Adoption of Octavia.

• Court: Massachusetts Appeals Court
• Decided: May 17, 2024
• Docket: 23-P-1138
• Status: Unpublished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-1138

ADOPTION OF OCTAVIA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found the mother

unfit to parent Octavia and terminated her parental rights to

the child. On appeal, the mother argues that the judge should

have excused her from attending the trial in person and instead

permitted her to attend by video conferencing, and should not

have drawn an adverse inference from the mother's failure to

appear and testify. We affirm.

Background. In 2021, about one year before Octavia was

born, the Department of Children and Families (DCF) became

involved with the mother while she was in a hospital giving

birth to her older daughter, Astrid.2 When the mother tested

positive for marijuana and disclosed that she had been living

1 A pseudonym.

2 Also a pseudonym. with a man who was a level 3 sex offender, a report pursuant to

G. L. c. 119, § 51A (51A report), was filed alleging neglect of

Astrid. After the mother agreed to live in a shelter with

twenty-four hour supervision, DCF's case was closed.

In July 2021, several 51A reports were filed and later

substantiated as to neglect of Astrid, who was then about one

month old. DCF took custody of Astrid. In connection with

Astrid's care and protection case, DCF referred the mother to

services, including a parent aide, and made recommendations for

housing, but the mother failed to follow through on those

services. In April 2022, the judge found the mother unfit to

care for Astrid and awarded permanent custody of Astrid to DCF.

Meanwhile, the mother had a sexual relationship with a man

who she later claimed was Octavia's father.3 That man was

physically and verbally abusive to the mother and forced her

against her will into prostitution and cocaine use. The DCF

social worker saw information on social media that the mother

was pregnant and asked her about it; the mother initially denied

it, but two months later admitted that she was pregnant. The

mother requested that DCF assign a different social worker

because that one made her "uncomfortable" by asking about her

3 That man adamantly denied that he was the father of Octavia. At the seventy-two hour hearing in this case, the judge allowed his motion to strike him as a party.

2 pregnancy, which the mother considered "none of [DCF]'s

business." During her pregnancy with Octavia, the mother was

homeless and "couch surfing" at various friends' homes.

In August 2022, the mother was admitted to a hospital for

pre-eclampsia; she tested positive for marijuana and was held

due to concerns for her mental health. When Octavia was born

later that month, DCF filed a care and protection petition and

the judge awarded custody of Octavia to DCF.

Following Octavia's birth, the mother was living in a

shelter for exploited women. By late September 2022, the mother

was evicted from the shelter for violating curfew and

disappearing for days at a time. During the pendency of

Octavia's care and protection case, the mother lived in at least

eighteen different residences and did not follow up with housing

referrals that DCF provided.

The mother was diagnosed with depression and began seeing a

therapist, but she was not honest with the therapist about

issues including her drug use and association with violent

people. The mother limited what information she would allow the

therapist to share with DCF. The mother told the social worker

that she had been prescribed an antidepressant by a psychiatrist

but would not disclose sufficient details to permit DCF to

confirm that information.

3 On at least one occasion the mother canceled a scheduled

visit with Octavia, stating that she did not have money to take

the train. The mother often reported to DCF that she had no

money, even on days when she received her government benefit

payments; in fact, those benefits were going to a friend who was

stealing the money. The social worker advised the mother to

file fraud charges against the friend and obtain a new Social

Security card.

In October 2022, the mother told the social worker that she

thought adoption was in the best interests of both Astrid and

Octavia. She admitted, "At this point I don't think I'm

stabilized . . . . I can't really do much for them right now."

In November the mother stipulated to termination of her parental

rights to Astrid and entered into an open adoption agreement.

At least twice, the mother told the social worker that she also

planned to sign an open adoption agreement for Octavia. Due to

the mother's lack of progress toward reunification with Octavia,

on November 21, 2022, DCF's goal for Octavia was changed to

adoption. DCF began looking for a family that would adopt both

Astrid and Octavia.

On December 29, 2022, a pretrial hearing was held by video

conference. The mother's attorney informed the judge that he

4 had twice sent the mother e-mails containing the link for the

video conference. The mother did not appear.

In January 2023, the social worker reminded the mother that

a foster care review meeting in Octavia's case was scheduled for

January 17. The social worker confirmed repeatedly that the

mother had the link to access the video conference of the

meeting. The mother did not appear.

