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-189

ADOPTION OF EILEEN.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered by a judge of the 

Juvenile Court terminating her parental rights to the child. On 

appeal she contends that the ultimate finding of unfitness was 

not supported by clear and convincing evidence, that certain 

subsidiary findings regarding her behavior and the impact of her 

behavior on the child lacked evidentiary support, and that an 

order for postadoption visitation should have entered. We 

affirm.

Background. This case comes before us after a remand for 

further findings. See Adoption of Eileen, 99 Mass. App. Ct. 

1104 (2020). Our review now encompasses the judge's additional 

findings of fact and conclusions of law. Because it is 

important to assess the mother's claims in context, we set forth 

1 A pseudonym.
2

a brief summary of the judge's findings, supplemented by facts 

in the record that support those findings.

The mother was the subject of a child in need of services 

petition between 2009 and 2012. The evidence of the nature of 

the involvement is scarce, but the judge found that the 

Department of Children and Families (department) became involved 

due to, among other things, the mother's curfew violations and 

substance use.

The child was born when the mother was eighteen years old. 

The mother was unaware of the pregnancy until her fifth month. 

She tested positive for marijuana and cocaine during the 

pregnancy, but not at the time of the child's birth.2 The mother 

and the child were discharged from the hospital to the maternal 

grandmother's home, but the maternal grandmother informed the 

department that the mother and child could no longer live there. 

The mother and the child then lived at a teen parenting program 

briefly before returning to the maternal grandmother's home, 

where the mother remained for most of the case.

The maternal grandmother filed a report pursuant to G. L. 

c. 119, § 51A (51A report), on June 17, 2015, alleging that the 

mother had not come home until 2 A.M., and then had left the 

2 The child's meconium sample was too small to be tested for 

substances at birth, but her urine sample was negative for 

substances. The G. L. c. 119, § 51A, report was supported 

because the child was substance exposed during pregnancy.
3

house abruptly, leaving the child with the maternal grandmother,

who had indicated that she was unwilling to care for the child

any longer. The allegations were supported, and the department 

filed a care and protection petition that same day, alleging 

that the child was left with an inappropriate (i.e., unwilling) 

caregiver. Notably, the mother addressed the department's 

concerns, followed through on all that was requested of her, the 

child was returned to her physical custody in March, 2016, and 

the petition was dismissed in July, 2016.

However, in the months following the dismissal of the 

petition, the tide changed. The mother did not go to therapy, 

did not participate in parenting programs, and dropped out of a 

nursing assistant training program. The mother attributed her 

inability to complete the training program to the fact that the 

child was unable to go to day care because of asthma and ear 

infections. The mother did not obtain any employment or enter 

another training program and was utterly reliant on the maternal 

grandmother for housing and support.

Beginning in October of 2016, four 51A reports were filed

concerning the child.3 A mandated reporter filed a 51A alleging 

3 Three of the four reports were supported. The April 7, 2017,

report was screened out only because a judge of the Probate and 

Family Court had appointed the paternal grandmother as the 

child's guardian, and the child was no longer in the care of the 

mother. On appeal, the facts pertaining to the April 7 report

are not disputed.
4

alcohol use by the mother while caring for the child. In March 

of 2017, another 51A report was filed when the mother left the 

child with the paternal grandmother and did not return as 

promised.

On April 7, 2017, the mother again left the child with the 

paternal grandmother and did not return. The social worker was 

unable to locate the mother and called the paternal grandmother 

on May 2, 2017. The paternal grandmother reported that the 

mother had left the child, had not returned, and that she did 

not know where the mother was. During this time the child had 

broken her arm, and the paternal grandmother had great 

difficulty obtaining medical treatment because the mother was 

unavailable to give consent.

The child was remained with the paternal grandmother, who

had been appointed guardian, see note 3, supra, on the condition 

that the father (who had several children with girls under the 

age of sixteen) not be permitted in the home. The paternal 

grandmother allowed contact with the father in the home, and the 

department filed a 51A report, which was supported. The 

department filed another care and protection petition, and the 

child was removed from the paternal grandmother's home and 

ultimately placed in a kinship placement that became the 

preadoptive home.
5

In an effort to obtain a better understanding of the

reasons for the mother's behavior, and the appropriate means for 

improving her parenting ability, the department requested that

the mother participate in a neuropsychological exam, attend 

treatment for mental health issues, and participate in a 

substance use evaluation. Referrals were made for all three 

services. The mother did not successfully complete any of these 

three critical tasks.

