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25-P-710 Appeals Court
ADOPTION OF COLTON (and a consolidated case1).
No. 25-P-710.
Barnstable. January 12, 2026. – July 7, 2026.
Present: Singh, Hershfang, & Wood, JJ.
Department of Children & Families. Adoption, Visitation rights.
Parent and Child, Adoption, Custody of minor, Interference
with parental rights. Interference with Parental Rights.
Abuse Prevention.
Petitions filed in the Barnstable County/Town of Plymouth Division of the Juvenile Court Department on February 8 and March 25, 2021.
The cases were heard by Mary O'Sullivan Smith, J.
Lucas Newbill for the mother.
Katelyn Bertino for Department of Children and Families.
Alison A. Lowe for the children.
HERSHFANG, J. After trial, a judge of the Juvenile Court
entered decrees terminating the mother's parental rights to two
1 Adoption of Alison. The children's names are pseudonyms.
2
of her children, Alison and Colton.2 The mother maintains that
the judge erred by placing too much weight on the mother's
history rather than focusing on evidence of the significant and
laudatory changes she had made. She also asserts that the judge
improperly failed to order posttermination visitation with the
children. We affirm.
Background. Alison was born in June 2019. At the time of
trial, she was five years old. Colton was born in January 2021.
At the time of trial, he was three years old. The mother tested
positive for marijuana and alcohol during her pregnancy with
Alison, and both children were exposed to Suboxone, a substance
taken by the mother to manage a heroin addiction that began
after she was raped at age twelve and which, after many efforts,
she had successfully learned to manage. When Colton was eight
days old, he was diagnosed with a skull fracture; both parents
denied knowing the cause, and an investigation conducted
pursuant to G. L. c. 119, § 51B, supported allegations of
physical abuse by the parents.
Alison lived with both parents for approximately the first
two years of her life. Colton lived with both parents from his
birth in January 2021 until May 2021, when the father was
2 The father is not a party to this appeal, as he stipulated to the termination of his parental rights and entered into an open adoption agreement for both children in 2023.
3
awarded conditional custody of both children. The mother had
not had custody of either child since May 2021, although she
lived with them occasionally, as discussed below. In early
November 2021, the Department of Children and Families
(department) was awarded temporary custody of both children.
The children have been in a preadoptive kinship foster home
since December 2021.
Beginning at age eighteen, the mother was the victim of
domestic violence in her intimate relationships. At age twentytwo, the mother became pregnant with her oldest child, who was
in the department's custody and not a subject of this
proceeding. That daughter was removed by the department after
the mother was in a collision while driving with the child in
the car. The mother was arrested and charged with possession of
heroin and operating a motor vehicle while under the influence
of drugs.
The mother and the father were married in 2019, shortly
before Alison was born, when the mother was twenty-six years
old. Around that time, the maternal grandmother saw bruises all
over the mother's body and worried that the father was abusing
the mother. Between 2020 and 2022, the parents obtained many
abuse prevention orders against each other pursuant to G. L.
c. 209A (209A orders). Those included multiple 209A orders
against the mother directing her to have no contact with and
4
stay away from the father. Each parent sought 209A orders
against the other and then violated them. At different times,
each parent was charged with assault and battery on the other.
Both children witnessed violence and arguments between their
parents beginning at a very young age. Despite the violence in
their relationship and their frequent, bilateral restraining
orders, the parents continued to live and vacation together.
The mother reported to the department that she had not used
heroin since 2017, right before she began receiving Suboxone
treatment. She tested positive for cocaine twice since 2017,
most recently in December 2021. She also tested positive for
codeine in January 2024, which was six months before trial
commenced. As part of the mother's action plan, the department
asked her to submit to regular urine screens. Since 2021, the
mother many times tested positive for substances, including
alcohol, marijuana, codeine, and Suboxone. The mother missed
numerous urine screens.
In May 2023, the department added a requirement to the
mother's action plan tasks that the mother abstain from alcohol.
After the results of three screens were negative for alcohol in
July and August 2023, the mother missed three months of urine
screens. The results of her last three urine screens before
trial were positive for alcohol. The mother completed one of
her two scheduled substance use evaluations prior to trial.
5
That evaluation stated that although results of her urine
screens have consistently been positive for "a low amount" of
alcohol, she has "never presented as under the influence of any
substance."
Addressing her history of domestic violence and trauma has
been an ongoing effort for the mother. Before the department
took custody of the children, she engaged intermittently in
therapy with a series of providers. The mother has been
diagnosed with posttraumatic stress disorder, anxiety, and
bipolar disorder. Twice she voluntarily sought inpatient mental
health treatment, in May 2020 for seven days and in May 2022 for
nine days. She attributed these admissions to symptoms of
postpartum depression that were exacerbated by the department's
removal of the children.
Following the children's removal in early November 2021,
the mother's action plan tasks included engaging with an
individual therapist to address traumas related to her substance
use history, addiction, and involvement with the department.
