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-303

ADOPTION OF QUAYLA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees of the 

Juvenile Court terminating their parental rights to their 

daughter, Quayla, pursuant to G. L. c. 119, § 26 and G. L. 

c. 210, § 3, approving the plan of the Department of Children 

and Families (DCF) for the child's adoption, and ordering two 

postadoption visits per year between the parents and Quayla.2 In 

their appeals, the parents argue that the trial judge erred in 

finding them unfit to parent their child by clear and convincing 

evidence, that there was no nexus between the parents' substance 

1 A pseudonym.

2 The father also filed a notice of appeal from the denial 

of his motion for relief from judgment. In his brief, the 

father states he is appealing from the decree terminating his 

parental rights. He makes no argument regarding the denial of 

his motion for relief from judgment, and we do not consider that 

issue. See Mass. R. A. P. 16 (9) (A), as appearing in 481 Mass. 

1628 (2019).
2

abuse and any harm or neglect to the child, and that it was not 

in the child's best interests for their parental rights to be 

terminated. We affirm.

Background. 1. Factual history. We summarize the facts 

as they were found by the trial judge. Both the mother and 

father have a history of substance abuse. The mother has been 

diagnosed with opioid dependence, and the father has admitted to 

having a "drug problem." Both parents have also been charged 

with various criminal offenses. In addition to struggling with 

substance abuse, the mother has been diagnosed with depression, 

anxiety, and attention deficit hyperactivity disorder (ADHD), 

and she has not maintained consistent treatment for her mental 

health diagnoses.

During her pregnancy with the child, the mother was engaged 

in methadone maintenance, but despite that, tested positive for 

opiates and benzodiazepines on several occasions and admitted to 

using heroin a week or two before the child's birth. The father 

was aware of the mother's heroin use. In August 2015, the child 

was born with neonatal abstinence syndrome; her urine and 

meconium tested positive for opiates and methadone. The child

experienced withdrawal symptoms and was placed on neonatal 

morphine. Because she was born substance exposed, a report was 

filed with DCF pursuant to G. L. c. 119, § 51A (51A report). 
3

The child was placed in DCF custody, and DCF placed her in a 

kinship foster home with her aunt and uncle. The child was 

reunified with her parents in June 2016.

Between 2016 and 2019, the mother continued to struggle 

with substance abuse, testing positive for fentanyl twenty times 

and for cocaine twice. However, she did not inform DCF of these 

relapses. In August 2019, the police were called to the 

parents' apartment complex due to a report of a woman in the 

parking lot who appeared to be changing her clothes. The police 

arrived and found the mother in the parking lot, and she 

presented as slow and lethargic. The mother brought the police 

to her apartment, where the father and the child were sleeping. 

The apartment was in disarray, with tables knocked over or 

lopsided and items all over the floor. The police observed drug 

paraphernalia, namely, a spoon and a bag of syringes, in the 

apartment. The father had track marks on his arms, and admitted 

to the police that he had a drug problem. He claimed the track 

marks were old, but the police observed bruising around the 

marks, which indicated that they were new. The mother told the 

police that she had not used drugs in a year, despite the fact 

that she had actually tested positive for drugs several times in 

the preceding months. Based on this incident, the police filed 

a 51A report.
4

A few days after the incident, DCF conducted an unannounced 

home visit, and found that the home was in "deplorable 

condition." According to the DCF social worker, the sink was 

overflowing with dirty dishes, there was a knife on the counter 

that was accessible to the child, there was a table tipped over 

and boxes on the floor around it which blocked one entrance to 

the bathroom, and there were cigarette burns on the parents' 

bedding and cigarette trash on the parents' dresser. At the 

time, the mother refused to sign a release for her treatment 

providers and refused to allow the social worker to inspect her 

medication bottles. The social worker attempted to arrange 

another home visit so that she could meet the father, but the 

mother canceled one visit and would not arrange another, as she 

stated the father would not be available. The social worker 

attempted to create a plan for the child to stay with a family 

member while DCF confirmed the parents' sobriety, but the mother 

refused.

