Adoption of Sally.

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

24-P-318

ADOPTION OF SALLY.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a Juvenile Court

judge finding her unfit and terminating her parental rights to

her daughter, Sally. See G. L. c. 119, § 26; G. L. c. 210, § 3.

The mother primarily argues that the judge erred in finding her

indefinitely unfit because the Department of Children and

Families (DCF) did not make reasonable efforts to reunify the

mother and the child. We affirm.

Background. 1. The parties. The mother was born in 1989.

As a child, she experienced a drowning incident that left her

with a central auditory processing disorder. A court-ordered

neuropsychological evaluation performed in February 2022

indicated that the mother had "considerable neuropsychological

1 A pseudonym.
impairments across myriad domains of neurocognitive functioning"

and "diagnoses of Probable Major Neurocognitive Disorder Due to

Traumatic Brain Injury (anoxia from drowning); Major Depressive

Disorder; and features of Dependent Personality Disorder." The

mother graduated from a vocational high school and attended two

semesters at community college.

The mother has three children. Her first two children were

born in 2014 and 2017. Their father is the mother's previous

partner. DCF has had extensive involvement in the two

children's lives, and their paternal grandparents have had

guardianship of them since February 2020. In March 2020, the

mother learned that she was pregnant with the child, at twenty-

one weeks of pregnancy, and thus she was late in receiving

prenatal care. The child's father is named on her birth

certificate but he claims he is not her biological father.2

The child was born in July 2020, with several medical

conditions including choanal atresia;3 other congenital

2 The father "has been involved minimally, if at all, with
both the child and [DCF] since her birth," and did not appeal
from the decree finding him unfit and terminating his parental
rights.

3 The judge found that "[c]hoanal atresia is a developmental
abnormality characterized by 'a congenital narrowing of the back
of the nasal cavity that causes difficulty breathing.'
Bilateral choanal atresia specifically indicates that both nasal
passages are blocked. This condition is rare, often associated
with other developmental anomalies, and is life-threatening.

2
deformities of the skull, face, and jaw; other malformations of

the ear; and candidates stomatitis. Less than one hour after

birth, she experienced respiratory distress requiring intubation

and was transferred to a neonatal intensive care unit. She

remained there for the first month of her life because of the

high risks associated with her medical conditions. In August

2020, the child underwent the first of many surgeries to address

her breathing difficulties.

2. Involvement with DCF. In August 2020, in preparation

for the child's impending release, the hospital staff notified

the parents that they would have to complete a twelve-hour

course on how to care for the child. Over the next week, the

parents came in every day and said they would complete the

training the following day, but they failed to do so each time.

As a result, a mandated reporter filed a G. L. c. 119, § 51A

report, alleging neglect. A DCF investigator spoke to the

parents about the allegations. Despite numerous reminders and

opportunities to do so, the parents never completed the full,

twelve-hour day of training.

The child continued to have serious medical setbacks, and,

Symptoms of choanal atresia appear immediately after birth, and
infants with the condition often require intubation immediately
after delivery [followed by prompt surgery] to open the nasal
airway sufficiently to allow the infant to breathe on their
own."

3
in the view of the hospital staff, the parents failed to

demonstrate the competence necessary to care for her.

Specifically, the staff were concerned that the parents "were

not able to follow simple instructions, [and] they would not be

able to provide the difficult medical care that the child needed

and would require in the future."

Accordingly, in September 2020, DCF filed a care and

protection petition and was granted temporary custody of the

child. In the same month, the child was discharged from the

hospital and placed in an unrestricted foster home. In October

2020, the child was placed in her current, long-term foster

home, which became her preadoptive home in 2022. She has never

been in the mother's physical custody.

Following the child's removal, DCF developed and

implemented an action plan for the mother, including, but not

limited to, requirements to engage in parenting classes, work

with a parent aide, complete a neuropsychological evaluation,

engage in therapy, and attend visitation with the child. The

mother testified that the purpose of the plan was "to waste

[her] time."

