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
24-P-303
ADOPTION OF OSBORN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and her son, Osborn, appeal from a decree of the
Juvenile Court terminating the mother's parental rights. Ample
evidence supports the judge's determinations that the mother is
currently unfit to parent Osborn and that her unfitness is
likely to continue into the indefinite future, and the decree
committing the child to the custody of the department. Because
there was insufficient evidence that it is in Osborn's best
interests to terminate the mother's parental rights, however, we
vacate the decree terminating the mother's parental rights, and
remand for further proceedings on that issue.
Background. At the time of trial, Osborn was ten years
old. When he was approximately three years old, he was
diagnosed with autism, a receptive and expressive language
1 A pseudonym. delay, and sensory integration dysfunction. He is still largely
non-verbal and has not been fully toilet trained. Despite these
facts, the mother believes he has reached all his milestones on
time.
The mother and Osborn had an extensive history with the
Department of Children and Families (department) by the time
Osborn was removed from the mother's care in late 2020, when he
was eight. Ultimately, Osborn was removed due to his failure to
attend school, the condition of the home, the care the mother
was providing, medical neglect, and the mother's mental health
as it impaired her ability to meet Osborn's needs.
Since his removal, Osborn has never lived in a home setting
with a foster family. Instead, he has lived at various
residential facilities. Over time, staff and medical providers
have helped improve Osborn's sleep schedule, diet, toilet
training, and school attendance. Even with this improvement,
given Osborn's needs, an adoptive family would have to plan
lifelong care for him.
During the time that the child was in a residential home,
the mother consistently attended her weekly visits, though the
mother struggled to comply with the department's action plans
during this time. The mother is a loving presence in Osborn's
life, even though her own mental health issues prevent her from
meeting his extensive care needs.
2 After trial in 2023, the judge found that Osborn was in
need of care and protection, committed Osborn to the permanent
custody of the department, and issued decrees terminating the
mother's and any unknown or unnamed father's parental rights.
The judge found that it was in the child's best interests to
maintain contact with the mother. Accordingly, the judge also
ordered that visitation between the mother and Osborn continue
until further order of the court.
Discussion. Both the mother and Osborn argue that
termination of the mother's parental rights was not in Osborn's
best interests because it rendered him a legal orphan and he is
not likely to be adopted.2 The department's adoption plan for
Osborn did not include an assessment of Osborn's likelihood of
becoming adopted. At trial, however, an adoption social worker
for the department testified that in 2022, the department
matched seventy-four children with moderate to severe special
2 The mother also argues that her due process rights were violated when the trial judge made a comment at sidebar before the close of the evidence that her unfitness, from what the judge had heard "thus far," was "not really a close call." Because the mother did not object to the trial judge's comments, however, she has waived this argument on appeal. See Adoption of Jacob, 99 Mass. App. Ct. 258, 270-271 (2021). In any event, it was not prejudicial given the overwhelming evidence of mother's unfitness. The mother is diagnosed with depression, anxiety, ADHD, bipolar disorder with delusions, and schizoaffective disorder, and her diagnoses impair her ability to meet Osborn's basic needs. Moreover, the mother conceded at oral argument that she was unfit and that she was not likely to become fit in the foreseeable future.
3 needs with the assistance of the Massachusetts Adoption Resource
Exchange (MARE). Part of the department's plan of recruitment
was to register Osborn with MARE. The judge found that the
department's confidence in successfully locating an adoptive
family for Osborn was credible, referencing the MARE statistics
as support.
However, critical details were missing from the MARE
statistics. For instance, it was unknown how many of the
seventy-four children matched had "moderate" versus "severe"
special needs, or how those terms were defined. The children's
ages and the nature of their special needs were also unknown.
The testimony of department workers supported that it was
possible a child with significant medical issues might be
adopted by a non-family member, but no family member was
identified for Osborn and no witness testified that adoption was
reasonably likely particularly given his age and needs. Nobody
testified as to how many children are never adopted.
