ADOPTION OF RASHAAD (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-1353

ADOPTION OF RASHAAD (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from decrees of the Juvenile Court

finding her unfit to parent her two children, terminating her

parental rights, and committing the children to the custody of

the Department of Children and Families (department).2 The

mother argues that the judge abused his discretion in concluding

that her unfitness would continue undiminished into the future,

that the judge abused his discretion in denying her motions in

limine to exclude various records offered by the department, and

that her trial counsel was ineffective for failing to identify

which statements in the records were inadmissible. We affirm.

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

2The judge also found the father unfit and terminated his
parental rights. The father did not appeal.
Background. The mother and the father met in 2016 while

both were receiving inpatient treatment at a mental health

facility. In October 2017 their first child, Rashaad, was born.

Approximately two months later, the department received two

reports under G. L. c. 119, § 51A (51A report), alleging neglect

of Rashaad by both parents; the reports raised concerns about

the parents' mental health. After an investigation under G. L.

c. 119, § 51B, the department deemed the allegations to be

unsupported but opened a clinical case for further assessment.

In February 2019 police responded to the parents' apartment

after a neighbor reported hearing the mother screaming and

crying. The father tried to assault the officers and was

arrested. After a 51A report was filed, department social

workers spoke to the mother, who denied that any altercation had

occurred or that she had screamed for help. The mother appeared

not to understand why the workers were there and, when asked

about her mental health, became upset and defensive. The mother

stated that she had bipolar disorder, that she stopped taking

her medications because she was pregnant, and that she did not

need therapy. The mother refused to discuss her previous

hospitalizations and stated she was not interested in pursuing a

restraining order against the father or in implementing a safety

plan with the department. Based on the mother's statements and

the father's arrest, the department assumed emergency custody of

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Rashaad and placed him in a foster home. In March 2019 the

department moved Rashaad to the home of the paternal

grandparents, where he remained through trial.

In April 2019 Julian was born. The same day, the

department received a 51A report alleging neglect of Julian by

the mother. The reporter alleged that the mother did not

receive prenatal care until her third trimester and was behaving

erratically, prompting the delivering physician to call for an

urgent psychiatric consult. Hospital staff reported to the

responding department workers that the mother had refused to

allow Julian to receive a Hepatitis B vaccine or undergo glucose

testing. The workers then spoke to the paternal grandfather,

who reported that the mother had made various concerning

statements, including that she believed that the department

kidnapped children to sell their organs and that she would kill

herself if Julian were removed from her custody. When

questioned by the workers, the mother stated that she was

diagnosed with "bipolar depression" in 2016 but denied that she

was previously hospitalized for her mental health issues or that

the delivering physician had requested a psychiatric consult.

The department assumed emergency custody of Julian and placed

him in the paternal grandparents' home, where he remained

through trial.

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Soon after Rashaad was removed from the mother's custody,

the department provided the mother with an action plan to assist

her toward reunification. The action plan was amended several

times, but the core tasks remained consistent. These included

working cooperatively with the department, completing medication

and parenting psychological evaluations, engaging in therapy,

attending all scheduled supervised visits, and avoiding verbal

and physical altercations.

While the action plans were in place from March 2019 to

September 2024, the mother failed to make progress on the

majority of her tasks. She did not participate in a medication

evaluation or provide the results from any psychological or

parenting psychological evaluations, despite reporting that she

completed them. Although the mother engaged in individual

therapy, she changed providers frequently and did not establish

a consistent clinical relationship with any of them. After

terminating services with one provider, the mother sent an e-

mail message to her ongoing social worker accusing the provider

of being a "German spy." The social worker then spoke with the

provider, who reported that the mother appeared to be having

delusions and was "decompensating." The mother consistently

maintained that she did not have any unaddressed mental health

needs and did not need to participate in services.

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In addition, throughout the pendency of the case, the

mother was unable to control her outbursts and displayed open

hostility and aggression toward department staff and the

paternal grandparents. The mother sent numerous text and e-mail

messages to department workers that contained racial slurs,

derogatory names, threats, and profanity. In these messages the

mother referred to the department as a criminal organization,

accused the department of "kidnapping" the children, and

referred to department workers as "child abusers." The mother

also sent numerous messages to the paternal grandmother calling

her derogatory names; in one text message, the mother accused

the paternal grandparents of "creating the [corona]virus and

working with bats." The mother also threatened the paternal

grandparents repeatedly, saying she "knew where to find" them

and they would be "dead" if anything happened to the children.

