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-272
ADOPTION OF INDI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a judge of the
Juvenile Court finding her unfit, committing the child, Indi, to
the permanent custody of the Department of Children and Families
(department), and terminating the mother's parental rights.1 We
affirm.
Background. We summarize the trial judge's findings of
fact, supplemented by uncontroverted evidence from the record,
and reserve certain facts for later discussion. The mother has
"a history of mental health concerns and has been diagnosed with
bipolar disorder, depression, anxiety, PTSD, ADHD, and opioid
addiction disorder." She also has a long history of substance
1The judge also declined to order any posttermination or postadoption contact between Indi and the mother. use, for which she has intermittently received treatment for
most of her teenage and adult life.
The mother gave birth to Indi in March 2022.2 A few days
after Indi was born, the department received a report filed
under G. L. c. 119, § 51A, alleging that he was a substance-
exposed newborn and that the mother had been using substances
throughout her pregnancy and living in a car with the putative
father.3 The department commenced an investigation pursuant to
G. L. c. 119, § 51B, and ultimately supported the allegation of
neglect against the mother because of concerns of substance use
and instability. On March 23, 2022, the department filed the
present care and protection petition pursuant to G. L. c. 119,
§ 24, and was awarded emergency temporary custody of Indi, who
remained at the hospital for treatment for withdrawal symptoms.
Beginning in March 2022, the department provided the mother with
action plans which tasked her, inter alia, with maintaining her
sobriety; developing and maintaining a stable, sober community;
engaging in therapy; obtaining safe and stable housing
2 The mother has three older children who are not named on this petition; her parental rights to those children were terminated.
3 The putative father is not listed on the birth certificate and did not establish paternity. On the first day of trial, the judge struck him from the petition.
2 appropriate for reunification with Indi; and attending weekly
supervised parenting time with Indi.
The mother did not productively utilize the department's
services or consistently visit Indi. The department provided
the mother with access to the child while he was hospitalized,
including overnight visits, which she declined. After several
brief visits with Indi during his three-and-a-half-week
hospitalization following his birth in March 2022, the mother
maintained minimal contact with the department, did not engage
with her action plan until November 2022, and did not visit Indi
again until October 2022.
The mother experienced housing instability throughout the
pendency of the case. From the time of Indi's birth in March
2022 to October 2022, the mother was "squatting" in a building.
During a home visit in September 2022, outside the home the
department's workers observed hypodermic needles and a large
amount of trash and empty medication bottles belonging to the
mother; the home had no electricity. During that time, the
mother tested positive for cocaine and fentanyl and admitted to
smoking crack cocaine. From November 2022 to January 2023, the
mother alternated between sleeping at a hotel where her mother
worked and sleeping in her car. She slept in her car from March
2023 to October 2023. The mother tested positive for cocaine in
May 2023 and failed to provide the department with consistent
3 drug screens thereafter. The department offered the mother a
letter to enable her to enter a recovery program and reunify
with her child there, which she declined. She denied that she
had a substance use issue.
In October 2022, the department changed Indi's permanency
goal from reunification to adoption. Indi transitioned to his
preadoptive home in February 2023, where, at the time of trial
in January 2024, he was thriving. Indi's preadoptive family is
"extremely involved with [his] growth and development, and
advocate[s] for all his medical, educational, and
extracurricular activities."
In November 2023, with trial then scheduled for December
2023, the mother began to engage with her action plan. She
completed an online parenting course, engaged in a domestic
violence program, reengaged in counseling services, and obtained
an apartment. However, the mother admitted to her social worker
that she told the housing resource that she and Indi would be
reunified immediately if she obtained an apartment, though that
was not true.
On December 8, 2023, the mother filed a motion to continue
the trial, alleging that the department failed to comply with
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., and that a continuance of the trial was necessary for
remedial accommodations to be put in place. The judge denied
4 the motion. On December 18, 2023, the mother filed a motion for
a determination that the department failed to make reasonable
efforts towards reunification and for entry of remedial orders
(motion for reasonable efforts). The judge continued the motion
to be heard with the trial.
Discussion. 1. Factual challenges. "Unless shown to be
clearly erroneous, we do not disturb the judge's findings, which
are entitled to substantial deference." Adoption of Jacques, 82
Mass. App. Ct. 601, 606-607 (2012).
