ADOPTION OF SOFIA v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother of Sofia appeals from a decree terminating her parental rights with respect to the child. She argues that the Juvenile Court judge erroneously relied on the mother's history of substance use without evidence of a nexus between it and the abuse or neglect of the child. In addition, she argues for the first time on appeal that the judge erred in dismissing the father of the mother's three older children (father 1) from the proceedings after adjudicating the child's genetic father (father 2) as her legal father. We affirm.

Background. We summarize the trial judge's findings of fact, supplemented by the exhibits in evidence, and reserving some details for later discussion. Sofia is the youngest of the mother's four children. The Department of Children and Families (DCF) first became involved with the family in 2016. The mother has struggled with both drug and alcohol use, which has persisted throughout DCF's involvement. Relevant to the instant care and protection proceedings, the mother tested positive for cocaine in May 2023, August 2023, August 2024, November 2024, January 2025, and March 2025. She has also admitted to using heroin and marijuana and has multiple convictions for operating a motor vehicle while under the influence (OUI) of alcohol and “crack” cocaine.

In May 2022, police officers responded to the home that the mother and father 1 shared with their three children (Sofia had not yet been born) and found father 1 unresponsive on the living room floor. Father 1 had overdosed on drugs that the mother brought into the home. The mother and children were present during the overdose. The mother was upstairs sleeping, while the children had seen father 1 unresponsive on the floor.

In June 2022, an adult neighbor informed the police that the mother's then seven year old child was outside, at the edge of a busy road, attempting to flag people down for help. The child reported to the officers that he heard the mother and father 2 “doing things that ‘she and [father 1] used to do.’ ” The officers entered the home to speak with the mother, who emerged from the bathroom wearing a towel, apparently intoxicated. The mother argued with the officers in front of the children and denied that anyone else was in the home. When father 2 emerged from the bathroom, also wearing a towel, the mother told the officers that she had put the children to bed before the adults had sexual intercourse. When a DCF worker responded to the home about two hours later, the worker saw the mother and father 2 having sexual intercourse on the sofa, in view of the opened front door. The mother was too intoxicated to be interviewed. DCF arranged for the children to go to their grandparents’ home, and the grandparents eventually obtained guardianship of the three children. The children were reunified with the mother in October 2022 and stayed in her custody until January 2023; during this time, the mother meaningfully engaged in services and showed stability.

On a night in January 2023, police officers stopped a car the mother was driving because the headlights were not illuminated. The three children were in the back seat, and the mother was approximately seven months pregnant with Sofia. The mother knew her driver's license had been suspended as a result of her second OUI conviction, for which she was on probation, but nonetheless chose to drive because she had no one else to pick up her children. She was arrested for operating with a suspended license and was incarcerated until March 2023 for violating the terms of her probation.

After the mother's release, the three older children returned to her care; shortly thereafter, she gave birth to Sofia. After Sofia's birth, DCF provided the mother with an action plan to assist her in gaining stability. In this plan, among other things, the mother was required to submit to random drug and alcohol screens, engage in therapy, and provide a safe and stable environment for the children. Meanwhile, father 1 began to doubt that Sofia was his biological child.

In April 2023, the mother tested positive for cocaine. On May 31, 2023, she tested positive for cocaine again and a report under G. L. c. 119, § 51A, was filed, prompting DCF to remove all four children from the mother's care and to file, on the following day, the care and protection petition that is the subject of this appeal.

In August 2023, police officers responding to a report of erratic driving found the mother sitting in the driver's seat of a car with the keys in the ignition. She was semiconscious; her eyes were one-half closed, bloodshot, and glassy; her speech was slurred; she smelled of alcohol; and upon conducting a search incident to arrest, the officers found on her person a “crack pipe” with residue. The mother was charged with OUI, her third such offense, and held until March 2024. DCF's goal for the family nonetheless remained reunification.

In September 2023, father 1 took an over-the-counter paternity test, the results of which suggested that he was not Sofia's biological father. The mother named father 2 as the likely father, and DCF began trying to locate him for paternity testing. While incarcerated, the mother participated in programs to address her challenges with substance use, mental health concerns, and ability to make personal changes. At this point, although Sofia was thriving with her first foster family, DCF moved Sofia to a new placement closer to her brothers, where she has remained. In December 2023, the mother stipulated that she was then unfit to care for the four children.

In March 2024, the mother was released from incarceration. The three older children began to transition to father 1's care and were fully transitioned by May 2024. In July 2024, father 1 obtained custody of the three older children, and they were dismissed from the care and protection petition. Because DCF had been unable to locate father 2, father 1 remained Sofia's legal father.

After her March 2024 release until the time of the trial, the mother was unable to maintain stable housing that would have enabled reunification. In fact, in the time between her release from incarceration and the trial, the mother resided at a minimum of four different addresses in Massachusetts, Vermont, and Connecticut. The mother did not take steps to secure an apartment despite having access to resources that provided her with housing support.

