ADOPTION OF GIANNA (And a Companion Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1250

ADOPTION OF GIANNA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a review and redetermination trial, a Juvenile

Court judge terminated the mother's parental rights regarding

her two youngest daughters, Gianna and Amy (together, the

children), who had not seen the mother in over four years.

Having failed to appear at the trial, the mother filed a motion

for relief from judgment and sought to reopen the evidence so

that she could testify. The trial judge scheduled a hearing for

the mother to present evidence, and thereafter ordered the

decrees to stand when the mother failed to appear. On appeal,

the mother challenges the termination decrees. We affirm.

Background. The mother suffers from diagnosed mental

health issues including posttraumatic stress disorder, anxiety

1 Adoption of Amy. The children's names are pseudonyms.
disorder, mood disorder, and attention deficit hyperactivity

disorder. She has been inconsistent in taking prescribed

medications for these conditions and has been hospitalized on

multiple occasions. She has also experienced a history of

substance abuse (with no evidence of a treatment program since

2014), housing instability, and multiple incidents of domestic

violence witnessed by the children.

The mother has five children -- two adult daughters, a son

(adopted in 2012), and Gianna and Amy (age fourteen and ten,

respectively, at the time of trial). Gianna and Amy are the

subject of the termination decrees at issue here. As to the

children, the Department of Children and Families (department)

became involved with each at birth. When Gianna was born in May

2009, a report filed pursuant to G. L. c. 119, § 51A (51A

report), alleged that both Gianna and the mother tested positive

for cocaine. Following the premature birth of Amy in February

2013, another 51A report alleged that both the mother and Amy

tested positive for cocaine.

About five years later, on August 11, 2018, the event

precipitating department custody occurred when the mother's two

adult daughters had the children for an overnight visit.

Originally, the plan was that the mother would pick up the

children the next day, but after the mother did not show up, the

adult daughters attempted to contact her. Ultimately, the

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mother responded by sending a text message to the adult

daughters stating that they could keep the children as they

would do a better job raising them. She also asked the adult

daughters to say goodbye to the children for her. Unsure how to

proceed, the adult daughters contacted the department, and the

department obtained emergency custody. On August 13, the

department reached out to the mother, who denied making the

statements and hung up the phone.

The following day, the department filed a care and

protection petition regarding the children. On August 16, the

mother waived a temporary custody hearing and stipulated that

the children would remain in the department's temporary custody.

The mother last visited with the children in February 2019.

Since this visit, the mother has had no contact with them and

inconsistent communication with the department.

On July 24, 2019, following a trial where the mother did

not appear, a judge found the mother (and the children's

fathers) unfit and the children in need of care and protection.

The judge appointed coguardians for the children. Four years

later, seeking termination of parental rights and desiring

permanency with their coguardians, the children filed a petition

for review and redetermination in February 2023. On June 8,

2023, a second judge held a review and determination trial where

the mother did not appear. The parties stipulated that the

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children had not seen the mother in over four years. Based upon

clear and convincing evidence, the judge terminated the mother's

parental rights after concluding that she remained unfit and

would likely remain so for the indefinite future and that

termination would be in the best interests of the children.

On July 13, 2023, the mother filed a motion for relief from

judgment and sought to reopen the evidence to allow her to

provide testimony. The judge scheduled a hearing for the mother

to testify on October 4, 2023, but the mother failed to appear.

The judge issued an order stating, "Termination Stands."

Discussion. At a review and redetermination proceeding

under G. L. c. 119, § 26 (c), "the judge is deciding simply

whether to maintain the separation of parent from child." Care

& Protection of Erin, 443 Mass. 567, 571 (2005). "The proper

focus of inquiry on a § 26 review is on those facts which have

undergone some metamorphosis since the previous order or are

newly developed and, in consequence, alter the relationship

between the biological parent and the child." Custody of a

Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). Ultimately,

"the department must show, by clear and convincing evidence,

that the parent remains unfit, that the child remains in need of

care and protection, and that his or her best interests are

served by removal or termination of parental custody." Adoption

of Melvin, 71 Mass. App. Ct. 706, 713 (2008). Giving

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substantial deference to the judge's decision, we discern no

clear error or abuse of discretion. See Adoption of Ilona, 459

Mass. 53, 59 (2011).

