Adoption of Nigel.

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-1169

ADOPTION OF NIGEL. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a judge of the

Juvenile Court finding her unfit, terminating her parental

rights to her son, Nigel, and declining to order posttermination

visitation. We affirm.

Background. We summarize the judge's findings of fact,

supplemented by uncontroverted evidence from the record.

Nigel was born in 2012. Four days after his birth, the

Department of Children and Families (department) filed the first

of three care and protection petitions on behalf of Nigel after

he showed symptoms of drug withdrawal and based on concerns with

the mother's history of substance abuse and mental health

issues. 2 After the seventy-two hour hearing, custody was

1 A pseudonym.
2 The mother began drinking alcohol at eleven years old. She has
a history of opiate addiction, cocaine use, and abuse of
prescription drugs that dates to her mid teenage years. The
mother has suffered from anxiety, depression, bipolar disorder,
returned conditionally to the mother and father, and the case

was dismissed five months later.

In summer 2013, Nigel was evaluated by early intervention

services for "delays in personal-social communication, motor and

cognitive development." He was referred for further evaluation

and services. Although the mother took Nigel to his evaluation,

thereafter she failed to "follow through with vital early

intervention services" and "neglected" Nigel's speech and

behavior issues.

In July 2016, the mother was stopped by police while

driving a car apparently under the influence of an "unknown

substance." Nigel was in the vehicle, and police found heroin

and a syringe on the front passenger floor. When department

social workers visited the mother's home the following day, it

was "extremely filthy and cluttered," causing safety concerns

for the child. Nigel was observed to be "dirty," "wearing dirty

clothing," and "his hair was matted." The department took

emergency custody of Nigel.

While in the department's custody, Nigel was diagnosed with

autism spectrum disorder. The doctor opined that Nigel met "the

criteria of a child who has posttraumatic stress disorder and

[was] at risk for dysregulated behavior and additional emotional

and posttraumatic stress disorder at different points in her
life.

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psychiatric problems as he gets older." He also reported that

Nigel's behaviors indicated a lack of "any parenting of any

consistent quality." Approximately one year later, Nigel was

returned to his parents' care, and the petition was dismissed by

agreement of the parties. The department remained involved with

the family.

In October 2017, Nigel's father died unexpectedly in a work

accident. To assist with the traumatic impact of this tragedy,

the department assigned a family partner to work with the mother

and referred her to grief counselling. The department also

arranged for the mother's adult daughter to assist with Nigel's

care. The daughter got Nigel ready for school, provided

transportation to his appointments, brought the mother to her

drug treatment, and facilitated communication between the mother

and the department. In effect, the daughter became Nigel's

primary caretaker. On occasions when the daughter was not

available, the mother failed to bring Nigel to medical

appointments and had difficulty getting him ready for school.

Eventually, the daughter withdrew from her caretaker role.

Beginning in December 2018, a series of G. L. c. 119, § 51A

reports (51A reports), were filed against the mother based on

reports of domestic violence, substance abuse, and mental

instability while caring for Nigel. Nigel's school also

reported numerous absences and daily tardiness. In March 2019,

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a department emergency response worker visited the mother's home

and discovered "garbage, toys, papers, clothing, and misc. items

scattered on every surface and floor between the kitchen, living

room, and bedroom." Although the house was "significantly

cleaner" the following day, within one month a department social

worker observed that "the home was again messy and disorganized,

food was on the wall, and dried dog feces was on the floor. The

child wore dirty clothes and [had] a dirty face."

The department filed this care and protection petition in

April 2019 after a 51A report alleged that the mother tested

positive for unprescribed benzodiazepines, was seeking

benzodiazepines from other patients at her treatment clinic, and

that Nigel had missed a physical examination and was two years

behind in dental visits. The department took emergency custody

and placed Nigel in a kinship foster placement with his maternal

grandparents.

After Nigel's removal, the department met with the mother

multiple times to discuss her action plan with the goal of

reunification. The department referred the mother for services

for her own substance use and mental health issues as well as to

help her understand Nigel's autism diagnosis. The department

also invited the mother to participate in medical appointments

and school meetings after Nigel was placed with the

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grandparents. 3 However, the mother failed to produce a relapse

prevention plan, did not execute a parenting plan or obtain a

parental fitness evaluation, and did not follow through with a

referral for a medication evaluation. In January 2020, the

department created a tiered reunification plan aimed at gradual

increases in visitation to help reunify the mother and Nigel.

