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-108
ADOPTION OF CIERA (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Juvenile Court judge issued decrees finding the
mother unfit, terminating her parental rights, and approving the
Department of Children and Families' (department) adoption plan
for her three children, the mother appealed.2 Several months
later, the mother filed a motion for new trial, pursuant to
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), primarily
asserting that her trial counsel was ineffective. After a
hearing, the judge denied the mother's motion. The mother again
appealed, and the appeals were consolidated in this court. We
affirm the decrees and the denial of the new trial motion.
1Adoption of Alison and Adoption of Rebecca. The children's names are pseudonyms.
2The judge also found the father unfit and terminated his parental rights to each of the children. The father is not a party to this appeal. Background. This appeal concerns the mother's three
children: Ciera, born in 2007; Alison, born in 2011; and
Rebecca, born in 2015. The department first became involved
with the family in 2009, when a mandated reporter filed a report
pursuant to G. L. c. 119, § 51A (51A report) alleging neglect of
Ciera by her father. Over the ensuing decade, several
additional 51A reports were filed alleging neglect of the
children by both parents. In March 2019, the department filed
the current petition for care and protection. The children were
removed from the mother's care and temporarily placed in a
respite home. The department then placed the children with
their maternal grandmother. In June 2020, the department
changed its permanency goal for the children from reunification
with the parents to adoption by the grandmother. Trial on the
department's petition was held on four nonconsecutive days
beginning January 21, 2022.3 Before determining that the
department's adoption plan was in the children's best interests,
the judge appointed separate counsel for each child. The judge
subsequently issued detailed findings supporting her conclusions
that the mother was unfit and that the children's best interests
3 The judge declared a mistrial on January 21, 2022, due to difficulties with the remote video connection (during trial, some witnesses were in person while others appeared virtually via video) but restarted the trial on February 2, 2022.
2 were served by terminating the mother's parental rights to allow
for adoption by the children's grandmother.
Discussion. To terminate parental rights to a child and
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). "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 Mary, 414 Mass. 705, 711 (1993). A judge
"must also find that the current parental unfitness is not a
temporary condition." Adoption of Virgil, 93 Mass. App. Ct.
298, 301 (2018). A judge's determination of parental unfitness
is "not a moral judgment or a determination that the mother [or]
father do not love the child. The inquiry instead is whether
the parent['s] deficiencies or limitations 'place the child at
serious risk of peril from abuse, neglect, or other activity
harmful to the child.'" Adoption of Bianca, 91 Mass. App. Ct.
428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44
Mass. App. Ct. 758, 761 (1998).
3 1. Termination of the mother's rights. On appeal, the
mother does not contest her unfitness but argues that the judge
erred by failing to make "specific and detailed" findings
explaining why termination of the mother's rights and the plan
of adoption by the maternal grandmother, and not guardianship,
served the children's best interest. We disagree.
At trial, the mother argued that she was fit to parent the
children and asked the court to award her custody, or in the
alternative that the department be awarded permanent custody
without the court terminating her parental rights. She did not
argue at trial that the children be placed with the maternal
grandmother under a permanent guardianship. Where the mother
did not propose guardianship at trial, the judge was not
required to make findings explaining why adoption, and not
guardianship, was in the children's best interest. See Adoption
of Willow, 433 Mass. 636, 651-652 (2001) (judge must have
sufficient information on suitability of proposal to evaluate
placement plan).
2. Ineffective assistance of counsel. The mother asserted
in her motion for new trial that her trial counsel provided
ineffective assistance by failing to advocate for permanent
guardianship with the maternal grandmother as an alternative to
granting mother custody of her children. The judge noted that
4 the judge was aware at trial that guardianship was an option
"but chose the disposition of adoption," and denied the mother's
motion.
"[T]he right to counsel in connection with determining
whether to terminate parental rights is fundamental." Adoption
of Bea, 97 Mass. App. Ct. 416, 424 (2020). To prevail on an
ineffective assistance claim, the mother was required to show
first, that counsel's behavior fell "measurably below that which
might be expected from an ordinary fallible lawyer," and second,
that counsel's failures were prejudicial. Care & Protection of
Georgette, 439 Mass. 28, 33 & n.7 (2003), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). "We review the denial of
a motion for new trial for an abuse of discretion." Adoption of
Raissa, 93 Mass. App. Ct. 447, 455 (2018).
