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-799
ADOPTION OF EMRYS.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial, a judge of the Juvenile Court found the
mother of six year old Emrys unfit and adjudicated Emrys in need
of care and protection. Although the judge also found that the
mother's unfitness was not temporary, consistent with Adoption
of Carlos, 413 Mass 339, 350-351 (1992), the judge scheduled a
hearing, which was held seven months later, to assess whether
the mother had made sufficient progress such that reunification
with Emrys was a viable option. At the conclusion of that
hearing, the judge found that despite making some progress, the
mother remained unfit and terminated her parental rights. The
judge also approved the adoption plan proposed by the Department
of Children and Families (department), which was for Emrys to be
1 A pseudonym. adopted by his paternal grandmother. On appeal, the mother
contends that the judge erred in terminating her parental rights
in favor of adoption where less extreme measures were available,
such as a guardianship or an award of permanent custody.2 She
also claims that her right to due process was violated because
the judge was not "fair and impartial." We affirm.3
Background. We summarize the judge's unchallenged findings
of fact and conclusions of law as follows. Emrys was born in
2017 when the mother was twenty-seven years old. Emrys was the
mother's fourth child. As discussed below, her three other
children were removed from her care and placed in the custody of
the father of two of those children, after a probate court
action in New Hampshire.4
The mother has a history of volatile romantic relationships
during which she has endured multiple episodes of domestic
violence. Her first such relationship was with the biological
2 The department contends that the mother has waived this argument because she did not present a competing plan. Even if the claim is waived, we exercise our discretion to address it. See Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013).
3 Emrys has submitted a brief in support of affirming the decree.
4 Although the mother's other children are not parties to this case, the judge included findings about the mother's relationship with them. We consider them only to the extent they provide context for the mother's relationship with Emrys.
2 father of her oldest son (father 1). That child was born when
the mother was eighteen years old. While in a relationship with
father 1 the mother experienced physical and emotional abuse.
When the relationship ended, she obtained a permanent
restraining order against father 1.
Years later, the mother entered into a romantic
relationship with a man with whom she had two daughters (father
2). The mother described the relationship with father 2 as
abusive and, on one occasion in April 2014, she reported to the
police that he punched her in the arm while her daughters were
present. The mother obtained a restraining order against father
2, which was in effect for about nine months. After it expired,
the two resumed their relationship, but it did not last and the
mother soon became involved with Emrys's father (father 3).5
The mother and father 3 were together on and off from 2015
through 2019.6 The relationship ended in September 2019,
5On the first day of the trial, father 3 entered a stipulation of permanent custody to the department. He is not a party to this appeal.
6After Emrys's birth, the mother, father 3, and Emrys lived with the paternal grandmother and the mother's other children. They later moved to the maternal grandmother's home in a neighboring city. Then, in 2019, the mother and the children moved to a house in another nearby city. There was evidence that the house was not well maintained, and when visiting, the paternal grandmother noted the home was dirty with feces on the floor.
3 following an incident of domestic violence in which father 3
pushed the mother into a wall, and she punched him in the face.
In February 2019, during a period when the mother and
father 3 were not together, the mother met and allowed to move
in with her and Emrys a man who was withdrawing from "crack"
cocaine and feared relapsing. Within a few days, in Emrys's
presence, the man attacked the mother. He punched her multiple
times, and strangled her, causing significant bruising. The
mother reported that the man threatened to kill her and Emrys,
and the man was charged with attempted murder. At trial, the
mother continued to defend her decision to permit this man to
live in her home with her young child while he "detoxed,"
describing it as the humane thing to do.
The mother then met a man whom she dated from 2019 through
2020. The mother described this relationship as abusive also
but testified that this man assaulted her only on one occasion.
The judge did not credit this testimony.
In 2021, the mother and father 3 once again rekindled their
relationship. Father 3, however, was still struggling with
alcohol misuse. While spending time with Emrys, father 3 would
arrive sober but sneak alcohol into the home and drink until he
became intoxicated. The relationship between the mother and
father 3 also continued to be abusive. In July 2021, the police
4 responded to the mother's home at about 12:30 A.M., after father
3 reported that the mother held a knife to his chest and that he
grabbed the blade, injuring his thumb badly enough to require
stitches. At trial, the mother claimed that father 3 walked
into a knife she was carrying while she was eating birthday
cake. The judge did not credit the mother's version of events
and credited that of father 3. Emrys, then three years old,
witnessed the altercation.
