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-752

ADOPTION OF ELI (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from decrees entered in the Juvenile Court 

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

mother and the father of Eli and Grant, identical twins born in 

2013, claim that the judge erred in determining that the 

mother's unfitness was likely to continue and that termination 

of the rights of both parents was in each child's best 

interests. They allege that the judge gave undue weight to a 

single episode of domestic violence; erred by relying on 

evidence of domestic violence and the mother's mental health,

because that evidence was stale and had no nexus to her 

parenting abilities; and improperly considered the parents' 

poverty. Concluding there was clear and convincing evidence to 

support the decrees, and discerning no abuse of discretion by 

1 Adoption of Grant. The children's names are pseudonyms.
2

the judge, see Adoption of Ulrich, 94 Mass. App. Ct. 668, 675

(2019), we affirm.

Background. We summarize the judge's relevant findings of 

fact, supplemented by uncontested evidence from the record,2

recognizing at the outset that the father does not challenge the 

finding of his own unfitness. In May 2016, following the twins'

second removal from the parents' custody over concerns they were 

not being adequately fed, the Department of Children and 

Families (department) filed a petition alleging that Eli and 

Grant were children in need of care and protection.3 See G. L. 

c. 119, § 24. The twins were returned to the parents' custody

about one week later after hearing; removed again the next month

due to homelessness and missed medical appointments; and then 

again returned to the parents' care after about one week. In 

December 2016, the twins were diagnosed with failure to thrive 

because they were not gaining weight. Eli's weight was in the 

ninth percentile while Grant's was in the second. In March 

2 The judge made 403 findings of fact that "are both 

specific and detailed, demonstrating, as we require, that close 

attention was given to the evidence." Adoption of Don, 435 

Mass. 158, 165 (2001).

3 The first removal was conducted by a different State's 

child welfare agency when the twins were two weeks old, and they 

were returned to the parents six months later. The second 

removal -- the first by the department -- was additionally 

prompted by concerns that the family was homeless, the mother 

was using physical discipline, and the mother was not following 

up with medical appointments for Eli and Grant.
3

2017, for the fourth time in three years, the twins were removed 

from the parents' care after they witnessed a physical 

altercation between the mother and father. In describing this 

incident to the department, the mother stated the father pushed 

the children into a bedroom before choking her and slamming her 

head into a wall while the boys ran in and out of the room. The 

mother also reported that the father had been physically abusive 

to her in the past. At trial the father denied the allegations, 

and the mother denied that the father was abusive in the past, 

but the judge did not credit their testimony.

Eli and Grant have specialized needs requiring 

extraordinary attentiveness. The twins were born prematurely. 

Each twin was deaf in one ear and had been diagnosed with 

Dilantin syndrome and a heart murmur. Eli was also diagnosed 

with autism spectrum disorder, attention deficit hyperactivity 

disorder (ADHD), and global developmental delays. He requires 

significant supports both in school and in the home, including 

occupational therapy, physical therapy, and speech therapy. Eli

also needs caretakers who understand his diagnoses and can help 

him engage in the services he needs to progress developmentally. 

In 2019, Eli transitioned from a foster home to a group home 

placement where his needs could be met by around-the-clock, oneon-one therapeutic care. He made "tremendous improvement" there
4

such that, by the time trial ended three years later,4 his

aggressive behaviors "stabilized significantly." He could speak 

in almost full sentences, use words to express what he wanted,

had achieved improved physical strength, and could toilet 

independently. Eli was ready to step down to a less restrictive 

setting, provided there was "structure and predictability in his 

day."

Grant has also been diagnosed with global developmental

delays and takes medication for ADHD. In addition, Grant has 

been diagnosed with a trauma-related disorder. Grant requires a 

rigid structure in his home environment and extensive in-home 

behavioral and educational support, in addition to the services 

he receives at school. He receives that support in his

preadoptive home because the preadoptive mother is a special 

education teacher and board-certified behavioral analyst. 

Though Grant has greater language abilities and has achieved 

more independence in his basic living skills than Eli, Grant

still needs a caregiver who understands his needs and can help 

him engage in the necessary services to continue making 

developmental progress. Grant's preadoptive mother understands 

his needs, because she was the preschool teacher of both Grant 

and Eli.

4 Trial was delayed several times because of the COVID-19 

pandemic.
5

Discussion. "In deciding whether termination of parental 

rights will serve the child's best interests, '[t]he inquiry 

. . . is not whether the parent is a good one, let alone an 

ideal one; rather, the inquiry is whether the parent is so bad 

as to place the child at serious risk of peril from abuse, 

neglect, or other activity harmful to the child.'" Adoption of 

Cadence, 81 Mass. App. Ct. 162, 168 (2012), quoting Care & 

Protection of Bruce, 44 Mass. App. Ct. 758, 761 1998). "Where 

there is evidence that a parent's unfitness is not temporary, 

the judge may properly determine that the child's welfare would 

be best served by ending all legal relations between parent and 

child." Adoption of Cadence, supra at 169. "[W]e rely on the 

trial judge to weigh the evidence in order to determine whether 

there is a sufficient likelihood that the parent's unfitness is 

temporary." Adoption of Ilona, 459 Mass. 53, 59-60 (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." Id.