In February 2020 the paternal grandmother obtained a restraining

order against the mother, but the mother violated the order a

few months later when she went to the parental grandparents'

home, banged on the door, and demanded to be let in.

The mother's volatile and aggressive behavior at times

necessitated termination of foster care review meetings and

supervised visits with the children. The mother also missed

numerous visits and, for several months in 2021, refused to

attend because of a personal conflict she had with a department

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staff member. When she did attend visits, the mother was often

more than fifteen minutes late, acted inappropriately in front

of the children, and was unable to manage both children at once.

During one visit in June 2019, the mother became verbally

aggressive with a department staff member and "cornered" her.

During another visit in January 2024, the mother became angry

and aggressive when a social worker used a hand motion to

redirect one of the children. The mother barricaded herself and

the children in the visiting room, causing the children to

become upset and cry; berated the department staff, using

homophobic and racial slurs and making derogatory remarks about

their appearances; and screamed that the department was

harassing her. The department called for police assistance and

contacted the paternal grandfather to help deescalate the mother

and retrieve the children. When the paternal grandfather

arrived, the mother yelled, "Grandpa is old and is going to

die," upsetting the children even further.

At the time of trial, the mother was not engaged in

individual therapy or psychiatric services and was not taking

medications. She testified that she ended therapy because she

no longer felt it was helpful. When asked whether she

understood how her mental health issues affected her children,

the mother refused to answer, causing the judge to draw a

negative inference. The mother also refused to say when she

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stopped taking her medications. When asked about her 2016

inpatient treatment, the mother testified that the police took

her to the hospital because she had a rodent infestation in her

apartment. The judge observed that the mother consistently

struggled to regulate her emotions throughout her testimony.

Discussion. 1. Termination. In determining whether to

terminate parental rights, a judge must first find by clear and

convincing evidence that the parent is unfit. See Adoption of

Nancy, 443 Mass. 512, 515 (2005). The judge must then determine

"whether the parent's unfitness is such that it would be in the

child's best interests to end all legal relations between parent

and child." Id. "The 'best interests of the child' standard

requires . . . trial judge[s] to make a discretionary decision

based on [their] experience and judgment, and will not be

overturned unless it amounts to an abuse of discretion or a

clear error of law." Adoption of Garret, 92 Mass. App. Ct. 664,

675 (2018).

For the first time at oral argument, the mother claimed

that the judge erred in finding her unfit. Because the mother

failed to raise that claim in her brief, it is waived. See

Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 700 n.14

(2016). In any event, even were we to put aside the waiver, we

would conclude that the record supports the judge's ultimate

finding of unfitness. The judge's subsidiary findings, none of

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which the mother challenges as clearly erroneous in her brief,

establish that the mother has longstanding, serious mental

health issues, which remained unaddressed at the time of trial.

The mother denied having any mental health needs, did not engage

in or meaningfully benefit from services, and, as the judge

found, "prioritized her anger at the [d]epartment over the

safety and well-being of the . . . children and her opportunity

to spend time with them." The judge further found that the

mother had ongoing contact with the father, despite his history

of violent behavior, which had at times necessitated police

intervention. The totality of this evidence clearly and

convincingly supports the judge's finding of unfitness.

Next, the judge was within his discretion to conclude that

it would be in the children's best interests to terminate the

mother's parental rights. The judge found that the mother's

unfitness will continue undiminished into the future in light of

her "lack of progress over the past five years" in treating her

mental health issues and her continued denial that she needs

treatment. Although the mother argues that the judge overlooked

her efforts at engaging in therapy, the judge expressly

considered that evidence but found that the mother changed

providers frequently, "preventing her from establishing a

consistent clinical relationship," and "consistently maintained

that she did not have any unaddressed mental health needs and

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did not need to participate in" therapy or psychiatric services.

The judge properly concluded that the mother's participation in

some therapy did not "ameliorate her parental shortcomings."

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

The judge was also within his discretion to conclude that

the department's plan for the children to be adopted by the

paternal grandparents was in the children's best interests.

Both children were placed in the paternal grandparents' home in

2019 and remained there through trial. It is uncontested that

the paternal grandparents have provided the children with a safe

and stable home environment and that the children have a strong

bond with them. This evidence further supports the judge's

determination that the children's best interests would be served

by terminating the mother's parental rights. See Adoption of

Breck, 105 Mass. App. Ct. 652, 661 (2025).