Osborn was ten years old at the time of trial. He is still
largely non-verbal and not yet fully toilet trained. The
judge's finding that Osborn has "severe developmental needs" and
will need significant care throughout his life was supported by
the record. Given Osborn's circumstances, the MARE statistics
alone do not provide meaningful evidence to support a finding of
Osborn's likelihood of adoption. Here, absent such findings and
4 where the record does not demonstrate a benefit to Osborn from
terminating his mother's parental rights in the event that he is
not adopted, it is unclear whether termination of the mother's
parental rights would be in Osborn's best interests. See
Adoption of Thea, 78 Mass. App. Ct. 818, 823-826 (2011)
(vacating termination of mother's parental rights where child
was almost eighteen years old and placed in long-term
hospitalization unit, there was no identifiable posttermination
plan, and evidence was insufficient that termination was in
child's best interests); Adoption of Ramona, 61 Mass. App. Ct.
260, 266-267 (2004) (vacating termination of mother's parental
rights absent findings explaining why termination was in
children's best interests where they were unlikely to be adopted
and remained bonded with mother). But see Adoption of Nancy,
443 Mass. 512, 517-518 & n.7 (2005) (termination appropriate
Free access — add to your briefcase to read the full text and ask questions with AI
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
24-P-303
ADOPTION OF OSBORN.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and her son, Osborn, appeal from a decree of the
Juvenile Court terminating the mother's parental rights. Ample
evidence supports the judge's determinations that the mother is
currently unfit to parent Osborn and that her unfitness is
likely to continue into the indefinite future, and the decree
committing the child to the custody of the department. Because
there was insufficient evidence that it is in Osborn's best
interests to terminate the mother's parental rights, however, we
vacate the decree terminating the mother's parental rights, and
remand for further proceedings on that issue.
Background. At the time of trial, Osborn was ten years
old. When he was approximately three years old, he was
diagnosed with autism, a receptive and expressive language
1 A pseudonym. delay, and sensory integration dysfunction. He is still largely
non-verbal and has not been fully toilet trained. Despite these
facts, the mother believes he has reached all his milestones on
time.
The mother and Osborn had an extensive history with the
Department of Children and Families (department) by the time
Osborn was removed from the mother's care in late 2020, when he
was eight. Ultimately, Osborn was removed due to his failure to
attend school, the condition of the home, the care the mother
was providing, medical neglect, and the mother's mental health
as it impaired her ability to meet Osborn's needs.
Since his removal, Osborn has never lived in a home setting
with a foster family. Instead, he has lived at various
residential facilities. Over time, staff and medical providers
have helped improve Osborn's sleep schedule, diet, toilet
training, and school attendance. Even with this improvement,
given Osborn's needs, an adoptive family would have to plan
lifelong care for him.
During the time that the child was in a residential home,
the mother consistently attended her weekly visits, though the
mother struggled to comply with the department's action plans
during this time. The mother is a loving presence in Osborn's
life, even though her own mental health issues prevent her from
meeting his extensive care needs.
2 After trial in 2023, the judge found that Osborn was in
need of care and protection, committed Osborn to the permanent
custody of the department, and issued decrees terminating the
mother's and any unknown or unnamed father's parental rights.
The judge found that it was in the child's best interests to
maintain contact with the mother. Accordingly, the judge also
ordered that visitation between the mother and Osborn continue
until further order of the court.
