Adoption of Hera.

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-1454

ADOPTION OF HERA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a Juvenile Court

judge finding her unfit to parent her daughter, Hera,

terminating her parental rights, and approving the plan of the

Department of Children and Families (DCF) for the adoption of

the child by her foster parents. The mother contends that the

judge erred in (1) denying her counsel's motion to withdraw and

(2) finding that DCF met its evidentiary burden at trial to

prove parental unfitness. We affirm.

Background. We summarize the judge's findings of fact,

reserving certain details for later discussion.2 Hera was born

1 A pseudonym.

2The judge made 128 "specific and detailed findings" and
thirty-four conclusions of law in support of her decision to
terminate the mother's parental rights, which "demonstrate that
close attention has been given the evidence." Custody of
in January 2018. In April 2018, a report was filed pursuant to

G. L. c. 119, § 51A (51A report), alleging neglect of Hera.

DCF's ensuing investigation revealed the mother was not

following the rules of the shelter in which she was residing

with Hera; notably, on multiple occasions, the mother left the

oven door open while it was on in order to heat the living

space, even after being told to refrain from doing so. The

mother's noncompliance jeopardized her placement at the shelter.

DCF also learned that Hera was not up to date with her medical

appointments and that the mother was not showing up to scheduled

appointments. DCF's investigation resulted in a finding of

substantiated concern, and DCF opened a case for services for

both the mother and Hera.

In December 2018, another 51A report was filed alleging

neglect of Hera due to concerns that she smelled of marijuana

and did not have an appropriate amount of food or clothing when

she was dropped off at day care. DCF learned the mother was

occasionally leaving Hera in the maternal grandmother's care

despite concerns related to the maternal grandmother's criminal

Eleanor, 414 Mass. 795, 799 (1993). The mother does not
challenge any factual findings.

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history. In January 2019 DCF concluded that the allegation of

neglect was supported.3

One month later, another 51A report alleging neglect was

filed when the mother and Hera left the shelter and could not be

contacted for eleven days, and shelter workers found smoking

pipes with aluminum foil and ashes in the mother's room. Once

the mother and Hera were located, the mother did not explain her

absence or where she had resided with Hera. When DCF spoke with

the mother, she admitted she was overwhelmed and felt that she

needed to be hospitalized. The mother agreed to give DCF

immediate custody of Hera while the mother was hospitalized.

The mother and Hera were reunited a year and one-half

later, at the end of 2020. DCF informed the mother that the

reunification took place on the condition that the mother and

Hera maintain residence with the mother's aunt. Within the

first month of being reunited, police officers responded to two

reports of domestic disputes between the mother and her

3 As applicable to this case, DCF's regulations provided
that a 51A report would be "supported" if DCF "ha[d] reasonable
cause to believe that an incident (reported or discovered during
the investigation) of abuse or neglect by a caretaker did
occur." 110 Code Mass. Regs. § 4.32(2) (2009). To support a
report does not mean that DCF has made any finding with regard
to the perpetrator(s) of the reported incident of abuse or
neglect. It simply means that there is reasonable cause to
believe that some caretaker did inflict abuse or neglect upon
the child in question. See id.

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boyfriend -- one of which occurred in front of Hera. Another

51A report was filed in December 2020.

In February 2021, police responded to a call for medical

assistance involving Hera. The mother's boyfriend had found

Hera playing with an open bottle of melatonin pills, but the

bottle was empty, and no pills could be found. The police filed

a 51A report and the mother took Hera to the hospital the next

day. At the hospital, the mother admitted to a DCF worker that

she had consumed four or five shots of alcohol and smoked

marijuana before the incident. The mother also admitted she was

not living with her aunt and had been staying with her boyfriend

and with the maternal grandmother. DCF's investigation

determined that Hera faced an imminent risk of danger from

exposure to the mother's substance use, domestic violence

between the mother and her boyfriend, and overall lack of

supervision; accordingly, Hera was removed from the mother's

custody and returned to the foster home in which she had

previously resided.

Over the course of her involvement with DCF, the mother

continually failed to complete the tasks in her action plans.

For example, the mother failed to secure stable and safe

permanent housing, failed to find consistent employment and did

not apply for benefit programs, was not consistent with

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treatment for her mental health or substance use, and would not

sign releases so that DCF could confirm progress or

participation in any treatment services. The mother was

initially consistent in attending visits when Hera was first

removed, but upon Hera's second removal, the mother would appear

late for in-person visits and rarely attended virtual visits.

Hera has been placed with the same foster parents upon both

removals, and DCF's goal for Hera was adoption by the foster

parents.

Procedural History. On February 26, 2019, DCF filed the

underlying care and protection petition in the Juvenile Court.

