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-765
ADOPTION OF TONI (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge issued
decrees finding the mother unfit to assume parental
responsibilities for the three children -- Toni, Amy, and
Eric -- terminated her parental rights, approved the adoption
plan proposed by the Department of Children and Families
(department), and declined to order posttermination and
postadoption visitation. The mother appeals. She argues that
the judge abused his discretion by admitting certain expert
testimony. She also argues that the department did not make
reasonable efforts toward reunification and that the finding of
unfitness was not supported by clear and convincing evidence.
We affirm.
1Adoption of Amy and Adoption of Eric. The names of the children are pseudonyms. Background. The department's involvement with the mother
dates to the birth of the oldest child in 2008. Between 2008
and 2018, the department received twelve reports pursuant to
G. L. c. 119, § 51A (51A report), alleging that the parents had
misused substances and neglected the children.2 Over the years,
several of these reports were screened in and the department
provided the mother with services. Namely, in March 2018, a 51A
report alleged that the mother fell asleep in a clinic with her
head resting on the youngest child, then a baby, whose cries did
not wake the mother. The subsequent investigation, which
supported the 51A report, revealed that the mother tested
positive for oxycodone and benzodiazepines. In April 2018,
another 51A report alleged neglect of all three children after
the mother arrived at a school that Toni and Amy did not attend
and attempted to pick them up. The mother appeared to be
intoxicated; she later admitted to using oxycodone and marijuana
that day. After the department's investigation supported the
51A report, the department filed a care and protection petition
pursuant to G. L. c. 119, § 24, and removed the children from
the mother's custody.
Although the children's permanency plan originally called
for reunification, the goal changed to adoption in 2019. During
2 The father passed away in 2018.
2 this time, the mother failed to fully comply with her family
action plans. Notably, the mother continued to use marijuana
and prescription drugs and minimized her substance misuse. The
mother also failed to address her mental health challenges by
failing to meaningfully participate in therapy. Although the
mother saw an individual therapist for a time, she was
discharged from the practice in December 2022 for missing
appointments and failing to fully engage. As of the time of
trial, the mother had not seen a therapist since 2022.
Meanwhile, the three children lived in a temporary kinship
placement. The department found a preadoptive family in
Massachusetts; however, that family ultimately elected not to
adopt the three siblings. In 2021, the department identified a
family in New York that was willing to adopt all three children.
The department moved the children to New York to be placed with
the preadoptive family, and thereafter notified the mother by
text message of the move.
The children have thrived in their current placement, and
the preadoptive parents have demonstrated their ability to
address and care for the children's special needs.3 The two
3 The oldest child was diagnosed with posttraumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), and depression. The middle child was diagnosed with PTSD, ADHD, and a mood disorder. The youngest child has autism, ADHD, and a speech impediment.
3 older children, aged fifteen and thirteen, respectively, at the
time of trial, have expressed a consistent desire to remain with
their preadoptive family and to be adopted. After moving to New
York, the children visited the mother once per month in
Massachusetts. The visits often did not go well. The mother
sometimes arrived late, and visits frequently ended early. The
oldest child refused visits outright after the mother asked how
old she was. Although the younger two children vacillated about
whether they wished to visit with the mother, all three children
at various times refused visits.
In 2021, the mother petitioned for review and
redetermination (R&R) pursuant to G. L. c. 119, § 26. The first
R&R best interests trial ended in a mistrial. Shortly before
the second trial, the mother filed an abuse of discretion
motion, arguing that the department failed to make reasonable
efforts at reunification. See Care & Protection of Rashida, 488
Mass. 217 (2021), S.C., 489 Mass. 128 (2022). The judge allowed
the motion in November 2023, although the mother never sought a
continuance to allow the parties time to affect a reunification.
After trial that began in December 2023 and concluded in January
2024, the judge issued rulings and orders determining that the
department had made reasonable efforts and decrees terminating
the mother's parental rights. The mother appeals.
4 Discussion. 1. Expert testimony. The mother argues that
the judge abused his discretion by qualifying what she described
as an undisclosed expert witness who testified for the
department. On the final day of trial, the department called a
court clinician as a witness. Although the department included
the court clinician on its witness list, it did not identify the
court clinician as an expert. The department did not provide
the mother with the court clinician's curriculum vitae or define
which areas she would opine on as an expert. See Rule 15(B) of
the Juvenile Court Rules for the Care and Protection of Children
(2018). The judge previously appointed the court clinician to
conduct a parenting evaluation and substance use evaluation and
ultimately qualified her as an expert in these matters, over the
mother's objection. The mother argues that the court
clinician's expert testimony prejudiced her.