Specifically, no neuropsychological evaluation was 

performed. The social worker provided a referral, but the 

mother did not call for an appointment. The provider reached 

out on several occasions but reported to the department that 

they received no response from the mother. Even though the 51A 

report regarding the mother's intoxication was supported based 

on family members expressed concern about the extent of the 

mother's drinking and marijuana use, the mother did not follow 

up on a referral for a substance use evaluation. The mother 

agreed to attend what she described as "bullshit therapy," and 

attended counselling for a brief period. The program terminated 

services in January of 2018 when she missed two visits. The 

mother did not participate in therapy again until two weeks 

before trial. She did, however, complete the Parenting Journey 

class in 2018, although she appeared to have difficulty 

describing what she had learned. The judge found that the 
6

mother was unable to demonstrate that she had benefited from the 

few services in which she engaged.

The mother was frequently unavailable for monthly visits by 

the social worker. She did not visit the child regularly, 

despite the fact that she was not working or going to school. 

She missed approximately twelve visits while the child was in 

foster care, failed to cancel the scheduled visit in advance, 

and was unavailable by telephone. She also missed two of three 

foster care reviews and some court dates. The judge did not 

credit her reasons for missing the foster care reviews. The 

mother testified that she missed the court dates due to an 

"emergency," but when asked what the emergency was, she declined 

to answer and replied, "No response" twice.4 The judge did not 

credit this response.

4 The mother's action plan contained twelve components, several 

of which were related to organizational and independent living 

skills. On appeal the department and the child also argue that 

the mother should be declared unfit because she has not secured 

her own housing, was not employed, and had not prepared a 

household budget. We view these action plan tasks as secondary 

to the primary goals of improving the mother's mental health, 

wellness, and overall stability, and ensuring that the child 

would not be neglected or abandoned in her care. Many people 

reside in multigenerational households, are unemployed, and lack 

budgeting skills, but possess the maturity and wherewithal to 

care for their children. We understand the mother's apparent 

inability to make a plan to care for the child to be evidence of 

a larger (and as yet undefined and unaddressed) constellation of 

problems that place the child at risk of neglect. To the extent 

that one or both appellees ask us to uphold the termination of

parental rights based on one or more of these secondary factors 

alone, we decline to do so.
7

Discussion. 1. Termination of parental rights. "In 

deciding whether to terminate a parent's rights, a judge must 

determine whether there is clear and convincing evidence that 

the parent is unfit and, if the parent is unfit, whether the 

child's best interests will be served by terminating the legal 

relation between parent and child." Adoption of Ilona, 459 

Mass. 53, 59 (2011). "A finding of unfitness must be supported 

by clear and convincing evidence, based on subsidiary findings 

proved by at least a fair preponderance of evidence. See 

Adoption of Elena, 446 Mass. 24, 30-31 (2006). '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, supra." Adoption of Patty, 489 Mass. 630, 

637 (2022).

This case required the judge to assess the risks posed to 

the child based on the mother's past history of neglect, and on 

one occasion, apparent abandonment. Viewed through this lens, 

we can not say that the judge's findings were unsupported, or 

that the judge abused her discretion in deciding that the risk 

of ongoing neglect was so severe that the child's best interests

would be served by termination of parental rights. "The judge 

properly considered the mother's continued failure to cooperate 
8

with the department in determining that the mother did not have 

the ability to address her own shortcomings as a parent." Care 

& Protection of Vieri, 92 Mass. App. Ct. 402, 405 (2017). On 

the evidence before her, the judge was permitted to find that 

the mother repeatedly left the child with caregivers and did not 

return, did not understand what being a parent required, and did 

not appreciate the impact of her own shortcomings on the child.

