ADOPTION OF FARRELL (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

23-P-1013

ADOPTION OF FARRELL (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parents appeal from decrees entered in the Juvenile

Court terminating their parental rights with respect to their

two youngest children, Farrell and Amy. The parents challenge

both the ultimate conclusion of unfitness and several of the

factual findings on which it stands. The mother additionally

asserts that the Department of Children and Families

(department) failed to make reasonable efforts to reunify the

family. We affirm.

1. Contested findings. We begin by addressing the

parents' claims that several of the trial judge's findings of

fact were clearly erroneous, stale, or incompatible with an

even-handed assessment of the evidence. "In proceedings to

1 Adoption of Amy. The children's names are pseudonyms.
dispense with parental consent to adoption, the judge must make

specific and detailed findings demonstrating that close

attention has been given to the evidence." Adoption of Quentin,

424 Mass. 882, 886 (1997). Subsidiary findings of fact must be

supported by a preponderance of the evidence. See Care &

Protection of Laura, 414 Mass. 788, 793 (1993).

"A finding is clearly erroneous when there is no evidence

to support it, or when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed"

(quotation and citation omitted). Custody of Eleanor, 414 Mass.

795, 799 (1993). "[T]he judge's assessment of the weight of the

evidence and the credibility of the witnesses is entitled to

deference." Id.

a. The mother's sobriety. Both parents argue that the

judge erroneously discredited the mother's assertion that she

had overcome her use of substances "cold turkey" because the

evidence did not establish exactly when she had last used

substances or whether she was still using them at the time of

trial. We see no basis on which to disturb the judge's

credibility determination. The judge was not required to make a

specific finding on the mother's last known date of substance

use before finding that she had "not made or maintained any

observable changes regarding her mental health or substance

2
abuse." This finding was supported by a fair preponderance of

evidence, including the mother's lack of a recovery program and

the father's inconsistent cooperation with the department in

fashioning a relapse prevention plan for the mother. See

Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607 (2012).

In light of the mother's noncompliance with inpatient and

outpatient programs, as well as her failure to consistently

complete action plan items with respect to substance abuse, the

mother's argument that direct evidence of her drug use was stale

or unfounded is meritless. The judge's finding that monthly

drug screening was insufficient to keep the mother's substance

abuse in check was not clearly erroneous. See Care & Protection

of Vieri, 92 Mass. App. Ct. 402, 406 (2017) ("The judge was

permitted to draw a negative inference from the mother's

unexplained refusal to cooperate with the department").

b. Marijuana use. The father challenges the finding that

he gave the mother marijuana in addition to what she procured

for herself. At trial, he testified that he did not supply her

with marijuana and that she obtained her own from a dispensary

-- although he did admit that he took her to the dispensary

every time she went. The discrepancy between the judge's

finding and the evidence is minor. In any event, the parents'

marijuana acquisition and use carried little weight in the

3
judge's conclusion of unfitness, which focused on the mother's

unaddressed misuse of stronger substances.

c. The father's criminal history and police interactions.

The father contends that the judge's finding that he "has a

criminal history and significant police interaction" is clearly

erroneous because all criminal charges against him were

dismissed or nolle prossed. He also takes issue with the

judge's use of the mother's abuse protection orders against him

as a basis for finding that he had a criminal history. We agree

that the finding that he had a criminal history was clearly

erroneous. However, the evidence -- including the dismissed

assault and battery charges from 2013 and 2017 -- does support

the judge's finding that he had "significant police

interaction."

d. Relapse prevention plan. The father challenges the

finding that in July 2020, after the department asked him to

develop a relapse prevention plan for the mother, he

"articulated several reasons why he had not provided one,

including that he did not want to, he was unable to speak with

Mother's providers, [and] he was not understanding why it was

needed." The judge's finding that the father did not understand

"why it was needed" is a plausible interpretation of the

testimony of the ongoing social worker, who listed "not

understanding" as one of the reasons the father did not provide

4
a plan. The finding with respect to this particular

conversation in July 2020 is not clearly erroneous. We do note

that the father was a party to numerous "conversations

pertaining to safety planning around Mother's relapse prevention

plan."

e. Domestic violence. The facts reveal a volatile

relationship between the parents. They obtained several abuse

prevention orders against each other between 2011 and 2019.2 In

July 2021, the father "reported that he was going to leave the

home in fear for his own safety," and with referrals from the

department, he called two domestic violence hotlines for advice.