Discussion. Both the mother and Osborn argue that
termination of the mother's parental rights was not in Osborn's
best interests because it rendered him a legal orphan and he is
not likely to be adopted.2 The department's adoption plan for
Osborn did not include an assessment of Osborn's likelihood of
becoming adopted. At trial, however, an adoption social worker
for the department testified that in 2022, the department
matched seventy-four children with moderate to severe special
2 The mother also argues that her due process rights were violated when the trial judge made a comment at sidebar before the close of the evidence that her unfitness, from what the judge had heard "thus far," was "not really a close call." Because the mother did not object to the trial judge's comments, however, she has waived this argument on appeal. See Adoption of Jacob, 99 Mass. App. Ct. 258, 270-271 (2021). In any event, it was not prejudicial given the overwhelming evidence of mother's unfitness. The mother is diagnosed with depression, anxiety, ADHD, bipolar disorder with delusions, and schizoaffective disorder, and her diagnoses impair her ability to meet Osborn's basic needs. Moreover, the mother conceded at oral argument that she was unfit and that she was not likely to become fit in the foreseeable future.
3 needs with the assistance of the Massachusetts Adoption Resource
Exchange (MARE). Part of the department's plan of recruitment
was to register Osborn with MARE. The judge found that the
department's confidence in successfully locating an adoptive
family for Osborn was credible, referencing the MARE statistics
as support.
However, critical details were missing from the MARE
statistics. For instance, it was unknown how many of the
seventy-four children matched had "moderate" versus "severe"
special needs, or how those terms were defined. The children's
ages and the nature of their special needs were also unknown.
The testimony of department workers supported that it was
possible a child with significant medical issues might be
adopted by a non-family member, but no family member was
identified for Osborn and no witness testified that adoption was
reasonably likely particularly given his age and needs. Nobody
testified as to how many children are never adopted.
Osborn was ten years old at the time of trial. He is still
largely non-verbal and not yet fully toilet trained. The
judge's finding that Osborn has "severe developmental needs" and
will need significant care throughout his life was supported by
the record. Given Osborn's circumstances, the MARE statistics
alone do not provide meaningful evidence to support a finding of
Osborn's likelihood of adoption. Here, absent such findings and
4 where the record does not demonstrate a benefit to Osborn from
terminating his mother's parental rights in the event that he is
not adopted, it is unclear whether termination of the mother's
parental rights would be in Osborn's best interests. See
Adoption of Thea, 78 Mass. App. Ct. 818, 823-826 (2011)
(vacating termination of mother's parental rights where child
was almost eighteen years old and placed in long-term
hospitalization unit, there was no identifiable posttermination
plan, and evidence was insufficient that termination was in
child's best interests); Adoption of Ramona, 61 Mass. App. Ct.
260, 266-267 (2004) (vacating termination of mother's parental
rights absent findings explaining why termination was in
children's best interests where they were unlikely to be adopted
and remained bonded with mother). But see Adoption of Nancy,
443 Mass. 512, 517-518 & n.7 (2005) (termination appropriate
where both children in "stable situations" and their "permanence
and stability" would "be eased by termination" even though one
child was "not presently a candidate for adoption"). We are
mindful that "[t]he natural bond between parent and child should
not be permanently severed unless the child's present or future
welfare demands it." Adoption of Carlos, 413 Mass. 339, 350
(1992). "[E]ven if a parent is found to be unfit, there are
some situations in which the child's best interest may be served
without a decree of termination." Adoption of Flora, 60 Mass.
5 App. Ct. 334, 342 (2004). Accordingly, we remand for further
consideration of this issue. Id. at 343.
Conclusion. We affirm the portions of the decree
adjudicating the mother to be currently unfit, determining that
the child is in need of care and protection, and committing him
to the custody of the department. We vacate those portions of
the decree that terminate the mother's parental rights. On
remand, the judge shall reconsider the termination portion of
the decree and shall determine whether it is in Osborn's best
interests to have his mother's parental rights terminated. We
wish to make clear that we express no opinion on this question,
which remains committed to the sound discretion of the trial
judge. The current order for visitation shall remain in effect,
subject to further action by the Juvenile Court.
So ordered.
By the Court (Rubin, Henry & Walsh, JJ.3),
Clerk
Entered: April 14, 2025.
3 The panelists are listed in order of seniority.