Adoption of Gael.

Opinion

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-310

ADOPTION OF GAEL.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the mother stipulated to her current and future

unfitness to parent her child, a Juvenile Court judge found that

the placement plan put forward by the child for adoption by his

foster parents would serve his best interests.2 The mother

appeals, arguing that the judge abused her discretion by not

approving the competing placement plan put forward by the mother

and the Department of Children and Families (department) for

adoption by the child's maternal great-aunt and great-uncle

1 A pseudonym.

2The mother stipulated to her unfitness on October 5, 2022. At that time the judge issued orders finding the mother and the unknown or unnamed father unfit and terminating their parental rights. Entry of the termination decree as to the mother was deferred pending a best interests hearing on the competing placement plans. See Adoption of Douglas, 473 Mass. 1024, 1026 (2016). The father did not appear at or participate in either proceeding and is not a party to this appeal. (together, maternal relatives).3 The mother further argues that

the judge erred by issuing a preliminary injunction barring the

department from increasing visitation between the child and the

maternal relatives. We affirm.

Background. The child was born substance exposed in July

2020. The mother was twelve years old at the time. After a

report under G. L. c. 119, § 51A, was filed alleging neglect of

the mother by her mother (grandmother), a department social

worker interviewed the grandmother, who was "dismissive" of the

reporter's concerns that the mother became pregnant at such a

young age. The grandmother stated that the mother had a mature

body, that the situation was not unusual in the Dominican

Republic, and that the mother was in love with the putative

father. The grandmother also admitted that she allowed the

mother to continue to sleep over at the putative father's home

after she became pregnant because "at that point, the damage was

done."

In August 2020 the mother and the child were placed

together with the foster parents. Although the mother and the

foster parents had a good relationship, the foster parents

decided in the spring of 2022 that they could not continue as a

placement for the mother because they discovered drugs in her

3 The department has appeared as an appellee on appeal.

2 room and because of other concerning behavior. The mother was

then reunified with the grandmother in June 2022. The child

remained in the foster home.

In July 2022, after the department's goal for the child was

changed to permanency through adoption, the case was referred to

Bridges Homeward, a child welfare agency, for adoption planning

and case management services. On August 8, 2022, the department

sent letters to ten relatives who were identified as potential

placements. On August 29, 2022, the maternal relatives came

forward to express interest in adopting the child. This was the

first contact they had with the department regarding the child.

The maternal relatives submitted an adoption application

and were approved as an adoptive resource. The foster parents

were also approved as an adoptive resource. Following a

clinical review team meeting, the department, in conjunction

with Bridges Homeward, identified the maternal relatives as the

permanent resource for the child. Although the department

determined that the foster parents had "strong connections and

attachments with [the child]" and that the child was doing well

in their home, it proposed the maternal relatives as the

permanent placement because of the "[t]he importance of children

having the opportunity to grow up within their families of

origin." The child opposed the department's plan and proposed

3 adoption by the foster parents, citing the detrimental impact of

disrupting his placement.

The best interests hearing began on May 10, 2023, was

continued on June 30, and was again continued on August 10,

2023. Meanwhile, on May 26, 2023, the child filed an abuse of

discretion motion claiming that the department had acted against

his best interests by deciding to expand his visitation with the

maternal relatives from weekly one-hour supervised visits to

weekly three-hour unsupervised visits. On June 2, 2023, the

child moved to enjoin the department from implementing the new

visitation schedule. On June 15, 2023, the judge allowed both

motions and issued an injunction requiring the department to

maintain the child's current visitation schedule with the

maternal relatives until the judge had "heard all of the

available evidence and decided which plan is in the child's best

interests."4

In October 2023 the department's counsel withdrew from the

case, and a successor counsel entered her appearance. The

change in representation resulted in an extended delay of the

best interests hearing, causing the judge to declare a mistrial

4 The mother sought interlocutory review of the judge's order by filing a petition under G. L. c. 231, § 118, first par., with a single justice of this court. The single justice denied the petition on the ground that the mother had failed to demonstrate a clear error of law or abuse of discretion.

4 in February 2024. The hearing then began again in July 2024 and

continued for eleven nonconsecutive days, concluding on October

4, 2024. Multiple witnesses testified, including the child's

expert, Dr. Dante Spetter, who was qualified as an expert in

parent-child attachment and child development. At the

conclusion of the hearing, the judge found that adoption by the

foster parents would serve the child's best interests. The

judge issued her written findings of fact and conclusions of law

on December 19, 2024, and ordered that the termination decree as

to the mother be entered nunc pro tunc to October 5, 2022.

Additional facts are reserved for later discussion.

Discussion. 1. Choice of placement plan. Determining

which placement plan will serve the best interests of a child

"is a question that presents the trial judge 'with a classic

example of a discretionary decision'" to which we afford

"substantial deference." Adoption of Hugo, 428 Mass. 219, 225

(1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.