In 2022, the mother was seeing another man we will call
Fred (a pseudonym). That relationship was also "fraught with
violence." In April 2022, the mother was in her car at a
parking lot and backed into Fred. The incident was seen by a
police officer who arrested the mother. The mother was later
charged with assault and battery by means of a dangerous weapon
(ABDW) and assault and battery on a family or household member.
She was subsequently convicted of ABDW. The mother continued to
live with Fred in his home, with Emrys, and as the judge found,
the violence did not abate. In May 2022, the mother called the
police multiple times to report Fred's abuse which included,
among other things, Fred becoming intoxicated and destroying
items in the home; punching the mother in the leg; continuing to
call, text, and threaten her and the children; and posting nude
photographs of her online and sending them to a friend. On June
5 27, 2022, Fred pushed the mother down the stairs while she was
holding Emrys; and, about two weeks later, on July 9, police
responded to the home after the mother reported that Fred
punched her in the face. The police noted injuries on the
mother's face and arrested Fred. Emrys also witnessed these
incidents. Following Fred's arrest, the department opened an
investigation and obtained custody of Emrys a few days later, on
July 12, 2022.7 Emrys was placed with his paternal grandmother,
who is now his preadoptive mother, where he remained through the
duration of the trial and subsequent hearing.
By then, as previously noted, through a probate court
action in New Hampshire, father 2 obtained custody of his and
the mother's two daughters, as well as the mother's eldest son.
The mother maintained that she lost custody of her older
children due to a "botched divorce" and "false facts." The
judge did not credit that testimony and found that the mother
lacked insight into the children's awareness of and harm from
violence in the home. The judge further found that the mother's
explanation for the loss of custody of her other children
7 The department also investigated several of the other instances of the mother's violent interactions with her romantic partners but did not remove Emrys on those occasions.
6 reflected the mother's unwillingness or inability to accept
responsibility.
After Emrys's removal, the mother moved into a hotel room
with her parents in New Hampshire, and the department developed
an action plan.8 That plan required the mother to meet with the
department's social worker monthly, sign releases for all
services, communicate about pending criminal charges, attend
intimate partner violence treatment, attend individual therapy,
attend supervised visits, complete a neuropsychological
evaluation, contact Emrys's school and providers to learn about
Emrys's needs, complete a substance use evaluation, avoid
violence, and obtain stable housing.
With few exceptions, the mother was largely unsuccessful in
complying with the action plan. At trial, the mother reported
that she had completed a substance abuse evaluation on October
28, 2023, but she did not share the results with the department.
The judge did not credit this testimony. The mother also
testified that she completed an eight-hour online course called
"Survivors of Domestic Violence," where she received a
certificate upon completion. The judge did not credit this
8 The mother was previously assigned an action plan in March of 2022. All subsequent action plans contained substantially the same tasks.
7 testimony either as there was no evidence to support it. The
mother did briefly attend therapy through one provider, and she
completed an intake with a different provider on March 31, 2023.9
However, she missed the next scheduled appointment and was
terminated from the program for noncompliance. The mother did
not re-engage in therapy until several weeks before trial. The
judge found that the mother's failure to engage in therapy was
attributable to her belief that she did not need therapy and
that she did not need education on intimate partner violence.10
The mother did, however, attend weekly, supervised visits
with Emrys in the community where he lived. The mother was on
time and appropriate during these visits and, on January 5,
2024, she and Emrys began having unsupervised visits together.
The paternal grandmother also facilitated weekend telephone
calls between the two. Despite this regular contact, the judge
found that the mother lacked an understanding of Emrys's
specialized needs.
Emrys needed surgery to correct a cleft palate when he was
a few weeks old. He is followed by a medical team, which
9 The neuropsychological evaluation supported a diagnosis of borderline personality disorder.
10The mother told her social worker and testified at trial that therapy was against her religion.
8 includes a dentist, a cleft palate specialist, an audiologist,
and ear nose and throat specialists. In February of 2022, the
paternal grandmother took Emrys to the hospital, where he had a
tonsillectomy, an adenoidectomy, and eleven rotten teeth
extracted. Emrys attends weekly physical therapy to address toe
walking, tight cords, and a club foot that had to be surgically
addressed. Emrys is diagnosed with adjustment disorder
unspecified and receives weekly in-home therapy sessions. Emrys
is also in speech therapy. Academically, Emrys has performed
well in school without the need of an individualized education
program, however the mother testified that he required one.
In December 2023, the mother's social worker supplied the
mother with a list of the names and telephone numbers of Emrys's
providers. The purpose was for the mother to gain knowledge and
insight into Emrys's medical needs and appointments. At the
time of trial in March 2024, and at the subsequent hearing in
October of 2024, the mother did not know any of Emrys's
providers, nor had she attended any of his appointments.