Adding this requirement did not meaningfully change the mother's
level of engagement with therapy. The department gave the
mother references and resources to help her meet the tasks on
her action plan. Although she expressed her willingness to
participate, the record again reflects only intermittent
engagement before August 2023. Between May and August 2022, the
6
department could not assess the mother's use of services because
the mother did not keep active releases for the department to
speak to her providers. Between January and March 2023, she met
four or five times with a new therapist but then stopped
attending her sessions. As late as April 2023, she had yet to
begin taking medication prescribed in February to treat bipolar
disorder. Beginning in August 2023, she engaged in weekly
therapy with a second therapist. She continued this treatment
through trial.
Throughout the pendency of the case, the mother experienced
instability in housing and employment. During the period of the
department's involvement with Alison and Colton, the mother
lived with her own parents, with the children's father
(sometimes in violation of active restraining orders), in a
motel, in her car, in shelters, and in her own apartment. When
confronted in October 2021 about living with the father in
violation of restraining orders and custody arrangements, the
mother told a department social worker that she and the father
had been "together this whole time" and asserted that she would
"continue to violate whatever to be able to spend time with
[her] kids." In September 2023, the mother found stable housing
in Providence, Rhode Island, where she had a three-bedroom, twobathroom apartment.
7
From the time of Alison's birth, the parents' volatile
relationship was central to their family life. The children
were removed in April 2021 because they were being put in the
middle of the parents' constant fighting, yet the parents failed
to comply with repeated requests by the department to stop
spending time together. The parents violated the conditional
custody order by communicating in emotional text messages,
telephone calls, and in-person exchanges of the children. They
argued in front of the children and struggled to coparent. In
May 2021, the police were dispatched to the father's home
because the parents were arguing. The father obtained another
209A order against the mother.
The parents continued their tumultuous relationship. In
September 2021, they traveled together to New York City to
celebrate the father's birthday, leaving each child with a
caretaker not approved by the department. On the way home, the
parents picked up Alison, arguing bitterly. The mother, father,
and children were living together at the time, unbeknownst to
the department and in violation of the conditional custody
order.
Some of the parents' disputes were physical or involved
threats of physical violence. In October 2021, the mother
reported that the father had "choked" her in the presence of
both children and that Alison had tried to intervene by hitting
8
the father. The father reported that the mother had "hacked
into his phone" and changed his voicemail greeting and that she
had left him over one hundred threatening voicemail and text
messages, some of which were later corroborated by a department
social worker.
The parents twice went to Las Vegas together and
misrepresented their whereabouts to the department. In late
December 2021, the parents canceled two scheduled visits with
the children, claiming they had COVID-19. Actually, they had
been in Las Vegas. At that same time, a department social
worker had sent the mother a $325 gift card to help pay for
rent, but a week later, the mother had to move out of her room
in a motel because she owed $300. The mother showed poor money
management skills and prioritized taking a vacation over having
stable housing. She gave conflicting statements about where she
was living, asserting that she was living in her car or,
alternatively, with the father.
In January 2022, the parents received a judgment of divorce
nisi, with a finalization date of April 28, 2022. This did not
end their troublesome patterns. That same month (January 2022),
the police were called to the father's home for an alleged
mutual assault by the parents. The father reported that the
mother had punched him repeatedly on the left side of his face,
which was red. The mother reported that the father had grabbed
9
and punched her, showing the officer that her neck and chest
were red. The mother reported to a department social worker
that she had again been living with the father. Another 209A
order issued against the mother, effective for one year, that
forbade her from contacting the father, coming within twentyfive yards of him, or coming to his residence.
Between February 26 and March 6, 2022, while the 209A order
remained in effect, the mother again traveled to Las Vegas with
the father. When asked about this trip, the mother explained
that she had minimized its costs; she acknowledged having asked
the department for financial assistance when traveling to Las
Vegas and asked, "aren't we supposed to use our resources?"
In March 2022, the mother again violated the 209A order and
was arrested at the father's house. She missed a visit with the
children because she was incarcerated. In July 2022, the mother
sought out the father's new girlfriend on an online social media
site, broke into his voicemail and listened to a message from
the girlfriend, and reported to the department that the father
had shown up at her work location. The 209A order against the
mother was still in effect at that time.
On July 31, 2022, the mother was living on Cape Cod and the
father in New Bedford, yet they ended up at a pub in New Bedford
at the same time. They fought over the mother's cellular
telephone and the father hit the mother. The mother admitted to
10
police that she knew she was violating the 209A order by meeting
the father. The mother was arrested for violating the 209A
order and the father was charged with assault and theft.
Despite this, during a late-August visit with the children, the
mother told them details about their next visit with the father,
leading the trial judge to infer that the mother had
communicated with the father even after the pub incident on July
31, 2022. This conflicted with the mother's reports that she
had no contact with the father since then.
The mother's action plan tasked her with completing
domestic violence counselling programs. Although she had a
fitful start, she completed two in October 2022. And, in
December 2023, she completed a program called "Behavioral Health
Supports for Justice Involved." Since 2022, the mother has not
been accused of violating a 209A order.
Still, the mother's contact with the father continued. In
November 2022, the mother sent an e-mail message with an online
video recording of the father's fiancée to a department social
worker. On January 24, 2023, a department social worker
listened to a voicemail the mother had left for the father
earlier that month. The father knew facts about the mother's
life, including that her car had been repossessed in November.
