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-224
ADOPTION OF ORR.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a two-day trial, a judge of the Juvenile Court found
the mother unfit to parent Orr, terminated her parental rights,
dispensed with her consent to adoption, and approved the
adoption plan of the Department of Children and Families
(department) for Orr. On appeal, the mother contends the judge
abused her discretion and erred by denying her requests for a
trial continuance, finding her unfitness to parent Orr not
temporary, endorsing the department's adoption plan, and
concluding that the termination of her parental rights was in
Orr's best interests. She further argues that some of the
1 A pseudonym. judge's findings of fact and a conclusion of law were clearly
erroneous.2 We affirm.3
1. Background. We summarize the judge's findings of fact,4
supplemented by uncontested evidence from the record.
Orr was born in December 2020. The next day the department
received a report under G. L. c. 119, § 51A (51A report)
alleging neglect of Orr by his mother after Orr's urine tested
positive for marijuana. The department's ensuing G. L. c. 119,
§ 51B investigation revealed that the mother used marijuana
daily during her pregnancy, had postpartum depression following
Orr's birth, and did not have custody of her three older
children.
The mother has an extensive history with the department as
an adult, dating back to 2009 when a 51A report was filed
alleging neglect of one of her children, Ella.5 She does not
2 Orr argues for affirmance of the decree.
3 The father is not a party to this appeal. He stipulated to the termination of his parental rights and executed an open adoption agreement on August 19, 2024.
4 The trial judge made ninety "specific and detailed" findings and forty-seven conclusions of law in support of her decision to terminate the mother's parental rights, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
5 A pseudonym.
2 have custody of Ella6 or her two other older children, Toni7 and
Luke.8, 9 When the department initiated its care and protection
petition, the mother had an open criminal child endangerment
case resulting from allegations of neglect of Toni. Toni had
sustained a cigarette burn on her leg; when asked how she got
the burn, Toni reported that "mommy did it accidentally." Toni
also had bruises on her body, matted hair, and lice. The mother
admitted to sufficient facts on the child endangerment charge
prior to the instant trial.
In January 2021, the department and Orr's mother and father
agreed to a safety plan that prohibited the mother from being
Orr's primary caretaker and assigned that role to the father and
Orr's paternal grandmother. Six months later, on June 23, 2021,
6 In June 2009, the department received two 51A reports alleging neglect of Ella by the mother and Ella's father due to ongoing domestic violence in the home. The allegations were supported following a 51B investigation. In August 2010, a 51A report was filed alleging neglect of Ella by the mother due to drug use, drug dealing in the home, and lack of supervision. The allegations of drug use and drug dealing were supported and the allegations of lack of supervision unsupported following a 51B investigation.
7 In September 2016, May 2018, and July 2019, 51A reports were filed alleging neglect of Toni by the mother. The September 2016 and July 2019 allegations were supported. Two separate 51A reports were filed in September 2016 alleging neglect of Toni by her father. The allegations were supported.
8 The children's names are pseudonyms.
9 The mother was pregnant with her fifth child at the time of the instant trial.
3 the mother reported to a social worker that she no longer wanted
to follow the safety plan.
Subsequently, on June 25, 2021, the department filed a care
and protection petition, pursuant to G. L. c. 119, § 24, on
behalf of Orr.10 The father was granted conditional custody,
with the condition that mother was prohibited from being Orr's
sole caretaker. Over the next one and one-half years, Orr was
raised by his father and paternal grandmother. On January 9,
2023, after a care and protection trial at which the mother did
not appear, a judge found both the father and the mother unfit,
granted the department permanent custody of Orr, and placed Orr
with his paternal grandmother. In August 2023, the department
learned that the paternal grandmother was permitting the mother
and the father to live in her home and visit with Orr without
the department's knowledge. As a result, the department placed
Orr in a kinship foster home with his paternal grandfather.
Throughout this case, the mother was subject to numerous
action plans, each of which identified the mother's tasks to
maintain Orr's safety and welfare and to achieve his permanency
10On May 25, 2023, the department's goal for Orr changed from permanency through stabilization of the family to permanency through guardianship. On February 6, 2024, the goal for Orr changed to adoption.