While recognizing that there was no direct "evidence of physical

force between the parents," the judge concluded that "the level

of mental and emotional abuse enacted by them upon each other is

indeed domestic violence."

We agree with the father's contention that there was no

evidence of physical force or violence that would equate to

"domestic violence" for purposes of determining parental

unfitness. See Custody of Vaughn, 422 Mass. 590, 595-596

(1996). The relationship may have been "toxic and codependent"

in the sense that the parents repeatedly sought distance from

each other and that the father was more of a negative than a

2 The orders, and the factual bases for them, are absent
from the record appendix.

5
positive influence on the mother's deficiencies as a parent. At

trial, the father admitted that the mother could be manipulative

in the sense that "[i]f she doesn't get . . . something she

wants, she, you know, gets angry," and sometimes did so when

their three eldest children were present.3 The issuance of abuse

prevention orders against him is evidence that the mother

experienced a reasonable fear of imminent physical harm from the

father, and the father acknowledges that the department had

concerns about the mother perpetrating domestic violence against

him. The judge had a responsibility to examine the issue

closely and make explicit findings. See id. at 599-600. While

troubling and relevant to the ultimate finding regarding the

children's best interests, these facts do not establish a

pattern of physical force or violence to justify the label of

domestic violence.

f. Special needs. Both parents challenge the judge's

findings that Farrell and Amy each have significant special

needs requiring attention and care that "neither parent is

prepared to effectuate." Farrell has been diagnosed with

attention deficit hyperactivity disorder and receives social and

emotional support through an individualized education program.

The parents rights to their three eldest children were
3

previously terminated, and those children were not a part of
this proceeding. See part 2.a, infra.

6
Amy receives early intervention services, "occupational therapy,

physical therapy, and speech therapy" as a result of substance

exposure at birth, and she has shown symptoms of a milk allergy

and a relatively minor skin condition. Both children are

receiving appropriate care and resources from their preadoptive

caregivers. The judge's findings in this regard are not

erroneous.

2. Parental fitness and children's best interests. Even

if some subsidiary findings are erroneous, the judge's ultimate

conclusion may still be "amply supported" by evidence of a

parent's unfitness. Adoption of Helen, 429 Mass. 856, 859

(1999). We summarize the findings of fact underlying the

judge's ultimate conclusions, discarding any clearly erroneous

findings. Where necessary, we supplement the judge's findings

with evidence from the record appendix, and we reserve certain

facts for later discussion.

a. Background. The mother has lost her parental rights

with respect to all seven of her children.4 She had two children

before her relationship with the father began. She gave birth

to her first child in 1996, when she was a teenager. That child

4 The judge's finding that the mother "has given birth to
six children," rather than seven, is clearly erroneous. The
error is immaterial, however, where the findings referred to all
seven children by name and, in any event, the exact number of
children born to the mother has no bearing on the ultimate
issues here.

7
was removed by the department and adopted after an alleged

domestic violence incident with that child's father in 2000.

The department removed her second child, born in 2006, because

he was exposed to controlled substances at birth. That child

was later adopted. The parents' relationship began sometime

between 2006 and 2009, and they had three children together

between 2010 and 2012. The parents' rights to their first three

children were terminated after a trial in 2015. Farrell, born

in June 2016, and Amy, born in November 2019, are the parents'

fourth and fifth children together. They were born substance-

exposed and have been in the department's custody since days

after their births.5

The mother has suffered from significant substance abuse

and mental health issues for most of her life. She dropped out

of school following the seventh grade. She started using

cocaine and "crack" cocaine at age twenty-one and heroin at age

thirty-one. She has intermittently received methadone

treatments since 2010 and was attending methadone clinics around

5 Farrell tested positive for marijuana and methadone at
birth and suffered withdrawal symptoms in the hospital. The
mother admitted to using heroin, cocaine, and marijuana during
the pregnancy. Amy tested positive for methadone at birth, but
she showed no withdrawal symptoms. The mother admitted to using
heroin, "crack" cocaine, and marijuana while she was pregnant
with Amy. The mother also tested positive for the same
substances, as well as methadone, benzodiazepines, and fentanyl,
earlier in the pregnancy.

