ADOPTION OF MICAH (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-1397

ADOPTION OF MICAH (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees of a judge of the Juvenile

Court finding the mother unfit to parent and terminating her

parental rights with respect to her two youngest children, twins

Micah and Vanessa. The mother contends that the Department of

Children and Families (department) failed to prove by clear and

convincing evidence that the mental health and substance use

issues that rendered her unfit were permanent and that the

department failed to make reasonable efforts to address these

issues. We affirm.

Background. As a child, the mother was removed from her

parents' home due to allegations of traumatic abuse by her

father. She later earned two associate degrees from Greenfield

Community College in 2004 and a bachelor of science degree from

1 Adoption of Vanessa. The children's names are pseudonyms.
the University of Rhode Island in 2007. Her first child was

born in 2013 and her second child was born in 2018. The older

children have different fathers; at the time of trial, each

child was in his father's custody. Micah and Vanessa, the

subjects of the decrees before us, were born in November 2020.

The identify of their father is unknown.

The mother became involved with the department as an adult

in March 2017, after she was arrested for operating a motor

vehicle under the influence of alcohol. She told the arresting

officers that they had to release her because her oldest son,

then three years old, was home unattended, but later said that

the boy was with his father. The father obtained custody of the

child after this arrest. From this time forward, the mother's

difficulty in coping with the loss of custody of her son,

various mental health disorders, misuse of prescription

substances, delusional thinking, multiple arrests, and mental

health commitments impaired her ability to care for her

children.

In August 2018, the department received a report that the

mother was using Adderall while breastfeeding her second son,

who was two weeks old at the time.2 Shortly thereafter, she

2 In 2014, the mother was diagnosed with attention deficit
hyperactivity disorder (ADHD) and was prescribed Adderall.

2
failed to take the child to his scheduled pediatrician

appointment and failed to appear at a court hearing. In the

following month the baby's father repeatedly reported to the

department that the mother was neglecting the baby. The

department confirmed that the mother had sent the father

messages threatening to harm the father, kill herself, and

abandon the child.

In January 2019, the mother was involuntarily hospitalized

for nineteen days after a court psychologist reported erratic

behavior, irrational thinking, and misuse of Adderall, which

caused symptoms of psychosis. The second child's father was

called to take custody. The mother was arrested in May 2019 on

an outstanding warrant and hospitalized for a second time, where

she was diagnosed with Adderall misuse disorder manifesting

psychotic symptoms. The second child's father was granted

temporary custody.3 In June 2019, the mother was arrested for

violating an abuse prevention order that one of the fathers had

obtained.

When the mother was pregnant with Micah and Vanessa, at a

meeting of her service providers -- including a department

social worker, a re-entry case manager from the house of

corrections, and a Department of Mental Health (DMH) case

3 He was granted permanent custody in December 2019.

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manager -- the mother disclosed that she had been prescribed

Adderall and had taken LSD. Shortly before the birth of Micah

and Vanessa, the mother was involuntarily hospitalized for a

third time after displaying delusional behavior at an OB-GYN

appointment.

Because the mother's interactions with the department while

pregnant with Micah and Vanessa demonstrated that she suffered

from serious, unaddressed mental health issues and was not

thinking rationally, the department removed them from the

mother's care in the hospital five days after their birth in

November 2020. Since then, they have remained in a kinship

foster placement, a two-parent household with two other

children. The department's February 2021 family action plan for

reunification recommended that the mother engage in therapeutic

and support services, including individual therapy and DMH

services. It also recommended that she complete a

neuropsychological evaluation, undergo a medication evaluation,

and sign necessary releases to allow the department to monitor

and assess her progress. However, the mother signed only

limited releases and noted she did so "under duress," which

prevented the department from verifying her treatment or

diagnoses. The mother told the department she had completed a

neuropsychological evaluation, but the department never received

4
a copy. She stopped engaging with DMH services because she felt

they were not helpful.

Meanwhile, the mother continued to exhibit delusional and

paranoid thinking and missed scheduled drug testing

appointments. At some point in the late spring or early summer

of 2021, under the guise of taking a twelve year old girl and

her friend swimming, the mother took them to a hotel where she

met up with a man; the girls were forced to spend the night in

the hotel room in the same bed with the mother and her male

friend. The mother was hospitalized again in September 2021 and

then was held at a correctional center after another arrest for

violating an abuse prevention order. The department's action

plan for the mother from August 2021 recommended meeting

regularly with her psychiatrist and medication prescriber,

following all recommendations, and engaging in individual

therapy. Because of the mother's mental instability, the

department determined that it would be unsafe to allow

unsupervised contact with Micah and Vanessa; therefore, all

visits took place at the department's office, supervised by a

social worker. In October 2021 the department changed the goal

for Micah and Vanessa to adoption.

The mother partially complied with her action plan. In

December 2021, when a new social worker was assigned to the

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case, the mother signed a limited release that allowed the

social worker to verify only her attendance at individual

therapy sessions, but not diagnosis or treatment. Only when the

trial date neared did the mother allow her department social

worker to speak with the provider who prescribed Adderall, but

the social worker was unable to verify whether the mother was

taking it as prescribed.

