ADOPTION OF OTTO (And Two Companion Cases).

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-434

ADOPTION OF OTTO 1 (and two companion cases 2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees of the Juvenile Court

terminating her parental rights to her three children, Otto,

Anne, and Burt, and approving the adoption plans of the

Department of Children and Families (department). On appeal,

the mother maintains that the evidence did not clearly and

convincingly establish that her unfitness was not temporary or

that termination was in the children's best interests. The

mother also claims that the department failed to make reasonable

efforts to reunify her with the children, and that the trial

judge was unfairly partial towards the department. We affirm.

1 A pseudonym.
2 Adoption of Anne and Adoption of Burt. The children's names
are pseudonyms.
Background. The mother and the father are the parents of

Otto (born 2015), Anne (born 2016), and Burt (born 2018). 3 The

mother and the father were married at the time of trial.

The mother's history with the department began in 2006,

when she lost custody of her two oldest children from a previous

relationship (who are not the subjects of these proceedings) to

her mother, the maternal grandmother; and the involvement

resumed in 2015 when Otto, her first child with the father, was

born. The department filed the underlying care and protection

petitions for each subject child shortly after his or her birth

and obtained emergency custody based on evidence of the mother's

mental health challenges and cognitive limitations. Several

months after each child's birth, the department changed the

permanency goal from reunification to adoption.

The trial judge found that the mother's untreated mental

illness and cognitive limitations negatively affected her

ability to be a parent to the children. Since 2015, the mother

has yelled at and threatened department social workers on

numerous occasions, including threatening to have family members

"shoot up" the department's office. The mother has struggled to

interact with the children appropriately during supervised

3 The father stipulated to his unfitness and the termination of
his parental rights midtrial on July 21, 2022, and is not a
party to this appeal.

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visits, including allowing them to engage in dangerous behavior

and providing them with inappropriate food and medications. The

department has created various action plans for the mother, but

the mother's engagement in the department's referred services

has been inconsistent, and she has failed to substantially

benefit from the services in which she has engaged. The mother

has undergone multiple psychiatric hospitalizations but has

consistently denied needing mental health treatment. The mother

was previously appointed a guardian ad litem but the trial judge

found in July 2022 after trial had commenced that she was able

to assist in her defense, understood the nature of the

proceedings, and was competent to continue to stand trial.

A trial took place over five nonconsecutive days between

May and July 2022; the mother attended each day of the trial.

After hearing testimony from five witnesses, including the

mother, and admitting dozens of exhibits, the judge found that

the mother was unfit, her unfitness was likely to continue into

the indefinite future as a near certitude, and that the

department had made reasonable efforts to reunite the children

with her. The judge terminated the mother's parental rights and

approved the department's proposed plan for the children's

adoption by their longtime foster mother as in the best

interests of the children.

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Discussion. 1. Termination of mother's parental rights.

"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). Clear and convincing evidence means

that "[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). "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. 512, 515 (2005), "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, supra.

"[T]he best interests analysis . . . requires a court to

focus on the various factors unique to the situation of the

individual[s] 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. at 515, quoting Petition of the New

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England Home for Little Wanderers to Dispense with Consent to

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

"Parental unfitness is determined by considering a parent's

character, temperament, conduct, and capacity to provide for the

child's particular needs, affections, and age." Care &

Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).

"Although 'stale information cannot be the basis for a finding

of current parental unfitness[,] . . . [p]rior 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). In terminating parental rights, it is also

"appropriate for a judge to consider 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"

(citation omitted). Care & Protection of Zeb, 489 Mass. 783,

788 (2022). "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. "Stability in the lives of children is

important, particularly in a case that has continued for a long

period of time in the hope that the [parents] could and would

successfully rehabilitate [themselves]." Adoption of Nancy, 443

Mass. at 517.

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The mother does not contest the trial judge's finding that

she is currently unfit to be a parent to her children. She

instead maintains that the judge erred in determining that her

unfitness was not temporary, and that the department, by

providing inadequate services, was responsible for her continued

unfitness. The mother also asserts that the judge did not

properly credit her progress.

The mother points to four occasions spanning 2018–2019 in

which she had positive interactions with the children during the

parents' supervised visits, positing that those occasions

demonstrate her parenting capacity. As did the trial judge, we

credit the mother for those positive interactions. The record

before the judge, however, showed that the mother did not have

consistently positive and safe interactions during visits with

the children. Further, the mother lost custody of her two

oldest children for similar reasons in 2006, but did not address

those reasons in the intervening years.

"A judge may not decline to dispense with consent based on

a faint hope that the family will succeed if reunited."

Adoption of Virgil, 93 Mass. App. Ct. 298, 302 (2018), quoting

Adoption of Inez, 428 Mass. 717, 723 (1999). Given that the

mother was not able to make substantial progress in the seven

years between Otto's birth and the trial, nor in the sixteen

years since she had lost custody of her older children, and

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considering childhood's "fleeting" nature, we cannot say that

the trial judge abused her discretion by finding that the

mother's unfitness was likely to continue indefinitely. See

Adoption of Ilona, 459 Mass. at 60.

Further, despite receiving diagnoses of paranoid

schizophrenia and cognitive limitations, the mother continued to

deny having a mental illness or a need for treatment and

medication. She had been inconsistent with department and

mental health services and treatment since the department first

gave her an action plan in 2015, and she has never been in full

compliance with a department action plan. See Adoption of Luc,

484 Mass. 139, 146-147 (2020). Here, as in Adoption of Luc, the

concern was "not that the mother has mental health challenges,

but that those challenges remained largely unaddressed, and even

unacknowledged," to the children's detriment. Id. at 146 n.17.

