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-1078 ADOPTION OF ISHA. 1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parents of Isha, who was born on December 30, 2020,
appeal from decrees issued by a judge of the Juvenile Court
terminating their parental rights, dispensing with their consent
to adoption, and declining to order postadoption visitation.
Isha joins her parents in appealing from the decrees. In
addition to claiming that termination of parental rights was not
in Isha's best interests, the mother and Isha argue that several
of the judge's findings of fact are clearly erroneous, that
termination of the mother's parental rights was not properly
before the court, and that the judge erred in not ordering
postadoption visitation. Both parents assert that the
Department of Children and Families (department) failed to make
1 A pseudonym. reasonable efforts to reunify the family, and that the
department's adoption plan was inadequate because a home study
of the preadoptive parents had not been completed by the time of
trial. Lastly, the parents claim that the judge exhibited bias
against them by requesting that the department introduce several
abuse prevention orders obtained by the mother against the
father, and then depriving them of their right to due process by
relying on that evidence in reaching her conclusions. For the
reasons we discuss in more detail below, we conclude that the
judge did not abuse her discretion and acted properly in all
respects. We therefore affirm the decrees.
Background. Following a trial at which the mother, father,
and two department social workers testified, the judge issued
extensive findings of fact and conclusions of law. We summarize
the relevant facts, reserving certain details for our
discussion. The mother struggled for years with substance
misuse and addiction prior to Isha's birth. That struggle
contributed to her losing custody of her three older children.
During her pregnancy with Isha, the mother used illicit drugs
and was the victim of domestic violence perpetrated by the
father. Several days before Isha's birth, the mother alleged
that the father struck her with a firearm, and she obtained a
restraining order. When Isha was born, she tested positive for
2 fentanyl and marijuana, and the department took emergency
custody of her at the hospital.
Thereafter, on January 4, 2021, the department filed a
petition pursuant to G. L. c. 119, § 2, alleging that Isha was
in need of care and protection. The mother and father waived
their rights to a temporary custody hearing, and the department
was awarded temporary custody. The department then placed Isha
with her mother at Angel House, a family shelter for homeless
women recovering from drug and alcohol addiction. The two lived
there for approximately seven months. During that time, the
mother engaged in several therapeutic programs and made progress
toward maintaining sobriety. However, in August 2021, she
tested positive for marijuana, which caused her to be terminated
from the program. The mother was transferred to another
residential program, Genesis II, but was forced to leave that
program after again testing positive for marijuana in October
2021.
Meanwhile, in September 2021, the parents had agreed to a
conditional custody arrangement whereby the mother had temporary
custody as long as she remained at Genesis II, and the father
had supervised visits. After leaving Genesis II with Isha, the
mother moved into a motel with the father. This arrangement
violated the conditions of the mother's custody of Isha, and, as
a result, the department again obtained emergency custody of
3 Isha on November 15, 2021. Eventually, Isha was placed in the
foster home where she was residing at the time of trial.
After Isha's second removal from the mother, the mother and
father failed to make significant progress toward improving the
conditions that had led to Isha's removal. There were continued
concerns of domestic violence and substance misuse. These
issues impacted the parents' relationship with Isha. For
example, on one occasion in April 2022, the parents abruptly
canceled a scheduled visit with her. It subsequently came to
light that on that same visitation day the mother had contacted
the police and reported that the father was being aggressive
toward her and using substances.
Despite the department's concerns over missed visits, the
parents' sobriety, and their unhealthy relationship with each
other, the department worked with both parents to achieve the
goal of reunification. At one point, the department attempted
to facilitate the mother's placement with Isha in another
residential program, conditioned on the mother demonstrating a
commitment to complying with the program's requirements.
Although that placement did not materialize, the mother was
engaged in substance misuse treatment and claimed to have clean
drug screens during this time. However, the mother did not make
any substantial progress toward resolving her tumultuous
relationship with the father. The department continued to
4 receive several reports of domestic violence, and department
social workers periodically observed the mother with injuries.