Although the mother asserted that she received the names of
Emrys's medical providers only around Christmas 2023 and called
them in late December or early January 2024, the judge did not
credit that testimony. The judge found that the mother had
ample time to obtain information about Emrys's medical needs
9 before trial and did not credit her testimony that the providers
failed to return her calls for three months.
At the trial and subsequent hearing, the mother also stated
she worked as a personal care attendant for her mother, earning
$36,000 annually, and had recently began working as a car
salesperson in training, earning $5,000 or $6,000 in July of
2024 alone. The mother moved to several different hotels and
motels in New Hampshire and Massachusetts after Emrys's removal,
ultimately settling into a room in a Massachusetts motel with
her mother, stepfather, and brother. The mother testified she
lives alone in a different room of the motel; however, the judge
found that she "[was] not being truthful" about her living
situation and her finances.
The judge credited all of the paternal grandmother's
testimony and found that she provided excellent care, structure,
organization, and long-term commitment for Emrys.
As previously stated, at the conclusion of the trial in
March 2024, the judge found that the mother was unfit,
adjudicated Emrys in need of care and protection, and committed
Emrys to the permanent custody of the department. The
department did not seek to terminate the mother's parental
rights at the time, a decision which the judge questioned. The
judge ordered the department to reconsider its plan for Emrys
10 and scheduled a hearing at which she would address whether
termination of the mother's parental rights was in Emrys's best
interests. In her findings issued following the trial, the
judge explained there was
"sufficient evidence that [the] [m]other was unfit, and that unfitness would continue unabated to a near certitude. The Court would have been prepared to terminate [the] [m]other's parental rights sua sponte, but given that none of the parties had planned for such an outcome, the Court did not find such a sudden goal change would be in Emrys's best interest." On June 18, 2024, the department moved to terminate the mother's
parental rights and changed its goal for Emrys to adoption.
The hearing was held a few months later in October 2024.
The judge found that since the trial, the mother had not had a
home visit with her social worker and rejected attempts by her
social worker to schedule one. While the mother commendably
began weekly sessions with a parent aide in May of 2024, by
July, the service was terminated. The parental aide felt that
the mother "was not meeting her goals, including calling
[Emrys]'s providers, mastering time management, acquiring
housing, or accessing reliable transportation." The mother also
discontinued her therapy sessions after the March 2024 trial,
and police responded to her motel room in June 2024, after a
physical altercation between the mother and another resident of
the motel. Following the hearing in October 2024, the judge
found that "said unfitness is likely to continue into the
11 indefinite future to a near certitude" and terminated the
mother's parental rights. She also approved the department's
plan for Emrys to be adopted by his paternal grandmother.
Discussion. 1. Termination of the mother's parental
rights. "To terminate parental rights to a child, the judge
must find, by clear and convincing evidence, that the parent is
unfit and that the child's 'best interests will be served by
terminating the legal relation between parent and child.'"
Adoption of Helga, 97 Mass. App. Ct. 521, 527 (2020), quoting
Adoption of Luc, 484 Mass. 139, 144 (2020). As "the termination
of parental rights is an 'extreme step,' we require that the
judge articulate specific and detailed findings in support of a
conclusion that termination is appropriate, demonstrating that
she has given the evidence close attention." Adoption of Helga,
supra, quoting Adoption of Nancy, 443 Mass. 512, 514-515 (2005).
The mother argues that the termination of her parental
rights was not in Emrys's best interests, particularly where
other less extreme options were available such as giving the
paternal grandmother permanent custody or guardianship. "[W]e
defer to the judge's determinations regarding the best interests
of the child, and reverse only where there is a clear error of
law or abuse of discretion." Adoption of Cadence, 81 Mass. App.
Ct. 162, 166 (2012).
12 We discern no error or abuse of discretion. The judge's
factual findings and legal conclusions were detailed and reflect
a careful, "even handed" consideration of the evidence (citation
omitted). Adoption of Hugo 428 Mass. 219, 226 n.8 (1998), cert.
denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999). The
mother's extensive history of engaging in abusive relationships
was well documented, as was her inability to understand the
negative impacts on Emrys of these relationships and the
domestic violence she endured (and participated in). She
consistently maintained that the violence in her multiple
relationships was minimal and would not acknowledge that Emrys's
need for trauma therapy was a result of witnessing that
violence. See Custody of Vaughn, 422 Mass 590, 599 (1996) ("It
is well documented that witnessing domestic violence, as well as
being one of its victims, has a profound impact on children").
