ADOPTION OF BELLA (And a Companion Case).

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-1320

ADOPTION OF BELLA (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial on a review and redetermination motion

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

a judge of the Juvenile Court entered decrees terminating the

mother's parental rights to her two children, Bella and Onyx. 2

On appeal, the mother argues that the evidence did not clearly

and convincingly establish that she is currently unfit or that

she would remain unfit to parent her children in the future.

She further contends that the judge erred in concluding that the

department made reasonable efforts to reunite her with Bella and

Onyx. We affirm.

1 Adoption of Onyx. The children's names are pseudonyms.

2The father did not appear for trial. His parental rights
also were terminated; however, he has not appealed.
Background. On December 6, 2021, when Bella was eight

years old and Onyx was five years old, the department sought and

was awarded emergency temporary custody of both children. One

year later, on December 7, 2022, the mother and the father

stipulated to their unfitness and the judge entered orders

granting the department permanent custody of both children.

Thereafter, on August 28, 2023, the department filed a motion

pursuant to G. L. c. 119, § 26, seeking review and

redetermination of the permanent custody order along with

termination of each parent's rights to each child. That motion

was allowed, and a trial took place over four nonconsecutive

days between June and July 2024. At the conclusion of the

trial, the judge issued comprehensive findings of fact and

conclusions of law, which we summarize as follows.

The mother and the father were married in 2010. Bella was

born two years later in 2012, and Onyx was born in September

2016. The department first became involved with the family when

Onyx was born premature and substance exposed. Onyx had to be

resuscitated at delivery and tested positive for Subutex,

codeine, and morphine. The department investigated and the

mother and the father disclosed that they had been using

Percocet together for the past two to three years. The mother

also reported that she and the father had enrolled in substance

use treatment programs, but the department could not

2
independently verify this claim. Ultimately, the mother and the

father rejected the department's recommended services and

refused to sign any releases. Because the parents would not

cooperate with the department, the case was closed in July of

2017. Thereafter, the mother and the father continued to use

opiates, heroin, fentanyl, and "crack" cocaine.

The department became involved with the family again in

December of 2021, when the mother brought Onyx to the hospital

for a tonsillectomy and appeared to be under the influence of

drugs. 3 Hospital staff discovered Onyx's teeth were rotten and,

shortly thereafter, the department learned that Bella had an

"atrocious" school attendance record and went to school dirty

and improperly dressed for the weather. The department filed a

petition alleging that Bella and Onyx needed care and protection

and obtained emergency custody of both children. 4

The department then developed an action plan for the mother

which, among other things, required her to complete mental

health and substance use treatment plans, meet with the

3 The mother admitted during her testimony at the trial that
she had used heroin at the hospital.

4 The department placed Bella and Onyx with their paternal
aunt, but she became overwhelmed with the responsibility and
gave up the placement. The department then transferred Bella
and Onyx to a foster home in January of 2022, where they stayed
until they were placed with their preadoptive parents in July of
2023.

3
department, and remain sober. In the following week, the mother

briefly entered two treatment facilities without undergoing any

significant treatment. While the mother reported to the

department and testified that she attended weekly alcoholic's

and narcotic's anonymous meetings ("AA" and "NA"), there was no

evidence to support this assertion.

Within a month of the removal of the children from their

parents, in January of 2022, the mother overdosed on fentanyl.

After the mother was treated and released from the hospital, she

and the father sought treatment at an outpatient facility.

During intake, the mother reported that her longest period of

sobriety was "none." 5 The mother tested positive for cocaine and

fentanyl when she entered the program and continued to test

positive for cocaine, fentanyl, and marijuana. During this

time, the mother also appeared to be under the influence during

several visits with Bella and Onyx. 6 Despite the department's

5 The father also has a history of substance use disorder.
He was arrested twice for driving under the influence of
narcotics, and once for possession of crack cocaine and
fentanyl, respectively. When checking into the outpatient
facility, the father reported using heroin and fentanyl and
treating his substance use disorder with Suboxone obtained from
"the street."

