Adoption of Isha.

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-1078
ADOPTION OF ISHA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parents of Isha, who was born on December 30, 2020,

appeal from decrees issued by a judge of the Juvenile Court

terminating their parental rights, dispensing with their consent

to adoption, and declining to order postadoption visitation.

Isha joins her parents in appealing from the decrees. In

addition to claiming that termination of parental rights was not

in Isha's best interests, the mother and Isha argue that several

of the judge's findings of fact are clearly erroneous, that

termination of the mother's parental rights was not properly

before the court, and that the judge erred in not ordering

postadoption visitation. Both parents assert that the

Department of Children and Families (department) failed to make

1 A pseudonym.
reasonable efforts to reunify the family, and that the

department's adoption plan was inadequate because a home study

of the preadoptive parents had not been completed by the time of

trial. Lastly, the parents claim that the judge exhibited bias

against them by requesting that the department introduce several

abuse prevention orders obtained by the mother against the

father, and then depriving them of their right to due process by

relying on that evidence in reaching her conclusions. For the

reasons we discuss in more detail below, we conclude that the

judge did not abuse her discretion and acted properly in all

respects. We therefore affirm the decrees.

Background. Following a trial at which the mother, father,

and two department social workers testified, the judge issued

extensive findings of fact and conclusions of law. We summarize

the relevant facts, reserving certain details for our

discussion. The mother struggled for years with substance

misuse and addiction prior to Isha's birth. That struggle

contributed to her losing custody of her three older children.

During her pregnancy with Isha, the mother used illicit drugs

and was the victim of domestic violence perpetrated by the

father. Several days before Isha's birth, the mother alleged

that the father struck her with a firearm, and she obtained a

restraining order. When Isha was born, she tested positive for

2
fentanyl and marijuana, and the department took emergency

custody of her at the hospital.

Thereafter, on January 4, 2021, the department filed a

petition pursuant to G. L. c. 119, § 2, alleging that Isha was

in need of care and protection. The mother and father waived

their rights to a temporary custody hearing, and the department

was awarded temporary custody. The department then placed Isha

with her mother at Angel House, a family shelter for homeless

women recovering from drug and alcohol addiction. The two lived

there for approximately seven months. During that time, the

mother engaged in several therapeutic programs and made progress

toward maintaining sobriety. However, in August 2021, she

tested positive for marijuana, which caused her to be terminated

from the program. The mother was transferred to another

residential program, Genesis II, but was forced to leave that

program after again testing positive for marijuana in October

2021.

Meanwhile, in September 2021, the parents had agreed to a

conditional custody arrangement whereby the mother had temporary

custody as long as she remained at Genesis II, and the father

had supervised visits. After leaving Genesis II with Isha, the

mother moved into a motel with the father. This arrangement

violated the conditions of the mother's custody of Isha, and, as

a result, the department again obtained emergency custody of

3
Isha on November 15, 2021. Eventually, Isha was placed in the

foster home where she was residing at the time of trial.

After Isha's second removal from the mother, the mother and

father failed to make significant progress toward improving the

conditions that had led to Isha's removal. There were continued

concerns of domestic violence and substance misuse. These

issues impacted the parents' relationship with Isha. For

example, on one occasion in April 2022, the parents abruptly

canceled a scheduled visit with her. It subsequently came to

light that on that same visitation day the mother had contacted

the police and reported that the father was being aggressive

toward her and using substances.

Despite the department's concerns over missed visits, the

parents' sobriety, and their unhealthy relationship with each

other, the department worked with both parents to achieve the

goal of reunification. At one point, the department attempted

to facilitate the mother's placement with Isha in another

residential program, conditioned on the mother demonstrating a

commitment to complying with the program's requirements.

Although that placement did not materialize, the mother was

engaged in substance misuse treatment and claimed to have clean

drug screens during this time. However, the mother did not make

any substantial progress toward resolving her tumultuous

relationship with the father. The department continued to

4
receive several reports of domestic violence, and department

social workers periodically observed the mother with injuries.

