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

22-P-78

ADOPTION OF PIERCE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered by a judge of the 

Juvenile Court terminating her parental rights, claiming that 

there was insufficient evidence to support certain findings. 

The father does not appeal from the termination of his parental 

rights, but joins with the mother in challenging the judge's 

approval of the adoption plan proposed by the Department of 

Children and Families (department) on the grounds that the 

adoption plan was not in the child's best interests. We affirm.

Discussion. "In deciding 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). "A finding of 

1 A pseudonym.
2

unfitness must be supported by clear and convincing evidence, 

based on subsidiary findings proved by at least a fair 

preponderance of evidence. See Adoption of Elena, 446 Mass. 24, 

30-31 (2006). '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, supra." 

Adoption of Patty, 489 Mass. 630, 637 (2022).

1. Findings. The mother challenges several of the judge's 

findings regarding her fitness. We set forth a brief summary of 

the judge's overall findings for context.

Thirty-four years of age at the time of trial in 2021, the 

mother has a long history of substance use dating to when she 

was eighteen years old. She had heroin and Suboxone in her 

system when she gave birth to her oldest child in 2011. The 

mother's parental rights to that child were terminated, and that

child was adopted by the maternal grandmother.

Pierce was born in 2014, also having been exposed to 

substances at the time of birth. For a variety of reasons, 

including the mother's positive test for opiates and

amphetamines shortly before his birth, Pierce was placed in 

foster care with the kinship placement that ultimately became 

the preadoptive placement (foster parents or preadoptive 
3

parents). When the mother and father began to participate in 

services, the department considered reunification and began 

overnight visits. However, in November of 2017 the mother 

tested positive for substances while in labor with a third 

child, and visits with Pierce were suspended. In 2018, 

overnight visits resumed between the parents and Pierce, and

ultimately Pierce was returned to live with the mother and 

father in New Hampshire in April of 2018.

The father told the mother to leave in November of 2018 

after she told him that Pierce might not be his child, and drove 

them to the maternal grandmother's house in Massachusetts. The 

mother and Pierce returned to live with the father in New 

Hampshire in February of 2019. However, in March of 2019 the 

mother was arrested following a domestic dispute with the 

father, who obtained a restraining order against her. After 

that incident, the mother lived in a shelter in New Hampshire 

and Pierce remained with the father. Some days later, the 

father -- now the sole parent caretaker of Pierce and his two 

younger brothers –- drove Pierce to the maternal grandparent's 

home in Massachusetts and left him there. In April of 2019, the 

mother returned to Massachusetts to live with the maternal 

grandmother and Pierce. After several weeks, the mother left

with Pierce. She and Pierce stayed with various family members 

and friends through August of 2019.
4

Ultimately the department filed a second care and 

protection petition. In July of 2019, while she was Pierce's 

sole caretaker, the mother tested positive for morphine, and 

unprescribed oxycodone and oxymorphone. At the time the mother

was not participating in substance abuse treatment, and later

testified that she did not go to treatment because she did not 

think she needed it. The trial judge found the mother's belief 

to be indicative of the mother's lack of understanding of her 

illness or its impact on her ability to care for Pierce. During 

this period, the department could not locate the mother or 

Pierce for an extended period. The department was granted 

temporary custody on August 6, 2019, and Pierce was returned to 

the kinship placement.2

Between September of 2019 and February of 2020 the 

department social worker was unable to visit the mother, either 

because the mother did not answer her door or because she did 

not go to an agreed upon location. The mother had no contact 

with the department between December of 2019 and March of 2020, 

when the mother called the department social worker. The social 

worker's attempts thereafter to contact the mother were 

unsuccessful.3

2 The department asked the father to take Pierce, but he 

declined.

3 The judge found that the social worker made sustained efforts 

to locate and reach the mother.
5

In June of 2020, the mother ingested heroin, along with 

Prozac, gabapentin, and clonidine, and was hospitalized. She 

entered and successfully completed the High Point program at the 

Shattuck Hospital and then entered a residential treatment 

program. She left that program before completion and the judge 

found that she "has not demonstrated an ability to maintain 

long-term engagement in substance abuse treatment and sobriety 

since 2011."

The mother visited Pierce sporadically. She did not visit 

him or ask the department about him in the fifteen-month period 

from December of 2019 until February of 2021. At one point, the 

mother stated that she did not visit him because she "needed a 

little mental space and time."

The mother did seek mental health treatment in the months 

before trial, but did not provide the department with releases 

that would have permitted it to confirm her progress.

At the time of trial Pierce was six and one-half years old 

and had lived with the preadoptive parents and their three 

children for approximately five years. A play therapist 

reported that Pierce repeatedly stated that he was "so scared,"

that he was afraid to go up or down stairs, and that his 

imaginary play was violent. She diagnosed him with 

posttraumatic stress disorder (PTSD). The preadoptive parents 

reported flashbacks, nightmares, and fear of department social 
6

workers. According to a child trauma expert who conducted an 

in-person evaluation of Pierce over five sessions, he suffered 

from PTSD, was anxious and afraid, was hypervigilant, and had 

exaggerated emotional reactions. The expert opined that it did 

not appear that Pierce was coached by the foster parents, 

particularly because the effects of child coaching generally do 

not last over multiple sessions.4 She stated that he used ageappropriate language to describe his fears and that his affect 

(disassociation, body rigidity, rapid breathing) could be 

attributed to PTSD.