Also in January 2023, the mother reported that the father was
harassing her on social media and had shown up at her home and
11
flattened her tires. The mother subsequently obtained a 209A
order against the father on January 27, 2023, but three months
later, while the order remained in effect, continued to monitor
the father's social media posts, which she showed to a
department social worker. When asked about this by a department
social worker and a court investigator, the mother denied having
done so. She told the court investigator she had not had any
contact with the father since the summer of 2022. The trial
judge did not credit these denials, remarking that the father
"was also aware of [the m]other's car being repossessed" in
November 2022 and that the mother "continued to monitor [the
father's] social media and keep up with his life" after she
obtained a 209A order in January 2023.
The mother frequently blamed others for the positive
results on her drug and alcohol screens. When her urine tested
positive for cocaine, the mother denied using the drug and
suggested that she might have been exposed to it from hugging
her brother (a cocaine user) or from the father's having laced
her marijuana with cocaine. She offered to take a hair follicle
test if the department would pay for it but did not take the
test when the funds were secured. In October 2022, she blamed
irregularities in her Suboxone use on the father's having
purportedly stolen her prescription. In June 2023, the mother
claimed that her car had been repossessed with her prescriptions
12
inside, so she was not taking either her prescribed Suboxone,
which she was buying on the street or getting from a friend, or
her psychiatric medications. In July 2023, the mother told a
department social worker that she believed the maternal
grandmother was "sabotaging" her by putting alcohol in her food,
claiming she had not consumed alcohol since April 2023. On
January 4, 2024, after testing positive for codeine, the mother
denied using codeine and asked for a urine screen, then did not
produce the result to the department.
The mother, at times, deprived the department of requested
information about her substance use and participation in
services in general. For example, although it was a part of the
conditional custody order and a task on her action plan that the
mother sign all necessary releases, the mother did not do so.
And between February and May 2022, the department was
unsuccessful in obtaining urine screens from the mother; when
those screens were later produced, the results were all positive
for alcohol. The mother testified at trial that her positive
alcohol screens resulted from her being required to drink as
part of her bartending jobs, an explanation that the judge did
not credit but rather viewed as "additional evidence of [the
m]other's lack of accountability for her actions."
In April 2023, the mother was unemployed. She gave
conflicting reports to the department and her Suboxone provider
13
about where she was living. To the Suboxone provider, she
reported that she was spending most of her nights at the home of
a boyfriend who had been released from jail and was on house
arrest. To the department, she reported that she was living at
the maternal grandparents' home.
The mother's move to an apartment in Providence in
September 2023 coincided with new stability in her life. She
obtained that apartment with the help of a community outreach
worker who had been advising her about money management skills
and housing applications weekly since early 2023. She continued
to see her psychiatric nurse practitioner and her Suboxone
provider. She also met weekly with a new therapist. The mother
reported to a department social worker that she had ended a new
relationship when she noticed that her partner was getting angry
easily and raising his voice. The mother had a new car as well
as a new job. When asked by the social worker, the mother
described having learned many ways to seek and cultivate healthy
relationships.
In October 2023, the mother completed a six-part education
series, "Raising Healthy Families." When the father reached out
to her the next month on social media, the mother reported
having sent him an e-mail message telling him they could not
communicate with each other. When the social worker asked to
see the mother's prescription medications, the mother was
14
initially unable to locate them; when she found them, it had
been more than three months since she had filled her
prescriptions for treatment of bipolar disorder and anxiety. In
early 2024, she reported that she was taking her medications as
prescribed.
Between November 2021 and August 2024, when trial was
underway, the mother consistently attended visits with the
children, which generally went well. The mother was largely
appropriate, and the children were happy. The judge found that
"[t]he visits would end well with [the m]other bringing the
children to the social worker's car and giving them hugs and
kisses." However, Alison and Colton both struggled behaviorally
after the visits. The judge found that "[t]he children are
confused by statements [the m]other makes about going home and
talking about their bedrooms at home." As a result, the
department reduced the mother's visits from one hour weekly to
ninety minutes every other week and required every other visit
to occur at the public library. The mother testified at trial
that if she was awarded custody of Alison and Colton, she would
need at least six months before she could care for them full
time. She explained that she needed time to "get to know" the
children, because "she barely knows the[m] and they barely know
her."
15
Since December 2021, the children have lived together in a
preadoptive kinship foster placement. Alison was two years old
at the time they entered this home and Colton was ten months
old. The preadoptive father is a sibling of the children's
maternal grandmother (a great uncle) who is only about ten years
older than the mother. The preadoptive mother is his long-term
partner and fiancée; she works as a supervisor at the local
hospital. The preadoptive parents ensured that Alison got the
therapy she needed and supported her therapeutic needs at home.
She was doing well in school and enrolled in swim and dance
classes. She was a good big sister to Colton. Colton
successfully completed an early intervention program. The
preadoptive father helped Colton adjust after visits with the
mother, which caused "aggressive behaviors towards his peers at
daycare." Colton sought out the preadoptive father for
attention and affection and the preadoptive father was patient
and calm with him. Both children were thriving in the
preadoptive placement.
