Adoption of Miles.

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-984

ADOPTION OF MILES.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

mother unfit to parent her son, Miles, terminated her parental

rights to Miles, approved the adoption plan for Miles proposed

by the Department of Children and Families (department), and

ordered that the mother could have four supervised

posttermination and postadoption visits with Miles per year.2 On

appeal, the mother argues that (1) the finding of unfitness was

not supported by clear and convincing evidence, and (2) the

judge erred in failing to properly consider the mother's

proposed guardianship plan. We affirm.

1 A pseudonym.

2The judge also terminated the parental rights of Miles's
putative father (father). The father did not participate in the
trial and is not a party to this appeal.
Background. We summarize the judge's findings of fact,

reserving certain details for later discussion. The mother has

three children, Miles, Alex, and Nina.3 The department's

involvement with the family began before Miles's birth when, in

October 2018, a report was filed pursuant to G. L. c. 119, § 51A

(51A report), alleging abuse and neglect of the mother's two

older children, Alex and Nina. The 51A report alleged that Alex

and Nina were present when a group of men suspected of being

involved in a nearby shooting ran into the mother's apartment.

Police searched the mother's home and discovered over fifty bags

of heroin and an unsecured firearm located under a pillow on the

mother's bed. The investigation led to the filing of another

51A report alleging that the mother had posted a photograph on

social media of Alex, then five years old, holding a gun.4

The department filed a care and protection petition and was

granted temporary custody of Alex and Nina; the children were

removed from the mother's care and placed with the maternal

grandmother (grandmother). Alex and Nina were reunified with

the mother in late January 2020, and the care and protection

3 The children's names are pseudonyms. The mother's rights
to Alex and Nina were not terminated by the judge, and those
children are not parties to this appeal.

4 At trial, the mother testified that the gun in the
photograph was a BB gun; the judge did not credit this
testimony.

2
petition was dismissed. In July 2020, the mother was found

guilty of and placed on probation for Federal charges of

narcotics distribution, and in March 2022, she was found guilty

and placed on probation for State charges of reckless

endangerment of a child and improper storage of a firearm.

Miles was born in July 2020, with no recorded injuries.

For several weeks after Miles's birth, the mother, the father,

and Miles's two siblings lived with the grandmother in the

grandmother's home. The family, excluding the grandmother,

later moved back into the mother's apartment, where the father

and the grandmother were the primary caretakers while the mother

worked. The father did not know how to hold, feed, burp, or

support Miles's body and had to be taught infant-appropriate

care by the mother and the grandmother, including not being

rough with Miles and not holding him up only by his fingers.

The three adults were Miles's only primary caretakers for the

first months of his life.

On September 25, 2020, the mother brought Miles to the

emergency room for a nail tear and skin abrasion to his right

middle finger. The mother reported to hospital staff that Miles

had caught his finger in her necklace while he was "throwing a

fit." On October 20, 2020, the mother brought Miles, then three

months old, to his pediatrician for a routine checkup. At the

appointment, the mother brought to the pediatrician's attention

3
a swollen, red mark on Miles's left clavicle, which she

described as a spider bite. Suspecting a bone fracture, the

pediatrician ordered an X-ray, which revealed a healing left

clavicle fracture between four and ten days old. A mandated

reporter filed a 51A report alleging neglect of Miles.

Miles was admitted to the hospital after the fracture was

diagnosed, and, pursuant to the hospital's nonaccidental trauma

policy, Miles received a skeletal survey, a blood panel, and a

family and genetic history analysis to rule out medical

explanations for the injury. The skeletal survey revealed

numerous additional bone fractures at various stages of healing:

three left rib fractures between three and four weeks old; two

right rib fractures consistent with multiple weeks of healing; a

possible fracture of the eighth rib; a healed left humerus

fracture between ten and thirty days old; a healing left femur

fracture about one week old; a healed right clavicle fracture;

and a healing left tibia fracture. When questioned by medical

personnel as to how Miles was injured, the mother explained that

she had been bathing Miles the night before and grabbed him

tightly under his arm to prevent him from slipping.5 As further

explanation, the mother testified that she had "burped" Miles

"really hard"; the judge did not credit this explanation.

5 The father did not come to the hospital after he was
informed of Miles's injuries.

4
Given Miles's age, the locations of the fractures, and the

absence of underlying medical issues, a pediatrician

specializing in child abuse medicine formed the opinion that the

injuries were intentionally inflicted and medically inconsistent

with the mother's explanations.6 All of Miles's caretakers

denied knowing how the injuries occurred or recognizing any

signs of injury before the fractures were diagnosed.