The judge determined that the mother suffered from longterm mental health and substance use issues and posed a risk to 

Pierce's welfare. She further found that Pierce had special 

mental health needs, that he required a high level of 

sensitivity, stability, and continuity, that the proposed 

adoptive parents were able to meet those needs, and that there 

was a strong bond between Pierce and the preadoptive parents. 

It is against this backdrop that we evaluate the mother's claims 

of error.

4 Pierce reported abuse that the department was unable to 

substantiate. He told the mental health professionals that his 

biological mother was not his mother, that his parents "stole" 

him, that his father was "bad," that he was "hit," and that his 

"pee pee" was hurt. The mother and father claimed that these 

statements were coached. The judge considered the reports not 

for their truth, but for the child's state of mind.
7

a. Nexus. The mother contends that there is no nexus 

between the mother's mental health issues, her drug use, and 

Pierce's welfare or her ability to care for him. However, the 

record demonstrates that the mother has suffered from substance 

use disorder for a period of fifteen years, encompassing efforts 

at rehabilitation followed by relapse.5 While this pattern may 

be understandable, and all may hope that the mother will one day 

maintain her sobriety, the impact of such cyclical relapse on a 

child as fragile as Pierce is evident. He was the second of 

three infants born substance exposed. The mother took multiple 

unprescribed medications during the time she cared for him in 

2019, and did not participate in substance abuse treatment for 

extended periods of time because she thought she did not need 

it. In 2019 to 2020, while he was in the care of the 

preadoptive parents, she ceased all contact, recognizing that 

5 We agree with the mother's implicit argument that "evidence of 

alcohol or drug use is relevant to, but not dispositive of, 'a 

parent's willingness, competence, and availability to provide 

care.'" Adoption of Luc, 484 Mass. 139, 147 (2020), quoting

Care & Protection of Frank, 409 Mass. 492, 494 (1991). 

"Treatment 'does not always work the first or even the second 

time, [and] relapse should not be cause for giving up on' an 

individual experiencing substance use disorder." Adoption of 

Luc, supra, quoting Commonwealth v. Eldred, 480 Mass. 90, 99

(2018). "Just as we should not criminalize addiction, . . . , 

parental rights should not be terminated only because the parent 

has a substance use disorder." Id. at 147. However, in this 

case, the mother was given multiple opportunities for treatment 

over a period of years, and at this juncture the best interests

of the child is paramount.
8

she needed time and distance for her own recovery. See 

generally Adoption of Yalena, 100 Mass. App. Ct. 542, 552-553

(2021). The best interests of the child dictate that the needs 

of the child remain uppermost. The judge's finding that the 

mother's ongoing substance abuse issues posed a risk to Pierce, 

a child particularly in need of stability and continuity, was 

not clearly erroneous. See Adoption of Luc, 484 Mass. 139, 146–

147 (2020).

b. Staleness. The mother maintains that the evidence 

underlying the findings was stale to the extent that the judge 

relied on evidence before June of 2020, when she sought 

substance abuse treatment. The judge was entitled to consider 

the mother's entire history. "Prior history . . . has 

prognostic value." Adoption of Luc, 484 Mass. at 145, quoting 

Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). Moreover 

in the recent past she did not complete her residential 

treatment program and the judge found that she has been unable 

to maintain substance abuse treatment since 2011.

At trial in March of 2021, the mother testified that she 

had been in substance abuse and mental health treatment for 

approximately eight months; she testified that during that time, 

she had consistently provided clean drug tests. The judge 

credited mother's testimony that she sought mental health 

treatment since July of 2020, but did not credit her other 
9

statements because she did not provide releases to the 

department, which received only one toxicology screen, and did 

not meet with the department at any time since the case was 

opened to February 2021. The judge was not required to credit 

the mother's self-report of sobriety in the face of her 

unwillingness to provide releases to the department that would 

have permitted it to validate her claims. Credibility was for 

the judge, whose findings were not stale.

c. Other factual findings. The mother challenges several 

discrete factual findings. For the sake of completeness, we 

address them below, but stress that even if all her evidentiary 

arguments were sustained, none of them (singly or in the 

aggregate) would alter our conclusion here. The evidence was 

simply overwhelming that the mother's lengthy and troubled 

history of substance abuse rendered her unable to care for 

Pierce.

