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-522

ADOPTION OF ADDI (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree and judgment issued by a 

Juvenile Court judge finding her unfit as to her two children,2

terminating her parental rights with respect to her daughter, 

and finding that the separate permanency plans proposed by the 

Department of Children and Families (DCF) were in each child's 

best interests.3 On appeal, the mother claims that the judge 

erred by finding her unfit and abused her discretion by 

approving DCF's permanency plans. We affirm.

1 Care and protection of Robert.

2 Both of the children's names are pseudonyms.

3 The daughter's putative father failed to appear at the 

temporary custody hearing or the trial in this matter. The 

judge found him unfit and terminated his parental rights. The 

son's father was present at trial via Zoom, as he had been 

previously deported to Brazil after an alleged incident of 

domestic violence against the mother. The father stipulated to 

the judgment that he was unavailable to parent his son. The 

judge found the son's father currently unfit but did not 

terminate his parental rights. 
2

Discussion. The mother first argues that the judge erred 

by determining that DCF met its burden to establish her parental 

unfitness clearly and convincingly because the findings do not 

show any nexus between her mental health and substance abuse 

issues and her ability to provide the minimally acceptable level 

of care to her children. We disagree. 

"When reviewing a decision to terminate parental rights, we 

must determine whether the trial judge has abused his discretion 

or committed a clear error of law." Adoption of Elena, 446 

Mass. 24, 30 (2006). "[T]he judge's assessment of the weight of 

the evidence and the credibility of the witnesses is entitled to 

deference" (citation omitted). Adoption of Quentin, 424 Mass. 

882, 886 (1997). 

"To terminate parental rights to a child and to dispense 

with parental 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). "Clear and convincing evidence is evidence 

that is 'strong, positive and free from doubt.'" Adoption of 

Lisette, 93 Mass. App. Ct. 284, 293 n.14 (2018), quoting Stone

v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975). 

The evidence "must be sufficient to convey a high degree of 
3

probability that the proposition is true" (quotations and 

citations omitted). Adoption of Rhona, 57 Mass. App. Ct. 479, 

488 (2003) (Rhona I). 

"Parental unfitness must be determined by taking into 

consideration a parent's character, temperament, conduct, and 

capacity to provide for the child in the same context with the 

child's particular needs, affections, and age." Adoption of 

Quentin, supra, quoting Adoption of Mary, 414 Mass. 705, 711 

(1993). A trial judge is permitted to use "past conduct, 

medical history, and present events to predict future ability 

and performance as a parent." Care and Protection of Bruce, 44 

Mass. App. Ct. 758, 761 (1998). "Evidence of alcohol or drug 

abuse is also relevant to a parent's willingness, competence, 

and availability to provide care." Adoption of Anton, 72 Mass. 

App. Ct. 667, 676 (2008). However, there must be some nexus 

between such evidence and parental fitness. See Care and 

Protection of Bruce, supra at 763. 

In this case, the evidence presented at trial showed that 

the mother has an extensive history of substance use and mental 

health issues that have "remained effectively untreated 

throughout the duration of this case." The mother admitted to 

abusing heroin and prescription drugs until she was three and a 

half months pregnant with the daughter, as well as to using 

marijuana throughout that pregnancy. DCF expressed its concerns 
4

regarding the mother's marijuana use during pregnancy and while 

serving as the primary caretaker for the child. Despite this 

admonition, the mother tested positive for methadone and 

marijuana on six occasions during her second pregnancy, and the 

son was born with both substances in his system. As a result, 

the son suffered from muscle tightness in his legs, causing his 

legs to be bowed and his feet turned in. 

A report filed pursuant to G. L. c. 119, § 51A (51A report) 

was filed a year prior to the son's birth because the daughter 

allegedly witnessed an altercation between the mother and the 

mother's brother, which resulted in the maternal grandparents 

filing a restraining order against the mother. The reporter 

cited concerns about the mother's history of substance use, 

especially with heroin; potential relapse; and behavior with 

other household members, including her fighting with family and 

calling her parents vulgar names while the daughter was present. 

The maternal grandmother alleged that the mother left the 

daughter unsupervised and that she had left drug paraphernalia 

in her room at the maternal grandparents' house. 