6 The father has also appeared under the influence at
multiple visits with Bella and Onyx, and when approached by the
department about changing outpatient programs and attending
extended parenting classes, the father said he did not feel like
he needed them.

4
attempts to refer the mother to other programs, the mother was

not amenable to those efforts until May 2022, at which time she

began working with an in-home substance use counselor and

created a relapse plan. Ultimately, however, this arrangement

did not have a successful outcome. The mother continued to test

positive for cocaine and fentanyl throughout the summer, and she

no longer permitted the department to make home visits.

Despite experiencing unabating symptoms of substance use

disorder, the mother obtained employment in September 2022, and

began working as a retail store merchandise manager. Around

this time, she told the department that she had started

treatment at a second outpatient treatment center, but the

department was unable to confirm the mother's attendance. In

addition, the mother began canceling her visits with Bella and

Onyx and stopped providing toxicology screen results to the

department. 7 On December 5, 2022, the department changed Bella's

and Onyx's goals to adoption, and two days later, a custody

hearing was held. As previously noted, both parents stipulated

to their unfitness and the judge entered orders awarding

permanent custody of Bella and Onyx to the department.

7 Before the mother stopped providing toxicology screen
results altogether, the department had become concerned that the
mother was not submitting her own urine for testing.

5
Following the custody hearing, the mother had little

contact with the department. She missed five visits with Bella

and Onyx between January and April 2023 and, at one visit in

March, was asked to leave because she appeared to be under the

influence of drugs. 8 In April, the department changed the

visitation schedule from weekly to biweekly. The mother did not

contest this change. In June, the mother reported that she had

sought treatment at different intensive outpatient programs, but

they denied her placement due to her private insurance. The

department was unable to identify the names of those programs.

Meanwhile, in July of 2023, the children were placed

together in their preadoptive home, where they were living at

the time of trial. The mother did not visit Bella or Onyx for

three months after that placement. Both children have special

needs, which their preadoptive parents have addressed with the

assistance of counsellors and specialists. 9

The mother's circumstances began to improve by the

beginning of 2024 and up to the time of the trial on the review

8 The father likewise was inconsistent with visits between
January and March and thereafter stopped attending visits and
communicating with the department entirely.

9 Both children currently participate in individual therapy
and engage in family therapy with their preadoptive parents.
When the children were removed from the mother's custody, both
were obese, but Onyx has since shown significant improvement
maintaining a healthy weight.

6
and redetermination motion. The mother began to re-engage with

Bella and Onyx. She continued to work at the retail store and,

by the time of trial, had been promoted to the position of store

manager. In addition, the mother enrolled at an intensive

outpatient program. At that program, the mother had eight

unsupervised toxicology screenings, all of which came back

negative for substances. In April 2024, the department

conducted a home visit and found nothing of concern. However,

despite these positive gains, the mother missed fifty-six group

sessions at the outpatient program between February and June.

The mother testified that she missed these sessions due to

illness or scheduling conflicts, but the judge did not credit

this testimony.

As we have previously noted, the judge concluded that

termination of the mother's parental rights was in the

children's best interests. She found that the mother had not

sufficiently engaged in substance use treatment or therapy and

was not forthcoming about her relationship with the father; as a

result, she was not able to parent her children. 10 The judge

further concluded that the mother would continue to be unfit,

10The mother reported that the father was in an inpatient
program and not living in the home, but at trial, the paternal
grandfather testified that the mother and the father were still
in a relationship and living together.

7
and also approved of the department's plans for the children of

adoption by their preadoptive parents.

Discussion. 1. The mother's parental unfitness. The

mother first argues that the judge erred in concluding she was

unfit because by the time of trial, she had engaged in an

intensive outpatient treatment program, was sober, and was

employed.

"When reviewing a decision to terminate parental rights, we

must determine whether the trial judge abused [her] discretion

or committed a clear error of law." Adoption of Elena, 446

Mass. 24, 30 (2006). "[Her] assessment of the weight of the

evidence and the credibility of the witnesses is entitled to

deference" (citation omitted). Adoption of Quentin, 424 Mass.

