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-1204
ADOPTION OF CAMDEN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following trial in the Juvenile Court, a judge found the
mother unfit to parent her son, Camden,2 terminated her parental
rights to him, and approved the plan of the Department of
Children and Families (department) for the adoption of the
child. See G. L. c. 119, § 26. The mother appeals and raises
three arguments: (1) the judge's findings of fact are not
entitled to their usual deference due to a delay in their
issuance; (2) the judge erroneously concluded the department had
made reasonable efforts to reunify the mother and Camden; and
(3) the judge erred in limiting the mother's posttermination and
1 A pseudonym.
2"Despite the moral overtones of the statutory term 'unfit,' the judge's decision [is] not a moral judgment or a determination that [the mother] do[es] not love [Camden]." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). postadoption visitation with Camden to two visits per year. We
affirm.
Delay in findings of fact. The mother argues that the
findings of fact were delayed and thus they should not be given
deference. The evidentiary portion of the trial spanned two
nonconsecutive days, taking place on October 19, 2022, and
November 28, 2022. On January 5, 2023, the judge announced her
decision from the bench, finding that the mother was unfit, that
Camden was in need of care and protection, and that it was in
his best interests to terminate the mother's parental rights.
The decree terminating the mother's parental rights entered that
same day, along with the judge's written decision and order as
to the termination. The mother timely filed a notice of appeal
on January 27, 2023. On October 4, 2023, the judge issued
written findings of fact and conclusions of law (findings and
conclusions). The mother argues that she was prejudiced by the
almost nine-month gap between the judge's decision on January 5
and the issuance of the findings and conclusions on October 4.
See Juvenile Court Standing Order 2-18(III)(C) (judge required
to transmit decision and written findings within ninety days
from close of evidence). She argues that the delay rose to the
level of a violation of due process, see Care & Protection of
Martha, 407 Mass. 319, 330 (1990), and given the judge's
rejection of certain evidence, "stricter scrutiny" is warranted.
2 Adoption of Abby, 62 Mass. App. Ct. 816, 817 (2005). We
disagree.
Here, the judge timely announced her decision approximately
thirty days after the close of evidence. See Juvenile Court
Standing Order 1-10(5). While it is true that the findings and
conclusions were issued more than ninety days after the close of
evidence, "[t]he mother has not indicated in any meaningful way
how the delay affected the judge's findings or conclusions."
Adoption of Luc, 94 Mass. App. Ct. 565, 571 (2018), S.C., 484
Mass. 139 (2020). See Adoption of Don, 435 Mass. 158, 170
(2001) (no violation of due process rights where parents unable
to show outcome of case would have been different without
delay). Additionally, the mother has not indicated that the
delay caused the judge to misremember any testimony from the
trial. See Adoption of Luc, 94 Mass. App. Ct. at 571 & n.9
(delay of one year following mother’s notice of appeal not found
to affect judge's findings or conclusions).
Reasonable efforts to reunify. The mother, for the first
time on appeal, claims that the department failed to make
reasonable efforts at reunification as required by G. L. c. 119,
§ 29C. She makes three arguments: First, she argues that she
is entitled to raise this issue now because her mental health
issues were a theme that "ran through the life of the case."
Second, she argues that the department did not fulfill its duty
3 to make reasonable efforts to reunify Camden with her. Finally,
she argues that these duties were not fulfilled because the
department did not tailor its services to her needs.
"A parent cannot raise a claim of inadequate services for
the first time on appeal, as the department would not have had
the opportunity to address it." Adoption of West, 97 Mass. App.
Ct. 238, 242 (2020). However, where inadequate services "was a
theme that ran through the life of the case," we may still
review the issue. Adoption of Chad, 94 Mass. App. Ct. 828, 839
n.20 (2019). Here, the mother never formally raised a claim for
inadequate services during the trial. See Adoption of West,
supra at 242-243 (noting "avenues available to raise a claim of
inadequate services"). However, several reports by a court
appointed special advocate (CASA) expressed the concern that the
mother's mental health issues would prevent her from engaging
with services.3 Additionally, the judge acknowledged that the
mother's "diagnoses present a barrier to her engaging with
services." As a result, we will review the issue.
3 An early report from November 3, 2021, stated, "This CASA is concerned that [the mother] may need a reasonable accommodation to effectively access services. However, this CASA is worried that the process of determining such accommodation, as well as adherence to other ADA requirements related to a parent with a disability, is not being considered in providing assistance to her." The last CASA report before trial was dated October 19, 2022, and stated that "[t]his CASA is concerned that [the mother] may need a reasonable accommodation to effectively access services."
4 "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 West, 97 Mass. App. Ct. at 241, quoting 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 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. 53, 61 (2011),
citing Adoption of Gregory, 434 Mass. 117, 122 (2001).