As a result, the department filed another care and

protection petition and obtained temporary custody of Miles,

Alex, and Nina. The mother subsequently waived her right to a

temporary custody hearing, Alex and Nina were placed with the

grandmother, and the department retained temporary custody of

Miles. The department then implemented a series of action plans

for the mother to work toward reunification. The plans required

the mother to address concerns pertaining to her parental

fitness, including: not engaging in dating relationships that

would endanger her and the children; refraining from using and

distributing illegal substances; complying with the terms of her

Federal probation; engaging in individual therapy; participating

in parenting classes, a bonding assessment, and a psychological

6 It is implicit from the judge's findings that he credited
the pediatrician's opinion.

5
evaluation; and signing releases of information from her

collaterals to the department.

Due to the mother's lack of engagement with action plan

tasks, inconsistent communication with the department, and an

absence of insight into how Miles's injuries occurred, the

department changed the child's permanency goal from

reunification to adoption on or about April 1, 2022.7 Miles, who

was two years old at the close of evidence in April 2023, has

lived with his foster family since he was approximately three

months old and receives early intervention therapeutic services

for delayed speech and muscle stiffness.

Discussion. 1. Unfitness. When faced with a petition to

terminate parental rights, the judge must find by clear and

convincing evidence that the parent is unfit, and that the

unfitness is likely to continue into the indefinite future. See

Adoption of Lisette, 93 Mass. App. Ct. 284, 296 (2018).

"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." Adoption of

Anton, 72 Mass. App. Ct. 667, 673 (2008). The judge's

subsidiary findings must be proved by a preponderance of the

evidence and will only be disturbed if clearly erroneous. See

7 By agreement of all parties after trial, Alex and Nina
were permanently placed in guardianship of the grandmother.

6
Custody of Eleanor, 414 Mass. 795, 799 (1993). On review, we

give "substantial deference to a judge's decision that

termination of a parent's rights is in the best interest[s] 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 Yalena, 100 Mass. App. Ct.

542, 549 (2021), quoting Adoption of Ilona, 459 Mass. 53, 59

(2011).

The mother challenges the sufficiency of the evidence

supporting the judge's findings that the mother was unfit to

parent Miles and likely to remain so. She identifies six

reasons underpinning the judge's ultimate findings, none of

which she contends amount to the requisite clear and convincing

evidence. We are not persuaded.

a. Miles's injuries. Expert testimony established that

Miles had been abused multiple times by at least one of his

primary caretakers, starting as early as when he was one week

old and up until his removal at three months. While the judge

noted that there was "no direct evidence [the] [m]other

inflicted the injuries, she was a primary caretaker when they

occurred, and she failed to prevent them." See Adoption of

Larry, 434 Mass. 456, 471 (2001) (unfitness may be predicated on

one parent's failure to protect child from another parent's

abuse); Adoption of Lorna, 46 Mass. App. Ct. 134, 140-141 (1999)

7
("While at least one [parent] had to have abused [the child],

both [parents] were deemed unfit for their inability to protect

the [child] from future abuse").

Indeed, assuming the mother had not abused Miles, she

recognized concerning aspects of the father's caretaking

abilities before Miles's injuries were diagnosed. She had to

"repeatedly" instruct the father not to be rough with Miles and

not to hold him up by just his fingers; she was aware that the

father smoked marijuana daily while taking care of the children;

she knew that the father would become confused and frustrated

when Miles would cry; and she needed to teach the father how to

hold, feed, burp, and support Miles's body appropriately.

Contrast Adoption of Iris, 43 Mass. App. Ct. 95, 102-103 (1997),

S.C., 427 Mass. 582 (1998) ("There was no evidence before the

court that any of [the caretakers] was an inappropriate

caretaker or that the parents had adverse information . . .

which would have alerted them to shortcomings"). The mother

also maintained a relationship with the father for months after

Miles's removal, ultimately ending the relationship for reasons

other than concern for Miles's safety or the safety of her other

children. See Adoption of Larry, 434 Mass. at 469-470.

Further, while the expert opined at trial that it was possible

for an adult caretaker to miss the signs of internal injuries in

a newborn, at least one of Miles's injuries (other than the left

8
clavicle fracture) was discoverable: the detective

investigating the cause of Miles's injuries saw Miles at the

hospital the day he was removed from the mother's care and noted

that his left leg was bent and "not moving like the other limbs

were." As the mother had bathed Miles the night before his

injuries were diagnosed at the hospital, she had close contact

with Miles and thus could have, but failed to, identify the

signs of injury to his left leg.

