ADOPTION OF MIA v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge adjudicated the mother and father unfit to parent their children, Mia and Thomas, and terminated the mother and father's parental rights pursuant to G. L. c. 119, § 26 and G. L. c. 210, § 3. The mother appeals, arguing that the judge (1) improperly denied her motion to appear for trial virtually, and (2) erred in concluding that the best interests of Mia were served by terminating her parental rights.² 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 mother, who was thirty-one years old at the time of trial, had been addicted to methamphetamines since age eighteen, and had experienced housing instability and poor physical health. Mother has a criminal history in New York and Massachusetts for a variety of crimes including robbery, shoplifting, and trespassing. In 2021, the mother and father married. Their relationship was fraught with verbal and physical violence as well as housing instability and substance use.

In September 2022, two G. L. c. 119, § 51A reports were filed alleging neglect of six-month old Mia. The maternal grandmother alleged that the mother had hit her and was using illegal substances.³ The Department of Child and Families (department) noted that the maternal grandmother's home, where the mother and Mia were staying, was “in shambles and there were possible bedbugs.” A few months later, in January 2023, the department filed a care and protection petition under G. L. c. 119, § 24, alleging that Mia, who was now eight months old, was in need of care and protection and sought custody. The mother and the maternal grandmother had overdosed on opiates. Emergency responders arrived at the home and found the mother unresponsive but still breathing. After being administered Narcan and revived, the mother was transported to the hospital.

The department took emergency custody of Mia, who was present at the home during the mother's overdose. Mia was nonverbal, wearing a urine-soaked diaper, and had a flat head. There was an IV bag and vomit on the floor of the home, as well as sticky notes attached to the walls. The notes including feeding instructions for Mia and some that read “make sure I wake up” and “[b]eat me if you have to.”  ⁴ At the hospital, the mother's speech was slurred and she was vomiting, but she reported that nothing had happened and that she was just cooking dinner. The mother did admit that Mia was born substance exposed to methamphetamines and that Mia was overdue for her vaccines. She told the department that she had ordered a head shaping helmet for Mia without medical recommendations.

On January 27, 2023, the court granted the mother and the father conditional custody of Mia. The plan required the mother and Mia to reside at the home of the mother's former guardian (Lisa, a pseudonym), and for the mother to be the primary caretaker of Mia and maintain her routine. The mother had minimal interaction with Mia, and Lisa became Mia's primary caretaker due to the mother's absence. On February 13, 2023, the mother travelled to New York without Mia. Lisa agreed to care for Mia for one night, but the mother did not return until six days later and then tested positive for methamphetamines. The mother told Lisa that she had taken Sudafed.

On April 25, 2023, a 51A report alleged that the mother had violated the conditional custody order by not residing with Lisa and not taking Mia to daycare. The department called the mother on her cell phone to find out her location, but the mother hung up and refused to answer multiple calls from the department after stating that she was going to a shelter. Later that same evening, after the mother and Mia returned to Lisa's home, the department conducted an interview. When the department informed the mother that they were taking emergency custody Of Mia due to her failure to follow the conditional custody orders, the mother began to scream profanities at the department workers and the police officers while holding Mia. The mother continued to yell at the police stating that Mia was abused in foster care. In May 2023, the court granted temporary custody of Mia to the maternal aunt and uncle (the proposed guardians), and she has been placed with them ever since.

In January 2024, the department filed a care and protection petition seeking custody of Mia's younger brother, Thomas, who was twenty days old, after the department learned that the mother and father were travelling with Thomas to New York every few days to buy methamphetamines. After the department informed the mother and father of the decision to remove Thomas, the parents became argumentative, telling the department that the removal “was not happening.” For about an hour, response workers attempted to de-escalate the situation with the mother and father, who continued to yell and scream, and refused to release the child to the response workers. Eventually the department convinced the parents that Thomas needed to be evaluated at Children's Hospital. At the hospital, father was disruptive and combative and, after failing to cooperate with multiple requests by hospital staff and police, was placed under arrest for disorderly conduct. The mother was verbally abusive toward the hospital staff and refused to allow the medical staff to evaluate Thomas, who was throwing up and crying. When the medical staff finally were able to evaluate him, they observed that Thomas had severe oral thrush, a diaper rash, poor muscle tone, and a distended stomach. The department took temporary custody of Thomas when he was one month old and placed him in a foster home.⁵