In March 2019, the court granted DCF temporary custody of Hera

after mother waived her right to a temporary hearing. A trial

on the petition for a review and redetermination began on June

2, 2023.

Over the course of the underlying proceedings, three

different attorneys were appointed to represent the mother; the

first two attorneys were allowed to withdraw. About eight

months the mother's third attorney was appointed, the attorney

submitted a motion to withdraw, citing communication concerns

with the mother. At a hearing, the mother and the third

attorney came to an agreement regarding representation, and the

motion was denied.

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About two weeks before trial, the mother's attorney filed a

second motion to withdraw, again citing communication concerns

as the basis for the motion. No action was taken on the motion

before trial, and counsel renewed the motion on the day of the

trial. The mother was not present at the trial but had notice

of the motion and the time of the trial because she had been in

contact with her counsel the day before. Concluding that the

mother had not abandoned the trial, the judge denied the motion

to withdraw. The judge also denied the motion to keep the

record open to allow the mother to make an appearance, again

because she had notice of the trial.

The judge drew a negative inference from the mother's

absence from the trial. See Adoption of Talik, 92 Mass. App.

Ct. 367, 371-372 (2017) ("Where a parent has notice of a

proceeding to determine [their] parental rights and the parent

does not attend or provide an explanation for not attending, the

absence may suggest that the parent has abandoned [their] rights

in the child or cannot meet the child's best interests"). DCF

called two witnesses, the ongoing social worker and the foster

mother, and submitted twenty-eight exhibits. Based on her

detailed findings, the judge concluded that the mother was

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currently unfit, that her unfitness was likely to continue, and

that adoption was in Hera's best interests.4

Discussion. 1. Right to counsel. The mother argues it

was improper for the judge to deny counsel's motion to withdraw

and that the denial effectively denied the mother her right to

counsel in a termination trial. We are not persuaded.

"Parents have a fundamental liberty interest in maintaining

custody of their children, which is protected by the Fourteenth

Amendment to the United States Constitution" (citation omitted).

Adoption of Rory, 80 Mass. App. Ct. 454, 457-458 (2011).

Because of the due process rights implicated, "[a]n indigent

parent in a G. L. c. 210, § 3, proceeding has a constitutional

right to counsel." Adoption of Raissa, 93 Mass. App. Ct. 447,

451-452 (2018), quoting Adoption of William, 38 Mass. App. Ct

661, 663 (1995).5 "That right, however, is not absolute."

Adoption of Olivia, 53 Mass. App. Ct. 670, 674 (2002). For

example, the right "does not include the right to dictate who

shall be appointed," but it does include an opportunity to move

4 The judge found that posttermination and postadoption
visitation with the mother was in Hera's best interests and
accordingly ordered a minimum of two visits per year.

5 In recognizing this right, this court has turned to
criminal case law for guidance in decisions involving the right
to counsel. See Care & Protection of Stephen, 401 Mass. 144,
149 (1987).

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for substitution of counsel if the parent shows "good cause."

Id. at 675. "Good cause includes, but is not limited to, a

conflict of interest, incompetence of counsel, or an

irreconcilable breakdown in communication" (quotation and

citation omitted). Id.

"We review the denial of a motion to withdraw counsel for

abuse of discretion." Commonwealth v. Melo, 472 Mass. 287, 304

(2015). Especially when a motion to withdraw is filed on the

day of the trial, "[a] judge must balance the interests of the

parent with the child's interest in finality." Adoption of

Valentina, 97 Mass. App. Ct. 130, 134 (2020).

"Keeping the attorney in the case has numerous advantages,
akin to those gained from appointing advisory counsel for
parents proceeding pro se. . . . If the parent appears at
some point in the trial or contacts her attorney to provide
instructions, the attorney will be able to act in
furtherance of those instructions, without requiring any
delay in the proceedings. If the parent does not do either
of these things, then the attorney will be able to describe
to the parent what has occurred and can file any
appropriate posttrial motions if so instructed. Finally,
the attorney may assist the court, as the attorney did
here, by acting as an officer of the court and objecting
to, among other things, errors in the presentation of the
evidence."
Id. at 135-136.
Here, as in Adoption of Valentina, 97 Mass. App. Ct. at

135, the mother would have gone unrepresented had the judge

allowed the motion to withdraw. Even though the attorney in

that case went forward with "no position" because the mother had

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provided no instructions, we concluded that continuing the

attorney's representation "constitute[d] sound practice" for the

very reasons discussed above. Id. We are not convinced that

because the attorney here had instructions to withdraw, this

case is significantly different. If anything, the fact that the

mother in this case was not present at the trial made it even

more pressing to ensure someone represented her interests, even

if that person was not the mother's preferred counsel. See

Adoption of Olivia, 53 Mass. App. Ct. at 674-675.

