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-1110
ADOPTION OF YVES. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found the
mother unfit to parent Yves, awarded permanent custody of Yves
to the Department of Children and Families (department), and
terminated the mother's parental rights. 2 On appeal, the mother
argues that the department failed to make reasonable efforts to
reunify her with Yves, and that the judge erred in finding that
the mother's unfitness was not temporary and in applying several
statutory factors against her. We affirm.
1. Background. We summarize the facts as found by the
judge, all of which find ample support in the record.
1 A pseudonym.
2The father's rights were also terminated; he is not a party to this appeal. a. The mother. The mother first became involved with the
department in 2007 when she was a child and the department filed
a petition pursuant to G. L. c. 119, § 24, for the mother's
protection. The mother was placed with a foster parent, who
later adopted her in 2009, and the case was closed. From June
2017 to August 2018, the mother was in the department's custody
as a result of a child requiring assistance petition. The
mother stopped attending school at the age of fifteen, and ran
from her placements, ultimately returning to live with the
maternal grandmother when she turned eighteen years old.
As a child, the mother had an individualized education plan
for her low intelligence quotient of 67 and received services
from the Department of Developmental Services (DDS). She was
diagnosed with multiple mental health conditions, 3 was prescribed
medications for these conditions, and participated in therapy
from the ages of fifteen to eighteen. The mother was
hospitalized as a child for suicidal ideation and self-injurious
behavior. One year before Yves was born, the mother stopped her
mental health treatment, medications, and DDS services and began
to self-medicate daily with marijuana, smoking "one or two
blunts per day." She relied heavily on her supports, i.e., the
3 The mother has been diagnosed with attention deficit hyperactivity disorder, generalized anxiety disorder, oppositional defiant disorder, depression, and bipolar disorder.
2 maternal grandmother and the father. The mother admitted to
cutting her wrists when she gets upset and as recently as May
2022, cut herself after a fight with the father.
b. The child. The department became reinvolved with the
mother shortly after Yves was born in 2020, when the department
received two reports, filed pursuant to G. L. c. 119, § 51A (51A
reports), alleging neglect of Yves. The reports alleged that
Yves was born substance exposed to marijuana and that the mother
could not control her anger, presenting as irrational, erratic,
and lacking impulse control. She yelled and was abusive to the
nursing staff and lacked basic childcare supplies such as a car
seat, crib, and diapers. On one occasion, the hospital staff
called the police due to the parents' verbal aggression towards
them. The mother left the hospital against medical advice. The
allegations in the 51A reports were supported after an
investigation conducted pursuant to G. L. c. 119, § 51B (51B
investigation), and the case was opened for services.
The department attempted to connect the mother with
numerous services, making referrals to early intervention
services, two parent partner programs, and DDS services. The
mother did not follow up with three early intervention
referrals, and the while the mother completed an intake for the
fourth referral, her case was closed when she failed to show up
for a scheduled appointment. The department social worker
3 offered to arrange childcare, but the mother declined and said
she could "watch [her] own kid." The mother was assigned a
parent partner, Alayjah Flores, and received assistance from
Flores with completing her DDS application and other tasks. The
DDS application was not completed because the mother did not
sign it, and despite efforts by DDS workers to contact the
mother, she never signed the application and never received DDS
services. Flores also referred the mother to a "Nurturing
Family Program" and transported the mother to an intake
appointment, but the mother did not attend the follow-up
appointment. The mother had difficulty maintaining contact with
her service providers; and she failed to sign or comply with her
action plan, sign releases, or engage in therapy or a parenting
program.
c. The child's removal. On August 23, 2021, Flores
conducted a home visit with the mother at the maternal
grandmother's home. The father became upset because Flores did
not greet him when she arrived. The mother yelled at Flores.
