ADOPTION OF JANICE (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-960

ADOPTION OF JANICE (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Juvenile Court, a judge terminated the

mother's parental rights to her children, Janice and Gerald.2 We

have carefully considered the parties' arguments and are

satisfied that the Department of Children and Families

(department) proved by clear and convincing evidence that the

mother was permanently unfit to parent the children. We

likewise discern no abuse of discretion or other error in the

judge's determination that the department made reasonable

efforts to reunite the family before seeking to terminate the

mother's parental rights. Accordingly, we affirm the decrees.

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

2The children's father stipulated to his unfitness and
entered into an open adoption agreement as to the children. He
has not appeared in this appeal.
Discussion. 1. Standard of review. "To terminate

parental rights to a child, the judge must find, by clear and

convincing evidence, that the parent is unfit and that the

child's 'best interests will be served by terminating the legal

relation between parent and child.'" Adoption of Luc, 484 Mass.

139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59

(2011). Clear and convincing evidence means that "[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). "We review the judge's findings with substantial

deference, recognizing [the judge's] discretion to evaluate a

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

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, supra.

2. Evidence of the mother's unfitness. In this case, the

judge made 335 "specific and detailed findings in support of

[the] conclusion that termination [was] appropriate," and set

down her conclusions of law with similar care. Adoption of

Nancy, 443 Mass. at 514-515. With one exception that we address

infra, the mother does not challenge the judge's findings as

clearly erroneous.

2
The judge properly considered the fact that the mother's

use of marijuana was so heavy that she regularly spent nearly

all of her monthly income on the drug, see Adoption of Virgil,

93 Mass. App. Ct. 298, 303 (2018) (financial instability is

proper consideration in unfitness determination, although

insufficient on its own to justify termination of parental

rights), and that she had to travel out of state to buy

marijuana because her demand for it required her to buy more

than the amount authorized for purchase under Massachusetts law.

More importantly, the judge also considered the potential risks

to the children posed by the mother's misuse of marijuana; the

judge considered both the mother's failure to follow her safety

plan for the children's supervision in light of her daily

marijuana use, see Adoption of Zoltan, 71 Mass. App. Ct. 185,

190 (2008), quoting G. L. c. 210, § 3 (c) (xii) (judge may

consider parent's drug use where such use "makes the parent

. . . unlikely to provide minimally acceptable care"), and the

mother's 2022 charge and later conviction of operating a motor

vehicle under the influence of marijuana.3 See Care & Protection

of Frank, 409 Mass. 492, 494 (1991) (operating under the

influence conviction relevant to, although generally not

3 There was no evidence that the children were in the car at
the time of this offense.

3
dispositive of, unfitness determination). The mother highlights

her testimony that, between 2022 and the trial date in the

present case, she had reduced the amount of marijuana she used

to four ounces per month, and that she would use marijuana only

twice a day unless her needs increased based on the onset of a

panic attack. We note, however, that the judge found that the

mother often uses marijuana "more frequently" than twice a day

"to manage her anxiety and disorders."

Yet, the mother's misuse of marijuana was not the only

evidence of unfitness on which the judge relied. Most

significantly, the judge also considered the mother's long

history of mental health concerns, both independently and as

they intertwined with her reliance on marijuana. The judge

found that, despite the mother's having been diagnosed with

several mental health and other conditions4 and having been

prescribed an array of medications to manage those conditions,

by the time of trial, she had opted to forego additional mental

health treatment and had stopped taking prescribed medication in

favor of self-medicating with marijuana several times each day.

4 Specifically, the mother was diagnosed with
schizoaffective disorder, schizophrenia, multi-personality
disorder, generalized anxiety disorder, panic disorder,
posttraumatic stress disorder (PTSD), attention deficit
hyperactivity disorder (ADHD), dyslexia, bipolar disorder, and
major depressive disorder. The mother has also been diagnosed
with autism.

