NY CHILD SUPPORT - PENDENTE LITE PAYMENTS SUSPENDED DUE TO FAMILY ESTRANGEMENT ISSUES

Rosenfeld v. Rosenfeld, 2026 NY Slip Op 4048 - NY: Appellate Div., 1st Dept. 2026:

"Defendant appeals from an order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance.

Since at least 1971, the Court of Appeals and this Court have approved orders suspending child support in appropriate but rare cases. The doctrine permitting suspension of a child support obligation based on constructive emancipation (see Matter of Roe v. Doe, 29 NY2d 188, 192-193 [1971]) or unjustifiable interference with visitation rights (see Feuer v. Feuer, 50 AD2d 772, 773 [1st Dept 1975]; Callender v. Callender, 37 AD2d 360, 362 [1st Dept 1971]) developed through case law. The development of that doctrine pre-dates the enactment of Domestic Relations Law § 241 in 1978 (L 1978, ch 232), which permits suspension of maintenance based on visitation interference. In doing so, Domestic Relations Law § 241 codified a principle as to maintenance that had already been developed in case law with regard to child support.^[1]

A parent has a legal duty to support their child until the child is 21, regardless of the existence of a child support order (Domestic Relations Law § 240[1-b][b][2]; Family Ct Act § 413[1][a]; see also Roe, 29 NY2d at 192-193 ["It has always been, and remains a matter of fundamental policy within this State, that a (parent) of a minor child is chargeable with the discipline and support of that child"]). Even after the enactment of Domestic Relations Law § 241, courts have determined whether to suspend a parent's child support obligation based solely on judge-made law (see Usack v. Usack, 17 AD3d 736 [3d Dept 2005]; Matter of Smith v. Bombard, 294 AD2d 673 [2d Dept 2002], lv denied 98 NY2d 609 [2002]).

In this case, in an order dated December 27, 2021, issued more than two years before the order on appeal, Supreme Court decided custody and the mother's motion for pendente lite support. Based on clear and convincing evidence presented at the 35-day custody trial, the court determined that the mother had deliberately and actively alienated the child from the father in "one of the most clear-cut and disturbing examples of parental alienation that this court has observed through thousands of custody cases over many years." Accordingly, the court reasonably determined that this is one of the unfortunate and rare situations where suspension of the noncustodial parent's child support obligation was warranted. Specifically, the court decided the pendente lite motion by directing the father to pay 90% of the child's unreimbursed medical and mental health expenses and otherwise suspended the father's child support obligation until the child's visitation with the father was "meaningfully resumed" or "there is otherwise good cause to resume the support" (see Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]).

The custody order contained detailed provisions intended to assist the parties in repairing the relationship between the father and child as a component of the parenting time plan, including requiring the mother to work with a parenting coach through December 2023, attend family therapy, and complete intake with the Building Family Resilience program. The court's pendente lite order was also based on the father's statement that he loves the child and would "continue to pay for 100% of her private school expenses, multiple extra-curricular activities, day camps and medical care without interruption . . . ., with or without a court order," and the mother's concession that he had done so. In reaching its decision, the court also considered that the mother has considerable assets of her own, including both separate property and equitable distribution received pursuant to the parties' prenuptial agreement. Critically, the mother did not appeal from the 2021 order.

The order now appealed from denied the mother's subsequent motion for an award of pendente lite child support based on her claim that she had complied with the 2021 order and that the father now had meaningful parenting time with the child. The motion court noted that this was essentially a motion to modify the earlier pendente lite award. However, the mother failed to present any facts establishing either good cause or that visitation had meaningfully resumed, as required by the prior order, from which she never appealed. Nor did she demonstrate exigent circumstances requiring modification of the earlier pendente lite award (see Anonymous v. Anonymous, 167 AD3d 527, 527 [1st Dept 2018]).^[2]

Indeed, the mother's submissions either admitted or did not deny the following assertions in the father's affidavit: (1) as of June 22, 2023, the mother still had not bothered to read the court's December 27, 2021 order, which set out specific directives for the mother to follow to help repair the relationship between the father and the parties' child; (2) in early 2022, she fired the parenting coach, even though the December 27, 2021 order had directed her to work with a parenting coach through December 2023; (3) she continued to deny to the family therapist that she had alienated the child, despite the court's finding that she had and its direction that she participate in family therapy; (4) she canceled the father's parenting time for the child's spring break in 2022; (5) she told the child she could attend a friend's bar mitzvah instead of going on one of two scheduled four-day visits with the father during summer 2022; (6) she took the child to California when the child was scheduled to spend her birthday with the father in April 2023; (7) approximately one month after she made the instant motion, despite the fact that the parties have joint legal custody, she unilaterally extended the child's sleepaway camp stay and canceled the father's summer parenting time; and (8) as of August 2023, the father and child had only one of their scheduled alternate weekend overnight visits since 2022.

Accordingly, we disagree with the dissent that the record does not support a finding that the mother continued to interfere with the father's relationship and parenting time with the child.^[3] Indeed, some of the mother's actions directly violated the 2021 order. Therefore, the court appropriately exercised its discretion in determining that the record before it did not demonstrate that visitation between the child and the father had "meaningfully resumed."

As the motion court found, the child's reasonable and appropriate needs are being met (see Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspension of child support appropriate, pending custodial parent's demonstration of good faith effort to assist in therapeutic process needed to reunite noncustodial parent with children, where there was no evidence of risk to the children becoming public charges]; Usack, 17 AD3d at 739-740 [same]). It is undisputed that the mother and child continue to reside in a 1,500 square foot luxury apartment with views of Central Park and that the father continues to pay all of the child's expenses for private school, extracurricular activities and tutoring, in addition to 90% of her unreimbursed medical and mental health expenses.

The dissent relies primarily on Domestic Relations Law § 241. However, neither the order now on appeal, nor the 2021 decision suspending the father's obligation to pay child support because the mother had "unequivocally been alienating the child" relies on, or even mentions, Domestic Relations Law § 241.^[4]

Finally, the best remedy for a perceived inequity in a pendente lite award is a speedy trial. Accordingly, we need not modify a pendente lite award where, as here, the party seeking modification has not shown exigent circumstances (Anonymous, 167 AD3d at 527).

Under these circumstances, Supreme Court did not improvidently exercise its discretion in determining that the mother's efforts to comply with the terms of the 2021 order did not result in the child having regular visitation with the father as set forth in that order, and that there was not otherwise good cause to modify the 2021 order as to pendente lite child support.

Accordingly, the order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, should be affirmed, without costs.

All concur except Michael, J. who dissents in an opinion.

MICHAEL, J. (Dissenting).

The court failed to provide a sufficient basis to deny defendant mother's request for pendente lite child support and therefore, I respectfully dissent. The court did not make the requisite finding pursuant to Domestic Relations Law § 241 and relevant case law that the mother has continued to deliberately frustrate or actively interfere with plaintiff father's visitation rights to support denial of the mother's motion for temporary child support or to consider whether there is otherwise good cause to grant support. Accordingly, I would reverse and remand for further proceedings as discussed below.

I.