Although the mother consistently denied that she was the victim

of domestic violence, she called the police to report that the

father had assaulted her in June 2022, and she obtained a

restraining order against him. The mother obtained another

restraining order in September 2022 after alleging that the

father had physically assaulted her. The father was charged

with assault and battery and other criminal offenses in

connection with these two incidents. The cases were open at the

time of trial.

In July 2022, the department changed Isha's permanency goal

to adoption. By this time, the mother's and father's rapport

with the department had become antagonistic. On one occasion in

September 2022, a department social worker visited the parents

at the motel where they were staying and later reported that the

parents would "lose their minds" when the social worker said

something with which the parents disagree. When the social

worker left, one of the parents shut the door on her, hitting

her leg. Neither parent attended Isha's medical appointments

even though, despite their claim to the contrary, they were

informed of the appointments and invited to attend. When, on

November 4, 2022, the department filed a notice of intent to

seek termination of the mother's and father's parental rights,

5
the relationship between the parents and the department remained

difficult.

At the time of trial, the mother was still residing with

the father. Although the mother had reported incidents of

domestic violence to the police and social workers, she denied

any physical abuse when she testified at trial. For his part,

the father did not accept any responsibility for his conduct,

was terminated from an intimate partner abuse program, and

blamed others for his history of domestic violence. The judge

found that neither parent had developed any insight into their

abusive relationship or had demonstrated how they would change

their behavior to protect Isha in the future.

In addition, the judge found that neither parent understood

how their substance misuse affected Isha. The mother began

using alcohol and drugs at the age of thirteen. Although she

had engaged in substance misuse treatment, sometimes

successfully, she was twice discharged from residential programs

due to her use of marijuana. The mother testified that she did

not believe that the use of marijuana amounted to a lapse of

sobriety. As the judge noted, the mother completed an

outpatient treatment program in April 2022, but did not follow

through with counselling or consistently attend Alcoholics

Anonymous (AA) meetings thereafter. The father similarly had

difficulty maintaining his sobriety. He testified

6
inconsistently at trial about his use of marijuana and alcohol

and, although he claimed to have been sober for two years

preceding the trial, the department was not able to confirm this

assertion, and there was no evidence to support it other than

the father's testimony.

Isha was almost eleven months old at the time she went to

live with the foster parents. She was developmentally delayed

and could not sit upright without assistance or hold a bottle by

herself. The foster parents, who want to adopt Isha, obtained

recommended services to address her complex medical needs. Isha

has been diagnosed with microcephaly, global developmental

delay, polymicrogyria (a brain malformation impacting motor

skills), and mild cerebral palsy. By the time of trial, Isha

had made significant progress. She could pull herself into a

sitting position with assistance and, with the use of leg braces

and an equipment trainer known as a Rifton Pacer, she could

stand. Isha was receiving early intervention services, weekly

physical therapy, and care from a neurologist and orthopedist.

The judge found that the foster parents have demonstrated a

strong commitment to Isha. At the conclusion of the trial,

Isha, who was then twenty-two months old, had been living with

the foster parents (also referred to as her preadoptive parents)

for thirteen months. The judge found that Isha will continue to

need caretakers who can assist her with daily activities

7
including walking, eating, and speaking, and that Isha will need

ongoing services to address possible seizures and vision

problems in the future. The judge also found that the

preadoptive parents have shown their ability to meet Isha's

current needs, and the judge concluded that they would continue

to do so in the future.

Discussion. The standard for termination of parental

rights involves a two-step analysis. A judge must determine

first that a parent is unfit, and second that the termination is

in the best interests of the child. See Adoption of Nancy, 443

Mass. 512, 515 (2005). We review the judge's decision to

terminate parental rights for an abuse of discretion. See

Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub

nom. George P. v. Hugo P., 526 U.S. 1034 (1999).

