ADOPTION OF PAIGE (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-824

ADOPTION OF PAIGE (and a companion case). 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge, upon petition of the Department of

Children and Families (department), found two children in need

of care and protection, granted permanent guardianship of one

child to a kinship guardian, granted custody of the other child

to the department, and terminated the parental rights of the

mother pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.

On appeal, the mother claims the evidence (1) failed to support,

by the requisite standard, several findings of fact and the

corresponding nexus to unfitness and (2) failed to demonstrate

that termination of parental rights served the best interests of

her children. She also claims the judge abused his discretion

by denying posttermination contact without adequately addressing

the children's bond with her. We affirm.

1 Adoption of Rose. The children's names are pseudonyms.
Background. At the time of the trial, the mother had two

daughters, ages three and one. The children separately came to

the attention of the department through a series of reports

filed under G. L. c. 119, § 51A (51A report) and substantiated

(with one exception noted below) under G. L. c. 119, § 51B.

Immediately following the birth of the first child in April

2019, a 51A report alleged that the child had been born

substance exposed. Following an investigation, this report was

not substantiated. Months later, on August 5, 2019, a second

5lA report alleged that the mother brought the child to the

emergency room for at least the fifth time, but the child

appeared healthy. The department substantiated the report and

recommended that the mother obtain mental health treatment. On

May 16, 2020, a third 51A report alleged that once again the

mother brought the child to the emergency room after having

taken the child to her pediatrician three times that week

despite the child presenting as healthy. During the department

investigation at the hospital, the mother claimed her roommate

tainted the baby's formula, and while speaking with department

workers, the mother became extremely erratic, started screaming

loudly, and had to be restrained by three security officers.

The mother was hospitalized, and the department took emergency

custody of the child. On May 22, 2020, the department filed a

care and protection petition regarding the child, and on May 29,

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2020, the child was placed in the third-party custody of a

relative. The child has resided with that kinship family since

that date, and the relative sought guardianship of the child.

On the day of the second child's birth in October 2021, a

51A report alleged that the mother tested positive for

amphetamines and Suboxone. During the ensuing investigation,

the mother apologized for failing to meet with department

workers and failing to return their phone calls. She explained

being afraid that the department would take away her second

child as well. The mother admitted smoking marijuana during her

pregnancy, selling prescribed medications to others, maintaining

unsafe and unstable housing, and failing to obtain mental health

treatment. The department submitted a care and protection

petition to the Juvenile Court on October 4, 2021 with respect

to the second child. On October 8, 2021, the second child was

placed with a kinship foster family. After a move to a

nonkinship home in December 2021, the child has resided with

that preadoptive foster family.

Following an eight-day trial, including nine witnesses and

nineteen exhibits, a Juvenile Court judge primarily found that

the mother failed to acknowledge and address mental health

issues, remained absent during most of the trial, acknowledged

her housing was unsafe and failed to address housing

instability, made unfounded claims about the health of her

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children, failed to take medication as prescribed and sold

prescribed medication, declined department referrals, and

exhibited a pattern of late or missed child visits. The judge

entered a decree terminating the mother's parental rights as to

both children.

Discussion. "To terminate parental rights to a child and

to dispense with consent to adoption, a judge must find by clear

and convincing evidence, based on subsidiary findings proved by

at least a fair preponderance of evidence, that the parent is

unfit to care for the child and that termination is in the

child's best interests." Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). "In determining whether the best interests of

the children will be served by issuing a decree dispensing with

the need for consent, a 'court shall consider the ability,

capacity, fitness and readiness of the child's parents.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting G. L.

c. 210, § 3 (c). "We give substantial deference to a judge's

decision that termination of a parent's rights is in the best

interest of the child, and reverse only where the findings of

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

law or abuse of discretion." Adoption of Ilona, 459 Mass. 53,

59 (2011). Based upon these standards, we discern no error or

abuse of discretion.

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1. Unfitness. The mother first takes issue with the

judge's characterization of a "possible" substance use disorder

and claims that a mere possibility is not sufficient for a

finding of fact and lacks any nexus to unfitness. Given the

context of the judge's finding, there was no error. In his

written decision, the judge referenced substance use or a

possible use disorder when describing the initial 51A reports on

both newborns, the background that led to the mother's current

Suboxone prescription, the mother's failure to take her

medication as prescribed, the mother's medical history, the

mother's noncompliance with action plans that included substance

use treatment, the mother's selling her prescription medication

to others, and the mother's changed behavior during her trial

testimony after discontinuing her medication. We also note that

in her testimony, the mother repeatedly acknowledged that she

was recovering from a long-term addiction to pills, sold her

prescription medication to others, and used another person's

prescription medication. Considering all this evidence, the

judge did not equate substance use or a possible disorder with

unfitness and properly considered it as "a contributing factor"

to other issues. Adoption of Xarissa, 99 Mass. App. Ct. 610,

618 (2021).