4
The judge also found that the mother's belief that her marijuana

use effectively managed her mental health conditions and

symptoms was inaccurate, as evidenced by, inter alia, her

dysregulated conduct during the trial.5

Additionally, the judge found that, though the mother

briefly engaged in dual diagnosis (mental health and substance

misuse disorder) treatment with her individual therapists, she

initially had been resistant to, and ultimately had failed to,

complete a dual diagnosis program, despite the recommendations

of both her mental health providers and the department.6

Although the mother contends otherwise, we are not persuaded

that the judge's findings on this point were clearly erroneous;

the mother's social worker testified that the mother was

resistant to the dual diagnosis programming, and to the extent

the mother testified otherwise, the judge did not credit that

testimony. There was also evidence to show that, although the

mother ultimately agreed to participate in the dual diagnosis

5 The judge found that, at trial, the mother "yelled and
screamed at [opposing counsel]" from the witness stand,
"abruptly left the witness stand and went to walk out of the
courtroom" on the first day of trial, and, on another day, had a
panic attack and sat under the sink in a courthouse restroom
until the court clinician was able to calm her.

6 There was testimony that the mother's psychiatrist was
concerned about the amount of marijuana that the mother was
smoking and its potential interactions with her medications.

5
programming, she was unwilling or unable to complete it in a

group format. Moreover, after the department accommodated the

mother's request that her individual therapist be permitted to

provide dual diagnosis services, the mother was discharged from

ensuing treatment before she had completed it because her

providers concluded that they were no longer able to help her.

As we have noted, beyond the mother's inconsistent response to

participating in dual diagnosis programming, the judge

additionally found that, by the time of trial, the mother had

decided not to reengage with psychiatrists and instead planned

to continue to self-medicate with marijuana, though she has not

addressed her use of medical marijuana with a doctor since 2018.

We recognize that, in determining parental fitness, a

parent's 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

Frederick, 405 Mass. 1, 9 (1989). Here, in addition to

considering the fact of the mother's marijuana use and mental

health concerns, the judge considered the impact of those

factors on her ability to parent Janice and Gerald. The judge

properly considered the mother's persistent inability or

unwillingness to meet the children's basic needs,7 see Adoption

7 This included the mother's failure to ensure that the
children were fed safely and in adequate amounts while they were

6
of Oliver, 28 Mass. App. Ct. 620, 624-625 (1990) (parent found

unfit where infant was unable to gain weight, among other

issues, and parent showed "no comprehension of [the infant's]

problems and d[id] not acknowledge that he ha[d] problems" that

were exacerbated by his environment); the mother's inability to

manage her temper with the children,8 see Adoption of Eduardo, 57

Mass. App. Ct. 278, 283 (2003) (mother's inability to "control[]

her volatile nature" or address her mental health problems

constituted continuing risk to child and supported finding of

unfitness); the mother's failure to ensure that the children did

not have access to the marijuana and related paraphernalia in

her home,9 see Adoption of Elena, 446 Mass. 24, 27 (2006)

(mother's unsafe practices, which exposed children to drugs and

drug paraphernalia, among other risks, were relevant to finding

in her custody, and her later failure to come to visits with the
children properly prepared with supplies. The mother also
testified that she "does not have the mind to buy healthy snacks
when she is at the grocery store." As babies, both children had
difficulty gaining weight and, when Gerald's weight was in the
first percentile, the mother refused weekly weight checks.

8 When Janice was approximately six months old, the mother
called her a "bitch" because she was resistant to the mother's
efforts to "train" her to eat more at one time, which was more
convenient for the mother.

9 Both children were born exposed to marijuana. The mother
also refused to show the department where she stored her
marijuana, and she admitted that, because Gerald had grabbed at
her vape pen, she put it in her boot.

