Adoption of Ilee.

• Court: Massachusetts Appeals Court
• Decided: March 2, 2026
• Docket: 25-P-0507
• Status: Unpublished

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-507

ADOPTION OF ILEE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge found the mother

unfit to parent her child, Ilee, terminated her parental rights,

and concluded that adoption by the child's foster parents would

be in the child's best interests. On appeal, the mother does

not challenge any of the judge's findings of fact but argues

that the judge erred and abused her discretion by failing to

support kinship placement with the maternal grandmother, by

failing to make certain required findings, by finding that the

Department of Children and Families (department) made reasonable

efforts toward kinship placement and reunification, and by

1A pseudonym. The names of Ilee's siblings are also pseudonyms. failing to accommodate the mother's mental health conditions at

trial. We affirm.2

Background. "We summarize the relevant facts and

procedural history as set forth in the judge's decision and as

supported by the record, reserving other facts for later

discussion." Care & Protection of Vick, 89 Mass. App. Ct. 704,

705 (2016).

1. Department involvement. The mother has four children,

all of whom have been involved with the department. Ilee is the

mother's youngest child. The mother's first child, Bryce, is in

the custody of his maternal grandmother through a guardianship

proceeding. He was removed from the mother's care due to "lack

of supervision, substance abuse, [the mother's] untreated mental

health, as well as domestic violence between [the] [m]other and

[the] [m]aternal [g]randmother." The department remains

involved with the maternal grandmother to assist with the

management of Bryce's violent and volatile behavior.

In October 2018 the mother gave birth to twins, Annice and

Kate. The mother tested positive for marijuana during her

pregnancy. Kate died when she was three weeks old; the cause of

death was determined to be sudden infant death syndrome.

2 After trial the father was found unfit, and his parental rights were terminated. The father did not appeal from the decree. The father died in November of 2024.

2 Following Kate's death, the department was unable to locate the

mother for a period of time. Ultimately, the department took

custody of Annice pursuant to an emergency removal under G. L.

c. 119, § 51B (c), on November 8, 2018, and the mother's

parental rights as to Annice were terminated in 2022.

Ilee was born prematurely in December 2022 and was

transferred to a special care nursery immediately for further

medical treatment. The mother tested positive for marijuana in

the late stages of her pregnancy and at birth, despite claiming

that she had stopped using marijuana when she learned of her

pregnancy. Ilee tested positive for fentanyl at birth.3 A G. L.

c. 119, § 51A, report was filed citing concerns related to the

family's extensive history with the department. The mother had

informed the department that she and Ilee would be moving to her

sister's house upon Ilee's discharge, but that plan was not

viable, as the home lacked a crib and bassinet. The maternal

grandmother had informed the department that the mother and Ilee

would be moving into her home but within weeks of Ilee's birth

the mother was involved in an altercation with the maternal

grandmother's landlord and was issued a no-trespass order for

the property at which the maternal grandmother lived. During

3 The judge noted that "[i]t [was] unclear whether the presence of fentanyl was due to medication dispensed during birth."

3 Ilee's hospitalization, the mother visited Ilee only two to

three times and did not maintain consistent contact with the

department. Following an investigation, the department found

that Ilee would be at risk of abuse and neglect if she were

released into the mother's care and initiated a care and

protection proceeding on January 5, 2023.

2. The mother's unfitness and the termination of her

parental rights. After trial, the judge issued her memorandum

of decision, and she subsequently made extensive findings and

rulings as to the mother's fitness and Ilee's best interests.

The judge found that the mother consistently denied all

allegations of abuse and neglect relating to each of her

children and refused to cooperate with the department or engage

with offered services. The mother was chronically homeless, and

when housed, refused home visits and would not provide the

department with her address. At the time of trial, the mother

continued to refuse to provide her address, and the judge had

"no confidence that [the mother's] housing instability [would]

improve should Ilee be returned to [her] care."

