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
25-P-43
ADOPTION OF AMANDA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 29, 2024, following a trial, a judge of the
Juvenile Court issued a decree adjudicating Amanda (Amanda or
child) in need of care and protection, and terminating the
parental rights of the mother. 2 Amanda was born in September
2022 and has been in the care of the maternal grandmother since
April 2023. On appeal, the mother argues that numerous factual
findings made by the judge were clearly erroneous, the remaining
findings do not prove the mother's indefinite parental unfitness
by clear and convincing evidence, and the judge engaged in
invalid viewpoint discrimination in her findings. We affirm.
1 A pseudonym.
2The judge also found the father unfit and terminated his parental rights. The father did not appeal and is not a party before this court. 1. Factual findings. As a preliminary matter, the mother
challenges approximately fifty of the judge's factual findings.
She contends that the findings violate general evidentiary rules
for custody hearings or are simply unsupported by the evidence.
For most of these factual findings, we find no merit to the
mother's arguments. For those with which we agree with the
mother, any error was not prejudicial, and as discussed further,
we do not disturb the final decree.
Subsidiary factual findings must be proved by a fair
preponderance of the evidence, and we give substantial deference
to the judge's findings. Adoption of Jacques, 82 Mass. App. Ct.
601, 606 (2012). We review the judge's subsidiary findings to
determine whether they were clearly erroneous. Custody of
Eleanor, 414 Mass. 795, 802 (1993). "A finding is clearly
erroneous where there is no evidence to support it, or when,
'although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'" Id. at 799,
quoting Building Inspector of Lancaster v. Sanderson, 372 Mass.
157, 160 (1977).
a. Findings related to the father's conduct. The mother
challenges several factual findings and conclusions of law as
2 they relate to the father's unfitness. 3 As the father is not a
party to this appeal, we decline to address the claims of error
concerning the father's behavior, most of which are irrelevant
to the adverse unfitness finding against the mother. See
Adoption of Paula, 420 Mass. 716, 723 n.8 (1995). Were we to
reach the propriety of these findings, we would discern no
prejudicial error to the mother.
b. Findings derived from G. L. c. 119, § 51A reports. The
mother also challenges numerous factual findings that derive
from information in several G. L. c. 119, § 51A reports (51A
reports), arguing that the judge used the reports impermissibly
as substantive evidence. 4 The mother did not file a motion for
reconsideration regarding these findings, nor did she file a
motion for amended findings of fact. Assuming without deciding
that this issue is not waived, we find no merit to the mother's
arguments.
3 The judge's decision misnumbers the findings of fact after finding number 227. We have used the actual numbers in this decision. The challenged findings about the father's conduct include findings numbers 79, 98, 102, 108, 211, 212, 213, 235, and 255.
4 Included in that category are findings numbers 21, 74, 76, 77, 95, 98, 102, 106, 107, 110, 111, 114, 117, 118, 119, 126, 127, and 128. The mother also purports to challenge factual finding number 101 on this basis, but this finding was based on a G. L. c. 119, § 51B report, not a 51A report.
3 Section "51A reports are admissible to 'set the stage' to
explain how the department became involved with the family."
Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019). See
Mass. G. Evid. § 1115(b)(2)(A) (2025). Judges are entitled to
reference the 51A reports in their findings as long as they do
not use the information contained in the reports as substantive
evidence. See Adoption of Querida, supra.
Here, upon admitting the 51A reports in evidence, the judge
expressly noted at a hearing on November 7, 2023, that these
reports were admitted only to set the stage and "with some
limitations." Furthermore, in each finding of fact that the
mother challenges, the judge used variations of the word
"allege," demonstrating that she was not taking the information
in the reports as substantive, but merely setting the stage for
how the Department of Children and Families (department) became
involved with the mother. See Adoption of Querida, 94 Mass.