Discussion. 1. Termination of parental rights. "Although
the law recognizes that the custody, care and nurture of the
child reside first in the parents, where those parents have
failed to fulfil the duties of parenthood, their rights are no
longer paramount" (quotation and citation omitted). Department
of Pub. Welfare v. J.K.B., 379 Mass. 1, 5 (1979). "In deciding
16
whether to terminate a parent's rights, a judge must determine
whether there is clear and convincing evidence that the parent
is unfit and, if the parent is unfit, whether the child's best
interests will be served by terminating the legal relation
between parent and child." Adoption of Ilona, 459 Mass. 53, 59
(2011). For evidence to be clear and convincing "[t]he
requisite proof must be strong and positive; it must be 'full,
clear and decisive.'" Adoption of Chad, 94 Mass. App. Ct. 828,
838 (2019), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105
(1997), S.C., 427 Mass. 582 (1998).
The decision to terminate parental rights requires "a twopart analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005).
"First, the judge must find that the parent is presently unfit."
Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). "The
judge 'must also find that the current parental unfitness is not
a temporary condition.'" Adoption of Querida, 94 Mass. App. Ct.
771, 777 (2019), quoting Adoption of Virgil, 93 Mass. App. Ct.
298, 301 (2018). "Second, the judge must find that 'it would be
in the child's best interests to end all legal relations between
parent and child.'" Adoption of Cadence, supra, quoting
Adoption of Nancy, supra.
"We review the judge's findings with substantial deference,
recognizing her discretion to evaluate a witness's credibility
and to weigh the evidence," Adoption of Nancy, 443 Mass. at 515,
17
"and [we] 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. at 59. On appeal,
"we do not disturb" findings where the challenge is "based on
the judge's credibility determinations." Adoption of Querida,
94 Mass. App. Ct. at 778.
The mother does not contest the trial judge's subsidiary
findings of fact. Instead, she challenges the judge's weighing
of the evidence, asserting that the judge paid inadequate
attention to the mother's "present flourishing" and too much to
her past conduct. "In the main [her] arguments simply reflect
dissatisfaction with the judge's 'weighing of the evidence and
[her] credibility determinations.'" Adoption of Hugo, 428 Mass.
219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526
U.S. 1034 (1999), quoting Adoption of Quentin, 424 Mass. 882,
886 n.3 (1997). But "the judge's assessment of the weight of
the evidence and the credibility of the witnesses is entitled to
deference." Custody of Eleanor, 414 Mass. 795, 799 (1993). A
judge is neither obligated to credit all evidence equally, see
Care & Protection of Three Minors, 392 Mass. 704, 711 (1984),
nor "required to view the evidence from the parent's
perspective." Adoption of Lisette, 93 Mass. App. Ct. 284, 295
(2018).
18
The mother stipulated to her current unfitness in May 2023,
and the children were committed to the permanent custody of the
department. Since then, she emphasizes, much has changed. And
so it had. The mother made significant strides in maintaining
sobriety from heroin; she found suitable housing; she was
employed, at least seasonally, in a professional position, and
when that job waned, she found other work so as to maintain an
income; and she terminated a relationship when she realized her
partner was "getting mad easily and raising his voice." She
completed an education series, "Raising Healthy Families." She
rejected one communication from the father. She attended
virtual meetings of "Alcoholics Anonymous" and "Narcotics
Anonymous."
The judge's findings acknowledged each of these laudable
advances. Nonetheless, "[a] judge properly may consider a
pattern of parental neglect or misconduct in determining future
fitness and the likelihood of harm to the child." Adoption of
Elena, 446 Mass. 24, 33 (2006). "Although 'stale information
cannot be the basis for a finding of current parental unfitness
. . . history . . . has prognostic value.'" Adoption of
Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting Adoption of
George, 27 Mass. App. Ct. 265, 268 (1989). "[A] judge's
conclusion that a parent's unfitness is temporary," and
termination of parental rights is therefore not warranted, "must
19
rest on credible evidence supporting a reasonable likelihood
that the parent will become fit, not on a 'faint hope.'"
Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Inez,
428 Mass. 717, 723 (1999). "Even where a parent has
participated in programs and services and demonstrated some
improvement, we rely on the trial judge to weigh the evidence in
order to determine whether there is a sufficient likelihood that
the parent's unfitness is temporary." Adoption of Ilona, supra
at 59-60.
The mother lost custody of Alison and Colton three years
before this matter came to trial, a period longer than one-half
of Alison's life and all of Colton's. In that time, and despite
her evident and heartfelt desire to be their custodial parent,
the mother persisted in patterns of behavior that endangered
that possibility. Despite her significant positive steps --which we do not overlook, and which are a credit to her -- the
judge found that aspects of the mother's troubling history
persisted from May 2023 to the time period of the trial, and she
inferred from that evidence that the mother had not truly
changed. In June 2023, for example, the mother informed her
psychiatrist that she was not taking her prescribed Suboxone or
her psychiatric medications. She was taking her friend's
Suboxone or buying it "off the street" and living in her car.