The mother's younger brother entered the room holding Yves. The
father attacked the mother's brother, and Yves was dropped to
the floor. The maternal grandmother called the police and the
department. The father was arrested. Three additional 51A
reports were filed, and later supported after a 51B
investigation. One of the 51A reports alleged that after the
4 incident, the mother was emotional and screaming while walking
in the middle of the street with Yves in a stroller. The
department filed a petition pursuant to G. L. c. 119, § 24, and
obtained temporary custody of Yves after the judge found that he
was in need of care and protection.
d. Departmental involvement. After Yves was removed, the
department had difficulty reaching the mother, as the parents
changed their phone number numerous times and did not respond to
calls and text messages. The mother was assigned a new parent
partner; this social worker attempted to visit the mother and
the father six times from August through October 2021. The
mother was ultimately discharged from the program due to lack of
engagement. She refused to sign her action plan and releases
because the father persuaded her not to. She completed five
hours of a parenting class in the fall 2022, but did not
complete the following eight classes necessary to receive a
certificate of completion. She admitted she could spend an hour
a week in therapy but chose not to participate. The judge found
that the mother "never meaningfully nor substantially engaged in
the tasks on her Action Plan pursuant to [the father's] advice
that she did not need to engage in services."
e. Visitation. The mother missed at least half of her
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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
24-P-1110
ADOPTION OF YVES. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, a judge found the
mother unfit to parent Yves, awarded permanent custody of Yves
to the Department of Children and Families (department), and
terminated the mother's parental rights. 2 On appeal, the mother
argues that the department failed to make reasonable efforts to
reunify her with Yves, and that the judge erred in finding that
the mother's unfitness was not temporary and in applying several
statutory factors against her. We affirm.
1. Background. We summarize the facts as found by the
judge, all of which find ample support in the record.
1 A pseudonym.
2The father's rights were also terminated; he is not a party to this appeal. a. The mother. The mother first became involved with the
department in 2007 when she was a child and the department filed
a petition pursuant to G. L. c. 119, § 24, for the mother's
protection. The mother was placed with a foster parent, who
later adopted her in 2009, and the case was closed. From June
2017 to August 2018, the mother was in the department's custody
as a result of a child requiring assistance petition. The
mother stopped attending school at the age of fifteen, and ran
from her placements, ultimately returning to live with the
maternal grandmother when she turned eighteen years old.
As a child, the mother had an individualized education plan
for her low intelligence quotient of 67 and received services
from the Department of Developmental Services (DDS). She was
diagnosed with multiple mental health conditions, 3 was prescribed
medications for these conditions, and participated in therapy
from the ages of fifteen to eighteen. The mother was
hospitalized as a child for suicidal ideation and self-injurious
behavior. One year before Yves was born, the mother stopped her
mental health treatment, medications, and DDS services and began
to self-medicate daily with marijuana, smoking "one or two
blunts per day." She relied heavily on her supports, i.e., the
3 The mother has been diagnosed with attention deficit hyperactivity disorder, generalized anxiety disorder, oppositional defiant disorder, depression, and bipolar disorder.
2 maternal grandmother and the father. The mother admitted to
cutting her wrists when she gets upset and as recently as May
2022, cut herself after a fight with the father.
b. The child. The department became reinvolved with the
mother shortly after Yves was born in 2020, when the department
received two reports, filed pursuant to G. L. c. 119, § 51A (51A
reports), alleging neglect of Yves. The reports alleged that
Yves was born substance exposed to marijuana and that the mother
could not control her anger, presenting as irrational, erratic,
and lacking impulse control. She yelled and was abusive to the
nursing staff and lacked basic childcare supplies such as a car
seat, crib, and diapers. On one occasion, the hospital staff
called the police due to the parents' verbal aggression towards
them. The mother left the hospital against medical advice. The
allegations in the 51A reports were supported after an
investigation conducted pursuant to G. L. c. 119, § 51B (51B
investigation), and the case was opened for services.
The department attempted to connect the mother with
numerous services, making referrals to early intervention
services, two parent partner programs, and DDS services. The
mother did not follow up with three early intervention
referrals, and the while the mother completed an intake for the
fourth referral, her case was closed when she failed to show up
for a scheduled appointment. The department social worker
3 offered to arrange childcare, but the mother declined and said
she could "watch [her] own kid." The mother was assigned a
parent partner, Alayjah Flores, and received assistance from
Flores with completing her DDS application and other tasks. The
DDS application was not completed because the mother did not
sign it, and despite efforts by DDS workers to contact the
mother, she never signed the application and never received DDS
services. Flores also referred the mother to a "Nurturing
Family Program" and transported the mother to an intake
appointment, but the mother did not attend the follow-up
appointment. The mother had difficulty maintaining contact with
her service providers; and she failed to sign or comply with her
action plan, sign releases, or engage in therapy or a parenting
program.
c. The child's removal. On August 23, 2021, Flores
conducted a home visit with the mother at the maternal
grandmother's home. The father became upset because Flores did
not greet him when she arrived. The mother yelled at Flores.