Although the mother consistently denied that she was the victim
of domestic violence, she called the police to report that the
father had assaulted her in June 2022, and she obtained a
restraining order against him. The mother obtained another
restraining order in September 2022 after alleging that the
father had physically assaulted her. The father was charged
with assault and battery and other criminal offenses in
connection with these two incidents. The cases were open at the
time of trial.
In July 2022, the department changed Isha's permanency goal
to adoption. By this time, the mother's and father's rapport
with the department had become antagonistic. On one occasion in
September 2022, a department social worker visited the parents
at the motel where they were staying and later reported that the
parents would "lose their minds" when the social worker said
something with which the parents disagree. When the social
worker left, one of the parents shut the door on her, hitting
her leg. Neither parent attended Isha's medical appointments
even though, despite their claim to the contrary, they were
informed of the appointments and invited to attend. When, on
November 4, 2022, the department filed a notice of intent to
seek termination of the mother's and father's parental rights,
5 the relationship between the parents and the department remained
difficult.
At the time of trial, the mother was still residing with
the father. Although the mother had reported incidents of
domestic violence to the police and social workers, she denied
any physical abuse when she testified at trial. For his part,
the father did not accept any responsibility for his conduct,
was terminated from an intimate partner abuse program, and
blamed others for his history of domestic violence. The judge
found that neither parent had developed any insight into their
abusive relationship or had demonstrated how they would change
their behavior to protect Isha in the future.
In addition, the judge found that neither parent understood
how their substance misuse affected Isha. The mother began
using alcohol and drugs at the age of thirteen. Although she
had engaged in substance misuse treatment, sometimes
successfully, she was twice discharged from residential programs
due to her use of marijuana. The mother testified that she did
not believe that the use of marijuana amounted to a lapse of
sobriety. As the judge noted, the mother completed an
outpatient treatment program in April 2022, but did not follow
through with counselling or consistently attend Alcoholics
Anonymous (AA) meetings thereafter. The father similarly had
difficulty maintaining his sobriety. He testified
6 inconsistently at trial about his use of marijuana and alcohol
and, although he claimed to have been sober for two years
preceding the trial, the department was not able to confirm this
assertion, and there was no evidence to support it other than
the father's testimony.
Isha was almost eleven months old at the time she went to
live with the foster parents. She was developmentally delayed
and could not sit upright without assistance or hold a bottle by
herself. The foster parents, who want to adopt Isha, obtained
recommended services to address her complex medical needs. Isha
has been diagnosed with microcephaly, global developmental
delay, polymicrogyria (a brain malformation impacting motor
skills), and mild cerebral palsy. By the time of trial, Isha
had made significant progress. She could pull herself into a
sitting position with assistance and, with the use of leg braces
and an equipment trainer known as a Rifton Pacer, she could
stand. Isha was receiving early intervention services, weekly
physical therapy, and care from a neurologist and orthopedist.
The judge found that the foster parents have demonstrated a
strong commitment to Isha. At the conclusion of the trial,
Isha, who was then twenty-two months old, had been living with
the foster parents (also referred to as her preadoptive parents)
for thirteen months. The judge found that Isha will continue to
need caretakers who can assist her with daily activities
7 including walking, eating, and speaking, and that Isha will need
ongoing services to address possible seizures and vision
problems in the future. The judge also found that the
preadoptive parents have shown their ability to meet Isha's
current needs, and the judge concluded that they would continue
to do so in the future.
Discussion. The standard for termination of parental
rights involves a two-step analysis. A judge must determine
first that a parent is unfit, and second that the termination is
in the best interests of the child. See Adoption of Nancy, 443
Mass. 512, 515 (2005). We review the judge's decision to
terminate parental rights for an abuse of discretion. See
Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub
nom. George P. v. Hugo P., 526 U.S. 1034 (1999).
Here, the judge properly concluded, based on clear and
convincing evidence, that the mother was unfit to care for Isha,
and that termination of the parents' rights was in Isha's best
interests. 2 The parents' history of domestic violence, coupled
with their unaddressed substance misuse and lack of stability,
amply support the judge's conclusion that neither parent was in
a position to care for Isha at the time of trial nor would be
able to do so in the future. Moreover, contrary to the mother's
2 The father did not seek custody at trial. Instead, he argued that custody should be given to the mother.
8 assertion, the judge considered positive evidence of her ability
to parent Isha. The judge specifically noted the mother's
progress, albeit intermittent, in achieving sobriety and
completing multiple tasks set forth in the department's action
plan. Ultimately, the judge concluded that these gains were not
sufficient, and, in light of Isha's significant needs, neither
parent could adequately care for their daughter. Based on our
review of the record, the judge did not abuse her discretion in
reaching this conclusion.
