ADOPTION OF MORGAN (And Two Companion Cases).

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-820

ADOPTION OF MORGAN (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the mother

was unfit to parent Morgan, Braden, and Ava (collectively, the

three children), and that each of their best interests would be

served by the termination of her parental rights, but ordered

visits between the mother and the three children to be conducted

posttermination at least every other month and postadoption

twice per year. On appeal from the decrees, the mother does not

contest the judge's finding of unfitness, but argues that her

due process rights were violated when, after she failed to

appear for trial, the judge declined to grant a continuance.

1Adoption of Braden and Adoption of Ava. The children's names are pseudonyms. At the time of trial, two older siblings were still subjects of the care and protection petition; they subsequently turned eighteen, aged out of the statutory system, and are not parties to this appeal. See G. L. c. 119, § 26. The mother further argues that because the judge found a

sufficient bond between the three children and the mother to

order posttermination and postadoption visits, the outcome of

the trial might have been different had she been present. We

affirm.2

Background. The mother has nine biological children, of

whom the three children, Morgan, Braden, and Ava, are the

youngest. Dating back to 2000, there have been hundreds of

reports alleging abuse or neglect of the three children or their

older siblings filed pursuant to G. L. c. 119, § 51A (51A

reports), many of which were supported.

On January 13, 2021, a 51A report was filed alleging

neglect of one of the three children's older siblings. Two days

later, the Department of Children and Families (DCF) initiated

this care and protection proceeding as to the three children and

older siblings who are no longer involved in this proceeding.

DCF was granted temporary custody of the three children, then

ages eleven, five, and two. Morgan and Braden were initially

placed with a paternal aunt, and Ava was placed with a foster

mother. After their removal, three more 51A reports were filed

alleging neglect and abuse of the three children and sexual

2 The judge also terminated the father's parental rights to the three children; he has not appealed.

2 abuse of Braden, based on what was learned about what had

happened to them while in the parents' custody. After an

investigation, the allegations of neglect and physical abuse of

the children were supported, as were the allegations of sexual

abuse of Braden by an unknown perpetrator.

When the three children were removed from their parents'

care, Morgan had not seen a doctor in four years, and Braden and

Ava had not seen one in about fifteen months. Morgan has

diagnoses including severe asthma, adjustment disorder with

mixed anxiety and depressed mood, chronic posttraumatic stress

disorder (PTSD), and attention deficit hyperactivity disorder

(ADHD). Braden has been diagnosed with adjustment disorder with

mixed anxiety and depressed mood, PTSD, and ADHD.

In September 2021, DCF changed its goal for the three

children to adoption. Morgan was removed from the paternal

aunt's home in December 2021, and has since been in several

residential placements and engaged in multiple therapeutic

interventions. Braden was removed from the paternal aunt's home

in October 2023, and has since been in several residential

facilities. After two different placements with paternal

relatives, Ava was returned to the foster home where she had

been placed in early 2021, and that foster mother has since

become her preadoptive mother.

3 The docket reflects that the mother failed to appear for

many pretrial hearings and scheduled trial dates. On one such

trial date, May 1, 2023, which had been scheduled to start late

to accommodate the mother's methadone treatment, the mother did

not appear. Trial began and continued in her absence for six

nonconsecutive days. On the seventh day, June 5, 2023, the

mother appeared and requested that her counsel withdraw, then

requested appointment of new counsel. The judge attempted to

find counsel for the mother, but was unsuccessful. On the

eighth trial day, the mother again did not appear, and the

father's attorney reported that the mother was in the hospital.

The judge declared a mistrial and appointed new counsel for the

mother.

Beginning on November 25, 2024, the case was tried before a

different judge. On the first day of trial, the mother was not

present and her counsel orally moved for a continuance, stating,

as discussed below, that the mother was in a residential

substance abuse treatment program. The judge denied the

continuance and trial proceeded in the mother's absence. The

next day, the mother was again absent and her counsel informed

the judge that she had instructed him to move to withdraw as

counsel and for another continuance. The judge denied both

motions.

4 Based on the evidence at trial, the judge made detailed

findings as to the mother's unfitness to parent the three

children, based on issues including her history of mental health

disorders, substance use, and domestic abuse involving the

father in the presence of at least one of the older siblings.

The judge also found that the mother had abused and neglected

the three children and their older siblings, including by making

Morgan and two older siblings watch a video recording of

Braden's being sexually abused. The mother failed to accomplish

tasks set forth in DCF's action plan, including attending home

visits, signing releases, submitting to drug screens, and

undergoing psychological testing. On many occasions, the mother

failed to attend scheduled visits with the three children.

Discussion. The mother argues that her due process rights

were violated when the judge proceeded with trial in her absence

and denied her requests for a continuance, and the fact that the

judge granted posttermination and postadoption visitation shows

that "the outcome of the case might have been different" if the

mother had been present at trial.3 We are unpersuaded.