8
the time of trial. Still, she continued using heroin and

marijuana during treatment, and by the time of trial, she had

"no recovery program or services other than medication

maintenance and (approximately) monthly urine screens." The

judge discounted any deterrent effect of urine screens because,

in 2016, the father reported that the mother was likely storing

urine to defeat the probation department's drug tests.

The mother has a notable history of crime and encounters

with law enforcement. She has been convicted of possession and

distribution of cocaine and assault and battery by means of a

dangerous weapon. Charges of larceny, attempted larceny, and

uttering a false check were continued without a finding. At the

time of trial, there were multiple open criminal charges against

her for possession of heroin and cocaine, driving with a

suspended license, and leaving the scene of an accident after

causing property damage. The judge permissibly drew a negative

inference from the mother's assertion of her privilege against

self-incrimination when questioned about her arrests and open

charges. See Custody of Two Minors, 396 Mass. 610, 616 (1986).

Unlike the mother, the father does not have a criminal record or

a pattern of serious substance abuse, although he has had

"significant police interaction" and uses marijuana daily,

likening it to "sipping coffee."

9
Both parents have struggled to maintain adequate income and

stable housing. The mother's mental health conditions qualify

her for Social Security disability income, which, around the

time of trial, she supplemented with earnings from two

supervisory retail positions. The father, despite holding a

master's degree and a doctorate in music, has had "a long

history of homelessness and housing instability," as well as

financial instability. He has been employed as a delivery

driver and part-time music teacher.

During the care and protection proceedings for their first

three children, the parents were unable to consistently maintain

electricity, hot water, or clean living conditions in the family

home. In October 2015, they absconded with the three children

to South Carolina without notifying the department, family

members, the children's school, or any collateral resources.

They moved "primarily to evade" the department and "had no

secured housing, no services in place, and nowhere to settle

once they reached South Carolina." The judge did not credit the

father's testimony that he thought they were permitted to leave

the State with the three older children, nor did she credit

either parent's testimony that the mother was sober and did not

suffer from withdrawal symptoms on the way to South Carolina.

To the contrary, the father had to bring the mother to a

hospital at least twice for emergency doses of methadone. Six

10
days after they left Massachusetts, the parents were arrested by

South Carolina police for possession of controlled substances.

Department social workers flew to South Carolina to retrieve the

three children, took custody of them, and placed them in foster

care. The parents followed the three children to Massachusetts.

As noted, the parents' rights to those children were eventually

terminated.

After Farrell's birth, the parents continued to experience

housing instability. During parts of 2018 and 2019, the parents

lived in the father's van, and police officers responded to

calls for wellness checks. While pregnant with Amy in 2019, the

mother entered a residential treatment program for three months.

By the time she left the program and gave birth to Amy, she had

separated from the father and started using substances again.

She stayed in hotels and "sometimes in a car" during this

period. By the spring of 2020, about one year before trial, the

parents had reconciled and were living at a shelter in

Northampton and at times in a boarding house in Springfield.

Violence and substance abuse by the other residents, as well as

the mother's conflicts with other residents, drove the father to

leave on his own and seek housing assistance from the

department. The parents reconciled again at some point and

lived in an apartment in Westfield.

11
In November 2020, the parents moved to Granby, Connecticut,

where they stayed at a motel for "a couple of months" before

leasing an apartment on a month-to-month basis. The father

hoped to distance the mother from her addiction "triggers" in

Westfield, about one-half hour's drive away. They resided in

the Granby apartment at the start of trial. However, after

their relationship with the landlord deteriorated, the parents

lost the Granby apartment in March 2022, while the trial was

ongoing. They failed to attend a virtual home visit scheduled

for the day after their tenancy ended. At the conclusion of the

trial, the parents' living situation was unknown.

The parents' relationship and marriage have been

turbulent. The marriage began in May 2013. The father filed

for his first abuse prevention order against the mother just two

months later. They have separated at least twice, and the

father has filed for divorce at least three times. While there

is virtually no evidence of physical domestic violence,6 the

6 The only arguable instance of physical domestic violence
was when, in 2018, the mother went to a police station and
reported that the father had pulled her out of his van "with
force" following an argument. She left the station before the
police could obtain a formal statement. During a wellness check
the following month, neither parent reported any concerns about
domestic violence. As noted earlier, however, the parents'
successful applications for abuse prevention orders against each
other suggests that the threat of imminent physical harm arising
from the tension in their relationship was present at various
times.

