ADOPTION OF MAE (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-679

ADOPTION OF MAE (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother and the father appeal from decrees entered in

the Juvenile Court adjudicating them unfit to parent their two

youngest daughters, Mae and Cynthia (together, the girls), and

terminating their parental rights.2 The mother contends that the

Department of Children and Families (department) failed to make

reasonable efforts to reunite her with the girls. Both the

father and the mother contend that the judge erred in finding

them unfit and terminating their parental rights. We affirm.

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

2The mother and the father's oldest daughter was also a
subject of the department's care and protection petition. She
was returned to the mother's custody at age sixteen as a result
of her personal growth and independence, which made her less
reliant on the mother's care. The oldest daughter was dismissed
from the proceedings and is not a subject of this appeal.
Background. The dating relationship between the mother and

the father began around 2000. Their oldest daughter was born in

2005 at thirty-two weeks gestation and was hospitalized for

about one month before being released to her parents. Although

the department became involved with the family at this time, the

oldest daughter remained in her parents' custody. Mae was born

in 2016, and three months later a 51A report was filed, see

G. L. c. 119, § 51A, when the child was hospitalized due to low

body weight and failure to thrive. The department assigned the

mother the first of many service providers, a parent aide, to

come to the home twice weekly. Cynthia was born in 2017. Five

months later, another 51A report was filed alleging neglect of

all three children by both parents.

The mother's and the father's relationship was "permeated"

with verbal abuse, especially when the father drank alcohol, and

sometimes with physical abuse. Alcohol and drugs were regularly

present in the home. The father in particular abused alcohol,

smoked marijuana daily, and used cocaine. The father did not

visit or check on Mae's status when she was hospitalized as an

infant, and he was not present for Cynthia's birth.

The judge found that the mother "suffers from mental health

deficits and significant cognitive limitations, which impact her

ability to understand, process or recall certain information."

In addition, the mother was involved in a serious car accident

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in 2012, which resulted in a traumatic brain injury (TBI). She

also suffers from depression, anxiety, and posttraumatic stress

disorder. The mother's condition negatively affected her

ability to care for the girls. When Mae was born and failed to

gain weight, the mother had difficulty preparing formula and did

not know what to do when the child vomited.

The department took emergency custody of all three children

in May 2018, when the oldest daughter was twelve years old, Mae

was not yet two, and Cynthia was six months old. During home

visits in the preceding month, the mother had been lethargic and

had trouble staying awake. The younger girls were

inappropriately clothed for the weather and were left to sleep

in precarious or dangerous conditions. The mother admitted to

hitting the father because he had been having an affair with a

neighbor. This neighbor and another neighbor were known drug

users and regularly were present in the family's home. The

father submitted to a urine test that was positive for cocaine.

The children were removed because of safety concerns and the use

of controlled substances in the home.

During the ensuing care and protection proceedings, the

department provided the mother with a wide variety of aides and

services, yet she was unable to retain information she was

taught to improve her parenting skills or even to understand her

own condition and limitations. She struggled with basic

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parenting tasks, such as remembering to change the girls'

diapers, and with understanding the girls' needs, from

appropriate foods to their medical conditions. The girls

displayed behavioral issues during visits, such as throwing

rocks and swearing, and the mother was unable to respond

appropriately. The judge found that the department's concerns

regarding the mother's "retention of information and her ability

to assess risk and safety in the moment, to adapt to the

developmental changes of the girls, which concerns will evolve

and change" to be well warranted. The mother's cognitive

deficits also made her "an easy target for fraud and

manipulation" by scammers and the father. The judge concluded,

"Despite engaging in a plethora of services, Mother has not

demonstrated observable change to demonstrate she can parent her

children. Mother's limitations are reasonably likely to

continue into the indefinite future."

The father was "aggressive, defiant and combative," and

blamed the department and medical providers for his and the

girls' problems. He declined having the girls visit him when he

was incarcerated from November 2019 to May 2020, and he did not

make efforts to revive contacts with them until March 2021.

Once resumed, his visits with the girls went well. However, the

father refused to engage in any relevant services offered by the

department, including relationship counseling with the mother

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and services to address domestic violence, substance use, or his

history of anger, aggression, and hostility toward the mother.

He repeatedly threatened department employees. The judge found

him unfit to parent the girls, and that his unfitness was

unlikely to be abated:

"Father's resistance, if not outright refusal or
unwillingness to engage in services, all of which are
designed to improve his parental ability, is strong
evidence of his incapacity to appreciate and perform the
obligations resting upon a parent. Moreover, Father's
character and temperament, as demonstrated by his criminal
history, behavior towards his family, and his anger and
aggression directed at Mother and the Department renders
him incapable of providing a safe and stable home
environment. Father's assaultive behavior towards his
supports will continue indefinitely until Father decides to
seek consistent treatment to address his ongoing assaultive
and substance abuse related concerns."

