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-155
ADOPTION OF XICA. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree entered in the Juvenile
Court terminating her parental rights to her daughter, Xica, and
dispensing with the need for her consent to Xica's adoption.
The mother contends that (1) the judge abused her discretion by
denying the mother's motion to continue the trial so that she
could obtain additional evidence of her fitness; (2) the
evidence did not clearly and convincingly establish that she was
currently unfit to parent Xica or that her unfitness would
persist indefinitely because, among other things, a number of
the judge's findings are clearly erroneous and there was no
evidence that the mother's substance use disorders and mental
health challenges caused Xica harm; and (3) the judge erred in
concluding that the Department of Children and Families
1 A pseudonym. (department) made reasonable efforts to unite the mother with
Xica. 2 We affirm.
Background. We summarize the judge's findings and
conclusions as follows. The mother has three older children,
all of whom were removed from her care by the department before
Xica was born. 3 The maternal grandmother assumed permanent
guardianship of all three children, and they have been in her
custody since 2020. Xica was born in June 2023 and was one year
old at the time of trial. 4 During the course of her pregnancy
with Xica, the mother was often homeless and was incarcerated
for about five months, from September 2022 through February
2023. The mother's criminal history includes charges of assault
and battery, and a number of civil abuse and harassment
prevention orders have been issued against her. The mother has
also experienced mental health conditions and substance use
disorders for most of her adult life. These issues led, in
Xica has filed a brief arguing that the decree should be 2
affirmed.
This appeal does not concern these children. However, as 3
we discuss later, the judge made a number of findings regarding the circumstances which led to their removals from mother's care and relied on those findings in reaching her conclusions about Xica.
The mother reported that her pregnancy with Xica resulted 4
from a sexual assault by a man who never came forward for identification by the court. That person's parental rights to Xica also were terminated.
2 part, to the removals of her older children, and they persisted
during her pregnancy with Xica. 5 At one point, when the mother
was seven months pregnant, she was admitted to a hospital's
crisis stabilization unit where she presented with suicidal
ideations and tested positive for cocaine, cannabinoid
amphetamine, and benzodiazepine. Both Xica and the mother
tested positive for amphetamine and benzodiazepine when Xica was
born. Based on a number of factors, including Xica's substance
exposure at birth; the mother's criminal history, which at that
time included open warrants; the persistence of the mother's
mental health conditions; the mother's housing insecurity; and
the continuing lack of parental capacity that led to the
mother's three eldest children being placed in a guardianship
with the maternal grandmother, Xica was removed from the
mother's custody within a few days of her birth. The department
obtained temporary custody, and on her discharge from the
hospital, Xica was placed in a kinship foster home with her
maternal aunt and uncle, with whom she was living at the time of
trial. The aunt and uncle wish to adopt Xica, and they have
been approved as an adoptive family.
The mother's mental health diagnoses included 5
posttraumatic stress disorder (PTSD), borderline personality disorder, depression, alcohol and cannabis use disorders, "Bipolar I disorder," schizophrenia, schizoaffective disorder, and attention deficit hyperactivity disorder (ADHD).
3 After Xica was removed from the mother's custody and the
mother was discharged from the hospital, the mother was
incarcerated for about two months due to a violation of
probation. Thereafter, the mother entered and departed numerous
treatment facilities. First, she was admitted to a short-term
treatment program at a hospital, where she was diagnosed with
borderline personality disorder. While she was at this first
facility, the mother met with her department social worker and
agreed to an interim action plan, which, among other things,
required her to meet with her assigned worker monthly, inform
the department of any change in address, refrain from all
alcohol and nonprescribed substance use, and continue to engage
with all mental health providers. The mother also agreed to
postpone parenting time with Xica while she was at the first
facility due to its distance from Xica's foster home. About
three months later, in November 2023, a visit with Xica was held
and went well. By this time, the mother had moved to a second
facility, where she remained for a brief period before
transferring to a third facility. 6
6 While mother was at the second facility, the department updated her action plan to include weekly attendance at alcoholics and narcotics anonymous meetings ("AA" and "NA"), attending supervised visits with Xica, and obtaining appropriate and stable housing.