Domestic Relations Law § 241 provides in pertinent part:

When it appears to the satisfaction of the court that a custodial parent receiving alimony or maintenance pursuant to an order. . . has wrongfully interfered with or withheld visitation rights provided by such order . . . the court, in its discretion, may suspend such payments or cancel any arrears that may have accrued during the time that visitation rights have been or are being interfered with or withheld.^[5]

The statute expressly permits the court to suspend maintenance payments without reference to suspension of child support payments, and for good reason. Suspension of spousal maintenance as opposed to child support penalizes the parent while avoiding potentially harming the child for the parent's misconduct (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["Suspension (of child support) harms the guilty parent and may or may not induce her to ameliorate the alienation, but unfortunately also harms her innocent children"]; Usack v. Usack, 17 AD3d 736, 739 [3d Dept 2005] [referring to alteration of child support obligations due to visitation interference as an "imperfect remedy"]).

Yet whether the Legislature intentionally omitted child support from the statute is unclear. The statute's legislative history provides no insight on this issue (see Hudson v. Hudson, 97 Misc 2d 558, 561 [Sup Ct, NY County 1978] ["Insofar as extrinsic aids to interpretation (of Domestic Relations Law § 241) are concerned such as a legislative memorandum, the memorandum by the legislative sponsor of the bill and other documents that the court has obtained, the court finds no guidance"]). Nor do the majority's pre-enactment case citations from the 1970's provide clear insight into the Legislature's intent. The statute "may have been intended to codify the existing case law as to both child support and alimony. In fact however the Legislature codified `half a loaf' and it is not clear as to whether it actually intended that the `half a loaf' be alimony" (id.).

In the absence of a clear restriction, it has become accepted practice through precedent and application of the statute, that "a noncustodial parent may affirmatively move the court for an order suspending spousal or child support payments where the custodial parent has wrongfully interfered with visitation" (Alan D. Scheinkman, Prac Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 241; see e.g. Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["a court may suspend child support payments for a period where the custodial parent (has) wrongfully interfered with or withheld visitation"] [internal quotation marks omitted], citing Domestic Relations Law § 241, lv denied 34 NY3d 906 [2019]; Matter of Luke v. Luke, 90 AD3d 1179, 1182 [3d Dept 2011] [same]; Matter of Lew v. Sobel, 91 AD3d 648, 648 [2d Dept 2012] [father's motion to hold support payments in escrow granted "(i)n light of the father's showing . . . that the mother continued to deliberately interfere with his visitation rights"] [citing Domestic Relations Law § 241]).

To suspend support, the guilty parent's conduct must rise to the level of "deliberate frustration [of] or active interference" with the other parent's visitation rights (see Zinger v. Robertson, 217 AD3d 471, 471 [1st Dept 2023]; Matter of Harry T. v. Lana K., 156 AD3d 511, 512 [1st Dept 2017]; Rodman, 112 AD3d at 537). To that end, the court's discretion to suspend or withhold payments lasts only so long as there remains such wrongful interference (see Domestic Relations Law § 241; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007]; Gade v. Gade, 99 AD2d 796, 796 [2d Dept 1984]). Accordingly, courts have suspended support "pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children" (Matter of Dobies v. Brefka, 83 AD3d 1148, 1153 [3d Dept 2011]; see also Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspending the wife's child support obligation "pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtably needed to reunite the wife with the children"]; Lew, 46 AD3d at 895 [directing the father's child support payments to be held in escrow until "the mother can certify, to the satisfaction of the Supreme Court . . . the absence of her interference with the father's visitation rights"]; Usack, 17 AD3d at 740 [suspending the mother's support obligation "pending further court order upon a showing that (the father) has made good faith efforts to actively encourage and restore (the mother's) relationship with the children"]).

II.

On December 27, 2021, the court denied the mother's request for pendente lite maintenance and child support based upon her financial circumstances and severe alienation. The court also denied the mother's request to order the father to pay the child's add-on expenses, except for unreimbursed medical expenses. Two and a half years later, on June 27, 2024, the court's order on appeal again denied temporary child support to the mother in response to her second child support motion.

In its 2024 decision, the court failed to consider whether the mother continued to severely alienate the child during the intervening 2 ½ year period between the 2021 and 2024 decisions to justify continued denial of support (see Rodman, 112 AD3d at 537 [suspension of child support payments warranted where "alienation has continued unabated and (the mother's) conduct remains unchanged" (internal quotation marks omitted)]; Lew, 91 AD3d at 648 [child support held in escrow because "the mother continued to deliberately interfere with his visitation rights"]). Specifically, the court did not determine whether the mother continued to actively interfere or deliberately frustrate the father's visitation rights, despite evidence presented by the mother that since the 2021 order, she met with a parenting coach multiple times and retained a parenting coach at the time of the court's June 2024 oral decision, participated in a family therapy program, and made efforts to coordinate visitation with the father (though I decline to comment on the sufficiency of this evidence).

On June 10, 2024, the court stated on the record that "even if the mother, even if, I focus on the `if' and it may well be just an `if,' the mother is not alienating the child from the father, but is, in fact, seeking to repair the relationship with the father. . . the reason for [the father-child relationship] still remains the alienating conduct that had occurred by the mother set forth in detail in [t]he Court's decision and order from a few years back." The court further stated that it "has monitored and . . . recognizes, it's certainly my belief without making explicit findings, that both parties have made different efforts toward repairing the relationship between the father and the child." Nevertheless, the court held that given that the father does not have a reasonable relationship with the child based upon the mother's prior conduct, "[it is] not appropriate to order the father to pay any child support of any kind other than voluntarily."

In its written decision dated June 27, 2024, the court reiterated that "even if each parent is making some effort . . . the effect remains not in controversy: the child remains alienated from her father. Whether [the mother] has made minimal or greater than minimal efforts at un-alienating the parties' daughter from [the father] is not the question, as it remains the case (indeed, the law of the case, post-trial) that [the mother] alienated the child from [the father]" (emphasis added). The court noted that the mother was "apparently" somewhat trying but that her "apparent[ ]" actions are too late.

In short, the court treated the mother's motion as "in essence, a reconsideration of the Court's December 27, 2021 Decision After Trial" and based its decision on whether to continue to deny child support on the mother's previous actions and their continued effects. The court not only failed to consider whether the mother continued to actively interfere with visitation but also failed to sufficiently consider its own prior directives in the 2021 order, including its denial of pendente lite child support until "there is otherwise good cause to resume the support."

The majority holds that the record supports a finding that the mother continued to interfere with the father's visitation sufficient to deny the mother's child support motion. The majority even makes factual findings that the mother violated the 2021 order. It is premature for this Court to make those determinations when there has been no hearing on visitation interference since the 2021 order, and when the motion court not only made no such findings^[6] in the order on appeal but specifically expressed an unwillingness to make factual findings. The court stated on the record that it recognized "without making explicit findings . . . both parties have made different efforts toward repairing the relationship between the father and the child." It instead denied support "even if each parent is making some effort," upon the belief that its prior alienation finding was "law of the case" (emphasis added).

Under the plain language of the order, the mother could never obtain pendente lite support since the order binds her during the pendency of the action to the findings of the 2021 order despite any meaningful efforts on her part to repair the relationship between the father and the child. This is an unfortunate reality given that this matter has been pending for years and may continue to span a considerable length of time.

The father emphasizes the court's finding that his relationship with the child may never be repaired. However, if the lingering effects of past alienation, as opposed to the custodial parent's present conduct, are determinative, then the noncustodial parent could gain a financial windfall by not having to pay support despite good faith efforts by the custodial parent to encourage visitation. It would also negate the purpose of the statute by making the custodial parent's efforts postjudgment or order irrelevant.

