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-850
ADOPTION OF ODILE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found the
mother unfit to parent her child, Odile, and terminated her
parental rights.2 On appeal, the mother challenges the judge's
finding of current unfitness and the decision to terminate her
parental rights. The mother also argues that the judge erred
and violated her due process rights by allowing the foster
mother to attend the entirety of the 2021 hearing and the 2024
trial, and that the Department of Children and Families
(department) made reasonable efforts toward reunification. We
affirm.
1 A pseudonym.
2The father is not a party to this appeal. He stipulated to unfitness and the termination of his parental rights at the 2021 hearing on the merits. 1. Background. We summarize the facts as found by the
judge, who issued comprehensive, detailed findings of fact and
conclusions of law.
A hearing on the merits (hearing) was held in 2021. The
mother requested that all nonparties, including the foster
mother, be sequestered; the judge denied her request. The
mother continued to object to this ruling throughout the
hearing. Following the hearing, the judge found that the mother
was currently unfit, but that the department had not "met its
burden by clear and convincing evidence that said unfitness is
likely to continue into the indefinite future to a near
certitude."
A review and redetermination and termination of parental
rights trial (trial) occurred in 2024. At trial, the judge
denied the mother's motion to sequester all nonparty witnesses.
After trial, the judge found that the mother was currently
unfit, that the unfitness was likely to continue into the
indefinite future to a near certitude, and that the department's
goal of adoption was in Odile's best interests. The judge's
order provided for four supervised posttermination and four
supervised postadoption visits per year between the mother and
Odile.
2 The mother has two children, an older son, and the subject
child.3 The mother became involved with the department in July
2018 after she brought her son to the hospital because he "fell
out of their second-story apartment window." The son is in his
father's custody, and the mother has supervised visitation.
The mother and Odile's father4 were in a relationship for
two years prior to Odile's birth. The mother has a history of
"engaging in violence in her relationships." While with her
son's father, she applied for and obtained a G. L. c. 209A abuse
prevention order after a physical altercation between them.
Although she testified that the father had a short temper, she
denied the presence of domestic violence. The judge did not
credit the mother's denial.
Odile's birth was traumatic. She suffered a "left clavicle
fracture and right arm fracture," and was diagnosed with Erb's
palsy. Odile was in the neonatal intensive care unit for
approximately two weeks.
At around three months old, Odile suffered "inflicted
injuries from an unknown person." The injuries were discovered
3 The children do not have the same father.
4 The father also has a history with the department, and lost custody of his oldest child because of neglect and physical abuse. The mother testified that she knew about the father's involvement with the department but "denied knowing the extent of his other child's . . . injuries," until after Odile was injured. The judge did not credit this testimony.
3 when the mother brought Odile to the hospital, after noticing
that she was "warm to the touch . . . [and] didn't want to eat a
lot," and "wasn't moving" her right arm "as she should." Odile
was in the care of her father the day the injuries were
discovered. Odile was seen by an expert in child abuse
diagnoses, who reviewed x-rays and CT scans and concluded that
Odile had a "fractured forearm, fractured ribs, fracture of the
right wrist, fracture of the left foot, and bruising on the left
side of her forehead and the right side of her back." She also
suffered "intracranial injuries accompanied by retinal
hemorrhages." The expert opined that the "injuries occurring
after birth were most likely child abuse." The mother did not
have an explanation for how the injuries had occurred besides
the "difficult birth." The judge found that Odile's injuries
were "the direct result of either abuse or gross neglect by [the
m]other."
After Odile was discharged from the hospital, she was
placed in a foster home.5 At that time, she "suffered from
seizures. Her arm was in a cast, she had broken ribs, fracture
on her foot, and was not responsive to stimulus." These
5 The foster home is Odile's preadoptive placement.
4 conditions required extensive follow-up care, and the injury to
her eyes will require surgery.6
The mother was initially "not cooperative" with the
department's investigation of a report under G. L. c. 119,
§ 51A, alleging physical abuse of Odile by the father. She did
not allow her son to be screened for injuries, nor did she want
her son's father to be notified about Odile's injuries. At an
interview with the department, when asked how she thought
Odile's injuries occurred, the mother said that the "[f]ather
told [her] that he placed [Odile] on a sectional couch and left
both [Odile] and [her son] . . . in the living room . . . [and
her son] was swinging a toy around, inferring that [her son] hit
[Odile] with the toy." In his department interview, the father
denied blaming the mother's son, and stated that "nothing
unusual happened on the day Odile was brought to the hospital."