App. Ct. at 778 ("[E]ach time the judge referenced the 51A
reports, he did so using the words 'alleged' or 'allegations,'
making clear that he was not using any information contained in
the 51A reports" improperly). Furthermore, even if there was
error with these eighteen factual findings, which we do not
find, there was ample support for the judge's finding of
unfitness, under the clear and convincing standard based on the
4 other 269 factual findings in the record, and thus no prejudice
to the mother. See Adoption of Luc, 484 Mass. 139, 148 (2020).
c. Findings derived from G. L. c. 119, § 51B reports. The
mother also claims that several findings of fact deriving from
hearsay in G. L. c. 119, § 51B reports (51B reports) and not
falling within a common-law or statutory exception are clearly
erroneous. 5 While we agree with the mother that several of these
findings were impermissible based on the evidentiary rules
applicable to 51B reports, none of those findings were important
to the determination of unfitness, and thus, there was no
prejudice. See Care & Protection of Olga, 57 Mass. App. Ct.
821, 825 (2003).
Section 51B reports may be considered for statements of
primary fact, Custody of Michel, 28 Mass. App. Ct. 260, 267
(1990), if the hearsay source is specifically identified and is
available for cross-examination. See Mass. G. Evid.
5 Included in that category are findings numbers 3, 38, 49, 52, 100, 124, and 130. Findings numbers 3 and 100 are not clearly erroneous. Finding number 3 was not error where the judge's finding, that mother had a "troubled adolescence," was supported elsewhere in the record. The mother's challenge to finding number 100 on evidentiary grounds is also without merit, where the hearsay declarant, the maternal grandmother, was identifiable, available for cross-examination should mother have subpoenaed her, and the contents included the grandmother's observations of the mother's moving from place to place. Also, there is no legal significance to the use of the word "allegedly" in factual finding number 100, and as such, the mother's challenge to factual finding number 100 on this ground is also without merit.
5 § 1115(b)(2)(B). "Statements of primary fact are observations,
rather than opinions, made by an individual with personal
knowledge . . . ." Adoption of Luc, 484 Mass. at 153 n.34.
Three of the judge's findings that derive from the 51B
reports are opinions, rather than observations, such as "mother
appeared to be just waking up," and mother was "rude and
berating." See Adoption of Luc, 484 Mass. at 153 n.34.
Furthermore, two of the findings properly identify statements of
primary fact, yet fail to include the full name of the hearsay
declarant, and as such, the declarant is not identifiable within
the meaning of § 1115(b)(2)(B). See Adoption of Luc, supra at
153 & n.35.
To the extent that these findings are erroneous, they were
not prejudicial to the mother, as they were cumulative evidence,
Adoption of Luc, 484 Mass. at 148 & n.21, and, where the judge's
decision does not suggest that she relied on these specific
findings in her determination of the mother's unfitness, the
findings were "not central to the ultimate conclusion of
unfitness." Care & Protection of Olga, 57 Mass. App. Ct. at
825. Moreover, numerous other findings, which the mother does
not challenge, stand for the same proposition that these
challenged findings stood for: the mother has a violent temper,
and the mother struggles with substance use.
6 d. Findings derived from police reports. The mother also
challenges four findings that derive from information in police
reports. These challenges are meritless. 6
Police reports are admissible under the business record
exception to the hearsay rule, to the extent that the reports
include the officers' firsthand observations. See Adoption of
Paula, 420 Mass. at 727; Mass. G. Evid. § 1115(b)(5). Opinions
and evaluations within the police reports are not admissible,
unless they separately satisfy another hearsay exception. See
Mass. G. Evid. § 1115(b)(5). At the November 7, 2023 hearing,
the judge properly stated these evidentiary limitations when
admitting the police reports.
With regard to the two findings challenged that reference
specific allegations of child abuse and threatening behavior
that were reported to the police, these findings do not assert
that the contentions in the police reports are taken for their
truth. Furthermore, no conclusion of law suggests that these
specific allegations were taken for their truth, nor does the
mother cite to any of the judge's conclusions that take those
allegations for their truth.
The two other findings challenged relate specifically to
reports police received of the mother's suicidal ideations.
6 Included in that category are findings numbers 170, 202, 209, and 215.
7 These findings do not violate any evidentiary rules, where
finding number 215 does not invoke any hearsay statements, and
in finding number 170, the judge does not rely on opinions or
evaluations of officers, but rather independently concludes that
the mother has expressed suicidal ideation based on the police
officers' observations.
e. Remaining challenges. The mother's remaining
challenges to other factual findings generally allege that the
findings are simply unsupported by the record. 7 For nearly all
of the challenges, there is ample information in the record to
support the judge's findings by a preponderance of the evidence.