Here, the judge properly concluded, based on clear and

convincing evidence, that the mother was unfit to care for Isha,

and that termination of the parents' rights was in Isha's best

interests. 2 The parents' history of domestic violence, coupled

with their unaddressed substance misuse and lack of stability,

amply support the judge's conclusion that neither parent was in

a position to care for Isha at the time of trial nor would be

able to do so in the future. Moreover, contrary to the mother's

2 The father did not seek custody at trial. Instead, he
argued that custody should be given to the mother.

8
assertion, the judge considered positive evidence of her ability

to parent Isha. The judge specifically noted the mother's

progress, albeit intermittent, in achieving sobriety and

completing multiple tasks set forth in the department's action

plan. Ultimately, the judge concluded that these gains were not

sufficient, and, in light of Isha's significant needs, neither

parent could adequately care for their daughter. Based on our

review of the record, the judge did not abuse her discretion in

reaching this conclusion.

We now turn to the parents' and Isha's specific arguments.

1. Alleged erroneous facts. The mother and Isha challenge

three of the judge's findings of facts as clearly erroneous.

They claim that the record does not support the judge's finding

that the mother had not consistently engaged in substance misuse

treatment, the judge incorrectly suggested that the mother did

not facilitate reentry into a residential program with Isha, and

the judge erred when she found that the mother had been made

aware of Isha's medical appointments. 3

3 Isha also argues that the judge's finding that she was not
crawling as of October 2022 is clearly erroneous. We need not
resolve this claim as there was ample evidence that Isha needed
assistance to sit, stand, and eat at that time. Thus, even if
we were to agree with Isha on this point, this minor discrepancy
was not central to the ultimate issue of unfitness and,
therefore, is immaterial. See Care & Protection of Olga, 57
Mass. App. Ct. 821, 824-825 (2003).

9
"A finding is clearly erroneous when there is no evidence

to support it, or when, although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed"

(quotation and citation omitted). Custody of Eleanor, 414 Mass.

795, 799 (1993). Here, the challenged findings are either

supported by the evidence or are immaterial errors.

First, there was ample evidence to support the judge's

finding that the mother's commitment to substance misuse

treatment was inconsistent. In particular, the mother was twice

discharged from residential programs due to her marijuana use,

and she did not regularly attend counselling or AA meetings.

The judge did not ignore evidence that the mother had made some

progress in achieving sobriety. In fact, the judge specifically

noted that the mother had completed several substance misuse

programs. The judge found, however, that despite this progress,

the mother had failed to obtain regular, consistent treatment

and had not benefited from the treatment and services she did

receive.

Next, the mother argues that the judge clearly erred in

faulting her for not enrolling in a third residential shelter

after Isha was removed from her care the second time. This

argument centers on the question whether the mother needed a

reunification letter from the department, which the mother

10
claims she did not receive. Our review of the testimony reveals

no error. In any event, assuming without deciding that the

judge erred in finding that the mother rather than the

department was at fault, this finding had little to no bearing

on the judge's ultimate finding of unfitness, which was based on

substantial evidence of noncompliance with treatment. See Care

& Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003).

Lastly, regarding the mother's knowledge of Isha's medical

appointments, there was evidence that during a home visit in

June 2022, a department social worker provided the mother with a

list of Isha's upcoming medical appointments. The judge was

entitled to credit the social worker's testimony and, therefore,

despite the mother's and father's contrary testimony, this

finding of fact was not clearly erroneous. See Custody of

Eleanor, 414 Mass. at 799 ("the judge's assessment of the weight

of the evidence and the credibility of the witnesses is entitled

to deference").

2. Alleged failure to make reasonable efforts to reunify

family. Both parents contend that the department failed to make

reasonable efforts toward reunification. To begin with, as the

department argues in its brief, this issue is raised by the

parties for the first time on appeal, and, therefore, it is

waived. See Adoption of Yalena, 100 Mass. App. Ct. 542, 554

11
(2021). However, even if preserved, this argument is

unavailing.

It is well settled that "[b]efore seeking to terminate

parental rights, the department must make 'reasonable efforts'

aimed at restoring the child to the care of the natural

parents." Adoption of Ilona, 459 Mass. 53, 60 (2011), quoting

Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002).

"Reasonable efforts [are] generally understood to include

accessible, available, and culturally appropriate services that

are designed to improve the capacity of families to provide safe

and stable homes for their children and to ensure that parents

and other family members . . . are making progress on case plan

goals" (quotations and citation omitted). Care & Protection of

Rashida, 488 Mass. 217, 219 (2021).