4 The mother was asked to leave the third facility after a
month due to an allegation that she had stolen another
resident's clothing. 7 The mother did not immediately inform the
department that she had left the third facility. A few weeks
later, she contacted her social worker and informed her that she
was in an inpatient program at a fourth facility. Soon
thereafter, in January 2024, the mother left that program, and
by February she had relocated to a sober home (fifth facility).
Meanwhile, on January 24, 2024, the department changed the
goal for Xica to adoption; it informed the mother of the change
in early February. About two weeks later, on February 22, 2024,
the department learned that the mother had voluntarily left the
sober home after taking Adderall in violation of the fifth
facility's rules. 8 Thereafter, the department was not aware of
where the mother was living until mid-March 2024, when she
relapsed by drinking alcohol and was admitted to the fourth
facility for a second time. The mother again presented with
suicidal ideations. By the end of April, the mother was
transferred to a clinical stabilization service program at a
7 The mother admitted to her department social worker that she took the clothing but maintained that the clothing did not belong to anyone. At trial, she testified that she was asked to leave the third facility because she was accused of stealing.
8 The next day, the mother had another supervised visit with Xica, which also went well.
5 sixth facility. The mother was then transitioned to an
affiliated center (seventh facility), where she had been
residing for two months prior to the commencement of the
termination of parental rights trial. The mother demonstrated
considerable progress while residing at the seventh facility,
and another visit with Xica took place on July 9, 2024, about
one week after the first day of trial. This visit also went
well, and the mother expressed her hope that the department
would not pursue the goal of adoption.
As noted, the termination of parental rights trial occurred
in July 2024. The judge heard testimony from the mother, two
department social workers assigned to the family, and Xica's
adoption social worker. On the basis of this testimony and
numerous exhibits, the judge adjudicated Xica in need of care
and protection and found that the mother was currently unfit to
parent Xica, that the mother's unfitness was likely to continue
into the future, and that adoption by the foster family was in
Xica's best interests. In reaching her conclusions, the judge
noted the mother's recent successful engagement in services but
found that those recent gains were negated by substantial
periods of noncompliance with action plan tasks, inability to
maintain sobriety, and lack of stable and appropriate housing.
In addition, the judge did not credit much of mother's testimony
and specifically did not credit the mother's testimony that she
6 had been sober for over a year. The judge further noted that at
times mother was combative and uncooperative with department
social workers, further undermining her progress. 9
Discussion. 1. Denial of motion to continue. The mother
asserts that the judge abused her discretion by denying the
mother's motion to continue, which was presented orally on the
first day of trial. She argued that additional time would
permit her to make further progress on her treatment, thereby
demonstrating that she had the ability to care for Xica. The
department and Xica objected, both contending that Xica was
entitled to permanency and that despite two months of positive
gains, the mother's history of instability, unmanaged substance
use disorders, and persistent mental health conditions were such
that a continuance would not result in any substantial showing
that the mother would become capable of parenting Xica. The
judge discussed the merits of the motion with the parties at
sidebar; however, that conversation was not recorded. Although
we do not know the entirety of what was said by the judge or the
parties, we nevertheless conclude that in the circumstances of
9 The judge noted exhibits offered by the department that contained e-mail exchanges between the mother and one social worker, and which showed the mother repeatedly swearing, accusing the department of having a bias against her, and insulting her family members.
7 this case, the judge did not abuse her discretion in denying the
motion.
"Whether to continue any judicial proceeding is a matter
entrusted to the sound discretion of the judge, and [the]
decision will be upheld absent an abuse of that discretion."
Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).
In ruling on a motion to continue, "the judge should 'balance
any prejudice to the other civil litigants which might result
from granting a stay'" (citation omitted). Id. at 122. See
Adoption of Ursa, 103 Mass. App. Ct. 558, 568 (2023).
Here, the mother argues that the judge failed to adequately
consider the prejudice to the mother that proceeding with trial
would have on her ability to demonstrate her fitness to parent
Xica. However, the mother did not file an affidavit in support
of her motion or make an offer of proof as to what additional
time might show. Nor did she renew her request when trial
resumed a few weeks later. While we recognize that a judge must
take a parent's recent positive gains into account, predictions
about a parent's future ability to parent a child must stem from
credible evidence. Here, there was little to no such evidence.