The mother's younger brother entered the room holding Yves. The
father attacked the mother's brother, and Yves was dropped to
the floor. The maternal grandmother called the police and the
department. The father was arrested. Three additional 51A
reports were filed, and later supported after a 51B
investigation. One of the 51A reports alleged that after the
4 incident, the mother was emotional and screaming while walking
in the middle of the street with Yves in a stroller. The
department filed a petition pursuant to G. L. c. 119, § 24, and
obtained temporary custody of Yves after the judge found that he
was in need of care and protection.
d. Departmental involvement. After Yves was removed, the
department had difficulty reaching the mother, as the parents
changed their phone number numerous times and did not respond to
calls and text messages. The mother was assigned a new parent
partner; this social worker attempted to visit the mother and
the father six times from August through October 2021. The
mother was ultimately discharged from the program due to lack of
engagement. She refused to sign her action plan and releases
because the father persuaded her not to. She completed five
hours of a parenting class in the fall 2022, but did not
complete the following eight classes necessary to receive a
certificate of completion. She admitted she could spend an hour
a week in therapy but chose not to participate. The judge found
that the mother "never meaningfully nor substantially engaged in
the tasks on her Action Plan pursuant to [the father's] advice
that she did not need to engage in services."
e. Visitation. The mother missed at least half of her
visits with Yves and frequently ended the visits early. Some of
the visits were canceled due to the mother's failure to confirm
5 the day before; others were canceled or missed by the mother.
The mother canceled one visit with Yves to accompany the father
to a court appearance. Despite encouragement to do so, the
mother did not bring food, toys, or supplies to visits.
f. The mother's relationship with the father. At the time
of trial, the mother and the father had been in a relationship
for four years. The mother was heavily influenced by her
relationship with the father: she sold her Supplemental
Nutrition Assistance Program benefits so that the father could
purchase a motorcycle; the father took the mother's electronic
benefits transfer card to work, leaving her unable to purchase
food; and the mother and the father shared one cell phone. The
police responded to altercations between the mother and the
father five times in 2022. Throughout the case, the father
refused to sign his action plan and releases and persuaded the
mother not to sign hers.
g. Goal change and termination trial. On May 26, 2022,
the department's goal for Yves was changed to adoption. After
three days of trial in October and November 2023, the judge
terminated the mother's parental rights, finding that the mother
was unfit to parent Yves and that termination was in Yves's best
interests. The judge also found that the department made
reasonable efforts to prevent the need to remove Yves, preserve
6 the biological ties between Yves and the mother, and reunify
Yves and the mother. This appeal followed.
2. Discussion. The mother contends that the judge erred
in finding that her unfitness 4 was not temporary because the
department failed to provide her with "reasonable and accessible
services designed to help her reunify her with [Yves]." Because
of this alleged failure, the mother argues that the judge erred
in applying certain G. L. c. 210, § 3 (c), factors.
a. Reasonable efforts. "[T]he department must make
'reasonable efforts' aimed at restoring the child to the care of
the natural parents." Adoption of Ilona, 459 Mass. 53, 60
(2011), quoting Adoption of Leonore, 55 Mass. App. Ct. 275, 278
(2002). Where, as here, the mother has cognitive limitations,
the department's duty to make reasonable efforts includes
providing "services that accommodate the special needs of a
parent." Adoption of Ilona, supra at 61. However, it is also
"well-established that a parent must raise a claim of inadequate
services in a timely manner so that reasonable accommodations
may be made." Adoption of Daisy, 77 Mass. App. Ct. 768, 781
(2010), S.C., 460 Mass. 72 (2011), citing Adoption of Gregory,
434 Mass. 117, 124 (2001). The mother first challenged the
department's "de minimis" efforts regarding her cognitive
4 The mother did not contest her fitness at the time of trial.
7 limitations at trial; this challenge was untimely. 5 See Adoption
of Gregory, supra (parent may not raise inadequate services
claim alleging that department failed to accommodate disability
for first time at termination proceeding).