Many of the parents' challenges in this case "amount to no 

more than a disagreement with the judge's weighing of the 

evidence and credibility determinations regarding witnesses." 

Adoption of Don, 435 Mass. 158, 166 (2001). Having carefully 

reviewed the record, "[w]e see no basis for disturbing the 

judge's view of the evidence." Adoption of Quentin, 424 Mass. 
6

882, 886 n.3 (1997). Even after sporadically engaging for six 

years in some of the multitude of programs recommended by the 

department, the mother did not demonstrate insight into the 

needs of Eli and Grant, as evidenced by her failure to 

acknowledge the serious nature of their developmental delays,

her continued use of inappropriate language and parenting 

techniques with the children during visits, and her statements

that "she does not know what the boys' needs are and that she 

does not understand their needs."

Moreover, the mother was unable to accept the redirection 

and suggestions of social workers, parent mentors, and clinical 

staff when interacting with Eli and Grant. She would curse, 

yell, and scream in the presence of the twins, even if it was 

not directed at them, though sometimes it was. The mother 

demonstrated an inability to parent Eli and Grant at the same 

time; her presence "would cause a shift in the boys' actions," 

and they seemed "to be physically upset when in the room with 

Mother in ways that they were not with other adults," suggesting 

that she had not used appropriate parenting strategies with them 

in the past. Cf. Adoption of Ulrich, 94 Mass. App. Ct. at 676 

("record shows that the mother had a difficult time managing her 

anger and that this issue had a significant effect on the 

children"). Nor had she ameliorated this issue in such a way 

that the twins changed their responses to her presence. 
7

Frequently they "could not handle staying for the full thirtyminute visit," with both boys exhibiting aggression and Eli in 

particular becoming dysregulated, because the parents tried to 

restrain him as a form of behavioral modification, resulting in 

him head-banging, throwing objects, and hitting. Mere 

participation in services does not render a parent fit without 

evidence of appreciable improvement in her ability to meet the 

needs of the child, see Adoption of Ulrich, supra, and the 

mother was not entitled to an indefinite opportunity to reform.

See Adoption of Cadence, 81 Mass. App. Ct. at 169.

The mother did not articulate any realistic plan for 

meeting the complex emotional and physical needs of Eli and 

Grant, together or as individuals. See Adoption of Paula, 420 

Mass. 716, 730 (1995). Though at one point she acknowledged the 

services that would need to be in place if one or both children 

were returned home, she also said she "would not be engaged in 

any services if the children were reunified with her and [the 

department] was no longer involved," suggesting a level of 

instability and uncertainty that made it unlikely the mother 

"would be vigilant about accessing services on behalf of the 

twins." Adoption of Flavia, 104 Mass. App. Ct. 40, 52 (2024). 

When "combined with each twin's significant needs requiring 

recognition and appreciation for the appropriate response," this 

was a risk the judge was not required to take. Id. at 48. See 
8

Adoption of Ulrich, 94 Mass. App. Ct. at 676 ("judge did not err 

in using the mother's repeated prior conduct to predict her 

future interactions with the children"). Regardless whether a 

specific nexus could be identified between the mother's mental 

health issues and her inability to meet the twins' needs, that 

overall inability itself was powerful evidence of unfitness.

The mother did not attend treatment meetings at Eli's group 

home or "attend visits with the children in the morning or 

around lunchtime, as these were her [emotional support] dog's 

training hours." She had not attended the twins' individualized 

education plan meetings for several years due in part to her 

inability to control her behaviors and act appropriately, and 

she often was unable to control her temper during foster care 

reviews, resulting in a tense, adversarial environment rather 

than a cooperative discussion about how best to serve the 

interests of Eli and Grant. See Petitions of the Dep't of 

Social Servs. to Dispense with Consent to Adoption, 399 Mass. 

