Adoption of Isar.

• Court: Massachusetts Appeals Court
• Decided: October 1, 2024
• Docket: 23-P-1268
• Status: Unpublished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

23-P-1268

ADOPTION OF ISAR.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued a

decree finding that the father was unfit to assume parental

responsibilities for his son, Isar, terminated his parental

rights, ordered posttermination and postadoption visitation, and

approved the adoption plan proposed by the Department of

Children and Families (department).2 The father appeals,

claiming that the department failed to make reasonable efforts

to accommodate his disability by (1) denying his request for an

accommodation to increase visitation time and (2) failing to

hold a meeting pursuant to the Americans with Disabilities Act

(ADA). We affirm.

1 A pseudonym.

2At a separate trial, the mother was found to be unfit, and her parental rights were terminated. She did not appeal. Background. One day after his birth in August 2021, the

department received a report from a mandated reporter pursuant

to G. L. c. 119, § 51A, alleging neglect of Isar due to the

parents' lack of clarity about where they would be living after

discharge from the hospital. The department conducted an

emergency visit, during which it learned that the parents were

living in a rooming house that was "not suitable" for a child.

The parents reported that they would be moving in with the

child's paternal great-aunt and grandfather in Rhode Island,

however neither parent could provide an address or phone number.

On investigation, the department learned that the family home in

Rhode Island was a "short-term option only."

The following day, the department conferred with the

parents about having Isar remain an additional night in the

hospital so the department could continue its investigation and

assess the parents' living situation. After resistance from the

father, the department initiated an emergency removal of Isar

and filed a care and protection petition pursuant to G. L.

c. 119, § 24. The father subsequently waived his rights to a

temporary custody hearing, and the department was granted

temporary custody. When he was less than ten days old, Isar was

placed in the care of a foster family, with whom he remained at

the time of trial.

2 After Isar's removal, the department provided the father

with an action plan to facilitate reunification. It became

clear to the department in the nascent stages of the case that

the father has "cognitive difficulties and issues with

processing information," and in response the department tailored

the action plan to meet his needs. The department provided the

father with a clinical parent aide who specialized in assisting

parents with intellectual or mental health challenges, submitted

a referral for a neuropsychological evaluation to assess his

learning patterns and intellectual functioning, and paired him

with a social worker experienced in working with adults with

cognitive limitations. The action plan also tasked the father

with obtaining stable and appropriate housing, attending weekly

supervised visitations with Isar, and enrolling in an intimate

partner abuse education program assessment.3

Between August 2021 and December 2022, the department

endeavored to assist the father in making progress with his

action plan. In October 2021, the department referred the

father to a housing consultant and provided him with ample

resources for housing assistance services. However, throughout

3 The father was charged with assault and battery on a pregnant person and domestic assault and battery with Isar's mother as the victim in two separate cases. Those charges were ultimately dismissed. In addition, in 2018 the father was charged with domestic assault and battery against the mother of his other child. That case was also dismissed.

3 the case, the father maintained an unstable living situation,

moving between his family's home in Rhode Island, the rooming

house in Brockton, staying in hotels or with friends, and at

times staying in New York. The department also facilitated the

father's enrollment in a domestic violence assessment program,

offered virtually and at no cost to the father while he searched

for employment. After repeatedly missing sessions, the father

was terminated from the program in April 2022. In November

2021, the department referred the father to a clinical parent

aide to help develop his parenting skills; however in April 2022

he was similarly terminated from the service for lack of

engagement, with the provider noting that there was "no effort

on [the father's] end." The department followed up by referring

the father to a different parent aide, but he never completed

the intake process.

In December 2021, the father's social worker sat down with

him and helped fill out the intake paperwork for the

neuropsychological evaluation and scheduled his appointment for

January 2022. Despite a reminder from the social worker, the

father missed the appointment, and after assistance rebooking a

second appointment, missed the rescheduled appointment in June

2022 as well. Through December 2022, the department continued

to offer the father support in rebooking a third appointment,

4 including offers to pay for transportation, but the father

stated that he was not interested.

In March 2022, the father's attorney hired an independent

expert to assess his parenting progress. After observing

several visits between the father and Isar, the expert

recommended that the father be given additional parenting time

to continue to develop his parenting skills. However, the

father had recently discussed with the department his difficulty

making the current visitation schedule due to his commute

between Rhode Island and Massachusetts and his work schedule.

The father was nevertheless offered additional parenting time,

which he declined. In the months following the independent

expert's request, the father missed at least six scheduled

visits.

The father stipulated to being unfit in May 2022, and due

to the lack of progress with his action plan, the department

changed the goal from reunification to adoption in June 2022.

Isar, now three years old, has lived with his foster mother

since he was less than two weeks old.

Discussion. The father appeals the termination of his

parental rights and argues that the department failed to make

reasonable efforts to accommodate his disability by (1) denying

his accommodation request for increased visitation time and (2)

5 failing to hold an ADA meeting. See G. L. c. 119, § 29C. We

are not persuaded.

1. Reasonable efforts. "It is well-established that a

parent must raise a claim of inadequate services in a timely

manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010),

S.C., 460 Mass. 72 (2011). "If a parent believes that the

department is not reasonably accommodating a disability, the

parent should claim a violation of his rights under either the

ADA or other antidiscrimination legislation, either when the

parenting plan is adopted, when he receives those services, or

shortly thereafter." Adoption of Gregory, 434 Mass. 117, 124

(2001). Other avenues include requesting an administrative fair

hearing, rejecting the action plan and filing a grievance,

filing an abuse of discretion motion, or raising the issue

during a pretrial conference. See Adoption of West, 97 Mass.

