Adoption of Nando.

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-70

ADOPTION OF NANDO. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a judge of the Juvenile Court issued a

decree finding the mother unfit to parent her son, Nando,

terminated the mother's parental rights, committed Nando to the

permanent custody of the Department of Children and Families

(department), and approved the department's plan for adoption. 2

The mother appeals, arguing that the judge abused her discretion

by prematurely terminating the mother's parental rights while

she was engaging in services and making progress toward parental

fitness. We affirm.

1 A pseudonym.

2The judge also terminated the parental rights of the
putative father. He did not participate in the trial and does
not join in this appeal.
Background. Nando was born substance exposed in June 2022.

He weighed roughly four pounds at birth and tested positive for

fentanyl, cocaine, and methadone. He spent three weeks in the

neonatal intensive care unit to recover from neonatal abstinence

syndrome. The department immediately filed a care and

protection petition pursuant to G. L. c. 119, § 24. The

department took emergency custody of Nando in the hospital and

subsequently moved him into a kinship placement, where he

remained at the time of trial on the termination of parental

rights. In his kinship placement, Nando lives with his older

half-brother, 3 his preadoptive parents, and their five children,

all of whom he has bonded with. The mother has never had

custody of Nando and has never lived with him.

After Nando was born, the mother left the hospital against

medical advice, in part because she wanted to continue using

substances. Between June 2022 and January 2023, the mother's

contacts with the department were sparse. The judge found that

the mother was homeless during this interval. She did not see

Nando at all and did not request any visits with him.

In January 2023, the mother was arrested for threatening

staff members at a detoxification facility. The mother was

3 The mother's parental rights to Nando's half-brother had
already been terminated in a prior proceeding.

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incarcerated for one month on preexisting default warrants. She

subsequently entered a prerelease program and moved into a

residential drug treatment facility as a condition of her

probation. At the time of trial, which took place over six

nonconsecutive days between March 2023 and August 2023, the

mother continued to reside in the drug treatment facility.

Upon arriving at the drug treatment facility in March 2023,

the mother's compliance with the department's family action plan

improved. Notably, the judge found that at the time of trial,

the mother had been sober for five months. Between March 2023

and July 2023, the mother had at least six supervised visits

with Nando. During the visits, she behaved appropriately and

never appeared to be under the influence.

The mother's progress on the family action plan was not

uniformly positive, however. To address the mother's extensive

history of mental health challenges, the family action plan

required the mother to undergo treatment with an individual

therapist. Although the mother testified that she had engaged a

therapist, she failed to sign releases related to her mental

health treatment. The judge did not credit this testimony and

found that the mother had failed to participate in individual

therapy.

The mother also failed to meaningfully address her long-

standing housing insecurity. The drug treatment facility did

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not allow children to live there, and the mother was required to

remain at the facility as a condition of her probation. The

judge found it was impossible for the mother to take custody of

Nando and that she had no concrete plans for her housing after

leaving the facility. The mother has never lived on her own and

testified that she does not know how to run a household.

At the trial on the termination of her parental rights, the

mother conceded that she was unable to take custody of Nando but

argued that she would become fit by continuing to engage in

services. In her findings and conclusions of law, the judge

ruled that the mother's unfitness was not temporary and that it

was in the best interests of Nando to terminate the mother's

parental rights.

Discussion. 1. Termination of parental rights. "To

terminate parental rights to a child, the judge must find, by

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

the child's 'best interests will be served by terminating the

legal relation between parent and child.'" Adoption of Luc, 484

Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53,

59 (2011). The judge "must also find that the current parental

unfitness is not a temporary condition." Adoption of Virgil, 93

Mass. App. Ct. 298, 301 (2018). The judge is afforded

discretion in assessing the evidence and determining the best

interests of the child. See Adoption of Jacob, 99 Mass. App.