The department created several action plans for the mother to address her substance misuse and domestic violence, among other deficiencies. The plans were amended to add that the mother contact Mia's medical providers and specialists to learn about Mia's medical needs and how to manage them. The mother denied having issues with either substance misuse or domestic violence and as such failed to engage in any type of services. The mother was uncooperative with the department and refused to disclose her address. The department arranged bi-weekly visits with Mia, but the mother's attendance was sporadic, and visits were later reduced because of the number of missed visits.⁶ When the mother and the father visited, Mia was inconsolable and had heightened separation anxiety, interrupted sleep, and exhibited behavioral issues with peers. Mia's maternal aunt informed the mother of Mia's extensive medical needs. The mother never asked to attend any of Mia's medical appointments.

Mia's and Thomas’ cases were consolidated with the petition for guardianship filed by Mia's aunt and uncle, and the trial took place in March and April 2025. On the first day of trial, counsel for the mother requested permission for mother to appear virtually. After hearing arguments, the judge denied the motion. At the trial's conclusion, the judge found that both the mother and father were currently unfit to assume parental responsibilities of the children, that their unfitness would likely continue into the indefinite future, and that the best interests of the children would be best served by termination of parental rights. The judge approved the department's plans of guardianship of Mia and adoption of Thomas. In her appeal, the mother does not challenge any of the judge's findings of facts as clearly erroneous.

Discussion. 1. Denial of the mother's motion to participate at trial by video conference. The mother argues that the judge should have excused her from attending the trial in person and instead should have permitted her to participate by video conference.⁷ We are not persuaded.

The decision to allow a motion to appear virtually is reviewed for an abuse of discretion.⁸ See Adoption of Talik, 92 Mass. App. Ct. 367, 375 (2017) (defining abuse of discretion). Judges are “given some flexibility, consistent with the facts of each case in determining ․ how best to assure that a parent has a meaningful opportunity to respond to the evidence presented at trial.” Adoption of Patty, 489 Mass. 630, 640 (2026), quoting Adoption of Edmund, 50 Mass. App. Ct. 526, 530 (2000). In general, while we acknowledge that some situations may benefit by conducting hearings virtually, in person hearings are preferable for trials. See id. at 641 (participation in a termination of parental rights hearing by internet-based video conferencing described as “never ideal”).

In this instance, we cannot conclude that the denial of the mother's motion to appear at trial virtually resulted in an abuse of discretion. The judge fully considered the request made by the mother to appear virtually, including the fact that she lived in New York and would be required to use public transportation to appear in person. The mother's counsel also informed the judge that the mother's doctor advised her that travel was not advisable due to her high-risk pregnancy. The judge inquired why the mother waited until the day of the trial to raise this issue, despite being aware for several months that the trial was in person. Counsel for the mother responded that she was waiting for the mother to provide medical documentation in support of her request. It was appropriate for the judge to consider that there was no supporting medical documentation and that the motion was not accompanied by a signed affidavit by the mother. The judge also heard from the department and counsel for the children, who both objected to the mother's virtual attendance, noting the lack of medical documentation and that the mother had previously availed herself of funds to travel using public transportation to visit the children.

In addition, the mother virtually attended a pretrial conference hearing and was aware of the in-person trial date. During that hearing, and a subsequent hearing that mother failed to attend, the judge specifically commented that the mother had an outstanding warrant in the District Court. That warrant was still outstanding as of the trial date.

Therefore, based on the undisputed facts, we discern no abuse of discretion in the judge's denial of the mother's motion to appear at trial virtually.⁹

2. Termination of parental rights. The mother does not challenge her unfitness or the allowance of the guardianship petition filed by Mia's aunt and uncle. Rather, the mother argues that termination of her parental rights does not serve Mia's best interests because Mia's permanency plan is guardianship rather than adoption. We are not persuaded.

“Although the law recognizes that the custody, care and nurture of the child reside first in the parents, where those parents have failed to fulfill their duties of parenthood, their rights are no longer paramount” (quotations and citation omitted). Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 5 (1979). “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). “The natural bond between parent and child should not be permanently severed unless the child's present or future welfare demands it.” Adoption of Varnell, 106 Mass. App. Ct. 716, 721 (2026), quoting Adoption of Carlos, 413 Mass. 339, 350 (1992).