App. Ct. 238, 242-243 (2020). "A parent cannot raise a claim of

inadequate services for the first time on appeal, as the

department would not have had the opportunity to address it."

Id. at 242. Here, the father did not raise the claim in the

Juvenile Court, or at any point in the proceedings when the

department or the judge could properly evaluate it.

Consequently, the claim is untimely and therefore waived. See

Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021).

6 Even assuming, arguendo, that the claim was preserved, the

father's argument is belied by the record. "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). "The

department must 'match services with needs, and the trial judge

must be vigilant to ensure that it does so.'" Id., quoting

Adoption of Lenore, 55 Mass. App. Ct. 275, 279 n.3 (2002).

"Nevertheless, heroic or extraordinary measures, however

desirable they may at least abstractly be, are not required."

Adoption of Lenore, 55 Mass. App. Ct. at 278. "A judge's

determination that the department made reasonable efforts will

not be reversed unless clearly erroneous." Adoption of West, 97

Mass. App. Ct. at 242, citing Adoption of Ilona, supra at 61-62.

Here, the judge's findings that the department made

"exhaustive efforts" to provide the father with appropriate

services, and the plethora of resources and assistance offered

to him, find ample support in the record. The department

tailored its interactions with the father to accommodate his

needs by breaking down and simplifying instructions;

communicating information in person, in writing, over text

message, and by voicemail; making multiple referrals to

7 specialized programming and providing hands-on assistance

filling out intake paperwork; sending appointment reminders and

advocating for replacement services when the father missed

appointments; and arranging services at no cost to the father.

Despite the department's efforts, the father did not

meaningfully engage in the services provided. He missed both

appointments for a neuropsychological evaluation (and later

refused to comply with an evaluation geared to better assess his

needs), he was terminated from the parent aide service for

noncompliance, he failed to follow through with the replacement

aide, and he was terminated from the free and virtual domestic

violence education program due to repeated absences. Moreover,

the father rebuffed the department's efforts by asserting that

he neither needed nor wanted the services provided. As the

judge noted when evaluating reasonable efforts, "[t]his is not a

case where a parent with significant limitations seeks out, or

is receptive to, assistance." Because the father "denied [his]

mental health needs by refusing both evaluation and treatment,

[he] cannot successfully argue that [the department's]

reasonable efforts failed to accommodate properly [his] mental

health needs." Adoption of Eduardo, 57 Mass. App. Ct. 278, 282

(2003).

Regarding the request for increased parenting time, the

judge found, and the record reflects, that additional visitation

8 time was offered to and refused by the father, and no further

pretrial action was taken by the father or his attorney to

address this specific request. Indeed, the department was

responsive to the father's scheduling needs throughout the case

by modifying the visitation schedule to accommodate his work and

lengthy commute when he brought such concerns to the

department's attention.

As to the ADA meeting,4 while the father asserts that an ADA

meeting was the best method to explore his needs, such a meeting

was only one of several tools available to the parties to

address his needs, and we discern no clear error in the judge's

findings that the department made reasonable efforts to

otherwise accommodate his cognitive limitations. See Adoption

of West, 97 Mass. App. Ct. at 242.

2. Termination of parental rights. "To terminate parental

rights to a child, the judge must find, by clear and convincing

evidence, that the parent is unfit and that the child's 'best

interests will be served by terminating the legal relation

4 The department, per its Disability Policy # 2022-01(I)(A), as in effect at the time of this case, defined an ADA meeting as "[a] meeting held between Department staff and a parent (and their counsel if applicable) when necessary to discuss a parent's disability-related needs and requests for a reasonable accommodation, or to review a disability-related complaint and discuss potential resolution." The department's definition of an ADA meeting was revised in 2023. See Disability Policy # 23- 04(II)(A). The revisions would not affect our analysis here.

9 between parent and child.'" Adoption of Luc, 484 Mass. 139, 144

(2020), quoting Adoption of Ilona, 459 Mass. at 59. "When

reviewing a decision to terminate parental rights, 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). "[T]he judge's assessment of the weight of the

evidence and the credibility of the witness is entitled to

deference." Custody of Eleanor, 414 Mass. 795, 799 (1993).

While the father contends that the judge prematurely

terminated his parental rights prior to a thorough exploration

of his disability-related needs and support network, the judge

made extensive findings of fact, supported by the record,

related to the father's cognitive limitations, their effect on

his parenting abilities, and the department's response to those

needs. Contrast Adoption of Chad, 94 Mass. App. Ct. 828, 829,

839-840 (2019) (further explication needed regarding mother's

mental disabilities before termination of parental rights

warranted). Moreover, the father's disability was not the sole

basis for the judge's determination. The judge also looked to

the father's inability to improve over time; his failure to

provide Isar with a stable home; his lack of compliance with the

action plan and ability to benefit from the services offered;

his history of domestic violence; his mental health; and his

overall inability to meet Isar's needs. These findings were

10 grounded in the evidence, and all support the judge's

determination that the father was unfit to parent Isar and that

his unfitness was likely to continue indefinitely.5

Decree affirmed.

By the Court (Blake, Walsh & Hodgens, JJ.6),

Clerk

Entered: October 1, 2024.

5 We note that the judge's finding that the father was unemployed at the time of trial was clearly erroneous, as it appears that he was employed in demolition. However, this does not impact our analysis.

6 The panelists are listed in order of seniority.