See Adoption of Frederick, 405 Mass. 1, 9 (1989) (parent's

mental disorder is relevant to extent that it affects parent's

capacity to assume parental responsibility). Although the

mother made some positive efforts with respect to her action

plan, including seeing a counselor at times and attending some

parenting classes, these efforts have not resulted in meaningful

progress in improving her mental health or parenting abilities.

She continued to deny having a mental illness or needing mental

health treatment and demonstrated little benefit from attending

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parenting classes. This evidence further supports the judge's

conclusion that the mother's unfitness was likely to continue.

See Adoption of Ilona, 459 Mass. at 59 (appellate courts give

"substantial deference" to decision that termination of parent's

rights is in children's best interests, and "reverse only where

the findings of fact are clearly erroneous or where there is a

clear error of law or abuse of discretion").

2. Reasonable efforts. In deciding whether a parent's

unfitness is merely temporary, "[a] judge may consider the

department's failure to make reasonable efforts [to reunify the

parent and children]." Adoption of Ilona, 459 Mass. at 61.

"Where a parent, as here, has cognitive or other limitations

that affect the receipt of services, the department's duty to

make reasonable efforts to preserve the natural family includes

a requirement that the department provide services that

accommodate the special needs of a parent." Id. On appeal, the

mother maintains that the department failed to make reasonable

efforts at reunification and failed to provide adequate services

tailored to her mental health issues.

"It is well-established that a parent must raise a claim of

inadequate services in a timely manner." Adoption of Daisy, 77

Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011). "The

parent should assert the claim 'either when the parenting plan

is adopted, when [s]he receives those services, or shortly

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thereafter.'" Adoption of West, 97 Mass. App. Ct. 238, 242

(2020), quoting Adoption of Gregory, 434 Mass. 117, 124 (2001).

"A parent cannot raise a claim of inadequate services for the

first time on appeal," to ensure the department has an

opportunity to address any problems. Adoption of West, supra.

Where a parent "perhaps could have raised the issue more

pointedly at trial," but inadequate services "was a theme that

ran through the life of the case," however, we may still

properly review the issue. See Adoption of Chad, 94 Mass. App.

Ct. at 839 n.20. Here, while the mother never formally raised

the issue before or during trial, the department was aware that

the services it offered the mother had not had a significant

impact on her action plan compliance, and the mother questioned

several witnesses at trial about whether the department had made

reasonable efforts and had provided adequate services.

Accordingly, reasonable efforts and inadequate services were "a

theme that ran through the life of the case," and we may review

the claim. See id.

On appeal, the mother asserts that the department should

have provided a parent aide, a visiting nurse, and a referral

for a shelter, and should have held an Americans with

Disabilities Act (ADA) accommodation meeting. "Reasonable

efforts [are] generally understood to include accessible,

available, and culturally appropriate services that are designed

9
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). "The department's

obligation to make reasonable efforts to reunify the child with

the mother is contingent upon her obligation to substantially

fulfill her parental responsibilities (including seeking and

using appropriate services)." Adoption of Yalena, 100 Mass.

App. Ct. 542, 554 (2021). Here, evidence that the mother at

many times refused department services and failed to follow

through on referrals amply supported the judge's determination

that the department met its obligations and "complied with its

duty to make 'reasonable efforts . . . to prevent or eliminate

the need for removal [of the children] from the home.'" 4

4 At oral argument the department represented that its failure to
offer an ADA accommodation meeting resulted from the mother's
denial that she had a mental illness or disability and failure
to follow through on the department's referrals for diagnostic
testing, as the department could not diagnose her. But the
findings of fact are clear that the mother was diagnosed with
schizophrenia and other mental health and cognitive issues
numerous times, including at least once during the course of
this case; indeed, the department first tasked the mother with
engaging with the Department of Mental Health due to her
schizophrenia diagnosis in 2016. Nonetheless, for the same
reasons that we conclude that the department made reasonable
efforts more generally, we decline to find that the department
rendered inadequate services by any failure to provide an ADA
meeting.

10
Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C.

See Adoption of Daisy, 77 Mass. App. Ct. at 782 (mother's delay

in obtaining therapy for herself undermined her inadequate

services claim); Adoption of Eduardo, 57 Mass. App. Ct. 278, 282

(2003) ("Because the mother failed to make use of the services

offered to strengthen and then reunify her family and denied her

mental health needs by refusing both evaluation and treatment,

she cannot successfully argue that [the department's] reasonable

efforts failed to accommodate properly her mental health needs

or to strengthen her family").

3. Fairness of trial court findings. "A judge's

determination of custody must be based on the best interests of

the child, after an 'even handed' assessment of the evidence."

Adoption of Helga, 97 Mass. App. Ct. 521, 528 (2020), quoting

Adoption of Hugo, 428 Mass. 219, 225–226 & n.8 (1998), cert.

denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). "A

judge's findings are entitled to substantial deference, and we

will not disturb those findings unless they are clearly

erroneous." Adoption of Helga, supra. The mother claims that

the trial judge's findings were not evenhanded and that the

judge did not fully consider all of the evidence, including

evidence that was positive for the mother. To the contrary, we

conclude that the trial judge demonstrated, through numerous

unchallenged findings and conclusions, that she paid careful

11
attention to the evidence, weighing both the positive and the

negative, and therefore did not abuse her discretion.

The mother further claims that the judge erred by not

including in her findings parts of a social worker's testimony.

Where, as here, a "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.

Decrees affirmed.

By the Court (Meade,
Hershfang & D'Angelo, JJ. 5),

Clerk

Entered: October 17, 2023.

5 The panelists are listed in order of seniority.

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