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-476
ADOPTION OF GERI.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a four-day trial, a judge of the Juvenile Court found
the mother unfit to parent her child, Geri, terminated her
parental rights, and ordered posttermination and postadoption
visits for the mother and Geri. Both the mother and Geri have
appealed, arguing that the judge abused her discretion in
finding that the mother's unfitness was not temporary, and in
finding that termination was in Geri's best interests. The
mother contends that the judge erroneously relied on
impermissible hearsay in reaching those conclusions. In
addition, Geri argues that the judge abused her discretion in
1 A pseudonym. setting certain conditions for posttermination and postadoption
visitation. We affirm.2
Background. The mother gave birth to Geri in March 2019
and moved with her to North Dakota two months later.3 In August
2020, when Geri and the mother returned to Massachusetts, the
department received a report filed pursuant to G. L. c. 119,
§ 51A (51A report), alleging neglect of Geri by the mother due
to concerns about the mother's mental health and medical neglect
of Geri.4 Prior to filing the instant care and protection
petition, the department had received four additional 51A
reports alleging neglect of Geri by the mother.5
The mother has been diagnosed with multiple mental health
disorders, including bipolar disorder and post-traumatic stress
2 The father's rights were also terminated but he has not appealed and is not a party to this appeal.
3 The trial judge made 355 "specific and detailed" findings in support of her decision to terminate the mother's parental rights, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
4 The allegations of neglect were supported.
5 The department received 51A reports in September 2020, October 2020, and two in February 2022. All these reports alleged neglect of Geri by the mother due to concerns with the mother's mental health. The allegations, except for those in the first February 2022 report, were supported following 51B investigations.
2 disorder. In October 2020, the department conducted an
emergency removal of Geri and filed a care and protection
petition after the mother was hospitalized for making threats to
murder Geri's father and paternal grandmother.6 Sometime after
her commitment, the mother started taking her prescribed
medications and complied with most of her service plan, and the
petition was dismissed in March 2021.
By September 2021, the mother had stopped taking her
medications and was having suicidal thoughts. In February 2022,
the mother was psychiatrically hospitalized for the second time,
the department removed Geri from the mother, and the department
filed the instant care and protection petition.7 Around March
2022, the mother resumed taking her medications, and for the
next year, the department's goal for Geri was reunification.
Between March 2022 and 2023, the mother adhered to most of the
6 The mother and Geri were residing at a shelter at that time. The mother was transported to the emergency room by the police due to concerns for her mental health and homicidal statements. Once in the emergency room, the mother's condition "escalated" and she was committed under G. L. c. 123, § 12.
7 Geri was initially placed with her paternal aunt. The aunt asked that Geri be removed from her care after the mother falsely accused her of living in a drug house. Geri was then placed with a new foster family. After the goal changed to adoption, the family was approved as Geri's pre-adoptive family. However, after trial began, the family withdrew their application due to concerns about how the mother's mental health would impact their family.
3 department's action plan. However, in March 2023, the mother
again stopped taking her medications, and she was hospitalized
for a third time in June 2023. In October 2023, the department
changed its goal for the Geri to adoption due to the mother's
ongoing mental health struggles, inconsistent and unverified
commitment to treatment, failure to communicate with the
department, inappropriate behavior toward social workers, and
unstable living situation. The mother resumed taking her
medications in November 2023 leading up to trial, which began in
February 2024.
The mother's lack of consistency in addressing her mental
health disorders contributed to a pattern of housing insecurity
and erratic behaviors. When Geri was approximately two months
old, the mother and Geri moved from Massachusetts to North
Dakota, and during that time her housing was unstable. Since
returning to Massachusetts in August 2020, the mother has lived
with friends and in various shelters and apartments. The mother
was forced out of apartments at least twice "for aggressive and
threatening behaviors." At the start of trial, the mother was
in a shelter placement that was set to expire in May 2024. In
addition to housing insecurity, the mother's "inability to
control unparental traits of character and conduct" resulted in
a pattern of aggressive and threatening behaviors toward social
4 workers and family members, including threats of murder, arson,
and suicide, and harassing behavior.
The department's concerns about the mother's parenting were
based on her mental health challenges and lack of consistency in
taking medications and following treatment plans and not on her
inability to bond with Geri. Indeed, the mother and Geri have
an observable bond, and during visits, the mother was "gentle
and appropriate."
Following trial, the judge found the mother unfit and Geri
in need of care and protection. The judge approved the
department's plan for adoption of Geri by maternal grandmother,
contingent on approval of an Interstate Compact on the Placement
of Children (ICPC) home study. The judge also determined that
no fewer than four posttermination and postadoption visits
between the mother and Geri, subject to the mother's mental
stability, would be in Geri's best interests. The judge
ordered, however, that if the mother missed two consecutive
visits, the obligation of Geri's custodian to provide four
annual visits would be null and void, though the parental
custodian would still have discretion to allow for parent-child
contact so long as such contact was in Geri's best interests.