The mother told the social worker that she was moving to

West Virginia where she could afford to rent a house with her

Social Security benefits. When the social worker expressed

concerns that the mother would miss visits with Octavia, the

mother replied that she would "figure something out." The next

day, the mother failed to confirm a visit with Octavia, and so

it was canceled. The mother told the social worker, "I'm not

planning on coming back up here until I'm sure I'm going to get

my kids back," then asked if she could get both children back if

she found a house in West Virginia. The social worker reminded

the mother that her rights to Astrid had been terminated and

that if she moved to West Virginia she would not be able to have

in-person visits with Octavia. On January 27, the mother took a

bus to West Virginia. Accompanying her on the move was the same

friend who had been stealing her government benefits.

Throughout the two months before trial, the mother repeatedly

5 told the social worker that she would buy a bus ticket to

Massachusetts when she received her benefit payment, and it was

the social worker's understanding that the mother had the money

to do so.

On February 17, 2023, Octavia was placed in a preadoptive

home with her sister Astrid. The judge found that Octavia and

Astrid "share a strong sibling bond with a lot of love," and

that Octavia is bonded to the preadoptive parents.

On February 21, 2023, the mother moved in limine to be

permitted to participate in the trial by video conference.

Unsupported by affidavit, that motion asserted that the mother

did "not have the financial ability to travel to Massachusetts"

for the trial. The judge denied the motion.

On the original trial date, February 27, 2023, the mother

was not present. Her counsel represented that the mother had

received her monthly Social Security disability payment that

same day and did not have enough time to arrange transportation

to Massachusetts. Counsel renewed the motion for the mother to

be permitted to participate at trial by video conference, and

the judge replied that the mother "chose to go to West Virginia,

knowing we had this case scheduled for trial." The judge ruled,

"The court is not going to allow virtual participation for a

parent. Just the assessment of credibility, I have found, is

6 very difficult to do by [video conference]. And it is so

important in a termination case that I am just not comfortable

doing that." At the request of the mother's counsel, the judge

continued the trial until March 30, choosing that date because

the mother's counsel said that it would be just after the mother

received her next benefit payment.

Immediately after that hearing, the social worker texted

the mother and impressed on her the importance of appearing at

the March 30 trial and trying to reunify with Octavia.

At the beginning of trial, the mother's counsel informed

the judge that he had received an e-mail that morning from the

mother stating that she would not be able to attend trial

because she did not have the financial ability to do so. The

mother did not renew her motion to be permitted to testify by

video conferencing.

As of trial, the mother was not in compliance with her DCF

action plan. She had often been late for visits with Octavia,

had not made herself available for visits with Octavia at any

time after January 25, 2023,4 and missed more than fourteen of

nineteen scheduled meetings with the social worker. The mother

did not obtain a comprehensive psychological assessment or

4 The social worker testified that the mother did not ask for video-conference visits with Octavia from West Virginia.

7 parenting assessment, access substance abuse treatment,

participate in therapy enough to derive any benefit, attend

parenting groups, or avail herself of domestic violence

services.5 The mother did not appear at trial, and the judge

drew an adverse inference from her failure to do so. The judge

concluded that the mother was unfit to parent Octavia and it was

in Octavia's best interests that the mother's parental rights be

terminated.

Discussion. 1. Denial of the mother's motion to

participate at trial by video conference. The mother argues

that the judge should have excused her from attending the trial

and instead permitted her to participate by video conference.

We are not persuaded.

A standing order of the Juvenile Court provides that a

hearing on termination of parental rights "shall be held in

person," except that it "may be held virtually in a specific

case in the discretion of the presiding judge." Juvenile Court

Standing Order 1-22(III)(A)(2) (2022). We review the judge's

ruling for an abuse of discretion, which occurs when a decision

"amounts to a 'clear error of judgment' that falls 'outside the

range of reasonable alternatives.'" Adoption of Xarissa, 99

5 The mother signed no releases for verification of any services in West Virginia, and the judge found that she received no significant services there.

8 Mass. App. Ct. 610, 616 (2021), quoting Adoption of Talik, 92

Mass. App. Ct. 367, 375 (2017).

Putting aside the fact that the mother did not raise during

trial her request to participate by video conference, we discern

no abuse of discretion in the judge's pretrial ruling.

"Evaluating a witness's credibility is one of the most difficult

tasks facing a trier of fact . . . [and] [p]ersonal observation

of a witness aids immeasurably this process." Adoption of

Parker, 77 Mass. App. Ct. 619, 623 (2010), quoting Commonwealth

v. Bergstrom, 402 Mass. 534, 548 (1988). The judge properly

exercised her discretion when she ruled that the mother's in-

person attendance at trial would aid the judge in performing the

difficult task of assessing the mother's credibility.