2. Motions in limine. The mother filed several motions in

limine to exclude records offered by the department. Citing

Adoption of George, 27 Mass. App. Ct. 265 (1989), the judge

denied three of the motions -- which sought to exclude foster

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care review reports, family action plans, and family assessments

-- on the ground that "counsel has failed to identify requested

redactions." This was not an abuse of discretion. The pretrial

conference order stated that "[m]otions in limine shall include

a specific description of the content which the moving party

seeks to have stricken" and that "[a] copy of the proposed

exhibit, with the targeted content highlighted, shall be

attached to the motion." The order warns that "otherwise, the

Court will be unable to rule on the motions." As the mother's

motions did not comply with these requirements, the judge

permissibly denied them. See Adoption of Hugo, 428 Mass. 219,

232 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.

1034 (1999) (judge's evidentiary rulings reviewed only for abuse

of discretion).

We are unpersuaded by the mother's contention that the

judge abused his discretion by relying on Adoption of George,

which, the mother says, was abrogated by Adoption of Luc, 484

Mass. 139 (2020). In Adoption of George, 27 Mass. App. Ct. at

272-274, we held that service plans, case reviews, and foster

care reviews created by the department are admissible under the

official records exception to the hearsay rule. Adoption of Luc

did not disturb that part of our decision. See Adoption of Luc,

supra at 151; Mass. G. Evid. § 1115(b)(2) (2025). Rather,

Adoption of Luc clarified that, while official department

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records are generally admissible, hearsay statements within the

records are only admissible if "the hearsay source is

specifically identified in the document and is available for

cross-examination, should the party challenging the evidence

request to do so." Adoption of Luc, supra at 153. Here,

because the mother did not identify any particular hearsay

statements, the judge did not run afoul of Adoption of Luc by

admitting the records. To the extent the mother argues that the

foster care review reports were inadmissible in their entirety

because the author of the reports are not identified, that

argument is both waived for failure to raise it to the judge and

belied by the record.3

3. Ineffective assistance of counsel. Relatedly, the

mother argues that her trial counsel was ineffective for failing

to identify the inadmissible portions of the department records.

"Absent exceptional circumstances, we do not review claims of

ineffective assistance of counsel for the first time on appeal."

Care & Protection of Stephen, 401 Mass. 144, 149-150 (1987).

Here, the mother did not "move to stay the appeal in order to

3 Each of the foster care review reports begins by naming
the "Case Reviewer." In her motion in limine, the mother did
not argue that the "Case Reviewers" were not the authors of the
reports. Rather, she argued that the reports "fail[] to
identify if the . . . 'creators' were merely a social worker[,]
case worker[,] a licensed appropriate medical provider, or an
attorney."

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allow prosecution of a motion for new trial in the trial court,"

which is "the preferred approach" for raising claims of

ineffective assistance. Adoption of Ulrich, 94 Mass. App. Ct.

668, 673 (2019).

The mother argues, however, that her claim can be resolved

on direct appeal because its factual basis appears indisputably

on the trial record. Even assuming that to be true, and further

assuming that counsel's performance was deficient, we conclude

that the mother has failed to demonstrate prejudice given the

"overwhelming proof" of her unfitness. Care & Protection of

Georgette, 439 Mass. 28, 34 (2003). The key factual findings

underlying the judge's decision to terminate the mother's

parental rights -- which relate to the mother's serious mental

health issues, her failure to meaningfully engage in or benefit

from treatment, and her continued denial that she has any mental

health needs -- were supported by the trial testimony of

multiple witnesses, including that of the mother herself. The

judge would have been within his discretion to reach the same

decision based on the testimony alone. Furthermore, the judge

was entitled to rely on the department records to establish

primary facts. See Adoption of Luc, 484 Mass. at 153. Although

the mother claimed at oral argument that six of the judge's

findings rely on inadmissible statements of opinion, we have

reviewed those findings and conclude they are almost entirely

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limited to primary facts. And to the extent the findings cite

statements that verge on opinion, those statements were

cumulative of the testimony at trial. The mother has thus

failed to demonstrate that she was prejudiced by any deficient

performance of her trial counsel.

Decrees affirmed.

By the Court (Rubin, Shin &
Singh, JJ.4),

Clerk

Entered: November 21, 2025.

4 The panelists are listed in order of seniority.

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