Adoption of Gino.

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-588

ADOPTION OF GINO.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge terminated the

mother's parental rights to her youngest child, Gino. On

appeal, the mother contends that the Department of Children and

Families (department) failed to demonstrate by clear and

convincing evidence that the mother was unfit to assume parental

responsibility, and that the unfitness was likely to continue

into the indefinite future. We affirm.

Background. The mother, thirty-two years old at the time

of trial, dropped out of the ninth grade and suffers from

diagnosed mental health issues, including bipolar disorder,

attention deficit hyperactivity disorder, major depression,

anxiety, posttraumatic stress disorder, and intellectual

impairment. She also is a client of the Department of

1 A pseudonym.
Development Services (DDS), which offers support to adults with

intellectual or developmental disabilities. A DDS program

enables her to reside with a host family in the community. In

addition, she receives benefits through Social Security and food

assistance through SNAP. She has experienced a history of

unemployment and housing insecurity, and domestic violence

witnessed by the child.

Due to concerns of neglect, the mother does not have

custody of any of her four children. Her oldest son, born in

2011, has been in the custody of his father since 2013. Her

middle two sons, born in 2016 and 2018, respectively, were

removed from mother's care in 2018, and her parental rights were

terminated three years later. She gave birth to her youngest

son, Gino, the subject of the termination decree here, in

September 2020. As to Gino, department involvement began two

months after his birth, when he was diagnosed with "failure to

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

report), alleged that the mother neglected the child due to

concerns surrounding the child being underweight. The child

also suffered from additional conditions, including extra digits

on his hands (corrected shortly after birth), a heart murmur,

and he later exhibited delays in walking and speech. The

department investigated the allegation of neglect, substantiated

the concern, and opened a case for services.

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On March 25, 2022, the event precipitating department

custody of the child occurred when the mother allegedly

brandished a knife and threatened her DDS foster parents during

an argument when the child (then eighteen months old) was

present. The police arrested the mother and charged her with

assault by means of a dangerous weapon, and the department

assumed emergency custody of the child. The mother's foster

parents obtained a restraining order against her, and she became

homeless.

With the child in department custody, concerns remained

about his weight and development. The department filed a care

and protection petition on March 28, 2022. On March 29, the

department filed for temporary custody, and the mother waived

her rights at the hearing the following day. The child's foster

parent discovered a tongue-tie that impacted his ability to

speak. The child required surgery to correct the tongue-tie,

but if the condition had been noticed when the child was

younger, an in-office procedure could have obviated the need for

surgery. He also required surgery to widen his urethral

opening. The child continued to improve his mobility issues and

continued to require speech therapy. His preschool program

included an individualized education program, and he showed

progress in dealing with bouts of emotional dysregulation and

tantrums. The child's "particularized needs are significant and

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will likely require extraordinary attentiveness and

understanding on the part of his caregiver."

On January 3, 2024, following a trial at which the mother

testified, a judge found the mother (and unnamed father) unfit

and the child in need of care and protection. The judge

approved the department's plan for adoption of the child by his

current foster mother. The judge also determined that

posttermination and postadoption contact between the mother and

the child would be in his best interests, but the judge declined

to enter orders as to the frequency and extent of the contact.

The child has lived with his current foster (now preadoptive)

mother since May 2022.

Discussion. "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). "In determining whether the best interests

of the children will be served by issuing a decree dispensing

with the need for consent, a 'court shall consider the ability,

capacity, fitness and readiness of the child's parents.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.

c. 210, § 3 (c). "We give substantial deference to a judge's

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decision that termination of a parent's rights is in the best

interest of the child, 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. 53,

59 (2011). "[D]issatisfaction with the judge's weighing of the

evidence" is not a sufficient basis to warrant relief on appeal.

Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

We disagree with the mother's claim that the department's

case "rested on ill-defined concerns" that amounted to "smoke

without fire." To the contrary, the judge exhaustively

considered the factors set forth in G. L. c. 119, § 26, and

G. L. c. 210, § 3 (c), including the best interests of the

child, in making his decision. Of particular note, the judge

concluded that the mother (1) lacked insight into the reasons

for the department's initial and ongoing concerns, (2)

demonstrated extensive housing and employment instability, (3)

lacked insight and understanding of the child's medical needs

and the care required to address them, (4) failed to identify

and acknowledge the child's need for ongoing intensive services,

(5) failed to maintain engagement in supportive services, (6)

failed to consistently attend and be prepared for parent-child

visits, (7) refused to provide any information regarding her

intellectual disability to enable the department to address her

needs, and (8) failed to place the child's needs above her own.

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We discern no error or abuse of discretion and conclude that the

evidence supported the judge's findings and ultimate

conclusions. See Adoption of Jacques, 82 Mass. App. Ct. at 606.