The judge has discretion to admit an untimely expert
opinion. See Kace v. Liang, 472 Mass. 630, 637 (2015). "The
extreme sanction of a new trial requires both surprise and
unfair prejudicial harm." Hammell v. Shooshanian Eng'g Assocs.,
Inc., 73 Mass. App. Ct. 634, 638 (2009). Several factors
undercut the mother's claim of unfair prejudice. First, the
mother never sought a continuance to prepare a cross-examination
of the court clinician.
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-765
ADOPTION OF TONI (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge issued
decrees finding the mother unfit to assume parental
responsibilities for the three children -- Toni, Amy, and
Eric -- terminated her parental rights, approved the adoption
plan proposed by the Department of Children and Families
(department), and declined to order posttermination and
postadoption visitation. The mother appeals. She argues that
the judge abused his discretion by admitting certain expert
testimony. She also argues that the department did not make
reasonable efforts toward reunification and that the finding of
unfitness was not supported by clear and convincing evidence.
We affirm.
1Adoption of Amy and Adoption of Eric. The names of the children are pseudonyms. Background. The department's involvement with the mother
dates to the birth of the oldest child in 2008. Between 2008
and 2018, the department received twelve reports pursuant to
G. L. c. 119, § 51A (51A report), alleging that the parents had
misused substances and neglected the children.2 Over the years,
several of these reports were screened in and the department
provided the mother with services. Namely, in March 2018, a 51A
report alleged that the mother fell asleep in a clinic with her
head resting on the youngest child, then a baby, whose cries did
not wake the mother. The subsequent investigation, which
supported the 51A report, revealed that the mother tested
positive for oxycodone and benzodiazepines. In April 2018,
another 51A report alleged neglect of all three children after
the mother arrived at a school that Toni and Amy did not attend
and attempted to pick them up. The mother appeared to be
intoxicated; she later admitted to using oxycodone and marijuana
that day. After the department's investigation supported the
51A report, the department filed a care and protection petition
pursuant to G. L. c. 119, § 24, and removed the children from
the mother's custody.
Although the children's permanency plan originally called
for reunification, the goal changed to adoption in 2019. During
2 The father passed away in 2018.
2 this time, the mother failed to fully comply with her family
action plans. Notably, the mother continued to use marijuana
and prescription drugs and minimized her substance misuse. The
mother also failed to address her mental health challenges by
failing to meaningfully participate in therapy. Although the
mother saw an individual therapist for a time, she was
discharged from the practice in December 2022 for missing
appointments and failing to fully engage. As of the time of
trial, the mother had not seen a therapist since 2022.
Meanwhile, the three children lived in a temporary kinship
placement. The department found a preadoptive family in
Massachusetts; however, that family ultimately elected not to
adopt the three siblings. In 2021, the department identified a
family in New York that was willing to adopt all three children.
The department moved the children to New York to be placed with
the preadoptive family, and thereafter notified the mother by
text message of the move.
The children have thrived in their current placement, and
the preadoptive parents have demonstrated their ability to
address and care for the children's special needs.3 The two
3 The oldest child was diagnosed with posttraumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), and depression. The middle child was diagnosed with PTSD, ADHD, and a mood disorder. The youngest child has autism, ADHD, and a speech impediment.
3 older children, aged fifteen and thirteen, respectively, at the
time of trial, have expressed a consistent desire to remain with
their preadoptive family and to be adopted. After moving to New
York, the children visited the mother once per month in
Massachusetts. The visits often did not go well. The mother
sometimes arrived late, and visits frequently ended early. The
oldest child refused visits outright after the mother asked how
old she was. Although the younger two children vacillated about
whether they wished to visit with the mother, all three children
at various times refused visits.
In 2021, the mother petitioned for review and
redetermination (R&R) pursuant to G. L. c. 119, § 26. The first
R&R best interests trial ended in a mistrial. Shortly before
the second trial, the mother filed an abuse of discretion
motion, arguing that the department failed to make reasonable
efforts at reunification. See Care & Protection of Rashida, 488
Mass. 217 (2021), S.C., 489 Mass. 128 (2022). The judge allowed
the motion in November 2023, although the mother never sought a
continuance to allow the parties time to affect a reunification.