279, 289 (1987) ("the refusal of parents to maintain service 

plans, visitation schedules, and counseling programs designed to 

strengthen the family unit are relevant to the determination of 

unfitness"); Adoption of Yvonne, 99 Mass. App. Ct. 574, 580 

(2021) (parent's inability to control temper relevant to 

determination of unfitness). Though the mother engaged in 

individual therapy "with some progress made," and though since 
9

2019 she had maintained a one-bedroom apartment, the mother

remained "overwhelmed with her own problems," Adoption of 

Gwendolyn, 29 Mass. App. Ct. 130, 134 (1990), such that "[a]t no 

point . . . did it appear that she was near ready to resume full 

responsibility for her [sons]." Adoption of Paula, 420 Mass. at 

730. She received food stamps and was unemployed due to her 

various mental and physical health conditions, for which she 

received disability benefits.5 The mother planned to rely on 

this support and financial assistance from the father if the 

twins were reunified with her, a plan that was relevant to the 

judge not because it reflected the mother's poverty but because 

"it is in the children's best interests to be in safe, stable 

homes with responsible caretakers who are dedicated to their 

safety and well-being." Not only was the mother's plan "not a 

definitive, well-established" one given that government 

assistance is not guaranteed, but there was no evidence about 

the father's net income or what he did with it.6 In assessing 

5 The mother was diagnosed with posttraumatic stress 

disorder and associated anxiety; was diagnosed as a child with 

schizophrenia, bipolar disorder, and depression; and was also 

diagnosed as a child with a seizure disorder, with the seizures 

brought on by stress and the last one occurring in 2018. She 

attributed her disability benefits to physical problems like 

scoliosis, regional pain syndrome in the left hip, asthma, 

diabetes, high blood pressure, and high cholesterol.

6 The father consistently reported working, but he never 

obtained housing, and he suffered from physical ailments that 
10

the mother's future fitness and the best interests of Eli and 

Grant, the judge was entitled to weigh the mother's lack of 

forethought into how she would finance her rent and other 

necessities if the twins were returned to her care against her 

and the father's historic inability to provide a stable home 

environment for themselves or the children. See Adoption of 

Yvonne, supra at 580-581, and cases cited. See also Adoption of 

Paula, 420 Mass. at 729 (judge "properly may rely on evidence of 

past parental abuse or neglect to the extent that this evidence 

has relevance to current parental fitness").7

We are not persuaded by the parents' claim that the judge 

placed undue weight on the mother's "old mental health history" 

and the March 2017 episode of domestic violence, or that the 

judge failed to identify a sufficient nexus between those issues 

and potential harm to the twins. The judge expressly 

"considered the evidence in the aggregate," which was that the 

prevented him from visiting with the twins so could also prevent 

him from working.

7 Because "[a] judge whose order will have the effect of 

irreversibly terminating the legal parent-child relationship 

must focus on the present circumstances of the parent and the 

child," Adoption of Paula, 420 Mass. at 731, it does not 

undermine the sufficiency of the evidence that, in 2016, the 

judge twice returned the twins to the parents following 

temporary custody hearings. Nor did those temporary 

reunifications preclude the judge from considering the evidence 

from 2016 and earlier as part of a continuing pattern 

demonstrating the mother's overall unfitness.
11

mother had "visceral reactions" to questions about domestic 

violence and refused to answer questions about the March 2017

episode. The mother continued to minimize the violence in her 

relationship with the father and demonstrate an "inability or 

unwillingness to seek redress when abused by Father, even when 

this abuse occurred in the presence of the children."

The father also was dealing with mental health issues that 

prevented him from broaching the subject.8 For the judge, this 

raised "continued concerns about the safety of the children 

[were] they returned to Mother's care," because neither parent

had "engaged in any services to address or acknowledge their 

roles in domestic [violence] incidents that the children 

witnessed or may have witnessed." Considering the totality of 

the circumstances, the judge did not err in concluding that 

returning Eli and Grant to the care of their parents "would 

place them in a position of increased likelihood that their 

needs would be left unmet, and their behaviors would regress." 

See Adoption of Flavia, 104 Mass. App. Ct. at 49.

The subsidiary findings thus provide clear and convincing

support the judge's determination that the mother was unfit to 

parent Eli and Grant, separately and together, and that her 

8 The father was also diagnosed with posttraumatic stress 

disorder and associated anxiety and had panic attacks when the 

topics of domestic violence or his relationship with the mother 

were raised.
12

unfitness was likely to continue. The same "constellation of 

factors" also supports the judge's conclusion that termination 

of each parent's rights was in the best interests of Eli and 

Grant. Adoption of Yvonne, 99 Mass. App. Ct. at 582, quoting 

Adoption of Greta, 431 Mass. 577, 588 (2000). The twins were 

three years old when they came into the department's custody and 

nine years old when trial ended. In all that time "the mother 

and the father had not fully addressed their deficiencies to the 

degree that they would not recur were the twins placed back with 

them, such that neither parent was or soon would be able to 

provide [Eli] and [Grant] with a safe, stable home with 

responsible caretakers dedicated to their safety and wellbeing." Adoption of Flavia, 104 Mass. App. Ct. at 50. At some 

point, the judge must say "enough" (citation omitted). Adoption 

of Ilona, 459 Mass. at 60. When we also consider the 

extraordinary progress that Eli and Grant made when they were

removed from the parents' care and came under the care of 

persons dedicated to their success and wellbeing, "we conclude 

that the judge did not abuse h[er] discretion in finding that 

the best interests of [Eli and Grant] were served by 

terminating" the parental rights of each parent. Id.

Decrees affirmed.
13

By the Court (Milkey, Sacks & 

Smyth, JJ.9),

Clerk

Entered: August 5, 2024.

9 The panelists are listed in order of seniority.