Adoption of Agatha.

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

22-P-254

ADOPTION OF AGATHA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree of the Juvenile Court

finding her unfit to parent her daughter, Agatha, terminating

her parental rights as to Agatha, and approving the adoption

plan proposed by the Department of Children and Families (DCF).2

The mother also appeals from the trial judge's order for

posttermination and postadoption visitation, arguing that the

judge abused his discretion in ordering only two virtual visits

per year.3 We affirm.

Background. Agatha was born in January 2015. DCF first

became involved with this family at that time because Agatha

1 A pseudonym.
2 The Juvenile Court judge also determined that the mother is
unfit to parent her older child, Ben (a pseudonym). Both the
mother's and Ben's appeals regarding Ben have been dismissed as
moot because Ben attained the age of majority in November 2022,
while this appeal was pending.
3 The father, who neither appeared at trial nor appealed from the

termination of his parental rights, is not a party to this
appeal.
tested positive at birth for marijuana and Oxycodone and

required treatment with morphine for withdrawal symptoms.

The mother and father, who had been in a relationship for

approximately twenty years until their separation in March of

2021, have lengthy substance abuse histories. The mother

started using alcohol and marijuana in her teenage years, self-

medicated with Percocet following her mother's death in 2006,

and thereafter escalated to using heroin, cocaine, and fentanyl.

The mother began medication assisted treatment with Suboxone in

2007, switched to methadone treatment in 2008, and has engaged

in methadone maintenance since. Her longest period of self-

reported sobriety was two and one-half years leading up to her

January 2020 relapse, which the judge did not credit due to her

positive drug screens for fentanyl in June of 2019.

On April 2, 2020, a G. L. c. 119, § 51A, report (51A

report) was filed alleging neglect of then fifteen year old Ben

(see note 2, supra), and five year old Agatha by the mother and

father stemming from the parents' substance abuse and lack of

compliance with treatment. The judge found that during the

ensuing G. L. c. 119, § 51B, investigation, the mother "made

several promises to engage in treatment but failed consistently

to do so, [she] continued to actively use substances, and [she]

minimized the severity of [her] ongoing substance abuse."

2
DCF filed the instant care and protection petition on April

21, 2020, and obtained emergency custody of Ben and Agatha. The

children were initially placed with the paternal grandmother

until October 2020.4 During that time, each of the mother's ten

drug screens were positive for cocaine or a combination of

cocaine and fentanyl, and she participated in only five of the

eighteen visits DCF offered with the children. The mother

produced her first clean drug screen and began an intensive

outpatient program in November of 2020, following the children's

removal from their paternal grandmother's home and placement in

foster care. The mother's period of sobriety was temporary,

however, as she relapsed in February of 2021 with all six drug

screens from February 25, 2021, through August 11, 2021, testing

positive for cocaine, fentanyl, or both. Despite the mother's

statement in October of 2020, that she would end her

relationship with the father if he continued to use substances,

the two did not separate until March of 2021. While the

mother's visitation attendance had been more consistent during

her period of sobriety, she attended six, and was late to five,

of the eleven offered visits between April and early July of

2021.

4 The children were removed in October 2020, after a 51A report
was filed alleging neglect by the paternal grandmother and her
live-in partner for, among other things, excessive alcohol
consumption in the home.

3
On September 21, 2021, trial was held during which the

mother, the ongoing social worker, the adoption social worker,

and Ben testified, and nineteen exhibits were admitted in

evidence. On November 8, 2021, the judge found the mother unfit5

to parent Agatha, terminated the mother's parental rights,

dispensed with the need for parental consent to adoption, and

approved DCF's proposed adoption plan for Agatha to be placed

with a great-aunt in California pending an approved Interstate

Compact on the Placement of Children (ICPC).6 The judge also

ordered two virtual posttermination and postadoption visits

between Agatha and the mother each year.7 The mother appealed.

See note 2, supra.

Discussion. 1. Termination of parental rights. "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

5 We note that "[d]espite the moral overtones of the statutory
term 'unfit,' the judge's decision was not a moral judgment or a
determination that the mother . . . [does] not love the child"
(citation omitted). Adoption of Bea, 97 Mass. App. Ct. 416, 417
n.2 (2020).
6 At the time of trial, Agatha had participated in one in-person

visit and ten virtual visits with her great-aunt. One further
interview was required before California approved or denied the
ICPC.
7 The judge initially did not include an order of posttermination

and postadoption contact in his November 8, 2021 decision, but
did so in his subsequent findings of fact and rulings of law.

