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-273
ADOPTION OF ULON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from the decree of a Juvenile Court
judge terminating the father's parental rights as to his son,
Ulon. The father, who suffers from unspecified cognitive,
developmental, and learning disabilities, claims that the
Department of Children and Families (department) failed to
provide him with reasonable accommodations in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(ADA), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794. We affirm.
Background. We summarize the trial judge's undisputed
findings of fact. The father and Ulon's mother attended the
same middle school and then fell out of contact. Sometime in
late 2019, the father and mother met again by chance. The
mother, who was fighting with her boyfriend at the time,
1 A pseudonym. accepted the father's invitation to accompany him to Vermont,
where he was headed for work. The mother stayed with the father
at a hotel for two weeks. A few months later, the mother
informed the father that she was pregnant, but that she believed
her boyfriend, with whom she had reconciled, was the father.
Ulon was born in 2020. The mother came to believe that the
child was not her boyfriend's when she saw how much the child
resembled the father. Shortly after the child's birth, the
mother visited the father and left Ulon with him, saying "this
baby is yours." The father did not want anything to do with
Ulon until he was certain that Ulon was in fact his biological
son, so he asked his mother, the paternal grandmother
(grandmother), to take care of the baby. The grandmother cared
for Ulon for the next few days, clothing, feeding, and cleaning
him. When Ulon was one week old, the grandmother and Ulon's
mother together took Ulon to the local police department and
asked for advice about Ulon's custody. The police referred them
to the court, where they were able to craft a document in which
the mother agreed to allow the grandmother to take Ulon home.
The maternal grandfather (grandfather) soon intervened.
After disputes about Ulon's custody, the grandmother reluctantly
agreed to leave the baby with the grandfather and his partner,
who was not the maternal grandmother. Ulon has resided with
them ever since.
2 Meanwhile, the department had become involved days after
Ulon's birth, when a report was filed pursuant to G. L. c. 119,
§ 51A, by the office of Ulon's pediatrician. The report alleged
that the mother was "exhibiting unusual behaviors." The mother
also admitted to breastfeeding Ulon despite being discouraged
from doing so because of her "chronic and frequent" use of
marijuana. The mother did not attend the follow-up appointment
later that day. Instead, the grandmother took Ulon to the
appointment and told the pediatrician that the mother did not
want Ulon and was threatening to kill him. The department
opened an investigation under G. L. c. 119, § 51B.
Another 51A report was filed when Ulon was about two months
old, after the mother made threats to remove Ulon from the
grandfather's home and harm him. After the 51B investigation,
the department took emergency custody of Ulon and filed a care
and protection petition. A Juvenile Court judge granted the
department continued custody of Ulon shortly thereafter.
When Ulon was about seven months old the department
determined that the mother had made insufficient progress toward
reunification, and the goal for Ulon was changed to permanency
through adoption. A preadoptive license home study was
initiated for the grandfather and his partner but was delayed
when Ulon's mother sadly was killed in a car accident.
3 Around the same time that the mother died, the father
established paternity; thereafter, the department began working
with him to develop a plan for reunification. The father
received a series of action plans with tasks and services to
facilitate reunification. However, the father lacked any
motivation to parent Ulon. He avoided visits by ignoring calls
and messages from his social worker, failed to engage in
services or to make any improvements in his parenting skills,
and prioritized his hobbies, such as fixing cars, over
developing a bond with his son.
Early in the case, the grandmother reported to a department
social worker that she was the father's "custodian" because he
was "mild[ly] retarded." However, the department did not become
aware of any specific diagnosis until April 2021, shortly after
the father established paternity, when the department sought and
received records regarding the father's Social Security
Disability Insurance (SSDI) benefits. The SSDI records
described the father's disability as cognitive delays and
deficits. 2 The department subsequently updated the father's
2 The father was not aware he was receiving SSDI payments and, testifying at trial, disagreed with the diagnosis. The grandmother testified that the father had been receiving SSDI payments since he was sixteen years old, which she collected on his behalf. She also testified that the father knew he was receiving SSDI payments, but the judge did not credit this testimony.