From April to August 2024, the mother engaged in some services and participated properly in supervised visits. However, in August 2024, the mother's participation in visits became inconsistent and her long-term sobriety remained a concern. She arrived to visits late, came unprepared, failed to confirm, and behaved inappropriately with the children. Moreover, the mother missed therapy appointments, lost her job, and tested positive for cocaine.

At the end of August 2024, DCF's goal for Sofia changed to adoption, while DCF continued to work concurrently with the mother on the goal of reunification. From September 2024 to January 2025, the mother continued to struggle with sobriety, participation in services, parenting time, and maintaining employment. The judge recognized there had been some improvement from February 2025 to the time of trial, but also noted that DCF did not change the goal back to reunification.

In April 2025, DCF located father 2 and established his parentage. He was adjudicated the legal father of Sofia, and father 1 was removed from the petition. In May 2025, the best interests trial was held. Father 2 stipulated to his unfitness and the termination of his parental rights with an open adoption agreement. The judge determined that the mother was unfit, would remain unfit into the indefinite future, and that termination of her parental rights was in Sofia's best interests.

Discussion. 1. Termination of the mother's parental rights. The mother argues that the judge erred in terminating her parental rights because there was no evidence of a nexus between her history of substance use and the abuse or neglect of the child.

To terminate a parent's rights to raise their child, “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). The inquiry is not whether the parent loves the child or “is a good [parent], let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1988). See Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018). “In ascertaining parental fitness, the judge ‘may consider past conduct to predict future ability and performance.’ ” Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997). “We give substantial deference to the judge's decision to terminate parental rights ‘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 Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Adoption of Ilona, supra.

A parent's substance use “clearly is relevant to a parent's willingness, competence, and availability to provide care, though not necessarily dispositive of the issue.” Care & Protection of Frank, 409 Mass. 492, 494 (1991). To be sure, substance use alone, without “a showing that a [substance]-using parent has been neglectful or abusive in the care of that parent's child,” does not “translate[ ] automatically into legal unfitness to act as a parent.” Adoption of Katharine, 42 Mass. App. Ct. at 34. Where a parent has a “condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction,” however, it is unlikely that the parent, in a reasonable time, will be able “to provide minimally acceptable care of the child.” Adoption of Elena, 446 Mass. 24, 31 (2006), quoting G. L. c. 210, § 3 (c) (xii).

Here, the evidence established a nexus between the mother's substance use and the abuse or neglect of Sofia. In April 2023, less than a month after Sofia was born, the mother tested positive for cocaine after a random supervised drug screen. DCF worked with the mother to prevent the children from being removed from her care, but she did not adhere to the action plans. In May 2023, the mother tested positive for cocaine again. Following the second positive test, DCF removed Sofia and her siblings from the mother's care.

After the children's removal, the mother's struggles with substance use continued. In August 2023, officers found the mother sitting in the driver's seat of a car with the keys in the ignition, under the influence of alcohol and cocaine. As a result, the officers arrested her for OUI and operating with a suspended license, among other crimes. This was her third OUI offense, and it resulted in her being jailed and held until March 2024. Although while incarcerated and for a few months after her release the mother participated in programs prescribed by her action plan, maintained her sobriety, and participated in supervised parenting visits, in August 2024, the positive strides stopped.

The judge highlighted concerns regarding the mother's long-term inability to maintain sobriety and its negative effects on her efforts at reunification with Sofia. For example, in late August 2024 the mother revoked the release for DCF to obtain her drug screen results. She promised to deliver the monthly results herself, but did not do so, until one day before the scheduled foster care review in February 2025. Notably, in the records she provided, the mother removed those showing positive results and did not disclose any relapses.

Though the mother's brief focuses only on her history of drug use, she also has a long history of alcohol use that the judge found to contribute to her unfitness. For example, in June 2022, officers responded to the home because one of the children was on the side of a busy road crying for help while the mother was intoxicated and having sexual intercourse with father 2 in the bathroom. When DCF interviewed the mother's three older children in June 2023, one disclosed that he took sips of his mother's alcohol and identified the spot under the couch where she hid “nips.” The mother's struggle with alcohol use was further illustrated by her numerous OUI convictions, making her unavailable as a parent and potentially endangering her children and others.

Moreover, the mother failed to meaningfully and consistently engage with services to address her challenges with substance use, unless she was incarcerated. A parent's unwillingness to engage in treatment is also an important consideration where substance use inhibits the parent's ability to provide the child with minimally acceptable care. See Adoption of Luc, 484 Mass. 139, 147 (2020); Adoption of Elena, 446 Mass. at 33-34.