When she tested positive for alcohol that month, the mother
20
complained that the maternal grandmother was sabotaging her by
putting alcohol in her food, and that she had not drunk alcohol
since April 2023. She did not attend a foster care review on
November 2, 2023.
The mother also continued her troubling and violent
relationship with the father, despite the existence of 209A
orders against her (which the judge found she repeatedly
violated), contrary action plan tasks, and multiple requests by
the department that she stop. "It is well documented that
witnessing domestic violence, as well as being one of its
victims, has a profound impact on children." Custody of Vaughn,
422 Mass. 590, 599 (1996). "Violence within a family is highly
relevant to a judge's determination of parental unfitness and
the best interests of the children," Adoption of Gillian, 63
Mass. App. Ct. 398, 404 n.6 (2005), because a child who
witnesses "such abuse suffers a distinctly grievous kind of
harm." Custody of Vaughn, supra at 595. The mother repeatedly
misled the department with respect to her contact with the
father into at least early 2023. The trial judge found that the
mother "significantly minimize[d] her role" in the parents'
"toxic" relationship and the effects of that abusiveness on
Alison and Colton. Thus, "[t]he evidence in this case supported
the judge's reliance on domestic violence as a significant
21
factor in deeming the mother unfit." Adoption of Jacob, 99
Mass. App. Ct. 258, 264 (2021).
In both November 2023 and February 2024, the department
discovered evidence suggesting the mother was not regularly
taking her prescribed medications. She declined department home
visits in December 2023 and January 2024. Also that January,
her urine tested positive for codeine and alcohol but not her
prescribed medications. As had been true with the positive
cocaine results, the mother denied using codeine; once again she
was afforded an opportunity to get a second test, but again she
did not do so. This evasive behavior in avoiding home visits,
combined with the positive results of urine screens and the
mother's denial that she had used a substance revealed by the
screens, echoed some of her earlier behavior. In a further
echo, she missed three appointments with her psychiatrist
between October 2023 and January 2024 and stated two months
before trial that she would not have so many appointments with
providers if the department were not involved.
Trial began in June 2024. That September, the mother
missed two trial dates because she was in Florida for a business
trip. The judge did not credit the mother's testimony that her
return had been delayed when she contracted COVID-19, and the
judge then concluded that the mother's decision to leave
Massachusetts during trial "call[ed] into question her judgment
22
and priorities" regarding her children. "[A] trial judge has
discretion to determine whether to draw an adverse inference
from a parent's absence. . . . In determining whether to
exercise that discretion, 'the judge as fact finder' is to
consider whether such an inference is 'fair and reasonable based
on all the circumstances and evidence before' her." Adoption of
Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v.
Capuano, 468 Mass. 328, 334 (2014).
The judge was "entitled to consider the evidence of [the
mother's] recent improvements within the context of her earlier
and continuing deficits." Adoption of Jacques, 82 Mass. App.
Ct. at 608. And where, as here, the "judge's factual findings
were specific and detailed, demonstrating that close attention
was paid to the evidence and the fourteen factors listed in
G. L. c. 210, § 3 (c)," we cannot say that the trial judge
clearly erred by not including specific facts or giving more
weight to certain facts than others. Adoption of Nancy, 443
Mass. at 516. Considering the evidence of the mother's
longstanding history with domestic violence and substance
misuse; her continued failure to confront her own role in both,
and their impact on Alison and Colton; her persistent refusal to
take responsibility for positive results of drug and alcohol
tests; and her poor money management history, "the judge did not
clearly err in finding that the mother was unfit and that her
23
unfitness was not temporary." Adoption of Ilona, 459 Mass. at
62.3
"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.
By the time trial concluded in October 2024, Alison and Colton
were both "thriving" in the preadoptive placement where they had
been for three years. The mother, by her own testimony at
The dissent compares the facts in the present case to
3
those in Adoption of Arianne, 104 Mass. App. Ct. 716 (2024), and sees this case as more favorable to the mother. We do not see it that way. The mother in Adoption of Arianne, id. at 717, had successfully parented her child for the first two and one-half years of the child's life before voluntarily placing her in the care of the child's godmother (who was also a relative of the mother) for about ten months. Shortly after the child was returned, the mother again placed her with the relative, because the mother was in a violent relationship from which she sought to shield the child. Id. In vacating the decree terminating the mother's parental rights, we said, "[t]he fundamental problem with the judge's decision is that the judge treated the mother's placing the child in the care of the godmother as neglect." Id. at 721. We concluded that it was "not neglect for a parent who recognizes that she cannot provide her child with a safe or appropriate environment to place the child with appropriate caregivers"; instead, that was "the mark of a responsible parent." Id. We emphasized that a "single instance of domestic violence while the child lived with the mother, where the mother's response protected the child from further exposure to domestic violence, does not demonstrate that the mother's current unfitness is likely to last indefinitely." Id. at 723. No such facts were present here, where the mother's parenting challenges, including a toxic domestic relationship, persisted for years; she did not extricate the children; and, at the time of trial, she continued to exhibit concerning behaviors related to drug and alcohol use, truthfulness with the department, and accountability for her actions.