The mother challenges three of the judge's findings on the
grounds that they were incorrectly attributed in full or in part
to the mother's testimony despite her never testifying at trial.
Based on our review of the record, we conclude that these
misattributions are harmless error because each of the contested
findings is supported by the evidence. See Care & Protection of
Olga, 57 Mass. App. Ct. 821, 824-825 (2003) (findings supported
by evidence or that contain immaterial errors are not clearly
erroneous).
The mother also argues that findings twelve and thirteen,
taken together, are erroneous because the social worker did not
make the referral until late 2023. Finding twelve states that
the social worker learned of the mother's disability in
September 2022. Finding thirteen addresses the social worker's
consultation with a supervisor and efforts to schedule a
5 disability consult with the mother and refer her for a
neuropsychological evaluation. The mother contends that the
findings imply that the department immediately investigated the
disabilities when the social worker did not make the referral
until late 2023. In fact, the social worker testified that she
consulted with her supervisor about the mother's disability in
September 2022 and made efforts to pursue a neuropsychological
evaluation in late 2022. We discern no error.
We also find unconvincing the mother's contention that
finding thirteen is erroneous as a matter of law for stating
that a scheduled "disability consult . . . was unfruitful as
mother never requested any accommodations." Rather than
expressing a legal conclusion, we construe this finding as
representing the social worker's rationale pursuant to her
understanding of the department's disability policy.
The mother also appears to challenge the judge's
introductory statement in the findings that the mother "tested
positive for prescribed subutex throughout her pregnancy, as
well as marijuana" on the basis that the record elsewhere
indicates only two positive marijuana screens. We conclude that
the error was immaterial considering the judge's subsequent
finding that there were just two positive marijuana screens
during the pregnancy. See Care & Protection of Olga, 57 Mass.
App. Ct. at 825.
6 Accordingly, we do not disturb the judge's lengthy and
comprehensive "specific and detailed [findings] . . .
demonstrat[ing] that close attention was given to the evidence."
Adoption of Georgia, 433 Mass. 62, 66 (2000).
2. Reasonable efforts. The mother contends that, under
the department's own disability policies and the ADA, the
department had an obligation to commence accommodations for the
mother's disability which was triggered as soon as the
department became aware that the mother had a disability. She
argues that the department's failure to meet this obligation
constituted a failure to make reasonable efforts to reunify her
with Indi and that the judge erred by failing to make findings
as to the department's obligations and failures under the ADA
and the department's disability policy. We disagree.
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 Lenore, 55 Mass. App. Ct. 275, 278 (2002). "A
judge's determination that the department made reasonable
efforts will not be reversed unless clearly erroneous."
Adoption of West, 97 Mass. App. Ct. 238, 242 (2020).
"[B]ecause termination proceedings do not constitute
'services' under the ADA, the ADA may not be raised as a defense
in these proceedings." Adoption of Gregory, 434 Mass. 117, 118
7 (2001). A parent who believes that the department is not
reasonably accommodating a disability has the burden to "raise a
claim of inadequate services in a timely manner so that
reasonable accommodations may be made." Id. at 124. To be
timely, the claim should be raised "either when the parenting
plan is adopted, when [the parent] receives those services, or
shortly thereafter." Id. Failure to make a timely claim bars
the parent from raising the department's "noncompliance with the
ADA or other antidiscrimination laws for the first time at a
termination proceeding." Id.
We find unavailing the mother's contention that the judge
abused her discretion in finding that the department made
reasonable efforts toward reunification. Here, the error
alleged by the mother turns on her claim of inadequate services.
"Where a parent, as here, has cognitive or other limitations
that affect the receipt of services, the department's duty to
make reasonable efforts to preserve the natural family includes
a requirement that the department provide services that
accommodate the special needs of a parent." Adoption of Ilona,
459 Mass. 53, 61 (2011). "What constitutes reasonable efforts
. . . must be evaluated in the context of each individual case."
Care & Protection of Walt, 478 Mass. 212, 227 (2017).
During the pendency of the case, the mother never requested
any reasonable accommodations. In the twenty months prior to
8 the mother's motion, three consecutive action plans had run
their course without the mother bringing any request for
accommodations or claim of inadequate services. The department
was aware of the mother's learning disability in March 2022.
When the social worker asked for information about the mother's
disabilities in September 2022, the mother never provided it.