Finally, the fact that the mother allegedly has access to significant assets and that the child is not in danger of becoming indigent is not dispositive (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["children may be significantly harmed through the withdrawal of support, even in the absence of indigency sufficiently severe to trigger public assistance eligibility"). The purpose of temporary child support is to not only ensure the child's reasonable needs are met but to maintain the status quo to provide children with a sense of continuity while the action is pending (see Anonymous v. Anonymous, 63 AD3d 493, 498 [1st Dept 2009], appeal dismissed 13 NY3d 921 [2010]; Kaufman v. Kaufman, 131 AD3d 939, 944 [2d Dept 2015]). The mother alleges that the father's net worth has ranged from $68 million to more than $90 million, while it is undisputed that she is a stay-at-home mother receiving financial assistance from her father to care for herself and the child. While the mother and child are by no means destitute, the mother alleges that she relied on the child's father for support during the marriage and without that support, the child's lifestyle while in the mother's care is substantially different than when the parties resided together during the marriage.

The majority notes that the father continues to voluntarily pay for the child's private school expenses which, if true, is certainly commendable, but the mother remains responsible for the child's other myriad necessities, including housing, utilities, school supplies, extracurricular activities, clothing, transportation costs, and other expenses. Certainly, where the mother relied on the father for support during the marriage, there can be no dispute that the denial of child support to the mother pending this litigation contravenes the status quo.

III.

In sum, I disagree with the majority's finding that Supreme Court providently exercised its discretion in denying support upon determining that the mother's efforts failed to result in regular visitation between the father and child. Under the circumstances of this case, including the passage of time since the 2021 order, the substantial disparity in the parties' financial circumstances, and the evidence in the record that the mother has made efforts to comply with the court's 2021 directives and to repair the father-child relationship, the court did not make sufficient findings to continue to deny support. The court should have considered, among other things, whether the mother is presently frustrating or actively interfering with the father's visitation rights to continue its order of suspension, and it failed to do so.

The majority is correct that speedy trials can remedy a perceived inequity in a pendente lite award. However, in the absence of a speedy trial — a common occurrence in matrimonial actions, as this years-long case demonstrates — the best remedy for inequity is the equitable application of the appropriate legal analysis. Accordingly, I would reverse and remand for a determination and consideration of an appropriate award of pendente lite child support if the court finds the high bar under Domestic Relations Law § 241 and applicable case law (see Cervera v. Bressler, 90 AD3d 803, 807 [2d Dept 2011], lv denied 19 NY3d 809 [2012]) has not been met, or upon good cause shown in accordance with the court's 2021 order.

Order, Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, affirmed.

All concur except Michael, J. who dissents in an opinion.

[1] In 1986, Domestic Relations Law § 241 was amended in connection with the enactment of the New York State Support Enforcement Act of 1986 (L 1986, ch 892) to clarify that "interference with visitation rights is not a ground for the cancellation of child support arrears. . . although such interference may provide a basis for the prospective suspension of child support" (Doyle v. Doyle, 198 AD2d 256, 257 [2d Dept 1993]; see also Ledgin v. Ledgin, 36 AD3d 669, 670 [2d Dept 2007]). This amendment is consistent with the prohibition on reduction or cancellation of child support arrears, which is not at issue in this appeal (see Domestic Relations Law § 236[B][9][b]; Family Court Act §§ 451; 460[1]; Matter of Dox v. Tynon, 90 NY2d 166, 170 [1997]).

[2] We disagree with the dissent that the motion court failed to consider whether the mother had complied with the 2021 order, whether she continued to actively alienate the child from the father, and whether she demonstrated good cause to modify the 2021 order's pendente lite child support determination. The motion court found that the child remained alienated from her father; that the mother had made either "minimal" or "greater than minimal" efforts that were insufficient to remedy the harm she had caused; that the child's reasonable and appropriate needs are being met; and that there was "no factual or legal basis" on which to grant the mother's motion.

[3] The dissent disapproves of our review of the factual record. However, we are permitted to review both facts and law (CPLR 5501[c]). The mother's failure to deny the father's assertions about her failure to comply with the 2021 order, despite the opportunity to do so, are properly deemed admissions (see Matter of Miguel S., 140 AD2d 202, 204 [1st Dept 1988]). Moreover, to the extent that the dissent relies on the motion court's decision to deny the father's cross-motion for contempt, that cross-motion is not included in the record. That the court granted the cross-motion solely to the extent of directing that the parties ensure that the child does not leave her cell phone at the mother's home and that the mother is not to communicate with the child during the father's parenting time except in emergency does not constitute a finding that the mother complied with all of the directives in the 2021 order.

[4] Nor does this Court's citation to Domestic Relations Law § 241 in Rodman (112 AD3d at 537) support the dissent's assertion that the statute is applicable to this case beyond its prohibition on cancellation of child support arrears. Indeed, the citation to the statute in Rodman is preceded by a citation to Ledgin (36 AD3d at 670), which held that interference with visitation "is not a ground for the cancellation of child support arrears." Similarly, each of the other, noncontrolling cases cited by the dissent expressly cites Domestic Relations Law § 241 for the proposition that child support may be suspended only prospectively (Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["the suspension must be prospective"]; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007][frustration of visitation "can warrant the suspension of future child support"]).

[5] The majority notes that neither relevant Supreme Court order in this case explicitly referenced nor relied on Domestic Relations Law § 241, but as discussed below, the court based the order on appeal upon its prior 2021 decision, which relied upon case law applying Domestic Relations Law § 241 (see e.g. Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]). In any event, the absence of an explicit reference to the relevant Domestic Relations Law statute does not negate its direct application to the circumstances here nor limit our consideration of the statute and the parties' related arguments on appeal (see Nuevo El Barrio RehabilitaciOacute;n de Vivienda y EconomÍa, Inc. v. Moreight Realty Corp., 87 AD3d 465, 466 [1st Dept 2011]).

[6] To the contrary, the court's June 2024 oral and written decisions denied the father's application to hold the mother in contempt."

MA CHILD WELFARE - NEW RULES ON SCHOOL CRA FILINGS, ETC.

This summary is from Committee for Public Counsel Services, 75 Federal Street 6th Floor, Boston, MA 02110:

"On August 7, 2026, Governor Healey signed H. 5629, An Act Enhancing Child Welfare Protections.  You can find the session law here: Chapter 179 of the Acts of 2026.  Most of the provisions go into effect November 5, 2026, including a landmark “Bill of Rights” for children and young adults in the care or custody of DCF.  Other provisions, including expansion of the Family Resource Centers (FRC) and changes to the CRA statute to divert children from court (including raising the minimum age from 6 to 12), are effective August 7, 2027.  While the amendments to the CRA statute don’t go into effect until summer 2027, beginning November 5, 2026, schools are required to refer families to the Family Resource Center before filing a CRA and to address and document efforts to resolve chronic absenteeism before referring a family to the FRC. See H. 5629, Sec. 3. Counsel can move to dismiss any school-based CRA filed after November 4, if the school does not comply with these new requirements.

