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-1250
ADOPTION OF GIANNA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a review and redetermination trial, a Juvenile
Court judge terminated the mother's parental rights regarding
her two youngest daughters, Gianna and Amy (together, the
children), who had not seen the mother in over four years.
Having failed to appear at the trial, the mother filed a motion
for relief from judgment and sought to reopen the evidence so
that she could testify. The trial judge scheduled a hearing for
the mother to present evidence, and thereafter ordered the
decrees to stand when the mother failed to appear. On appeal,
the mother challenges the termination decrees. We affirm.
Background. The mother suffers from diagnosed mental
health issues including posttraumatic stress disorder, anxiety
1 Adoption of Amy. The children's names are pseudonyms. disorder, mood disorder, and attention deficit hyperactivity
disorder. She has been inconsistent in taking prescribed
medications for these conditions and has been hospitalized on
multiple occasions. She has also experienced a history of
substance abuse (with no evidence of a treatment program since
2014), housing instability, and multiple incidents of domestic
violence witnessed by the children.
The mother has five children -- two adult daughters, a son
(adopted in 2012), and Gianna and Amy (age fourteen and ten,
respectively, at the time of trial). Gianna and Amy are the
subject of the termination decrees at issue here. As to the
children, the Department of Children and Families (department)
became involved with each at birth. When Gianna was born in May
2009, a report filed pursuant to G. L. c. 119, § 51A (51A
report), alleged that both Gianna and the mother tested positive
for cocaine. Following the premature birth of Amy in February
2013, another 51A report alleged that both the mother and Amy
tested positive for cocaine.
About five years later, on August 11, 2018, the event
precipitating department custody occurred when the mother's two
adult daughters had the children for an overnight visit.
Originally, the plan was that the mother would pick up the
children the next day, but after the mother did not show up, the
adult daughters attempted to contact her. Ultimately, the
2 mother responded by sending a text message to the adult
daughters stating that they could keep the children as they
would do a better job raising them. She also asked the adult
daughters to say goodbye to the children for her. Unsure how to
proceed, the adult daughters contacted the department, and the
department obtained emergency custody. On August 13, the
department reached out to the mother, who denied making the
statements and hung up the phone.
The following day, the department filed a care and
protection petition regarding the children. On August 16, the
mother waived a temporary custody hearing and stipulated that
the children would remain in the department's temporary custody.
The mother last visited with the children in February 2019.
Since this visit, the mother has had no contact with them and
inconsistent communication with the department.
On July 24, 2019, following a trial where the mother did
not appear, a judge found the mother (and the children's
fathers) unfit and the children in need of care and protection.
The judge appointed coguardians for the children. Four years
later, seeking termination of parental rights and desiring
permanency with their coguardians, the children filed a petition
for review and redetermination in February 2023. On June 8,
2023, a second judge held a review and determination trial where
the mother did not appear. The parties stipulated that the
3 children had not seen the mother in over four years. Based upon
clear and convincing evidence, the judge terminated the mother's
parental rights after concluding that she remained unfit and
would likely remain so for the indefinite future and that
termination would be in the best interests of the children.
On July 13, 2023, the mother filed a motion for relief from
judgment and sought to reopen the evidence to allow her to
provide testimony. The judge scheduled a hearing for the mother
to testify on October 4, 2023, but the mother failed to appear.
The judge issued an order stating, "Termination Stands."
Discussion. At a review and redetermination proceeding
under G. L. c. 119, § 26 (c), "the judge is deciding simply
whether to maintain the separation of parent from child." Care
& Protection of Erin, 443 Mass. 567, 571 (2005). "The proper
focus of inquiry on a § 26 review is on those facts which have
undergone some metamorphosis since the previous order or are
newly developed and, in consequence, alter the relationship
between the biological parent and the child." Custody of a
Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). Ultimately,
"the department must show, by clear and convincing evidence,
that the parent remains unfit, that the child remains in need of
care and protection, and that his or her best interests are
served by removal or termination of parental custody." Adoption
of Melvin, 71 Mass. App. Ct. 706, 713 (2008). Giving
4 substantial deference to the judge's decision, we discern no
clear error or abuse of discretion. See Adoption of Ilona, 459
Mass. 53, 59 (2011).
