ADOPTION OF JET v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 9, 2024, a Juvenile Court judge found the father unfit to assume parental responsibility of Jet and terminated the father's parental rights.² The father appeals, arguing that (1) the judge improperly focused on the father's history rather than his current fitness, and (2) the judge improperly concluded that the father's demeanor at trial was evidence of and further supported a finding of unfitness. We affirm.

Background. “We summarize the relevant facts and procedural history as set forth in the judge's decision and as supported by the record, reserving other facts for later discussion.” Care & Protection of Vick, 89 Mass. App. Ct. 704, 705 (2016).

The father acknowledges that he has a lengthy history of substance abuse beginning well before Jet's birth. He used Percocet and Vicodin from roughly 2000 to 2013, and for at least four years of that time he did not have a prescription. Since September 23, 2013, when the father began regular tests to screen for the presence of substances, he has tested positive for various illegal substances, most notably cocaine and fentanyl.³

Jet was born in October 2020, exposed to methadone and fentanyl.⁴ Both parents were abusing substances at this time. Five days after Jet was born, the Department of Children and Families (department) took emergency custody of Jet and placed her with her maternal grandparents.⁵

Department reports in the following months were optimistic that unification with the parents would occur promptly. However, the department expressed concern that the parents were not providing the necessary releases to allow the department to monitor compliance with action plan tasks. The department informed both parents repeatedly that lack of full releases was a barrier to unification.⁶ The department also informed the parents that it wanted to see six months of sobriety from them before Jet could be unified with them.

On July 7, 2021, the father provided falsified drug screen test results to the social worker who was then assigned to Jet's case. These falsified results indicated that in all ten screens between October 24, 2020, and June 8, 2021, the father only tested positive for his prescribed methadone. On July 30, 2021, the father's substance use counselor provided the true screen results to the social worker, which reflected that the father tested positive for cocaine and fentanyl -- in addition to the prescribed methadone -- from October 24, 2020, through May 8, 2021. The father then tested positive only for methadone for three tests from May 26 to July 5, 2021, before again testing positive for cocaine on July 23, 2021.⁷ In October 2021, the department determined that the parents continued to test positive for and deny use of illicit substances. Citing lack of progress toward Jet's unification with the parents, the department changed Jet's goal to adoption.

On December 13, 2021, the mother passed away while in bed with the father, due to complications from chronic alcohol abuse.⁸ In January 2022, the father began seeing a clinician for individual mental health therapy.

Still, the father often failed to follow his action plan tasks intended to help him attain sobriety. On at least three occasions, beginning on November 17, 2021, the father was asked to provide a relapse prevention plan pursuant to his April 6, 2021 action plan. He did not submit one until October 7, 2022, approximately eighteen months after it was added to his action plan. The plan submitted by the father was created by his substance screening provider and was not individualized to his triggers, warning signs, and steps to take in case of relapse, as required by his action plan. After the father submitted the prevention plan, the department asked the father to create his own individualized relapse prevention plan.

Additionally, beginning February 16, 2022, the father's action plan required that he attend Narcotics Anonymous or Alcoholics Anonymous (AA) meetings and, beginning September 7, 2022, the father was asked to provide signature sheets as proof of attendance. The father claimed to have attended twelve meetings by June 29, 2022, but the judge discredited this claim based on the father's “manner in testifying on the subject and overall poor candor.” Indeed, in September 2022, the father told his clinician that he was in fact not attending AA meetings because he did not want to be around other substance users. By January 16, 2024, the father told a department social worker that he no longer had a sponsor, but he had been looking for one for nine months without success. The father was also asked to journal about topics discussed in meetings beginning February 5, 2024, but failed to provide any journal entries.

The father tested positive for only cannabinoids and methadone from August 23, 2022, to February 21, 2024, but the circumstances surrounding these tests caused the judge to note “a significant concern that the negative test results do not fully reflect the nature of Father's sobriety.” Leading up to this period, the father had tested positive for cocaine and fentanyl -- when testing with a screening provider who used urine tests. However, in July 2022, the father changed screening providers to one that used oral swabs. Only then did the father test positive solely for cannabinoids and methadone.⁹ On February 28, 2024, the father requested his screening provider to write a letter stating that the father was “in the top five percent (5%) of patients” and to delay responding to a court order to provide the father's information. The provider denied both requests. On April 23, 2024, the father tested positive for methadone, cannabinoids, and Suboxone. While Suboxone is a medicated treatment for opiate addiction, the father was not prescribed Suboxone, and notably Suboxone is not prescribed together with methadone. As a result, the father lost his right to use take-home methadone doses.