3. The mother's engagement with services. a. Visitation.

Between September 2020 and December 2022, the mother attended

visits inconsistently, frequently arriving late or not following

visitation policies. The mother missed eight in-person visits

4
and also missed most of one virtual visit because her phone

"died" and she failed to rejoin the visit. The mother arrived

late to seven visits. When the mother did attend visits, they

"typically went well and Mother presented as caring, engaging

and overall appropriate with [the child]."

The mother has not visited the child since December 2022.

In February 2023, after canceling several visits in December,

the mother informed the DCF social workers that she stopped

attending visits because of the price of gasoline. She then

demanded more frequent visits closer to her residence. The DCF

social worker recommended that the mother take the bus to visits

and offered to request an Uber gift card to assist her. The

mother refused to consider the bus because of a "bad experience"

and refused to attend visits at a DCF office. Despite the

mother's refusal to attend visits, the DCF worker continued to

attempt to schedule monthly visits and to offer transportation

assistance to the mother.

b. Parenting skills. At the direction of DCF, the mother

attended and completed a twelve-week parenting class. The

mother testified that she had learned nothing from the parenting

class about the child's medical needs.

The mother did not effectively comply with her action plan

task that she work with a parent aide or complete a parenting

evaluation. Although the mother initially engaged with an aide

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during home visits, the parent aide terminated the service in

2021 because of the mother's canceling and missing weekly

meetings. At the meeting terminating services, the mother

stated that she did not understand why she was involved with DCF

and why "everyone [was] targeting her." DCF assisted the mother

to reengage with her parenting aide, but ultimately, the aide

and the mother mutually agreed to terminate the relationship

because the mother was not benefiting from the services or

working on any goals. Furthermore, although the parent

evaluator observed three parent-child visits, and the mother

claimed she completed the evaluation, the mother refused to sign

a release to allow DCF to obtain the results, claiming it was

"never written up because the parent evaluator felt it would be

used against [the mother]."

c. Mental health and neurological concerns. The mother

complied with the action plan task that she engage in individual

therapy, but DCF struggled to confirm the mother's engagement.

The mother also complied with her task to receive a

neuropsychological evaluation. The mother testified that the

sole recommendation of the evaluation was to work with a parent

aide, but she later admitted that she had not read the

evaluation. The mother was therefore unaware of the

recommendations therein, namely, to obtain a full psychiatric

consult, medical evaluation, cognitive behavioral therapy, and

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bloodwork, and did not follow them.

4. The mother's engagement during concurrent planning. In

January 2022, DCF changed the child's goal from reunification to

adoption. Nonetheless, DCF continued to assist the mother to

prepare for the possibility of reunification with the child as

part of its "concurrent planning." This change triggered

resistance from the mother.

In April 2022, the judge reappointed an investigator for an

update on the case. The mother informed the investigator that

she was being "mentally and emotionally abused by [DCF]," she

was not given a chance to learn about the child's medical needs,

and she was not being provided with services. Specifically, the

mother believed DCF had left her out of the child's medical

treatment and already made the decision to "have her adopted,"

so DCF was not providing "services to help her raise [the

child]." At that point, the father was the mother's only

support, as she was no longer speaking with the maternal

grandmother or engaging with her parent aide.

In 2022, the mother stopped meeting with DCF regularly.

The mother also began occasionally refusing home visits. On

July 19, 2022, the mother informed her social worker that she

was not willing to let DCF see her living space because "if you

guys see the room I'm staying in then you guys are going to hold

my child from me."

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In January 2023, a DCF social worker sought to schedule a

home visit, but the mother refused unless the goal was changed

back to reunification. In between these refusals, as noted

above, the mother permitted home visits of her apartment in

November 2022 and February 2023. But even then, the mother

"made it clear . . . that she felt meeting with [DCF] was not

beneficial to her unless her child is to be reunified." In

January 2023, the parent aide reported that the mother was

unwilling to work with her if the goal was not reunification.