4 through stabilization goal.11 The mother's tasks, which remained
substantially the same across the action plans, included
participating in individual therapy, taking medications as
prescribed and meeting consistently with her prescriber,
refraining from alcohol and illegal drug use, completing mental
health programs, visiting with Orr as scheduled, meeting with
the department, and attending all court hearings. The mother
failed to meaningfully engage in the department's recommended
services and support from the beginning of this case in June
2021 until February 2024.
Moreover, the mother "did not consistently engage with the
Department for the better part of this case."12 In fact, from
October 2021 until June 2023, the mother did not have contact
with the department, despite monthly attempts by the department
to contact her. Even after the department was back in contact
with her, the mother repeatedly failed to allow the department
access to her home and refused to engage in conversations with
social workers, often demonstrating emotionally volatile
11From December 28, 2021, through July 31, 2024, the family was subject to five action plans, each of which enumerated the mother's tasks.
12The mother explained to the social worker that "she had not communicated with the Department on the advice of her criminal counsel attorney." The judge did not credit this explanation "because the criminal case was pending at the inception of this case" and "Mother's reason also conflicts with a different reason she provided later."
5 behavior. Due to the mother's actions, the department was not
able to conduct a home visit until October 2023. In addition,
mother refused visits with Orr between August 2023 and March
2024.
The mother also has ongoing substance use and mental health
issues. She did not maintain her sobriety as required by her
action plans. She continued to test positive for fentanyl,
cocaine, and amphetamines; she most recently tested positive for
fentanyl in May 2024. The mother also has a history of mental
health issues, and "is presently diagnosed with Major Depressive
Disorder, Generalized Anxiety Disorder, and Post Traumatic
Stress Disorder." The judge found she had stopped taking her
prescribed Zoloft and Ativan at the time of trial. While the
mother engaged in some services to address her ongoing substance
use and mental health issues, her involvement was inconsistent,
demonstrating a "fail[ure] to satisfactorily address the issues
that brought her to the attention of the Department."
The department proposed that Orr be adopted by his paternal
aunt, with whom Orr had had day and overnight visits and who had
already started to identify a pediatrician, daycare, and dentist
for Orr. The mother did not submit an alternative plan. The
judge concluded that the department's plan was in Orr's best
interests.
6 2. Discussion. a. Request for trial continuance. The
mother claims the judge abused her discretion and denied the
mother a meaningful opportunity to be heard by denying her oral
motions, made on the first and second trial dates in August
2024, to continue the trial. We are not persuaded. "Whether to
continue any judicial proceeding is a matter entrusted to the
sound discretion of the judge, and [her] decision will be upheld
absent an abuse of that discretion." Care & Protection of
Quinn, 54 Mass. App. Ct. 117, 120 (2002). The "[s]peedy
resolution of cases involving issues of custody or adoption is
desirable . . . ." Id. at 122, quoting Adoption of Emily, 25
Mass. App. Ct. 579, 581 (1998).
The judge's denial of a continuance of the trial date was a
reasonable exercise of her discretion and did not amount to a
deprivation of the mother's due process rights. First, the
judge properly considered that by the time of trial the case had
been pending for over three years. See, e.g., Adoption of
Varik, 95 Mass. App. Ct. 762, 774 n.14 (2019) (finding no abuse
of discretion in denial of father's motion to continue where
case was more than two years old). Second, the trial had
already been continued from June 12, 2024, when the mother had
not appeared for trial.13 Third, she also had not appeared at
13In addition to not appearing for the initial trial date on June 12, 2024, and the August 19 and August 20, 2024 trial
7 the trial on January 9, 2023, where the court found Orr in need
of care and protection and granted the department custody of
Orr. Fourth, although the mother appeared on the first day of
the August 2024 trial in this case, she departed before the case
was called. Her trial counsel then requested a continuance,
citing the mother's high-risk pregnancy without providing any
supporting documentation (e.g., a note from a health care
provider). While counsel for the mother also advised the judge
that the stress of the trial was a reason for a continuance, the
mother did not present any indication that her condition would
be sufficiently improved in the future so as to allow her to
participate in a trial. Finally, when the mother failed to
appear on the second day of trial, her counsel again failed to
provide any supporting documentation for the claim that the
stress of the trial was a danger to the mother's pregnancy,
despite clear notice of this issue. Accordingly, we conclude
that the mother "had an opportunity to be heard at a meaningful
time and in a meaningful manner," thereby satisfying due
process. Care & Protection of Quinn, 54 Mass. App. Ct. at 122.