Although she has received substance abuse treatment on and 

off since 2013, the mother has frequently relapsed. Because of 

ample evidence indicating the contrary, the judge did not credit 

the mother's testimony that she had been sober for four years 
5

before relapsing in August of 20214 and then had been sober 

since, up to the time of trial. 

Regarding the mother's mental health issues, she testified 

at the time of trial that she was diagnosed with anxiety, 

depression, and post-traumatic stress disorder, and she has also 

been diagnosed with attention-deficit hyperactivity disorder. 

The mother was first civilly committed pursuant to G. L. c. 123, 

§ 12, in 2014. The mother's mental health took a steep decline 

in the summer of 2020, when she began exhibiting delusions, 

paranoia, and possible hallucinations. As the judge described, 

"[the mother] was certain she was being followed, that DCF was 

tapping her phone, that she was fighting monsters/goblins, and 

that everyone was against her. Her moods were erratic and 

oscillated unpredictably between happy and sad." The mother's 

delusional thinking was also evident in her inappropriate 

interactions with and beliefs regarding her former social 

worker. The mother was civilly committed twice between the 

summer of 2020 and April of 2021, and she also went to the 

hospital at least three times in February of 2021, alone, for 

extreme anxiety and panic attacks. 

4 On August 20, 2021, the police responded to a possible overdose 

at the mother's residence, where she was found with ice on her 

and an empty Narcan container next to her. 
6

After describing the mother's substance abuse and 

manifestations of her mental illnesses, the judge made several 

conclusions of law in which she described how the mother's 

issues impacted her ability to parent the children. The judge 

determined that the "[m]other's concerning behaviors, delusions, 

paranoia, substance use, and history of housing instability5 are 

barriers to her providing a safe and stable environment for her 

children. Because she has not successfully addressed any of 

these issues and has not demonstrated an enduring ability or 

desire to do so, [the mother] is unable to provide for the care 

and protection of the subject children and this inability is 

likely to persist for the foreseeable future." Most notably, 

the judge stated:

"What makes [the mother's] problematic behavior more 

concerning is that it sometimes occurs in the presence of 

the children. On many occasions, [the mother] failed to 

maintain appropriate conversations in front of the 

children, and she had to be redirected a number of times 

during in-office visits. [The mother] has difficulty 

maintaining boundaries and refraining from inappropriate 

conversations. This has resulted in chaotic and 

disorganized visits with the children. [The mother] has 

been unable to demonstrate positive parenting skills during 

her visits with the children throughout the pendency of 

this case. Although she has required less direction during 

more recent visits, she continues to speak poorly of the 

maternal grandparents in front of the children and does not 

engage in appropriate conversations with her children. 

Since this petition was filed, [the mother] has been unable 

to appreciate the problematic nature of her behavior, and 

5 At the time of trial, the mother's housing instability had been 

ongoing since approximately June of 2018. 
7

she continues to believe that her behavior does not pose a 

threat to her children or impact her parental fitness. Due 

to [the mother's] substance use, mental health concerns, 

and inappropriate behaviors towards others involved in this 

case, the Court finds that [m]other is unable to provide a 

stable environment for the children." 

Even further, the judge stated that the mother 

"has shown an inability to control unparental traits of 

character or conduct and to appreciate how this behavior 

impedes her ability to perform her parental 

obligations . . . [and the mother's] delusional, paranoid, 

and erratic behavior poses a risk to herself and those 

around her. [The mother] has been unstable for a 

significant period of time and even after reportedly 

participating in numerous treatment programs and therapy, 

these behaviors have not been ameliorated." 

