Adoption of Yves.

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.

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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.

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