1. Staleness of evidence. We disagree with the mother's
claim that the judge's findings "lack the requisite recency and
detail" to support termination. While a judge may not rely on
stale information, see Guardianship of Kelvin, 94 Mass. App. Ct.
448, 457 (2018), a judge may consider whether circumstances have
changed over time. "For example, the mother's mental health may
have taken a marked turn for the better, or conversely, for the
worse; the mother's physical environment may have improved, or
not; the ability of the mother to play the role of a competent,
supporting parent may have improved, or not." Custody of a
Minor (No. 2), 22 Mass. App. Ct. at 94. See Care & Protection
of Erin, 443 Mass. at 570 (judge at review and redetermination
hearing does not start with "blank slate"). The judge need not
find that "a material change in circumstances has occurred" to
alter the previous order. Custody of a Minor (No. 2), supra.
"Indeed, that no change in circumstances has occurred may be a
sound basis for altering the court's order. The previous
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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-1250
ADOPTION OF GIANNA (and a companion case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a review and redetermination trial, a Juvenile
Court judge terminated the mother's parental rights regarding
her two youngest daughters, Gianna and Amy (together, the
children), who had not seen the mother in over four years.
Having failed to appear at the trial, the mother filed a motion
for relief from judgment and sought to reopen the evidence so
that she could testify. The trial judge scheduled a hearing for
the mother to present evidence, and thereafter ordered the
decrees to stand when the mother failed to appear. On appeal,
the mother challenges the termination decrees. We affirm.
Background. The mother suffers from diagnosed mental
health issues including posttraumatic stress disorder, anxiety
1 Adoption of Amy. The children's names are pseudonyms. disorder, mood disorder, and attention deficit hyperactivity
disorder. She has been inconsistent in taking prescribed
medications for these conditions and has been hospitalized on
multiple occasions. She has also experienced a history of
substance abuse (with no evidence of a treatment program since
2014), housing instability, and multiple incidents of domestic
violence witnessed by the children.
The mother has five children -- two adult daughters, a son
(adopted in 2012), and Gianna and Amy (age fourteen and ten,
respectively, at the time of trial). Gianna and Amy are the
subject of the termination decrees at issue here. As to the
children, the Department of Children and Families (department)
became involved with each at birth. When Gianna was born in May
2009, a report filed pursuant to G. L. c. 119, § 51A (51A
report), alleged that both Gianna and the mother tested positive
for cocaine. Following the premature birth of Amy in February
2013, another 51A report alleged that both the mother and Amy
tested positive for cocaine.
About five years later, on August 11, 2018, the event
precipitating department custody occurred when the mother's two
adult daughters had the children for an overnight visit.
Originally, the plan was that the mother would pick up the
children the next day, but after the mother did not show up, the
adult daughters attempted to contact her. Ultimately, the
2 mother responded by sending a text message to the adult
daughters stating that they could keep the children as they
would do a better job raising them. She also asked the adult
daughters to say goodbye to the children for her. Unsure how to
proceed, the adult daughters contacted the department, and the
department obtained emergency custody. On August 13, the
department reached out to the mother, who denied making the
statements and hung up the phone.
The following day, the department filed a care and
protection petition regarding the children. On August 16, the
mother waived a temporary custody hearing and stipulated that
the children would remain in the department's temporary custody.
The mother last visited with the children in February 2019.
Since this visit, the mother has had no contact with them and
inconsistent communication with the department.
On July 24, 2019, following a trial where the mother did
not appear, a judge found the mother (and the children's
fathers) unfit and the children in need of care and protection.
The judge appointed coguardians for the children. Four years
later, seeking termination of parental rights and desiring
permanency with their coguardians, the children filed a petition
for review and redetermination in February 2023. On June 8,
2023, a second judge held a review and determination trial where
the mother did not appear. The parties stipulated that the
3 children had not seen the mother in over four years. Based upon
clear and convincing evidence, the judge terminated the mother's
parental rights after concluding that she remained unfit and
would likely remain so for the indefinite future and that
termination would be in the best interests of the children.
On July 13, 2023, the mother filed a motion for relief from
judgment and sought to reopen the evidence to allow her to
provide testimony. The judge scheduled a hearing for the mother
to testify on October 4, 2023, but the mother failed to appear.