1034 (1999), quoting Adoption of a Minor (No. 2), 367 Mass. 684,

688 (1975). "Particularly where, as here, close scrutiny of lay

and expert witnesses was central to the judge's decision, our

task is not to decide whether we, presented with the same facts,

would have made the same decision, but to determine whether the

trial judge abused [her] discretion or committed a clear error

5 of law." Adoption of Hugo, supra. An abuse of discretion

occurs only if "the judge made a clear error of judgment in

weighing the factors relevant to the decision, . . . such that

the decision falls outside the range of reasonable alternatives"

(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

Here, the judge was faced with the immensely difficult

choice between two potential adoptive families who had each been

approved to adopt the child after a home study. In deciding

that adoption by the foster parents would serve the child's best

interests, the judge considered multiple factors, "including the

child's attachment, culture, communication with caretakers,

ability for self-care versus care by others, and each

placement's ability to nurture and support the child's

individualized needs." The judge then made extensive factual

findings, which, in large and relevant part, the mother does not

challenge as clearly erroneous.5

5 Although the mother identifies a few minor errors in the findings, those errors are harmless as they were "not central to the ultimate conclusion of [best interests]." Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003). The remainder of the mother's factual challenges "amount to no more than dissatisfaction with the judge's weighing of the evidence and [her] credibility determinations." Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

6 With respect to the foster parents, the judge found that

the child had lived with them since he was five days old, was

securely attached to them, and referred to them as "Daddy" and

"Mommy." The child also has a close relationship with his two

foster sisters; they view him as their brother, and he views

them as his sisters. The child has some developmental delays

and, because of his exposure to cocaine in utero, is at

increased risk of having academic and behavioral difficulties as

he gets older. Since the child was put in the foster parents'

care, they had made "every effort" to meet his unique needs.

The foster parents are committed and well equipped to address

developmental challenges as they may arise in the future, as

evidenced by their extensive work with foster children and the

foster mother's degree and experience as a special education

paraprofessional.

In addition, the judge found that the foster parents had

"made genuine attempts to connect [the child] to his Dominican

culture." Those efforts included buying Spanish-language books

to read to the child, attending Spanish story time at the local

library, putting Spanish-language programs on the television for

him, exposing him to Dominican food, and making plans to enroll

7 him in a bilingual school program.6 The judge credited the

foster mother's testimony that she is open to continued

suggestions about how to keep the child connected to his culture

and open to maintaining contact between the child and the

mother,7 as well as other maternal relatives, including the

grandmother.

In comparison, the judge found that the maternal relatives

were "not attuned to or aware of [the child's] individual needs"

and that the great-aunt's motive for adopting him was loyalty to

her sister (the grandmother). The judge observed that the

maternal relatives made no efforts to get to know the child for

the first two years of his life while he was in foster care.

During those two years, the maternal relatives did not contact

the department to be considered as a resource or foster

placement and did not request visits with either the child or

the mother.8 The maternal relatives did not begin visiting the

6 Both the foster mother and the foster father testified that they do not speak Spanish.

7 The judge ordered that the child and the mother have four in-person visits per year and encouraged the foster parents to provide additional access "through video calls or other technological means" if they determined it to be in the child's best interests.

8 We acknowledge that the first two years of the child's life were during the COVID-19 pandemic and that the great-aunt testified that she was preoccupied during that period helping her son through a divorce.

8 child until April 2023. Although they arrived on time for the

visits and the department noted no protective concerns, the

judge credited Dr. Spetter's testimony that the child did not

exhibit any attachment to the maternal relatives and that the

great-aunt was not attuned to the child during the visits.9 The

great-aunt did not follow the child when he was playing and

sometimes would not answer at all when he spoke to her. After

about twenty to forty minutes, the child would become tired and

upset and try to disengage. While the child was affectionate

toward the great-uncle, he did not exhibit attachment to him.

Dr. Spetter observed very limited verbal communication between

the maternal relatives and the child.

The judge further credited Dr. Spetter's testimony that the

child would experience a disrupted attachment if he were removed

from the foster parents and placed with the maternal relatives,

increasing his risk of experiencing future challenges such as

mood and anxiety disorders; that the child would require a

minimum of three to five months to transition between placements

and would benefit from psychotherapy to help him adjust; and

that limited communication between the maternal relatives and

the child could create stress for him. As the judge found,

9 Dr. Spetter observed three visits in June 2023, February 2024, and April 2024. The great-uncle was not present for the June 2023 visit.

9 however, the great-aunt could not articulate at trial how she

would work to bridge the communication difficulties between

herself and the child, testifying that she had no concerns about

not being able to communicate with him.10 Nor could the great-

aunt articulate how she would assist the child with

transitioning from the only home he had known for four years.11

The judge also noted that the great-uncle did not testify or

appear at trial.12

Based on these findings, which are unchallenged on appeal,

the judge was within her discretion to conclude that adoption by

the foster parents would serve the child's best interests.

Undoubtedly, as the judge recognized, "[a] biological and/or a

cultural match between child and caretaker is a desirable aim."