The mother's psychological expert testified that the mother

"clearly displayed breaks with reality." He opined that she had

posttraumatic stress disorder with complex trauma, rather than

Adderall-induced psychosis, which better explained her

disconnection from reality. By the time of trial the mother had

also updated her releases to permit her current therapist to

discuss her treatment goals and progress, although the therapist

was unsure that she could disclose this information because the

release had "a lot of crossing out" and the therapist was unsure

of its legitimacy. The goal of therapy at the time of trial was

for the mother to build a trusting relationship with the

therapist. During the trial the mother repeatedly interrupted

and presented as angry and irrational.

Micah and Vanessa both have developmental delays and

receive early intervention services. Micah also has feeding

difficulties, is missing his right pectoral muscle, and has been

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diagnosed with right short finger symbrachydactyly, that is, his

right arm and hand appear shortened and the fingers on his right

hand are fused together. He must see a team of specialists

regularly and will require multiple surgeries in the future.

Vanessa must wear corrective glasses for her vision and has

required the placement of tubes in her ears. Since they were

five days old the twins have lived in the same foster home,

which is a preadoptive placement. The preadoptive parents have

ensured that the twins receive the medical attention they need,

and the department supports the goal of adoption by the

preadoptive parents.

The judge found that the mother was currently unfit to

assume parental responsibility for Micah and Vanessa, that her

unfitness "is likely to continue into the indefinite future to a

near certitude," and that the best interests of the twins would

be served by terminating the mother's parental rights and

freeing them for adoption by their foster parents. Although the

judge did not credit the mother's expert's testimony that the

twins have a secure bond with the mother, the judge did find

that the mother's visits "generally go well" and ordered two

supervised visits per year.

Discussion. The mother's principal arguments on appeal are

interrelated. She argues that the department failed to show by

7
clear and convincing evidence that her mental health disability

and substance use had a negative effect on her ability to care

for the twins and were not just temporary conditions.

Furthermore, she contends that she would have been able to

overcome her disability if the department had provided

appropriate services and made reasonable accommodations for her,

but by not doing so, the department failed to make reasonable

efforts to reunify the mother with the twins, as required by

Federal and State law. She alleges that this failure violated

the Americans With Disabilities Act, the Rehabilitation Act of

1973, and the department's own policies.

A decision to terminate parental rights must be supported

by clear and convincing evidence that the parent is unfit, that

the parent's current unfitness is not just a temporary

condition, and that it would be in the children's best interests

to terminate the legal relation between the parent and child.

See Adoption of Ilona, 459 Mass. 53, 59-60 (2011); Adoption of

Yvonne, 99 Mass. App. Ct. 574, 576-577 (2021); Adoption of

Virgil, 93 Mass. App. Ct. 298, 301 (2018). We review the

judge's subsidiary findings of fact for clear error and assess

the ultimate determination of unfitness and best interests for

abuse of discretion or clear error of law. See Adoption of

8
Ilona, supra at 59; Adoption of Hugo, 428 Mass. 219, 225 (1998);

Adoption of Yvonne, supra at 577.

To be sure, "a parent's mental health 'is relevant only to

the extent that it affects the parents' capacity to assume

parental responsibility, and ability to deal with a child's

special needs.'" Adoption of Jacob, 99 Mass. App. Ct. 258, 265

(2021), quoting Adoption of Luc, 484 Mass. 139, 146 (2020). In

determining whether mental illness has such an effect, "the

judge may consider past conduct to predict future ability and

performance" (quotation and citation omitted). Adoption of

Jacob, supra at 262. We discern no error or abuse of discretion

in the judge's determination that the mother's mental

disability, combined with her use of drugs and alcohol, made her

unfit to parent the twins and that her unfitness was not a

temporary condition.

The mother had been dealing with these issues since the

birth of her first child. In addition to making outlandish and

delusional statements, she drove vehicles under the influence

and made other poor choices. Multiple restraining orders were

issued against her, which she repeatedly violated. She was

often jailed or involuntarily committed, making her unavailable

to care for her children. Although she obtained some services

from DMH, reportedly had a neuropsychological evaluation, and

9
periodically engaged in therapy, she did not follow through with

services and her condition did not improve. Her instability

required her visits with the twins to be supervised. Indeed, as

late as the last day of trial she had just barely engaged with

her most recent therapist and was only at the remedial stage of

trying to establish a trusting relationship with the therapist.

"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. The judge found, and the

record supports, that "there have been no substantial changes in

her mental health since the beginning of this case, or indeed

since the Department's involvement with Mother's older children.

As a result, she remains unprepared to care for Micah and

Vanessa, especially given their special needs."

The mother, however, attributes her lack of progress to the

department's failure to make reasonable efforts. The department

is "required to make reasonable efforts to strengthen and

encourage the integrity of the family before proceeding with an

action designed to sever family ties." Adoption of Lenore, 55

Mass. App. Ct. 275, 278 (2002). "Where a parent, as here, has

cognitive or other limitations that affect the receipt of

10
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." Adoption of Ilona, 459 Mass. at 61.