The decision to terminate parental rights requires “a two-part analysis.” Adoption of Nancy, 443 Mass. 512, 515 (2005). “First, the judge must decide that the parent is presently unfit.” Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). “The judge ‘must also find that the current parental unfitness is not a temporary condition.’ ” Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). “Second, the judge must find that ‘it would be in the child's best interest to end all legal relations between the parent and child.’ ” Adoption of Cadence, supra, quoting Adoption of Nancy, 443 Mass. at 512.

“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, 484 Mass. at 144, quoting Adoption of Ilona, 459 Mass. at 59. The mother does not challenge any of the judge's findings of facts.¹⁰

“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, 459 Mass. at 60. In a recent case, Care and Protection of Zeb, 489 Mass. 783, 787(2022), the Supreme Judicial Court affirmed the termination of the mother's parental rights and awarded permanent guardianship of the child to the paternal grandmother. In determining that the best interests of the child were served by termination, the Supreme Judicial Court stated that the trial judge appropriately considered that the mother's shortcomings would continue into the indefinite future “with an attendant harmful effect on the child.” Id. at 788. The mother also failed to address her substance use disorder, failed to acknowledge her mental health needs, and demonstrated minimal engagement with the child. Id. Termination of the mother's parental rights was also supported by the fact that the mother failed to make any efforts to engage in services with the department. Id. at 789. The Court concluded that “[w]here the judge's detailed findings based on the evidence support the conclusion that the mother likely would not become fit to parent in the future, the judge was warranted in terminating the mother's parental rights.” Id.

Notwithstanding the principle that parental rights should not be terminated “unless the child's present or future welfare demands it,” Adoption of Carlos, 413 Mass. at 350, the court in Care and Protection of Zeb, 489 Mass. at 789, upheld termination without identifying any specific way in which the child -- who would be placed in a permanent guardianship in any event -- would be better off from the termination of the mother's rights. Instead, the court emphasized “the child's unqualified right to permanency and stability.” Similarly, we said in Care & Protection of Gaston, 106 Mass. App. Ct. 450, 460 (2026), that in considering on remand whether termination of the father's parental rights were in the child's best interests, the judge “must consider the child's unqualified right to permanency and stability.” In that case, a judge had found the father unfit, likely permanently, but concluded that termination was not in the child's best interests, without considering DCF's plan for adoption by the long-time foster parents. Id. at 455. On appeal, emphasizing the child's right to permanence, we remanded for the trial judge to reconsider whether termination, and the permanence and stability that adoption would afford, served the child's best interests. Id. at 459-461. We did so without identifying any additional, more specific manner in which the child's best interests might demand termination. Id.

Here, by the time trial concluded, Mia was almost three years old and had been removed from the mother's care on two occasions. For two years, Mia had been living in a loving, stable family with her maternal aunt and uncle who “are well-versed in, and able to care for, her extensive specialized needs.” Although Mia continues to experience significant medical issues, her aunt and uncle have ensured that she receives regular medical care by a team of specialists. During the two years that Mia was living with the aunt and uncle, the mother was informed of Mia's medical needs. The mother never asked to attend any of Mia's medical appointments and failed to follow the department's action plan to contact Mia's medical providers to learn about Mia's needs and how to manage them.

The judge considered the mother's pattern of behavior and her failure to meaningfully and substantially engage in treatment to address her parental shortcomings. The mother had a history of substance misuse and was unwilling to engage in treatment. She was involved in a physically and verbally abusive relationship with the father but did not engage in domestic violence services and the mother made little progress towards terminating her relationship with the father.

The mother's uncooperativeness with the department and her failure to complete the tasks on her action plan to address her parental deficiencies supported the judge's conclusion that her unfitness was likely to “persist [unabated] into the future.” On the occasions when the mother visited, Mia was “inconsolable” and had heightened separation anxiety, suffered from a loss of sleep, and exhibited behavioral issues with peers. The maternal aunt wanted mother's parental rights terminated because she “was unable to manage [mother] and [her] unsafe and erratic behaviors.”