The Bill of Rights is contained in a new section 23E to Chapter 119.  See H. 5629, Sec. 48.  It covers numerous areas important to the well-being of our child and young adult clients including: (1) safety and security; (2) connections to family, community and identity; (3) health care and accessibility; (4) education, employment and social connections; (5) resources and supports; and (6) transition age youth. The Bill of Rights provides a road map for counsel seeking to advocate for their child and young adult clients. Due to its focus on family, community, identity and reunification, it also serves as a useful tool for parents’ attorneys.  While virtually all the rights outlined in the new Section 23E already exist in other laws (e.g., state and federal constitutions, ADA, Title VI, state statutes, regulations and policies), by enshrining these rights in Chapter 119, we now have additional support for our advocacy. Numerous individuals and organizations collaborated for many years on this landmark legislation, both inside and outside CPCS. But we would be remiss if we did not acknowledge training attorneys Debbie Freitas and Cristina Freitas for drafting the initial version of the bill and working tirelessly to see it enacted into law.

 Other provisions of interest that go into effect November 5 include the following: 

• Adds new requirements for DCF to report to the DA and local law enforcement when a review is completed of multiple 51As under subsection 51B(r). See H. 5629, Sec. 6.
• Requires DCF to notify child’s counsel about specific events, including: change of placement; involvement or investigation related to any delinquency or criminal proceeding; hospitalization; 51A filed against child’s caregiver; and proceedings to suspend or expel child from school.  See H. 5629, Sec. 49.
• Requires DCF to “make available to the public, during regular business hours” a redacted record of its fair hearings. See H. 5629, Sec. 11.
• Requires DCF workers to present photo IDs, obtain a social worker license within 9 months, and participate in annual training. See H.5629, Sec. 6.
• Makes numerous changes to the responsibilities of the Office of the Child Advocate. See H. 5629, Sec. 12-41.
• Adds provisions to ensure children in DCF custody who must change schools are timely enrolled and requires schools to enroll children even when records normally required for enrollment are not available. See H.5629, Secs. 42 & 47.
• Amends G.L. c. 209A and c. 258E to provide that an abuse or harassment prevention order issued on behalf of a minor will remain in effect after the child turns 18, unless otherwise ordered by the court. See H. 5629, Secs. 56 & 59.
• Amends G.L. c. 209C to provide that if a complaint for de facto parentage is filed in the Juvenile Court, the Juvenile Court Rules apply, not the Mass Rules of Domestic Relations.  See H. 5629, Sec. 57."

MA CHILD WELFARE - PATTERN OF NEGLECT OR MISCONDUCT NOT REFUTED

 

IN RE ADOPTION OF COLTON, No. 25-P-710. Mass: Appeals Court 2026:

"HERSHFANG, J.

After trial, a judge of the Juvenile Court entered decrees terminating the mother's parental rights to two of her children, Alison and Colton.^[2] The mother maintains that the judge erred by placing too much weight on the mother's history rather than focusing on evidence of the significant and laudatory changes she had made. She also asserts that the judge improperly failed to order posttermination visitation with the children. We affirm.

Background. Alison was born in June 2019. At the time of trial, she was five years old. Colton was born in January 2021. At the time of trial, he was three years old. The mother tested positive for marijuana and alcohol during her pregnancy with Alison, and both children were exposed to Suboxone, a substance taken by the mother to manage a heroin addiction that began after she was raped at age twelve and which, after many efforts, she had successfully learned to manage. When Colton was eight days old, he was diagnosed with a skull fracture; both parents denied knowing the cause, and an investigation conducted pursuant to G. L. c. 119, § 51B, supported allegations of physical abuse by the parents.

Alison lived with both parents for approximately the first two years of her life. Colton lived with both parents from his birth in January 2021 until May 2021, when the father was awarded conditional custody of both children. The mother had not had custody of either child since May 2021, although she lived with them occasionally, as discussed below. In early November 2021, the Department of Children and Families (department) was awarded temporary custody of both children. The children have been in a preadoptive kinship foster home since December 2021.

Beginning at age eighteen, the mother was the victim of domestic violence in her intimate relationships. At age twenty-two, the mother became pregnant with her oldest child, who was in the department's custody and not a subject of this proceeding. That daughter was removed by the department after the mother was in a collision while driving with the child in the car. The mother was arrested and charged with possession of heroin and operating a motor vehicle while under the influence of drugs.

The mother and the father were married in 2019, shortly before Alison was born, when the mother was twenty-six years old. Around that time, the maternal grandmother saw bruises all over the mother's body and worried that the father was abusing the mother. Between 2020 and 2022, the parents obtained many abuse prevention orders against each other pursuant to G. L. c. 209A (209A orders). Those included multiple 209A orders against the mother directing her to have no contact with and stay away from the father. Each parent sought 209A orders against the other and then violated them. At different times, each parent was charged with assault and battery on the other. Both children witnessed violence and arguments between their parents beginning at a very young age. Despite the violence in their relationship and their frequent, bilateral restraining orders, the parents continued to live and vacation together.

The mother reported to the department that she had not used heroin since 2017, right before she began receiving Suboxone treatment. She tested positive for cocaine twice since 2017, most recently in December 2021. She also tested positive for codeine in January 2024, which was six months before trial commenced. As part of the mother's action plan, the department asked her to submit to regular urine screens. Since 2021, the mother many times tested positive for substances, including alcohol, marijuana, codeine, and Suboxone. The mother missed numerous urine screens.

In May 2023, the department added a requirement to the mother's action plan tasks that the mother abstain from alcohol. After the results of three screens were negative for alcohol in July and August 2023, the mother missed three months of urine screens. The results of her last three urine screens before trial were positive for alcohol. The mother completed one of her two scheduled substance use evaluations prior to trial. That evaluation stated that although results of her urine screens have consistently been positive for "a low amount" of alcohol, she has "never presented as under the influence of any substance."

Addressing her history of domestic violence and trauma has been an ongoing effort for the mother. Before the department took custody of the children, she engaged intermittently in therapy with a series of providers. The mother has been diagnosed with posttraumatic stress disorder, anxiety, and bipolar disorder. Twice she voluntarily sought inpatient mental health treatment, in May 2020 for seven days and in May 2022 for nine days. She attributed these admissions to symptoms of postpartum depression that were exacerbated by the department's removal of the children.

Following the children's removal in early November 2021, the mother's action plan tasks included engaging with an individual therapist to address traumas related to her substance use history, addiction, and involvement with the department. Adding this requirement did not meaningfully change the mother's level of engagement with therapy. The department gave the mother references and resources to help her meet the tasks on her action plan. Although she expressed her willingness to participate, the record again reflects only intermittent engagement before August 2023. Between May and August 2022, the department could not assess the mother's use of services because the mother did not keep active releases for the department to speak to her providers. Between January and March 2023, she met four or five times with a new therapist but then stopped attending her sessions. As late as April 2023, she had yet to begin taking medication prescribed in February to treat bipolar disorder. Beginning in August 2023, she engaged in weekly therapy with a second therapist. She continued this treatment through trial.

Throughout the pendency of the case, the mother experienced instability in housing and employment. During the period of the department's involvement with Alison and Colton, the mother lived with her own parents, with the children's father (sometimes in violation of active restraining orders), in a motel, in her car, in shelters, and in her own apartment. When confronted in October 2021 about living with the father in violation of restraining orders and custody arrangements, the mother told a department social worker that she and the father had been "together this whole time" and asserted that she would "continue to violate whatever to be able to spend time with [her] kids." In September 2023, the mother found stable housing in Providence, Rhode Island, where she had a three-bedroom, two-bathroom apartment.