As part of the DCF investigation into the 51A report, the 

social worker also spoke with the child's aunt, who expressed 

concern about the parents' drug use. The aunt claimed that both 

parents appeared to be under the influence at Christmas, and 

that the mother appeared to be under the influence two weeks 

earlier when she had dropped off the child for an overnight 
5

visit. During that visit, the aunt observed that the child had 

two burns on her hand. The aunt reported that when the aunt

asked the mother about the burns, the mother claimed that the 

child "ran into the cigarette." Following this DCF

investigation, the child was again removed from the parents' 

care, and was placed in the same kinship foster home with her 

aunt and uncle in which she previously had been placed.

Since the child was removed the second time, the parents 

have not consistently cooperated in DCF's efforts to verify 

their sobriety. The mother was not consistent with her 

methadone dosing, and she tested positive for fentanyl numerous 

times between 2020 and 2021. She did not, however, inform DCF 

of these positive tests, instead only providing to DCF select 

toxicology screens that were negative for illicit substances. 

The mother also did not seek detoxification following any of 

these relapses, and she provided no verification of a relapse 

prevention plan.

The father completed a substance abuse evaluation in 

October 2019, but it referred only to historical information and 

did not include any clinical assessments or tests, so DCF did 

not accept the evaluation as fulfilling the task on his action 

plan. The father completed another substance abuse evaluation 

in April 2021, eighteen months after it was requested, but the 
6

evaluation was largely based on the father's self-report, and he 

made several inconsistent or inaccurate statements during the 

evaluation. At each home visit, DCF asked Father to verify his 

sobriety and to submit to toxicology screens, but he only 

submitted one toxicology screen, otherwise refusing.

The parents also did not refrain from illegal activity 

while the child was in DCF custody. The mother was charged with 

larceny in January 2021, although she alleges that she was 

falsely accused. The mother claims that the charge has since 

been dismissed, but she did not provide verification, and, at 

the time of the termination trial, the charge remained in open 

status. In May 2021, the father was charged with a compulsory 

insurance violation and a registration violation, although these 

charges were later dismissed.

Since the child's second removal, the parents have 

consistently attended visits with the child and have behaved 

appropriately at those visits. During one visit in 2020, the 

father presented with heavy eyelids, prompting concern about his 

sobriety. The father completed an unsupervised toxicology 

screen several weeks later, but he refused to complete a 

supervised screen within twenty-four hours as requested by the 

DCF social worker. Additionally, the parents have interfered 

with the child's kinship foster placement, badgering the aunt 
7

and uncle and making their relationship uncomfortable. As a 

result, the child was removed from the kinship foster placement

in June 2020 and placed in a DCF foster home, although the aunt 

and uncle remained involved in the child's life, visiting her 

and taking her on vacation. The aunt and uncle are willing to 

adopt the child upon termination of the parents' parental 

rights.

2. Procedural history. Shortly after the child was 

removed from the parents' care in 2019, the parents both waived 

their rights to a temporary custody hearing. Neither parent 

attended the unfitness hearing in July 2021. The trial judge 

found that the mother was unfit, but that DCF had not met its 

burden of proof as to the father's unfitness. The court entered 

a conditional custody order to the father, with the requirement 

that the father not allow anyone, including the mother, to spend 

the night at the father's residence unless approved by DCF. In 

violation of this order, on the child's first overnight visit 

with the father under the order, the father allowed the mother 

to sleep over. The court therefore vacated the conditional 

custody order and found that both the mother and the father were 

unfit to parent the child. The parents did not appeal from that 

decision.
8

The court held a termination of parental rights trial in 

June 2022, and again, neither parent was present. The trial 

judge found that both the mother and the father were unfit, 

committed the child to the permanent custody of DCF, terminated 

both parents' parental rights, approved DCF's plan of adoption 

by the kinship foster family, and ordered that the child have 

visits with the parents a minimum of two times per year. Both 

parents appealed from this decree.

