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-455

ADOPTION OF DORIS.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Doris appeals from a decree entered following 

a trial in the Juvenile Court that found her unfit and 

terminated her parental rights. She contends that the judge 

erred in finding her unfit and failed to consider all record 

evidence. We conclude that the judge's determination of 

unfitness is supported by the record, as is evidenced by her

thoughtful and detailed decision. Because the finding of 

unfitness is supported by the record and because termination was

in the child's best interests, we affirm.2

Background. The mother does not contend that any of the

judge's factual findings are clearly erroneous. We summarize 

the facts as found by the judge. The child was born in 2011. 

The mother experienced intimate partner violence with the 

1 A pseudonym.

2 The department did not seek to terminate the father's parental 

rights, which he retains.
2

child's father. The child and the mother first came to the 

attention of the Department of Families and Children 

(department) in 2014 after the department received two reports

filed pursuant to G. L. c. 119, § 51A, alleging neglect. Around 

this same time, the child witnessed a physical altercation 

between the mother and the maternal grandmother. After an 

investigation conducted pursuant to G. L. c. 119, § 51B, the 

department supported the allegations of neglect based in part on

the unsafe condition of the mother's room in a homeless shelter 

where she and the child lived. The child was removed by the 

department for several days while the mother attempted to make

her room safe for the child. Although the child was returned to 

the mother, the department removed the child later that same 

year so that the mother could again address her housing 

situation. On each occasion, the child stayed with the maternal 

grandmother. For the next few years, the mother continued to 

struggle to provide the child with stable and safe living 

conditions.3

The mother also suffered from continuous substance misuse 

during the child's early years. The mother's substance use 

disorder began when she was herself a teenager. It continued 

3 In the first six years of the child's life, the child and the 

mother experienced periods of homelessness and lived at five 

different addresses. When the mother did have housing, the 

living conditions were often unsafe.
3

when, after a sports injury, the mother became dependent on 

opiates, using them from 2006 onward. The mother later used

heroin from 2016 to 2018. The mother's addiction continued even 

while she engaged in a medically supervised program to safely 

wean herself off painkillers. While in this program, she sold 

her prescribed Percocet for money.

In August 2018, the mother received a certificate of 

achievement from a medical center for her efforts and 

accomplishments regarding her attendance in a treatment program. 

However, one month later, despite appearing to have turned a 

corner, the mother was found in the family home with heroin 

residue and was involuntarily committed to a substance misuse 

treatment program. She fully participated in drug treatment for 

approximately two months and established a support network upon

discharge. Despite this progress, upon her discharge to a 

transitional program the mother did not stay in the program, as

she had agreed to, and instead went to live with her boyfriend.

In July 2019, the mother entered another residential drug 

treatment program, where the department attempted reunification 

with the child. The child was removed from the mother's care 

after the mother was arrested for shoplifting, tested positive 

for amphetamines, and was found to be using multiple prescribers 

for her medications. For these reasons and for knowingly 
4

breaking other program rules, the mother was removed from the 

program in August 2019.

In September 2019, the mother entered another residential 

drug treatment program. Because this program did not allow 

children, the department did not discuss reunification with the 

mother. While she was in this program, the department changed 

the goal for the child from reunification to adoption, citing 

concerns about the length of time the child had been in the 

department's care and the mother's apparent lack of progress. 

The mother completed the program and received another

certificate of achievement in March 2020 and subsequently moved 

into her own apartment. After March 2020, the mother 

participated in family drug court, engaged with a recovery 

coach, attended AA/NA meetings,4 and participated in individual 

therapy.

The department remained concerned about the mother's wellbeing despite her involvement in treatment because the mother 

was presenting as "energetic and slightly disorganized." The 

department was also concerned about the mother's sobriety 

because she presented as "tired looking." In addition, the 

department was concerned that the mother had engaged in several 

unsafe relationships and believed that she was continuing to

4 The judge did not credit the mother's testimony that she had 

been attending AA meetings since 2018.
5

make unsafe partner choices. On August 23, 2020, the mother was 

arrested for shoplifting and, in a search incident to arrest,

heroin, fentanyl, clonazepam, amphetamines and methamphetamines

were found in her purse.

Police responded to several calls regarding domestic 

violence between mother and her boyfriend on several occasions

from July of 2020 to June of 2021. The department had concerns 

about this man, and mother agreed that he was unsafe. Although 

mother obtained a restraining order against him and denied being 

in a relationship with him, she remained in contact with him.