The judge found that the mother has a history of untreated

mental health concerns: the mother is unable to regulate her

moods, refuses to engage in mental health evaluations or

treatment for her multiple diagnoses, and chooses to self-

medicate with marijuana, resulting in "volatile and hostile

4 behavior towards her family members . . . and [d]epartment

workers." Describing the mother's conduct during the trial, the

judge found that the mother "consistently demonstrated that she

is unable to control her contempt and disrespect for the [c]ourt

and the [d]epartment, both by storming out of the court room and

muttering expletives." The mother had no plan to care for

Ilee's complex needs, including medical issues that require

oversight and regular visits to multiple specialists. The judge

found that Ilee needed a "stable vigilant caretaker" to ensure

her safety, and that the evidence established that the mother

was not capable of caring for Ilee, in part because she is

"unable to care for her own mental health." For all these

reasons, the judge concluded, consistent with clear and

convincing evidence, that the mother was unfit, and that

termination of the mother's parental rights was in Ilee's best

interests.

The department advanced a plan for Ilee to remain with her

preadoptive family. The mother offered a competing plan of

guardianship with the maternal grandmother. The judge evaluated

the competing plans and concluded that it was in Ilee's best

interests to be placed with her preadoptive family, pursuant to

the department's plan.

Discussion. 1. Kinship placement with the maternal

grandmother. After determinations of parental unfitness and

5 that it is in the best interests of the child to permanently

terminate the parent-child relationship, see Adoption of Ramona,

61 Mass. App. Ct. 260, 265 (2004), the judge is required to

assess all proposed placements for the child, including the

department's plan and the plans presented by any other party.

See Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001).

See also G. L. c. 119, § 26; G. L. c. 210, § 3 (c). "In choosing

among placement plans, it falls to the sound discretion of the

trial judge to determine what is in the best interests of the

child, and our review on appeal is one of 'substantial

deference.'" Adoption of Bianca, 91 Mass. App. Ct. 428, 434

(2017), quoting Adoption of Hugo, 428 Mass. 219, 225 (1998),

cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034

(1999).

The mother argues that the judge erred by not properly

evaluating the maternal grandmother's suitability as a kinship

placement. However, the judge made significant findings

regarding suitability, supported by the record, including

findings about the maternal grandmother's relationship with the

mother, the care Bryce needed, and the risk posed to Ilee, a

toddler. The judge found that the maternal grandmother could

not control Bryce's volatile behavior and "minimized" that

conduct despite her awareness of Bryce's reliance on the

assistance of multiple services to support his mental health

6 diagnoses. Further, the judge found that there was no

indication that the maternal grandmother would limit

unsupervised contact between the mother and Ilee or be able to

"control [the] [m]other's irascible and volatile behavior in the

home." We discern no error in the judge's evaluation of the

maternal grandmother as a placement, and it was not an abuse of

discretion for the judge to conclude that it was in Ilee's best

interests to remain with her preadoptive family.

Relatedly, the mother argues that the facts supporting the

findings regarding the maternal grandmother's care of Bryce are

stale. We conclude that even if there have been no new reports

to the department, police calls, or department supported

concerns regarding Bryce, the judge was within her discretion to

conclude that it was not in Ilee's best interests to be placed

in a home where the caretaker had historically struggled to

control a volatile older child and to maintain boundaries with

the mother, thereby placing Ilee at risk.4 See Adoption of

Xarissa, 99 Mass. App. Ct. 610, 620 (2021) ("The judge's

determination that a particular plan is in the child's best

4 In her briefs, the mother argued that the judge was required by G. L. c. 119, §§ 26 and 29C, to make explicit statutory findings regarding the maternal grandmother's suitability as a kinship placement. As the mother's attorney (who was not the author of the briefs) properly conceded at oral argument, this statutory argument is without merit.

7 interests presents a classic example of a discretionary decision

to which we accord substantial deference" [quotations and

citation omitted]).

2. Reasonable efforts. The mother argues that the judge

erred in her conclusion that the department satisfied its

obligation to make reasonable efforts toward reunification prior

to terminating her parental rights, and that the department was

required to make reasonable efforts to support a kinship

placement identified by a parent.5

"The department is 'required to make reasonable efforts to

strengthen and encourage the integrity of the family before

proceeding with an action designed to sever family ties.'"