Adoption of Irene, 54 Mass. App. Ct. 613, 622-623 (2002).

"[B]ut it is a single factor among many," id., and here, the

judge concluded that other factors supported placement with the

foster parents. The judge credited Dr. Spetter's testimony that

10The child has been exposed to some Spanish words and phrases but communicates in English. The maternal relatives speak minimal English.

11The great-aunt testified that "we decided to move forward with the adoption process because we are [the child's] family. [The child] has us, we're his blood. . . . We're claiming our own blood, our own family, because that child is not alone. His mother is there, we're here as his family . . . ."

12 Both foster parents testified at trial.

10 a secure attachment is crucial for a child's emotional health

and development and that "attachment comes first [and] identity

comes later." The judge noted that neither the department nor

the mother presented expert evidence supporting their view that

being raised in a Dominican family would be more essential to

the child's well-being than maintaining his secure attachment.

The judge did not, however, treat "avoiding the trauma of

separation" as the determinative factor or rely too heavily on

the bond between the child and the foster family, as the mother

argues. See Adoption of Hugo, 428 Mass. at 230 (no presumption

in favor of adoption by foster family exists based solely on

evidence of bonding). Underpinning the judge's decision were

her findings that the maternal relatives were indifferent toward

the child as an individual, as evidenced by their lack of

efforts to get to know him or present themselves as a resource

to the department for two years; that the great-aunt was not

motivated to learn about his needs; and that the great-aunt

lacked insight into the challenges he would face if he were

transitioned into her home. The judge also discredited the

great-aunt's testimony that she would not allow the mother or

the grandmother to be alone, unsupervised, with the child.

Instead, the judge found that the great-aunt would allow them

unfettered access to the child, which would not be in his best

11 interests.13 We defer to the judge's credibility determination,

see Adoption of Frederick, 405 Mass. 1, 10 (1989), which is

additionally supported by the great-aunt's testimony that she

would have no concerns for the child's safety if he were cared

for alone by the mother or the grandmother. See Adoption of

Jacob, 99 Mass. App. Ct. 258, 272-273 (2021) (judge did not

abuse discretion in finding that placement with grandparents

would not advance child's best interests where "judge reached

the well-founded conclusion that the grandparents were

'enmeshed' with the father, and that their inability to place

boundaries on the father would be harmful to [the child]");

Adoption of Zak, 87 Mass. App. Ct. 540, 545 (2015) (judge did

not abuse discretion in "denying placement to the maternal

great-aunt despite her familial and cultural connections to the

children," given her "passivity" about domestic violence between

children's parents).

13The mother argues that the judge erred by finding the mother and the grandmother to be "demonstrably unfit parents." We are unpersuaded. As mentioned, the mother stipulated to her unfitness. With regard to the grandmother, while it is true that she was not adjudicated to be unfit, it is plain in context that the judge was addressing whether the grandmother could be an appropriate caregiver for the child were he placed in the maternal relatives' home. The judge's subsidiary findings regarding the grandmother's care of the mother support her conclusion that the grandmother had serious shortcomings as a caregiver, which the great-aunt failed to recognize.

12 As this case illustrates, when determining the best

interests of a child, it is not possible "to make decisions with

precision, and . . . 'much must be left to the trial judge's

experience and judgment.'" Adoption of Hugo, 428 Mass. at 225,

quoting Adoption of a Minor (No. 2), 367 Mass. at 688. Here,

the judge could reasonably have found it "more likely that [the

child] will receive the home support, stability, and

reinforcement of efforts to address his developmental needs so

critical to his future development" in his current placement

with the foster parents. Adoption of Hugo, supra at 229. "As

the trier of fact, [the judge] was in the best position to

evaluate all the evidence, contradictory at times." Id.

Because the judge's decision was not outside the range of

reasonable alternatives, we discern no abuse of discretion. See

L.L., 470 Mass. at 185 n.27.

2. Preliminary injunction. As mentioned, the judge

enjoined the department from expanding the maternal relatives'

visits with the child from weekly one-hour supervised visits to

weekly three-hour unsupervised visits. The mother argues that

this was error because the judge did not have the authority to

order the department to carry out its custodial powers in a

specific way. Alternatively, the mother argues that the judge

13 did not correctly apply the legal standard for issuing a

preliminary injunction.

We need not address these arguments on the merits, nor need

we address the child's claims of mootness and waiver, because

the mother has failed to demonstrate material prejudice. Even

accepting the mother's assertion that the injunction "directly

led to the lack of attachment with the" maternal relatives, the

lack of an attachment was one of many factors that the judge

relied on in deciding the child's best interests, as discussed

above. Thus, we conclude that the mother has failed to show

that any error "injuriously affected" her "substantial rights."

Adoption of Seth, 29 Mass. App. Ct. 343, 353 (1990), quoting

G. L. c. 231, §§ 119, 132.

Decree affirmed.

By the Court (Blake, C.J., Shin & Wood, JJ.14),

Clerk

Entered: June 30, 2026.

14 The panelists are listed in order of seniority.