After trial that began in December 2023 and concluded in January
2024, the judge issued rulings and orders determining that the
department had made reasonable efforts and decrees terminating
the mother's parental rights. The mother appeals.
4 Discussion. 1. Expert testimony. The mother argues that
the judge abused his discretion by qualifying what she described
as an undisclosed expert witness who testified for the
department. On the final day of trial, the department called a
court clinician as a witness. Although the department included
the court clinician on its witness list, it did not identify the
court clinician as an expert. The department did not provide
the mother with the court clinician's curriculum vitae or define
which areas she would opine on as an expert. See Rule 15(B) of
the Juvenile Court Rules for the Care and Protection of Children
(2018). The judge previously appointed the court clinician to
conduct a parenting evaluation and substance use evaluation and
ultimately qualified her as an expert in these matters, over the
mother's objection. The mother argues that the court
clinician's expert testimony prejudiced her.
The judge has discretion to admit an untimely expert
opinion. See Kace v. Liang, 472 Mass. 630, 637 (2015). "The
extreme sanction of a new trial requires both surprise and
unfair prejudicial harm." Hammell v. Shooshanian Eng'g Assocs.,
Inc., 73 Mass. App. Ct. 634, 638 (2009). Several factors
undercut the mother's claim of unfair prejudice. First, the
mother never sought a continuance to prepare a cross-examination
of the court clinician. See id., citing Beaupre v. Cliff Smith
& Assocs., 50 Mass. App. Ct. 480, 486 (2000) (failure to seek
5 continuance undercuts claim of prejudice). Second, the mother
was on notice that the court clinician would testify to the
contents of her reports, given that the mother moved in limine
to exclude the 2020 report, and the court clinician's expert
testimony was offered in lieu of the 2023 report itself. See
Hammell, supra (party was on notice that substance of expert's
opinion was at issue in case). Third, none of the findings that
the judge derived from the court clinician's expert testimony
are outcome determinative.
As posited by the court clinician, the judge found that
substance misuse recovery means total abstinence rather than a
harm reduction approach. The mother challenges this finding.
Relatedly, the court clinician testified that the mother's
continued use of marijuana did not show a meaningful recovery
from substance misuse. The record is replete with evidence
amounting to the same. For example, the court clinician
recommended in her 2020 report, which was admitted in evidence,
that the mother abstain from all mood-altering substances. The
mother's substance misuse treatment provider recommended the
same. The mother also challenges the finding based on the court
clinician's testimony that she "did not believe Mother could
effectively parent three, high needs children without full
abstinence or recovery from those substances she has
historically abused." This finds ample support in the record.
6 The 51A report filed in April 2018 described an incident in
which the mother arrived at the wrong school, trying to pick up
her child, and appeared to be under the influence of substances.
The mother admitted to using opioids and marijuana that day.
Beyond this incident, the mother admitted in a court interview
that she would not be able to take care of the youngest child
with marijuana in her system. The mother argues that these
reports were stale, but this is belied by record evidence that
the mother's toxicology screen were regularly positive for
marijuana leading up to the trial. Regardless, the judge was
entitled to consider all relevant evidence pertaining to
unfitness. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32-
33 (1997) (judge may consider past conduct to predict future
parental fitness). There was no prejudice.4
2. Reasonable efforts. "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 Uday, 91 Mass. App. Ct. 51, 53 (2017),
quoting Adoption of Ilona, 459 Mass. 53, 60 (2011). The mother
argues that the department failed to make reasonable efforts to
reunify the family. Specifically, she underscores that the
4 The mother also challenges two findings that relate to her minimization of the extent of her substance misuse. These findings likewise are supported elsewhere in the record.
7 judge concluded the department had redressed their lack of
reasonable efforts just two months after he allowed the mother's
abuse of discretion motion. See Care & Protection of Rashida,
488 Mass. at 219-221. The mother argues that the department
could not have overcome their reasonable efforts deficit in a
two-month span. This is not ultimately dispositive.
