Background
Alison and Colton — pseudonyms used throughout the opinion — were born in June 2019 and January 2021, respectively, to a mother with a long history of substance use disorder (heroin addiction beginning at age twelve, managed since 2018 with Suboxone), domestic violence, housing instability, and mental health conditions including PTSD, anxiety, and bipolar disorder. The Department of Children and Families (DCF) became involved before Colton was born; when he was eight days old he was diagnosed with a skull fracture and a G. L. c. 119, § 51B investigation supported physical abuse allegations against both parents. After a period of conditional custody arrangements that both parents repeatedly violated — continuing a mutually violent, bilaterally restrained relationship through trips to Las Vegas partially funded by DCF housing assistance, covert cohabitation, and arguing in front of the children — DCF was awarded temporary custody in November 2021 and the children entered a preadoptive kinship foster home the following month with a great-uncle and his partner. By trial, both children were thriving there: Alison was in school, therapy, and swim and dance classes; Colton had completed early intervention.
In May 2023, the mother stipulated to her current parental unfitness and the children were committed to DCF’s permanent custody. A termination-of-parental-rights trial before Juvenile Court Judge O’Sullivan Smith ran from June through October 2024. By that time, the mother had made genuine strides: sobriety from heroin since 2018; extraction from the abusive relationship with the father and a 209A order against him obtained in January 2023 (which he later violated and was arrested for); stable housing in Providence secured in September 2023 with the help of a community outreach worker; weekly therapy beginning August 2023; and consistent, generally positive visits with the children throughout. Nevertheless, recurring concerns persisted into and during trial: alcohol and codeine positive screens in January 2024, missed home visits and trial dates (including a trip to Florida during the proceedings), continued monitoring of the father’s social media while claiming no contact, and the mother’s own trial testimony that she would need at least six more months before she could parent the children full-time.
The Court’s Holding
Decrees affirmed (2-1). Judge Hershfang’s majority opinion, joined by Judge Singh, upheld both the termination decrees and the decision not to order post-termination visitation. On the termination question, the court applied the familiar two-part test: the judge must find by clear and convincing evidence that the parent is currently unfit and that the unfitness is not temporary. The majority acknowledged the mother’s laudable progress but held that the trial judge — who observed the proceedings and assessed witness credibility — was entitled to weigh that progress against a pattern of evasion, denial, and recurring behavior echoing earlier failures. A judge is permitted to consider a parent’s recent improvements “within the context of her earlier and continuing deficits,” the panel wrote, quoting Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012). The mother’s own testimony that she still needed six more months after five years of DCF services supported the conclusion that fitness was not imminent: “the court must say, ‘Enough,’ and act in the children’s best interests,” quoting Adoption of Inez, 428 Mass. 717, 724 (1999).
On post-termination visitation, the court found no abuse of discretion. The trial judge credited evidence that the children were happy at visits and had fun with their mother, but also found that both children struggled behaviorally for days afterward and were confused by statements the mother made about “going home.” The preadoptive parents expressed willingness to facilitate contact on their own terms, contingent on the mother’s sobriety and mental health stability; a formal court order was not necessary to protect the children’s interests.
Dissent (Wood, J.). Judge Wood agreed the mother was currently unfit at trial but dissented from the finding that her unfitness was likely to continue indefinitely. The dissent catalogued genuine progress across four areas — substance use, domestic violence, housing and finances, and psychiatric care — and argued that an undeniable upward trajectory over eighteen months before trial constituted the sort of significant progress that this court held, in Adoption of Arianne, 104 Mass. App. Ct. 716 (2024), precludes a finding of permanent unfitness. The dissent further argued that the mother’s progress was more consistent than the mother’s in Arianne, and that the trial judge’s finding of likely indefinite unfitness was not supported by clear and convincing evidence.
Key Takeaways
- A trial judge terminating parental rights may properly weigh a parent’s history of domestic violence, substance use, and evasion alongside recent improvements; history “has prognostic value” and does not lose relevance simply because the parent has made sincere progress. The standard of review is substantial deference to the trial judge’s credibility determinations and weighing of the fourteen statutory factors under G. L. c. 210, § 3(c).
- A parent’s self-assessment at trial that she needs additional time to care for her children full-time — after years of DCF services aimed at precisely that goal — is itself evidence that the unfitness is not temporary.
- Post-termination visitation orders are required only when necessary to protect the child’s best interests. Where preadoptive parents voluntarily commit to facilitate contact contingent on the parent’s sobriety and stability, a court order may be unnecessary.
- The dissent in Adoption of Colton signals continued tension within the Appeals Court over Adoption of Arianne’s reach: when a mother has made significant, sustained progress across all areas of concern over the eighteen months before trial, does the record support the “full, clear, and decisive” proof of permanent unfitness that Massachusetts law requires? Parents’ counsel should build a pre-trial record that documents not only progress but an accelerating, sustained trajectory addressing the specific reasons for removal.
Why It Matters
Adoption of Colton is notable both for its outcome and for the strength of the dissent. For DCF, family law judges, and child welfare practitioners, the majority confirms that a parent’s stipulation to current unfitness followed by substantial but incomplete progress does not foreclose termination, particularly where the parent’s own trial testimony concedes she is not yet ready to parent full-time. The decision reinforces the breadth of appellate deference to a trial judge who has presided over a lengthy evidentiary proceeding and evaluated credibility firsthand.
For parents’ attorneys, Judge Wood’s dissent is a practical road map. It applies Adoption of Arianne to argue that significant progress in every area of concern over the final eighteen months before trial should preclude a finding of permanent unfitness under the clear-and-convincing standard — and it invokes the SJC’s reminder in Adoption of Carlos, 413 Mass. 339 (1992), that termination of the parent-child relationship is an “extreme step” that cannot be ordered simply because the parent is currently unfit. Counsel representing parents in Massachusetts TPR proceedings should document sustained, accelerating improvement in the specific areas of concern that led to removal, and should introduce evidence that addresses each of the fourteen statutory factors — particularly any nexus (or lack thereof) between diagnosed mental health conditions and the parent’s actual capacity to care for the children.