The girls have lived with their preadoptive family since

August 2021, where they have thrived. The preadoptive parents

support the girls' maintaining ties with their biological

family, but because the preadoptive parents "could not say with

certainty that they would provide visitation with Father," the

judge ordered posttermination and postadoption visitation with

the girls for the mother and the father, separately, and between

the girls and their older sister, for a minimum of one hour at

least three times per year.

Discussion. 1. Reasonable efforts. "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

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preserve the natural family includes a requirement that the

department provide services that accommodate the special needs

of a parent." Adoption of Ilona, 459 Mass. 53, 61 (2011). "The

department must 'match services with needs, and the trial judge

must be vigilant to ensure that it does so.'" Id., quoting

Adoption of Lenore, 55 Mass. App. Ct. 275, 279 n.3 (2002).

The mother argues that the department failed to make

reasonable efforts to reunify her with the girls because it did

not provide services specifically tailored to address her

cognitive limitations and TBI. She further claims that the

judge failed to be "vigilant" in ensuring that appropriate

services were provided. We disagree.

At the outset, we reject the department's and the girls'

assertions that the mother waived this issue. The mother

requested special accommodations for her cognitive limitations,

and the department held three Americans with Disabilities Act

(ADA) meetings in response. This satisfied the mother's

obligation to put the department on notice of the claim, and it

gave the department the opportunity to remedy any inadequacies

of the services. See Adoption of West, 97 Mass. App. Ct. 238,

242 (2020). Even if the mother "could have raised the issue

more pointedly at trial, the extent to which available supports

could have compensated for the mother's cognitive deficiencies

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was a theme that ran through the life of the case." Adoption of

Chad, 94 Mass. App. Ct. 828, 839 n.20 (2019).3

Indeed, the judge's findings of facts and conclusions of

law detailed vast efforts made by the department to provide

appropriate services to the mother to help her care for the

girls and, after they were removed, to assist her with learning

parenting skills in light of her limitations. As soon as Mae

was released from the hospital as an infant, the department

provided a parent aide to make home visits. A visiting nurse

was provided to educate the mother on "swaddling, feeding, and

mixing formula." For the next sixteen months, until the girls

were removed from the mother's home, the department provided "a

plethora of services, including an in-home therapy team, parent

aide, early intervention and collateral contact with medical

providers."

Services continued after the department obtained custody of

the children. The judge assigned a guardian ad litem (GAL) "to

3 Although we consider the mother's reasonable efforts claim
to be preserved, we reject any suggestion that the judge's
obligation to be "vigilant" requires any sort of hands-on
supervision of the services the department provides. "[T]he
department has discretionary authority regarding which
particular services to recommend, and how those services shall
be provided." Care & Protection of Rashida, 488 Mass. 217, 229
(2021). A parent may bring a judge's attention to the
department's failure to provide a particular service or services
through a so-called "abuse of discretion" motion. See id. at
221, 228-229. The judge has no independent duty to supervise
the department's provision of services.

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assist Mother in her presentation of her case and in advocating

for Mother with regard to her disability." The GAL

"participated in treatment meetings, home visits, foster care

review meetings, ADA meetings, team meetings, and court dates."

A private social worker was also retained to assist the mother

during the case. Over the life of the case, the department

provided at least four parent aides for a total of twenty-seven

months of service. The department provided tailored assistance

to the mother, including transportation to medical appointments

for herself and for the oldest daughter; help in coordinating

the oldest daughter's care; transportation to visits with the

girls; and assistance with scheduling and routine parenting

skills.

Because of her TBI, the mother requested accommodations

from the department under the ADA. The department convened the

mother and her representatives for three ADA meetings. After

the first meeting, held in March 2019, the parties developed a

number of recommendations to accommodate the mother's cognitive

limitations in caring for the children and to explore services

available from other agencies and providers. "Team meetings"

were held "at least monthly" to assist the mother in engaging

with the girls.

Among the recommendations at the first ADA meeting was for

the mother to obtain a neurological evaluation to facilitate her

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application for additional services. With the department's and

the GAL's help, the mother was evaluated in December 2019 by Dr.

Walbridge. At the second ADA meeting, in July 2020, the parties

discussed how to implement Dr. Walbridge's recommendations. One

of those recommendations was for the mother "to obtain a service

that could provide daily substantial, ongoing functioning

support" in caring for the girls. The department and the

mother's team "searched for such a service to no avail. Indeed,

by all accounts, the type of service Mother requires does not

exist." A third ADA meeting was held in March 2021 "to continue

to review and monitor the progress towards implementing the

recommendations from the previous meetings."