The department asked the mother to maintain a safe home, comply

with her methadone program, take drug screens, create a

parenting plan, and allow the department into her home to

monitor her progress. In early March 2020, based on the

mother's failure to make timely progress toward completion of

these goals, the department changed Nigel's permanency goal to

adoption.

Following a trial held on several dates between February

18, 2021 and August 19, 2021, 4 the judge found the mother unfit,

adjudicated Nigel to be in need of care and protection,

terminated the mother's parental rights, and declined to order

posttermination visitation between the mother and Nigel. This

appeal followed.

3 The judge acknowledged and considered that the department
failed to invite the mother to one of Nigel's individualized
education program meetings. She determined that this failure
did not prevent a finding that the department engaged in
reasonable efforts to reunify the mother and Nigel.
4 The trial was conducted virtually via Zoom during the COVID-19

pandemic.

5
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

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

best interests" (citation omitted). Adoption of Oren, 96 Mass.

App. Ct. 842, 844 (2020). "[T]he 'parental fitness' test and

the 'best interests of the child test' are not mutually

exclusive, but rather 'reflect different degrees of emphasis on

the same factors.'" Adoption of Garret, 92 Mass. App. Ct. 664,

671 (2018), quoting Care & Protection of Three Minors, 392 Mass.

704, 714 (1984). In making this determination, the judge

considers "'the ability, capacity, fitness and readiness of the

child's parents' as well as 'the plan proposed by [the

department].'" Adoption of Garret, supra at 675, quoting

Adoption of Nancy, 443 Mass. 512, 515-516 (2005).

The parent's fitness is determined by taking into

consideration a parent's "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). "The

inquiry is whether the parent's deficiencies 'place the child at

serious risk of peril from abuse, neglect, or other activity

harmful to the child'" (citation omitted). Adoption of

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Olivette, 79 Mass. App. Ct. 141, 157 (2011). "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 clear error of law or abuse of discretion."

Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother argues that the judge erred in her analysis of

Nigel's best interests by finding that she is unfit, finding

that DCF provided reasonable reunification efforts, failing to

consider evidence of her bond with Nigel, and relying on stale

evidence. We disagree.

a. The mother's unfitness. The mother's unfitness

resulted from a "constellation of factors." Adoption of Greta,

431 Mass. 577, 588 (2000). Her recurring substance abuse and

mental health struggles affected the mother's capacity to assume

parental responsibility and fulfill the needs associated with

Nigel's disabilities. See Adoption of Frederick, 405 Mass. 1, 9

(1989) ("Mental disorder is relevant only to the extent that it

affects parents' capacity to assume parental responsibility").

The mother's substance abuse resulted in Nigel suffering drug

withdrawal symptoms at birth. She exposed him to unsanitary

home conditions, endangered him by driving a car while under the

influence, exposed him to domestic violence, and repeatedly

failed to attend to Nigel's basic hygienic, medical, and

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educational requirements. Moreover, the mother neglected

Nigel's special needs to a degree that it exacerbated his

developmental delays.

Despite the department's intervention over the course of

three care and protection cases, the mother failed consistently

to participate in services and treatment to address the issues

that caused the removal of her child. See Adoption of Serge, 52

Mass. App. Ct. 1, 8 (2001) ("The mother's lack of meaningful

participation in recommended services was also relevant to the

question of her fitness"). We agree with the judge's

determination that the mother failed to take responsibility for

actions that created neglectful conditions and endangered Nigel.

The judge found that the mother could not articulate how her

inconsistency with services, both for herself and for Nigel,

negatively impacted her ability to meet Nigel's needs.

We are mindful of the challenges the mother has faced since

she was a teenager. However, regardless of the underlying

causes of the mother's circumstances, we discern no abuse of

discretion in the judge's determination that her unfitness would

persist, and therefore termination of her rights was in Nigel's

best interests. See Adoption of Cadence, 81 Mass. App. Ct. 162,

169 (2012) ("Where there is evidence that a parent's unfitness

is not temporary, the judge may properly determine that the

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child's welfare would be best served by ending all legal

relations between parent and child").

b. Reunification efforts. Before terminating parental

rights, the judge must determine whether the department engaged

in reasonable efforts to support the family to allow the child

to be returned to the parent's care. See Adoption of West, 97

Mass. App. Ct. 238, 242 (2020). The mother argues that the

department failed to engage in reasonable efforts to reunify

because some of the items on her action plan could not be

completed while she did not have custody of Nigel. 5 However,

most of her tasks did not require custody, and she failed to

engage with the action plan or demonstrate behavioral changes.