Here, both parents were offered a variety of services to

improve their parenting skills, including treatment for domestic

violence and substance misuse. That the parents failed to take

consistent advantage of these services is not a basis for

concluding that the department did not fulfill its obligations.

See Adoption of Yalena, 100 Mass. App. Ct. at 554.

3. Alleged premature termination of mother's parental

rights. The mother and Isha argue that the question whether to

terminate the mother's parental rights was not properly before

12
the judge. This argument was first raised by the mother and

Isha in a motion to vacate the judgment, which was denied.

It is true that the trial, when initially scheduled,

concerned the father's petition for review and redetermination

pursuant to G. L. c. 119, § 26 (c). The father filed the

petition in April 2022, approximately five months after Isha was

removed from the mother's custody a second time. While that

petition was pending, on November 4, 2022, the department filed

a notice of intent to seek termination of the mother's and

father's parental rights. When the parties appeared in court

for trial a few weeks later, counsel for the department stated:

"As the Court and all parties are aware, we have filed a Notice

of Intent, so we . . . also will be asking the Court to

terminate rights today." There was no objection, and during the

subsequent trial the parties each addressed the question of the

mother's unfitness and whether termination of the mother's

rights was in Isha's best interests.

Given these circumstances, the motion to vacate the

judgment on the ground that the question whether to terminate

the mother's parental rights was not properly before the judge

was correctly denied. The mother had notice that the department

was seeking termination of her parental rights at the beginning

of the trial. As noted, there was no objection. Instead, the

13
mother proceeded to challenge the department's evidence and

advocate for herself and Isha.

4. The department's plan for adoption. As previously

noted, Isha was placed with the foster parents when she was

eleven months old. Isha requires caretakers who will ensure

that she receives specific services for her medical needs. The

foster parents demonstrated that they are capable of taking care

of Isha, have developed a strong relationship with her, and want

to adopt her. Accordingly, the department recommended that Isha

be adopted by the foster parents and referred the family for a

preadoptive licensing study (PALS). At the time of trial, the

PALS had not yet been completed. The judge nevertheless

concluded that adoption by the foster parents was in Isha's best

interests. The judge noted that the department's social worker,

Isha's early intervention worker, and a day care provider all

observed a positive and caring relationship between Isha and her

foster parents. In addition, the foster parents had indicated

their willingness to facilitate visits between Isha and the

parents and paternal grandparents if the foster parents were

permitted to adopt her. Although there were no other placement

resources for Isha, she and both parents argue that the judge

abused her discretion because the department's adoption plan had

not been finalized.

14
It is well settled that before terminating parental rights,

the judge must give "full and fair consideration to the

department's adoption plan." Adoption of Helga, 97 Mass. App.

Ct. 521, 529 (2020). However, "[t]he law does not require that

the adoption plan be 'fully developed' in order to support a

termination order, but it must provide 'sufficient information

about the prospective adoptive placement so that the judge may

properly evaluate the suitability of the department's

proposal.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770

(2019), quoting Adoption of Willow, 433 Mass. 636, 652 (2001).

Here, in approving the department's recommendation that Isha be

adopted by the current foster parents, the judge specifically

found that the foster parents had demonstrated both the ability

and commitment to care for Isha, and that Isha had developed a

close bond with them. In view of these findings, which are

supported by the record, we discern no abuse of discretion in

the judge's approval of the department's adoption plan.

5. Postadoption visitation. The judge found that a

significant relationship existed between Isha and her parents,

and that continued contact with them was in Isha's best

interests. She therefore ordered that both parents be offered a

minimum of four visits with Isha per year until Isha was placed

in a preadoptive home, or the PALS of the current foster parents

was approved. The judge further ordered that once Isha was

15
adopted, the adoptive parents would have sole discretion in

approving any additional contact between the parents and Isha.

The mother argues that the judge abused her discretion by

leaving postadoption visitation to the discretion of the

adoptive parents. Isha makes the same argument and also

contends that the judge abused her discretion by denying her

motion for relief from judgment, which sought to clarify and

ensure posttermination and postadoption visits.

