Background
Harper was born in December 2022 testing positive for fentanyl. Her mother had refused prenatal drug screenings during the pregnancy because she “knew [she] was most likely going to fail” and had tested positive for opiates and marijuana at her initial prenatal appointment. As a newborn, Harper experienced withdrawal symptoms severe enough to require an extended hospital stay and multiple morphine treatments. The Department of Children and Families (DCF) obtained temporary custody shortly after birth and placed Harper with her maternal grandmother, where she remained throughout the proceedings.
Over the next two years, the mother engaged with some services but never consistently or meaningfully. She entered detox twice but left both programs early. She completed intensive outpatient treatment and a home-based program yet could not articulate what she had learned. Crucially, she refused all court-ordered drug screenings for the entire pendency of the case, saying she was “scared” without elaborating. Family members and the department repeatedly observed her appearing impaired during visits with Harper — nodding off, slurring speech, and on one occasion being found unresponsive by her own mother who feared she had overdosed. At trial in September 2024, the mother conceded her current unfitness and admitted she had used oxycodone throughout the case, announcing a self-declared “sober date” of August 29, 2024 — one week before trial. The judge entered decrees terminating both parents’ parental rights in November 2024, committing Harper to the permanent custody of her maternal grandmother.
The mother appealed on a narrow ground: she argued the evidence was insufficient to support the finding that her unfitness was not merely temporary. Under G. L. c. 119, § 26, and G. L. c. 210, § 3, termination requires clear and convincing evidence both that a parent is currently unfit and that the unfitness is not temporary — meaning it is “reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, 459 Mass. 53, 59–60 (2011).
The Court’s Holding
Affirmed. The Appeals Court began by noting that the mother conceded current unfitness, leaving only the temporariness question. The mother argued that DCF had not established a sufficient nexus between her substance use and a forward-looking risk to Harper, relying on Adoption of Katharine, 42 Mass. App. Ct. 25, 34 (1997), for the proposition that substance misuse disorder does not “translate[] automatically into legal unfitness to act as a parent” without evidence of actual neglect or abuse in the parent’s care of the child.
The court was unpersuaded. The trial judge’s findings of non-temporariness rested not on continued drug use alone but on a compound failure: the mother (1) failed to “take[] her substance abuse seriously,” (2) “continue[d] to minimize her history [of substance abuse],” and (3) “ha[d] not benefited from the select few services to which she engaged.” See Adoption of Ilona, 459 Mass. at 59–60; Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019). Critically, the judge’s finding that the mother appeared impaired during supervised visits with Harper — including slurred speech, drooping eyes, and apparent unresponsiveness — directly undercut the claim of no foreseeable risk. The court also noted that the mother’s last-minute sobriety claim, announced days before trial after two years of active drug use and denial, provided little basis for confidence. See Adoption of Ilona, 459 Mass. at 59 (judge’s conclusion that unfitness is temporary must not rest on a “faint hope”).
Key Takeaways
- A parent who concedes current unfitness at trial can still argue on appeal that unfitness is temporary, but the court will look to whether the parent has meaningfully engaged with — and actually benefited from — DCF’s service plan. Partial engagement that produces no demonstrated change weighs in favor of non-temporariness.
- Substance abuse alone is not automatic unfitness under G. L. c. 210, § 3. The department must connect the abuse to actual harm or foreseeable risk to the child. Here, the mother’s impaired appearances during supervised visits supplied that connection.
- Refusal to submit to court-ordered drug screenings is itself evidence relevant to unfitness — it is evidence of both likely continued use and non-engagement with the case plan, independent of what the screenings might have shown.
- A last-minute sobriety declaration made one week before trial carries little weight when the entire case history reflects active drug use, denial, and service resistance. Judges may discount such claims without abusing their discretion.
- Appellate review of termination findings is highly deferential: the panel reverses only for clear error or abuse of discretion. Where the trial record is developed, reversal is rare.
Why It Matters
Adoption of Harper illustrates the kind of factual record that supports a non-temporary unfitness finding in a DCF termination case built on parental substance abuse. The outcome did not turn solely on the mother’s inability to achieve sobriety — Massachusetts courts have made clear that sobriety alone is not the test. What moved the needle was the accumulated evidence of denial, non-engagement with services, failure to benefit from treatment, and impaired presence during the child’s supervised visits. Practitioners on both sides of these cases should pay close attention to the service-engagement record: parents’ counsel must begin building a genuine engagement narrative early in the case, because a last-minute change of direction before trial will not be sufficient to demonstrate temporariness.
The decision also serves as a reminder that the “nexus” requirement from Adoption of Katharine — that substance misuse must be connected to actual or foreseeable child-care failures, not merely established as a fact — is not an insurmountable barrier once the department documents impaired parenting conduct during supervised visits. DCF counsel should make a point of having social workers observe and record the parent’s physical presentation at visits, not just the quality of the parent-child interaction.