While the mother contends that the judge erred "by failing

to describe specific acts or omissions showing [the] [m]other

may be at fault for [Miles's] injuries," the judge's subsidiary

findings establish a nexus between Miles's injuries and the

mother's shortcomings. Indeed, "[i]t was not necessary to sort

out the identity of the actual abuser for each incident of

abuse." Adoption of Lorna, 46 Mass. App. Ct. at 141. Where, as

here, there were a discrete number of caretakers who could have

abused Miles, the judge could properly find each unfit for being

"unable to recognize abuse and confront it preventively." Id.

b. Compliance with action plans. The judge also properly

considered the mother's lack of progress with her action plans.

See Adoption of Luc, 484 Mass. 139, 147 (2020). Although the

mother made some positive efforts, including consistent and

appropriate participation in weekly visits with Miles, a number

of key tasks remained uncompleted at the time of trial. The

9
mother had not participated in parenting classes, engaged in a

bonding assessment, or completed a psychological evaluation --

tasks tailored to assessing and developing the mother's

parenting skills, her relationship with Miles, and her insight

into Miles's individual needs and the circumstances of his

removal. The mother also rescinded all releases to the

department in October 2021 and directed all communications

outside of visitation scheduling to be coordinated between the

department and her attorney. This resulted in delayed referrals

to services and prevented the department from monitoring the

mother's progress.

While the mother contends that many of the assigned tasks

bore little relation to the parenting deficiencies identified by

the department, this is belied by the record. Cf. Adoption of

Leland, 65 Mass. App. Ct. 580, 585-586 (2006) (parent's lack of

compliance with action plan not sufficient to support finding of

unfitness where action plan tasks were unrelated to identified

parental deficiencies). A bonding assessment was an appropriate

task, as Miles had difficulty transitioning from his foster home

to supervised visits with the mother. While the mother

completed parenting classes during the first care and protection

proceeding involving her two older children, parenting classes

were added to her action plans here to help the mother gain

insight into Miles's specific age and developmental needs and

10
the unique circumstances of his removal. Further, given the

mother's mental health diagnoses and her own history of trauma,

a psychological evaluation was appropriate to assess how the

department could best meet and support the mother's own needs.

c. Relationship history. The record also supports the

judge's finding that the mother had not sufficiently addressed

other parental shortcomings, including maintaining a

relationship with the father after Miles's injuries were

diagnosed. While the mother testified that she "kicked" the

father out of the house after she learned of Miles's injuries,

the father was present at a virtual visit in April 2021, and at

an in-person visit to the mother's home in October 2021. As the

mother explained to her social worker, her reasons for finally

separating from the father in 2021 were not because she believed

that the father was responsible for Miles's injuries, but

because she felt as though "he was not contributing" and she

needed to "parent him." This demonstrated a lack of insight as

to Miles's safety and the risks posed by maintaining the

relationship and was relevant to the analysis of parental

unfitness. See Adoption of Paula, 420 Mass. 716, 729 (1995).

Based on our review of the record, the judge properly concluded

that the mother's lack of understanding of the risks her

relationship with Miles's father posed to Miles rendered her

unavailable as a "safe parental resource."

11
d. Criminal history. The judge also considered the

mother's criminal history in reaching the determination of

unfitness. In the context of Miles's history of physical abuse,

the mother's 2020 convictions of drug-related offenses and 2022

convictions of reckless endangerment of a child and improper

storage of a firearm, for which she was serving probation during

the pendency of the proceedings, bore on the question whether

the mother was able to serve as a safe parental resource and

maintain a stable living environment. See Adoption of Virgil,

93 Mass. App. Ct. 298, 301 (2018) ("[a] judge . . . need not

wait for disaster to happen but may rely upon past patterns of

parental neglect or misconduct in determining current or future

fitness"); Care & Protection of Quinn, 54 Mass. App. Ct. 117,

125 (2002) (parent's criminal record is relevant to extent it

bears on parental fitness). Notwithstanding the mother's

contention that her criminal history was "stale" because it

preceded Miles's birth, "prior history does have prognostic

value." Adoption of Carla, 416 Mass. 510, 517 (1993). In any

event, the judge's findings of fact, taken as a whole, do not

demonstrate an undue reliance on the mother's past criminal

conduct in reaching the ultimate finding of unfitness, as the

judge considered a "constellation of factors." Adoption of

Greta, 431 Mass. 577, 588 (2000).