There was ample evidence in the record to support the
judge's finding that the department's recommendation of adoption
by the grandmother "represent[ed] the best plan for [the]
[c]hildren's future stability and success." See Care &
Protection of Jamison, 467 Mass. 269, 283 (2014) (guardianships
are limited in scope, revokable, and subject to third-party
limitations, unlike adoptions). Under a guardianship, the
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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-108
ADOPTION OF CIERA (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Juvenile Court judge issued decrees finding the
mother unfit, terminating her parental rights, and approving the
Department of Children and Families' (department) adoption plan
for her three children, the mother appealed.2 Several months
later, the mother filed a motion for new trial, pursuant to
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), primarily
asserting that her trial counsel was ineffective. After a
hearing, the judge denied the mother's motion. The mother again
appealed, and the appeals were consolidated in this court. We
affirm the decrees and the denial of the new trial motion.
1Adoption of Alison and Adoption of Rebecca. The children's names are pseudonyms.
2The judge also found the father unfit and terminated his parental rights to each of the children. The father is not a party to this appeal. Background. This appeal concerns the mother's three
children: Ciera, born in 2007; Alison, born in 2011; and
Rebecca, born in 2015. The department first became involved
with the family in 2009, when a mandated reporter filed a report
pursuant to G. L. c. 119, § 51A (51A report) alleging neglect of
Ciera by her father. Over the ensuing decade, several
additional 51A reports were filed alleging neglect of the
children by both parents. In March 2019, the department filed
the current petition for care and protection. The children were
removed from the mother's care and temporarily placed in a
respite home. The department then placed the children with
their maternal grandmother. In June 2020, the department
changed its permanency goal for the children from reunification
with the parents to adoption by the grandmother. Trial on the
department's petition was held on four nonconsecutive days
beginning January 21, 2022.3 Before determining that the
department's adoption plan was in the children's best interests,
the judge appointed separate counsel for each child. The judge
subsequently issued detailed findings supporting her conclusions
that the mother was unfit and that the children's best interests
3 The judge declared a mistrial on January 21, 2022, due to difficulties with the remote video connection (during trial, some witnesses were in person while others appeared virtually via video) but restarted the trial on February 2, 2022.
2 were served by terminating the mother's parental rights to allow
for adoption by the children's grandmother.
Discussion. To terminate parental rights to a child and
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). "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 Mary, 414 Mass. 705, 711 (1993). A judge
"must also find that the current parental unfitness is not a
temporary condition." Adoption of Virgil, 93 Mass. App. Ct.
298, 301 (2018). A judge's determination of parental unfitness
is "not a moral judgment or a determination that the mother [or]
father do not love the child. The inquiry instead is whether
the parent['s] deficiencies or limitations 'place the child at
serious risk of peril from abuse, neglect, or other activity
harmful to the child.'" Adoption of Bianca, 91 Mass. App. Ct.
428, 432 n.8 (2017), quoting Care & Protection of Bruce, 44
Mass. App. Ct. 758, 761 (1998).
3 1. Termination of the mother's rights. On appeal, the
mother does not contest her unfitness but argues that the judge
erred by failing to make "specific and detailed" findings
explaining why termination of the mother's rights and the plan
of adoption by the maternal grandmother, and not guardianship,
served the children's best interest. We disagree.
At trial, the mother argued that she was fit to parent the
children and asked the court to award her custody, or in the
alternative that the department be awarded permanent custody
without the court terminating her parental rights. She did not
argue at trial that the children be placed with the maternal
grandmother under a permanent guardianship. Where the mother
did not propose guardianship at trial, the judge was not
required to make findings explaining why adoption, and not
guardianship, was in the children's best interest. See Adoption
of Willow, 433 Mass. 636, 651-652 (2001) (judge must have
sufficient information on suitability of proposal to evaluate
placement plan).