The judge issued an order stating, "Termination Stands."
Discussion. At a review and redetermination proceeding
under G. L. c. 119, § 26 (c), "the judge is deciding simply
whether to maintain the separation of parent from child." Care
& Protection of Erin, 443 Mass. 567, 571 (2005). "The proper
focus of inquiry on a § 26 review is on those facts which have
undergone some metamorphosis since the previous order or are
newly developed and, in consequence, alter the relationship
between the biological parent and the child." Custody of a
Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986). Ultimately,
"the department must show, by clear and convincing evidence,
that the parent remains unfit, that the child remains in need of
care and protection, and that his or her best interests are
served by removal or termination of parental custody." Adoption
of Melvin, 71 Mass. App. Ct. 706, 713 (2008). Giving
4 substantial deference to the judge's decision, we discern no
clear error or abuse of discretion. See Adoption of Ilona, 459
Mass. 53, 59 (2011).
1. Staleness of evidence. We disagree with the mother's
claim that the judge's findings "lack the requisite recency and
detail" to support termination. While a judge may not rely on
stale information, see Guardianship of Kelvin, 94 Mass. App. Ct.
448, 457 (2018), a judge may consider whether circumstances have
changed over time. "For example, the mother's mental health may
have taken a marked turn for the better, or conversely, for the
worse; the mother's physical environment may have improved, or
not; the ability of the mother to play the role of a competent,
supporting parent may have improved, or not." Custody of a
Minor (No. 2), 22 Mass. App. Ct. at 94. See Care & Protection
of Erin, 443 Mass. at 570 (judge at review and redetermination
hearing does not start with "blank slate"). The judge need not
find that "a material change in circumstances has occurred" to
alter the previous order. Custody of a Minor (No. 2), supra.
"Indeed, that no change in circumstances has occurred may be a
sound basis for altering the court's order. The previous
solution may not have worked." Id. Thus, a review and
redetermination trial necessarily contemplates an examination of
prior circumstances.
5 The judge properly considered the mother's protracted
struggles with a "substance use disorder, mental health
concerns, homelessness, and domestic violence that have gone
unaddressed." In support of her findings, the judge cited four
department investigator reports and a guardian ad litem report
filed between April 29, 2022, and June 7, 2023. Given the
context of the department's contact with the mother, we do not
view this information as being stale by the time of trial on
June 8, 2023. For example, on March 3, 2022, a social worker
met with the mother in her residence. She admitted that she had
not engaged in drug treatment since 2014, had relapsed since
that time, and had entered a psychiatric unit following a
suicide attempt. In a subsequent visit at the residence, the
mother admitted having difficulty concentrating and considered
going to the hospital for adjustments to her medication. On
August 1, 2022, another social worker contacted the mother and
arranged a home visit. The mother did not open the door or
answer calls at the appointed time and thereafter failed to
answer phone calls. The social worker concluded that this lack
of contact left her unable to "confirm any treatment or
services." Such long-standing, unaddressed mental health and
substance abuse issues coupled with the mother's lack of
cooperation with the department could properly be considered "to
predict future ability and performance." Adoption of Jacob, 99
6 Mass. App. Ct. 258, 262 (2021) quoting Adoption of Katharine, 42
Mass. App. Ct. 25, 32-33 (1997).
In particular, the pattern of the mother's disengagement
with the children began long before the trial and continued
through trial and beyond. The record showed that the mother
ceased visiting the children at least four years prior to trial.
She had no contact with the department for ten months leading up
to trial. She failed to maintain contact with counsel for nine
months and did not attend any of the trial. Even after the
trial, the judge gave the mother another opportunity to present
evidence on her own behalf, but the mother again failed to
appear. Far from being stale, this evidence constituted a
consistent and continuous theme of utter disengagement over a
long period of time. "[I]t would defy logic here not to
consider" such evidence. Adoption of Luc, 484 Mass. 139, 145
n.15 (2020).