12
e. Mental health and Miles's particularized needs. The

mother is diagnosed with anxiety and depression, for which she

does not take prescription medication. While the mother

reported continuous participation in individual therapy, the

department was no longer able to monitor her progress in therapy

or assess the content of her sessions after she rescinded

releases of information in October 2021. Contrary to the

mother's contention, the judge's consideration of her mental

health as a factor in his determination of her unfitness was not

based solely on the number or frequency of her therapy sessions.

Indeed, rescinding releases of information pertaining to her

progress and participation in therapy and failing to complete a

psychological evaluation also demonstrated a lack of consistency

in addressing the department's concerns regarding the effects of

her mental health, if any, on her ability to parent Miles. 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).

As to Miles's particularized needs, at two years old, he

had only spoken one word and was receiving (1) early

intervention services for verbal delays and (2) physical therapy

for muscle stiffness. While the mother was aware of his

developmental delays and the services he was receiving, she did

not request to be involved or demonstrate an understanding of

13
Miles's needs. As such, the judge properly considered the

mother's inconsistent participation in mental health services

and her lack of understanding of Miles's needs as factors

bearing on the mother's current and future fitness. See

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

particular needs relevant to determining parental fitness as to

that child).

Taken together, the judge's findings provide clear and

convincing evidence of the mother's current and indefinite

unfitness, and that termination of her parental rights was in

Miles's best interests. See Adoption of Yalena, 100 Mass. App.

Ct. at 552-553.

2. Adoption plan. After finding a parent unfit, the judge

is required to assess all placement plans and "determine which

placement will serve the best interests of the child." Adoption

of Dora, 52 Mass. App. Ct. 472, 474-475 (2001). The judge's

assessment of each plan must be "even handed," regardless of

which party offered the plan. Adoption of Hugo, 428 Mass. 219,

226 & n.8 (1998), cert. denied sub nom. Hugo P. v. George P.,

526 U.S. 1034 (1999). "In choosing among placement plans, it

falls to the sound discretion of the trial judge to determine

what is in the best interests of the child, and our review on

appeal is one of substantial deference" (quotation and citation

14
omitted). Adoption of Bianca, 91 Mass. App. Ct. 428, 434

(2017).

The mother argues that the judge erred in failing to

consider guardianship with the grandmother as an alternative to

the department's proposed adoption plan.8 We disagree. The

judge considered the protective concerns regarding the

grandmother as a placement option, as the perpetrator of Miles's

injuries was still undetermined and the grandmother was one of

his caretakers during the period in which he sustained the

multiple, intentionally-inflicted injuries.9 The judge also

heard testimony from the grandmother that she was unaware of

Miles's speech delay and developmental needs. To the extent the

mother argues that the judge should have given greater

consideration to the grandmother as a kinship placement with a

shared cultural background to Miles, "[a] biological and/or

8 The department contends that the mother did not adequately
present the grandmother as an alternative placement plan and has
therefore waived this argument. We disagree, as the mother's
trial counsel requested that, in addition to the grandmother's
petition for guardianship of Miles, the grandmother be
considered as an alternative to the department's proposed
placement plan. Cf. Adoption of Stuart, 39 Mass. App. Ct. 380,
393 (1995) (discussing statutory requirement that department's
proposed plan "have content and substance enough to permit the
court to meaningfully evaluate" it).

9 While the grandmother was not caring for Miles in the
weeks leading up to his removal, she was one of his primary
caretakers during the timeframes in which he sustained injuries.

15
cultural match between child and caretaker is a desirable aim;

but it is a single factor among many" in determining the child's

best interests. Adoption of Irene, 54 Mass. App. Ct. 613, 622-

623 (2002).10

In contrast, the department proposed, and the judge

approved, a plan under which Miles would be adopted by his

foster parents. The judge appropriately considered that Miles,

who was two years old at the close of evidence, had lived with

his foster parents since he was three months old and was

thriving in their care, and that Miles had established a strong

bond with them. Miles was also receiving early intervention

therapeutic services and making progress with his development

while in the foster parents' care. Considering all the facts

before him, the judge contemplated both plans and acted within

10The judge also dismissed the guardianship petition filed
by the grandmother; the grandmother did not appeal.

16
his discretion in determining that adoption by the foster family

was in Miles's best interests.

Decrees affirmed.

By the Court (Desmond,
Smyth & Tan, JJ.11),

Clerk

Entered: August 21, 2025.

11 The panelists are listed in order of seniority.

17