b. Unfitness determination. The mother next contends that
the judge erred in terminating her parental rights because the
facts as found were not sufficient to support a determination of
dates, the mother failed to attend at least four other court proceedings between 2021 and 2024.
8 likely indefinite unfitness. We disagree. "To terminate
parental rights to a child and to dispense with parental consent
to adoption, a judge must find by clear and convincing evidence,
based on subsidiary findings proved by at least a fair
preponderance of evidence, that the parent is unfit to care for
the child and that termination is in the child's best
interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606
(2012). "Where there is evidence that a parent's unfitness is
not temporary, the judge may properly determine that the child's
welfare would be best served by ending all legal relations
between parent and child." Adoption of Cadence, 81 Mass. App.
Ct. 162, 169 (2012). "[W]e rely on the trial judge to weigh the
evidence in order to determine whether there is a sufficient
likelihood that the parent's unfitness is temporary." Adoption
of Ilona, 459 Mass. 53, 59-60 (2011). "Because childhood is
fleeting, a parent's unfitness is not temporary if it is
reasonably likely to continue for a prolonged or indeterminate
period." Id. at 60.
Predictions about a parent's unfitness must be "more than
hypothetical," Adoption of Inez, 428 Mass. 717, 723 (1999), and
are determined by "a parent's character, temperament, conduct,
and capacity to provide for the child's particular needs,
affections, and age." Adoption of Anton, 72 Mass. App. Ct. 667,
673 (2008). In determining future fitness, the judge "properly
9 may consider a pattern of parental neglect or misconduct."
Adoption of Elena, 446 Mass. 24, 33 (2006).
Having carefully reviewed the record, "[w]e see no basis
for disturbing the judge's view of the evidence." Adoption of
Quentin, 424 Mass. 882, 886 n.3 (1997). Here, the judge
properly relied on evidence that throughout most of the pendency
of this case, the mother consistently failed to engage in
services, cooperate with the department, visit with Orr, and
attend court dates. The judge also properly considered evidence
of the mother's ongoing mental health and substance use issues.
Notably, the mother does not dispute that she is currently unfit
to parent Orr. The judge's decision was firmly rooted in
subsidiary findings that were proved by a preponderance of the
evidence and clearly and convincingly demonstrated that the
mother was unfit, such that termination of her parental rights
was in Orr's best interests.
The judge properly considered all the evidence in
determining that the mother was not likely to meet Orr's needs
in the future. Contrary to the mother's claims, the judge did
not disregard the mother's efforts to address her parental
deficiencies in determining whether her unfitness was likely to
continue into the foreseeable future. Instead, the judge
explicitly found that the mother began weekly individual
domestic violence counseling and a weekly four-week parenting
10 class and signed information release forms. However, the mother
only participated in domestic violence counseling and the
parenting class in the month before trial, demonstrating a last-
minute effort to engage in the services prescribed in the
family's action plans since December 28, 2021. The judge also
found that while the mother had been receiving methadone
treatment since October 2021 and engaging in individual therapy,
the mother continued to test positive for illegal substances
throughout the pendency of the case, including most recently in
May 2024, and had not yet provided a therapy treatment plan to
the department at the time of trial. Moreover, while the mother
did complete a substance use assessment on July 9, 2024, she did
not inform her clinician about her May 2024 positive test for
fentanyl and cocaine.