24
trial, felt she needed at least six more months before she might
be capable of parenting Alison and Colton full time. For five
years since Alison was born, however, the department had already
been providing services to the mother aimed at preparing her to
parent the children full time. Where the mother had become
stable only in the year before trial and acknowledged she still
needed more time, "the court must say, 'Enough,' and act in the
children's best interests." Adoption of Inez, 428 Mass. at 724,
quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 242 (1991),
S.C., 413 Mass. 339 (1992). Affording "substantial deference"
to the trial judge's findings, as we must, Adoption of Nancy,
443 Mass. at 515, we cannot say that she "abused [her]
discretion or committed a clear error of law" in concluding that
the mother's current unfitness was not likely to be temporary.
Adoption of Elena, 446 Mass. at 30.
2. Posttermination visitation order. The mother also
challenges the judge's conclusion that it was not necessary to
enter an order for posttermination visitation. While we agree
with the department that this issue could have been better
preserved for appeal, we exercise our discretion to address it,
as the judge discussed it in her decision. See Adoption of
Mary, 414 Mass. 705, 712 (1993). A "judge who finds parental
unfitness to be established has broad discretion to determine
what is in a child's best interests with respect to custody and
25
visitation with biological family members thereafter." Adoption
of Rico, 453 Mass. 749, 756 (2009). In determining whether such
visitation is in a child's best interests, the judge must
consider whether the child has a "significant, existing bond
with the biological parent" and whether "the child 'has formed
strong, nurturing bonds'" with a preadoptive family. Adoption
of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431
Mass. 550, 563 (2000). "A judge should issue an order of
visitation only if such an order, on balance, is necessary to
protect the child[ren]'s best interest[s]." Adoption of Ilona,
supra at 65.
The judge concluded that, while the evidence
"demonstrate[d] that [the m]other's visits with the children
generally went well, and the children were happy to see her" and
had "fun at visits with their mother," they also had "a hard
time following the visits and [took] a couple of days to
regulate." The judge noted the mother's testimony that the
children barely know her, and she barely knows them; she further
noted that the preadoptive parents "support[ed] continued
contact between the children and [the m]other so long as [the
m]other is sober and her mental health is stable." The judge's
ultimate conclusion that a visitation order was not necessary to
protect the children's best interests followed her careful
weighing of the evidence of the children's bonds with their
26
mother against their needs and connections with the preadoptive
family. We discern no abuse of discretion in the judge's
ruling.
Decrees affirmed.
WOOD, J. (dissenting).
"The natural bond between parent and child should not be
permanently severed unless the child's present or future
welfare demands it. None of our cases, in which we have
said that current parental unfitness is a prerequisite to
the allowance of a petition to dispense with consent to
adoption, should be construed as requiring such an extreme
step whenever the parents are currently unfit, or as
limiting the inquiry to parental fitness at the time of
trial."
Adoption of Carlos, 413 Mass. 339, 350 (1992).
To establish that the termination of parental rights is
warranted, it is not enough to find that the parent is currently
unfit. "The judge must also find that the current parental
unfitness is not a temporary condition" (quotation and citation
omitted). Adoption of Querida, 94 Mass. App. Ct. 771, 777
(2019). There must be clear and convincing evidence that "the
mother's current unfitness is likely to continue indefinitely."
Adoption of Arianne, 104 Mass. App. Ct. 716, 721 (2024). "The
requisite proof must be strong and positive; it must be 'full,
clear and decisive'" (citation omitted). Adoption of Iris, 43
Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).
I agree with the majority that the judge did not clearly
err or commit an abuse of discretion in finding that the mother
was currently unfit at her 2024 trial. But I disagree with the
majority's second conclusion that the judge did not clearly err
or commit an abuse of discretion in ruling "that said unfitness
2
is likely to continue into the indefinite future to a near
certitude."
The judge found that the mother's "lack of progress
throughout the pendency of this matter is a strong indicator
that her unfitness will continue undiminished into the future
with an attendant harmful [e]ffect on the children." In fact,
the record evidence established, and the majority acknowledges,
that the mother made significant "progress" since the Department
of Children and Families (department) was granted temporary
custody of her children in November 2021. Specifically, the
mother made great strides in managing her substance use
disorder; freeing herself from a "toxic," violent domestic
relationship; and achieving safe housing and financial
stability. Collectively, this progress established an
undeniable upward trend toward fitness, such that the judge
clearly erred in weighing the factors relevant to the decision
whether the mother's "unfitness is likely to continue into the
indefinite future to a near certitude." See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of
discretion). "The judge, having been alerted to what had been
reported as the mother's recent positive gains, should have
considered whether she would be likely to improve in the
future." Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008).
Accordingly, I dissent.
3
The judge focused on three areas of concern in the mother's
life: (1) her substance misuse; (2) her past abusive
relationship with the children's father; and (3) her financial
irresponsibility in the face of housing insecurity. I discuss
each area of concern as well as the mother's health.