After being released from incarceration in 2023 and 2024, the mother agreed to engage in various programs -- to gain domestic violence education and address her substance use and mental health concerns -- but she participated only sporadically and failed to make meaningful progress. Additionally, over the course of the years after her release, the mother violated the terms of her probation numerous times and failed to show that she was taking meaningful steps toward reunification. The mother continuously denied her substance use and testified that she did not need assistance to address it. The trial judge did not credit this testimony. The evidence was sufficient to establish a nexus between the mother's history of substance use and how it might lead to abuse or neglect of Sofia.

Finally, the mother's substance use was not the only evidence of unfitness that the judge relied on. The judge found, “Mother's pattern of treatment, relapse, instability, unaccountability, lack of candor, incarceration, domestic violence, and homelessness provide clear direction to the court as it relates to Mother's future ability to become fit.” Record evidence supports the judge's findings concerning the mother's housing and employment instability; her lack of candor and accountability; history of domestic violence, as both a perpetrator and victim; and history of incarceration. Though individually these factors are not determinative, they all can be considered in assessing parental fitness, and taken together, demonstrate that the mother was unfit. See Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020) (lack of stable home environment relevant to parental fitness); Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581 (2021) (mother's self-reported “bouncing [from] home to home” relevant to her fitness); Adoption of Linus, 73 Mass. App. Ct. 815, 821 (2009) (poverty or unstable housing cannot serve as sole basis for children's removal).

The judge found and the record supports, by clear and convincing evidence, that the mother was unfit to care for Sofia and would continue to be so. The mother had failed over many years, with all four children, to maintain her sobriety, consistently engage in services, or provide stable housing. “In these circumstances, where the [mother] has had ample opportunity to achieve fitness as a parent but has failed to follow through, it is only fair to the children to say, at some point, ‘enough.’ ” Adoption of Nancy, 443 Mass. 512, 517 (2005). The judge's conclusion was further justified by the strong bond Sofia shared with her preadoptive parents, with whom she had resided since September 2023. See Adoption of Daniel, 58 Mass. App. Ct. 195, 202-203 (2003) (child's attachment to foster family, while not dispositive, may be considered).

Accordingly, we discern no error of law or abuse of discretion in the judge's decision to terminate the mother's parental rights to Sofia.

2. Recognition of legal father. The mother argues that the trial judge's failure to recognize father 1 as the child's legal father, and to dismiss him from the proceedings after adjudicating father 2 as the child's legal father, left the court without evidence necessary to properly assess the child's best interests. Because the mother did not raise this claim at any time in the Juvenile Court, it is waived.

It is a fundamental rule of appellate practice that a party who did not raise an issue in the trial court is “barred from raising it on appeal.” Adoption of Mattis, 106 Mass. App. Ct. 548, 549 (2026), quoting Boss v. Leverett, 484 Mass. 553, 562 (2020). Presenting an issue in the trial court in the first instance puts all parties and the judge on notice, allows for the creation and preservation of a factual record, and permits the trial judge to consider the issue and provide relief, if appropriate. See Adoption of Mattis, supra. As with reasonable efforts arguments, the mother's failure to raise the issue of father 1's status at the earliest opportunity prevented the trial judge from taking action on the issue in a timely manner, if it had been meritorious; addressing it at this late date would merely delay the possibility of permanence for the child. See id. at 550-551.

In any event, the claim is not supported by the law or the facts. The one year statute of repose set forth in G. L. c. 209C, § 11 (a), discussed in A.D. v. K.S., 495 Mass. 727, 731-734 (2025), has no application here. The period of repose is not triggered by the presence of a name on the birth certificate; it is the legal consequence of signing a written voluntary acknowledgement of parentage (VAP). See A.D., supra at 732. To be valid, a VAP must have the notarized signatures of both the person who gave birth to the child and “either an alleged genetic parent, presumed parent or intended parent.” G. L. c. 209C, § 5 (b). Nothing in the record would support findings that father 1 was a “presumed parent,”² an “intended parent,”³ or ever signed a VAP with respect to the child, id. -factual issues that might have been developed had the mother timely opposed dismissing father 1 from the case.

Furthermore, the mother's suggestion that the trial judge ignored the child's interest in maintaining relationships with her siblings is unfounded. With respect to Sofia's best interests, the judge found that her preadoptive parents are on good terms with father 1 and provide for regular contact between Sofia and her older siblings. The judge entered a specific order providing for monthly sibling visits, at the least. The mother's claims with respect to father 1 are both waived and without merit.

Decree affirmed.

FOOTNOTES

2.   There was no evidence that any of the requirements listed in G. L. c. 209C, § 6, applied.

3.   Likewise, there was no evidence that father 1 “manifest[ed] an intent to be legally bound as a parent of a child resulting from assisted reproduction.” G. L. c. 209C, § 1A (defining “[i]ntended parent”).