2. Ineffective assistance of counsel. The mother asserted
in her motion for new trial that her trial counsel provided
ineffective assistance by failing to advocate for permanent
guardianship with the maternal grandmother as an alternative to
granting mother custody of her children. The judge noted that
4 the judge was aware at trial that guardianship was an option
"but chose the disposition of adoption," and denied the mother's
motion.
"[T]he right to counsel in connection with determining
whether to terminate parental rights is fundamental." Adoption
of Bea, 97 Mass. App. Ct. 416, 424 (2020). To prevail on an
ineffective assistance claim, the mother was required to show
first, that counsel's behavior fell "measurably below that which
might be expected from an ordinary fallible lawyer," and second,
that counsel's failures were prejudicial. Care & Protection of
Georgette, 439 Mass. 28, 33 & n.7 (2003), quoting Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). "We review the denial of
a motion for new trial for an abuse of discretion." Adoption of
Raissa, 93 Mass. App. Ct. 447, 455 (2018).
There was ample evidence in the record to support the
judge's finding that the department's recommendation of adoption
by the grandmother "represent[ed] the best plan for [the]
[c]hildren's future stability and success." See Care &
Protection of Jamison, 467 Mass. 269, 283 (2014) (guardianships
are limited in scope, revokable, and subject to third-party
limitations, unlike adoptions). Under a guardianship, the
mother would have retained the right to petition the court to
terminate or review the guardianship every six months. See
5 Adoption of Willow, 433 Mass. at 647 & n.11; G. L. c. 119,
§§ 26, 29B; G. L. c. 190B, § 5-212 (a). Despite the mother's
claim at the hearing on her new trial motion that she would not
seek to destabilize a guardianship, the judge had found that the
mother had previously sought to disrupt the grandmother's
custody of the children by asking police to conduct wellness
checks on the children at the grandmother's home, physically
assaulting the grandmother because "mother was upset about not
having custody of the children," and filing a 51A report
accusing the grandmother of witchcraft. The mother also would
be entitled under a guardianship to visit her children unless a
court made specific findings that visitation would be harmful to
them. See Adoption of Rhona, 57 Mass. App. Ct. 479, 488-489
(2003). However, the mother struggled with appropriate behavior
when visiting the children, and the children experienced
significant stress during these visits. After a visit in
February 2021, where the mother began shouting about the
children in public, her supervised visits were put on hold. In
contrast, under the department's plan of adoption by the
grandmother, post-termination visitation with the mother was not
mandated. Instead, the judge allowed the grandmother to control
visitation and make informed decisions about what would be in
the children's best interest. See Adoption of Ilona, 459 Mass.
6 53, 66 (2011) (judge has equitable authority to order post-
termination visitation but may leave visits to the discretion of
adoptive parent). Finally, all three children expressed a
desire to be adopted by their grandmother,4 with whom they had
lived for more than half their lives. See Adoption of Nancy,
443 Mass. at 518 (while not dispositive, children's wishes are
entitled to weight).
On this record, we conclude that, even were we to assume
trial counsel's performance was ineffective,5 the mother was not
prejudiced because there was scant likelihood that the judge
would have preserved the mother's parental rights even if her
counsel had presented guardianship as an alternative to adoption
by the grandmother. See Commonwealth v. Comita, 441 Mass. 86,
90-91 (2004) (failure to pursue litigation path that was
unlikely to succeed not ineffective assistance). Accordingly,
we discern no abuse of discretion in the judge's denial of the
4 At the time of the trial, the children were six, eleven, and fourteen years old, and each was able to articulate a preference.
5 Although we need not and do not reach the issue, we note that counsel mounted a vigorous defense throughout the proceedings to rebut the department's evidence of the mother's unfitness. Counsel also endeavored to follow the mother's instructions to preserve her parental rights "first and foremost."
7 mother's motion for a new trial. See Care & Protection of
Georgette, 439 Mass. at 33-34 & n.7.
Decrees affirmed.
Order denying motion for new trial affirmed.
By the Court (Rubin, Brennan & Wood, JJ.6),
Clerk
Entered: December 26, 2025.
6 The panelists are listed in order of seniority.