The mother next contends that the evidence did not show a

nexus between the mother's mental health and her parenting

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ability. We disagree. The evidence, including the mother's own

testimony, demonstrated that she suffered from significant

mental health challenges. For example, she testified that she

had been in therapy since the age of eight or nine, she took

prescribed medication for "psychosis depression" for one and

one-half years after the birth of her first child, she was

hospitalized in a mental health facility, and she regularly sees

a psychiatrist every two weeks, a behavioral doctor every two

weeks, and a therapist every other week. Although denying any

mental health condition beyond "circumstantial anxiety," the

mother repeatedly sought medical care for a healthy child,

brought her child to the hospital for medically unnecessary

care, became extremely erratic, started screaming loudly, and

had to be restrained by three security officers. Thus, the

mother's mental health directly impacted the care of a child,

less than a year old, and bore directly on her "capacity to

assume parental responsibility." Adoption of Frederick, 405

Mass. 1, 9 (1989).

We are not suggesting, nor did the trial judge suggest,

that the mother intentionally harmed or attempted to harm her

children. To the contrary, the record shows a mother who

clearly loves her children, but was beset by significant

difficulties that she never fully acknowledged or addressed

despite recommendations and assistance from the department to

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help her do so. "[T]he State's interest in protecting children

from suffering harm at the hands of their parents may properly

be preventive as well as remedial." Custody of a Minor, 378

Mass. 712, 714 (1979).

As a final challenge to the unfitness determination, the

mother claims that the judge's concerns about her housing and

financial situation and the mother's failure to attend the

entirety of the trial are insufficient to sustain the

department's burden. As the judge ruled, he "considered the

evidence in the aggregate, and has not given conclusive weight

to any single component standing alone." Also, the record fully

supported the judge's housing concern. The mother continued to

live with the man she believed tainted her child's formula and

had no concrete plan in place to live elsewhere apart from a

general aspiration to remain on waiting lists until she could

move into a nicer place. The mother even testified that she had

concerns about her children being around this man. Despite

these concerns, the mother rejected other options provided by

the department to leave the apartment.

We also discern no abuse of discretion based on the judge's

consideration of the mother's absence from most of the trial.

See Adoption of Helga, 97 Mass. App. Ct. 521, 526 (2020) ("Even

though the mother testified at trial, the judge could reasonably

conclude that her failure to appear for the last two days,

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without an adequate explanation, was evidence that she was not

making efforts to be reunited with her children"); Adoption of

Talik, 92 Mass. App. Ct. 367, 372 (2017) ("a trial judge has

discretion to determine whether to draw an adverse inference

from a parent's absence"). Although the mother claimed that her

absence stemmed from emotional strain rather than a lack of

desire to "fight" for her children, the judge was not obligated

to credit this testimony.

2. Best interests. The mother next contends that the

judge’s findings do not demonstrate that termination of the

mother’s parental rights is in the best interests of the

children, particularly when one of the children has been placed

in a guardianship. The judge concluded that the children's best

interests will be served by a termination decree because the

mother "has failed to engage in services aimed to address her

parenting deficiencies including possible substance use, mental

health struggles, and housing instability." He further found

that, because of the "severity of these issues and the length of

time" over which the mother has failed to address them, the

mother "is not able, fit, or ready to assume parental

responsibility for the subject children."

As more fully set forth in the previous discussion on

unfitness, the judge's conclusions are supported by the

evidence, and we discern no error of law or abuse of discretion

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regarding the best interests of the children. See Adoption of

Ilona, 459 Mass. at 59. Additionally, the record showed the

mother missed many visits with the children and was often late,

and the mother acknowledged that she was unable to bond with the

second child. By contrast, the first child has a secure

attachment in her current placement, and the second child

appears "comforted" by being around her preadoptive family.

Contrary to the mother's contention, the prospect of a

guardianship does not require a different result.

"[T]ermination is in the best interests of a child when it would

bring some measure of stability to the child's life." Adoption

of Xarina, 93 Mass. App. Ct. 800, 803 (2018). Even if the goal

for one child is guardianship, "termination of the mother's

rights 'significantly eases the [child's] path to a stable

placement.'" Id., quoting Adoption of Willow, 433 Mass. 636,

647 (2001). The judge here concluded that "a grant of permanent

guardianship of [the first child] to [her guardian], serves her

best[] interests," noting that the child has lived with the

guardian since May of 2020 as well as the aforementioned secure

attachment to the guardian. "Stability in the lives of children

is important, particularly in a case that has continued for a

long period of time in the hope that the [parent] could and

would successfully rehabilitate [herself]." Adoption of Nancy,

443 Mass. at 517.

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3. Posttermination contact. Finally, the mother contends

that the judge abused his discretion by declining to order post-

termination contact between her and the children. The judge

determined that an order of visitation with the mother was not

required "to serve the best interests of the children," but also

that "nothing contained herein shall be deemed to preclude

contact" with the children as the "guardian or adoptive parent

may deem appropriate in the future." The mother argues that the

judge did not adequately consider the bond the children had with

her. We disagree. A "necessary condition" for a court order

for posttermination visitation "is a finding, supported by the

evidence, that continued contact is currently in the best

interests of the child." Adoption of Vito, 431 Mass. 550, 564

(2000). The record here shows that the judge did consider

whether such an order would be in the best interests of the

children, and he concluded that it would not.

Given the judge's meticulous factual findings, thoughtful

conclusions, and the overall purpose of using visitation to help

children negotiate the path from one family to another, we

discern no abuse of discretion.

Decrees affirmed.

By the Court (Neyman,
Hershfang & Hodgens, JJ. 2),

2 The panelists are listed in order of seniority.

10
Assistant Clerk

Entered: May 24, 2024.

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