4
to care for the child and that termination is in the child's

best interests" (citation omitted). Adoption of Yalena, 100

Mass. App. Ct. 542, 549 (2021). "Parental unfitness is

determined by considering a parent's character, temperament,

conduct, and capacity to provide for the child's particular

needs, affections, and age." Care & Protection of Vick, 89

Mass. App. Ct. 704, 706 (2016). "We give substantial deference

to a judge's 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).

The mother contends that some portions of the judge's

findings8 were erroneous and that absent those findings, DCF did

not meet its burden to prove parental unfitness by clear and

convincing evidence.9 We disagree. Even assuming the challenged

8 Specifically, the mother argues that the record did not support
the judge's findings that (1) she "failed to produce any [urine]
screens from May 28, 2021 through July 13, 2021, roughly a
three-month period," (2) she chose not to visit with the
children from April 2020 through June 2020, and (3) the social
worker "observed an appropriate relationship between Mother and
the children." The mother also argues that the judge's
conclusion of law that "[t]he parents' actions as a couple are
troublesome" is unsupported by the record to the extent the
judge determined that the mother and father continued to "act as
a couple" at the time of trial.
9 The parties dispute whether the mother conceded parental

unfitness based on her trial testimony and her counsel's
statements during closing argument. When asked whether she was

5
portions of the judge's findings were error,10 the record

supports the judge's critical findings and "the judge's over-all

conclusion of parental unfitness is fully supported by the

record." Adoption of Helen, 429 Mass. 856, 859-860 (1999).

The judge's extensive findings support his conclusion that

the mother was unfit to parent Agatha. The record amply

supports the judge's findings that, inter alia: the mother

exposed Agatha to drugs during pregnancy; the mother used drugs

"here today to get custody back" of her children, the mother
testified: "Maybe not get custody back, but I'm not ready to
just give all rights up." Furthermore, the mother's counsel
argued in closing that the mother "objects to [Agatha] being
adopted," but was "looking for either the paternal grandmother
to be reconsidered, and in the interim, having . . . permanent
custody maybe to the [DCF]." Even assuming the mother did not
waive or concede parental unfitness, we discern no clear error
in the judge's finding, which is supported by clear and
convincing evidence, that the mother is unfit for the reasons
discussed infra.
10 To the extent the judge found that DCF offered the mother

opportunities to visit the children from April 2020 through June
2020 that she declined, we will assume arguendo that the finding
was clearly erroneous where the record reflects that DCF began
offering virtual visitation on June 24, 2020, and in-person
visits in July 2020. With respect to the other challenged
findings, the judge repeatedly acknowledged that the mother and
father are no longer in a relationship and concluded that the
mother had a loving relationship with Agatha. Furthermore, the
record supports that the ongoing social worker observed an
"appropriate" relationship between the mother and Agatha, and
that the mother did not provide urine screens between May 28,
2021, and August 11, 2021. Even assuming all of the challenged
findings were erroneous, however, the judge's determination of
parental unfitness is supported by clear and convincing
evidence.

6
while caring for her children;11 the mother failed to separate

from the father, who was actively using drugs, until March of

2021; the mother's substance abuse has continued throughout the

pendency of this case aside from a period between November of

2020 and February of 2021;12 the mother has refused to engage in

inpatient treatment despite repeated promises to do so; the

mother has not benefited meaningfully from her inconsistent

participation in services; the mother "continually placed her

own interests above those of her children"; the mother's

substance abuse has caused her to "neglect [Ben]'s and

[Agatha]'s need for adequate supervision appropriate to their

ages, their need for a stable home life with proper routine and

structure, the children's dental care, and [Ben]'s attendance

and success at school"; and despite not being employed, the

mother failed to regularly confirm and attend visits with her

children and did not visit them for two months prior to trial.

See Adoption of Luc, 484 Mass. 139, 144-146 (2020) (clear and

convincing evidence of unfitness based in part on mother's

11 Although the mother claimed that she used drugs when the
children stayed overnight at the paternal grandmother's house,
the paternal grandmother stated that the children never stayed
at her home overnight. Accordingly, the judge did not err in
not crediting the mother's claim.
12 The mother tested positive for cocaine, fentanyl, or both in

seventeen out of twenty-three drug screens from April of 2020
through August of 2021, and admitted to using drugs one week
before the trial.

7
substance abuse, noncompliance with services, and neglect of

older children); Adoption of Mario, 43 Mass. App. Ct. 767, 770-

771 (1997). The judge's findings are specific, detailed, and

demonstrate close attention to the evidence. See Adoption of

Anton, 72 Mass. App. Ct. 667, 673 (2008). Furthermore, the

judge considered the required factors set forth in G. L. c. 210,

§ 3 (c), and found factors (ii), (iii), (iv), (vi), (viii),

(ix), (x), and (xii) applicable. We discern no clear error in

the judge's determination, supported by clear and convincing

evidence, that the mother is unfit to parent Agatha.