Additionally, the judge established on the record that the

attorney here, like the attorney in Adoption of Valentina, "made

diligent efforts to contact the client," and even established

that the mother had responded to the attorney the day before

trial. 97 Mass. App. Ct. at 136. The judge properly concluded

from this communication that the mother had not abandoned the

proceedings and that allowing the motion to withdraw would be

improper. See Adoption of Rory, 80 Mass. App. Ct. at 459

(father's text message on day before trial, previous

communications with attorney, and previous appearances in court

showed father had not abandoned proceedings and thus striking

his attorney's appearance violated his due process rights).

Despite the difficulty in communication between the mother and

her counsel, the attorney in this case nevertheless did as we

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described in Adoption of Valentina -- made timely objections,

cross-examined DCF witnesses, made a closing argument, argued

for the mother's visitation with the child, and filed a timely

notice of appeal. Accordingly, we cannot say it was an abuse of

discretion for the judge to deny the motion to withdraw. See

Adoption of Valentina, supra at 134-135.

2. Motion to leave the record open. The mother also

argues that the trial judge erred in denying the request to keep

the record open because it denied the mother a meaningful

opportunity to be heard. A judge's decision to leave the record

open so a witness can appear is "an aspect of case management

about which [the judge] ha[s] broad discretion." Adoption of

Abigail, 23 Mass. App. Ct. 191, 199 (1986). See Adoption of

Gillian, 63 Mass. App. Ct. 398, 409-410 (2005) ("The decision on

whether to continue any judicial proceeding is a matter

entrusted to the sound discretion of the judge, and the judge's

decision will be upheld absent an abuse of that discretion").

In exercising that discretion, a judge balances the interests of

the parent with those of the child. See Adoption of Valentina,

97 Mass. App. Ct. at 134. See also Adoption of Olivia, 53 Mass.

App. Ct. at 675-676 (no abuse of discretion where record

indicated judge balanced competing interests).

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Here, the mother's attorney requested the record be kept

open so the mother could provide testimony. The attorney argued

that the mother never said she was not going to appear, and

advised the judge, "I would like to do my best to get her

present and hopefully give testimony." However, the judge

pointed out that the attorney had heard from the mother the day

before trial and the mother was aware of the trial dates from

both the attorney and the DCF social worker, yet the mother

failed to appear. The judge had knowledge of the mother's

previous difficulty in communicating with her attorney, was the

same judge who denied the previous motion to withdraw for the

current attorney, and had just heard the testimony of two

witnesses and admitted twenty-eight trial exhibits. In this

context, the judge could properly balance the interest of giving

the mother the opportunity to provide testimony, if she would

take it, with the best interests of the child based on the

totality of the record. See Adoption of Olivia, 53 Mass. App.

Ct. at 675. Accordingly, we cannot say the judge's decision

amounted to a "clear error of judgment" that fell "outside the

range of reasonable alternatives." Adoption of Talik, 92 Mass.

App. Ct. 367, 375 (2017), quoting L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

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3. The sufficiency of the evidence to terminate the

mother's parental rights. "To terminate parental rights to a

child and to dispense with parental consent to adoption, a judge

must find by clear and convincing evidence, based on subsidiary

findings proved by at least a fair preponderance of evidence,

that the parent is unfit to care for the child and that

termination is in the child's best interest" (citation omitted).

Adoption of Bea, 97 Mass. App. Ct. 416, 421-422 (2020). "The

judge must also find that the current parental unfitness is not

a temporary condition" (quotation and citation omitted).

Adoption of Arianne, 104 Mass. App. Ct. 716, 720 (2024). In

making such a conclusion, a judge "may consider past conduct to

predict future ability and performance" (citation omitted).

Adoption of Rhona, 57 Mass. App. Ct. 479, 485 (2003).

"On appeal, [w]e give substantial deference to the judge's

decision that termination of a parent's rights is in the best

interest of the child, and reverse only where the findings of

fact are clearly erroneous or where there is a clear error of

law or abuse of discretion" (quotation and citation omitted).

Adoption of Bea, 97 Mass. App. Ct. at 422. "An abuse of

discretion exists where the decision amounts to a clear error of

judgment [in weighing the relevant factors, such] that [the

decision] falls outside the range of reasonable alternatives"

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(citation omitted). Adoption of Arianne, 104 Mass. App. Ct at

720.

The parent's fitness is "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

Flavia, 104 Mass. App. Ct. 40, 45 (2024), quoting Adoption of

Mary, 414 Mass. 705, 711 (1993). "The inquiry is whether the

parent's deficiencies place the child at serious risk of peril

from abuse, neglect, or other activity harmful to the child"

(quotation and citation omitted). Adoption of Olivette, 79

Mass. App. Ct. 141, 157 (2011). "It is not the quality or

character of parental conduct per se that justifies State

intervention on behalf of an abused, neglected, or otherwise

endangered child. Rather, it is the fact of endangerment

itself." Petition of the Dep't of Pub. Welfare to Dispense with

Consent to Adoption, 383 Mass. 573, 591-592 (1981).