4 action plan and included referrals for five different services
to accommodate his cognitive disabilities. The department also
offered to assist the father in applying for these services. He
refused all but one of them -- the neuropsychological evaluation
discussed below. The father did not want or believe he needed
services, and he did not want the department to "know his
business."
Seeking clarification of the father's disability to make
additional accommodations, the department in June 2021 sought a
court order to compel the father to undergo a neuropsychological
evaluation. The motion was allowed in early July 2021, about
five months before the trial began. The department referred the
father to an entity called Family Networks, which contracted
with an entity called Children's Charter. As of the time of
trial, the father was still on a waitlist for this evaluation. 3
In September 2021, the father's counsel independently
arranged for the father to participate in a neuropsychological
evaluation. The father appeared for the appointment but left
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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-273
ADOPTION OF ULON. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from the decree of a Juvenile Court
judge terminating the father's parental rights as to his son,
Ulon. The father, who suffers from unspecified cognitive,
developmental, and learning disabilities, claims that the
Department of Children and Families (department) failed to
provide him with reasonable accommodations in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(ADA), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794. We affirm.
Background. We summarize the trial judge's undisputed
findings of fact. The father and Ulon's mother attended the
same middle school and then fell out of contact. Sometime in
late 2019, the father and mother met again by chance. The
mother, who was fighting with her boyfriend at the time,
1 A pseudonym. accepted the father's invitation to accompany him to Vermont,
where he was headed for work. The mother stayed with the father
at a hotel for two weeks. A few months later, the mother
informed the father that she was pregnant, but that she believed
her boyfriend, with whom she had reconciled, was the father.
Ulon was born in 2020. The mother came to believe that the
child was not her boyfriend's when she saw how much the child
resembled the father. Shortly after the child's birth, the
mother visited the father and left Ulon with him, saying "this
baby is yours." The father did not want anything to do with
Ulon until he was certain that Ulon was in fact his biological
son, so he asked his mother, the paternal grandmother
(grandmother), to take care of the baby. The grandmother cared
for Ulon for the next few days, clothing, feeding, and cleaning
him. When Ulon was one week old, the grandmother and Ulon's
mother together took Ulon to the local police department and
asked for advice about Ulon's custody. The police referred them
to the court, where they were able to craft a document in which
the mother agreed to allow the grandmother to take Ulon home.
The maternal grandfather (grandfather) soon intervened.
After disputes about Ulon's custody, the grandmother reluctantly
agreed to leave the baby with the grandfather and his partner,
who was not the maternal grandmother. Ulon has resided with
them ever since.
2 Meanwhile, the department had become involved days after
Ulon's birth, when a report was filed pursuant to G. L. c. 119,
§ 51A, by the office of Ulon's pediatrician. The report alleged
that the mother was "exhibiting unusual behaviors." The mother
also admitted to breastfeeding Ulon despite being discouraged
from doing so because of her "chronic and frequent" use of
marijuana. The mother did not attend the follow-up appointment
later that day. Instead, the grandmother took Ulon to the
appointment and told the pediatrician that the mother did not
want Ulon and was threatening to kill him. The department
opened an investigation under G. L. c. 119, § 51B.
Another 51A report was filed when Ulon was about two months
old, after the mother made threats to remove Ulon from the
grandfather's home and harm him. After the 51B investigation,
the department took emergency custody of Ulon and filed a care
and protection petition. A Juvenile Court judge granted the
department continued custody of Ulon shortly thereafter.
When Ulon was about seven months old the department
determined that the mother had made insufficient progress toward
reunification, and the goal for Ulon was changed to permanency
through adoption. A preadoptive license home study was
initiated for the grandfather and his partner but was delayed
when Ulon's mother sadly was killed in a car accident.
3 Around the same time that the mother died, the father
established paternity; thereafter, the department began working
with him to develop a plan for reunification. The father
received a series of action plans with tasks and services to
facilitate reunification. However, the father lacked any
motivation to parent Ulon. He avoided visits by ignoring calls
and messages from his social worker, failed to engage in
services or to make any improvements in his parenting skills,
and prioritized his hobbies, such as fixing cars, over
developing a bond with his son.
