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-947
ADOPTION OF AMARI.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Juvenile Court judge issued a decree finding the
mother unfit, terminating her parental rights, and approving the
Department of Children and Families' (department) adoption plan
for Amari, the mother appealed. Several months later, the
mother filed a motion for new trial, pursuant to Mass. R. Civ.
P. 60 (b), 365 Mass. 828 (1974), asserting that she was denied a
reasonable accommodation at trial. After a non-evidentiary
hearing, the judge denied the mother's motion. The mother again
appealed and the appeals were consolidated in this court. We
affirm both the decree and the denial of the motion for new
trial.
Background. Amari was born in the fall of 2022. The
following day, the department filed a petition for care and
1 A pseudonym. protection of Amari, based on two reports pursuant to G. L.
c. 119, § 51A, documenting that Amari was born substance-exposed
and that the mother did not have a home. The department took
custody of Amari and retained custody through trial. Trial was
heard on October 3, 2024.2 The judge subsequently issued
detailed findings supporting her conclusions that the mother was
unfit and likely to remain so and that Amari's best interests
were served by terminating the mother's parental rights.3
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
provided by at least a fair preponderance of the 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). "The judge must also find that
the current parental unfitness is not a temporary condition"
(quotation and citation omitted). Adoption of Arianne, 104
Mass. App. Ct. 716, 720 (2024). "We give substantial deference
to the judge's decision to terminate parental rights and reverse
only where the findings of fact are clearly erroneous or where
2 The trial initially began in July 2024, but that trial resulted in a mistrial.
3 Amari's putative father was struck from the case for failing to establish paternity and is not a party to this appeal.
2 there is a clear error of law or abuse of discretion" (quotation
and citation omitted). Id. "An abuse of discretion exists
where the decision amounts to a clear error of judgment [in
weighing the relevant factors, such] that [the decision] falls
outside the range of reasonable alternatives" (citation
omitted). Id.
1. Termination of the mother's rights. The mother argues
that the judge abused her discretion by relying on two factual
findings that the mother claims were clearly erroneous: (1) the
mother failed to maintain "significant and meaningful contact
with the child during the previous six months," and (2) the
mother failed to demonstrate an effort "to remedy conditions
which create a risk of harm due to abuse or neglect of the
child." See G. L. c. 210, § 3 (c) (iii), (viii). We disagree.
a. Contact with Amari. The mother attended many visits
with Amari in the six months leading up to the trial, but she
also cancelled several visits and sometimes nodded off at visits
or asked to end a visit early. In August 2024, the mother's
visits were reduced from one hour weekly to biweekly due to her
lack of compliance with the department's plans or progress
toward reunification. When she responded angrily to this
reduction in visitation and threatened the department, the
mother's visits were suspended for about two weeks, until the
department could meet with her and her counsel to discuss the
3 incident. In contrast to the mother's assertion that the judge
drew unsupported inferences from a gap in the department's
reporting, the judge made twenty-six findings about the mother's
visitation history, and each finding included a citation either
to the department's reports or the mother's testimony. Based on
the mother's gaps in visits and lack of meaningful engagement
with Amari at some visits, there was ample support for the
judge's finding that the mother failed to maintain meaningful
contact with Amari. Because the factual finding was not clearly
erroneous, the judge's reliance on it as a factor in determining
the mother's fitness was not an abuse of discretion. See
Adoption of Ilona, 459 Mass. 53, 62 (2011).
b. Efforts to remedy harmful conditions. The department's
action plans for the mother sought to address her mental health,
substance use, housing instability, and visitation planning and
behavior. The mother engaged at times with programs that would
address each of these issues, including participating in a
residential treatment program that would allow her to have Amari
with her. She stayed in a residential treatment program from
March 2023 through May 2023, a second one from July 2023 through
November 2023, and a third from December 2023 until around April
2024. However, the mother was terminated from each of these
programs when she relapsed or did not follow the program rules.
The mother also stopped complying with the department's drug
4 testing after January 2024 and reported to the department in
April 2024 that she would refuse any more programs. At the time
of trial, the mother did not have housing and was not engaged in
substance use or mental health treatment. Based on the mother's
failure to complete the residential programs or maintain
sobriety, the judge concluded that she had not "follow[ed]
through with the changes necessary" to address her mental
health, substance use, and housing instability issues or
"adequately engage" in treatment. Again, where the judge's
factual determinations were supported by the record, it was not
an abuse of discretion for the judge to consider that the mother
failed to demonstrate an effort to address conditions that
created a risk of harm to Amari. See Adoption of Ilona, 459
Mass. at 62.