The above-mentioned conclusions, in addition to others not 

mentioned herein, establish a nexus between the mother's 

substance use and mental health issues and her ability to parent 

the children. See Adoption of Jacques, 82 Mass. App. Ct.at 609.6 

We also disagree with the mother's claim that the judge 

erred in finding that DCF's permanency plans, which propose that 

the daughter be formally adopted by her maternal grandparents 

and the son be reunified with his father once the father's

6 The mother also erroneously argues that the judge ignored or 

overlooked significant evidence favorable to the mother in 

finding her unfit. The judge made numerous findings of fact 

that were favorable to her, including those detailing the 

mother's engagement with treatment, how her "house was clean and 

neat," that she had been consistent with her visits, and that 

she "has a well-developed bond with both children and likes to 

bring activities and snacks to her visits." To the extent the 

judge erred in failing to include any other favorable evidence 

in her findings, such evidence does not outweigh the evidence

indicating the mother's parental unfitness. 
8

temporary unavailability has abated, are in each child's best 

interests. "In determining whether the best interests of the 

child will be served by issuing a decree dispensing with the 

need for consent [to adoption] . . . , the court shall consider 

the ability, capacity, fitness and readiness of the child's 

parents or other person named in [G. L. c. 210, § 2,] to assume 

parental responsibility, and shall also consider the plan 

proposed by the department or other agency initiating the 

petition." G. L. c. 210, § 3 (c). "The 'best interests of the 

child' standard requires the trial judge to make a discretionary 

decision based on her experience and judgment, and [it] will not 

be overturned unless it amounts to an abuse of discretion or a 

clear error of law" [citation omitted]. Adoption of Garret, 92 

Mass. App. Ct. 664, 675 (2018).

As discussed above, the mother is unfit to care for both 

children. Regarding adoption of the daughter, she began 

residing with the maternal grandparents in September of 2020 and 

continued to do so at the time of trial. The maternal 

grandparents have been "the only stable caregivers that [the 

daughter has] known," and she has benefitted from the structure, 

predictability, and consistency of the home. Additionally, 

"there has been no evidence of any risk to the children while in 

their maternal grandparents' custody" or "that the maternal 

grandparents are inappropriate or irresponsible caregivers." 
9

"The Supreme Judicial Court has emphasized the importance of 

achieving stability and permanency in children's lives and in 

decrees dispensing with parental rights." Adoption of Thea, 78 

Mass. App. Ct. 818, 824 (2011). Thus, we see no abuse of 

discretion or error in the judge's determination that adoption 

of the daughter by the maternal grandparents is in her best 

interests. 

Nor is there any abuse of discretion in the judge's 

treatment of DCF's current plan to reunify the son with his 

father. Parents possess a "natural right to the custody of 

their children." See Petition of the Dep't of Pub. Welfare to 

Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). 

The judge found that the nature of the relationship between the 

mother and the son's father "as it relates to actual domestic 

violence" was "uncertain." Moreover, at the time of trial, the 

son had monthly visits with his half-brothers on his father's 

side and weekly virtual visits with his father. The record 

indicates that the son's father has been teaching him how to 

speak Portuguese and will allow him to maintain his relationship 

with his American family if the son does move to Brazil. Based 

on the differences between the children as to age, their 

involvement with DCF, and relationship with their fathers, the 

judge recognized that different permanency plans could be in 

their best interests. See Adoption of Garret, 92 Mass. App. Ct. 
10

at 675-676 (concluding no abuse of discretion in judge's 

differing best interests determinations). However, the judge 

did not approve DCF's plan for reunification with the father. 

Indeed, the judge declined to terminate the mother's parental 

rights, pointedly leaving open the possibility that her 

unfitness as to the son "could be appropriately addressed 

through service engagement and evidence of positive parental 

progress." Finally, the son will remain in the care of his 

maternal grandparents until the father's availability is 
11

established, giving the mother the opportunity to ameliorate the 

concerns leading to the son's removal in the meantime.7

The decree terminating the 

mother's rights as to Addi 

is affirmed. The judgment 

as to Robert is affirmed.

By the Court (Meade, 

Massing & Sacks, JJ.8),

Assistant Clerk

Entered: January 4, 2024.

7 The mother's claim that terminating her parental rights as to 

the daughter was improper because the maternal grandparents 

could have received a guardianship of her is waived, as she did 

not request a guardianship below. See Petition of Dep't of Soc. 

Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 697 

(1984). The mother's remaining claim, that a sibling visitation 

order should have been granted, is premature at this time 

because both siblings are currently residing with the maternal 

grandparents.

8 The panelists are listed in order of seniority.