The mother contends that her claim of inadequate services
is not untimely because her cognitive limitations and difficulty
accessing services were a "theme that ran through the life of
the case." Adoption of Chad, 94 Mass. App. Ct. 828, 839 n.20
(2019). The mother's comparison to Chad is inapposite. Chad
was decided before our courts explained the framework to raise a
claim of inadequate services, see Care and Protection of
Rashida, 488 Mass. 217 (2021), and Adoption of Yalena, 100 Mass.
App. Ct. 542 (2021), and the mother was represented by counsel
who could have properly and timely raised the issue. See
Adoption of Gregory, 434 Mass. at 124. The facts in Chad are
also readily distinguishable. There, the mother's cognitive
5 The mother claims that she sent the department a letter requesting reasonable accommodations in July 2022. The letter is not part of the trial record, however, and it was improper for the mother to attach it to her reply brief. See Adoption of Gertrude, 99 Mass. App. Ct. 817, 820 (2021) (appellate review is limited to trial record). Furthermore, the mother acknowledges that she never filed a motion requesting a reasonable efforts determination under G. L. c. 119, § 29C; nor did she file an abuse of discretion motion. See Care and Protection of Rashida, 488 Mass. 217, 230 (2021); Adoption of Yalena, 100 Mass. App. Ct. 542, 549 n.14 (2021). We need not consider claims of inadequate services not properly raised below. See Adoption of Daisy, 77 Mass. App. Ct. at 781.
8 issues and weight-related immobility were the department's
primary concern; she received specialized assistance from the
DDS, and meaningfully engaged in services offered by DDS and the
department. See Adoption of Chad, supra at 829-835. Here, the
mother chose not to receive specialized assistance, admitted she
could attend therapy but chose not to, and rejected or
discontinued the services offered to her by the department. Her
claim of inadequate accommodations and services was not timely
raised and is therefore waived, Adoption of Daisy, 77 Mass. App.
Ct. at 781, citing Adoption of Gregory, supra, and in any event,
the record does not support her claim. See Adoption of West, 97
Mass. App. Ct. 238, 245 (2020). The mother has failed to
demonstrate that the judge's finding that the department made
reasonable reunification efforts was clearly erroneous. Id. at
245-246.
b. Future unfitness. The mother did not contest her
unfitness at the time of trial and now maintains that the judge
erred in finding that her unfitness was likely to continue
indefinitely because the department failed to provide services
to her. "We give substantial deference to the judge's findings
of fact and decision, and will reverse only 'where the findings
of fact are clearly erroneous or where there is a clear error of
law or abuse of discretion.'" Adoption of Luc, 484 Mass. 139,
144 (2020), quoting Adoption of Ilona, 459 Mass. at 59.
9 Throughout this case, the mother did not address her
behavioral health or cognitive limitations, despite having
previously participated in therapy and received services from
DDS. The department made numerous referrals for services,
helped the mother fill out her DDS application, and transported
her to an intake appointment with the Nurturing Family Program.
The mother did not meaningfully engage with these services, and
as a result, the judge found that her unwillingness to do so
"indicates that her behavior will continue into the future."
The failure to comply with services and action plan tasks is
relevant to a parent's fitness. See Adoption of Rhona, 63 Mass.
App. Ct. 117, 126 (2005). A parent's unaddressed mental health
conditions that affect her capacity to assume parental
responsibility and her unwillingness to obtain treatment are
also relevant to the fitness determination. See Adoption of
Luc, 484 Mass. at 146-147; Adoption of Frederick, 405 Mass. 1, 9
(1989). The judge did not abuse her discretion in finding the
mother unfit and that her unfitness was likely not temporary.
c. Statutory factors. The mother contends that it was an
error of law for the judge to apply three statutory factors, all
of which required the department to have "provided the parent
with services intended to rectify [her] parental challenges."
For example, to apply G. L. c. 210, § 3 (c) (ii), the judge must
find that the parent was "offered or received services intended
10 to correct the circumstances which led to the abuse or neglect
and refused or [was] unable to utilize such services on a
regular and consistent basis." 6 We need not reach this argument,
as it is based on the mother's waived contention that the
department provided inadequate services, a claim that in any
event we have determined was unsupported by the record.
Decree affirmed.
By the Court (Blake, C.J., Shin & Walsh, JJ. 7),
Clerk
Entered: June 2, 2025.
6 The mother challenges the application of factors (ii), (v), and (vi).
7 The panelists are listed in order of seniority.