In considering the best interests of Mia, the judge also considered that the maternal aunt and uncle's decision to pursue guardianship instead of adoption was “due to the child's extensive medical needs and insurance concerns of the guardians.” In other words, the aunt and uncle's desire to seek guardianship rather than adoption was not due to any lack of commitment to raise Mia -- they intend to raise her into adulthood. The guardianship petition was not based on a belief that the mother would soon be able to regain custody of Mia. The only reason they did not pursue adoption is because they could not afford the estimated three to five hundred dollars per week in out-of-pocket expenses for Mia's therapies charged by their private insurance company.

The undisputed facts support the judge's conclusion that, given the mother's past history, there was no evidence to suggest that the mother would consistently visit or appropriately engage with Mia if she were given scheduled parenting time, and the judge noted that “[t]he track record of the past two-plus years is evidence of the need for termination to provide piece of mind for the guardians and, most importantly, permanency for [Mia].” Furthermore, there was no evidence of any significant progress on the mother's fitness.

We discern no abuse of discretion in the judge's finding that terminating the mother's parental rights served Mia's best interest. Mia has extensive medical needs and has been diagnosed with swallowing issues, speech delay, physical strength delay, sensory issues, and emotional dysregulation in addition to respiratory and gastro-intestinal issues. The judge's detailed factual findings stated that Mia has made substantial improvements since being removed from her mother and placed with the maternal aunt and uncle. She is thriving in the structure and stable routine that they provide and is seen regularly by medical specialists and physical, occupational and speech therapists. Affording “substantial deference” to the trial judge's findings, as we must, Adoption of Nancy, 443 Mass. at 515, we cannot say that the judge “abused his discretion or committed a clear error of law” in concluding that the mother's current unfitness was not likely to be temporary. Adoption of Elena, 446 Mass. at 30. Nor was there any error in determining that the mother's unfitness would not improve in the future. See Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008).

Finally, we will not disturb the judge's conclusion that termination served Mia's best interests. The judge's conclusion that Mia “desperately needs permanency that only termination of Parents’ parental rights can provide her,” is consistent with the Supreme Judicial Court's approach in Care and Protection of Zeb, 489 Mass. at 789, and our approach in Care & Protection of Gaston, 106 Mass. App. Ct. at 459-461, emphasizing a child's unqualified right to permanency and stability. This is not a case like Adoption of Varnell, 106 Mass. App. Ct. at 719, 721-725, where the fourteen year old child actively opposed termination and sought to maintain his inconsistent but apparently beneficial relationship with his father.

Decrees affirmed.

FOOTNOTES

2.   Neither the father nor children have filed an appeal of the decrees.

3.   After investigation, the department screened out the report of abuse.

4.   The department also learned that the mother and Mia tested positive for methamphetamines at Mia's birth and that Mia was not up to date with vaccines and had been living with the mother at a shelter in Manhattan. The mother was not in compliance with New York's service plan and because the mother's whereabouts were unknown, New York authorities were planning to close her case.

5.   The department's plan for Thomas was adoption by his foster parents.

6.   On one occasion in February 2023, the mother cancelled the visit with the children claiming that she had a life-threatening contagious disease and requested that the March 2025 visit be rescheduled. When asked for medical documentation, the mother stated she wanted to reschedule due to a lack of funds.

7.   For the first time on appeal, the mother argues that the judge's ruling requiring her to appear in person at trial violated her constitutional right to due process. Because this constitutional challenge was not raised at trial, it is waived. See Adoption of Ursa, 103 Mass. App. Ct. 558, 570 (2023).

8.   We note that a standing order of the Juvenile Court specifically provides that a hearing on termination of parental rights “shall be held in person,” but a judge may exercise discretion and conduct such a hearing (or portions of such a hearing) virtually in a specific case. Juvenile Court Standing Order 1-22 (III) (A)(2) (2021).

9.   We also take note that, after denying the mother's motion for virtual attendance, the judge instructed the clerk to log into the videoconferencing platform but no one was in attendance.

10.   We agree with the mother, as the trial judge did, that termination of parental rights is not required in a guardianship petition. See Adoption of Gertrude, 99 Mass. App. Ct. 817, 819 (2021), quoting Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008) (noting that “[u]nfitness does not mandate a decree of termination”). And we also agree that, while the trial judge may consider the testimony of the proposed guardian requesting that the mother's parental rights be terminated, such a request standing alone is not dispositive.