After February 2023, the mother refused to meet with DCF

altogether unless the child's goal was changed to reunification.

In August 2021, DCF held a permanency planning conference

at which DCF determined a need to engage both parents more in

the child's medical care. DCF obtained Zoom video links that

the mother could use to attend the child's appointments

virtually. The mother initially regularly attended those

appointments.

Beginning in 2022, after DCF changed the child's goal from

reunification to adoption, the mother's participation in the

child's appointments began declining as well. After a session

in December 2022, the mother reported that she would no longer

attend "because [the child] was going up for adoption." The

mother attended no further appointments.

By the time of trial in April 2023, despite DCF's

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considerable efforts, the mother admitted she still did not know

all of the child's medical needs and did not know how to meet

the child's most basic needs. For example, the child continued

to struggle with oral intake of food and required feeding

primarily via gastronomy tube (G-tube).4 The mother admitted she

did not know what kind of tube it was and had never fed her with

it.

5. Termination of parental rights. On April 15, 2022, DCF

filed a motion for review and redetermination5 and a notice of

intent to terminate parental rights. The judge allowed the

motion on April 19, 2022, and held a termination trial over the

course of three days beginning on April 10, 2023, and ending on

May 10, 2023. On May 25, 2023, the judge found the mother and

the father unfit and terminated their parental rights.

The judge based his decision to terminate the mother's

parental rights on her "lack of consistent and cooperative

engagement with DCF, [her] lack of insight into the reasons for

[DCF]'s initial involvement and continued concerns, [her]

extremely limited understanding of [the child's] complex medical

4In January 2021, the G-tube was inserted into the child's
stomach because she was unable to obtain sufficient nourishment
from oral feedings.

5Prior to this, on November 15, 2021, the judge found the
mother unfit at a previous trial but had not terminated her
parental rights. The mother did not appeal that judgment.

9
needs and the care required to address them, and [her] inability

and/or unwillingness to place [the] child's needs above [her]

own."

Discussion. 1. Standard of review. "To terminate

parental rights to a child and to dispense with consent to

adoption, a judge must find by clear and convincing evidence,

based on subsidiary findings proved by at least a fair

preponderance of evidence, that the parent is unfit to care for

the child and that termination is in the child's best interests"

(citation omitted). Adoption of Darlene, 99 Mass. App. Ct. 696,

702 (2021). See Adoption of Ilona, 459 Mass. 53, 59 (2011).

"Because termination of a parent's rights is an 'extreme step,'

a judge must decide both whether the parent is currently unfit

and whether, 'on the basis of credible evidence, there is a

reasonable likelihood that the parent's unfitness at the time of

trial may be only temporary.'" Id., quoting Adoption of Carlos,

413 Mass. 339, 350 (1992). "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. "Because childhood is fleeting, a parent's unfitness

is not temporary if it is reasonably likely to continue for a

prolonged or indeterminate period." Id. at 60. The judge must

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measure this in terms of "probabilities rather than

possibilities." Adoption of Nicole, 40 Mass. App. Ct. 259, 261

(1996). We keep in mind that, in the context of parental

fitness, "[t]he judge who hears the evidence, observes the

parties, and is most familiar with the circumstances remains in

the best position to make the judgment." Guardianship of

Estelle, 70 Mass. App. Ct. 575, 579 (2007).

"We give substantial deference to a judge's decision that

termination of a parent's rights is in the best interest of the

child, and 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. An abuse of

discretion occurs only where "the judge made a clear error of

judgment in weighing the factors relevant to the decision such

that the decision falls outside the range of reasonable

alternatives" (quotation and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. The mother's indefinite unfitness. The mother

challenges the judge's finding that her "unfitness will continue

undiminished into the future with an attendant harmful effect on

[the child]." More specifically, the mother argues that the

judge's finding of indefinite unfitness was in error because it

was influenced by an erroneous finding that DCF made reasonable

efforts to reunify the mother and the child. We disagree.

