ADOPTION OF ERIK (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

24-P-728

ADOPTION OF ERIK (and a companion case 1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from the decrees of the Juvenile Court

finding her unfit to parent Erik and David, terminating her

parental rights, and declining to order posttermination and

postadoption visitation. We affirm. 2

Background. We recount the mostly undisputed facts,

reserving certain details for our discussion. The mother's

first adult involvement with the Department of Children and

Families (department) began in 2016 when she had her first child

1 Adoption of David. The children's names are pseudonyms.

2The father is identified as the legal father on Erik's
birth certificate. The father is the putative father of David,
but he is not identified on the birth certificate and had not
established his paternity by the time of trial; he was also
working diligently on completing his action plan tasks assigned
by the department. As a result, trial proceeded as to the
mother's parental rights only, and the father's trial was
continued to a later date.
at eighteen years old. 3 The mother's first child was removed

from the mother's care in 2017 due to the mother's mental health

challenges, unsanitary housing, and violent relationship with

that child's father. Also in 2017, the mother was

psychiatrically hospitalized at least three times and diagnosed

with schizophrenia. In 2018, the mother's parental rights as to

her first child were terminated.

From January 2019 until February 2020, the mother was

psychiatrically hospitalized again. Erik was born later in

2020. With the department's support, the mother began working

with a parent aide and engaging in therapy. In September 2020,

a report alleging a violent incident between the mother and the

father was filed with the department. That same month, the

department was granted temporary custody of Erik, who was an

infant at the time. The mother's engagement in services

subsequently decreased, and her mental health showed a general

decline.

In November 2021, the mother, having had little to no

prenatal care, gave birth to David at home while she waited for

emergency services to arrive. The next day, the department

filed a care and protection petition and was granted temporary

custody over him.

3 The department was involved with the mother's family when
she was a child.

2
The mother continues to live with severe untreated mental

health issues. She denies her schizophrenia diagnosis and

maintains that a doctor gave her the diagnosis "so that she

could get [Supplemental Security Income]." She has experienced

auditory hallucinations, racing thoughts, and anxiety.

Throughout the department's involvement, the mother was

inconsistent with her engagement in services and frequently

showed hostility toward her children and department staff. The

mother would yell at the children. She refused to accept Erik's

autism diagnosis and called him "stupid." The mother refused to

take direction from staff 4 and, on one occasion, she ripped David

out of a staff member's hands. The mother also struggled to

maintain timeliness and consistency for her visits with the

children. 5 During visits, the mother was verbally aggressive

toward staff and had to be escorted out of the department's

office by police and security at least three or four times. 6 The

4 On several occasions, the mother insisted on feeding David
with the formula she brought to visits, despite being informed
that he was prescribed a special type of formula due to
digestive issues. The mother also would feed her children food
that was inappropriate for their ages.

5 Following David's removal, the judge ordered four visits
per week, which took place at the mother's apartment until her
behavior toward staff led to moving the visits to a common room
in the building. Later, visits were reduced to weekly at the
department's office.

6 Social workers met with the mother at least five times to
address her behavior during visits but the mother would respond

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judge found that the mother's mental health placed the children

at risk of abuse or neglect.

From June 2022 to May 2023, a social worker was able to

conduct only two home visits with the mother due to safety

concerns. 7 Similarly, the mother only attended one of four

foster care reviews, where the department discussed their

assessment of the children's needs, the mother's parenting

skills and abilities, and any gaps that needed to be addressed.

The department conducted several family assessments and made

several action plans designed to address the mother's

understanding of the children's needs, her mental health

challenges, and the domestic violence in her relationships. The

department was unable to confirm the mother's consistent

engagement in mental health treatment and, although she

completed a parenting class and a domestic violence awareness

class, her parenting skills and behavior did not improve.

At the time of trial in 2023, Erik was three years old and

David was twenty-one months old. The children were placed in

with defensiveness and hostility. The mother also was provided
a parent aide to assist her in visits, support her interactions
with the children, and improve her parenting skills. This
service ended, however, after the mother made false allegations
against the parent aide following a disagreement.