Discussion. 1. Termination. "In deciding whether to
terminate a parent's rights, a judge must determine whether
5 there is clear and convincing evidence that the parent is unfit
and, if the parent is unfit, whether the child's best interests
will be served by terminating the legal relation between parent
and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). On
review, we "give substantial deference to a judge's decision
that termination of a parent's rights is in the best interest[s]
of the child and reverse only where the findings of fact are
clearly erroneous or where there is a clear error of law or
abuse of discretion." Adoption of Yalena, 100 Mass. App. Ct.
542, 549 (2021), quoting Adoption of Ilona, 459 Mass. at 59.
"The concepts of parental fitness and a child's best
interests are not separate and distinct but, instead, are
cognate and connected steps that reflect different degrees of
emphasis on the same factors" (quotations and citation omitted).
Adoption of Flavia, 104 Mass. App. Ct. 40, 45 (2024). In
determining a child's best interests, a judge must decide
whether "the parent's unfitness at the time of trial may only be
temporary" before taking the "extreme step" of terminating the
parent's rights (citations omitted). Adoption of Ilona, 459
Mass. at 59. However, a finding that unfitness is only
temporary "must rest on credible evidence supporting a
reasonable likelihood that the parent will become fit, not on a
'faint hope'" (citation omitted). Id.
6 a. Mother's unfitness. The mother and Geri contend that
the judge abused her discretion in finding the mother unfit to
parent Geri because the mother substantially completed her
action plan tasks and was taking her prescribed medications at
the time of trial.8 We disagree. When faced with a petition to
terminate parental rights, the judge must find by clear and
convincing evidence that the parent is unfit, and that "the
unfitness will continue undiminished into the future, affecting
the welfare of the child." Adoption of Lisette, 93 Mass. App.
Ct. 284, 296 (2018). "Parental unfitness is determined by
considering a parent's character, temperament, conduct, and
capacity to provide for the child's particular needs,
affections, and age." Adoption of Anton, 72 Mass. App. Ct. 667,
673 (2008). In determining future fitness, the judge "properly
may consider a pattern of parental neglect or misconduct."
Adoption of Elena, 446 Mass. 24, 33 (2006). The judge's
subsidiary findings must be proved by a preponderance of the
evidence and will only be disturbed if clearly erroneous. See
Adoption of Patty, 489 Mass. 630, 637 (2022).
8 "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 [Gerri]." Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
7 Having carefully reviewed the record, "[w]e see no basis
for disturbing the judge's view of the evidence." Adoption of
Quentin, 424 Mass. 882, 886 n.3 (1997). Here, the judge
properly relied on evidence of the mother's longstanding mental
health issues and inconsistent participation in treatment in
concluding that "[t]he mother's mental health has directly
impacted her care of the child." The judge found that the
mother "does not believe in taking medication and stops taking
it periodically." While the mother has on occasion cooperated
with treatment and "stabilizes . . . on prescribed medication"
in accordance with a treatment plan, she has been unable to
consistently maintain compliance with her treatment protocols.
The mother's "lack of consistency in treatment" led to three
separate psychiatric hospitalizations resulting in removal of
Geri and contributed to her housing instability and her
threatening and aggressive behavior toward family members and
department staff.
Although, in 2022, after the child was removed, the mother
completed action plan tasks and demonstrated "continued personal
growth," she again struggled to maintain compliance and complete
tasks in the year preceding the trial. For example, she did not
8 complete a mental health safety plan with her therapist,9 did not
comply with meetings with her Homeless Navigator -- resulting in
her being discharged from that service -- and refused to
cooperate with her Department of Mental Health program. The
mother also twice disrupted Geri's foster placements by making
unsupported allegations against the caregivers. Moreover, at
trial, the mother acknowledged that taking her medications was
"a requirement for [her] to get [her] daughter back," but she
did not commit to continuing her medications if she moved back
to North Dakota. Although she created a mental health safety
plan with her private social worker, she was not following the
plan when she signed it and did not comply with it as her mental
health deteriorated. The mother does not recognize when she is
decompensating even when it results in her making threats of
murder, arson, and suicide. Based on the evidence, the judge
properly found that "there is a nexus between Mother's mental
health" and "danger to [Geri]" if they were to be reunified.
The judge was not required to provide the mother with infinite
chances to address her parenting deficiencies. See Adoption of
Nancy, 443 Mass. 512, 517 (2005) ("In these circumstances, where
the [parent] has had ample opportunity to achieve fitness as a
9 The judge acknowledged that the mother's therapist was at least somewhat responsible for this.
9 parent but has failed to follow through, it is only fair to the
children to say, at some point, 'enough'"). See also Adoption
of Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a
parent's unfitness is not temporary if it is reasonably likely
to continue for a prolonged or indeterminate period").