As a threshold matter, the department and the twins argue

that the mother did not preserve her current reasonable efforts

claim at the trial level and is therefore precluded from raising

it for the first time on appeal. See Adoption of Gregory, 434

Mass. 117, 124 (2001); Adoption of West, 97 Mass. App. Ct. 238,

242-243 (2020).4 There is some force to this argument. Although

the mother filed pretrial motions regarding the department's

lack of reasonable efforts, these motions concerned the mother's

visitation schedule and did not raise the issue of mental health

services. She did not raise the issue during the trial or in

her proposed findings of fact submitted at the close of the

evidence. On the other hand, the mother's struggles with mental

4 The mother argues that Adoption of Gregory was wrongly
decided because it places the burden on the parent to request
reasonable accommodations. We, of course, have no authority to
overrule a decision of the Supreme Judicial Court and are bound
to follow its decisions. See Commonwealth v. Dube, 59 Mass.
App. Ct. 476, 485-486 (2003). Moreover, the requirement that a
parent -- or, more specifically, the parent's counsel -- timely
raise the issue of reasonable efforts is necessary to "put the
department on notice that its efforts may be inadequate, allow
the department an opportunity to remedy any problems, and permit
the department to defend its efforts at trial." Adoption of
West, 97 Mass. App. Ct. at 243.

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health were "a theme that ran through the life of the case,"

Adoption of Chad, 94 Mass. App. Ct. 828, 839 n.20 (2019), and

the department did schedule an ADA meeting where it was

determined that the department would assist the mother in

reengaging with DMH and assist the mother's counsel in obtaining

a new medication evaluation for the mother.

In any event, on the record before us, we are satisfied

that the department made reasonable efforts to reunify the

family. The ADA meeting was one such effort. In addition, the

department did attempt to assure that the mother would obtain

services from DMH, have a neuropsychological examination,

evaluate and regulate her use of prescription drugs, see a

therapist, and have regular visits with the twins. The mother

did not avail herself of all of these services, and the

department's efforts were further hindered by the mother's

distrust of the department and refusal to share information.

For example, the mother stopped engaging with DMH services

because she did not believe they were helpful, purportedly

obtained a neuropsychological evaluation but did not make it

available to the department, and stopped seeing a psychiatrist

when the psychiatrist refused to prescribe Adderall. "The

department's obligation to make reasonable efforts to reunify

the child with the mother is contingent upon her obligation to

12
substantially fulfill her parental responsibilities (including

seeking and using appropriate services). . . . [T]he mother did

not fulfill these responsibilities here." Adoption of Yalena,

100 Mass. App. Ct. 542, 554 (2021).

The mother's ADA and related claims fare no better.

"[P]roceedings to terminate parental rights under G. L. c. 210,

§ 3, do not qualify as 'services, programs, or activities'

[under the ADA], and thus, the ADA may not be raised as a

defense to such proceedings" (citation omitted). Adoption of

Gregory, 434 Mass. at 120. The ADA does require that the

department provide appropriate services as reasonable

accommodations for a parent's disability. See id. "What

constitutes reasonable efforts . . . must be evaluated in the

context of each individual case." Care & Protection of Walt,

478 Mass. 212, 227 (2017). Because the department satisfied its

requirement to make reasonable efforts, it also satisfied the

ADA.

Moreover, as the mother notes, a judge may properly

terminate parental rights even in the absence of reasonable

efforts. See Adoption of Ilona, 459 Mass. at 61 ("even where

the department has failed to meet this obligation, a trial judge

must still rule in the child's best interest"). The mother

argues that Adoption of Ilona violates the ADA and was wrongly

13
decided. As we noted with respect to Adoption of Gregory, see

note 4 supra, we are not at liberty to ignore or overrule a

decision of the Supreme Judicial Court. See Commonwealth v.

Dube, 59 Mass. App. Ct. 476, 485-486 (2003). Nor would we be

inclined to do so. Adoption of Ilona is consistent with both

Federal and State law, under which the health and safety of the

child are the "paramount" concern. See Care & Protection of

Walt, 478 Mass. at 223-224, 226.

Finally, the mother's claim that the judge improperly

considered evidence submitted after trial, showing that the

mother had been arrested for operating under the influence,

third offense, is without merit. The department filed a

posttrial motion to reopen the evidence, the mother opposed, and

the judge allowed the motion in pertinent part. It was within

the judge's discretion to permit the department to submit

additional evidence after trial. See Kerr v. Palmieri, 325

Mass. 554, 557 (1950); Mass. G. Evid. § 611(f) (2024). Contrary

to the mother's suggestion, the judge's exercise of discretion

to consider this evidence "demonstrate[s] that close attention

14
has been given the evidence." Custody of Eleanor, 414 Mass.

795, 799 (1993).

Decrees affirmed.

By the Court (Massing,
Hershfang & Tan, JJ.5),

Clerk

Entered: March 14, 2025.

5 The panelists are listed in order of seniority.

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