The mother never stated that she had difficulty understanding
information conveyed by the social worker. The judge found that
the social worker nonetheless provided accommodations to the
mother during meetings by simplifying and breaking down the
mother's tasks for her, repeating information, allowing the
mother to take notes, and permitting her representative payee to
be present for support. Furthermore, the mother never expressed
any concern that the steps taken by the department to
accommodate her disability were insufficient.
The department's "obligation to work with the mother was
contingent upon her own obligation to fulfill various parental
responsibilities, including seeking and utilizing appropriate
services and maintaining regular contact with [the department]
and [the child]." Adoption of Serge, 52 Mass. App. Ct. 1, 9
(2001). Between March 2022 and November 2022, the mother had
minimal contact with the department and did not participate in
any of the services offered in conjunction with her action plan.
From April 2022 to September 2022, the mother repeatedly
9 declined the department's offers for visits with Indi to assess
her parental capacity. The mother refused four opportunities to
acquire stable housing facilitated by the department, one of
which could have led to swift reunification with Indi. Given
the department's significant efforts and the mother's lack of
reciprocation or request for accommodation, we conclude that the
judge did not err in determining that the department's efforts
to reunify the mother with Indi were reasonable, notwithstanding
her known disability.
3. Adverse inferences drawn from the mother's absence at
trial. We are not persuaded by the mother's contention that the
judge abused her discretion by drawing adverse inferences from
the mother's absence from the trial.
"We review a trial judge's decision to draw an adverse
inference from a parent's absence under the abuse of discretion
standard." Adoption of Helga, 97 Mass. App. Ct. 521, 526
(2020). "Adverse inference [may] be drawn against a parent who,
having notice of the proceedings, is absent from a child custody
or termination proceeding without an adequate excuse." Id. at
525.
On the first day of trial, the mother came to the
courthouse but did not enter the courtroom.4 Her attorney told
The judge noted that the mother was only twenty to thirty 4
feet outside the courtroom.
10 the judge that the mother did not feel that she could be present
at trial because she did not think she could participate for
emotional reasons, had "protective concerns about her own mental
health," and wanted to leave. At the department's request, the
judge drew a negative inference from the mother's absence. On
the second day of trial, the mother's attorney asked the judge
to reverse the previous day's adverse inference, stating that
the mother had gone to the emergency room due to a panic attack
and that the mother's absence on the second day was out of
concern that "the emotional trauma that she was feeling
yesterday would only be reignited." The judge denied the
request to reverse the inference and also drew an adverse
inference from the mother's absence on the second and third days
of trial.
We agree with the judge's determination that the mother did
not provide any adequate excuse for her absences. See Adoption
of Helga, 97 Mass. App. Ct. at 526. Although the judge invited
the mother's attorney to offer evidence of the mother's medical
excuse through witnesses or certified records, no admissible
evidence was ever introduced besides brief testimony that the
mother was observed yelling and crying in the courthouse
hallway. Moreover, at the start of each day of trial the judge
reiterated the court's willingness to provide the mother
reasonable accommodations to enable her participation, and on
11 the first day of trial the judge invited the mother's attorney
to "text [the mother] periodically to ask her if she's changed
her position" about participating. The judge did not abuse her
discretion in drawing the adverse inferences.
4. Termination of parental rights. The mother challenges
the judge's finding that her unfitness was likely to continue
into the future, arguing that the mother's past conduct was no
longer probative of future unfitness due to her "great strides"
in the months before trial and that termination of her parental
rights was "not necessarily in [Indi's] best interests," because
her recent "accomplishments bode well for Mother’s continued
improvements in the best interests of Child." We are not
persuaded.
"In deciding whether to terminate a parent's rights, a
judge must determine whether 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. at 59. Recognizing that termination of
parental rights is an "extreme step, a judge must decide both
whether the parent is currently unfit and whether, on the basis
of credible evidence, there is a reasonable likelihood that the
parent's unfitness at the time of trial may be only temporary"
(quotations and citations omitted). Id.
12 On review, "we must determine whether the trial judge
abused [her] discretion or committed a clear error of law."
Adoption of Elena, 446 Mass. 24, 30 (2006). The judge's fitness
determination must be supported by "specific and detailed"
findings that demonstrate parental unfitness by clear and
convincing evidence. Custody of Eleanor, 414 Mass. 795, 799
(1993).
