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 pers uasive 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 t he judge ' s determination of
unfitness is supported by the record , as is evidence d 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 interest s , 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 m other 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 m other first came to the
attention of th e Department of Families and Children ( department ) in 2014 after the department receiv ed two report s filed pursuant to G. L. c. 119 , § 51A , alleging neglect
. Around
this same time , the child witnessed a physical altercati on
between the m other and the maternal grandmother. A fter 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 m other ' 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 m other continued to struggle to provide the child with stable and safe living
conditions. 3
The m other also suffered from continuous substance mis use during the child ' s early years
. The m other ' 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 , a fter a sports injury , the m other became dependent on opiates , using them from 2006 onward
. The m other later used
heroin from 2016 to 2018
. The m other ' s addiction continued even
while she engaged in a medically supervised program to safely wean herself off painkillers . While in this program , s he 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 , d espite appearing to have turned a

corner , the mother was found in the family home with heroin
residue and was involuntarily committed to a substance mis use
treatment program . S he fully participated in drug treatment for approximately tw o months and established a support network upon discharge. Despite this progre ss , u pon 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 mo ther entered another residential drug treatment program , where the department attempted reunification
with the child. The c hild 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 knowingly4

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 reunificatio n 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 m other completed the program and received a nother
certificate of achievement in March 2020 and subsequently moved into her own apartment. After March 2020 , the m other participated in f amily d rug c ourt , engaged with a recovery
coach , attended AA/ NA meetings , 4 and participated in individual therapy. The department remained concerned about the mothe r ' s well

being 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, t he depar tment 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 un safe 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 t rial , t he 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 m other ' s primary argument , that the judge committed error in finding her unfit , rests on three
contentions
. First , the m other 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 m other 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 m other alleges that the judge6

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 interest s . 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 " (quotation s 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 i nsight from services . T he judge ' s conclusion
that the m other failed to gain significant insights from her participation in services is supported by the record. See Adoption of Elena , 446 Mass. 24 , 3 2

- 33 (2006) (determination
that " the mother ' s recent progress at rehabilitation was questionable " was supported by evidence that " t he 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 m other 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 show ed progress , her most recent arrest with drugs found in her purse show ed that she had not undergone the kind of signific ant change that would have been required to lead the judge to believe she had gained meaningful and significant insights from addiction services
. C ontrast 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 domestic8

violence services. See Adoption of Yvonne , 99 Mass. App. Ct.
579

- 580 (2021) (judge properly c onsidered how failure to address domestic violence affected parenting). For those reason s , 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 prese nt 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 the9

mother ' s past actions , but that the judge also evaluated the
mother ' s present condition. T he 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 m other ' s
efforts to overcome her addiction and get the treatment she
needs , her efforts must be viewed against the backdrop of the
evi dence 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 inevita ble 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 " [ quotatio n and citation omitted] )
. The m other ' 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 hou sing cannot alone justify a finding of unfitness , see Adoption of Linus , 73 Mass. App. Ct. 815 , 821 (2009) , the judge properly consider ed
the m other ' s inability to consistently provide safe housing for
the child. See Adoption of Anton , 72 Mass. App. Ct. 667 , 676 (2008)
. T he 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 partner s . See Custody of Vaughn , 422 Mass. 590 , 59 9 (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
. W e discern no abuse of discretion or clear

error .

c . M other ' s relationship with the child
. C ontrary to the

m other ' 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 conclus ions of11

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 state d that " [t]he
child has a bond with mother ," but ultimately found that " the child has developed a strong bond with her caretake r for the
las t 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
deliberati ons before determining the mother ' s unfitness
. In
summary , t he 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. C hild ' s b est i nterest s . " 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 interest s 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 , 37512

Mass. 733 , 753 (1978). " The parental fitness test and the best interests of the child test are not mutually exclusi ve , 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
consider ed 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 interest s of the child
. She
examined the mother ' s criminal history , her substance abuse history , and her history with domestic violence before
determin ing that termination of the mother ' s parental rights wa s in the child ' s best interest s . 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 interest s . Th e 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 , w e 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.