We now turn to the parents' and Isha's specific arguments.
1. Alleged erroneous facts. The mother and Isha challenge
three of the judge's findings of facts as clearly erroneous.
They claim that the record does not support the judge's finding
that the mother had not consistently engaged in substance misuse
treatment, the judge incorrectly suggested that the mother did
not facilitate reentry into a residential program with Isha, and
the judge erred when she found that the mother had been made
aware of Isha's medical appointments. 3
3 Isha also argues that the judge's finding that she was not crawling as of October 2022 is clearly erroneous. We need not resolve this claim as there was ample evidence that Isha needed assistance to sit, stand, and eat at that time. Thus, even if we were to agree with Isha on this point, this minor discrepancy was not central to the ultimate issue of unfitness and, therefore, is immaterial. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003).
9 "A finding is clearly erroneous when there is no evidence
to support it, or when, although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed"
(quotation and citation omitted). Custody of Eleanor, 414 Mass.
795, 799 (1993). Here, the challenged findings are either
supported by the evidence or are immaterial errors.
First, there was ample evidence to support the judge's
finding that the mother's commitment to substance misuse
treatment was inconsistent. In particular, the mother was twice
discharged from residential programs due to her marijuana use,
and she did not regularly attend counselling or AA meetings.
The judge did not ignore evidence that the mother had made some
progress in achieving sobriety. In fact, the judge specifically
noted that the mother had completed several substance misuse
programs. The judge found, however, that despite this progress,
the mother had failed to obtain regular, consistent treatment
and had not benefited from the treatment and services she did
receive.
Next, the mother argues that the judge clearly erred in
faulting her for not enrolling in a third residential shelter
after Isha was removed from her care the second time. This
argument centers on the question whether the mother needed a
reunification letter from the department, which the mother
10 claims she did not receive. Our review of the testimony reveals
no error. In any event, assuming without deciding that the
judge erred in finding that the mother rather than the
department was at fault, this finding had little to no bearing
on the judge's ultimate finding of unfitness, which was based on
substantial evidence of noncompliance with treatment. See Care
& Protection of Olga, 57 Mass. App. Ct. 821, 824-825 (2003).
Lastly, regarding the mother's knowledge of Isha's medical
appointments, there was evidence that during a home visit in
June 2022, a department social worker provided the mother with a
list of Isha's upcoming medical appointments. The judge was
entitled to credit the social worker's testimony and, therefore,
despite the mother's and father's contrary testimony, this
finding of fact was not clearly erroneous. See Custody of
Eleanor, 414 Mass. at 799 ("the judge's assessment of the weight
of the evidence and the credibility of the witnesses is entitled
to deference").
2. Alleged failure to make reasonable efforts to reunify
family. Both parents contend that the department failed to make
reasonable efforts toward reunification. To begin with, as the
department argues in its brief, this issue is raised by the
parties for the first time on appeal, and, therefore, it is
waived. See Adoption of Yalena, 100 Mass. App. Ct. 542, 554
11 (2021). However, even if preserved, this argument is
unavailing.
It is well settled that "[b]efore seeking to terminate
parental rights, the department must make 'reasonable efforts'
aimed at restoring the child to the care of the natural
parents." Adoption of Ilona, 459 Mass. 53, 60 (2011), quoting
Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002).
"Reasonable efforts [are] generally understood to include
accessible, available, and culturally appropriate services that
are designed to improve the capacity of families to provide safe
and stable homes for their children and to ensure that parents
and other family members . . . are making progress on case plan
goals" (quotations and citation omitted). Care & Protection of
Rashida, 488 Mass. 217, 219 (2021).