7 The department offered office visits in lieu of home
visits, but the mother would not respond to e-mails attempting
to schedule those visits.

4
separate foster homes with families who were committed to

adopting them. The mother was not present at the trial, and the

judge drew the negative inference that the mother was no longer

interested in parenting her children. After the trial, the

judge found that the mother was unfit and her unfitness was

likely to continue, and she terminated the mother's parental

rights as in the best interests of both children. The judge

declined to order any posttermination or postadoption visitation

because she found no evidence of a bond between the mother and

the children. The mother filed a timely notice of appeal.

Discussion. "To terminate parental rights to a child and

to dispense with parental 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." Adoption of Jacques, 82 Mass. App.

Ct. 601, 606 (2012). "Unless shown to be clearly erroneous, we

do not disturb the judge's findings, which are entitled to

substantial deference." Id. at 606-607.

1. Unfitness. "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'"

5
(citations omitted). Adoption of Ilona, 459 Mass. 53, 59

(2011). "Parental unfitness must be determined by taking into

consideration a parent's character, temperament, conduct, and

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Adoption of

Mary, 414 Mass. 705, 711 (1993).

The mother concedes that she was unfit at the time of

trial. She argues that the department did not make reasonable

efforts to reunify her with her children and that she may raise

this issue for the first time on appeal.

Passing over whether the mother can raise the question of

reasonable efforts for the first time on appeal, we conclude the

judge did not err in finding that the department made reasonable

efforts to preserve the family. The mother does not accept her

diagnosis of schizophrenia, and her mental illness hinders her

ability to parent. The department provided her a parent aide

but the mother could not work with the aide. The department

provided other services to assist the mother in understanding

her children's needs and to address her mental health and

parenting challenges. The mother's engagement in these

services, however, was inconsistent and often hostile. The

mother refused to cooperate with the Department of Mental Health

and denied her schizophrenia diagnosis. Accordingly, we discern

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no error. 8 See Adoption of Yalena, 100 Mass. App. Ct. 542, 554

(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]").

2. Posttermination and postadoption visitation. The

mother argues that the judge erred and abused her discretion by

finding no bond between the mother and her children and

declining to order posttermination and postadoption visitation.

We disagree. During visits, the mother would yell at staff in

front of the children, place the children at risk of harm by

refusing to take direction from staff, yell at the children,

ignore Erik and call him "stupid," refuse to accept his autism

diagnosis, and on one occasion, ripped David out of the hands of

staff. There was no evidence that the children "[sought]

comfort from [the] [m]other" or "engag[ed] with her in playful,

8 Similarly, because of the mother's inability to understand
and address her parental shortcomings, we disagree with the
mother's passing claim that there was insufficient evidence to
support the judge's determination that her unfitness was not
temporary. See Adoption of Inez, 428 Mass. 717, 723 (1999)
(judge may not base future fitness on "faint hope" that parent
may later become fit); Adoption of Carlos, 413 Mass. 339, 350
(1992) (in determining future fitness, "[a] judge may properly
be guided by evidence demonstrating reason to believe that a
parent will correct a condition or weakness that currently
disables the parent from serving his or her child's best
interests")

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nurturing ways." The children have lived most of their lives

with their preadoptive families, with whom they have bonded.

See Adoption of Ilona, 459 Mass. at 63-64. In these

circumstances the judge did not abuse her discretion in

declining to order visitation. 9

Decrees affirmed.

By the Court (Henry, Shin &
Brennan, JJ. 10),

Clerk

Entered: July 2, 2025.

9 The mother argues that the judge's prior ratification of
the department's reduction of visits from 208 per year to twelve
and subsequent cessation of visits was an abuse of discretion.
Because she did not raise this issue below, it is waived. See
Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013). In any
event, we discern no error given the mother's inability to work
with staff or prioritize the needs of the children.

10 The panelists are listed in order of seniority.

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