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"Before seeking to terminate parental rights, [DCF] must

make 'reasonable efforts' aimed at restoring the child to the

care of the . . . parents." Adoption of Uday, 91 Mass. App. Ct.

51, 53 (2017), quoting Adoption of Ilona, 459 Mass. at 60. DCF

"must match services with needs, and the trial judge must be

vigilant to ensure that it does so" (quotations and citations

omitted). Adoption of Ilona, supra at 61.

"This duty 'includes a requirement that [DCF] provide

services that accommodate the special needs of a parent.'"

Adoption of Uday, 91 Mass. App. Ct. at 53, quoting Adoption of

Ilona, 459 Mass. at 61. "However, even where [DCF] has failed

to meet this obligation, a trial judge must still rule in the

child's best interest." Adoption of Uday, supra, quoting

Adoption of Ilona, supra. "While courts protect the rights of

parents, the parents' rights are secondary to the child's best

interests and . . . the proper focus of termination proceedings

is the welfare of the child" (quotation and citation omitted).

Adoption of Ilona, supra. See Adoption of Inez, 428 Mass. 717,

720 (1999), quoting Care & Protection of Robert, 408 Mass. 52,

62 (1990) ("While parents have a constitutionally recognized

interest in maintaining the family unit, a 'child's interest in

freedom from neglect or abuse is absolute'"). See also Custody

of a Minor, 375 Mass. 733, 749 (1978) (best interests of child

paramount consideration where child's well-being at issue).

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The judge made 377 findings of fact and forty-three

conclusions of law. Ultimately, the judge found that "[DCF] has

made reasonable efforts to make it possible for [the child] to

be placed in Mother's . . . custody." The judge found that,

despite these efforts, "Mother . . . [is] not able, fit or ready

to assume parental responsibility for [the child] and that [the

mother] will remain unfit indefinitely." Having carefully

reviewed the record, we discern no clear error in the trial

judge's finding that DCF made reasonable efforts to address the

mother's unfitness and that the mother remained indefinitely

unfit.

Our analysis must begin with the fact that the child was

born with profound medical needs. As noted, the hospital staff

tried to provide the mother with the information necessary to

care for the child, but the mother never completed the necessary

training. From that point forward, DCF made repeated efforts to

help the mother learn how to care for the child. DCF obtained

Zoom links for the mother to attend the child's medical

appointments, offered assistance for her to attend visits,

helped her engage with a parenting aide, and recommended

classes, evaluations, and therapy. Although the mother took

advantage of some DCF resources and completed some tasks on her

action plan, she also repeatedly rejected DCF resources designed

to improve her fitness to care for the child. Critically, she

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never learned how to feed the child through her G-tube and

stopped visiting the child for the four months before the

termination trial. DCF's obligation to provide services aimed

at strengthening the family and reunifying children with their

parents is contingent on the parents' willingness to engage in

those services and fulfill their parental obligations. See

Adoption of Eduardo, 57 Mass. App. Ct. 278, 282 (2003); Adoption

of Mario, 43 Mass. App. Ct. 767, 774 (1997).6

For these reasons, we discern no clear error in the judge's

determination that DCF made reasonable efforts to address the

mother's unfitness or that "her unfitness is likely to continue

into the indefinite future to a near certitude."

3. The child's best interests. In any event, "a

determination that reasonable efforts were not made does not

6 The mother also argues that DCF did not accommodate her
disability as required by its own disability policy. Because
the mother did not raise this claim at any point prior to the
termination trial, it is waived. See Adoption of Gregory, 434
Mass. 117, 124 (2001) ("If a parent believes that [DCF] is not
reasonably accommodating a disability, the parent should claim a
violation of [her] rights under either the ADA or other
antidiscrimination legislation, either when the parenting plan
is adopted, when [s]he receives those services, or shortly
thereafter"). In any event, DCF did in fact communicate with
the mother in multiple modalities, including phone, e-mail, and
text, in an effort to accommodate her central auditory
processing disability. And again, "even where [DCF] has failed
to meet this obligation [to accommodate the special needs of a
parent], a trial judge must still rule in the child's best
interest." Adoption of Uday, 91 Mass. App. Ct. at 53, quoting
Adoption of Ilona, 459 Mass. at 60.