Here, both parents were offered a variety of services to
improve their parenting skills, including treatment for domestic
violence and substance misuse. That the parents failed to take
consistent advantage of these services is not a basis for
concluding that the department did not fulfill its obligations.
See Adoption of Yalena, 100 Mass. App. Ct. at 554.
3. Alleged premature termination of mother's parental
rights. The mother and Isha argue that the question whether to
terminate the mother's parental rights was not properly before
12 the judge. This argument was first raised by the mother and
Isha in a motion to vacate the judgment, which was denied.
It is true that the trial, when initially scheduled,
concerned the father's petition for review and redetermination
pursuant to G. L. c. 119, § 26 (c). The father filed the
petition in April 2022, approximately five months after Isha was
removed from the mother's custody a second time. While that
petition was pending, on November 4, 2022, the department filed
a notice of intent to seek termination of the mother's and
father's parental rights. When the parties appeared in court
for trial a few weeks later, counsel for the department stated:
"As the Court and all parties are aware, we have filed a Notice
of Intent, so we . . . also will be asking the Court to
terminate rights today." There was no objection, and during the
subsequent trial the parties each addressed the question of the
mother's unfitness and whether termination of the mother's
rights was in Isha's best interests.
Given these circumstances, the motion to vacate the
judgment on the ground that the question whether to terminate
the mother's parental rights was not properly before the judge
was correctly denied. The mother had notice that the department
was seeking termination of her parental rights at the beginning
of the trial. As noted, there was no objection. Instead, the
13 mother proceeded to challenge the department's evidence and
advocate for herself and Isha.
4. The department's plan for adoption. As previously
noted, Isha was placed with the foster parents when she was
eleven months old. Isha requires caretakers who will ensure
that she receives specific services for her medical needs. The
foster parents demonstrated that they are capable of taking care
of Isha, have developed a strong relationship with her, and want
to adopt her. Accordingly, the department recommended that Isha
be adopted by the foster parents and referred the family for a
preadoptive licensing study (PALS). At the time of trial, the
PALS had not yet been completed. The judge nevertheless
concluded that adoption by the foster parents was in Isha's best
interests. The judge noted that the department's social worker,
Isha's early intervention worker, and a day care provider all
observed a positive and caring relationship between Isha and her
foster parents. In addition, the foster parents had indicated
their willingness to facilitate visits between Isha and the
parents and paternal grandparents if the foster parents were
permitted to adopt her. Although there were no other placement
resources for Isha, she and both parents argue that the judge
abused her discretion because the department's adoption plan had
not been finalized.
14 It is well settled that before terminating parental rights,
the judge must give "full and fair consideration to the
department's adoption plan." Adoption of Helga, 97 Mass. App.
Ct. 521, 529 (2020). However, "[t]he law does not require that
the adoption plan be 'fully developed' in order to support a
termination order, but it must provide 'sufficient information
about the prospective adoptive placement so that the judge may
properly evaluate the suitability of the department's
proposal.'" Adoption of Varik, 95 Mass. App. Ct. 762, 770
(2019), quoting Adoption of Willow, 433 Mass. 636, 652 (2001).
Here, in approving the department's recommendation that Isha be
adopted by the current foster parents, the judge specifically
found that the foster parents had demonstrated both the ability
and commitment to care for Isha, and that Isha had developed a
close bond with them. In view of these findings, which are
supported by the record, we discern no abuse of discretion in
the judge's approval of the department's adoption plan.
5. Postadoption visitation. The judge found that a
significant relationship existed between Isha and her parents,
and that continued contact with them was in Isha's best
interests. She therefore ordered that both parents be offered a
minimum of four visits with Isha per year until Isha was placed
in a preadoptive home, or the PALS of the current foster parents
was approved. The judge further ordered that once Isha was
15 adopted, the adoptive parents would have sole discretion in
approving any additional contact between the parents and Isha.
The mother argues that the judge abused her discretion by
leaving postadoption visitation to the discretion of the
adoptive parents. Isha makes the same argument and also
contends that the judge abused her discretion by denying her
motion for relief from judgment, which sought to clarify and
ensure posttermination and postadoption visits.