Cognitive limitations. The record contradicts the mother's

contention that the judge found her unfit merely "because of her

cognitive limitations." This contention is at odds with the

judge's comprehensive findings and conclusions as well as the

judge's cautionary note that he "considered the evidence in the

aggregate, and ha[d] not given conclusive weight to any single

component standing alone." The judge's conclusions show his

concern was not with cognitive limitations per se, but with the

mother's "lack of insight regarding her mental health history

and intellectual disability." In particular, she was "not . . .

forthright with information about her disability," and she

"hampered the Department's ability to understand[] her needs"

and provide appropriate services. She identified "stable

housing as the only obstacle she needs to overcome."

The record is replete with examples where the mother's lack

of insight into her own limitations impaired her ability to

understand and meet the child's basic needs. While

acknowledging that the mother brought the child to all his

medical appointments, the judge found that the mother ultimately

"did not follow instructions and/or recommendations from

providers, with attendant consequences on [the child's]

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health/wellbeing." The judge also noted, "Despite contrary

reports, Mother also represented that the baby consistently

gained weight, never lost weight, and was never underweight."

When the child was two months old, the mother disclosed that he

cried every two hours after feeding, but she would insist on

waiting three to four hours to feed him. See Adoption of

Oliver, 28 Mass. App. Ct. 620, 625 (1990) (parent found unfit

where infant hospitalized for inability to gain weight and

parent showed "no comprehension of his problems and does not

acknowledge that he has problems"). Also, after attending the

child's medical appointments, the mother still lacked insight

into his medical needs as the mother called the nutrition plan

formulated by the Grow Clinic "useless," and independently

stopped giving the child appropriate supplemental food. The

judge expressly found that the mother "continues to demonstrate

a lack of insight and understanding of [the child's] medical

needs despite attending the majority of his appointments, and it

is unclear whether she would be willing and/or able to follow

his [health] provider's instructions." Given that the mother

"still does not agree with [the child's] diagnosis of failure to

thrive" or that his small size was not due to genetics alone,

but rather was due to his diet and nutritional intake, the

evidence supported the judge's unfitness determination. See

Adoption of Dora, 52 Mass. App. Ct. 472, 478 (2001) (noting

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failure to heed medical advice when child was ill as evidence of

parental unfitness).

Employment and housing instability. We disagree with the

mother's further assertion that the judge's finding regarding

her inability to secure a stable home environment was

unsupported by the evidence. "While homelessness, poverty, and

financial instability alone are not sufficient to terminate a

person's parental rights, they are proper considerations in an

unfitness determination." Adoption of Virgil, 93 Mass. App. Ct.

298, 303 (2018). Here, the judge properly considered these

factors as part of his overall analysis, and his findings and

conclusions are supported by the evidence. For the majority of

her adult life, the mother has been unemployed and dependent on

individuals and service providers for housing. While pregnant

with the child, the mother obtained housing in a DDS mentor

home, and she remained there after the child's birth.

Unfortunately, the mother disrupted this placement when she

threatened her host family with a knife, and she then became

homeless. Since that incident, the mother has struggled to

maintain stable housing, moving between shelters, homes of

family and friends, and additional DDS home placements. See

Adoption of Vito, 431 Mass. 550, 555 (2000) (inadequate housing

properly considered along with other evidence of unfitness).

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The judge did consider the mother's most recent move into

DDS housing at the time of trial. The judge concluded, however,

that it was "unclear whether her current DDS placement is able

and/or willing to accommodate placement of [the child]." As the

judge noted, the mother did not provide her social worker with

her current address or allow the department to view the

residence and conduct a home visit to assess its appropriateness

for placement of the child. See Adoption of Yvonne, 99 Mass.

App. Ct. 574, 581 (2021) (judge properly considered housing

instability where the department was "unable to verify the

mother's living situation or conduct home visits"). Moreover,

the judge was not required to give greater weight to a current

housing placement of three months when balanced against a long

history of unstable housing. See Adoption of Abigail, 23 Mass.

App. Ct. 191, 196 (1986) ("A past pattern of behavior is . . .

not irrelevant; it has prognostic value"). Thus, there was

ample evidence for the judge to find that the mother's housing

instability contributed to her current parental unfitness.

Child visits. The mother next faults the judge for his

"wholly unreasonable" inferences drawn from the mother's failure

to avail herself of two "day passes" to visit with the child.

We disagree. The day pass is designed to provide "an

opportunity [for the parent] to demonstrate her ability to be a

full-time caregiver for [the child] moving forward." The day-

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pass issue was just one of many instances cited by the judge as

evidence showing a lack of the mother's engagement with the

child: she frequently arrived late to visits despite being

unemployed; she failed to bring diapers, wipes, and nutritional

food to visits; and she needed to be reminded to change the

child's diaper during visits. See Adoption of Frederick, 405

Mass. 1, 7 (1989) (mother's inability to engage or interact with

child during visits factored into unfitness); Adoption of Darla,

56 Mass. App. Ct. 519, 522 (2002) (unfitness shown by failure of

parents to visit child).

We do not read the judge's findings as holding the mother's

financial circumstances against her regarding the day passes.