Here, the mother argues that (1) DCF did not meet its

evidentiary burden to prove, by clear and convincing evidence,

the mother's unfitness, and (2) the judge's conclusion of

current unfitness relied on stale evidence.

a. The sufficiency of the evidence. After the trial, the

judge determined that the mother was unfit to parent Hera

13
because the mother's housing instability, substance abuse,

involvement with domestic violence, and unaddressed mental

health needs endangered the health and well-being of Hera. The

mother points our attention to Adoption of Harriet, 29 Mass.

App. Ct. 111 (1990), to show the inadequacy of the evidence to

support such a conclusion. In that case, the judge determined

the mother was unfit to parent based on the mother's absence at

trial, one social worker's testimony, stipulated facts, and the

mother's lack of improvement between an earlier award of custody

to DCF and the trial. See id. at 113-114. We concluded that

the judge's finding regarding the mother's lack of improvement

was erroneous and that, on the record presented, his ultimate

conclusion of unfitness was not supported by clear and

convincing evidence. See id. at 114.

Adoption of Harriet does not convince us the trial judge

here erred. While the judge here also only heard from one DCF

social worker, the judge also considered twenty-eight exhibits

admitted at trial, including multiple reports from DCF workers,

spanning over multiple years upon which she based her

conclusions. The judge considered evidence that the mother (1)

did not have stable housing during either period Hera lived with

her, (2) cared for Hera while under the influence of alcohol and

marijuana, (3) had a history of domestic violence spanning

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before Hera's birth to the date of trial, and (4) had mental

health issues, which she inconsistently treated and had no

verified treatment by the time of trial. The judge properly

considered these factors in the determination of the mother's

unfitness. See Adoption of Luc, 484 Mass. 139, 145 (2020)

(judge can consider substance use in determining unfitness);

Adoption of Gillian, 63 Mass. App. Ct. at 404 n.6 ("Violence

within a family is highly relevant to a judge's determination of

parental unfitness and the best interests of the children");

Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004)

(judge can consider parent's housing instability in determining

unfitness). "[T]he [parent]'s unwillingness to adhere to DCF's

service plan, which required [the parent] to obtain treatment

for [the parent's] mental health challenges and substance use

disorder, is relevant to the determination of unfitness"

(quotation and citation omitted). Adoption of Luc, supra at

147. Further, based on the record, the judge had sufficient

evidence to conclude that these factors, and the ultimate

question of unfitness, had been proven by clear and convincing

evidence. See Adoption of Arianne, 104 Mass. App. Ct at 720;

Adoption of Bea, 97 Mass. App. Ct. at 421-422.

b. The judge's determination of current unfitness. The

mother also disputes that she was unfit at the time of trial

15
because her was too "stale" for the judge to consider it a

reliable prediction of future ability and performance. The

mother argues that the judge had sufficient evidence of recent

behavior to undercut DCF's evidence of the mother's previous

unfit behavior.

"The court is permitted to assess prognostic evidence

derived from prior patterns of parental neglect or misconduct in

determining future fitness and the likelihood of harm to the

child." Custody of Two Minors, 396 Mass. 610, 621 (1986). The

reliability of such evidence depends on whether the conduct was

"not too remote" so that the evidence can "support[] the

continuing vitality of such conduct." Adoption of Larry, 434

Mass. 456, 469 (2001).

The mother argues that because she had secured housing the

same year as the trial, had self-reported her attendance in

therapy that same year, was not under the influence of alcohol

or drugs during her meetings with DCF social workers, and had

appropriate visits with Hera, the judge could not have found her

currently unfit to parent Hera. However, the judge also

considered evidence that the mother refused to sign updated

releases; that her reunification with Hera was terminated

because of her substance use while Hera was in her care; and

that she had inconsistent attendance at virtual visits with

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Hera. Additionally, the judge could consider the mother's

recent failure to comply with DCF's action plans, as well as her

noncompliance with her former housing action plans, the recent

reports of mother's domestic disputes, and her absence at the

trial.

Overall, the judge had sufficient evidence to decide that

the mother was currently unfit. See Adoption of Larry, 434

Mass. at 469 ("The mother has not shown that the judge was

clearly wrong in finding that what she calls "stale" information

was essentially quite fresh").

Decree affirmed.

By the Court (Shin, Grant &
Smyth, JJ.6),

Clerk

Entered: January 31, 2025.

6 The panelists are listed in order of seniority.

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