The judge was not required to provide the mother with
infinite chances to address her parenting deficiencies. See
Adoption of Nancy, 443 Mass. 512, 517 (2005) ("In these
circumstances, where the father has had ample opportunity to
achieve fitness as a parent but has failed to follow through, it
is only fair to the children to say, at some point, 'enough'");
Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting
Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003)
(noting that "mere participation in the services does not render
a parent fit 'without evidence of appreciable improvement in her
11 ability to meet the needs of the child[ren]'"). The mother's
inability to comply with the action plans is "relevant to the
determination of unfitness." Petitions of the Dep't of Social
Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289
(1987).
The mother also challenges as clearly erroneous the judge's
finding that the mother's "lack of awareness" of why she lost
custody of her older children "impedes her ability to make
meaningful changes to her parenting ability" as well as the
judge's conclusion that the mother's "inability to control her
behavior in her interactions with the Department" and
"longstanding patterns of inconsistent follow through"
demonstrate a "continuous failure to identify the deficits that
brought her to the attention of the Department" and thus "render
her unfit." "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).
We discern no merit to either challenge. First, the
judge's finding of the mother's impeded ability to make changes
to her parenting ability is supported by evidence of the
mother's failure to engage with the department and her blaming
12 of her children's respective fathers for her loss of custody.
Second, the judge concluded that evidence of the mother's
recurring angry outbursts and volatile behavior when interacting
with the department, including repeated threats to social
workers, and lack of engagement with services and the
department, show an inability to control her behavior and to
address her parenting deficits.
c. Adoption plan. Although at trial the mother neither
objected to the department's adoption plan, nor proposed an
alternative plan, she now argues on appeal that the department's
proposed adoption plan was not sufficiently detailed and thus
the judge could not meaningfully evaluate it.
In determining whether termination of parental rights is in
the child's best interests, the judge must assess the "ability,
fitness, and readiness of the [child]'s parents to assume
parental responsibility" and meaningfully evaluate all placement
plans, including the plan proposed by the department and any
competing plans. Adoption of Ilian, 91 Mass. App. Ct. 727, 730-
731 (2017), quoting Adoption of Vito, 431 Mass. 550, 568 n.28
(2000). "The adoption plan need not be fully developed to
support a termination order; it need only provide sufficient
information about the prospective adoptive placement 'so that
the judge may properly evaluate the suitability of the
department's proposal.'" Adoption of Willow, 433 Mass. 636, 652
13 (2001), quoting Adoption of Vito, supra. See Adoption of Varik,
95 Mass. App. Ct. at 770-771. We review the judge's assessment
for abuse of discretion. See Adoption of Bianca, 91 Mass. App.
Ct. 428, 434 (2017).
The department proposed, and the judge approved, a plan
under which Orr would be adopted by his paternal aunt in Rhode
Island. The department followed interstate protocols,
initiating an Interstate Compact on the Placement of Children
(ICPC) home study of the paternal aunt and her fiancé through
Rhode Island. The ICPC placement was approved on July 24, 2024.
The department informed the judge that after placing Orr in the
aunt's home, it would request a permanency assessment through
the ICPC.
Contrary to the mother's contention (and even if it were
not waived), the department's proposed plan was not "vague and
hopeful, at best." The judge appropriately considered that Orr
progressed from day visits to overnight visitation with his aunt
on August 10, 2024, and would transition to live in the aunt's
home after a dental procedure on September 24, 2024. Further,
the aunt had already started to identify a daycare,
pediatrician, and dentist for Orr.
Similarly, contrary to the mother's claim, the judge's
finding that the department would take alternative steps
(adoption by recruitment) should the preadoptive aunt no longer
14 be a viable placement was not clearly erroneous. Although the
"backup plan" is not as detailed as the primary plan, it
provides information sufficient for the court to determine in
these circumstances that the department's proposed plans serve
Orr's best interests.
Accordingly, the department's adoption plan, when viewed in
conjunction with the evidence presented at trial concerning the
mother's unfitness and Orr's best interests, was "sufficiently
specific and detailed" to support both Orr's placement and the
termination of the mother's parental rights (citation omitted).
Adoption of Willow, 433 Mass. at 652-653.
Decree affirmed.
By the Court (Sacks, Smyth & Wood, JJ.14),
Clerk
Entered: October 14, 2025.
14 The panelists are listed in order of seniority.