Adoption of West, 97 Mass. App. Ct. 238, 241 (2020), quoting

Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). "When

committing a child to the custody of the department or

terminating parental rights, a judge must determine whether the

department has complied with its duty to make 'reasonable

efforts . . . to prevent or eliminate the need for removal from

5 At oral argument, the mother argued for the first time that the department failed to follow its policies by informing the maternal grandmother that she was not eligible to apply to be a kinship placement. We deem this argument waived. See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (claims "not supported by reasoned argument or citations" do not rise to level of appellate argument and need not be considered); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

8 the home.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting

G. L. c. 119, § 29C. "A judge's determination that the

department made reasonable efforts will not be reversed unless

clearly erroneous." Adoption of West, supra at 242.

We discern no error in the judge's finding that the

department made reasonable efforts to work towards the

reunification of the mother with Ilee. The department tried to

assist the mother to achieve the goals in her action plan to

strengthen her "parenting abilities, and to promote the child's

safety, stability, and permanency." Contrary to the mother's

further argument, while G. L. c. 119, § 29C, and G. L. c. 210,

§ 3, imposed duties on the department to make reasonable efforts

to restore the child to her care before seeking termination of

her rights, they did not require the department to make

"reasonable efforts" to support a kinship placement for a child.

And even if the department had a duty to prioritize and support

the kinship placement with the grandmother, the mother's claim

of inadequate services and efforts cannot be raised for the

first time on appeal. See Adoption of Gregory, 434 Mass. 117,

124 (2001). Moreover, even if the department failed in its

duties, the judge was not precluded from making any order

conducive to the child's best interests. See Adoption of West,

97 Mass. App. Ct. at 242.

9 3. Accommodation of the mother's mental health conditions.

The mother argues that the judge failed to accommodate her

mental health conditions during the trial and that because of

that failure, she was rendered unable to meaningfully

participate in the trial, thus violating her due process rights

and prejudicing her ability to argue for kinship placement with

the maternal grandmother. We are not persuaded.

At trial, the mother did not request a competency hearing

or raise the issue of her competency. While the mother's

behavior at trial was unpredictable, and, at times, hostile,

there is no indication, and indeed she does not argue, that she

was incompetent. See Adoption of Kirk, 35 Mass. App. Ct. 533,

537 (1993) (fact of mental illness does not, without more

evidence, overcome presumption that individual is competent to

manage own affairs). To the contrary, the mother had prior

experience with care and protection proceedings, and the

mother's testimony and her participation in the termination of

parental rights trial indicate that she fully understood the

nature of the proceedings, including the department's request to

terminate her parental rights as to Ilee, the department's plan

for Ilee to stay with her preadoptive family, and the

department's opposition to a kinship placement with the maternal

grandmother.

10 Moreover, despite the mother's hostile and inappropriate

behavior over the course of the trial, the judge encouraged the

mother to answer the questions, allowed her multiple breaks, and

ignored the mother's insulting comments directed at counsel and

the judge, allowing the mother the opportunity to participate

fully in the proceedings. The mother presented evidence and

argued that for several reasons Ilee should be placed with the

maternal grandmother. Both the mother and the maternal

grandmother testified, and the mother's counsel, consistent with

his client's wishes, argued for the placement in her closing

argument after presenting evidence in support of kinship

placement. In her conclusions of law, the judge properly noted

that she was required to "consider parental nominations of

caretakers," Adoption of Dora, 52 Mass. App. Ct. at 474-475, and

affirmatively stated that the mother had "advanced a competing

plan of guardianship with maternal grandmother." As noted

above, the judge fully considered the kinship placement with the

maternal grandmother, and after making specific findings

supporting the conclusion that placement with the maternal

grandmother was not suitable, properly determined that it was in

11 Ilee's best interests to remain with her preadoptive family.6

Decree affirmed.

By the Court (Massing, Hand & Allen, JJ.7),

Clerk

Entered: March 2, 2026.

6 Having found no error, we need not address the mother's cumulative and harmless error arguments.

7 The panelists are listed in order of seniority.