From the time of Alison's birth, the parents' volatile relationship was central to their family life. The children were removed in April 2021 because they were being put in the middle of the parents' constant fighting, yet the parents failed to comply with repeated requests by the department to stop spending time together. The parents violated the conditional custody order by communicating in emotional text messages, telephone calls, and in-person exchanges of the children. They argued in front of the children and struggled to coparent. In May 2021, the police were dispatched to the father's home because the parents were arguing. The father obtained another 209A order against the mother.

The parents continued their tumultuous relationship. In September 2021, they traveled together to New York City to celebrate the father's birthday, leaving each child with a caretaker not approved by the department. On the way home, the parents picked up Alison, arguing bitterly. The mother, father, and children were living together at the time, unbeknownst to the department and in violation of the conditional custody order.

Some of the parents' disputes were physical or involved threats of physical violence. In October 2021, the mother reported that the father had "choked" her in the presence of both children and that Alison had tried to intervene by hitting the father. The father reported that the mother had "hacked into his phone" and changed his voicemail greeting and that she had left him over one hundred threatening voicemail and text messages, some of which were later corroborated by a department social worker.

The parents twice went to Las Vegas together and misrepresented their whereabouts to the department. In late December 2021, the parents canceled two scheduled visits with the children, claiming they had COVID-19. Actually, they had been in Las Vegas. At that same time, a department social worker had sent the mother a $325 gift card to help pay for rent, but a week later, the mother had to move out of her room in a motel because she owed $300. The mother showed poor money management skills and prioritized taking a vacation over having stable housing. She gave conflicting statements about where she was living, asserting that she was living in her car or, alternatively, with the father.

In January 2022, the parents received a judgment of divorce nisi, with a finalization date of April 28, 2022. This did not end their troublesome patterns. That same month (January 2022), the police were called to the father's home for an alleged mutual assault by the parents. The father reported that the mother had punched him repeatedly on the left side of his face, which was red. The mother reported that the father had grabbed and punched her, showing the officer that her neck and chest were red. The mother reported to a department social worker that she had again been living with the father. Another 209A order issued against the mother, effective for one year, that forbade her from contacting the father, coming within twenty-five yards of him, or coming to his residence.

Between February 26 and March 6, 2022, while the 209A order remained in effect, the mother again traveled to Las Vegas with the father. When asked about this trip, the mother explained that she had minimized its costs; she acknowledged having asked the department for financial assistance when traveling to Las Vegas and asked, "aren't we supposed to use our resources?"

In March 2022, the mother again violated the 209A order and was arrested at the father's house. She missed a visit with the children because she was incarcerated. In July 2022, the mother sought out the father's new girlfriend on an online social media site, broke into his voicemail and listened to a message from the girlfriend, and reported to the department that the father had shown up at her work location. The 209A order against the mother was still in effect at that time.

On July 31, 2022, the mother was living on Cape Cod and the father in New Bedford, yet they ended up at a pub in New Bedford at the same time. They fought over the mother's cellular telephone and the father hit the mother. The mother admitted to police that she knew she was violating the 209A order by meeting the father. The mother was arrested for violating the 209A order and the father was charged with assault and theft. Despite this, during a late-August visit with the children, the mother told them details about their next visit with the father, leading the trial judge to infer that the mother had communicated with the father even after the pub incident on July 31, 2022. This conflicted with the mother's reports that she had no contact with the father since then.

The mother's action plan tasked her with completing domestic violence counselling programs. Although she had a fitful start, she completed two in October 2022. And, in December 2023, she completed a program called "Behavioral Health Supports for Justice Involved." Since 2022, the mother has not been accused of violating a 209A order.

Still, the mother's contact with the father continued. In November 2022, the mother sent an e-mail message with an online video recording of the father's fiancée to a department social worker. On January 24, 2023, a department social worker listened to a voicemail the mother had left for the father earlier that month. The father knew facts about the mother's life, including that her car had been repossessed in November. Also in January 2023, the mother reported that the father was harassing her on social media and had shown up at her home and flattened her tires. The mother subsequently obtained a 209A order against the father on January 27, 2023, but three months later, while the order remained in effect, continued to monitor the father's social media posts, which she showed to a department social worker. When asked about this by a department social worker and a court investigator, the mother denied having done so. She told the court investigator she had not had any contact with the father since the summer of 2022. The trial judge did not credit these denials, remarking that the father "was also aware of [the m]other's car being repossessed" in November 2022 and that the mother "continued to monitor [the father's] social media and keep up with his life" after she obtained a 209A order in January 2023.

The mother frequently blamed others for the positive results on her drug and alcohol screens. When her urine tested positive for cocaine, the mother denied using the drug and suggested that she might have been exposed to it from hugging her brother (a cocaine user) or from the father's having laced her marijuana with cocaine. She offered to take a hair follicle test if the department would pay for it but did not take the test when the funds were secured. In October 2022, she blamed irregularities in her Suboxone use on the father's having purportedly stolen her prescription. In June 2023, the mother claimed that her car had been repossessed with her prescriptions inside, so she was not taking either her prescribed Suboxone, which she was buying on the street or getting from a friend, or her psychiatric medications. In July 2023, the mother told a department social worker that she believed the maternal grandmother was "sabotaging" her by putting alcohol in her food, claiming she had not consumed alcohol since April 2023. On January 4, 2024, after testing positive for codeine, the mother denied using codeine and asked for a urine screen, then did not produce the result to the department.

The mother, at times, deprived the department of requested information about her substance use and participation in services in general. For example, although it was a part of the conditional custody order and a task on her action plan that the mother sign all necessary releases, the mother did not do so. And between February and May 2022, the department was unsuccessful in obtaining urine screens from the mother; when those screens were later produced, the results were all positive for alcohol. The mother testified at trial that her positive alcohol screens resulted from her being required to drink as part of her bartending jobs, an explanation that the judge did not credit but rather viewed as "additional evidence of [the m]other's lack of accountability for her actions."

In April 2023, the mother was unemployed. She gave conflicting reports to the department and her Suboxone provider about where she was living. To the Suboxone provider, she reported that she was spending most of her nights at the home of a boyfriend who had been released from jail and was on house arrest. To the department, she reported that she was living at the maternal grandparents' home.

The mother's move to an apartment in Providence in September 2023 coincided with new stability in her life. She obtained that apartment with the help of a community outreach worker who had been advising her about money management skills and housing applications weekly since early 2023. She continued to see her psychiatric nurse practitioner and her Suboxone provider. She also met weekly with a new therapist. The mother reported to a department social worker that she had ended a new relationship when she noticed that her partner was getting angry easily and raising his voice. The mother had a new car as well as a new job. When asked by the social worker, the mother described having learned many ways to seek and cultivate healthy relationships.

In October 2023, the mother completed a six-part education series, "Raising Healthy Families." When the father reached out to her the next month on social media, the mother reported having sent him an e-mail message telling him they could not communicate with each other. When the social worker asked to see the mother's prescription medications, the mother was initially unable to locate them; when she found them, it had been more than three months since she had filled her prescriptions for treatment of bipolar disorder and anxiety. In early 2024, she reported that she was taking her medications as prescribed.

Between November 2021 and August 2024, when trial was underway, the mother consistently attended visits with the children, which generally went well. The mother was largely appropriate, and the children were happy. The judge found that "[t]he visits would end well with [the m]other bringing the children to the social worker's car and giving them hugs and kisses." However, Alison and Colton both struggled behaviorally after the visits. The judge found that "[t]he children are confused by statements [the m]other makes about going home and talking about their bedrooms at home." As a result, the department reduced the mother's visits from one hour weekly to ninety minutes every other week and required every other visit to occur at the public library. The mother testified at trial that if she was awarded custody of Alison and Colton, she would need at least six months before she could care for them full time. She explained that she needed time to "get to know" the children, because "she barely knows the[m] and they barely know her."