The judge did not credit either of their accounts.
The mother testified that she was not concerned about the
father hurting Odile until she knew the extent of the father's
eldest child's injuries. At the hearing, the mother refused to
blame the father for the injuries because she did not see the
father abuse "any children." However, at the trial, the mother
6 The mother does not want Odile to have the eye surgery because she felt that she "did not really need it."
5 testified that it was the father who injured Odile, but the
judge found that these statements were "self-serving at best."
The mother participated in some services but failed "to be
transparent with [the department] regarding therapy and her
relationships." The mother "represented to the [department]
that she was in therapy when in fact she was not." She also
withheld information from the department about her dating
relationships. Approximately eight months before the trial, the
mother began a new relationship but did not disclose it to the
department until a week before the trial started. The judge
found that the mother is "resistant to acknowledging that her
relationships with various men are an issue that reflect on her
ability to parent."
The mother was also not forthcoming about where she was
living. After Odile was removed from the mother's custody, she
was evicted. The mother then lived with the father for a few
months, until she moved in with the maternal grandmother, where
she lived at the time of trial. Around December 2022, the
mother changed her address and "planned to move in with a male
friend, but the move fell through." Although she never moved,
she continued to use the address for filings with the Probate
and Family Court regarding her son and did not "provide
sufficient information about the future roommate to the
6 [d]epartment." She did not cooperate with the department's home
visits until July 2022.
The mother has struggled with her mental health and is
diagnosed with depression, posttraumatic stress disorder,
anxiety, social anxiety, and bipolar disorder. She was in and
out of therapy due to insurance lapses, but the judge did not
credit the mother's claim that she could not afford health
insurance and was otherwise ineligible for MassHealth. She
testified that she did not think therapy or medication was
necessary because she has "always been able to control" her
mental health. In April 2021, the mother had a psychological
evaluation, but did not provide the report to the department
until the day before the hearing. The evaluation recommended,
in part, that the mother use a mood journal, but she did not do
this until a few weeks before the trial.
Before the hearing, the foster mother "[p]rovided extra
visits . . . shared photos and updates . . . [and] allowed [the
mother] to attend doctor visits without [the department]
present." This stopped after the hearing. The mother had four
hours of visitation with Odile monthly, and it increased to six
hours in February 2024.
2. Discussion. a. Unfitness and the termination of the
mother's parental rights. "To terminate parental rights to a
child, the judge must find, by clear and convincing evidence,
7 that the parent is unfit and that the child's 'best interests
will be served by terminating the legal relation between parent
and child.'" Adoption of Luc, 484 Mass. 139, 144 (2020),
quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). "We give
substantial deference to the judge's findings of fact and
decision, and will reverse only 'where the findings of fact are
clearly erroneous or where there is a clear error of law or
abuse of discretion.'" Id. "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.'" Custody of Eleanor, 414
Mass. 795, 799 (1993), quoting Building Inspector of Lancaster
v. Sanderson, 372 Mass. 157, 160 (1977).
The mother argues that the "judge's findings and the record
. . . do not support the conclusion that [the m]other is
currently unfit because they rely on stale evidence, are
unsupported by the record, clearly erroneous and an abuse of
discretion." We disagree.
The mother contends that the judge abused her discretion
by relying on the mother's "hesitancy" to suggest that the
father caused the child's injuries because "she had no knowledge
of his past abuse and was not home when the injuries occurred."
However, the judge did not credit this testimony. A judge's
8 finding on witness credibility is "quintessentially the domain
of the trial judge [so that (her)] assessment is close to immune
from reversal on appeal except on the most compelling of
showings." Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496
(2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536
(1995). Here, the judge was in the best position to determine
credibility and did not abuse her discretion by considering the
mother's knowledge of the father's past abuse and her denial
thereof in the evaluation of her unfitness. See id.; Adoption
of Larry, 434 Mass. 456, 471-472 (2001) (failure of mother to
protect child from father's physical abuse probative of mother's
parental unfitness).