2. Mother's request for a reasonable accommodation at
trial. The mother also claims that the judge improperly denied
her request for a reasonable accommodation at trial. She argues
that the judge compounded this error and abused her discretion
by denying the mother's motion for a new trial. See Adoption of
Raissa, 93 Mass.
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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-947
ADOPTION OF AMARI.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Juvenile Court judge issued a decree finding the
mother unfit, terminating her parental rights, and approving the
Department of Children and Families' (department) adoption plan
for Amari, the mother appealed. Several months later, the
mother filed a motion for new trial, pursuant to Mass. R. Civ.
P. 60 (b), 365 Mass. 828 (1974), asserting that she was denied a
reasonable accommodation at trial. After a non-evidentiary
hearing, the judge denied the mother's motion. The mother again
appealed and the appeals were consolidated in this court. We
affirm both the decree and the denial of the motion for new
trial.
Background. Amari was born in the fall of 2022. The
following day, the department filed a petition for care and
1 A pseudonym. protection of Amari, based on two reports pursuant to G. L.
c. 119, § 51A, documenting that Amari was born substance-exposed
and that the mother did not have a home. The department took
custody of Amari and retained custody through trial. Trial was
heard on October 3, 2024.2 The judge subsequently issued
detailed findings supporting her conclusions that the mother was
unfit and likely to remain so and that Amari's best interests
were served by terminating the mother's parental rights.3
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
provided by at least a fair preponderance of the 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). "The judge must also find that
the current parental unfitness is not a temporary condition"
(quotation and citation omitted). Adoption of Arianne, 104
Mass. App. Ct. 716, 720 (2024). "We give substantial deference
to the judge's decision to terminate parental rights and reverse
only where the findings of fact are clearly erroneous or where
2 The trial initially began in July 2024, but that trial resulted in a mistrial.
3 Amari's putative father was struck from the case for failing to establish paternity and is not a party to this appeal.
2 there is a clear error of law or abuse of discretion" (quotation
and citation omitted). Id. "An abuse of discretion exists
where the decision amounts to a clear error of judgment [in
weighing the relevant factors, such] that [the decision] falls
outside the range of reasonable alternatives" (citation
omitted). Id.
1. Termination of the mother's rights. The mother argues
that the judge abused her discretion by relying on two factual
findings that the mother claims were clearly erroneous: (1) the
mother failed to maintain "significant and meaningful contact
with the child during the previous six months," and (2) the
mother failed to demonstrate an effort "to remedy conditions
which create a risk of harm due to abuse or neglect of the
child." See G. L. c. 210, § 3 (c) (iii), (viii). We disagree.
a. Contact with Amari. The mother attended many visits
with Amari in the six months leading up to the trial, but she
also cancelled several visits and sometimes nodded off at visits
or asked to end a visit early. In August 2024, the mother's
visits were reduced from one hour weekly to biweekly due to her
lack of compliance with the department's plans or progress
toward reunification. When she responded angrily to this
reduction in visitation and threatened the department, the
mother's visits were suspended for about two weeks, until the
department could meet with her and her counsel to discuss the
3 incident. In contrast to the mother's assertion that the judge
drew unsupported inferences from a gap in the department's
reporting, the judge made twenty-six findings about the mother's
visitation history, and each finding included a citation either
to the department's reports or the mother's testimony. Based on
the mother's gaps in visits and lack of meaningful engagement
with Amari at some visits, there was ample support for the
judge's finding that the mother failed to maintain meaningful
contact with Amari. Because the factual finding was not clearly
erroneous, the judge's reliance on it as a factor in determining
the mother's fitness was not an abuse of discretion. See
Adoption of Ilona, 459 Mass. 53, 62 (2011).
b. Efforts to remedy harmful conditions. The department's
action plans for the mother sought to address her mental health,
substance use, housing instability, and visitation planning and
behavior. The mother engaged at times with programs that would
address each of these issues, including participating in a
residential treatment program that would allow her to have Amari
with her. She stayed in a residential treatment program from
March 2023 through May 2023, a second one from July 2023 through
November 2023, and a third from December 2023 until around April
2024. However, the mother was terminated from each of these
programs when she relapsed or did not follow the program rules.