In determining whether to order posttermination or

postadoption visitation, a judge first determines whether

visitation is in the child's best interests. See Adoption of

Ilona, 459 Mass. at 63. The judge should consider the bond

between the child and the parent whose rights have been

terminated. In addition, where, as here, there is a family

waiting to adopt the child, the judge must determine whether the

child has a bond with the adoptive family. Where visitation is

in the best interests of the child, the judge also must

determine whether an order of visitation is warranted to protect

the child's interest in maintaining a relationship with the

biological parent. Id. at 64.

As noted, the judge found that Isha and the parents had a

close bond. The judge also found that the foster parents have a

close bond with Isha and had expressed their willingness to

facilitate a relationship between Isha and the parents. Nothing

16
in the record provides a basis on which to conclude that the

foster parents will act contrary to Isha's best interests in

this regard. Given these circumstances, we discern no abuse of

discretion in the judge's decision to leave future contact

between Isha and the parents to the judgment of Isha's adoptive

parents, or in the judge's denial of Isha's motion for relief

from judgment.

6. Alleged judicial bias and due process violations. The

mother and father assert that the judge erroneously admitted

five abuse prevention orders in evidence, and that this error

showed judicial bias, which undermined the proceedings and

deprived the parents of due process. They further argue that

the judge should have recused herself, and that the failure to

do so requires that we vacate the decrees. The parents did not

make any of these arguments at trial and, therefore, they are

waived. 4 See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338

(1997). Even if these claims had been preserved, they are

unavailing.

We briefly recount the circumstances surrounding the

admission of the orders. Before the last day of trial, the

court clerk informed the parties that the judge intended to

4 At trial, the parents objected to the admission of the
orders solely on the ground that they were prejudicial and
contained hearsay.

17
enter five abuse prevention orders obtained by the mother

against the father in evidence. Before the trial resumed,

counsel for the father requested clarification. The judge then

explained that the orders in question would be marked as "court

documents" and admitted in evidence. Id. The judge further

informed all counsel that, should they wish to recall witnesses

to make inquiries about the orders, they could do so. The

orders were then marked as exhibits over the father's objection.

Counsel for the father pursued the matter, asserting that

recalling witnesses at this point would be "problematic," and

arguing that that the orders contained prejudicial hearsay. The

judge overruled the objection, noting that the Department of

Probation had provided the orders to counsel at an earlier court

proceeding, and that information about the abuse prevention

orders was already in evidence.

Thereafter, the judge reversed course slightly and marked

the exhibits for identification. She then asked if "any counsel

is seeking to offer [the orders] into evidence." The attorney

for the department requested that the orders be admitted, while

counsel for the father and the mother objected. The objections

were overruled, and the orders were entered in evidence. The

judge offered counsel for all parties additional time if

necessary, and she again noted that there was no prejudice to

either the mother or the father because evidence of the

18
existence of the orders had already been introduced during the

proceedings.

As an initial matter, we discern no prejudice where, as the

judge noted, evidence of domestic violence and the existence of

the abuse prevention orders had already been introduced at

trial. Nor could there be any due process violations where

there was no prejudice, and where the judge twice offered

additional time to the parties to recall witnesses should they

choose to do so.

Next, the judge's conduct did not reveal judicial bias.

Our review of the record amply supports the conclusion that the

judge treated the parties even-handedly throughout the

proceedings, and that her decision to admit the orders did not

stem from any bias against the parents. Moreover, as the

department notes in its brief, the judge was obligated to

consider evidence of domestic violence and determine whether

such violence had a potential negative impact on Isha. See

Custody of Vaughn, 422 Mass. 590, 599-600 (1996).

Lastly, there is nothing in the record to support a

conclusion that the judge should have recused herself. The

absence of a request for recusal is significant. See Adoption

of Norbert, 83 Mass. App. Ct. 542, 547 (2013). The judge's

conduct should not be called into question without sound reason,

which does not exist here.

19
Conclusion. We affirm the decrees and the orders denying

the motion to vacate the judgment and the motion for relief from

judgment.

So ordered.

By the Court (Vuono, Neyman &
D'Angelo, JJ. 5),

Clerk

Entered: December 4, 2024.

5 The panelists are listed in order of seniority.

20