In addition, the department placed a referral for case

management services through the Statewide Head Injury Program

(SHIP). The department social worker "believed the SHIP program

could work with Mother in coping with any side effects of her

TBI diagnosis." The application was delayed and eventually

denied in August 2021, apparently for lack of documentation of

the mother's TBI. Inexplicably, neither the department nor the

GAL attempted to obtain such documentation, which would seem to

have been readily available.4

4 The judge's findings suggest that the mother hampered the
department's ability to rectify the situation because she failed
to provide the department social worker with documentation of,
or the reason for, the denial.

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Nonetheless, the judge concluded that the department

"provided ample services specifically tailored to meet Mother's

needs and designed to improve her parenting." We are satisfied

that, despite its failure to follow through with the SHIP

application, the department met its burden of proving reasonable

efforts by a preponderance of the evidence. See Care &

Protection of Rashida, 489 Mass. 128, 137 (2022).

Moreover, the judge was cognizant of Dr. Walbridge's

opinion that the mother had "the capacity to be a good parent as

long as she has substantial, ongoing services in and outside of

the home to support her," but that she could not function on her

own. However, the judge found that support of the intensity and

duration that the mother needed to assist her in caring for the

girls simply was not available. See Adoption of Lenore, 55

Mass. App. Ct. at 278 ("heroic or extraordinary measures,

however desirable they may at least abstractly be, are not

required").

2. Unfitness and termination of parental rights. To

terminate parents' rights with respect to their children, the

department must show, and the judge must find, by clear and

convincing evidence that the parents are unfit and that

terminating their legal bonds with the children will be in the

children's best interests. See Adoption of Yvonne, 99 Mass.

App. Ct. 574, 576-577 (2021). "The judge must not only find

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that the parent is currently unfit, but must also find that the

current parental unfitness is not a temporary condition."

Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). "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, 459 Mass. at 59-60. We review the judge's

determination of the girls' best interests for abuse of

discretion or clear error of law. See Adoption of Hugo, 428

Mass. 219, 225 (1998). We discern no error or abuse of

discretion in the judge's conclusions, discussed supra, that the

mother and father were unfit to parent the girls and that their

unfitness was likely to continue indefinitely.

The judge determined that the father was unfit, and that

the girls' best interests would be served by termination of his

parental rights, based on a variety of factors, including his

past and ongoing drug and alcohol use; his incarceration record;

his lack of interest in parenting or visiting with the girls;

his aggression toward, and manipulation of, the mother; and his

refusal to engage in services to ameliorate his shortcomings as

a parent and the conditions creating a risk of harm to the

girls. The judge's assessment of the credibility of the

witnesses and the weight of the evidence is entitled to

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substantial deference. See Adoption of Hugo, 428 Mass. at 225.

The record supports the judge's conclusions -- the father

"simply views the evidence differently from how the judge viewed

it." Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018).

Likewise, the record supports the judge's conclusions as to

the mother. "A parent may be found unfit because of mental

deficiencies, but only where it is shown that such 'deficiencies

impaired her ability to protect and care for the children.'"

Adoption of Chad, 94 Mass. App. Ct. at 838, quoting Adoption of

Quentin, 424 Mass. 882, 888-889 (1997). After a careful and

painstaking review, the judge found that the mother's cognitive

limitations and the effect of her TBI, "complicated further by a

history of learning disabilities throughout her childhood years

and her diagnoses of depression and anxiety," rendered her

incapable of parenting Mae and Cynthia. While the mother points

to some evidence in the record that she, on occasion, could

respond appropriately to the girls' needs, the judge weighed the

evidence differently. The judge made "specific and detailed

findings demonstrating that close attention ha[d] been given the

evidence." Adoption of Leland, 65 Mass. App. Ct. 580, 583

(2006). Those findings are entitled to our deference.

In light of the mother's limitations, it is important to

note that the judge also found that no family member or friend,

nor the father, was available and capable of providing the

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mother with the substantial support she would need to care for

the girls -- and herself. See Adoption of Darlene, 99 Mass.

App. Ct. 696, 707 (2021) (affirming termination of parental

rights where mother testified she would "need a lot of help" to

raise child, but supports were not available). Contrast

Adoption of Chad, 94 Mass. App. Ct. at 839 (remanding for judge

to consider "whether, with available assistance, the mother

would be able to leverage the outside support that both children

plainly need").

The judge found that the mother loves Mae and Cynthia, but

"[u]nfortunately, love is not enough to raise a child."

"Despite the moral overtones of the statutory term 'unfit,' the

judge's decision was not a moral judgment or a determination

that the mother and father do not love the [girls]." Adoption

of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). "The inquiry

instead is whether the parents' deficiencies or limitations

place the child[ren] at serious risk of peril from abuse,

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neglect, or other activity harmful to the child[ren]" (quotation

and citation omitted). Id. Sadly, they do.

Decrees affirmed.

By the Court (Massing,
Singh & Grant, JJ.5),

Assistant Clerk

Entered: April 19, 2024.

5 The panelists are listed in order of seniority.

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