We therefore agree with the judge's determination that the

department made reasonable efforts to reunify Nigel and the

mother. Even if the department had not made reasonable efforts

to reunify, it remained within the trial judge's sound

5 The mother asserts that more than one action plan was backdated
to a time either before the relevant social worker was assigned
to her case or before the social worker worked for the
department. A review of the record indicates that action plans
may have been backdated. However, this issue was not raised at
trial and thus has not been fully vetted. Although we express
concern about such a practice if it occurred, it is not
determinative of the outcome in this case. See Adoption of
Mary, 414 Mass. at 712 ("Generally, issues not raised by a
losing party in the trial court are not addressed on appeal,
absent exceptional circumstances").

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discretion to determine that termination of parental rights is

within Nigel's best interests. See id.

c. The child's bond with the mother. We are not persuaded

by the mother's argument that the judge did not give sufficient

weight to the bond between Nigel and the mother when determining

that termination of her parental rights was in his best

interests. The judge recognized Nigel's relationship with the

mother, specifically finding that the mother loves Nigel, is

bonded with him, and Nigel enjoys her visits. We are satisfied

on the record in this case that the judge did not abuse her

discretion by weighing this evidence and concluding that,

despite this relationship, termination of the mother's parental

rights was in Nigel's best interests. See Adoption of Bianca,

91 Mass. App. Ct. 428, 432 (2017).

d. Staleness of the evidence. Although stale information

cannot be the basis for determining unfitness, the mother's

"prior parental conduct is deemed relevant in assessing the

parent's capacity and ability to care for the child." Adoption

of Jenna, 33 Mass. App. Ct. 739, 744 (1992). The mother argues

that the judge relied on stale information to determine that she

is unfit because some of the judge's 437 findings are based on

information from years before this case. However, the evidence

demonstrated that the mother's historic challenges persisted at

the time of trial. Moreover, the judge was careful to recognize

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history that was admissible only to "set [the] stage," to

disregard inadmissible "opinions, conclusion[s], and

judgements," and to consider only the nonhearsay content of this

evidence.

2. Parental visitation. "In terminating parental rights

pursuant to G. L. c. 210, § 3, the Juvenile Court judge has

equitable authority to order visitation between a child and a

biological parent where such contact is in the best interests of

the child." Adoption of Garret, 92 Mass. App. Ct. at 679.

"Whether such contact in any given case is wise is a matter that

should be left to the discretion of the judge." Youmans v. Ramos,

429 Mass. 774, 783 (1999). "A judge should issue an order of

visitation only if such an order, on balance, is necessary to

protect the child's best interest." Adoption of Ilona, 459 Mass.

at 65. A judge should also consider "whether a preadoptive family

has been identified" and "whether the child 'has formed strong,

nurturing bonds' with that family." Id. at 63-64, quoting Adoption

of Vito, 431 Mass. 550, 563 (2009).

Here, the judge found that "[Nigel] is bonded and well-cared

for in his current foster home with his maternal grandparents and

extended family." Although the judge, as noted above, recognized

the bond between the mother and Nigel, she nevertheless determined

that mandated visitation was not in Nigel's best interests. See

Adoption of Edgar, 67 Mass. App. Ct. 368, 371 (2006) (purpose of

posttermination visitation is assisting child's transition, not

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strengthening bond between child and biological mother). We are

not persuaded by the mother's argument that the judge failed to

consider evidence of the negative relationship between the

mother and the maternal grandparents. Rather, we are satisfied

that the judge carefully weighed the evidence before concluding

that the grandparents "have in the past, and will in the future,

continue to make good choices to support all [Nigel's] needs for

responsible and loving care," including visits with the mother,

as long as "it serves [Nigel's] best interests." Thus, the judge

did not abuse her discretion by declining to make a specific order

of visitation. See Youmans, 429 Mass. at 783.

Decree affirmed.

By the Court (Massing,
Henry & Brennan, JJ. 6),

Clerk

Entered: October 3, 2023.

6 The panelists are listed in order of seniority.

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