In support of her argument, the mother points to her
reengagement with her action plan, including attaining housing
in November 2023, reengaging with programs and a recovery coach,
and having positive visits with Indi. Although the judge
acknowledged the mother's reengagement with services, the judge
found it "concerning" that the mother waited until two months
before trial. The judge found that the mother had twenty-two
months (the entirety of Indi's life) to engage in services but
"has been unable to meaningfully address the concerns of
substance abuse, housing, mental health, domestic violence and
overall stability."
The evidence shows that the mother failed to comply with
nearly all aspects of her action plan. See Petitions of the
Dep't of Social Servs. to Dispense with Consent to Adoption, 399
Mass. 279, 289 (1987) (inability to comply with action plans is
relevant to determination of unfitness). During the pendency of
the case, the mother was largely absent from Indi's life and
13 refused services -- including a housing placement that could
have led to reunification and multiple housing shelter offers --
instead choosing to remain in an abusive relationship, engage in
substance use, and live unhoused. See Adoption of Vito, 431
Mass. 550, 555 (2000) (lack of adequate stable housing is
relevant to fitness).
The evidence shows that the mother failed to consistently
maintain her sobriety during this case, sporadically using
cocaine or fentanyl throughout 2022 and testing positive for
cocaine in May 2023. See Adoption of Anton, 72 Mass. App. Ct.
667, 676 (2008) (evidence of drug misuse relevant to parent's
ability to provide care).
The mother chose to maintain a significant relationship
with the putative father, despite his history of physical and
verbal abuse toward her and his history of providing her with
drugs. See Adoption of Mary, 414 Mass. 705, 711 (1993)
(parent's decision to continue relationship with violent or
abusive partner bears on fitness because it indicates inability
to protect children from future abuse).
The mother had minimal contact with Indi since his birth.
Despite the many opportunities afforded her by the department,
the mother only attended seven in-person visits with Indi
between April 2022 and trial in January 2024. See Adoption of
14 Darla, 56 Mass. App. Ct. 519, 522 (2002) (failure to visit child
is relevant to finding of parental unfitness).
The judge found that the mother admitted that she was
unable to parent her three older children and that her parental
rights to those children had been terminated. The judge noted
that "[t]he same issues regarding Mother's parenting abilities
continue to date with respect to Indi." See Adoption of
Jacques, 82 Mass. App. Ct. at 607 (prior history of unfitness
has prognostic value). "[A] judge may rely upon a parent's past
conduct with regard to older children to support a finding of
current unfitness as to a different child, so long as that
evidence is not the sole basis for the judge's unfitness
determination." Adoption of Luc, 484 Mass. 139, 145 (2020).
Indi has been separated from the mother for his entire
life, has no emotional attachment to the mother, and has formed
a significant emotional attachment to his preadoptive parents,
with whom he had lived for almost a year at the time of trial.
See Adoption of Frederick, 405 Mass. 1, 7 (1989) ("a lengthy
separation between parent and child, the growth of emotional
ties between the child and a different custodian, and the effect
of a forced return of the child to the biological parents are
all factors that should be weighed by the judge").
The evidence supported the judge's conclusion that the
mother's "continued lack of progress is a strong indicator that
15 her shortcomings will continue undiminished into the future with
an attendant harmful effect on [the child]." "Even if a parent
engages in some of the services offered by the department, mere
participation in the services does not render a parent fit
without evidence of appreciable improvement in [the parent's]
ability to meet the needs of the child[]" (quotation and
citation omitted). Adoption of Breck, 105 Mass. App. Ct. 652,
660 (2025). Though a judge may consider evidence that a parent
will correct a condition or weakness that currently impedes
their ability to serve the child's best interests, the
conclusion that unfitness is temporary requires more than a
"faint hope" that the parent will become fit (citation omitted).
Adoption of Ilona, 459 Mass. at 59. The record here amply
supported the judge's conclusion that the mother's unfitness was
not temporary despite the small improvements made by the mother
just before trial and that terminating the mother's parental
rights served Indi's best interests. The judge did not err or
abuse her discretion in finding that termination of parental
rights was in Indi's best interests. See Adoption of Ilona,
supra at 59 ("We give substantial deference to a judge's
decision that termination of a parent's rights is in the best
interest of the child").