"Reasonable efforts is generally understood to include
accessible, available, and culturally appropriate services that
are designed to improve the capacity of families to provide safe
and stable homes for their children and to ensure that parents
and other family members . . . are making progress on case plan
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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
23-P-1204
ADOPTION OF CAMDEN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following trial in the Juvenile Court, a judge found the
mother unfit to parent her son, Camden,2 terminated her parental
rights to him, and approved the plan of the Department of
Children and Families (department) for the adoption of the
child. See G. L. c. 119, § 26. The mother appeals and raises
three arguments: (1) the judge's findings of fact are not
entitled to their usual deference due to a delay in their
issuance; (2) the judge erroneously concluded the department had
made reasonable efforts to reunify the mother and Camden; and
(3) the judge erred in limiting the mother's posttermination and
1 A pseudonym.
2"Despite the moral overtones of the statutory term 'unfit,' the judge's decision [is] not a moral judgment or a determination that [the mother] do[es] not love [Camden]." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). postadoption visitation with Camden to two visits per year. We
affirm.
Delay in findings of fact. The mother argues that the
findings of fact were delayed and thus they should not be given
deference. The evidentiary portion of the trial spanned two
nonconsecutive days, taking place on October 19, 2022, and
November 28, 2022. On January 5, 2023, the judge announced her
decision from the bench, finding that the mother was unfit, that
Camden was in need of care and protection, and that it was in
his best interests to terminate the mother's parental rights.
The decree terminating the mother's parental rights entered that
same day, along with the judge's written decision and order as
to the termination. The mother timely filed a notice of appeal
on January 27, 2023. On October 4, 2023, the judge issued
written findings of fact and conclusions of law (findings and
conclusions). The mother argues that she was prejudiced by the
almost nine-month gap between the judge's decision on January 5
and the issuance of the findings and conclusions on October 4.
See Juvenile Court Standing Order 2-18(III)(C) (judge required
to transmit decision and written findings within ninety days
from close of evidence). She argues that the delay rose to the
level of a violation of due process, see Care & Protection of
Martha, 407 Mass. 319, 330 (1990), and given the judge's
rejection of certain evidence, "stricter scrutiny" is warranted.
2 Adoption of Abby, 62 Mass. App. Ct. 816, 817 (2005). We
disagree.
Here, the judge timely announced her decision approximately
thirty days after the close of evidence. See Juvenile Court
Standing Order 1-10(5). While it is true that the findings and
conclusions were issued more than ninety days after the close of
evidence, "[t]he mother has not indicated in any meaningful way
how the delay affected the judge's findings or conclusions."
Adoption of Luc, 94 Mass. App. Ct. 565, 571 (2018), S.C., 484
Mass. 139 (2020). See Adoption of Don, 435 Mass. 158, 170
(2001) (no violation of due process rights where parents unable
to show outcome of case would have been different without
delay). Additionally, the mother has not indicated that the
delay caused the judge to misremember any testimony from the
trial. See Adoption of Luc, 94 Mass. App. Ct. at 571 & n.9
(delay of one year following mother’s notice of appeal not found
to affect judge's findings or conclusions).
Reasonable efforts to reunify. The mother, for the first
time on appeal, claims that the department failed to make
reasonable efforts at reunification as required by G. L. c. 119,
§ 29C. She makes three arguments: First, she argues that she
is entitled to raise this issue now because her mental health
issues were a theme that "ran through the life of the case."
Second, she argues that the department did not fulfill its duty
3 to make reasonable efforts to reunify Camden with her. Finally,
she argues that these duties were not fulfilled because the
department did not tailor its services to her needs.
"A parent cannot raise a claim of inadequate services for
the first time on appeal, as the department would not have had
the opportunity to address it." Adoption of West, 97 Mass. App.
Ct. 238, 242 (2020). However, where inadequate services "was a
theme that ran through the life of the case," we may still
review the issue. Adoption of Chad, 94 Mass. App. Ct. 828, 839
n.20 (2019). Here, the mother never formally raised a claim for
inadequate services during the trial. See Adoption of West,
supra at 242-243 (noting "avenues available to raise a claim of
inadequate services"). However, several reports by a court
appointed special advocate (CASA) expressed the concern that the
mother's mental health issues would prevent her from engaging
with services.3 Additionally, the judge acknowledged that the
mother's "diagnoses present a barrier to her engaging with
services." As a result, we will review the issue.
3 An early report from November 3, 2021, stated, "This CASA is concerned that [the mother] may need a reasonable accommodation to effectively access services. However, this CASA is worried that the process of determining such accommodation, as well as adherence to other ADA requirements related to a parent with a disability, is not being considered in providing assistance to her." The last CASA report before trial was dated October 19, 2022, and stated that "[t]his CASA is concerned that [the mother] may need a reasonable accommodation to effectively access services."
4 "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 West, 97 Mass. App. Ct. at 241, quoting 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 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. 53, 61 (2011),
citing Adoption of Gregory, 434 Mass. 117, 122 (2001).
"Reasonable efforts is generally understood to include
accessible, available, and culturally appropriate services that
are designed to improve the capacity of families to provide safe
and stable homes for their children and to ensure that parents
and other family members . . . are making progress on case plan
goals" (quotations and citation omitted). Care & Protection of
Rashida, 488 Mass. 217, 219 (2021), S.C., 489 Mass. 128 (2022).