2. Statutory factors. Next, the mother contends that the
judge erred by failing to articulate which statutory factors
weighed in her decision before terminating the mother's parental
rights. Although it may be common practice in cases involving
unfitness determinations for trial judges to address, seriatim,
each factor set out in G. L. c. 210, § 3, "such specificity is
not required." Adoption of Nancy, 443 Mass. 512, 516 (2005).
The substantial deference we afford to the judge's decision
7 includes a recognition that precision is neither desirable nor
possible in this field and "much must be left to the trial
judge's experience and judgment." 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).
Apart from the judge noting that she considered the
statutory factors, see Adoption of Larry, 434 Mass. 456, 470
(2001), we are satisfied that the judge's detailed and specific
findings demonstrated close attention to the evidence as well as
the fourteen nonexclusive factors identified in the statute.
For example, the judge repeatedly referenced the mother's
longstanding and unaddressed issues surrounding substance abuse
and mental health. See G. L. c. 210, § 3 (c) (xii) (prolonged
"alcohol or drug addiction, mental deficiency or mental
illness"). The judge also referenced the mother's disengagement
from both the department and the children. See G. L. c. 210,
§ 3 (c) (viii) ("lack of effort"); G. L. c. 210, § 3 (c) (x)
("willful failure to visit"). We also note that the mother
admitted knowing the department's action plan, which included
therapy, substance abuse support, and parenting classes, but she
disengaged from the department's efforts to provide services.
See G. L. c. 210, § 3 (c) (ii) (inability or unwillingness to
utilize department services). Overall, the judge's findings
8 that the mother left the children, ceased to communicate with
the department, failed to appear at multiple hearings, and made
no attempt to get the children back all bore directly on the
mother's ability, capacity, fitness, and readiness to assume
parental responsibility. G. L. c. 210, § 3 (c) (best interests
of child).
3. Permanency plans. The mother also contends that the
judge erred by failing to adequately evaluate the permanency
plans for the children before terminating her parental rights.
In determining the best interests of the child at a termination
of parental rights trial, "the judge must consider, among other
things, 'the plan proposed by the department.'" Adoption of
Varik, 95 Mass. App. Ct. 762, 770 (2019), quoting G. L. c. 210,
§ 3 (c). The law does not require that the plan be "fully
developed" in order to support a termination order, but it must
provide "sufficient information about the prospective . . .
placement 'so that the judge may properly evaluate the
suitability of the department's proposal.'" Adoption of Jacob,
99 Mass. App. Ct. at 273, quoting Adoption of Willow, 433 Mass.
636, 652-653 (2001).
Here, the record shows that the placement plan, even if not
fully developed, is in the children's best interests. The plan
called for the children to remain under the coguardianships,
with some anticipated modifications to address the needs of each
9 child (Gianna expressing a desire to end the coguardianship with
one of the guardians and Amy being evaluated for significant
learning and neurological issues). The children have been
living with the coguardians since August 2019 and are "happy and
well cared for." In addition, the judge found that the
coguardians were able to appropriately care for Amy's
"significant emotional, neurological, and educational
challenges," and the "[m]other is not in a position to meet this
child's high level of needs." The judge also properly weighed
the children's wishes. Gianna wanted to live with one of the
coguardians and end all contact with the mother, and Amy sought
permanency with the coguardians and did not want to live with
the mother. "[F]or a child to express a desire not to be with a
parent, is the most powerful statement a child can make about
fears and level of trust in h[er] parents" (quotation omitted).
Adoption of Quentin, 424 Mass. 882, 888 (1997). See Adoption of
Nancy, 443 Mass. at 518 (children's wishes "are entitled to
weight in custody proceedings," but their views are not
"decisive, . . . nor outcome determinative" [citations
omitted]).
4. Reasonable efforts. Finally, the mother argues that
the department failed to make reasonable efforts to restore the
children to her care. If a parent believes the department has
provided inadequate services, "many avenues" are available to
10 address the concern prior to trial. Adoption of West, 97 Mass.
App. Ct. 238, 242 (2020). A parent may not raise the claim for
the first time on appeal. See Adoption of Gregory, 434 Mass.
117, 124 (2001). Therefore, this claim is waived.
Decrees affirmed.
By the Court (Vuono, Englander & Hodgens, JJ.2),
Clerk
Entered: November 21, 2024.
2 The panelists are listed in order of seniority.