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-722

ADOPTION OF YOLANDA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree of the Juvenile Court 

finding her unfit to parent her child, Yolanda; terminating her 

parental rights as to Yolanda; and approving the adoption plan 

proposed by the Department of Children and Families (DCF or 

department).2 We affirm.

Background. Yolanda was born in August 2013. On May 11, 

2017, DCF filed the instant care and protection petition and 

obtained emergency custody of Yolanda based on concerns 

regarding domestic violence between the mother and father in 

Yolanda's presence, the mother's substance use, and the mother's 

untreated mental health issues. A seventeen-day trial regarding 

the termination of the mother's parental rights was held between

August 16, 2021, and October 28, 2021, during which the judge 

1 A pseudonym. 

2 The child's father did not appeal from the earlier termination 

of his parental rights and is not a party to this appeal. 
2

admitted eighty-three exhibits3 and heard testimony from eight 

witnesses, including the mother.4 On November 22, 2021, the 

judge found the mother unfit to parent Yolanda, adjudicated 

Yolanda in need of care and protection, terminated the mother's 

parental rights, dispensed with the need for parental consent to 

adoption, approved DCF's proposed adoption plan for Yolanda to 

be placed with her foster mother, and ordered four 

posttermination visits per year. The mother's appeal followed. 

Discussion. "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" (citation omitted). Adoption of 

Yalena, 100 Mass. App. Ct. 542, 549 (2021). When determining 

whether to take the "extreme step of terminating the parent and 

child's legal relationship . . . it is appropriate for a judge 

to consider whether, on the basis of credible evidence, there is 

a reasonable likelihood that the parent's unfitness at the time 

of trial may be only temporary" (quotations and citations 

omitted). Care & Protection of Zeb, 489 Mass. 783, 788 (2022). 

3 One exhibit was withdrawn and two others were stricken during 

the trial. 

4 The mother did not appear for trial on three dates due to 

migraines. 
3

"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). When 

reviewing such determinations, "the judge's assessment of the 

weight of the evidence and the credibility of the witnesses is 

entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 

(1993). 

The mother argues that the evidence did not clearly and 

convincingly support the judge's finding that she is unfit to 

parent Yolanda. Specifically, she contends that the judge 

erroneously (1) based her determination of unfitness on DCF's 

general concerns regarding her compliance with and benefit 

received from services, and (2) relied on past circumstances and 

speculation, failing to account for the mother's "recent 

positive gains."5 Adoption of Paula, 420 Mass. 716, 731 (1995). 

We disagree. 

5 The mother also challenges the judge's subsidiary findings of 

fact nos. 128 through 138 regarding her failure to consistently 

and timely provide signed releases to DCF. While the mother 

provided limited releases at certain points throughout the 

pendency of this case, the record demonstrates that the mother 

repeatedly failed to provide timely, full releases with respect 

to her treatment and hospitalization upon DCF's request. See

Adoption of Larry, 434 Mass. 456, 462 (2001) (finding is clearly 

erroneous where "there is no evidence to support it," or 

reviewing court "is left with the definite and firm conviction 
4

The judge made extensive findings6 supporting her conclusion 

that the mother was unfit by clear and convincing evidence. The 

record supports the judge's findings that, inter alia: the 

mother has a history of abusive relationships and substance 

misuse; she has repeatedly failed to acknowledge her own 

substance use and the harm to Yolanda caused by exposure to 

domestic violence; she has not consistently engaged with 

required services or provided timely, full releases to the 

department; her economic situation is unstable; she has failed 

to meaningfully address her own physical and mental health 

issues; she has not been forthcoming to her providers or the 

department about her mental health; and she has had issues with 

confirming visits, arriving on time, and having inappropriate 

conversations with Yolanda wherein she has invalidated Yolanda's 

exposure to domestic violence. Furthermore, the judge properly 

considered the required factors set forth in G. L. c. 210, 

§ 3 (c), and found factors (ii), (iii), (iv), (vi), (vii), 

(viii), (x), and (xii) applicable to her determination that the 

that a mistake has been committed" [citation omitted]); Adoption 

of Yalena, 100 Mass. App. Ct. at 547 n.10. "[T]he judge's 

assessment of the weight of the evidence and the credibility of 

the witnesses is entitled to deference." Custody of Two Minors, 

396 Mass. 610, 618 (1986). 

6 The judge made 406 findings of fact and forty-six conclusions 

of law 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). 
5

mother was unfit. We discern no clear error in the judge's 

finding that the mother is unfit to parent Yolanda, a finding 

that is supported by clear and convincing evidence. 

