuse. The mother’s substance abuse was

ongoing, and it was reasonable to infer that the substance abuse

had affected the mother’s care and might affect it again in the

future. A history of substance abuse is "relevant to a parent’s

willingness, competence, and availability to provide care,"

Adoption of Anton, 72 Mass. App. Ct. at 676, provided there is a

sufficient nexus between the substance use and unfitness. See

Care & Protection of Bruce, 44 Mass. App. Ct. 758, 763 (1998).

Here the evidence of substance abuse was not only in the past,

but continued up to the time of trial.

The mother has consistently failed to be honest with the

department regarding results of her toxicology screens, even

admitting to altering the results of tests in 2019. The

department raised concerns about whether the mother was under

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the influence of substances during a virtual visit with the

child in June 2020. The mother relapsed in her use of

benzodiazepines as late as November 2021, and despite being

aware of the dangers of withdrawal, did not seek inpatient

treatment. There was no error in the judge considering such

recent issues with ongoing substance use as evidence that the

mother’s unfitness would continue into the future.

d. Discontinuation of relationships with medical

providers. Finally, the mother suggests that the finding of

unfitness was inappropriate because the department discontinued

relationships with certain medical providers despite previously

faulting the mother for failing to utilize the same services.

The fact that the department adjusted the child’s medical

treatment plan post-removal does not bear on the mother’s

neglect of the child while the child was in her care. The

mother failed to attend scheduled appointment with current

providers and made no alternative arrangements for the child to

be seen by other service providers. Conversely, as the child’s

medical condition was better understood during the months after

removal, it was appropriate for the department to make changes

to the list of the child’s service providers. For instance, the

child was no longer in need of follow-up care from an allergist

when it was determined that the child did not have any

allergies.

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Given the judge’s findings regarding the mother’s failure

to properly address (and instead to minimize) the child’s

special medical needs as well as the mother’s smoking, her

neglect of the child’s dental needs, and the potential dangers

of her ongoing substance abuse, we are satisfied that there

exists a sufficient nexus to support the judge’s finding of

unfitness.

2. Post-termination visitation. Finally, the mother

argues that it was improper for the judge to fail to require

post-termination visitation. We review a decision declining to

order post-termination or post-adoption visitation for abuse of

discretion. See Adoption of Xarissa, 99 Mass. App. Ct. 610,

623-624 (2021), citing Adoption of Ilona, 459 Mass. 53, 66

(2011). In determining the appropriateness of post-termination

visitation, "a judge should consider, among other factors,

whether there is a 'significant, existing bond with the

biological parent' whose rights have been terminated[,]. . .

whether a preadoptive family has been identified[,] and, if so,

whether the child 'has formed strong, nurturing bonds' with that

family." Adoption of Iliona, supra at 63-64, quoting Adoption

of Vito, 431 Mass. at 563. Protecting the best interests of the

child is the overriding concern. Adoption of Terrence, 57 Mass.

App. Ct. 832, 839 (2003), quoting Adoption of Vito, supra at 562

("The judge's discretion is not . . . unfettered, but must be

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'grounded in the over-all best interests of the child, based on

emotional bonding and other circumstances of the actual personal

relationship of the child and the biological parent, not in the

rights of the biological parent nor the legal consequences of

their natural relation'").

Here, the judge acted within her discretion in declining to

order post-termination and post-adoption visitation between the

child and the mother. As discussed above, the evidence did not

show a strong existing bond between the child and the mother at

the time of trial. The mother’s visitations began being

inconsistent in late 2019, and during the pandemic the virtual

visits were relatively brief, and the child evidenced signs of

significant behavioral regression and emotional distress. Even

during virtual visits with the mother, the child frequently

appeared disengaged, attempted to leave the room, or hid from

view. At the time of trial, the child was emotionally bonded to

his pre-adoptive family. Under these facts, it cannot be said

that the judge abused her discretion in failing to order post-

termination visitation and in leaving post-adoption visitation

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to the discretion of the child’s adoptive parents. See Adoption

of Vito, 431 Mass. at 563.

Decree affirmed.

By the Court (Green, C.J.,
Neyman & Englander, JJ.3),

Assistant Clerk

Entered: March 26, 2024.

3 The panelists are listed in order of seniority.

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