5. Motion to continue. The mother challenges the judge's
denial of her motion to continue the trial. In that motion, the
16 mother claimed that the department knew of her cognitive
disability since the inception of the case and that the
department's management of the case violated both the ADA and
the department's own disability policy, thereby demonstrating a
failure to provide reasonable efforts. The mother sought a
continuance to give her the opportunity to benefit from
appropriate disability accommodations.
"Whether to continue any judicial proceeding is a matter
entrusted to the sound discretion of the judge, and [the]
decision will be upheld absent an abuse of that discretion."
Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).
We discern no abuse of discretion in the judge's denial of the
motion to continue, particularly where the case had been pending
for almost two years and the child was in a preadoptive
placement. See Adoption of Ursa, 103 Mass. 558, 569 (2023)
(judge properly denied mother's motion to continue where case
was three years old and harm of delays "is unfortunately
suffered principally by the children" [citation omitted]).
6. Denial of posttrial motions.5 The mother contends that
the trial judge abused her discretion by denying her motion for
5 The mother included the denial of her motion to stay assembly of the record in her notice of appeal, but the mother's brief does not address it. Therefore, we do not address it here. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
17 a new trial or to reopen the evidence pursuant to Mass. R.
Civ. P. 60 (b) (1), (2), (6), 365 Mass. 828 (1974).6 We
disagree.
We review a judge's denial of a rule 60 (b) (6) motion for
abuse of discretion. Adoption of Gillian, 63 Mass. App. Ct.
398, 411 (2005). "In considering a motion under rule
60 (b) (6), a judge may consider whether the moving party has a
meritorious claim, whether extraordinary circumstances warrant
relief, and whether the substantial rights of the parties in the
matter in controversy will be affected by granting the motion"
(quotations and citations omitted). Parrell v. Keenan, 389
Mass. 809, 815 (1983). Where, as here, the "motion judge and
the trial judge were one and the same," we recognize that the
judge may rely on her knowledge of the trial proceedings and we
therefore extend her decisions a "special deference."
Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 811 (2008).
6 "We look to rule 60 (b) by analogy and as a cogent standard because the Massachusetts Rules of Civil Procedure do not apply to proceedings to dispense with consent to adoption." Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011).
Although the mother cited to Mass. R. Civ. P. 60 (b) (1) and (2) in her motion, she did not make any specific arguments pursuant to these sections.
18 In her "motion to reopen the trial and/or for a new trial,"7
the mother advanced essentially two arguments. First, the
mother claimed that the combination of the department's late
disclosure of the mother's 2018 neuropsychological evaluation
and the trial judge's denial of the motion to continue violated
the mother's right to due process by depriving trial counsel of
adequate time to prepare the mother's defense to termination of
parental rights. The record, however, shows that on October 2,
2023, trial counsel told the court that she had received the
department's complete file and reviewed it in preparing the
mother's witness and exhibit lists. Furthermore, counsel
received the evaluation on December 4, 2023, more than six weeks
before trial commenced on January 16, 2024.8 We discern no error
here.
Second, the mother argued that a new affidavit from a
housing specialist could correct the court's mistaken impression
that the mother made false representations to obtain her
apartment. In denying the motion, the judge stated that the
housing issue was only "one small component" and that her
We note that our review of the January 2025 ruling on the 7
posttrial motions is limited by a five-minute gap in the transcript, through no fault of the mother.
Although the judge denied the mother's motion to continue 8
the trial from December 16, 2023, the judge nevertheless continued the trial to January 16, 2024, to give the department time to draft an open adoption agreement.
19 findings mention one statement about the mother being dishonest
"[b]ut, there were so many other issues." There was no abuse of
discretion. See Adoption of Gillian, 63 Mass. App. Ct. at 411-
412 (no abuse of discretion in denying rule 60 (b) motion where
the numerous bases for termination persisted after trial).
Additionally, the disputed finding concerning the mother's
dishonest representation came from the testimony of a social
worker whom the judge found credible. The mother had a fair
opportunity to rebut that evidence at trial.
Accordingly, we discern no abuse of discretion in the
judge's denial of the motion to reopen the trial as the mother
has failed to show that the motions were meritorious or
presented any extraordinary circumstances warranting relief.
Parrell, 389 Mass. at 815.
Decree affirmed.
By the Court (Henry, Sacks & Tan, JJ.9),
Clerk
Entered: January 21, 2026.
9 The panelists are listed in order of seniority.