1. Staleness of evidence. We disagree with the mother's

claim that the judge's findings "lack the requisite recency and

detail" to support termination. While a judge may not rely on

stale information, see Guardianship of Kelvin, 94 Mass. App. Ct.

448, 457 (2018), a judge may consider whether circumstances have

changed over time. "For example, the mother's mental health may

have taken a marked turn for the better, or conversely, for the

worse; the mother's physical environment may have improved, or

not; the ability of the mother to play the role of a competent,

supporting parent may have improved, or not." Custody of a

Minor (No. 2), 22 Mass. App. Ct. at 94. See Care & Protection

of Erin, 443 Mass. at 570 (judge at review and redetermination

hearing does not start with "blank slate"). The judge need not

find that "a material change in circumstances has occurred" to

alter the previous order. Custody of a Minor (No. 2), supra.

"Indeed, that no change in circumstances has occurred may be a

sound basis for altering the court's order. The previous

solution may not have worked." Id. Thus, a review and

redetermination trial necessarily contemplates an examination of

prior circumstances.

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The judge properly considered the mother's protracted

struggles with a "substance use disorder, mental health

concerns, homelessness, and domestic violence that have gone

unaddressed." In support of her findings, the judge cited four

department investigator reports and a guardian ad litem report

filed between April 29, 2022, and June 7, 2023. Given the

context of the department's contact with the mother, we do not

view this information as being stale by the time of trial on

June 8, 2023. For example, on March 3, 2022, a social worker

met with the mother in her residence. She admitted that she had

not engaged in drug treatment since 2014, had relapsed since

that time, and had entered a psychiatric unit following a

suicide attempt. In a subsequent visit at the residence, the

mother admitted having difficulty concentrating and considered

going to the hospital for adjustments to her medication. On

August 1, 2022, another social worker contacted the mother and

arranged a home visit. The mother did not open the door or

answer calls at the appointed time and thereafter failed to

answer phone calls. The social worker concluded that this lack

of contact left her unable to "confirm any treatment or

services." Such long-standing, unaddressed mental health and

substance abuse issues coupled with the mother's lack of

cooperation with the department could properly be considered "to

predict future ability and performance." Adoption of Jacob, 99

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Mass. App. Ct. 258, 262 (2021) quoting Adoption of Katharine, 42

Mass. App. Ct. 25, 32-33 (1997).

In particular, the pattern of the mother's disengagement

with the children began long before the trial and continued

through trial and beyond. The record showed that the mother

ceased visiting the children at least four years prior to trial.

She had no contact with the department for ten months leading up

to trial. She failed to maintain contact with counsel for nine

months and did not attend any of the trial. Even after the

trial, the judge gave the mother another opportunity to present

evidence on her own behalf, but the mother again failed to

appear. Far from being stale, this evidence constituted a

consistent and continuous theme of utter disengagement over a

long period of time. "[I]t would defy logic here not to

consider" such evidence. Adoption of Luc, 484 Mass. 139, 145

n.15 (2020).

2. Statutory factors. Next, the mother contends that the

judge erred by failing to articulate which statutory factors

weighed in her decision before terminating the mother's parental

rights. Although it may be common practice in cases involving

unfitness determinations for trial judges to address, seriatim,

each factor set out in G. L. c. 210, § 3, "such specificity is

not required." Adoption of Nancy, 443 Mass. 512, 516 (2005).

The substantial deference we afford to the judge's decision

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includes a recognition that precision is neither desirable nor

possible in this field and "much must be left to the trial

judge's experience and judgment." Adoption of Hugo, 428 Mass.