Where the mother's arguments "amount to no more than
dissatisfaction with the judge's weighing of the evidence and
[her] credibility determinations," we will not disturb the
judge's findings. Adoption of Quentin, 424 Mass. 882, 886 n.3
(1997). 8
7 Included in that category are findings numbers 48, 62, 75, 100, 125, 134, 138, 150, 176, 181, 286, 287, and 288. These findings relate to, among other topics, domestic violence, substance abuse, housing instability, and abandonment of relationship with the child.
8 The mother's argument regarding finding number 93 has merit. Finding number 93 stated that the mother and the father were causing a disturbance, but per the police report, the mother and the father had observed the disturbance, not caused it. However, for the reasons mentioned, this finding was not prejudicial where there was abundant other evidence in the record to support the finding of the mother's unfitness. See Adoption of Luc, 484 Mass. at 148.
8 2. The mother's unfitness. The mother also claims that
the nonerroneous factual findings do not support the judge's
determination of her unfitness by clear and convincing evidence.
Specifically, she alleges that the judge failed to draw a nexus
between the mother's shortcomings and her inability to meet the
child's needs; and that there is no evidence that the mother's
substance use, criminal conduct, personal instability, housing
instability, abandonment of relationship with the child, or
mental illness, as found by the judge, would make the mother
unable to meet the child's needs; and that the finding of
unfitness was a result of bias against the mother. We are not
persuaded.
We review to assess whether the judge's findings proved
unfitness by clear and convincing evidence. Custody of Eleanor,
414 Mass. at 802. The judge must find that current unfitness is
not temporary. Adoption of Arianne, 104 Mass. App. Ct. 716, 720
(2024). "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
Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Adoption of
Mary, 414 Mass. 705, 711 (1993). Other proper considerations in
this determination include, but are not limited to, the past
behavior of the parent, see Adoption of Jacques, 82 Mass. App.
9 Ct. at 607, criminal conduct, see Care & Protection of Frank,
409 Mass. 492, 494-495 (1991), failure to complete and benefit
from services, Adoption of Ulrich, 94 Mass. App. Ct. 668, 677
(2019), and inability to secure adequate stable housing,
Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). No single
factor is determinative. Care & Protection of Yetta, 84 Mass.
App. Ct. 691, 695 (2014). Lastly, "the judge's assessment of
the weight of the evidence and the credibility of the witnesses
is entitled to deference." Custody of Eleanor, 414 Mass. at
799.
We conclude that the judge's finding of the mother's
unfitness was supported by clear and convincing evidence. The
judge's 287 findings of fact and fifty conclusions of law
demonstrate that the judge "[gave] the evidence close
attention." Adoption of Nancy, 443 Mass. 512, 515 (2005). The
judge also considered the findings of fact together, in the
aggregate, when making her determination of unfitness. See Care
& Protection of Laura, 414 Mass. 788, 793 (1993). Among those
findings was evidence of consistent housing instability,
supported by the parents' own testimony, the mother's
difficulties in coping with depression, the mother's abandonment
of her relationship with the child in the months leading up to
the trial, the mother's lack of ability to support the child's
specialized needs related to her heart condition, the mother's
10 violence and temper, the mother's continued substance use and
its negative impact on her child, and lastly, the mother's
general criminal conduct. Importantly, the mother refuses to
engage in action plans or to take any steps to alleviate these
issues. See Adoption of Jacques, 82 Mass. App. Ct. at 609. All
of these factors were properly considered for their likelihood
of harm to the child. We do not disturb the judge's finding of
unfitness, where she was in the best position to weigh the
evidence and assess the credibility of the witnesses. See
Adoption of Quentin, 424 Mass. at 886 n.3.
The evidence also supported the finding that the mother's
unfitness is not temporary and would likely continue
indefinitely. "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. 53, 60 (2011). By the time the termination of
parental rights trial began in November 2023, the department had
been involved with mother since at least 2007. Over the years,
the concerns of the department continued due in large part to
the mother's resistance to comply with the required action plan
tasks. At trial, the mother refused to take responsibility for
losing custody of any of her children, denied almost every
allegation against her regardless of the evidence suggesting
otherwise, continually emphasized her belief that the action
11 plans were not relevant to her, and stated that she refused to
participate in virtual visits with her child. Where there is
evidence that unfitness is not temporary, we do not substitute
our judgment for that of the judge who heard the evidence.