Finally, while the judge considered a 51A report alleging
medical neglect of Geri, she did not base her unfitness
determination on that evidence, as claimed by the mother. In
considering evidence that Geri was medically behind when she was
removed from the mother, the judge did not make a finding of
medical neglect and noted, instead, that the mother expressed
willingness to engage in recommended services. The judge found,
however, that the mother's mental health issues affected her
"capacity to provide for the child's particular needs."
Adoption of Anton, 72 Mass. App. Ct. at 673.
b. Geri's best interests. The mother and Geri argue that
it was not in Geri's best interests to terminate the mother's
parental rights because the mother and Geri shared a strong bond
and the mother's unfitness was temporary where evidence
demonstrated that she was taking steps to address her mental
health issues and housing instability. We disagree. Where the
judge properly found that the mother was unfit and that her
unfitness was not temporary, and where mother's lack of
10 consistency in mental health treatment "would place [Geri] in
danger," terminating the mother's rights was not an abuse of
discretion. See Adoption of Ilona, 459 Mass. at 62.
Geri asserts that in light of her bond with her mother,
Geri's "present or future welfare" does not "demand" termination
of the mother's parental rights. Adoption of Carlos, 413 Mass.
339, 350 (1992). Notwithstanding even a strong bond, given
Geri's need for stability and the judge's warranted
determination that "the mother would not become fit in the
foreseeable future," the judge "did not err in terminating the
mother's parental rights." Adoption of Bianca, 91 Mass. App.
Ct. 428, 432 (2017). The judge properly accounted for the
parent-child bond by ordering visitation between the mother and
Geri. See Adoption of Franklin, 99 Mass. App. Ct. 787, 807
(2021).
c. Hearsay. The mother argues that the judge' findings
relied on inadmissible hearsay in 51A and 51B reports and in
other department-created documents. Specifically, she claims
that forty-three of the 355 findings are based on inadmissible
hearsay. We note that the record does not indicate that the
mother tried to subpoena the declarants who the mother now
claims were unavailable for cross examination at trial, namely
Geri's father and employees of the North Dakota Child Protective
11 Services. "If the source of a challenged statement is not
already present in court, the burden to subpoena that source
rests with the party challenging the statement's admission."
Adoption of Luc, 484 Mass 139, 150 (2020). Because the mother
made no attempt to subpoena the sources of the hearsay who were
not present at the trial, she has waived her claim that they
were unavailable. See Care & Protection of Leo, 38 Mass. App.
Ct. 237, 243 (1995).
However, even if the judge erred in admitting and relying
on impermissible hearsay, "there was no resulting prejudice."
See Adoption of Luc, 484 Mass. at 149. The judge's findings,
excluding the forty-three challenged findings, provided
sufficient evidence of the mother's longstanding mental health
issues and housing instability, her threatening and aggressive
behavior toward family and department staff, and her pattern of
noncompliance with department action plans. Such evidence
demonstrated a nexus to her parental unfitness and supported the
judge's ultimate conclusion. See Adoption of Kimberly, 414
Mass. 526, 538 (1993) (no prejudice where findings based on
alleged inadmissible evidence "not so inconsistent with the
judge's other findings as to raise any question concerning his
ultimate conclusion"). Further, in her conclusions of law, the
judge set forth the proper evidentiary and hearsay principles
12 applicable to department-created documents. We see nothing in
the record to intimate that the judge did not follow these
principles by using statements for anything more than the
purpose for which they were admitted. See Commonwealth v.
Watkins, 63 Mass. App. Ct. 69, 75 (2005).
2. Posttermination and postadoption visitation. Geri also
argues that the judge abused her discretion in placing certain
conditions on the mother's right to visit with Geri
posttermination and postadoption. We disagree. "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). "[A]n 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 parent is unfit, the decision
whether to grant postadoption [or posttermination] visits must
13 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).
Here, the judge, acknowledging the "strong and
affectionate" bond between Geri and the mother, found that
posttermination and postadoption contact would be in Geri's best
interests, and that no fewer than four visits per year was
appropriate, subject to the mother's mental stability. The
judge gave Geri's custodian discretion to cancel any visit if
the mother's mental health is not stable. The obligation of
Geri's custodian to provide at least four visits per year "shall
be null and void" if two consecutive visits are canceled due to
the mother's behavior. However, even if the mother does miss
two consecutive visits, the custodian is not foreclosed from
arranging visits between the mother and Geri so long as such
visits are "consistent with the child's best interests." See
Adoption of Ilona, 459 Mass. at 64 (adoptive parents presumed to
act in child's best interests). Based on the mother's
longstanding mental health issues and their impact on Geri's
stability and wellbeing, it was not unreasonable for the judge
14 to set these conditions on parent-child visits. We conclude
there was no abuse of discretion.
Decrees affirmed.
By the Court (Vuono, Shin & Smyth, JJ.10),
Clerk
Entered: January 9, 2026.
10 The panelists are listed in order of seniority.