882, 886 (1997). Although, as the judge noted, the mother had

indeed made progress, the judge did not abuse her discretion in

concluding that the mother's attempts to treat her substance use

disorder were not meaningful and that, as a result, her

substance use issues were not adequately addressed. "In a

review and redetermination proceeding, 'the judge does not start

with a blank slate'" (citation omitted). Adoption of Darlene,

99 Mass. App. Ct. 696, 703 (2021). It was undisputed that the

mother's history of addiction spanned twenty years and that she

had only recently experienced a few short periods of sobriety.

The judge properly considered evidence that established the

8
mother consistently presented under the influence of, and tested

positive for, illegal substances, often skipped visits with her

children, and at times resisted services and assistance offered

to her by the department. Essentially, the mother's argument

"amount[s] to no more than a disagreement with the judge's

weighing of the evidence," something firmly within the judge's

discretion and, absent a showing far more serious than the

present one, outside of ours. Adoption of Don, 435 Mass. 158,

166 (2001).

The mother also argues that the judge's finding that she

failed to "demonstrate[] her sobriety" shows that the judge

improperly shifted the burden to her to prove her fitness. We

are not persuaded. The judge applied all the factors required

by G. L. c. 210, § 3, and specifically acknowledged that the

mother "does not bear the burden of proving her fitness." There

was no error. See Adoption of Terrence, 57 Mass. App. Ct. 832,

836 (2003).

2. The judge's finding that the mother's unfitness was not

temporary. Next, the mother argues that even if the judge did

not err in concluding that the mother was unfit, she still erred

by concluding that the mother would continue to be unfit in the

future. Again, "[w]e review the judge's findings with

substantial deference, recognizing her discretion to evaluate a

witness's credibility and to weigh the evidence," Adoption of

9
Nancy, 443 Mass. 512, 515 (2005), "and reverse only where the

findings of fact are clearly erroneous or where there is a clear

error of law or abuse of discretion." Adoption of Ilona, 459

Mass. 53, 59 (2011).

"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 59.

The judge found that a year after the mother stipulated to her

unfitness, she enrolled at an intensive outpatient treatment

program where she was unable to consistently attend group

sessions. While it is true that the mother's toxicology

screening test results indicated no drug use, the judge was

within her discretion to discredit those results as the tests

were unsupervised, and other evidence contradicted the mother's

testimony regarding her sobriety. The judge also found the

mother's ongoing relationship with the father indicative of her

continued unfitness. In addition, the mother has not taken any

parenting courses and, as discussed above, both children have

needs requiring specialized care, which the preadoptive parents

have been coordinating and providing.

3. The department's reasonable efforts to reunite the

family. Lastly, the mother claims that the department failed to

make reasonable efforts to reunify her with her children.

10
Because this issue was not raised in a timely manner, it is

waived. 11 However, even if preserved, the claim lacks merit.

"A judge's determination that the department made

reasonable efforts will not be reversed unless clearly

erroneous." Adoption of West, 97 Mass. App. Ct. 238, 242

(2020), citing Adoption of Ilona, 459 Mass. at 61-62. Such is

not the case here. The mother claims that the department failed

for two reasons. First, she contends that the department failed

to update her action plan for two years; and second, the

department failed to schedule and conduct a home visit with her

for a period of six months, from November of 2023 to April of

2024. While the record contains support for both allegations,

the judge's finding that the department made reasonable efforts

is based on additional compelling evidence. The department

repeatedly referred the mother to substance use counseling

services, parenting classes, and made efforts to accommodate her

needs when scheduling visits. The mother did not always take

advantage of these opportunities, failed to maintain contact

with the department, and refused home visits. See Adoption of

Mario, 43 Mass. App. Ct. 767, 774 (1997) (department's duty "to

use reasonable efforts . . . was contingent upon the mother's

11There is no indication in the record that the mother
raised this issue before trial.

11
fulfillment of her own parental responsibilities"). There was

no error.

Decrees affirmed.

By the Court (Vuono,
Desmond & Toone, JJ. 12),

Clerk

Entered: December 17, 2025.

12 The panelists are listed in order of seniority.

12