Additionally, the mother contends that "there was no new
evidence during the [trial] regarding" the cause of Odile's
injuries, and therefore the finding of unfitness is based on
stale evidence. However, "[i]n review and redetermination
hearings, the judge does not start with a blank slate, but
builds on findings established in the preceding stages." Care &
Protection of Erin, 443 Mass. 567, 570 (2005). A judge "may
consider past conduct to predict future ability and
performance." Adoption of Katharine, 42 Mass. App. Ct. 25, 32-
33 (1997). Therefore, limited reliance on stale evidence may be
appropriate where it is indicative of a larger pattern of
conduct that extends to the present. See Adoption of Yvonne, 99
9 Mass. App. Ct. 574, 581 (2021). There was no error in
considering the evidence about Odile's injuries from the
hearing, as it would be "inefficient . . . to reestablish by
proof facts already once established and not since altered."
Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986).
The mother next argues that the judge erred by terminating
her parental rights because of her "alleged inconsistent
engagement with services, [and] failure to address mental health
concerns, or maintain transparency." However, the record
supports the judge's findings that the mother did not
consistently comply with the department's action plans.
Although the mother was in therapy at times, she was not
transparent and "represented to the [department] that she was in
therapy," even when she was not. As discussed supra, she did
not provide the department with her psychological evaluation
until the day before the hearing. She was inconsistent about
whether she believed she needed to be in therapy and did not
engage in any other mental health services. Because these
findings are supported by the record, it was not error for the
judge to rely on her inconsistencies in treatment and lack of
transparency with the department. See Adoption of Serge, 52
Mass. App. Ct. 1, 8 (2001) ("mother's lack of meaningful
participation in recommended services was also relevant to the
question of her fitness"). And contrary to the mother's
10 assertions, the judge drew the required nexus between the
mother's "failure to partake" in services and the impact on
Odile, finding that the mother's lack of consistency in service
engagement and inability to be transparent with the department
constituted "grievous shortcomings" that would "impact[]
Mother's insight and ability to make sound choices regarding
[Odile's] safety and wellbeing."7
The mother contends that the finding that she "had
previously been prescribed medications for her mental health,
but refused to take them" was erroneous. She claims that she
stopped taking her one prescribed medication because she was
"unable to wake up for emergencies when taking it," and the
medication was for sleep, not her mental health. Even assuming
this was error, its exclusion would not have changed the
outcome, and therefore, any error was harmless. See Adoption of
Ilian, 91 Mass. App. Ct. 727, 730 (2017) (considering error in
"context of all of the evidence, we cannot say that the judge
7 As an example of the mother's lack of insight that could place Odile at risk, the judge noted that the mother failed to disclose her significant relationship with "Nicholas" to the department for proper vetting until one week before the trial. The judge found that the mother, who "hope[d] [Nicholas was] telling her the truth" about his demographic information, "demonstrates very little insight as to how this could affect [Odile] if she [was] returned to her care." The judge made similar findings concerning the mother's online relationship with a man Odile referred to as her "friend."
11 abused her discretion or committed legal error in the ultimate
decision to terminate the [mother's] parental rights").
The mother next contends that the judge "overstated the
degree of Odile's needs." However, Odile's conditions required
extensive follow-up care and the injury to her eyes required
surgery. Odile is also continually monitored for a seizure
disorder and must have "rescue medication" in case a seizure
happens again. A judge may "use past conduct, medical history,
and present events to predict future ability and performance as
a parent." Care & Protection of Bruce, 44 Mass. App. Ct. 758,
761 (1998). The mother's lack of understanding of the severity
of Odile's injuries supported the judge's finding of unfitness.
See Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012)
(unfitness finding was supported by mother's "limited
understanding" of child's medical diagnoses).
The mother further claims that it was an error to terminate
her parental rights due to her "failure to attend medical
appointments," and that the finding that the mother "could have
attended [the appointments] she missed with the help of her
support network" was erroneous. Although the finding that the
mother missed all the appointments in Worcester is not supported
by the record, it was a harmless error, as the mother was
inconsistent in attending Odile's medical appointments. The
social worker testified that the mother had missed several
12 medical appointments, including one in Worcester. And the judge
did not credit the mother's testimony that she missed these
appointments due to lack of transportation. "We accord
deference to a trial judge's assessment of the credibility of
witnesses and the weight of evidence." Adoption of Olivette, 79
Mass. App. Ct. 141, 157 (2011).