1. Substance misuse. The mother struggled to overcome a
heroin addiction in rehabilitation programs for fourteen years,
from the ages of twelve to twenty-six. Then, in January 2018,
she began receiving Suboxone treatment (before either of the
subject children were born). She had been sober from heroin
since that date. Indeed, during the pendency of this case, the
mother took eighteen department-mandated urine screens, from
August 2021 to April 2024, all of which showed results that were
negative for heroin.
The mother tested positive for cocaine twice in 2021, and
once for codeine in January 2024. The mother drank alcohol and
used marijuana in moderation, but her substance use evaluator
did not report any concerns about that behavior. The mother
never presented as intoxicated during nearly three years of
weekly supervised visits with her children, from November 2021
to June 2024, and was never reported to have been under the
influence anywhere else.
The majority focuses on the fact that the department's
action plan tasks gave clear instructions to abstain from
4
alcohol, and the fact that the mother repeatedly deflected and
avoided responsibility for her alcohol consumption. I agree
that the mother's deflection of responsibility for consuming
alcohol supports the judge's finding of current unfitness.
But it is also clear that the mother's multiyear struggle
to maintain sobriety demonstrated a sustained commitment to
achieving parental fitness. To the extent that the judge was
concerned the mother's use of alcohol and marijuana supported a
potential relapse into substance abuse, "[t]he passage of [more
than] four years [since she achieved sobriety] is too long a
period to rely on the predictive value of past behavior without
verification -- especially when evidence contradicting the
prediction is readily available" (footnotes omitted). Adoption
of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App.
Ct. 117 (2005).
2. Domestic violence. The mother had a toxic and
destructive relationship with the father. But over the course
of six months from August 2022 to January 2023, she extracted
herself from that relationship. At the very least, that
achievement demonstrated progress toward fitness, and undermined
the probative value of this factor as evidence of permanent
unfitness.
The mother scheduled an intake appointment with a provider
on August 15, 2022, seeking to reengage in its domestic violence
5
education and prevention services. As the majority notes, the
mother completed two domestic violence counselling programs. On
January 27, 2023, she obtained a restraining order against the
father.1 From that point forward, there is no evidence that she
had contact with the father except for a single e-mail message
in November 2023, following the father's violation of that
order, to tell him that they could not communicate.2 Finally, in
October 2023, she completed a third education program about
domestic violence, a six-part series entitled "Raising Healthy
Families."
"At trial, there was no evidence presented that domestic
violence . . . was still present in the mother's life." Care &
Protection of Laurent, 87 Mass. App. Ct. 1, 4 (2015). Nothing
in the record suggested that the mother had seen or even spoken
to the father in the twenty-one months leading up to and during
trial. Accordingly, the evidence does not support the judge's
conclusion that "[i]f the children were returned to [the
1 The mother obtained multiple extensions of the order, and the father was arrested and charged with violating that order in November 2023.
2 To the extent that the majority and the judge relied on the mother's choice to view the father's public social media posts after she had obtained a restraining order as evidence of unfitness, I disagree. Again, the mother's termination of her relationship with the father and the absence of evidence of contact with him after January 2023 rendered that relationship irrelevant to the mother's fitness by the June 2024 trial date.
6
m]other, it is likely the parents would reengage in
communication, and [the m]other would be vulnerable to further
abuse from [the f]ather."
3. Housing instability and financial irresponsibility.
The judge noted that in December 2021 and February 2022, the
mother used department housing funds to travel to Las Vegas with
the father. I agree with the judge and the majority that this
"showed poor money management skills and [that she] prioritized
taking a vacation over having stable housing." Ante at 8. The
judge also noted that her decision to leave Massachusetts during
trial "call[ed] into question her judgment and priorities to her
children." Although I agree that this evidence supports the
judge's finding of current unfitness, it was also clear that the
mother acknowledged her financial irresponsibility, sought help
to address it, and made progress in achieving that goal.
First, the mother maintained relatively steady employment
throughout the pendency of this matter, despite experiencing
seasonal layoffs and housing instability. Second, in early
2023, at the same time that she was ending the toxic
relationship with the father, the mother engaged with a
community outreach worker. He met with the mother weekly to
teach her money management skills and help her fill out housing
applications. With his help, the mother obtained a subsidized
apartment in Providence on September 1, 2023.
7
Also, the mother's undisputed record of consistent and
loving weekly visits with her children from 2021 through 2024
spoke to "her judgment and priorities to her children."
Collectively, the mother's behavior demonstrated her ongoing
commitment to improve her financial situation, maintain
"adequate stable housing," and prioritize building a better life
for her children. Adoption of Anton, 72 Mass. App. Ct. 667, 676
(2008).
4. Medical and psychiatric diagnoses. Finally, the
majority notes that the mother struggled consistently to engage
with individual therapy and to take medication prescribed to
treat diagnosed medical and psychiatric conditions. But neither
the majority nor the judge identified any nexus between those
shortcomings and a risk of harm to the children. "Mental
[illness] is relevant only to the extent that it affects the
parents' capacity to assume parental responsibility, and ability
to deal with a child's . . . needs." Adoption of Luc, 484 Mass.
139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9
(1989). The judge made no such finding here.