12
father has struggled to set appropriate boundaries to protect

the children from the effects of the mother's mental health and

substance abuse. The father's divorce attempts were apparently

meant to distance himself from the mother's conduct. He

reported the mother's substance abuse incidents to the

department at least twice. Still, the parents remained

committed to each other at the time of trial. The father has

consistently reconciled with the mother to help "keep her in the

game" so that she may one day be "around and healthy" for the

children. Indeed, the parents testified that they intended to

parent Farrell and Amy as a couple.

Both parents failed to cooperate with the department or

show consistent compliance with their action plans. They

refused to meet with department employees or sign releases for

services following Farrell's initial removal in 2016. The

mother inconsistently attended individual counselling and did

not follow through with a psychological evaluation, treatment,

early intervention services, or her parenting group. She has

not cooperated with the department since December 2020. By the

time of trial, she "ha[d] not made or maintained any observable

changes regarding her mental health or substance misuse." While

the father made more progress on the items identified in his

action plans, namely mental health and marijuana use, he

declined to sign off on nearly every action plan, and he

13
disputed most of the action items before he joined the mother in

refusing to cooperate further. Finally, the parents moved to

Connecticut to avoid interacting with the department.

b. Discussion. "To terminate parental rights . . . 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." Adoption of

Jacques, 82 Mass. App. Ct. at 606. In so finding, the judge

"shall consider the ability, capacity, and readiness of the

child's parents . . . to assume parental responsibility

(emphasis added)." Adoption of Elena, 446 Mass. 24, 31 (2006),

quoting G. L. c. 210, § 3 (c). Parental unfitness is not merely

"ineptitude, handicap, character flaw, conviction of a crime,

unusual life style, or inability to do as good a job as the

child's foster parent. Rather . . . parental unfitness means

grievous shortcomings or handicaps that put the child's welfare

much at hazard" (citations omitted). Adoption of Darlene, 99

Mass. App. Ct. 696, 702 (2021). Whether termination of parental

rights is in a child's best interests is within the trial

judge's discretion. See Adoption of Hugo, 428 Mass. 219, 225

(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.

1034 (1999). On appeal, "we must determine whether the trial

14
judge abused [her] discretion or committed a clear error of

law." Adoption of Elena, supra at 30.

i. Termination of the mother's parental rights.

Discounting the few erroneous factual findings, the judge's

decision that the mother is unfit to parent falls well within

"the range of reasonable alternatives" (citation omitted).

Adoption of Xarissa, 99 Mass. App. Ct. 610, 616 (2021). The

record contains voluminous evidence of the mother's substance

use and mental health concerns, past and pending criminal

record, housing instability, and refusal to cooperate with the

department. Farrell and Amy, as substance-exposed newborns,

have been in the department's custody virtually since birth and

have never lived with the mother or the father. The children

have strong bonds and are thriving in their preadoptive homes.

The judge properly considered the mother's likely inability to

meet the children's special needs, as compared to the proven

capability of the preadoptive caregivers. The judge did not

abuse her discretion in weighing these factors to find the

mother unfit.

The mother argues that the judge's conclusion of parental

unfitness was unsupported by clear and convincing evidence that

her substance use and mental health struggles prevented her from

providing the children with minimally acceptable care.

Substance abuse during and after pregnancy, even involving

15
cocaine and similarly dangerous illegal substances, cannot be

the sole ground for terminating parental rights without evidence

that the parent "provide[d] less than minimally acceptable care"

for the child. Adoption of Katharine, 42 Mass. App. Ct. 25, 31

(1997). Here, however, the record contains ample evidence of a

nexus between the mother's substance use and mental health

issues and her ability to parent.