The mother also stopped complying with the department's drug
4 testing after January 2024 and reported to the department in
April 2024 that she would refuse any more programs. At the time
of trial, the mother did not have housing and was not engaged in
substance use or mental health treatment. Based on the mother's
failure to complete the residential programs or maintain
sobriety, the judge concluded that she had not "follow[ed]
through with the changes necessary" to address her mental
health, substance use, and housing instability issues or
"adequately engage" in treatment. Again, where the judge's
factual determinations were supported by the record, it was not
an abuse of discretion for the judge to consider that the mother
failed to demonstrate an effort to address conditions that
created a risk of harm to Amari. See Adoption of Ilona, 459
Mass. at 62.
2. Mother's request for a reasonable accommodation at
trial. The mother also claims that the judge improperly denied
her request for a reasonable accommodation at trial. She argues
that the judge compounded this error and abused her discretion
by denying the mother's motion for a new trial. See Adoption of
Raissa, 93 Mass. App. Ct. 447, 455 (2018). We disagree.
Massachusetts courts owe a duty to provide reasonable
accommodations to a witness with disabilities. See McDonough,
petitioner, 457 Mass. 512, 522-526 (2010). See also Adjartey v.
Central Div. of the Hous. Court Dep't, 481 Mass. 830, 848 (2019)
5 (duty to provide reasonable accommodations extends to civil
trials). "[A]s a first step, a witness with a disability . . .
should alert a judge and the adverse party that the witness
needs accommodation, and identify the reasonable accommodation
that the witness seeks." McDonough, supra at 523. After the
issue is raised, "in many cases the matter will be resolved to
the satisfaction of all involved without a hearing." Id. at
524. On appeal, we look at whether the judge "preclude[d] a
witness with a disability from testifying by denying a request
for accommodation." Id. at 528.
Here, just before the trial commenced, the mother moved for
a disability accommodation based on her anxiety and depression.
Specifically, the mother requested that she be permitted to
testify without interruption prior to any objections from
opposing counsel. When the mother alerted the judge to her
disability and requested accommodation, the department responded
that it "would be willing to do accommodations." Amari's
attorney stated she was "fine" with letting the mother answer
fully before objecting. Consequently, the judge was not required
to hold a hearing about the reasonableness of the accommodation.
See McDonough, 457 Mass. at 524.
Although the judge denied the motion, subject to further
consideration as the trial progressed, the mother's request for
accommodation functionally was granted. During the department's
6 direct examination of the mother, there were three objections
raised, two by Amari's counsel and one by the mother's counsel.
Each objection was made after the mother completed her answer.
In other words, counsel complied with the mother's request. We
are not persuaded by the mother's contention that she was denied
reasonable accommodation when, during her own attorney's cross-
examination, the judge asked the mother to wait "[j]ust a
minute" and "hold on" before answering two questions with
objections. Simply put, the accommodation the mother requested
said nothing of the judge asking for a momentary pause to make a
ruling. The judge did not preclude the mother from testifying,
and the mother's decision to walk out of the courtroom and
refuse to continue her testimony cannot be blamed on a failure
by the trial judge to provide reasonable accommodation. See
McDonough, 457 Mass. at 528.
Finally, we disagree with the mother's contention that it
was unfair for the judge to draw a negative inference from her
absence because she was rendered unable to meaningfully
participate in the trial. The judge's findings about the
mother's temperament at trial are separable from the mother's
accommodation request. After the mother left the witness stand,
she did not return to the courtroom to resume her testimony.
After the mother did return, during the department social
worker's subsequent testimony, she shouted, "she's lying" and
7 had to be escorted out of the courtroom. In these
circumstances, the mother's need for an accommodation to
facilitate her testimony did not preclude the judge from
considering her behavior during the trial. See Custody of Two
Minors, 396 Mass. 610, 616-617 (1986). See also Adoption of
Yvonne, 99 Mass. App. Ct. 574, 580 (2021) (judge may properly
consider parent's behavior at trial).
In sum, we discern no error in the judge's application of
the guidelines for providing a reasonable witness disability
accommodation to the mother or drawing a negative inference from
the mother's behavior at trial, nor an abuse of discretion in
denying the mother's motion for a new trial.
Decree affirmed.
Order denying motion for new trial affirmed.
By the Court (Walsh, Grant & Brennan, JJ.4),
Clerk
Entered: May 5, 2026.
4 The panelists are listed in order of seniority.