Instead, the judge expressly "recognize[d] that Mother has a

limited income" but she "was not able to identify or ask for

specific supports from the Department or service providers to

enable her" to spend time with the child. The judge further

noted that the department "worked extensively" with the mother

to make the day pass work and agreed to provide her with a

stroller, car seat, and lunch box to ensure a successful visit.

Her only obligation was to "formulate a plan" (including pick

up, drop off, and nap times) to care for him from 9 A.M. to

5 P.M. She produced no plan and pulled the plug on the visit at

the last minute, protesting that she needed one hundred dollars

for travel and food. The department provided a second

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opportunity for a day pass, but the mother did not produce any

plan, and the day pass did not go forward. The judge could

properly consider the day-pass issue in evaluating whether the

mother had the "capacity to provide for the child in the same

context with the child's particular needs, affections, and age."

Adoption of Mary, 414 Mass. 705, 711 (1993).

Action plan. Next, we turn to the mother's claims

regarding her action plan compliance. First, she contends that

the judge erred by attaching any significance to her failure to

complete a neuropsychological evaluation, because that task was

removed from the action plan. Second, she contends that

parenting classes should not have been included in the action

plan.

We agree with the mother that the department removed the

neuropsychological evaluation from the action plan. The judge's

findings, supported by the record, so indicate: "In August

2023, Mother's Action Plan was updated and the task requesting

she complete a neuropsychological evaluation was removed." We

need not decide whether this factual finding precluded the judge

from concluding that the mother's failure to complete the

neuropsychological evaluation indicated, as the judge put it,

that she "resisted or outright refused some services outlined in

her Action Plans." Even if the judge erred, "there was no

resulting prejudice." Adoption of Luc, 484 Mass. 139, 148

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(2020). See Adoption of Eden, 88 Mass. App. Ct. 293, 297 (2015)

("where a decision terminating parental rights contains a small

number of minor factual errors, we may nonetheless affirm the

decree without recourse to a remand to the trial court").

Because of the extensive evidence supporting unfitness, an

isolated error does not require remand of this case to the trial

court.

As to mother's failure to take parenting classes, we do not

agree that the judge should have disregarded the mother's

failure to complete this task in light of the record before him.

The parenting class was part of the action plan, and the

"failure to follow service plan tasks . . . may be relevant to

determining parental unfitness." Adoption of Leland, 65 Mass.

App. Ct. 580, 585 (2006). Beyond that consideration, the judge

found that a parenting class would have been helpful for the

mother to understand the child's milestones, medical needs,

early intervention involvement, "challenges, speech and language

needs, and overall development." The judge properly considered

the mother's resistance to parenting classes, and the weight he

assigned to that evidence was within his discretion. See

Adoption of Quentin, 424 Mass. at 886 n.3.

Even if, as the mother contends, she substantially complied

with all other action plan tasks, we discern no error by the

judge. Indeed, the judge credited testimony and reports

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specifically recognizing that the mother consistently engaged in

individual therapy and worked with family stabilization

services. Despite her participation, the mother did not show

progress in understanding her shortcomings and stated

"repeatedly that she is an 'awesome parent' and the only thing

she needs to improve upon is finding stable housing." Even

though the mother engaged in some services, the judge concluded

that the mother's participation did not necessarily translate

into an understanding of her parenting deficiencies. See Care &

Protection of Martha, 407 Mass. 319, 328 (1990). We discern no

error in this determination. The judge was not obliged to

believe that the parenting skills of the mother had improved

simply because she cooperated with the department or showed good

intentions. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143

(1999).

Future unfitness. In terminating parental rights, it is

also "appropriate for a judge to consider 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"

(citation omitted). Care & Protection of Zeb, 489 Mass. 783,

788 (2022). "Because childhood is fleeting, a parent's

unfitness is not temporary if it is reasonably likely to

continue for a prolonged or indeterminate period." Adoption of

Ilona, 459 Mass. at 60.

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As evidence of her temporary unfitness, the mother points

to a line in a twenty-three page report of an expert clinician

noting that the mother "is capable of providing for [the

child's] basic needs with strong social support." The

clinician's statement is qualified by the crucial next sentence:

"However, she doesn't acknowledge that support is needed in

caring for a child." Evidence before the judge demonstrated

that the mother is resistant to support services because she

does not believe that she needs help parenting. See Adoption of

Luc, 484 Mass. at 146-147 (failure to recognize need for or to

engage consistently in treatment is relevant to determination of

unfitness). Thus, even though evidence shows that the mother

loves the child, made efforts to participate in many department

services, and had some parenting strengths, the record supports

the judge's determination that the mother is unable to

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comprehend the necessary steps towards obtaining and maintaining

a safe environment for her child and that the mother "will

remain unfit indefinitely."

Decree affirmed.

By the Court (Meade, Sacks &
Hodgens, JJ.2),

Clerk

Entered: February 11, 2025.

2 The panelists are listed in order of seniority.

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