Although the department must make reasonable efforts, its
"obligation to work with the mother was contingent upon her own
obligation to fulfill various parental responsibilities,
including seeking and utilizing appropriate services" (citation
omitted). Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010),
S.C., 460 Mass. 72 (2011). In other words, "[t]he mother's
failure cannot be laid at the department's door." Adoption of
Paula, 420 Mass. 716, 730 (1995). Over the course of five
years, the mother did not fulfill her responsibility to engage
in services to become fit to parent the children. Although the
mother had previously engaged in individual therapy, she was
discharged from therapy in December 2022 and did not participate
in therapy thereafter. This casts doubt on her argument that
the department's failure to provide family therapy contributed
to the breakdown. See Adoption of Daisy, 77 Mass. App. Ct. at
782 ("While we do not condone the department's lapses in
securing appropriate therapy for Daisy, or discount the
possibility that they played a role in escalating the
8 deterioration of the relationship between Daisy and her mother,
the mother's own delay in obtaining appropriate therapy for
herself undermines the mother's argument"). The mother also did
not make an effort to have meaningful contact with the children
during visits, nor did she fully engage with the department's
social workers. By the time the judge allowed the mother's
abuse of discretion motion, the mother's relationship with the
children had already suffered a material breakdown.
The mother compounded the problem by waiting until the eve
of trial to raise the issue of reasonable efforts, and by not
seeking a continuance of the trial after the judge allowed her
abuse of discretion motion. By this point, the children had
bonded with their preadoptive family and all three children had
at various times refused visits with the mother. And the
children refused to participate in family therapy. Compare
Adoption of Daisy, 77 Mass. App. Ct. at 783 ("[the department]
was not in a position to force an eleven year old child to
attend visits against her will").
"[T]he proper focus of termination proceedings is the
welfare of the child." Adoption of Gregory, 434 Mass. 117, 121
(2001). The older two children expressed a consistent desire
not to be reunited with the mother and to be adopted by their
preadoptive family. See Adoption of Chad, 94 Mass. App. Ct.
828, 840 n.22 (2019) ("the law presumes [a twelve-year-old
9 child] is competent to express where his best interests lie").
The children have thrived under the care of the preadoptive
parents, who have demonstrated they are able to address the
needs of the three children. Although we do not condone the
department's failure to promptly notify the mother before moving
the children out of State, the judge did not abuse his
discretion in concluding that the department had made reasonable
efforts.
3. Unfitness. The mother challenges multiple findings and
conclusions as clearly erroneous and argues that the ensuing
conclusion that she is unfit was not supported by clear and
convincing evidence. Specifically, the mother contends that the
evidence did not establish a nexus between her use and harm to
the children. We are not persuaded.
The nexus argument is flawed for two reasons. The mother
points out that the judge did not find that the mother was using
prescription opioids at the time of trial. But the judge
properly considered the mother's past conduct in determining her
current and future parental fitness. See Adoption of Katharine,
42 Mass. App. Ct. at 32-33. Second, the record is replete with
evidence of the detrimental impact of the mother's substance use
on the children. The youngest child was born substance exposed
in 2017. The two 51A reports that precipitated the department's
involvement in 2018 involved the mother's substance misuse. The
10 mother testified at trial that marijuana use inhibited her
ability to parent her youngest child and that one moment of
distraction could cause him to be injured. See id. at 32
("judges . . . need [not] wait for inevitable disaster to
happen"). The mother consistently tested positive for marijuana
in the months before trial and admitted to using marijuana a
week before trial. We discern no abuse of discretion or error
of law in the judge's findings and conclusions regarding the
mother's unfitness.
This is not a case where "admitted prior marijuana . . .
use, by itself, does not significantly impact the issue of
parental fitness." Adoption of Zoltan, 71 Mass. App. Ct. 185,
190 (2008). See G. L. c. 94G, § 7 (d). The mother has a long
history of misusing opioids and benzodiazepines. Regardless,
the mother admitted that her use of marijuana hurt her children.
There was no error or abuse of discretion.
Lastly, the mother argues that the judge failed to connect
the mother's "sedation" to substance misuse. The mother
admitted that she could not parent her youngest child "while
inhibited or sedated." Elsewhere, the mother reported to a
substance misuse treatment provider that her perceived sedation
was caused by a peak in her methadone dose. Regardless, the
11 mother's sedation was one of many factors the judge considered
in concluding that the mother's substance misuse posed a risk of
harm to the children.
Decrees affirmed.
By the Court (Blake, C.J., Meade & Englander, JJ.5),
Clerk
Entered: March 20, 2025.
5 The panelists are listed in order of seniority.