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preclude . . . even the ultimate termination of parental

rights," Care & Protection of Rashida, 489 Mass. 128, 133

(2022), "[b]ecause our lodestar is necessarily the best

interests of the child," Adoption of Bea, 97 Mass. App. Ct. 416,

417 (2020). "[T]he best interests analysis . . . requires a

court to focus on the various factors unique to the situation of

the [child] for whom it must act." Custody of a Minor, 375

Mass. 733, 753 (1978). "The standard for parental unfitness and

the standard for termination are not separate and distinct, but

'reflect different degrees of emphasis on the same factors.'"

Adoption of Nancy, 443 Mass. 512, 515 (2005), quoting Petition

of the New England Home for Little Wanderers to Dispense with

Consent to Adoption, 367 Mass. 631, 641 (1975).

The judge found that "[the child]'s best interests would be

served by a decree terminating her legal relationship with

Mother." Moreover, he found that "[t]he permanency plan

proposed by [DCF] has sufficient content and substance. It

establishes a superior plan for [the child] and it is in her

best interests. [DCF]'s plan is adoption of [the child] by her

current pre-adoptive mother. . . . [DCF]'s plan of adoption by

the current, pre-adoptive foster parent represents the best plan

for [the child]'s stability and future success."

Having carefully reviewed the record, we are persuaded that

the judge acted within his discretion in finding that it was in

15
the child's best interests to terminate the mother's parental

rights and approve DCF's plan of adoption, and that the judge's

findings of fact in support of that decision were not clearly

erroneous.

Again, our analysis must begin with the fact that the child

was born with profound medical needs. The trial judge found

that:

"[The child] has been placed with her current foster
mother . . . since she was eleven weeks old and all
evidence clearly shows a positive, supportive, and
loving parent-child relationship. Despite [the
child]'s extensive medical and developmental needs,
[DCF] has never expressed concerns for [the foster
mother's] ability or willingness to care for her and
she takes [the child] to all of her appointments.
[The child] is comfortable in the home and looks to
[the foster mother] for affection, engagement, and
reassurance. Most important, [the foster mother] is
committed to adopting [the child] and is willing to
maintain her connection with Mother as long as it is
appropriate. [The child] is in a safe and stable home
environment with [the foster mother], and all evidence
indicate[s] that she will be able to meet her present
and future needs. In consideration of the foregoing,
forcing [the child] to be placed in [the mother]'s
care for the first time would not be in her best
interests."

By contrast, the mother's own testimony confirmed that at

the time of the termination trial in April 2023, she did not

"know anything of what's going on with [the child] medical-

wise." She did not know why the child was in occupational

therapy. She did not know what medical specialists followed the

child. The mother also acknowledged that she had not developed

16
any bond with the child. She testified that during visits, the

child "looks confused. She looks like she doesn't know who I

am." Nothing in the record suggests any likelihood that these

issues would resolve even if DCF provided more services.

Instead, the mother's lack of engagement in the child's medical

care supports the judge's conclusion that it was in the best

interests of the child to terminate the mother's parental

rights. Contrast Adoption of Chad, 94 Mass. App. Ct. at 840,

840 (judge's findings did not adequately address how termination

of parental rights was in children's best interests, where

children had "bond and positive relationship" with mother).

Finally, the judge considered the provisions of G. L.

c. 210, § 3 (c), and found factors (ii), (iii), (v), (vi),

(vii), (viii), (x), and (xii) to be applicable. The record

evidence amply supports the judge's findings and determination

that the mother is unfit, that she is likely to remain so

indefinitely, and that termination of her parental rights was in

the child's best interests.

Decree affirmed.

By the Court (Neyman,
Ditkoff & Wood, JJ.7),

Clerk
Entered: March 6, 2025.

7 The panelists are listed in order of seniority.

17