After a six-day trial, the judge found the mother unfit,

and concluded that termination of her parental rights was in the 

child's best interests. The judge approved the department's 

plan for the maternal grandmother's guardianship of the child

and issued a decree terminating the mother's parental rights.

Discussion. The mother's primary argument, that the judge

committed error in finding her unfit, rests on three 

contentions. First, the mother contends that the department did 

not present sufficient evidence to support the judge's 

conclusion that the mother failed to gain significant insights 

from her participation in services. Second, the mother asserts

that the judge's finding of unfitness unfairly focused on her 

past failures and did not consider her recent progress and her 

current condition. Third, the mother alleges that the judge 
6

ignored the mother's commitment to and relationship with the

child. We discuss each of these contentions supporting her 

argument in turn, reviewing for either "a clear error of law or 

abuse of discretion" (citation omitted). Adoption of Talik, 92 

Mass. App. Ct. 367, 370 (2017). Although the mother's arguments 

all relate to the finding of her unfitness, we also briefly 

discuss how the record supports the judge's conclusion that 

termination is in the child's best interests.

1. Mother's unfitness. When determining whether the 

parent is currently unfit, "subsidiary findings of fact must be 

supported by a preponderance of the evidence, with the ultimate 

determination of unfitness based upon clear and convincing 

evidence." Adoption of Rhona, 63 Mass. App. Ct. 117, 124 

(2005), citing Adoption of Daniel, 58 Mass. App. Ct. 195, 201 

(2003). "In order to be clear and convincing, the evidence must 

be sufficient to convey a high degree of probability that the 

proposition is true. . . . The requisite proof must be strong 

and positive; it must be full, clear and decisive" (quotations 

and citation omitted). Adoption of Zoltan, 71 Mass. App. Ct. 

185, 188 (2008). "Clear and convincing proof involves a degree 

of belief greater than the usually imposed burden of proof by a 

preponderance of the evidence, but less than the burden of proof 

beyond a reasonable doubt imposed in criminal cases" (citation 

omitted). Custody of Eleanor, 414 Mass. 795, 800 (1993).
7

a. Lack of insight from services. The judge's conclusion 

that the mother failed to gain significant insights from her 

participation in services is supported by the record. See 

Adoption of Elena, 446 Mass. 24, 32-33 (2006) (determination 

that "the mother's recent progress at rehabilitation was 

questionable" was supported by evidence that "the mother had 

availed herself of services that had been offered, but that she 

had failed to utilize effectively those services to address 

issues of drug abuse and domestic violence"). The mother was 

involved in therapy, addiction services, and domestic violence 

services. Although we have no doubt that the mother has gained 

some benefit, it is clear from this record that, as the judge 

describes, the mother has had a "lack of progress in gaining 

insight and altering her lifestyle choices." While the mother's 

completion of her most recent residential drug treatment program

and the certificate of achievement she received showed progress,

her most recent arrest with drugs found in her purse showed that 

she had not undergone the kind of significant change that would 

have been required to lead the judge to believe she had gained 

meaningful and significant insights from addiction services.

Contrast Adoption of Imelda, 72 Mass. App. Ct. 354, 361-362

(2008). Additionally, the evidence that mother was still in 

contact with her previous partner who had been abusive toward 

her demonstrated that she did not gain insight from domestic 
8

violence services. See Adoption of Yvonne, 99 Mass. App. Ct. 

579-580 (2021) (judge properly considered how failure to address 

domestic violence affected parenting). For those reasons, we 

see no abuse of discretion in the judge's conclusion that the 

mother failed to gain significant insights regarding

consistently maintaining her sobriety and altering her unsafe 

lifestyle choices.

b. Unfitness based on present conditions. "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, taking into account 

recent positive gains (if any), and, in appropriate cases, the 

likelihood of future improvement, in a parent's ability to care 

for the child who is the subject of the petition." Adoption of

Paula, 420 Mass. 716, 731 (1995). "[W]e recognize that relapse 

is part of recovery." Commonwealth v. Eldred, 480 Mass. 90, 99 

(2018). Although evidence of addiction is not alone sufficient 

to terminate parental rights, "the parent's willingness to 

engage in treatment is an important consideration in an 

unfitness determination where the substance dependence inhibits 

the parent's ability to provide minimally acceptable care of the 

child." Adoption of Luc, 484 Mass. 139, 147 (2020).