The mother claims that the finding that she had a history 

of domestic violence and engaged in an altercation in front of 

Pierce was clearly erroneous. It is uncontroverted that the 

father obtained a restraining order against her; the allegations 

included a threat to "smash" the father's and the babysitter's 

faces. She was arrested for violating the restraining order, 

resisting arrest, and disorderly conduct. There was evidence 

that Pierce was inside the home when the confrontation on the 
10

street occurred, but even if Pierce did not hear or see the 

confrontation, the fact of the confrontation remains, and was 

properly considered. See Adoption of Lisette, 93 Mass. App. Ct.

284, 294 n.15 (2018) (domestic violence considered in assessment 

of parental fitness even if not witnessed by parties' children).

Similarly, the judge's finding that the mother had not 

provided stable housing was not in error. It is undisputed that 

at the time the mother had sole physical custody of Pierce, she 

did not have permanent housing but rather relied upon friends 

and family for short stays. She made no apparent effort to find 

permanent housing, and for large parts of this case was, in the 

judge's words, "whereabouts unknown." This is not a case where 

the department failed to assist a willing and engaged parent in 

locating housing. Rather, the mother failed to maintain contact 

with the department, avail herself of services, or secure enough 

of a foothold on her own health to provide a home (either with 

the maternal grandmother or elsewhere) in which to provide a 

stable environment to Pierce.6 Cf. Adoption of Yalena, 100 Mass. 

6 The mother also claims that the judge should not have referred 

to the mother's "criminal history" because all cases were 

dismissed, that there was no evidence that Pierce was 

underweight due to her care, and that the judge's reference to a 

G. L. c. 119, § 51B, report that stated Pierce was not in school 

was irrelevant because he was not of school age. We need not 

reach these subsidiary arguments because none of them would 

impact our disposition of this appeal.
11

App. Ct. at 554 (parent's obligation to seek appropriate 

services).

2. Adoption plan. "In determining the best interests of 

the child, the judge must consider, among other things, 'the 

plan proposed by the department.' Adoption of Varik, 95 Mass. 

App. Ct. 762, 770 (2019), quoting G. L. c. 210, § 3 (c). . . .

To determine the sufficiency of the plan, the judge may consider 

evidence and testimony 'regarding unfitness and the child's best 

interests, in addition to the written plan.' Adoption of Varik, 

supra. The judge's determination that a particular plan is in 

the child's best interests 'presents "a classic example of a 

discretionary decision" to which we accord substantial 

deference."'" Adoption of Xarissa, 99 Mass. App. Ct. 610, 619–

620 (2021), quoting Adoption of Jacob, 99 Mass. App. Ct. 258, 

272 (2021).

The father and the mother contend that placing the child 

with the preadoptive parents, who had hired a private 

investigator to film and follow them and department social 

workers, was at best insensitive and at worst, interfered with 

reunification and materially contributed to the mother's 

continued struggles with addiction, precipitating the finding of 

unfitness. The preadoptive parents did not act in conformity 
12

with the department's regulations or expectations.7 However, the 

record evidence was that the preadoptive parents had provided a 

good home for Pierce, a child with a heightened need for 

security. Moreover, the home was the only one the child had 

known for five of his six years.8 The department informed the 

foster parents that their conduct was not appropriate. The 

foster parents signed an agreement promising to abide by the 

department's policies. The child was placed with them again 

based on these assurances, and there is no indication that they 

violated the agreement. The judge found that they acted out of 

concern for the child, who had cried when told he was going to 

visit his parents and refused to go. The judge was permitted to 

find that the preadoptive parents had been overzealous in their 

efforts to protect him from perceived harm, but remained an 

appropriate adoptive family for the child.

We can well imagine that this placement, the adoptive 

parents' conduct, and the subsequent adoption, would be 

demoralizing to the parents. In considering the appropriate 

7 For example, the preadoptive mother applied for a restraining 

order to prevent the department from reunifying Pierce with the 

parents in violation of 110 Code Mass. Regs. § 7.104(1)(h) 

(2009) (preadoptive parents must have ability "to accept and 

support the child's relationship with his/her parents, siblings 

and other family members and with the Department").

8 The parents also claimed that the child was coached. The judge 

credited the expert's opinion that the child was not coached. 

Questions of credibility are for the trial judge, and the 

finding was not clearly erroneous.
13

permanency plan here, however, the judge did as she was required 

to do, by focusing on the best interests of the child. See

Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020) ("'In 

considering what remedy, if any, is required to address . . . 

misconduct, our lodestar is, of course, the best interests of 

the child[].' Adoption of Natasha, 53 Mass. App. Ct. 441, 450

[2001] [affirming termination of parental rights despite 

department's violation of its own regulations]"). The judge was 

faced with the choice of permitting a kinship adoption by a 

family that Pierce had known for almost all his life, or

placement in the home of a stranger. The judge did not abuse 

her discretion in deciding that the child, plagued by fears and 

anxiety, and in particular need of a calm and stable 

environment, should remain with the family he knew.

Decrees affirmed.

By the Court (Sullivan, 

Hand & Walsh, JJ.9),

Clerk

Entered: February 17, 2023.

9 The panelists are listed in order of seniority.