After testing positive for Suboxone, the father could not articulate any concrete steps he was taking to avoid relapse. He reported attending a daily medication-assisted treatment program provided by his screening provider, but the provider's records reported that he failed to attend on multiple occasions. The father informed his clinician that he had trouble attending the program because it conflicted with visits with Jet, yet incongruously, at trial the father testified that the group meeting schedule did not interfere with visits with Jet.

In addition to the father's substance abuse history, the judge noted her concern with the father's relationship with a woman he began dating in April 2022 and whom we call Melissa (a pseudonym). The father knew that Melissa had a criminal history and had been charged as an accessory to manslaughter and armed robbery. Melissa also did not have custody of her children, struggled with emotional regulation, and had multiple violations of probation. Nevertheless, the father supported a motion filed by Melissa and requested pursuant to her probation, to change her address to the father's home.¹⁰ On January 11, 2024, the father was arrested for domestic assault and battery on Melissa. To the judge's knowledge, the case remained open at the close of evidence.

Jet's best interests trial took place on twelve nonconsecutive dates from February 27, 2023, to July 8, 2024. At the trial's conclusion, the judge found that the father was unfit to assume parental responsibility of Jet, that Jet's interests would be best served by termination of the father's parental rights, and that the department's plan for adoption of Jet by her maternal aunt served Jet's best interests. The judge also ordered post-decree visitation. This appeal followed.

Discussion. 1. Standard of review. “To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). “We give substantial deference to the judge's findings of fact and decision, and will 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 Luc, supra, quoting Adoption of Ilona, supra.

2. The father's history. In order to terminate parental rights, “a judge must decide both whether the parent is currently unfit and whether, ‘on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary.’ ” Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Carlos, 413 Mass. 339, 350 (1992). “Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, supra at 60.

The father argues that various findings made by the judge were unsupported, and more particularly disputes (1) that “[the] Father's history of substance use demonstrates a clear, physical danger to any child in his care”; and (2) that his relationship with Melissa was further evidence of his unfitness. The argument is unavailing, and amounts to no more than a request to reweigh the evidence that the judge rightfully considered. See Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011) (“We accord deference to a trial judge's assessment of the credibility of witnesses and the weight of the evidence”). See also Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018) (“The judge is not required to view the evidence from the parents’ perspective”).

The judge based her conclusions that the father's history of substance use “demonstrates a clear, physical danger to any child in his care,” and that “[t]he risk of a severe relapse into cocaine, fentanyl, or opiates is high,” on the father's extensive history of substance use and abuse spanning “nearly his entire adult life.” Given the father's documented history of substance abuse and his minimal compliance with action plan tasks intended to assist him with attaining and maintaining sobriety, it was not clearly erroneous for the judge to conclude accordingly. As such, we defer. See Adoption of Luc, 484 Mass. at 144.

To be sure, the judge acknowledged the father's negative screening test results from August 23, 2022, to February 21, 2024, but declined to treat them as conclusively establishing the father's sobriety.¹¹ The judge was well within her discretion to be skeptical where the father had previously falsified test results, the series of purported negative test results began only when the father's tests switched from urine screens to saliva screens, the father undisputedly tested positive for Suboxone in April 2024, and the father's contemporaneous compliance with action plan tasks intended to assist his sobriety, including inpatient treatment and substance abuse counseling, was minimal at best. We will not disturb her credibility determinations. See Adoption of Olivette, 79 Mass. App. Ct. at 157. Nor was it error for the judge to cite the father's continued use of marijuana as part of her concern regarding the father's substance use.

Although the father contends that the judge should not have considered his consumption of marijuana where he had obtained a medical marijuana card around August 26, 2022, it remained relevant to his overall sobriety. In a January 2023 foster care review, the department expressed concerns that the father used marijuana to self-medicate symptoms of his anxiety. Where the judge emphasized that the father had “demonstrated poor insight into the risks and impact” of his substance use, she was justifiably concerned that the father self-medicated with substances, albeit legally.