There is no merit to the mother's argument that the judge 

erroneously based her unfitness determination on DCF's general 

concerns regarding the mother's compliance with and benefit 

received from services. It is clear from the judge's thoughtful 

and comprehensive findings that her determination of unfitness 

was based on a "constellation of factors." Adoption of Greta, 

431 Mass. 577, 588 (2000). Furthermore, the record supports the 

judge's determination that while the mother participated in some 

services, she did not gain "sufficient insight into how those 

services impact her daily life or have changed her parental 

abilities."7 Despite her participation in domestic violence 

programs, for example, the mother has continually minimized the 

extent of the abuse she suffered, failed to maintain a 

restraining order against the father, and invalidated Yolanda's 

7 The judge stated in her conclusions of law that "[e]ven when 

parents substantially comply with service plans, they may still 

be found unfit if they do not demonstrate that they have 

benefitted from the services provided." To be clear, the burden 

to prove current parental unfitness by clear and convincing 

evidence is on the department, and "[t]hat burden never shifts 

to the parents." Adoption of Lorna, 46 Mass. App. Ct. 134, 139 

(1999). Notwithstanding the judge's use of the word 

"demonstrate," we discern no clear error or abuse of discretion 

where there was evidence in the record to support the judge's 

determination that the mother did not sufficiently "benefit from 

services aimed at remediating her parenting deficits."
6

exposure to domestic violence during visitation. See Adoption 

of Paula, 420 Mass. at 730 (mother's participation in services 

"had not appreciably improved her capacity to 'meet the complex 

emotional and physical needs of her children'"). 

Contrary to the mother's assertion, the judge did consider 

the mother's "recent positive gains." Adoption of Paula, 420 

Mass. at 731. The judge acknowledged, for example, that the 

mother has lived in the same apartment for the last three years, 

she has not had reported contact with the father since 2019, and 

she has been more consistent with participation in services 

since March of 2020. However, "the judge was entitled to 

consider the evidence of her recent improvements within the 

context of her earlier and continuing deficits." Adoption of 

Jacques, 82 Mass. App. Ct. 601, 608 (2012). See Custody of Two 

Minors, 396 Mass. 610, 621 (1986) (judge may properly consider 

"prognostic evidence derived from prior patterns of parental 

neglect or misconduct in determining future fitness and the 

likelihood of harm to the child"). "Based on the judge's 

findings in this instance, it is apparent that the mother's 

gains were offset by continuing deficits, many of which were 

highlighted by the mother's lack of credibility on a number of 

fronts."8 Adoption of Jacques, supra. 

8 The judge found the mother to be not credible with respect to 

her testimony that she, inter alia: has not been in a 
7

Throughout the pendency of this case, Yolanda has had 

seventeen different placements due in large part to her 

specialized needs associated with her posttraumatic stress 

disorder and "high-risk behaviors" including self-harm, 

aggression toward people and animals, and lying. Since moving 

in with her preadoptive mother in March 2019 and engaging in 

therapeutic services, however, Yolanda's behavior and ability to 

express herself verbally have improved significantly. The 

record supports the judge's finding that the preadoptive mother 

has provided a safe, stable environment for Yolanda and the two 

have developed a strong bond such that removal "would likely 

cause serious psychological harm" to Yolanda. G. L. c. 210, 

§ 3 (c) (vii). See Adoption of Astrid, 45 Mass. App. Ct. 538, 

545 (1998). That the mother is unable to identify Yolanda's 

behavioral needs and has not been forthcoming about nor 

consistently engaged in services to address her own trauma and 

mental health issues further supports the judge's determination 

that the mother is not equipped to care for Yolanda's ongoing 

relationship with the father since 2013 and has not had contact 

with him since 2017; was not involved in the incident in January 

of 2019 wherein she and the father broke into the father's 

girlfriend's home and assaulted her; forgot to renew her 

restraining order against the father; has been taking her 

medications regularly since October 2020; only used cocaine on 

one occasion; completed substance abuse treatment in 2018 and 

2019; and was honest to her providers regarding her psychiatric 

hospitalization in 2020. 
8

specialized needs. See Adoption of Jacques, 82 Mass. App. Ct. 

at 608-609. 

We are likewise not persuaded by the mother's assertion 

that the judge abused her discretion by terminating the mother's 

parental rights without allowing the mother to demonstrate that 

her unfitness, if any, was temporary. The mother points to her 

work with a family support clinician from 2020 to 2021, and 

maintains that she demonstrated improved parenting skills during 

visitation in 2021. However, as recently as May 2021, the 

mother engaged in inappropriate conversations with Yolanda

during visitation including, inter alia, telling Yolanda that if 

she were adopted, she would never see the mother again. 

Moreover, the record supports the judge's finding that it would 

take years of consistent therapeutic treatment to address the 

mother's psychological issues stemming from her trauma-related 

stress and anxiety disorders that limit her ability to parent 

Yolanda, who has specialized behavioral and educational needs 

that the mother is not equipped to address. Accordingly, "while 

we appreciate that the mother has made commendable efforts and 

has shown concern and affection for [Yolanda]," we discern no 

clear error nor abuse of discretion in the judge's determination 

that the mother is unfit,9 her unfitness is not merely a 

9 We note that "[d]espite the moral overtones of the statutory 

term 'unfit,' the judge's decision was not a moral judgment or a 
9

temporary condition, and that termination of the mother's 

parental rights is in Yolanda's best interests. Adoption of 

Jacques, 82 Mass. App. Ct. at 609. 

Decree affirmed.

By the Court (Neyman, Sacks & 

Hodgens, JJ.10),

Clerk

Entered: May 15, 2023.

 

determination that the mother . . . [does] not love the child" 

(quotations and citation omitted). Adoption of Bea, 97 Mass. 

App. Ct. 416, 417 n.2 (2020). 

10 The panelists are listed in order of seniority.