The reasons for the mother's behavior were unclear. The 

mother has a childhood history of alcohol and drug use, and 

although she had cared for the child while impaired, she did not 

follow through on a referral for an evaluation of substance use 

issues, nor did she attend more that a handful of the 

counselling sessions designed to assist in addressing any mental 

health needs she may have had. Because of the mother's

noncooperation, the judge was unable to make any findings 

regarding the mother's substance use and mental health. 

Instead, the judge was left with a pattern of behavior 

indicative of neglect of the child, and an apparent inability to 

follow through on even the most basic of tasks designed to 

effectuate reunification. "The judge could properly consider 

past parental conduct as relevant to the issue of current 

parental fitness where that conduct was not too remote, 

especially where the evidence supported the continuing vitality 

of such conduct." Adoption of Larry, 434 Mass. 456, 469 (2001).
9

On appeal the mother points to the parenting classes, the 

fact that she had started therapy again shortly before trial, 

and that she was going to start a job to demonstrate that she 

was on an "upward trajectory." The judge explicitly considered 

the mother's recent efforts but concluded that the mother's very 

recent participation in services did not demonstrate a 

reasonable likelihood that she would become fit in the future. 

Rather, the judge found that the mother did not understand what 

her parental obligations were or how to fulfill them. At trial

the department had demonstrated grievous shortcomings based on 

her past conduct, but the mother did not offer any explanation 

why she had stopped attending therapy in the past and had not 

undergone the requested evaluations.5 She did not describe what 

she would do differently in the future, other than to promise to 

get the counselling and evaluations listed in her action plan. 

She refused to explain why she missed court dates, offered no 

explanation for the missed visits with the child, and gave no

explanation as to why she had previously left the child with 

others. Even after taking a parenting course, she was unable to 

5 She testified that a substance use evaluation was not part of 

her action plan and that she did not try to contact the healthy 

baby program to which she had been referred. She claimed that 

date of the foster care review had been changed and that the 

social worker told her that she did not have to attend, 

explanations the judge did not credit. She promised she would 

participate in a substance abuse program and counselling in the 

future, and hoped to regain custody.
10

describe what she learned, or the developmental needs of a three 

year old. The judge did not find what explanations the mother

did give to be credible, nor did the judge find that the mother 

had improved her parenting skills. "Evidence such as the 

failure of the parents to keep a stable home environment for the 

children, the refusal of the parents to maintain service plans, 

visitation schedules, and counseling programs designed to 

strengthen the family unit are relevant to the determination of 

unfitness." Petition of the Dep't of Social Servs. to Dispense 

with Consent to Adoption, 399 Mass. 279, 289 (1987). We discern 

no error.

We recognize that the visits between the mother and child, 

when they occurred, went well, and that there was apparent 

affection between them. "Despite the moral overtones of the 

statutory term 'unfit,' the judge's decision was not a moral 

judgment." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 

(2017). A judge may find that a mother loves and provides for 

her child to the best of her ability, but nonetheless reach the 

conclusion that the best interests of the child warrant 

termination of parental rights. In this case, the evidence 

supported the judge's finding that the child would be at risk of 

neglect or abandonment in the mother's care, and that 

termination was in the best interests of the child.
11

2. Visitation. The judge ordered one posttermination 

visit with the mother but left postadoption visitation to the 

discretion of the adoptive parent. "In determining whether to 

exercise the authority to order visitation, a judge must ask two 

questions: First, is visitation in the child's best interest? 

Second, in cases where a family is ready to adopt the child, is 

an order of visitation necessary to protect the child's best 

interest, or may decisions regarding visitation be left to the 

judgment of the adoptive family?" Adoption of Ilona, 459 Mass. 

at 63. "[O]nce a preadoptive family has been identified, a 

judge must balance the benefit to the child of an order of 

visitation . . . with the intrusion that an order imposes on the 

rights of the adoptive parents, who are entitled to the 

presumption that they will act in their child's best interest." 

Id. at 64-65. Given the past history of inconsistent care and 

inconsistent visitation, the judge did not abuse her 
12

considerable discretion in leaving the matter of postadoption

visitation to the adoptive parent.

Decree affirmed.

By the Court (Vuono, 

Sullivan & Singh, JJ.6),

Clerk

Entered: March 13, 2023.

6 The panelists are listed in order of seniority.