Here, the judge's findings of fact and conclusions of law 

evidence that the judge not only took into consideration the
9

mother's past actions, but that the judge also evaluated the 

mother's present condition. The mother being found with heroin

in her purse during her recent arrest, in conjunction with her 

long history of failing to maintain sobriety, support the 

judge's conclusion that the "[m]other's substance abuse issues 

have impacted and continue to impact her ability to parent and 

care for the subject child." While we applaud the mother's 

efforts to overcome her addiction and get the treatment she 

needs, her efforts must be viewed against the backdrop of the 

evidence supporting a long history of unfitness. See Adoption 

of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997) (judge does not 

"need to wait for inevitable disaster to happen" and "may 

consider past conduct to predict future ability and 

performance"). We also see no abuse of discretion in the 

judge's determination that this condition is not temporary. See 

Adoption of Elena, 446 Mass. at 31 ("[A] condition which is 

reasonably likely to continue for a prolonged indeterminate 

period, such as alcohol or drug addiction . . . [that] makes the 

parent . . . unlikely to provide minimally acceptable care of 

the child is not a temporary condition" [quotation and citation 

omitted]). The mother's recent criminal history, which directly 

evidenced her inability to maintain her sobriety and thus 

provide a consistently safe environment for the child, was also 

properly considered by the judge. Care & Protection of Quinn,
10

54 Mass. App. Ct. 117, 125 (2002) ("Evidence of the [parent's]

criminal record, to the extent that it had a bearing on [their]

fitness as a parent, is germane in care and protection 

proceedings"). Additionally, although a lack of housing cannot 

alone justify a finding of unfitness, see Adoption of Linus, 73 

Mass. App. Ct. 815, 821 (2009), the judge properly considered

the mother's inability to consistently provide safe housing for 

the child. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 

(2008). The judge also gave the proper weight to the violent 

altercation witnessed by the child between the mother and the 

maternal grandmother as well as the mother's multiple unsafe 

partners. See Custody of Vaughn, 422 Mass. 590, 599 (1996) ("It 

is well documented that witnessing domestic violence, as well as 

being one of its victims, has a profound impact on children"). 

In total, the judge's findings evidence consideration of both 

the mother's past actions and present condition in assessing her 

future unfitness. We discern no abuse of discretion or clear 

error.

c. Mother's relationship with the child. Contrary to the 

mother's claim, the judge considered the mother's commitment to 

and relationship with the child. Among other factors, the judge 

may consider the child's existing bonds with the biological 

parent. See Adoption of Lenore, 55 Mass. App. Ct. 275, 283-284

(2002). Throughout the findings of facts and conclusions of 
11

law, the judge points out many factors weighing in the mother's 

favor, such as the "[m]other has largely cooperated with the 

[d]epartment while engaging in services," and the "[m]other has 

maintained meaningful contact with the subject child and has 

engaged in services on her action plan tasks." In relation to

the mother's bond with the child, the judge stated that "[t]he 

child has a bond with mother," but ultimately found that "the 

child has developed a strong bond with her caretaker for the 

last two plus years, her maternal grandmother." The findings of 

fact and conclusions of law evidence not only that the judge 

carefully considered the mother's commitment to and relationship 

with the child, but also gave those factors weight in her 

deliberations before determining the mother's unfitness. In 

summary, the judge's findings evidence that the determination of 

the mother's unfitness was based on a "constellation of 

factors." Adoption of Greta, 431 Mass. 577, 588 (2000).

2. Child's best interests. "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. at 59. "[T]he best interests analysis . . . requires a 

court to focus on the various factors unique to the situation of 

the individual for whom it must act." Custody of a Minor, 375 
12

Mass. 733, 753 (1978). "The parental fitness test and the best 

interests of the child test are not mutually exclusive, but 

rather reflect different degrees of emphasis on the same 

factors" (quotation and citation omitted). Adoption of Rhona,

57 Mass. App. Ct. at 490. Here, the judge thoughtfully

considered the mother's "ability, capacity, fitness and 

readiness," G. L. c. 210, § 3 (c), before deciding whether the 

department's proposed plan of guardianship by the maternal 

grandmother was in the best interests of the child. She

examined the mother's criminal history, her substance abuse 

history, and her history with domestic violence before 

determining that termination of the mother's parental rights was 

in the child's best interests. The judge also, as previously 

discussed, considered the child's relationship with both the 

mother and the maternal grandmother before deciding the 

department's plan was in the child's best interests. The record

evidence amply supports the judge's findings and determination

that termination of the mother's parental rights was in the 

child's best interests.

Conclusion. After a thorough review, we discern no abuse 

of discretion or clear error in the judge's decision. 
13

For that reason, we affirm.

Decree affirmed.

By the Court (Blake, Walsh & 

Hershfang, JJ.5),

Clerk

Entered: July 19, 2023.

5 The panelists are listed in order of seniority.