Adoption of Doris.

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.
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.

2
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

3
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 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, 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.

4
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

5
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).

6
 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

7
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

8
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,

9
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

10
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

11
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.

12
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.

13