In view of the mother's history of entering and leaving numerous
treatment programs from the time Xica was born, and her
inability to maintain sobriety despite engaging in those
programs, the judge did not have an adequate basis on which to
8 conclude that additional time would produce evidence of the
mother's fitness. Furthermore, although the mother is correct
that the case had been pending for only a year when trial
commenced, that was Xica's entire life. Xica had been residing
in her preadoptive home the entire time and was entitled to an
expeditious proceeding, as Xica argues in her brief. See
Adoption of Raissa, 93 Mass. App. Ct. 447, 455 (2018), quoting
Custody of a Minor, 389 Mass. 755, 764 n.2 (1983) ("[n]o cases
of any kind have a greater claim for expedition at all stages
than those involving care and custody of children").
Lastly, there is no merit to the mother's claim that the
judge abused her discretion because she relied on the
department's and Xica's "meritless" assertions regarding the
mother's lack of consistent treatment and history of alcohol,
cocaine, and medication use in denying her motion. To the
contrary, the department's and Xica's assertions regarding these
issues were substantiated by evidence at trial.
2. Allegedly erroneous findings of fact. Next, the mother
argues that many of the judge's findings regarding the mother's
unfitness are clearly erroneous. "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.'" Adoption of
9 Larry, 434 Mass. 456, 462 (2001), quoting Custody of Eleanor,
414 Mass. 795, 799 (1993).
The mother first challenges the judge's findings regarding
her lengthy history of housing insecurity, struggling to manage
symptoms of mental health conditions, and use of alcohol,
cocaine, and prescribed and unprescribed medications. 10 She
claims generally that these subsidiary findings were not
supported by a preponderance of the evidence. See Care &
Protection of Laura, 414 Mass. 788, 793 (1993). To the
contrary, there was ample evidence establishing each of these
findings. Throughout her pregnancy with Xica, and three years
after her older children were placed in guardianship because of
persistent concerns that included insecure or inappropriate
housing, the mother was still living without shelter until, in a
span of seven months, she was incarcerated and then twice
admitted to a hospital. After Xica was born, the mother's
housing remained unstable; in thirteen months she was
incarcerated and moved between seven different treatment
facilities. By the time trial commenced the mother's housing
may have been "stable" in the two months prior to trial,
however, we do not think the judge was required to find it more
10The mother specifically challenges the judge's findings that she was chronically homeless and in unstable housing, that she has several untreated mental health conditions, and that she had a lengthy history with substance and alcohol abuse.
10 likely than not that the mother's housing instability had been
solved. With regard to the mother's mental health, the evidence
demonstrated that although the mother had begun individual
therapy by the time of trial, to address symptoms of her
conditions that interfered with her ability to provide minimally
acceptable care for Xica, she had not received consistent
treatment for the years preceding trial. The judge therefore
had no basis for concluding that individual therapy alone was
likely to suffice. The mother was diagnosed with ADHD,
depression, PTSD, and borderline personality disorder, and was
hospitalized with suicidal ideations while she was pregnant with
Xica and again after Xica was born. The mother's use of
alcohol, cocaine, and unprescribed medications was well
documented, and while the mother laudably entered various
treatment facilities in an attempt to obtain and maintain
sobriety, she was not successful. This contributed to her
overall instability. As the judge specifically noted, the
mother has "required inpatient care on multiple occasions due to
relapse [and] overdose."
The mother also challenges the judge's subsidiary findings
regarding the number of prenatal appointments the mother
attended, 11 the mother's reason for leaving the fifth facility,
11Specifically, the mother testified that she attended eight prenatal visits, but the judge did not credit this
11 and her reasons for taking Suboxone. With regard to these
facts, the mother essentially argues that the judge should have
credited the mother's testimony. Assessing the credibility of a
witness, however, is "quintessentially the domain of the trial
judge," and is "close to immune from reversal on appeal except
on the most compelling of showings." Johnston v. Johnston, 38
Mass. App. Ct. 531, 536 (1995). The mother has not made such a
showing here.