Early in the case, the grandmother reported to a department
social worker that she was the father's "custodian" because he
was "mild[ly] retarded." However, the department did not become
aware of any specific diagnosis until April 2021, shortly after
the father established paternity, when the department sought and
received records regarding the father's Social Security
Disability Insurance (SSDI) benefits. The SSDI records
described the father's disability as cognitive delays and
deficits. 2 The department subsequently updated the father's
2 The father was not aware he was receiving SSDI payments and, testifying at trial, disagreed with the diagnosis. The grandmother testified that the father had been receiving SSDI payments since he was sixteen years old, which she collected on his behalf. She also testified that the father knew he was receiving SSDI payments, but the judge did not credit this testimony.
4 action plan and included referrals for five different services
to accommodate his cognitive disabilities. The department also
offered to assist the father in applying for these services. He
refused all but one of them -- the neuropsychological evaluation
discussed below. The father did not want or believe he needed
services, and he did not want the department to "know his
business."
Seeking clarification of the father's disability to make
additional accommodations, the department in June 2021 sought a
court order to compel the father to undergo a neuropsychological
evaluation. The motion was allowed in early July 2021, about
five months before the trial began. The department referred the
father to an entity called Family Networks, which contracted
with an entity called Children's Charter. As of the time of
trial, the father was still on a waitlist for this evaluation. 3
In September 2021, the father's counsel independently
arranged for the father to participate in a neuropsychological
evaluation. The father appeared for the appointment but left
soon after it began because he was sweating and felt "weird."
3 The father's ongoing social worker called Family Networks multiple times inquiring if the father could be referred to a different contractor, but she was informed that Children's Charter was the only service available. The service was halted during the COVID-19 pandemic, and was just starting to resume services at the time of trial.
5 He refused to return for his make-up appointment the next day
and never completed the evaluation.
In October 2021, the father's counsel wrote a letter to the
department's ADA liaison requesting reasonable accommodations
for the father. The liaison responded one month later, stating
the department's position that the father's action plan already
provided him with sufficient accommodations.
Discussion. The father claims that the trial judge's
finding of unfitness violated the ADA because it did not take
into account the possibility the father could care for the child
with the support of the grandmother. He also argues that the
decision to terminate his parental rights violated the ADA
because the decree entered before the father could complete the
neuropsychological evaluation, denying him the opportunity to
benefit from accommodations tailored to his specific diagnosis.
1. The ADA. Congress enacted the ADA to "assure equality
of opportunity, full participation, independent living, and
economic self-sufficiency" for individuals with disabilities.
42 U.S.C. § 12101(a)(8). The relevant portion of the ADA
provides that "no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132. The ADA requires that
6 a public entity make "reasonable modifications" to allow
individuals with disabilities to receive the services or to
participate in the public entity's programs. 28 C.F.R.
§ 35.130(b)(7).
However, "proceedings to terminate parental rights under
G. L. c. 210, § 3, do not quality as 'services, programs, or
activities' under the ADA, and thus, the ADA may not be raised
as a defense to such proceedings" (citation omitted). Adoption
of Gregory, 434 Mass. 117, 120 (2001). The ADA does require
that the department provide appropriate services as reasonable
accommodations for a parent's disability. See id. "What
constitutes reasonable efforts . . . must be evaluated in the
context of each individual case." Care & Protection of Walt,
478 Mass. 212, 227 (2017).
2. Support from the grandmother. The department had the
burden to prove by clear and convincing evidence that the father
was unfit. See Adoption of Gregory, 434 Mass. at 125-126.
"Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. 705, 711 (1993).
The father contends that because of his disabilities, the
judge was required to factor family support into its fitness
7 determination, and that the judge erred by failing to consider
the possibility that assistance from the grandmother could
compensate for the father's unfitness. The father's sole
support for this claim is an investigation report from U.S.
Departments of Justice of Health and Human Services (DOJ/HHS
report), included as an addendum to his brief, examining a case
in which the department removed a newborn whose mother had a
cognitive disability. 4 The DOJ/HHS report found that the
department had overlooked the mother's significant efforts to
improve her parenting skills and her ability to care for her
child with the support of family members, who were available and
eager to help. Rather, the department insisted that the mother
demonstrate she could parent the child on her own, which the
report found to violate the ADA's requirement to reasonably
modify practices to accommodate disabilities. In addition, the
report faulted the department's "excessive focus" on obtaining a
neuropsychological evaluation and an exact diagnosis of the
mother's disability, despite the fact that the department
already possessed enough information to inform proper
accommodations.