219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526

U.S. 1034 (1999), quoting Adoption of a Minor (No. 2), 367 Mass.

684, 688 (1975).

Apart from the judge noting that she considered the

statutory factors, see Adoption of Larry, 434 Mass. 456, 470

(2001), we are satisfied that the judge's detailed and specific

findings demonstrated close attention to the evidence as well as

the fourteen nonexclusive factors identified in the statute.

For example, the judge repeatedly referenced the mother's

longstanding and unaddressed issues surrounding substance abuse

and mental health. See G. L. c. 210, § 3 (c) (xii) (prolonged

"alcohol or drug addiction, mental deficiency or mental

illness"). The judge also referenced the mother's disengagement

from both the department and the children. See G. L. c. 210,

§ 3 (c) (viii) ("lack of effort"); G. L. c. 210, § 3 (c) (x)

("willful failure to visit"). We also note that the mother

admitted knowing the department's action plan, which included

therapy, substance abuse support, and parenting classes, but she

disengaged from the department's efforts to provide services.

See G. L. c. 210, § 3 (c) (ii) (inability or unwillingness to

utilize department services). Overall, the judge's findings

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that the mother left the children, ceased to communicate with

the department, failed to appear at multiple hearings, and made

no attempt to get the children back all bore directly on the

mother's ability, capacity, fitness, and readiness to assume

parental responsibility. G. L. c. 210, § 3 (c) (best interests

of child).

3. Permanency plans. The mother also contends that the

judge erred by failing to adequately evaluate the permanency

plans for the children before terminating her parental rights.

In determining the best interests of the child at a termination

of parental rights trial, "the judge must consider, among other

things, 'the plan proposed by the department.'" Adoption of

Varik, 95 Mass. App. Ct. 762, 770 (2019), quoting G. L. c. 210,

§ 3 (c). The law does not require that the plan be "fully

developed" in order to support a termination order, but it must

provide "sufficient information about the prospective . . .

placement 'so that the judge may properly evaluate the

suitability of the department's proposal.'" Adoption of Jacob,

99 Mass. App. Ct. at 273, quoting Adoption of Willow, 433 Mass.

636, 652-653 (2001).

Here, the record shows that the placement plan, even if not

fully developed, is in the children's best interests. The plan

called for the children to remain under the coguardianships,

with some anticipated modifications to address the needs of each

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child (Gianna expressing a desire to end the coguardianship with

one of the guardians and Amy being evaluated for significant

learning and neurological issues). The children have been

living with the coguardians since August 2019 and are "happy and

well cared for." In addition, the judge found that the

coguardians were able to appropriately care for Amy's

"significant emotional, neurological, and educational

challenges," and the "[m]other is not in a position to meet this

child's high level of needs." The judge also properly weighed

the children's wishes. Gianna wanted to live with one of the

coguardians and end all contact with the mother, and Amy sought

permanency with the coguardians and did not want to live with

the mother. "[F]or a child to express a desire not to be with a

parent, is the most powerful statement a child can make about

fears and level of trust in h[er] parents" (quotation omitted).

Adoption of Quentin, 424 Mass. 882, 888 (1997). See Adoption of

Nancy, 443 Mass. at 518 (children's wishes "are entitled to

weight in custody proceedings," but their views are not

"decisive, . . . nor outcome determinative" [citations

omitted]).

4. Reasonable efforts. Finally, the mother argues that

the department failed to make reasonable efforts to restore the

children to her care. If a parent believes the department has

provided inadequate services, "many avenues" are available to

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address the concern prior to trial. Adoption of West, 97 Mass.

App. Ct. 238, 242 (2020). A parent may not raise the claim for

the first time on appeal. See Adoption of Gregory, 434 Mass.

117, 124 (2001). Therefore, this claim is waived.

Decrees affirmed.

By the Court (Vuono,
Englander & Hodgens, JJ.2),

Clerk

Entered: November 21, 2024.

2 The panelists are listed in order of seniority.

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