The mother contends that the judge's denial of the mother's

motion to testify at trial by video conferencing was based on

the judge's "personal idiosyncrasy." On the contrary, the

judge's exercise of her discretion was in accordance with the

Juvenile Court standing order. At oral argument, the mother

further argued that the judge's statement that she would not

"allow virtual participation for a parent" implied that the

judge was treating the mother differently from other witnesses

because she was a "parent." We discern no such bias in the

judge's exercise of her discretion, especially because the two

9 witnesses, DCF social workers, who did testify at trial appeared

in person.

For the first time on appeal, the mother argues that the

judge's ruling requiring the mother to appear in person at trial

violated her constitutional rights to due process and equal

protection because she is "indigent." Because those

constitutional arguments were not raised at trial, they are

waived. See Adoption of Ursa, 103 Mass. App. Ct. 558, 570

(2023). Beyond that, on the record before us, we could not

determine the mother's indigency. In her motion in limine and

through her counsel on the morning of trial, the mother asserted

that she did not have the money to travel to Massachusetts. In

contrast, as the mother's counsel represented to the judge on

the original trial date and the social worker testified at

trial, the mother repeatedly asserted that she would have the

money once she received her benefit payments. None of those

assertions by the mother were supported by affidavit, and the

mother never filed a motion under the indigent court costs law,

G. L. c. 261, § 27C (4), for funds for travel expenses.6 If a

parent is indigent, that might well entitle the parent to funds

for travel expenses, but it would not undermine the judge's

6 Such a motion would have had to have been supported by an affidavit of indigency, G. L. c. 261, § 27B.

10 discretion under the Juvenile Court standing order to require an

in-person trial. Cf. Adoption of Edmund, 50 Mass. App. Ct. 526,

529-530 (2000) (denial of incarcerated father's repeated

requests to participate at trial by telephone conferencing

violated due process, where "no other procedure to respond was

afforded to him").

Moreover, the mother has not shown prejudice, because she

has not pointed to any specific evidence of her unfitness or

Octavia's best interests that she could have rebutted had she

participated in the trial by video conference. Cf. Adoption of

Edmund, 50 Mass. App. Ct. at 531 (remanding to permit

incarcerated father precluded from participating at trial by

telephone to submit affidavit responding to DCF's evidence).

Indeed, the mother does not contest any of the judge's findings

that the mother is unfit and that Octavia's best interests will

be served by terminating the mother's parental rights. 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).

2. Adverse inference. The judge drew an adverse inference

from the mother's failure to appear at trial, stating:

11 "The adverse inference I draw is that if [m]other were here and forced to testify under oath, she would testify that she at this time lacks stable housing, is not engaged in any services -- for example, therapy, parent nurturing classes, psychiatry -- that she is no longer on prescribed medication, and that she is not currently fit and able to care for [Octavia]" (emphasis added).

We review the judge's decision to draw such an adverse inference

for an abuse of discretion. See Adoption of Helga, 97 Mass.

App. Ct. 521, 526-527 (2020).

We discern no abuse of the judge's discretion. In the

context of the evidence that the mother had moved to West

Virginia just before trial without making efforts to visit

Octavia, the judge could reasonably conclude that the mother's

failure to appear for trial "was evidence that she was not

making efforts to be reunited with [Octavia]." Adoption of

Helga, 97 Mass. App. Ct. at 526. See Adoption of Talik, 92

Mass. App. Ct. at 370-373. It was within the judge's discretion

to conclude that the mother's assertion that she could not

afford to attend trial was not "an adequate explanation."

Adoption of Helga, supra. Contrast Adoption of Patty, 489 Mass.

630, 645 (2022) (judge abused discretion in drawing adverse

inference against parent for not participating in video-

conference trial, where parent's absence was attributable to

inadequate explanation of video technology).

12 The mother argues that when, in drawing the adverse

inference, the judge found that the mother would have testified

"that she is not currently fit and able to care for [Octavia],"

the judge abused her discretion because that testimony would

have essentially amounted to a "stipulat[ion]" to termination of

the mother's parental rights. We read the judge's finding to

mean that, had the mother testified, she would have admitted to

her many failures as a parent to Octavia which led to the

conclusion that she was unfit, not that she would have

necessarily uttered the words "not currently fit." Beyond that,

as Octavia points out, the inference was essentially cumulative

of the trial evidence that the mother had said that she planned

to stipulate to termination of her parental rights as to

Octavia, as she had as to Astrid, and that she "c[ould]n't

13 really do much" for either child.

Conclusion. Accordingly, the decree terminating the

mother's parental rights to Octavia is affirmed.

So ordered.

By the Court (Desmond, Hand & Grant, JJ.7),

Assistant Clerk

Entered: May 17, 2024.

7 The panelists are listed in order of seniority.