Next, the mother argues that there was not clear and
convincing evidence of her unfitness because some of the judge's
subsidiary findings are contradicted by others. First, the
mother says, the judge found that the mother's older children
were removed from her care (finding eight), yet also found that
the mother signed a caregiver affidavit granting custody of
those children to the maternal grandmother (finding forty-two).
The fact that in 2020 the mother agreed to permanent placement
of her older children with a relative does not contradict that,
years earlier, they were removed from the mother's care.
Lastly, the mother correctly argues that two findings -- (1)
testimony and found instead that the mother had only attended four. In addition, the mother testified that she had to leave the fifth facility to take her prescribed Adderall, but the judge did not credit this testimony. And, the mother testified that she was prescribed Suboxone for pain management due to her fibromyalgia and that it was unrelated to her substance use disorders, but the judge did not find that testimony credible.
12 that Xica was in the neonatal intensive care unit for a period
following her birth, and (2) that the mother's social worker
could not confirm the mother's location between July 10, 2023,
and September 25, 2023 -- are clearly erroneous as neither is
supported by the evidence. However, the relevance of these two
findings is marginal, and they do not affect the judge's overall
conclusion of parental unfitness. See Adoption of Yalena, 100
Mass. App. Ct. 542, 553-554 (2021).
3. Nexus between mental health challenges and use of
substances. The mother next argues that the judge's findings
did not establish a sufficient nexus between the mother's mental
health conditions and her ability to provide for Xica, or
between her substance use disorders and her ability to parent.
We are not persuaded.
We recognize that a mental health condition is "relevant
only to the extent that it affects the parents' capacity to
assume parental responsibility." Adoption of Luc, 484 Mass.
139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9
(1989). Here, the issue was not that the mother had received
numerous mental health diagnoses and was prescribed many
medications, the issue was that the symptoms of her conditions,
like suicidal ideations, persisted and interfered with her
ability to achieve a level of stability where Xica could be
placed with her. Because the mother had not sufficiently
13 acknowledged that the symptoms which interfere with her
functioning are related to mental health conditions, she had not
treated them to an extent that she could provide minimally
acceptable care for herself, let alone herself and Xica. See
Adoption of Luc, 484 Mass. at 146 n.17. As to the mother's use
of substances, the judge properly concluded that the mother's
ongoing use of alcohol, cocaine, and medication contributed to
her neglect of Xica. The judge noted that Xica was born
substance exposed and that the mother tested positive for
illicit substances during the pregnancy.
4. Reasonable efforts. For the first time on appeal, the
mother claims that the department failed to make reasonable
efforts to unify her with Xica. Because this issue was not
raised in a timely manner, it is waived. See Adoption of
Yalena, 100 Mass. App. Ct. at 554. However, even if preserved,
the claim lacks merit.
"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), citing Adoption of Ilona, 459 Mass. 53, 61-62 (2011).
Such is not the case here.
The mother first argues that the department failed to
schedule visits with Xica. While the mother did often ask for
visits, she was not always available to attend them, due to her
14 incarceration and the fact that her initial temporary placement
was at a facility located too far for Xica to travel. At times
the mother was not in communication with the department;
additionally, it was difficult to schedule visits with the
mother when she moved between treatment facilities almost on a
monthly basis. Moreover, even if the department did not
adequately facilitate visits, where, as here, the judge's
decision is based on an analysis of what is in the child's best
interests, we discern no error. See Care & Protection of
Rashida, 489 Mass. 128, 133 (2022).
The mother also argues that the department did not provide
her with adequate assistance in finding service providers.
While it is true that the mother secured services on her own, it
was not unreasonable for the department to expect her to do so.
Furthermore, as the judge noted, the department provided support
and referrals to address the mother's needs, but the mother was
often resistant to such suggestions, particularly those that
15 were recommended to the mother to assist her in obtaining and
maintaining sobriety from alcohol and nonprescribed medications.
Decree affirmed.
By the Court (Vuono, Massing & Allen, JJ. 12),
Clerk
Entered: November 12, 2025.
12 The panelists are listed in order of seniority.