Three months later, the father filed a motion for relief 

from judgment, arguing that he was unable to attend the 

termination trial because it was rescheduled and he was not 

provided proper notice of the new date. After an evidentiary 

hearing, the trial judge denied the father's motion, as she did 

not credit the father's testimony and instead found that he was 

aware of the trial date. As discussed in note 2, supra, the 

father does not make any arguments about it in his brief, so we 

need not consider this issue. See Mass. R. A. P. 16 (9) (A), as 

appearing in 481 Mass. 1628 (2019).

Discussion. The parents both argue that the judge erred in 

finding them unfit to parent the child and in terminating their 

parental rights, because they allege there was no nexus between 

their substance abuse and any harm to the. We disagree.
9

To commit a child to DCF's custody, DCF must prove, "by 

clear and convincing evidence, that a parent is currently unfit 

to further the best interests of a child." Care & Protection of 

Erin, 443 Mass. 567, 570 (2005). To find that a parent is unfit 

requires "more than ineptitude, handicap, character flaw, 

conviction of a crime, unusual life style, or inability to do as 

good a job as the child's foster parent." Adoption of 

Katharine, 42 Mass. App. Ct. 25, 28 (1997) ("Katharine"). The 

trial judge must instead find "grievous shortcomings or 

handicaps that put the child's welfare much at hazard." Id., 

quoting Petition of New England Home for Little Wanderers to 

Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). 

For termination of parental rights, DCF must further prove by 

clear and convincing evidence that the child's best interests 

are served by the termination of parental rights. Adoption of 

Luc, 484 Mass. 139, 144 (2020). On appeal, a trial judge's 

findings "must be left undisturbed absent a showing that they 

clearly are erroneous." Care & Protection of Martha, 407 Mass. 

319, 327 (1990).

Substance abuse is a relevant consideration in a 

determination of unfitness, but only where the substance abuse 

interferes with a parent's ability to provide minimally 

acceptable care of the child. See G. L. c. 210, § 3 (c) (xii);
10

Katharine, 42 Mass. App. Ct. at 31. In Katharine, the parents 

both used cocaine regularly and resisted services offered by the 

Department of Social Services (DSS)3 to help treat their 

addictions. Id. at 25-26. This court found that, even assuming 

the parents would continue to use cocaine, id. at 31, their 

addictions did not "translate[] automatically into legal 

unfitness to act as a parent" absent neglect or abuse of the 

child, id. at 34. The findings in Katharine did "not reflect a 

history of negligent or abusive care of the daughter," but 

rather showed that the parents had "adequately fed and clothed 

her, provided for her medical care, supervised her, and loved 

her." Id. at 26. The daughter in that case had been born 

prematurely and with cocaine in her system, id. at 25, which 

could potentially be characterized as abuse (although the court 

did not decide that question), but this court found that it was 

not enough alone to permit termination of parental rights, as it 

could not be repeated as to that child, id. at 28-29. Finally, 

this court considered that the parents had been involved in 

criminal offenses in the past, but noted that those had occurred 

before the daughter was born. Id. at 33.

3 The Department of Children and Families was formerly named 

the Department of Social Services.
11

We find that, contrary to the parents' arguments, this case 

is distinguishable from Katharine. As in Katharine, the child 

was born substance exposed, and the parents both had drug 

addictions but nonetheless were resistant to services offered by 

DCF. Those facts alone are not sufficient, under Katharine, to 

terminate parental rights. However, there is additional 

evidence of neglect and harm to the child in this case that was 

not present in Katharine. When the child was removed from the 

parents' care the second time in August 2019, the home was in 

disarray, with tables knocked over and items all over the floor. 

Days later, the home remained in "deplorable condition": during 

an unannounced home visit, the social worker observed a tipped 

over table, boxes on the floor blocking an entrance to the 

bathroom, and a knife on the counter that was accessible to the 

child. The police also observed drug paraphernalia in the home. 

The condition of the home on both occasions posed a risk to the 

then four-year-old child. 