She also lacked insight into the reasons why Emrys was removed
from her custody. At the time of the hearing, the mother still
had not secured adequate housing or employment. Although the
mother made some progress by working as her mother's personal
care attendant and as a car salesperson in training, her "living
situation remain[ed] unclear" at the hearing in October 2024.
The mother consistently rejected services the department offered
to coordinate for her, including for therapy, substance misuse
13 treatment, and a parental aide (until shortly before the
hearing). "In these circumstances, the judge could reasonably
conclude that termination of the mother's parental rights was
necessary . . . ." Adoption of Helga, 97 Mass. App. Ct. at 528.
In sum, the judge's finding that mother lacked the parenting
skills required to provide Emrys with a safe, protective and
nurturing environment, in which his specialized needs could be
provided for, was based on clear and convincing evidence.
Moreover, as the judge correctly observed, Emrys deserves
"permanence and stability." Adoption of Nancy, 443 Mass. 512,
517 (2005). See Adoption of Helga, 97 Mass. App. Ct. at 529.
Neither our case law nor the statute "requires the judge to
investigate adoption plans not proposed by the department or the
parent, or to choose 'a placement which is least restrictive of
familial rights.'" Id., quoting Petition of the Dep't of Pub.
Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 266
(1978). The judge found "[Emrys] has a very strong bond with
his paternal grandmother," and that she has "diligently provided
for his medical, psychological, and educational needs," ensuring
him "a safe, stable, and continuous environment with a willing
and able caretaker who loves him." "Although the mother's
fundamental rights [we]re at stake [in these proceedings], the
best interests of the child [we]re paramount." Adoption of
14 Helga, supra. The judge properly determined that "this case is
one in which providing stability in [Emrys's] li[fe] is properly
eased by termination." Id.
2. The mother's allegation of a due process violation.11
The mother also argues that her right to due process was
violated because the judge improperly prejudged her and
determined that her parental rights should be terminated before
the judge held the hearing. She contends that the hearing was
"a sham," which "deprived [her] of a meaningful opportunity to
present her case." We are not persuaded.
As we have explained, the judge found after trial that
there was "sufficient evidence that [the] [m]other was unfit,
and that unfitness would continue unabated to a near certitude."
However, she did not terminate the mother's parental rights in
March 2024, because "none of the parties had planned for such an
outcome." This lack of preparation precluded a proper inquiry
whether termination of parental rights was in Emrys's best
interests at that time. The judge's decision to leave this
question open and schedule a hearing was well within her
11 We note that Emrys argues the mother has waived this issue for failing to raise it at trial. We agree with Emrys that constitutional issues cannot be raised for the first time on appeal. See Adoption of Yalena, 100 Mass. App. Ct. 542, 554- 555 (2021). Nonetheless, we choose to address the issue.
15 discretion. See Adoption of Karla, 46 Mass. App. Ct. 64, 67
(1998) ("[t]he Supreme Judicial Court in Adoption of Carlos, 413
Mass. at 350-351, impliedly approved postponing final judgment
in [G. L.] c. 210 cases to permit the judge to reconsider
parental fitness beyond the time of trial and into the future").
The judge explained the reasons for her decision and informed
the mother what was required of her to avoid termination of her
parental rights. At the conclusion of the trial, the judge
said:
"if in the next three months, she comes in saying, I have accountability for how the case came in. I understand what happened. I understand what I need to do to treat my borderline personality disorder. And I also understand why I go from relationship to relationship to relationship and still live with my parents and rely on them financially yet. You know, you said that she's a young mom. . . . So the department needs to convene another [permanency planning conference]. And if in the next three months, things are not vastly different, I'm going to address the other prong of potential termination. Permanent custody with the [d]epartment. Let's look at a date in three months from today."
It is evident that, contrary to the mother's assertion, the
judge expressed a willingness to consider evidence of the
mother's improvement, showing she "ke[pt] an open mind until all
the evidence [was] presented and both sides [had] rested."
Adoption of Tia, 73 Mass. App. Ct. 115, 121-122 (2008).
Moreover, the judge's findings and conclusions of law following
the evidentiary hearing reflect the same reasoned consideration
16 she gave the mother in her findings after the trial. In light
of that and our earlier discussion, we cannot say the judge
prejudged the mother's parental ability. See Adoption of
Iliana, 96 Mass. App. Ct. 397, 407-408 (2019) ("The trial judge
is presumed to be a neutral arbiter in any matter before . . .
her, regardless of whether the judge has previously been
involved with the parties, the issues, or the case").
Decree affirmed.
By the Court (Vuono, Henry & Singh, JJ.12),
Clerk
Entered: July 10, 2026.
12 The panelists are listed in order of seniority.