4 See Investigation of the Massachusetts Department of Children and Families by the United States Departments of Justice and Health and Human Services Pursuant to the Americans with Disabilities Act and the Rehabilitation Act (DJ No. 204-36-216 and HHS No. 14-182176), dated January 29, 2015.
8 To the extent we may properly consider the DOJ/HHS report,
which was not brought to the attention of the trial judge, it
does not assist the father. Here, even without obtaining a
specific diagnosis, the department took numerous steps to ensure
that the father had access to appropriate services help him
learn parenting skills. The father's action plan included
referrals to several support services, and the department
offered to assist the father in applying for them. Rather than
taking advantage of these offers, the father rebuffed them. In
addition, at the father's request the ongoing social worker
regularly sent him text messages and left voice messages to
remind the father of visitation dates and other appointments --
to no avail.
Moreover, the judge did consider the grandmother's
assistance. She found that the father's behavior suggested that
the grandmother would not be merely assisting the father with
caretaking, but rather entirely handling Ulon's caretaking while
the father continued his pattern of prioritizing his interests
over Ulon's well-being. Unlike the mother in the DOJ/HHS
report, the father here has repeatedly demonstrated through
words and deeds that he had little interest in parenting his
son. The judge's determination that the father was unfit to
parent Ulon, with or without the grandmother's assistance, is
supported by clear and convincing evidence.
9 3. Failure to obtain evaluation. Despite the fact that
the father was on a waitlist to receive a neuropsychological
evaluation at the time of trial, we discern no error or abuse of
discretion in the judge's decision to terminate the father's
parental rights without waiting for the evaluation to be
completed. The department's obligation to work with the father
is "contingent upon his own obligation to fulfill various
parental responsibilities, including seeking and utilizing
appropriate services." Adoption of Daisy, 77 Mass. App. Ct.
768, 782 (2010), S.C., 460 Mass. 72 (2011). The record supports
the judge’s findings that the department repeatedly attempted to
enroll the father in services that could have both elucidated
and addressed his disabilities, which he refused. Additionally,
the father's counsel arranged for a private neuropsychological
evaluation, but the father left shortly after the evaluation
began and then refused to complete it. In her conclusion of law
concerning the father's disability and the department's efforts
to address it, the judge fully addressed this issue:
"The Department referred Father for a neuropsychological evaluation and parenting evaluation through Children's Charter. Due to the pandemic, Father remained on the waitlist of this service, despite the Department's attempt to speed up the process. At every stage of this care and protection case, Father has denied having a disability or disorder requiring particularized interventions. Nevertheless, the Department acted diligently in reaching out to Father about visits and appointments, asking Father what services he felt would assist him in developing his parenting skills, and communicating with Father in a way
10 that was clear for him to understand. . . . [T]he Department made reasonable efforts to engage Father and provide him with services that would have resulted in a better understanding of Father's limitations or needs. It was Father who failed to utilize such services and made the choice to ignore the Department's requests."
We are not persuaded by the father's circular argument that
his refusal to engage in services was a manifestation of his
disabilities, which the department should have addressed with
other services or accommodations. We also note that the DOJ/HHS
report relied on by the father criticized the department for
delaying services until it could obtain a precise diagnosis,
whereas here the father faults the department for moving forward
without a precise diagnosis. While the department must make
reasonable efforts to address special needs, "heroic or
extraordinary measures, however desirable they may at least
abstractly be, are not required." Adoption of Lenore, 55 Mass.
App. Ct. 275, 278 (2002). Nor was the judge required to wait
indefinitely to give the father additional opportunities to
engage in services to address his unfitness as a parent given
his well-established pattern of avoiding both services and
11 parenting. See Adoption of Nancy, 443 Mass. 512, 517 (2005).
Decree affirmed.
By the Court (Blake, Massing & Hand, JJ. 5),
Assistant Clerk
Entered: January 2, 2024.
5 The panelists are listed in order of seniority.