7
of her unfitness); and the mother's misrepresentation of and

failure to comply with the instructions of the children's health

care providers,10 see Adoption of Dora, 52 Mass. App. Ct. 472,

478 (2001) (noting that failure to heed medical advice is

relevant to finding of parental unfitness). The judge therefore

did not rely exclusively on the mother's marijuana use or mental

illness in determining that she was permanently unfit to parent

Janice and Gerald, and we are satisfied that the evidence on

which the judge did rely clearly and convincingly established

the mother's permanent unfitness.

3. Reasonable efforts. "Where a parent, as here, has

cognitive or other limitations that affect the receipt of

services, the department's duty to make reasonable efforts to

preserve the natural family includes a requirement that the

department provide services that accommodate the special needs

of [the] parent." Adoption of Ilona, 459 Mass. at 61. In her

briefing, the mother argues that the department was aware from

the inception of these cases that her ongoing mental health

history and neurodevelopmental condition affected both her

10The mother was unable to follow the pediatrician's advice
regarding feedings for Janice and Gerald, and she was
unreceptive to redirection. When Janice was approximately seven
months old, the mother told the department that "Janice is being
ridiculous. I'm not going to put [up] with her screaming for a
bottle. I'm going to make her wait to eat and feed herself."

8
parenting ability and her receptivity to the department's

involvement in the family's life. She also argues forcefully

that, given the department's awareness of her longstanding

mental health history and its effect on her parenting; the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; and

the department's own disability policy, the department was

required to make proactive efforts to determine how to address

her needs. The mother did not, however, raise these concerns in

the trial court. As a result, they are waived. See Adoption of

Gregory, 434 Mass. 117, 124 (2001);11 Adoption of West, 97 Mass.

App. Ct. 238, 242 (2020).

Still, were we to reach the merits of the mother's

reasonable efforts challenge, see Adoption of Chad, 94 Mass.

App. Ct. at 839 n.20, we would discern no abuse of discretion or

other error in the judge's determination that the department

made reasonable efforts in this case. The department's efforts

appear to be tailored to the mother's individual needs and

parenting deficits, although the judge found that the mother

made only limited use of some of the accommodations she was

offered. The judge also found that parent aides have been a

11We acknowledge the mother's doubts about the vitality of
Adoption of Gregory in light of the department's adoption of its
disability policy as a term of its settlement of disability
discrimination claims against it. Nonetheless, as the mother
appears to recognize, the holding of that case is binding on us.

9
great support for the mother but, despite consistent engagement

with them, the mother "still testified to difficulties

understanding and remembering spoken information, struggles to

schedule and attend appointments, . . . anxiety and panic

attacks when out in the community, and" an inability to prepare

for visits.

In addition, the judge found that the department used

visual aids, including by supplementing written descriptions of

certain tasks with pictorial prompts to assist the mother in

understanding and prioritizing her action plan tasks, but that

the mother did not use them. Where it does not appear that the

department's concerns about the mother's parenting turned on her

ability to prioritize her action plan items, we are not

persuaded that the department's reasonable efforts required it

to color code the mother's action plan items.

The judge also found that the mother's social worker

reviewed the mother's action plan with her monthly during home

visits, and -- based on the mother's testimony -- found that

"[the] [m]other was aware of the tasks on her action plan and

understood what the [d]epartment was asking of her." We

perceive no abuse of discretion in the judge's reasonable

efforts determination regarding the mother's social worker's

alleged failure to "collaborate with [the mother's] attorney to

simplify the wording of the action plan."

10
Lastly, where the mother has failed to gain insight or make

significant progress toward parental fitness from the services

she has engaged in through the department, and has decided to

forego any mental health treatment beyond her self-medication

with marijuana, we discern nothing unreasonable in the

department's suggestion that the mother consult outside

providers (her private social worker or her former program) for

help in finding suitable care.

Decrees affirmed.

By the Court (Massing, Hand &
Hershfang, JJ.12),

Clerk

Entered: August 7, 2025.

12 The panelists are listed in order of seniority.

11