Moreover, the mother made progress managing symptoms which
corresponded to her diagnoses. First, in January 2023, as she
was ending her toxic relationship with the father, she engaged a
therapist for a few sessions. Then, after five months of
searching for a new therapist, she found one in August 2023.
8
She met with him weekly throughout the trial; by October 2024,
she had consistently participated in mental health and substance
abuse counselling for fourteen months. Second, at the beginning
of 2023, the mother reengaged with her psychiatric nurse
practitioner (NP), who prescribed medications to manage symptoms
of the mother's conditions. Although the evidence supported the
judge's findings that the mother struggled to manage her
medication regimen, it also supported that she was making
progress on that front. By the start of trial in June 2024, the
psychiatric NP reported to the department that she had no
concerns about the mother. In any event, as noted, the judge
did not find that the mother's diagnoses "affect[ed] [her]
capacity to assume parental responsibility." Adoption of Luc,
484 Mass. at 146.
Collectively, in every area of concern, the mother made
"significant progress" toward parental fitness, beginning at
least eighteen months before trial. Adoption of Carlos, 413
Mass. at 351. This evidence of progress "casts doubt on several
of the findings central to the judge's decision." Adoption of
Imelda, 72 Mass. App. Ct. at 363. Indeed, the judge's findings
of likely future unfitness despite such significant progress
over an eighteen-month period before trial is contrary to this
court's precedent.
9
In Adoption of Arianne, 104 Mass. App. Ct. at 721, we held
that the trial judge abused his discretion and committed an
error of law in terminating a mother's parental rights based on
a finding that the mother's inconsistent engagement with family
action plan tasks established that her current unfitness was
likely to continue indefinitely. After successfully extracting
herself from a violent relationship, the mother in Adoption of
Arianne participated in a domestic violence support group and
individual therapy -- but only for a few months at a time, and
never as consistently as required by her action plan. See id.
at 718-720. She became involved in another toxic relationship,
but she left that situation after a single incident of domestic
violence. Id. at 718. The mother in Adoption of Arianne
participated inconsistently in meetings with her parenting aide,
visits with her child, and appointments with her department
social worker. Id. at 719. She missed the first day of her
termination trial without a reasonable excuse. Id. And yet,
this court held that because the mother had escaped from a
violent relationship and was working toward fitness, albeit
imperfectly, the trial judge's findings did not provide clear
and convincing evidence that her present unfitness was likely to
continue indefinitely. Id. at 722-723. The mother in this case
demonstrated greater consistency in visits and compliance with
10
her action plan tasks than the mother in Adoption of Arianne.3
This case is more like the illuminating case of Adoption of
Carlos, 413 Mass. at 351, in which the Supreme Judicial Court
affirmed the denial of a petition to terminate parental rights.
Following three years in which the department had custody of the
child, the court in Adoption of Carlos concluded that
improvement in the mother's "critical area of parental
unfitness" from June 1989 to the date of the evidentiary hearing
3 The majority distinguishes Adoption of Arianne, 104 Mass. App. Ct. at 722-723, by focusing on the judge's error in that case of construing the mother's decision to leave the child with a godparent as neglect. But the majority does not discuss the evidence in that case which we acknowledged supported a finding of unfitness at trial, notwithstanding the judge's error, or compare that evidence to the evidence of the mother's unfitness in this case. See ante at note 3.
After placing the child with her godmother, the mother in Adoption of Arianne experienced at least two incidents of domestic violence with one partner and then a third with a subsequent partner. See id. at 718. More importantly, after trial, the judge found that the mother still lacked insight into the "impact that [domestic] violence could have on [the child] outside of the physical removal from her mother's custody that occurred as a result." Id. at 718-719. Furthermore, the mother missed about one-quarter of her scheduled visits with her child, and the first day of the termination trial because she "forgot about it." Id. at 719 & n.9. We concluded that these inconsistencies, as well as "[t]he mother's inconsistency with completing action plan tasks, . . . established the mother's unfitness to parent the child as of the time of trial because it demonstrated a lack of focus on parenting the child." Id. at 722. Comparatively, by the time of trial in this case, the mother here had a stronger, albeit still imperfect, "focus on parenting the child." Id. Just as we recognized the absence of clear and convincing evidence in Adoption of Arianne that the mother lacked capacity to achieve fitness, I think we should recognize the absence of clear and convincing evidence here.
11
in "early 1990" established "significant progress," and a
reasonable likelihood that her unfitness at trial was only
temporary when coupled with the fact that "[t]he child ha[d]
been regularly visiting with his mother, and remain[ed] attached
to her [and was] eager to return home." Id. at 348, 351.
Because the evidence of the mother's progress undermined
the judge's ruling "that [her] unfitness is likely to continue
into the indefinite future to a near certitude," I cannot agree
that the proof rose to a level justifying the "extreme step" of
terminating the mother's parental rights (citation omitted).
Adoption of Ilona, 459 Mass. 53, 59 (2011). It was not strong,
positive, full, clear or decisive, Adoption of Iris, 43 Mass.
App. Ct. at 105; accordingly, I respectfully dissent.