The judge was within her discretion to consider the

mother's decades-long pattern of substance abuse, tendency to

relapse, and apparent willingness to flee the jurisdiction of

both the department and the Juvenile Court. See Adoption of

Elena, 446 Mass. at 33. We defer to the judge's decision not to

credit the mother's testimony that she had become sober and had

stopped using illegal substances "cold turkey." See part 1.a,

supra. The mother failed to make consistent progress in

addressing her mental health conditions to assure either the

department or the judge that she could provide the children with

a baseline level of care. The judge was entitled, if not

required, to view the mother's mental health struggles as

evidence of unfitness. See, e.g., Adoption of Gwendolyn, 29

Mass. App. Ct. 130, 133-134 (1990). "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

16
fitness." See Adoption of Virgil, 93 Mass. App. Ct. 298, 301

(2018).

The mother also takes issue with the judge's conclusion

that, despite completing some action plan items, she "has not

demonstrably benefitted from . . . parenting education," arguing

that the judge disregarded evidence that the mother applied her

parenting education during visits with the children. Although

the mother's conduct during visits was generally appropriate, a

host of other factors weighed heavily in favor of unfitness.

See Adoption of Virgil, 93 Mass. App. Ct. at 303. There is

ample evidence that the mother's compliance with her action plan

was inadequate. She not only failed to participate in the

department's services, but intentionally evaded and circumvented

them by leaving the State with the eldest three children and

falsifying urine screens. In fact, she conceded her

noncompliance, claiming she was fit nonetheless. The mother's

failure to comply with or make tangible progress on her action

plan properly supported the judge's finding of unfitness. See

id. at 302 ("A judge may not decline to dispense with consent

based on a faint hope that the family will succeed if

reunited"). The judge did not err in assigning little weight on

the mother's agreeable behavior during visits. In short, the

mother's appellate arguments "amount to no more than a

disagreement with the judge's weighing of the evidence and

17
credibility determinations regarding witnesses." Adoption of

Don, 435 Mass. 158, 166 (2001).

ii. Termination of the father's parental rights. The

father asserts that, absent the erroneous factual findings, the

remaining facts were insufficient to support a finding of

unfitness. He maintains that he "was sober, maintained a home

for his children, was employed," and "consistently took

appropriate steps to ensure the home his children would return

to was safe by maintaining constant vigilance for a relapse by

mother." While the facts do not establish that the father had a

substance use problem or was consistently unemployed, they

overwhelmingly support the judge's findings that the father was

unable to prevent the mother from relapsing or maintain stable

and appropriate housing for the children.

We recognize that codependency within a committed

relationship is not proof of unfitness. Even so, under these

circumstances, the parents' enduring commitment to each other

conflicted with the best interests of the children. We must

defer to the judge's conclusion that the father is unable to set

appropriate boundaries with the mother. Where the father argues

that the judge "erroneously discredited" his "efforts to live up

to his obligations to his children and his wife," the judge's

findings to the contrary were well within her discretion and

18
entitled to our deference. See Care & Protection of Three

Minors, 392 Mass. 704, 711 (1984).

Finally, we are not persuaded by the father's claim that a

single instance of the judge mixing up the preponderance of the

evidence standard, applicable to subsidiary facts, with the

clear and convincing evidence standard, applicable to the

ultimate conclusions regarding unfitness and best interests,

betrayed a "lack of attention" throughout the decision. This

isolated error was harmless, as the judge repeatedly, in every

other instance, stated the correct standard. See Adoption of

Peggy, 436 Mass. 690, 702 (2002).

3. Reasonable efforts. The mother argues that the judge

erred in terminating her parental rights where the department

failed to make reasonable efforts to assist with reunification.

See G. L. c. 119, § 29C; Care & Protection of Walt, 478 Mass.

212, 221 (2017). Where, as here, "the parent's consent to

adoption of a sibling of the child was dispensed with under

[G. L. c. 119, § 26, or G. L. c. 210, § 3], or the parent's

rights were involuntarily terminated in a case involving a

sibling of the child," reasonable efforts are not required.

G. L. c. 119, § 29C (ii). See Care & Protection of Walt, supra

at 222; Adoption of Ilona, 459 Mass. 53, 60 n.10 (2011). See

also 42 U.S.C. § 671(a)(15)(D)(iii) (reasonable efforts not

19
required if "the parental rights of the parent to a sibling have

been terminated").

Decrees affirmed.

By the Court (Green, C.J.,
Vuono & Massing, JJ.7),

Clerk

Entered: August 8, 2024.

7 The panelists are listed in order of seniority.

20