The judge was also warranted in finding that Melissa was a “frequent overnight guest.” Multiple social workers testified that they saw Melissa or her belongings at the father's home on multiple occasions from August 2022 to March 2024, and the father supported Melissa's motion to change her address to his home address for her probation purposes. In light of such evidence, and the father's history of deceit, the judge was under no obligation to credit the father's testimony to the contrary. See Adoption of Olivette, 79 Mass. App. Ct. at 157.

3. The father's demeanor at trial. The father also contends that the trial judge improperly concluded that the father's demeanor at trial was evidence of unfitness. We disagree.

To begin, “[a] parent's behavior during trial and [his] ability to manage anger are relevant to parental fitness.” Adoption of Yvonne, 99 Mass. App. Ct. 574, 580 (2021). The father does not dispute the judge's findings that his behavior at trial was “combative for much of his testimony.” Instead, the father argues that his behavior at trial was “adequately explained” by his clinician's testimony that the father could “get in his head,” that it could take up to forty minutes for the adrenaline to dissipate, and that the father is triggered “[w]hen people get into an argument or question him repeatedly without him being able to explain.”

While the father argues that the act of testifying exacerbated his combativeness, as the judge noted, “[a] child is a significant stressor, especially one unable to otherwise care for herself,” and “[t]here is significant concern that Father's poor emotional regulation would worsen were she in his full-time care.” Notwithstanding the clinician's testimony, the judge was in no way precluded from considering the father's demeanor at trial and concluding that it was relevant to his parental fitness. See Adoption of Luc, 484 Mass. at 144; Adoption of Yvonne, 99 Mass. App. Ct. at 580.

Conclusion. In sum, the judge was well-supported in weighing as she did the father's negative screen test results, his choice of domestic partners, and his demeanor at trial, to conclude that the father was unfit and that his unfitness was likely to continue into the indefinite future. Adoption of Ilona, 459 Mass. at 59. Accordingly, the judge's decision to terminate the father's parental rights was supported by clear and convincing evidence. See Adoption of Luc, 484 Mass. at 144.

Decree affirmed.

FOOTNOTES

2.   The mother passed away on December 13, 2021.

3.   Significantly, although the father had no record of treatment for substance abuse from April 18, 2014, to October 18, 2017, he was incarcerated for nearly one-half of this time. On April 14, 2014, the father was found guilty of two counts of larceny over $1,200 and received an eighteen-month suspended sentence. On May 22, 2014, he was found to have violated the terms of his probation and committed on the sentence.

4.   Jet is the father's second child. The father's first child was born in 2007 and moved to California in 2008 with his mother, who is not the mother of Jet. The son and his mother eventually returned to Massachusetts. The judge concluded that the father was not a significant part of the son's life, based on the father's initial testimony that he does not see his son often and testimony from the father's therapist that the father never mentioned spending time with his son.

5.   By October 2022, the department identified Jet's maternal aunt as a preadoptive resource, and transitioned Jet to the maternal aunt's home. Jet has lived with her maternal aunt since October 2022.

6.   The father testified that the department did not inform him that the lack of releases was a barrier for unification. The judge did not credit his testimony.

7.   The father explained that the July 23, 2021 result for cocaine was a false positive caused by drinking “kratom tea.” Kratom is not a controlled substance under Massachusetts law. See G. L. c. 94C, § 31. The department consulted with a substance abuse specialist, who stated that it was highly unlikely that kratom tea could test positive for cocaine by itself, but could cross-react with other medications.

8.   Concerningly, the mother is not the father's only romantic partner whose death resulted from substance abuse. In 2018, the father's fiancée overdosed and died in her sleep, also while in bed with the father.

9.   The father reported obtaining a medical marijuana card to a department social worker on August 26, 2022.

10.   Although Melissa's motion was allowed, the father denied that Melissa moved into his home. Nevertheless, the judge found that Melissa “has been a persistent figure in the home.”

11.   Notably, the judge did not conclude that the father had abused substances during that period, only noting “a significant concern that the negative test results do not fully reflect the nature of Father's sobriety.”