Since December 2021, the children have lived together in a preadoptive kinship foster placement. Alison was two years old at the time they entered this home and Colton was ten months old. The preadoptive father is a sibling of the children's maternal grandmother (a great uncle) who is only about ten years older than the mother. The preadoptive mother is his long-term partner and fiancée; she works as a supervisor at the local hospital. The preadoptive parents ensured that Alison got the therapy she needed and supported her therapeutic needs at home. She was doing well in school and enrolled in swim and dance classes. She was a good big sister to Colton. Colton successfully completed an early intervention program. The preadoptive father helped Colton adjust after visits with the mother, which caused "aggressive behaviors towards his peers at daycare." Colton sought out the preadoptive father for attention and affection and the preadoptive father was patient and calm with him. Both children were thriving in the preadoptive placement.

Discussion. 1. Termination of parental rights. "Although the law recognizes that the custody, care and nurture of the child reside first in the parents, where those parents have failed to fulfil the duties of parenthood, their rights are no longer paramount" (quotation and citation omitted). Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 5 (1979). "In deciding whether to terminate a parent's rights, 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). For evidence to be clear and convincing "[t]he requisite proof must be strong and positive; it must be `full, clear and decisive.'" Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

The decision to terminate parental rights requires "a two-part analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge must find 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 interests to end all legal relations between parent and child.'" Adoption of Cadence, supra, quoting Adoption of Nancy, supra.

"We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence," Adoption of Nancy, 443 Mass. at 515, "and [we] 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 Ilona, 459 Mass. at 59. On appeal, "we do not disturb" findings where the challenge is "based on the judge's credibility determinations." Adoption of Querida, 94 Mass. App. Ct. at 778.

The mother does not contest the trial judge's subsidiary findings of fact. Instead, she challenges the judge's weighing of the evidence, asserting that the judge paid inadequate attention to the mother's "present flourishing" and too much to her past conduct. "In the main [her] arguments simply reflect dissatisfaction with the judge's `weighing of the evidence and [her] credibility determinations.'" Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). But "the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799 (1993). A judge is neither obligated to credit all evidence equally, see Care & Protection of Three Minors, 392 Mass. 704, 711 (1984), nor "required to view the evidence from the parent's perspective." Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018).

The mother stipulated to her current unfitness in May 2023, and the children were committed to the permanent custody of the department. Since then, she emphasizes, much has changed. And so it had. The mother made significant strides in maintaining sobriety from heroin; she found suitable housing; she was employed, at least seasonally, in a professional position, and when that job waned, she found other work so as to maintain an income; and she terminated a relationship when she realized her partner was "getting mad easily and raising his voice." She completed an education series, "Raising Healthy Families." She rejected one communication from the father. She attended virtual meetings of "Alcoholics Anonymous" and "Narcotics Anonymous."

The judge's findings acknowledged each of these laudable advances. Nonetheless, "[a] judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006). "Although `stale information cannot be the basis for a finding of current parental unfitness. . . history . . . has prognostic value.'" Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). "[A] judge's conclusion that a parent's unfitness is temporary," and termination of parental rights is therefore not warranted, "must rest on credible evidence supporting a reasonable likelihood that the parent will become fit, not on a `faint hope.'" Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Inez, 428 Mass. 717, 723 (1999). "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, supra at 59-60.

The mother lost custody of Alison and Colton three years before this matter came to trial, a period longer than one-half of Alison's life and all of Colton's. In that time, and despite her evident and heartfelt desire to be their custodial parent, the mother persisted in patterns of behavior that endangered that possibility. Despite her significant positive steps — which we do not overlook, and which are a credit to her — the judge found that aspects of the mother's troubling history persisted from May 2023 to the time period of the trial, and she inferred from that evidence that the mother had not truly changed. In June 2023, for example, the mother informed her psychiatrist that she was not taking her prescribed Suboxone or her psychiatric medications. She was taking her friend's Suboxone or buying it "off the street" and living in her car. When she tested positive for alcohol that month, the mother complained that the maternal grandmother was sabotaging her by putting alcohol in her food, and that she had not drunk alcohol since April 2023. She did not attend a foster care review on November 2, 2023.

The mother also continued her troubling and violent relationship with the father, despite the existence of 209A orders against her (which the judge found she repeatedly violated), contrary action plan tasks, and multiple requests by the department that she stop. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. 590, 599 (1996). "Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children," Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005), because a child who witnesses "such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, supra at 595. The mother repeatedly misled the department with respect to her contact with the father into at least early 2023. The trial judge found that the mother "significantly minimize[d] her role" in the parents' "toxic" relationship and the effects of that abusiveness on Alison and Colton. Thus, "[t]he evidence in this case supported the judge's reliance on domestic violence as a significant factor in deeming the mother unfit." Adoption of Jacob, 99 Mass. App. Ct. 258, 264 (2021).

In both November 2023 and February 2024, the department discovered evidence suggesting the mother was not regularly taking her prescribed medications. She declined department home visits in December 2023 and January 2024. Also that January, her urine tested positive for codeine and alcohol but not her prescribed medications. As had been true with the positive cocaine results, the mother denied using codeine; once again she was afforded an opportunity to get a second test, but again she did not do so. This evasive behavior in avoiding home visits, combined with the positive results of urine screens and the mother's denial that she had used a substance revealed by the screens, echoed some of her earlier behavior. In a further echo, she missed three appointments with her psychiatrist between October 2023 and January 2024 and stated two months before trial that she would not have so many appointments with providers if the department were not involved.

Trial began in June 2024. That September, the mother missed two trial dates because she was in Florida for a business trip. The judge did not credit the mother's testimony that her return had been delayed when she contracted COVID-19, and the judge then concluded that the mother's decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities" regarding her children. "[A] trial judge has discretion to determine whether to draw an adverse inference from a parent's absence. . . . In determining whether to exercise that discretion, `the judge as fact finder' is to consider whether such an inference is `fair and reasonable based on all the circumstances and evidence before' her." Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014).

The judge was "entitled to consider the evidence of [the mother's] recent improvements within the context of her earlier and continuing deficits." Adoption of Jacques, 82 Mass. App. Ct. at 608. And where, as here, the "judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3 (c)," we cannot say that the trial judge clearly erred by not including specific facts or giving more weight to certain facts than others. Adoption of Nancy, 443 Mass. at 516. Considering the evidence of the mother's longstanding history with domestic violence and substance misuse; her continued failure to confront her own role in both, and their impact on Alison and Colton; her persistent refusal to take responsibility for positive results of drug and alcohol tests; and her poor money management history, "the judge did not clearly err in finding that the mother was unfit and that her unfitness was not temporary." Adoption of Ilona, 459 Mass. at 62.^[3]

"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. By the time trial concluded in October 2024, Alison and Colton were both "thriving" in the preadoptive placement where they had been for three years. The mother, by her own testimony at trial, felt she needed at least six more months before she might be capable of parenting Alison and Colton full time. For five years since Alison was born, however, the department had already been providing services to the mother aimed at preparing her to parent the children full time. Where the mother had become stable only in the year before trial and acknowledged she still needed more time, "the court must say, `Enough,' and act in the children's best interests." Adoption of Inez, 428 Mass. at 724, quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 242 (1991), S.C., 413 Mass. 339 (1992). Affording "substantial deference" to the trial judge's findings, as we must, Adoption of Nancy, 443 Mass. at 515, we cannot say that she "abused [her] 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.