Additionally, the child's aunt reported to the DCF social 

worker that during a visit two weeks earlier, she had noticed 

burns on the child's hand, and the mother had stated they 

occurred when the child "ran into a cigarette." Whether the 

burns were caused intentionally or accidentally, they are at the 

very least evidence that the child was not being sufficiently 
12

supervised. Taken together with the cigarette burns observed on 

the parents' bedding and cigarette trash on their dresser, the 

evidence suggests that the parents were not taking adequate 

precautions while smoking.

Finally, neither parent refrained from engaging in illegal 

activity during the course of the DCF case. The mother was 

charged with larceny in January 2021. Although she claims that 

she was falsely accused, and stated that the charge had been 

dismissed, the judge was not bound to credit that testimony. In 

May 2021, the father was charged with a compulsory insurance 

violation and a registration violation, although those charges 

were later dismissed. While the parents in Katharine both had 

been involved in criminal offenses prior to the child's birth, 

they were not involved in any after the child's birth, let alone 

during the pendency of the DSS case against them. Katharine, 42 

Mass. App. Ct. at 33.

Therefore, the parents' argument that this case is 

indistinguishable from Katharine fails. As this Court held in 

Katharine, a court cannot "predict catastrophe when the care of 

the child to date has been, on the whole, satisfactory," but the 

court may "make a prognosis of damage to a child because of a 

previous pattern of abuse or neglect." Id. at 33. As the child 

in this case has been harmed as a result of the parents' 
13

substance abuse, termination of their parental rights is not 

barred by Katharine.

The mother also argues that the judge's findings that she 

"cherry-picked" and altered her drug screens were clearly 

erroneous. The judge found that the mother selected only 

certain screens to send to DCF, all of which showed she tested 

negative for illicit substances, despite the fact that other 

screens that she chose not to send showed a positive result. 

She also found that the mother had altered certain screens 

before sending them to DCF. The mother argues that there was no 

evidence in the record to support these findings, as the DCF 

court reports state only that DCF "received" drug screens, but 

do not specify from whom, so the mother may not have had any 

discretion over which screens DCF received or what they said.

The judge's findings on this issue were not clearly 

erroneous, as there was testimony supporting them. At the

hearing on July 20, 2021, the DCF social worker testified that 

the mother had signed only limited releases for her providers, 

meaning that DCF could not access the drug screens directly from 

the mother's provider. Then, at the termination trial on June 

16, 2022, another DCF social worker testified that DCF had 

previously received drug screens directly from the mother and 

that she had finally signed releases in May 2022. The social 
14

worker also testified that a screen the mother had given DCF was 

altered and did not match the screen provided directly from the 

provider. From this testimony, the judge reasonably found that 

the mother selected only certain favorable screens to send to 

DCF and altered at least one.

The father argues that the judge made a clear error in 

finding that he struggled with substance abuse at the time of 

trial. DCF bears the burden to show by clear and convincing 

evidence that a parent is currently unfit. Care & Protection of 

Erin, 443 Mass. at 570. The evidence before the court showed 

that the police observed track marks on the father's arms in 

August 2019, which the father stated were old, but the police 

officer saw bruising around them, which he stated indicated that 

they were new. The police also observed drug paraphernalia in 

the home at that time, and the father admitted to police that he 

had a "drug problem." The father submitted the results of a

substance abuse evaluation to DCF in October 2019, but it did 

not indicate what, if any, testing was completed, and mostly 

contained information about the mother. Therefore, DCF 

requested a new substance abuse evaluation, which father did not 

complete until April 2021, and which the court found contained 

contradictory statements.
15

The father is correct that his action plans, unlike the 

mother's, did not require that he submit drug screens to DCF, 

although they did require that he "[a]bstain from all alcohol 

and drug use and demonstrate a commitment to maintaining a sober 

lifestyle by refraining from engaging with individuals who are 

using/abusing alcohol/drugs." In December 2021, a task was 

added stating, "If there are concerns regarding presentation and 

sobriety during visitation, [DCF] . . . will encourage you to 

submit a supervised drug screen/swab/blood test within 24 

hours." There was also testimony from the DCF social worker 

that DCF had asked the father to verify his sobriety at every 

home visit since the case opened, at least thirty-three times. 