We reject the mother's contention that there was

insufficient evidence of a nexus between her substance abuse and

her inability to care for Agatha. See Adoption of Katharine, 42

Mass. App. Ct. 25, 34 (1997) ("a cocaine habit, without more,

[does not] translate[] automatically into legal unfitness to act

as a parent"). As the judge acknowledged, the mother's

"longstanding substance abuse history endangered [Agatha] even

before she was born," with Agatha requiring hospitalization and

morphine treatment for withdrawal symptoms for three weeks after

her birth. The record supports "that the mother continually

placed [Agatha] at risk and engaged in a pattern of neglect, due

in part to her drug abuse and resulting instability." Adoption

of Mario, 43 Mass. App. Ct. at 772.

8
The mother further maintains that even if DCF met its

burden of proving parental unfitness, the judge abused his

discretion in terminating her parental rights. We disagree.

Contrary to this assertion, the judge did not err or abuse his

discretion in terminating the mother's parental rights before

the ICPC was approved. See Adoption of Jacques, 82 Mass. App.

Ct. 601, 610 (2012) ("the absence of imminent adoption prospects

does not, by itself, invalidate a decision to terminate parental

rights"). "[N]othing in the record suggests that the mother was

likely to address her drug problem in the near future, or that

her ability to parent [Agatha] would improve." Adoption of

Mario, 43 Mass. App. Ct. at 771. "In these circumstances, where

the [mother] has had ample opportunity to achieve fitness as a

parent but has failed to follow through, it is only fair to the

child[] to say, at some point, 'enough.'" Adoption of Nancy,

443 Mass. 512, 517 (2005).

2. Posttermination and postadoption visitation. We are

likewise unpersuaded by the mother's argument that the judge

abused his discretion in ordering only two virtual

posttermination and postadoption visits between the mother and

Agatha each year.13

13The mother did not argue that posttermination and postadoption
visitation was in Agatha's best interests, nor did she request
such visitation, during trial. See Adoption of Mary, 414 Mass.
705, 712 (1993); Adoption of Gillian, 63 Mass. App. Ct. 398, 408

9
After parental rights are terminated, it is within the

judge's broad discretion to order posttermination and

postadoption visitation between the parent and child. See

Adoption of Douglas, 473 Mass. 1024, 1027 (2016). A two-part

inquiry informs a judge's decision to order visitation: "First,

is visitation in the child's best interest? Second, in cases

where a family is ready to adopt the child, is an order of

visitation necessary to protect the child's best interest, or

may decisions regarding visitation be left to the judgment of

the adoptive family?" Adoption of Ilona, 459 Mass. at 63. To

determine whether visitation is in the child's best interests, a

judge should consider "whether there is 'a significant existing

bond with the biological parent' whose rights have been

terminated." Id. at 63-64, quoting Adoption of Vito, 431 Mass.

550, 563 (2000).

Here, the judge determined that posttermination and

postadoption visitation between Agatha and the mother was in

Agatha's best interests based on their loving relationship

despite the mother's inconsistency in confirming and attending

visits.14 Acknowledging that "no evidence was presented

(2005) (issue of visitation waived where parents did not raise
it at trial). Even assuming the issue is not waived, we discern
no abuse of discretion in the judge's order for posttermination
and postadoption visitation for the reasons discussed infra.
14 By contrast, the judge determined that visitation with the

father was not in Agatha's best interests where he demonstrated

10
regarding the adoptive resource's willingness to facilitate

visitation," the judge determined that an order was necessary to

safeguard Agatha's best interests. See Adoption of Rico, 453

Mass. 749, 757 (2009). The judge properly sought to "balance

the benefit to the child of an order of visitation that will

provide assurance that the child will be able to maintain

contact with [the mother], with the intrusion that an order

imposes on the rights of the adoptive parents." Adoption of

Ilona, 459 Mass. at 64. On the record before us, we cannot say

that the judge's decision to order two annual virtual visits was

"a clear error of judgment in weighing the factors relevant to

the decision such that the decision falls outside the range of

reasonable alternatives" (quotation and citation omitted). L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Decree affirmed.

By the Court (Neyman, Grant &
Hershfang, JJ.15),

Clerk

Entered: June 6, 2023.

no "willingness or ability to be a present force in [Agatha]'s
life."
15 The panelists are listed in order of seniority.

11