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Ct. 258, 266 (2021). An abuse of discretion occurs when the

judge makes "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

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

a. Unfitness. At trial, the mother conceded that she

could not take custody of Nando because the drug treatment

facility does not allow children to live there. The issue is

whether the judge abused her discretion by finding that the

mother's unfitness was not temporary. We cannot conclude that

the judge abused her discretion. The mother's struggles with

substance misuse, mental illness, and homelessness were long-

standing. See Adoption of Ilona, 459 Mass. at 62 (judge did not

abuse her discretion in terminating parental rights where

parent's shortcomings were long-standing and improvement was not

significant). Although the judge found that the mother had

achieved five months of sobriety at the time of trial, she did

not make the same progress toward addressing her housing and

mental health concerns. See Adoption of Elena, 446 Mass. 24, 30

n.4 (2006) ("sobriety and efforts at rehabilitation at the time

of trial do not require a finding of current fitness"). The

judge found that the mother was not forthright about her failure

to undergo treatment with a therapist and had no concrete plans

for housing.

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The mother argues that the judge should have given her six

more months to continue her recovery with the aim of becoming

fit to parent Nando. The judge was not required to wait in

abeyance for an uncertain recovery. See Adoption of Elena, 446

Mass. at 34 n.6 ("A judge may say 'enough' when faced with an

indeterminate period of time required for parental recovery, if

recovery is a viable possibility"). Between June 2022 and

January 2023, the mother had virtually no contact with the

department and never visited Nando. See id. at 32 (mother made

no effort to contact children during the four months after they

were removed from her care and did not engage in services during

that time). Only after the mother's arrest and detoxification

did she begin to engage with the family action plan. As the

judge observed, the mother's progress was "too little, too

late."

Even after this point, the mother's compliance with the

family action plan was inconsistent at best. See Adoption of

Rhona, 63 Mass. App. Ct. 117, 126 (2005) (parent's failure to

cooperate with department's service plan was relevant to

determination of unfitness). The judge found that the mother

failed to consult with an individual therapist to address her

mental health conditions. The mother's lack of a concrete

housing plan was also probative of permanent unfitness, given

that she had never lived on her own before. The mother's

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progress in maintaining her sobriety is commendable. We cannot

conclude, however, that the judge abused her discretion in

terminating parental rights where the mother's shortcomings were

persistent and her attention to the family action plan was both

belated and incomplete. See Adoption of Flavia, 104 Mass. App.

Ct. 40, 50 (2024) (even where there are recent improvements,

court may view a "constellation of factors" combined with "lack

of transparency" that "creates a likelihood that old patterns

of . . . unhealthy behavior may recur" [citation omitted]).

b. Best interests of the child. The judge did not abuse

her discretion by concluding that the best interests of Nando

would be served by terminating the mother's parental rights.

See Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017) (judge

must determine whether termination of parental rights is in

child's best interests). The judge found that Nando's

preadoptive parents have cared for his special needs, which

include verbal and developmental delays. In comparison, the

judge concluded that the mother lacked an interest in Nando's

health, did not understand his needs, and had not attended his

medical appointments or communicated with his doctors. See

Adoption of Abigail, 23 Mass. App. Ct. 191, 193 (1986) (child's

special needs relevant in determining parental fitness as to

that child). Further, Nando has formed strong bonds with his

kinship preadoptive parents, whom he refers to as "mama" and

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"dada." The judge did not abuse her discretion by concluding

that removing Nando from his kinship placement would cause

significant psychological harm and that termination of the

mother's parental rights was in the child's best interests. 4

Decree affirmed.

By the Court (Blake, C.J.,
Meade & Grant, JJ. 5),

Clerk

Entered: March 26, 2025.

4 In her brief, the mother viewed with disfavor the judge's
use of the term "substance abuse." This issue was not raised
before the Juvenile Court and is waived. See Adoption of
Willow, 433 Mass. 636, 651 (2001). See also Standards on
Substance Use Disorder & Mental Health Conditions, adopted by
the Supreme Judicial Court on October 10, 2023, after the decree
issued in this case. Regardless, the mother conceded at oral
argument that this was not an appellate argument.

5 The panelists are listed in order of seniority.

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