3 On appeal, the mother does not argue that the trial judge erred in denying her counsel's motion to withdraw. We do not reach that issue, but, if we did, we would find no abuse of discretion. See Adoption of Valentina, 97 Mass. App. Ct. 130, 134 (2020). In denying the motion for counsel to withdraw, the judge noted that counsel was about to begin cross-examination of

5 "The decision on whether to continue any judicial

proceeding is a matter entrusted to the sound discretion of the

judge, and the judge's decision will be upheld absent an abuse

of that discretion." Adoption of Gillian, 63 Mass. App. Ct.

398, 409-410 (2005). We reverse the decision to deny a

continuance only where we find that "the judge made a clear

error of judgment in weighing the factors relevant to the

decision, such that the decision falls outside the range of

reasonable alternatives." Vazquez Diaz v. Commonwealth, 487

Mass. 336, 345 (2021), quoting L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014). In addition, "[s]peedy resolution of

cases involving issues of custody or adoption is desirable,"

Care & Protection of Rashida, 488 Mass. 217, 232 (2021), quoting

Adoption of Emily, 25 Mass. App. Ct. 579, 581 (1988), and a

judge may consider "[o]ther interests, specifically the

paramount interests of the children involved," in determining

whether a requested continuance should be allowed, Care &

Protection of Quinn, 54 Mass. App. Ct. 117, 122 (2002).

By the time the mother requested the continuance on

November 25, 2024, the case had been pending for almost four

years. The mother points to the statements of her counsel

the adoption social worker and "it would be a greater disservice to Mother to allow her to proceed pro se."

6 informing the judge that the mother was "in a residential

substance abuse treatment program, and I've spoken with her and

the admissions counselor at the program. She's been at [the

program] . . . since November 5th." The mother, however, has

never supported that claim with any affidavit or treatment

records, even though the case would not be decided for at least

two more weeks while the judge waited for further motions in

limine. No showing was made that either that residential

program or the purported hospitalization in May 2023 was

involuntary or medically necessary, rather than a last-ditch

attempt to delay the trial. The judge found that "Mother and

Father engaged in dishonest, dilatory conduct to delay the trial

for years and induce the first mistrial. Parents were absent

without excuse from most court hearings, and Parents did not

attend a single moment of the present 2024 trial."4 In light of

the mother's unbroken record of missing scheduled first days of

trial seven times, four times without any excuse, we discern no

4 The judge drew an adverse inference from the mother's failure to attend the trial. The mother did not argue in her appellate brief that the judge was not permitted to do so, though her counsel raised the issue for the first time at oral argument. In those circumstances, we "need not pass upon" the issue. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). If we did consider it, we would find no abuse of discretion. See Adoption of Helga, 97 Mass. App. Ct. 521, 526- 527 (2020).

7 abuse of the judge's discretion in denying the mother's motion

for another continuance on November 25, 2024, and a second

motion on the following day. Contrast Adoption of Patty, 489

Mass. 630, 631-633, 645-647 (2022) (parent's due process rights

violated where absence from videoconference trial attributable

to inadequate explanation of video technology, failure to assist

parent with access to technology used by others, and

technological problems); Adoption of Whitney, 53 Mass. App. Ct.

832, 838-839 (2002) (incarcerated father's due process rights

violated where he was not permitted to participate in trial

despite his imminent release from prison).

Nor do we find any merit to the mother's argument that the

outcome of the case might have been different had she been

present at trial. The mother has not set forth any information

that she would have provided, had she participated in the trial,

that could have rebutted either the evidence of her unfitness or

the evidence that termination of her parental rights served the

three children's best interests. Contrast Adoption of Whitney,

53 Mass. App. Ct. at 837 & n.4 (father recently released from

incarceration supported motion for new trial with affidavit

seeking to rebut judge's adverse findings with his own testimony

and other evidence); Adoption of Edmund, 50 Mass. App. Ct. 526,

529-531 (2000) (remanding to permit incarcerated father

8 precluded from telephone participation at trial to submit

affidavit responding to DCF's evidence). We note that the

judge's "'specific and detailed' findings," which the mother

does not challenge as erroneous, "demonstrate [the mother's]

parental unfitness clearly and convincingly." Adoption of

Jacob, 99 Mass. App. Ct. 258, 262 (2021), quoting Custody of

Eleanor, 414 Mass. 795, 799 (1993). Finally, we note that the

judge’s conclusion that termination of the mother’s parental

rights served the three children’s best interests was supported

by clear and convincing evidence. See Adoption of Luc, 484 Mass.

139, 144 (2020).

Conclusion. Accordingly, the decrees terminating the

mother's parental rights to the three children are affirmed.

So ordered.

By the Court (Ditkoff, Hand & Grant, JJ.5),

Clerk

Entered: July 22, 2026.

5 The panelists are listed in order of seniority.