2. Posttermination visitation order. The mother also challenges the judge's conclusion that it was not necessary to enter an order for posttermination visitation. While we agree with the department that this issue could have been better preserved for appeal, we exercise our discretion to address it, as the judge discussed it in her decision. See Adoption of Mary, 414 Mass. 705, 712 (1993). A "judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). In determining whether such visitation is in a child's best interests, the judge must consider whether the child has a "significant, existing bond with the biological parent" and whether "the child `has formed strong, nurturing bonds'" with a preadoptive family. Adoption of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000). "A judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child[ren]'s best interest[s]." Adoption of Ilona, supra at 65.

The judge concluded that, while the evidence "demonstrate[d] that [the m]other's visits with the children generally went well, and the children were happy to see her" and had "fun at visits with their mother," they also had "a hard time following the visits and [took] a couple of days to regulate." The judge noted the mother's testimony that the children barely know her, and she barely knows them; she further noted that the preadoptive parents "support[ed] continued contact between the children and [the m]other so long as [the m]other is sober and her mental health is stable." The judge's ultimate conclusion that a visitation order was not necessary to protect the children's best interests followed her careful weighing of the evidence of the children's bonds with their mother against their needs and connections with the preadoptive family. We discern no abuse of discretion in the judge's ruling.

Decrees affirmed.

WOOD, J. (dissenting).

"The natural bond between parent and child should not be permanently severed unless the child's present or future welfare demands it. None of our cases, in which we have said that current parental unfitness is a prerequisite to the allowance of a petition to dispense with consent to adoption, should be construed as requiring such an extreme step whenever the parents are currently unfit, or as limiting the inquiry to parental fitness at the time of trial."

Adoption of Carlos, 413 Mass. 339, 350 (1992).

To establish that the termination of parental rights is warranted, it is not enough to find that the parent is currently unfit. "The judge must also find that the current parental unfitness is not a temporary condition" (quotation and citation omitted). Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019). There must be clear and convincing evidence that "the mother's current unfitness is likely to continue indefinitely." Adoption of Arianne, 104 Mass. App. Ct. 716, 721 (2024). "The requisite proof must be strong and positive; it must be `full, clear and decisive'" (citation omitted). Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

I agree with the majority that the judge did not clearly err or commit an abuse of discretion in finding that the mother was currently unfit at her 2024 trial. But I disagree with the majority's second conclusion that the judge did not clearly err or commit an abuse of discretion in ruling "that said unfitness is likely to continue into the indefinite future to a near certitude."

The judge found that the mother's "lack of progress throughout the pendency of this matter is a strong indicator that her unfitness will continue undiminished into the future with an attendant harmful [e]ffect on the children." In fact, the record evidence established, and the majority acknowledges, that the mother made significant "progress" since the Department of Children and Families (department) was granted temporary custody of her children in November 2021. Specifically, the mother made great strides in managing her substance use disorder; freeing herself from a "toxic," violent domestic relationship; and achieving safe housing and financial stability. Collectively, this progress established an undeniable upward trend toward fitness, such that the judge clearly erred in weighing the factors relevant to the decision whether the mother's "unfitness is likely to continue into the indefinite future to a near certitude." See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion). "The judge, having been alerted to what had been reported as the mother's recent positive gains, should have considered whether she would be likely to improve in the future." Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008). Accordingly, I dissent.

The judge focused on three areas of concern in the mother's life: (1) her substance misuse; (2) her past abusive relationship with the children's father; and (3) her financial irresponsibility in the face of housing insecurity. I discuss each area of concern as well as the mother's health.

1. Substance misuse. The mother struggled to overcome a heroin addiction in rehabilitation programs for fourteen years, from the ages of twelve to twenty-six. Then, in January 2018, she began receiving Suboxone treatment (before either of the subject children were born). She had been sober from heroin since that date. Indeed, during the pendency of this case, the mother took eighteen department-mandated urine screens, from August 2021 to April 2024, all of which showed results that were negative for heroin.

The mother tested positive for cocaine twice in 2021, and once for codeine in January 2024. The mother drank alcohol and used marijuana in moderation, but her substance use evaluator did not report any concerns about that behavior. The mother never presented as intoxicated during nearly three years of weekly supervised visits with her children, from November 2021 to June 2024, and was never reported to have been under the influence anywhere else.

The majority focuses on the fact that the department's action plan tasks gave clear instructions to abstain from alcohol, and the fact that the mother repeatedly deflected and avoided responsibility for her alcohol consumption. I agree that the mother's deflection of responsibility for consuming alcohol supports the judge's finding of current unfitness.

But it is also clear that the mother's multiyear struggle to maintain sobriety demonstrated a sustained commitment to achieving parental fitness. To the extent that the judge was concerned the mother's use of alcohol and marijuana supported a potential relapse into substance abuse, "[t]he passage of [more than] four years [since she achieved sobriety] is too long a period to rely on the predictive value of past behavior without verification — especially when evidence contradicting the prediction is readily available" (footnotes omitted). Adoption of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117 (2005).

2. Domestic violence. The mother had a toxic and destructive relationship with the father. But over the course of six months from August 2022 to January 2023, she extracted herself from that relationship. At the very least, that achievement demonstrated progress toward fitness, and undermined the probative value of this factor as evidence of permanent unfitness.

The mother scheduled an intake appointment with a provider on August 15, 2022, seeking to reengage in its domestic violence education and prevention services. As the majority notes, the mother completed two domestic violence counselling programs. On January 27, 2023, she obtained a restraining order against the father.^[1] From that point forward, there is no evidence that she had contact with the father except for a single e-mail message in November 2023, following the father's violation of that order, to tell him that they could not communicate.^[2] Finally, in October 2023, she completed a third education program about domestic violence, a six-part series entitled "Raising Healthy Families."

"At trial, there was no evidence presented that domestic violence . . . was still present in the mother's life." Care & Protection of Laurent, 87 Mass. App. Ct. 1, 4 (2015). Nothing in the record suggested that the mother had seen or even spoken to the father in the twenty-one months leading up to and during trial. Accordingly, the evidence does not support the judge's conclusion that "[i]f the children were returned to [the m]other, it is likely the parents would reengage in communication, and [the m]other would be vulnerable to further abuse from [the f]ather."

3. Housing instability and financial irresponsibility. The judge noted that in December 2021 and February 2022, the mother used department housing funds to travel to Las Vegas with the father. I agree with the judge and the majority that this "showed poor money management skills and [that she] prioritized taking a vacation over having stable housing." Ante at 8. The judge also noted that her decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities to her children." Although I agree that this evidence supports the judge's finding of current unfitness, it was also clear that the mother acknowledged her financial irresponsibility, sought help to address it, and made progress in achieving that goal.

First, the mother maintained relatively steady employment throughout the pendency of this matter, despite experiencing seasonal layoffs and housing instability. Second, in early 2023, at the same time that she was ending the toxic relationship with the father, the mother engaged with a community outreach worker. He met with the mother weekly to teach her money management skills and help her fill out housing applications. With his help, the mother obtained a subsidized apartment in Providence on September 1, 2023.