The mother's claim that the judge based her decision on
domestic violence between the mother and the father, the
mother's substance use, and her general criminality, without
citing a nexus to how those factors hinder the mother from
meeting the child's basic needs, is without merit. To the
contrary, the judge explicitly explained the nexus between these
factors and the mother's inability to meet her child's needs.
Regarding the judge's conclusions related to domestic violence,
the judge explicitly found that "any child in [the mother's]
care would be exposed to . . . violence, domestic and
otherwise," and as a result, "it would be dangerous for [the
child] to reunify with" the mother, particularly because the
mother refuses to engage in domestic violence services. With
regard to substance use, the judge, again, explicitly found that
the mother has prior patterns of substance use, that she refuses
to engage in substance use evaluations and treatment, and that
"there is a nexus between [the m]other's . . . unevaluated and
untreated conditions and [her] ability to parent her children."
The record supports these findings. Regarding the mother's
criminal history, the judge made several findings, most of which
12 the mother does not challenge, relevant to the mother's criminal
and police history. The judge determined that this criminal
activity bears on parental fitness, and here contributes to
putting "the child's welfare in jeopardy."
With reference to the mother's arguments that the finding
of unfitness was a result of bias against the mother, we
disagree. The mother bases her argument on the unfortunate
reality that the mother does not have custody of any of her six
children, suggesting that this reality is a result of the
department's bias against her. But the judge's determination of
unfitness for this child did not hinge on the mother's lack of
custody over her other children. The judge's determination of
unfitness properly focused on the mother's conduct in relation
to this child. 9
9 The mother also purports to directly challenge numerous conclusions of law. Those conclusions of law include conclusions numbers 7, 9, 11, 18, 23, 29, 30, 33, 41 (i), 41 (ii), 41 (iii), 41 (v), 41 (ix), 41 (x), 44, 48, and 50. The mother's arguments are without merit. The mother's challenges to several conclusions simply reiterate the legal principles the judge was obligated to follow. The mother's other challenges mostly amount to a dispute with the judge over the weight given to the evidence. Adoption of Quentin, 424 Mass. at 886 n.3. Lastly, the mother's challenge to conclusion number 30 is without merit where her contention that there was a requirement of expert testimony for the judge to find psychological harm to the child if she were removed from her foster placement is mistaken. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003).
13 3. Viewpoint discrimination. The mother claims, for the
first time on appeal, that the judge engaged in invalid
viewpoint discrimination in her findings of unfitness and in the
termination of the mother's parental rights. We treat this
claim as waived.
It is well established that an argument may not be raised
for the first time on appeal. Boss v. Leverett, 484 Mass. 553,
562-563 (2020). Here, the mother did not raise this claim in
the Juvenile Court, and therefore, we treat it as waived. Also,
"[w]e generally decline 'to consider constitutional issues for
the first time on appeal,'" Commonwealth v. Guzman, 469 Mass.
492, 500 (2014), quoting Beeler v. Downey, 387 Mass. 609, 613
n.4 (1982), especially where "the record accompanying
[constitutional claims] is lacking." Guzman, supra, quoting
Gagnon, petitioner, 416 Mass. 775, 780 (1994).
Even if this claim were not waived, it is without merit.
The judge did not base her decision on the mother's viewpoints
regarding the department and the police. Rather, the judge
properly determined that the mother's conduct, including her
inability to exhibit consistent temperament and stability, her
threatening behavior, failure to follow service plans, housing
instability, substance misuse, and more, all supported a finding
of unfitness, and a determination that the termination of the
mother's parental rights was in the child's best interests.
14 These considerations were all relevant to the decision to
terminate parental rights and permissible for the judge to
consider. Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581
(2021) (threatening behavior, unstable housing, and past pattern
of behavior properly considered); Adoption of Ulrich, 94 Mass.
App. Ct. 668, 676-677 (2019) (violence of temper and inability
to comply with or benefit from service plan properly
considered); Adoption of Querida, 94 Mass. App. Ct. 771, 778-779
15 (2019) (history of involvement with department properly
considered).
Decree affirmed.
By the Court (Meade, Ditkoff & Toone, JJ. 10),
Clerk
Entered: December 17, 2025.
10 The panelists are listed in order of seniority.