The court found that the father had only submitted one drug 

screen to DCF, which was unsupervised, several weeks after a 

February 2020 visit at which he presented with heavy eyelids. 

The court also found that a supervised screen was requested, but

the father failed to submit one, and the judge drew the

inference that it would have been positive. The father contends

that he had actually taken five drug screens since the DCF case 

opened, as he reported during his second substance abuse 

evaluation.

The judge's findings regarding the father's failure to 

maintain sobriety were not clearly erroneous. When the child 
16

was removed, the police officer observed what he said were new 

track marks on the father's arms, and drug paraphernalia in the 

home. The father was also not forthcoming in either of his 

substance abuse evaluations about his history of drug use. 

Although his action plans did not require that the father submit 

drug screens, they did require that the father "[c]ooperate with 

any additional recommendations made by DCF and other 

professionals," and the DCF social worker testified that the 

father was asked to verify his sobriety at every home visit 

throughout the pendency of the case. Although the father did 

report during his substance abuse evaluation that he had taken 

five drug screens since the case began, he did not report that 

they had been submitted to DCF. Taken together, this evidence 

was sufficient for the judge to find that the father had a 

current substance abuse issue at the time of trial.

Even if the judge did err in her finding's regarding the 

father's substance abuse, any error would have been harmless, as 

there was other evidence sufficient to show the father's 

unfitness. The father, despite knowing about the mother's 

substance abuse, including her use of heroin during pregnancy

and her relapses, did not report it to DCF or to the mother's 

substance abuse treatment provider, nor did he take any steps to 

protect the child from potential harm or neglect caused by the 
17

mother. Even after the trial judge had found the mother unfit 

and issued a conditional custody order to the father, the father 

immediately violated the order by allowing the mother to sleep 

over during the child's first overnight visit with him. As we 

have already concluded that the child was harmed due to the 

mother's substance abuse, the father's failure to acknowledge 

this as an issue and his willingness to put the child at risk of 

harm constitute unfitness. The father and the mother also 

failed to attend either hearing at which their fitness to parent 

the child would be decided, and it was proper for the judge to 

draw a negative inference from their absence. See Adoption of 

Talik, 92 Mass. App. Ct. 367, 371 (2017).

Finally, both the mother and the father challenge the 

judge's determination that termination of their parental rights 

was in the child's best interest. In particular, the father 

argues that the judge did not consider the father's ability to 

provide for the child and their strong relationship , and the 

mother argues that the child expressed a desire to return home 

and was bonded with the parents. In fact, the judge took note 

of the parents' jobs and financial situation, including the fact 

that the maternal grandmother had provided financial support to 

the parents. The judge also explicitly considered the parents' 

mostly consistent compliance with visitation, the fact that they 
18

behaved appropriately and came prepared, and the child's 

expressed desire to return to the parents' care. In a best 

interest determination, the court should take into account the 

child's wishes, but they are not outcome determinative. See

Adoption of Nancy, 443 Mass. 512, 518 (2005). The court clearly 

did consider the bond between the child and the parents, as she 

ordered post-adoption visitation. However, the judge should

also consider a lengthy separation between the parents and 

child, and a child's bond with the current custodian. See

Adoption of Frederick, 405 Mass. 1, 7 (1989). In this case, the 

child has not lived with the parents since 2019 and has 

developed a strong bond with her aunt and uncle, who are willing 

to adopt her.

The mother also argues that, because the kinship foster 

family did not allow the child to continue living with them 

after June 2020, their adoption of the child would not be in her 

best interests. However, the judge found that the kinship foster 

family had made that decision due to the parent's interference

and fears that the child would be removed a third time. The 

family also maintained a relationship with the child even after 

June 2020, visiting with her consistently and taking her on 

vacations.
19

Based on all of these considerations, the judge did not 

abuse her discretion in finding that the child's best interests 

would be served by termination of parental rights.

Decrees affirmed.

Order denying motion for 

relief from judgment

affirmed. 

By the Court (Vuono, Rubin & 

Smyth, JJ.4),

Clerk

Entered: June 27, 2024.

4 The panelists are listed in order of seniority.