"A judge's determination that the department made reasonable
efforts will not be reversed unless clearly erroneous."
Adoption of West, supra at 242.
5 Central to the mother's argument is that the department
failed to implement the recommendations4 made by a Juvenile Court
Clinic evaluator that would have to occur prior to the mother's
reunifying with Camden. However, "heroic or extraordinary
measures, however desirable they may at least abstractly be, are
not required." Adoption of West, 97 Mass. App. Ct. at 245,
quoting Adoption of Lenore, 55 Mass. App. Ct. at 278. See
Adoption of Luc, 484 Mass. at 147, quoting Petitions of the
Dep't of Social Servs. to Dispense with Consent to Adoption, 399
Mass. 279, 289 (1987) ("mother's unwillingness to adhere to [the
department's] service plan, which required her to obtain
treatment for her mental health challenges . . . is 'relevant to
the determination of unfitness'").
The department repeatedly tried, in vain, to have the
mother engage with services. The department's action plan was
"in line" with the recommendations from the court clinic
evaluator. The department made three Family Self Sufficiency
Program referrals to set up home services and connect the mother
4 Some of these services were directed at the mother while others were directed at the department. These recommendations included the following: (1) requiring a psychiatric consultation and ongoing management, (2) implementing a Rogers monitor, (3) requiring visiting nurse services, (4) reengaging with Department of Mental Health services, (5) requiring substance abuse treatment, (6) engaging in individual therapy, and (7) engaging with ongoing intimate partner violence survivor and trauma support.
6 to additional services as needed, which the mother declined.
The mother also refused to sign releases so the department could
contact her Department of Mental Health worker directly, which
was a critical component of the evaluator's recommendations.
The mother argues that the department went against its own
written disability policy (policy).5 However, the policy is
structured in the alternative, and the mother admits that the
department's ongoing social worker consulted "with her
supervisor and [the Area Program Manager] 'about the
difficulties of having conversation and sort of being able to
get the point across.'"
5 This policy, no. 2022-01, effective January 18, 2022, states, in relevant part:
"If a Social Worker observes a characteristic or behavior that may indicate the presence of a disability, the Social Worker must take at least one of the following steps, but may take them all:
"(1) Ask the parent/caregiver if they would like an accommodation to assist with the observed behavior and explain what an accommodation is.
"(2) Consult with their Supervisor regarding the observation, what it could mean and potential next steps.
"(3) Consult with a Department specialist, including the Director of Disability Services, Disability Specialists, the Statewide Disability Coordinator, the Regional Disability Liaisons, or any of the Department's mental health, substance use/misuse, or medical specialists." (Emphases added.)
7 In the end, it cannot be said that the department failed to
make reasonable efforts to have the mother engage with services
in order to reunify her with Camden. See Adoption of West, 97
Mass. App. Ct. at 241. It was the mother's unwillingness to
engage with the recommended services and follow the department's
action plan that ultimately and unfortunately stymied
reunification. See Adoption of Yalena, 100 Mass. App. Ct. 542,
554 (2021).
Posttermination and postadoption visitation. The mother
argues that the judge abused her discretion in providing for
only two posttermination and postadoption visits with Camden per
year. "A judge may decline to order postadoption visitation, or
'may order limited postadoption contact, including visitation,
between a child and a biological parent where such contact is
currently in the best interests of the child.'" Adoption of
Saul, 60 Mass. App. Ct. 546, 556 (2004), quoting Adoption of
Vito, 431 Mass. 550, 553 (2000). "An order for postadoption
contact is grounded in the over-all best interests of the child,
based on emotional bonding and other circumstances of the actual
personal relationship of the child and the biological parent,
not in the rights of the biological parent nor the legal
consequences of their natural relation" (citation omitted).
Adoption of Saul, supra. "In issuing such an order, the judge
must determine that '[o]nce it [has been] established that a
8 parent is unfit, the decision whether to grant postadoption [or
posttermination] visits must be left to the sound discretion of
the trial judge.'" Adoption of Zander, 83 Mass. App. Ct. 363,
365 (2013), quoting Adoption of Terrence, 57 Mass. App. Ct. 832,
839 (2003). "We review the judge's determination for an abuse
of discretion." Adoption of Zander, supra at 365-366.
The mother claims that there was a "well-documented bond
and positive relationship" between her and Camden and that "most
[supervised] visits . . . have gone well." However, the mother
missed a number of visits due to her hospitalization and
incarceration. Additionally, the mother was not able to control
Camden during some visits -- the judge credited an incident
where Camden ran out of the visitation room and hit his head on
the glass door of the building. Additionally, Camden, has spent
more than one-half of his young life out of the mother's care,
and his speech delay and allergies improved in the care of his
foster parents. We conclude that there was no abuse of
9 discretion.
Decree affirmed.
By the Court (Desmond, Brennan & Smyth, JJ.6),
Clerk
Entered: August 6, 2024.
6 The panelists are listed in order of seniority.