Also, the mother's undisputed record of consistent and loving weekly visits with her children from 2021 through 2024 spoke to "her judgment and priorities to her children." Collectively, the mother's behavior demonstrated her ongoing commitment to improve her financial situation, maintain "adequate stable housing," and prioritize building a better life for her children. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

4. Medical and psychiatric diagnoses. Finally, the majority notes that the mother struggled consistently to engage with individual therapy and to take medication prescribed to treat diagnosed medical and psychiatric conditions. But neither the majority nor the judge identified any nexus between those shortcomings and a risk of harm to the children. "Mental [illness] is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's . . . needs." Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). The judge made no such finding here.

Moreover, the mother made progress managing symptoms which corresponded to her diagnoses. First, in January 2023, as she was ending her toxic relationship with the father, she engaged a therapist for a few sessions. Then, after five months of searching for a new therapist, she found one in August 2023. She met with him weekly throughout the trial; by October 2024, she had consistently participated in mental health and substance abuse counselling for fourteen months. Second, at the beginning of 2023, the mother reengaged with her psychiatric nurse practitioner (NP), who prescribed medications to manage symptoms of the mother's conditions. Although the evidence supported the judge's findings that the mother struggled to manage her medication regimen, it also supported that she was making progress on that front. By the start of trial in June 2024, the psychiatric NP reported to the department that she had no concerns about the mother. In any event, as noted, the judge did not find that the mother's diagnoses "affect[ed] [her] capacity to assume parental responsibility." Adoption of Luc, 484 Mass. at 146.

Collectively, in every area of concern, the mother made "significant progress" toward parental fitness, beginning at least eighteen months before trial. Adoption of Carlos, 413 Mass. at 351. This evidence of progress "casts doubt on several of the findings central to the judge's decision." Adoption of Imelda, 72 Mass. App. Ct. at 363. Indeed, the judge's findings of likely future unfitness despite such significant progress over an eighteen-month period before trial is contrary to this court's precedent.

In Adoption of Arianne, 104 Mass. App. Ct. at 721, we held that the trial judge abused his discretion and committed an error of law in terminating a mother's parental rights based on a finding that the mother's inconsistent engagement with family action plan tasks established that her current unfitness was likely to continue indefinitely. After successfully extracting herself from a violent relationship, the mother in Adoption of Arianne participated in a domestic violence support group and individual therapy — but only for a few months at a time, and never as consistently as required by her action plan. See id. at 718-720. She became involved in another toxic relationship, but she left that situation after a single incident of domestic violence. Id. at 718. The mother in Adoption of Arianne participated inconsistently in meetings with her parenting aide, visits with her child, and appointments with her department social worker. Id. at 719. She missed the first day of her termination trial without a reasonable excuse. Id. And yet, this court held that because the mother had escaped from a violent relationship and was working toward fitness, albeit imperfectly, the trial judge's findings did not provide clear and convincing evidence that her present unfitness was likely to continue indefinitely. Id. at 722-723. The mother in this case demonstrated greater consistency in visits and compliance with her action plan tasks than the mother in Adoption of Arianne.^[3] This case is more like the illuminating case of Adoption of Carlos, 413 Mass. at 351, in which the Supreme Judicial Court affirmed the denial of a petition to terminate parental rights. Following three years in which the department had custody of the child, the court in Adoption of Carlos concluded that improvement in the mother's "critical area of parental unfitness" from June 1989 to the date of the evidentiary hearing in "early 1990" established "significant progress," and a reasonable likelihood that her unfitness at trial was only temporary when coupled with the fact that "[t]he child ha[d] been regularly visiting with his mother, and remain[ed] attached to her [and was] eager to return home." Id. at 348, 351.

Because the evidence of the mother's progress undermined the judge's ruling "that [her] unfitness is likely to continue into the indefinite future to a near certitude," I cannot agree that the proof rose to a level justifying the "extreme step" of terminating the mother's parental rights (citation omitted). Adoption of Ilona, 459 Mass. 53, 59 (2011). It was not strong, positive, full, clear or decisive, Adoption of Iris, 43 Mass. App. Ct. at 105; accordingly, I respectfully dissent.

[1] Adoption of Alison. The children's names are pseudonyms.

[2] The father is not a party to this appeal, as he stipulated to the termination of his parental rights and entered into an open adoption agreement for both children in 2023.

[3] The dissent compares the facts in the present case to those in Adoption of Arianne, 104 Mass. App. Ct. 716 (2024), and sees this case as more favorable to the mother. We do not see it that way. The mother in Adoption of Arianne, id. at 717, had successfully parented her child for the first two and one-half years of the child's life before voluntarily placing her in the care of the child's godmother (who was also a relative of the mother) for about ten months. Shortly after the child was returned, the mother again placed her with the relative, because the mother was in a violent relationship from which she sought to shield the child. Id. In vacating the decree terminating the mother's parental rights, we said, "[t]he fundamental problem with the judge's decision is that the judge treated the mother's placing the child in the care of the godmother as neglect." Id. at 721. We concluded that it was "not neglect for a parent who recognizes that she cannot provide her child with a safe or appropriate environment to place the child with appropriate caregivers"; instead, that was "the mark of a responsible parent." Id. We emphasized that a "single instance of domestic violence while the child lived with the mother, where the mother's response protected the child from further exposure to domestic violence, does not demonstrate that the mother's current unfitness is likely to last indefinitely." Id. at 723. No such facts were present here, where the mother's parenting challenges, including a toxic domestic relationship, persisted for years; she did not extricate the children; and, at the time of trial, she continued to exhibit concerning behaviors related to drug and alcohol use, truthfulness with the department, and accountability for her actions.

[1] The mother obtained multiple extensions of the order, and the father was arrested and charged with violating that order in November 2023.

[2] To the extent that the majority and the judge relied on the mother's choice to view the father's public social media posts after she had obtained a restraining order as evidence of unfitness, I disagree. Again, the mother's termination of her relationship with the father and the absence of evidence of contact with him after January 2023 rendered that relationship irrelevant to the mother's fitness by the June 2024 trial date.

[3] The majority distinguishes Adoption of Arianne, 104 Mass. App. Ct. at 722-723, by focusing on the judge's error in that case of construing the mother's decision to leave the child with a godparent as neglect. But the majority does not discuss the evidence in that case which we acknowledged supported a finding of unfitness at trial, notwithstanding the judge's error, or compare that evidence to the evidence of the mother's unfitness in this case. See ante at note 3.

After placing the child with her godmother, the mother in Adoption of Arianne experienced at least two incidents of domestic violence with one partner and then a third with a subsequent partner. See id. at 718. More importantly, after trial, the judge found that the mother still lacked insight into the "impact that [domestic] violence could have on [the child] outside of the physical removal from her mother's custody that occurred as a result." Id. at 718-719. Furthermore, the mother missed about one-quarter of her scheduled visits with her child, and the first day of the termination trial because she "forgot about it." Id. at 719 & n.9. We concluded that these inconsistencies, as well as "[t]he mother's inconsistency with completing action plan tasks, . . . established the mother's unfitness to parent the child as of the time of trial because it demonstrated a lack of focus on parenting the child." Id. at 722. Comparatively, by the time of trial in this case, the mother here had a stronger, albeit still imperfect, "focus on parenting the child." Id. Just as we recognized the absence of clear and convincing evidence in Adoption of Arianne that the mother lacked capacity to achieve fitness, I think we should recognize the absence of clear and convincing evidence here."