The mother argues that the evidence "regarding unstable
housing four years before trial was stale and alleged
instability of [the m]other's current housing was unsupported by
the record and clearly erroneous." The mother acknowledges that
she was evicted after Odile's removal, but states that she has
lived in the same home since March 2020. However, the judge did
not solely rely on the mother's eviction. She also found that
the mother was not "forthcoming or cooperative with the
[d]epartment in terms of home visits or updated contact
information," and noted that the maternal grandmother, with whom
the mother lived, was a caretaker of Odile around the time of
her injuries. Any error was harmless because it did not
contribute significantly to the judge's ultimate unfitness
finding. See Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020)
("judge's conclusion that the mother was unfit was clearly and
convincingly supported by the judge's [other] subsidiary
findings").
13 In sum, we discern no clear error of law or abuse of
discretion in the judge's unfitness determination and the
decision that termination of the mother's parental rights was in
the best interests of Odile. See Adoption of Xarissa, 99 Mass.
App. Ct. 610, 615-616 (2021).
b. Foster mother's attendance at the two proceedings. The
mother contends that allowing the foster mother to attend the
entirety of the hearing and the trial was "an error of law, a
violation of [the m]other's due process rights, and contrary to
Odile's best interests." She argues that the "'right to attend'
in G. L. c. 119, § 29D does not allow a foster parent access to
the entirety" of the proceedings. It is well established that
the decision as to whether or not to sequester witnesses during
care and protection proceedings is a matter entrusted to the
discretion of the trial judge. See Adoption of Jacob, 99 Mass.
App. Ct. 258, 269 (2021). Although it may be better practice to
sequester a witness, including a foster parent, until after they
testify, here, there was no prejudice to the mother. See
Adoption of Sherry, 435 Mass. 331, 336 (2001) ("we need not
disturb a judgment when error did not affect the outcome").
The mother argues she was harmed by the change in her
relationship with the foster mother as a result of her presence
at the hearing, because the judge considered the mother's
failure to attend all Odile's medical appointments in her
14 finding of unfitness. However, the mother still had the ability
to attend Odile's medical appointments with the department's
supervision. Additionally, the mother did not lose any of her
visits with Odile, as she continued to have visits supervised by
the department, and the judge's order provides for those visits
to continue.
Although the judge found that there was a change in the
mother and the foster mother's relationship after the hearing,
she did not rely on this to find the mother unfit. See Adoption
of Astrid, 45 Mass. App. Ct. 538, 546-547 (1998) (no prejudice
where judge would have reached same result). Therefore, "we
discern no prejudice to the mother . . . , as the remaining
evidence overwhelmingly supports -- by clear and convincing
evidence -- that the mother was unfit as to the [child] and that
termination was in [the child's] best interests." Adoption of
Ulrich, 94 Mass. App. Ct. 668, 680 (2019).
c. Reasonable efforts. Finally, the mother argues that
the finding that the department "made reasonable efforts to
facilitate reunification between the [hearing] and [trial] was
unsupported by the record and clearly erroneous." We disagree.
"Before 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.
at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278
15 (2002). "The department has a statutory requirement to make
reasonable efforts, but discretionary authority regarding
particular services." Care & Protection of Rashida, 488 Mass.
217, 228 (2021), S.C., 489 Mass. 128 (2022). "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).
However, "[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." Adoption of West,
97 Mass. App. Ct. at 242. Here, the mother failed to raise the
issue of inadequate services and efforts at any time prior to
entry of the decree. Therefore, the issue has not been properly
16 preserved for appellate review and is waived.8 See id. at 242-
243.
Decree affirmed.
By the Court (Blake, C.J., Meade & Tan, JJ.9),
Clerk
Entered: March 20, 2026.
Notwithstanding the issue of waiver, the judge did find, 8
based on a number of subsidiary findings, that the department made reasonable efforts to reunite the mother and Odile, all of which was supported by the record. Moreover, "[a] determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest[s]." Adoption of Ilona, 459 Mass. at 61, quoting G. L. c. 119, § 29C.
9 The panelists are listed in order of seniority.