In determining whether to order posttermination or
postadoption visitation, a judge first determines whether
visitation is in the child's best interests. See Adoption of
Ilona, 459 Mass. at 63. The judge should consider the bond
between the child and the parent whose rights have been
terminated. In addition, where, as here, there is a family
waiting to adopt the child, the judge must determine whether the
child has a bond with the adoptive family. Where visitation is
in the best interests of the child, the judge also must
determine whether an order of visitation is warranted to protect
the child's interest in maintaining a relationship with the
biological parent. Id. at 64.
As noted, the judge found that Isha and the parents had a
close bond. The judge also found that the foster parents have a
close bond with Isha and had expressed their willingness to
facilitate a relationship between Isha and the parents. Nothing
16 in the record provides a basis on which to conclude that the
foster parents will act contrary to Isha's best interests in
this regard. Given these circumstances, we discern no abuse of
discretion in the judge's decision to leave future contact
between Isha and the parents to the judgment of Isha's adoptive
parents, or in the judge's denial of Isha's motion for relief
from judgment.
6. Alleged judicial bias and due process violations. The
mother and father assert that the judge erroneously admitted
five abuse prevention orders in evidence, and that this error
showed judicial bias, which undermined the proceedings and
deprived the parents of due process. They further argue that
the judge should have recused herself, and that the failure to
do so requires that we vacate the decrees. The parents did not
make any of these arguments at trial and, therefore, they are
waived. 4 See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338
(1997). Even if these claims had been preserved, they are
We briefly recount the circumstances surrounding the
admission of the orders. Before the last day of trial, the
court clerk informed the parties that the judge intended to
4 At trial, the parents objected to the admission of the orders solely on the ground that they were prejudicial and contained hearsay.
17 enter five abuse prevention orders obtained by the mother
against the father in evidence. Before the trial resumed,
counsel for the father requested clarification. The judge then
explained that the orders in question would be marked as "court
documents" and admitted in evidence. Id. The judge further
informed all counsel that, should they wish to recall witnesses
to make inquiries about the orders, they could do so. The
orders were then marked as exhibits over the father's objection.
Counsel for the father pursued the matter, asserting that
recalling witnesses at this point would be "problematic," and
arguing that that the orders contained prejudicial hearsay. The
judge overruled the objection, noting that the Department of
Probation had provided the orders to counsel at an earlier court
proceeding, and that information about the abuse prevention
orders was already in evidence.
Thereafter, the judge reversed course slightly and marked
the exhibits for identification. She then asked if "any counsel
is seeking to offer [the orders] into evidence." The attorney
for the department requested that the orders be admitted, while
counsel for the father and the mother objected. The objections
were overruled, and the orders were entered in evidence. The
judge offered counsel for all parties additional time if
necessary, and she again noted that there was no prejudice to
either the mother or the father because evidence of the
18 existence of the orders had already been introduced during the
proceedings.
As an initial matter, we discern no prejudice where, as the
judge noted, evidence of domestic violence and the existence of
the abuse prevention orders had already been introduced at
trial. Nor could there be any due process violations where
there was no prejudice, and where the judge twice offered
additional time to the parties to recall witnesses should they
choose to do so.
Next, the judge's conduct did not reveal judicial bias.
Our review of the record amply supports the conclusion that the
judge treated the parties even-handedly throughout the
proceedings, and that her decision to admit the orders did not
stem from any bias against the parents. Moreover, as the
department notes in its brief, the judge was obligated to
consider evidence of domestic violence and determine whether
such violence had a potential negative impact on Isha. See
Custody of Vaughn, 422 Mass. 590, 599-600 (1996).
Lastly, there is nothing in the record to support a
conclusion that the judge should have recused herself. The
absence of a request for recusal is significant. See Adoption
of Norbert, 83 Mass. App. Ct. 542, 547 (2013). The judge's
conduct should not be called into question without sound reason,
which does not exist here.
19 Conclusion. We affirm the decrees and the orders denying
the motion to vacate the judgment and the motion for relief from
judgment.
So ordered.
By the Court (Vuono, Neyman & D'Angelo, JJ. 5),
Clerk
Entered: December 4, 2024.
5 The panelists are listed in order of seniority.