Adoption of Bryan.

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-394

ADOPTION OF BRYAN. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree entered by a judge of the

Juvenile Court finding her unfit to parent her child, Bryan,

terminating her parental rights as to Bryan, and failing to

order a specific minimum number of postadoption visits per year.

We affirm. 2

Background. We summarize the relevant facts and procedural

history as set forth in the judge's decision and as supported by

the record. Bryan was born in January 2013 and was eleven years

1 A pseudonym.

2No father was listed on the child's birth certificate. In
addition, throughout the pendency of this case, the Department
of Children and Families (DCF) was unable to establish contact
with the man identified as the father, and no other parent came
forward to establish paternity of Bryan. The judge ultimately
deemed the father "and/or unknown father unfit as a result of
being unwilling, incompetent, and/or unavailable to further the
interest of the subject child."
old at the time of trial, and the mother was twenty-nine years

old at the time of trial. The mother was intermittently

involved with the Department of Children and Families (DCF)

throughout her own childhood, and at age fifteen was placed in

DCF custody and resided in a foster home for a brief period.

On November 7, 2019, a mandated reporter filed a G. L.

c. 119, § 51A report (51A report) with DCF alleging neglect of

Bryan by the mother. At that time, the mother resided with her

sister and Bryan's maternal grandmother. The maternal

grandmother had called the police to report that the mother, the

sister, and the sister's boyfriend were in a verbal altercation

in Bryan's presence. During the ensuing investigation, it was

learned that Bryan had a substantial number of absences from

school, and that the mother had met with Bryan's school

counselor to discuss obtaining evaluations for attention deficit

hyperactivity disorder (ADHD) and an individualized education

plan (IEP) for Bryan, but had walked out of the meeting when

ADHD medications were suggested. The mother agreed upon a plan

for the mother to, inter alia, work with Bryan's school to

address his educational needs and behaviors and follow up with

medical providers, and then "the allegation of neglect was

ultimately unsupported, and the case was closed."

In November 2020, another 51A report alleging neglect by

the mother was filed. The ensuing investigation revealed that

2
the mother failed to follow through on the agreed-upon plan, did

not timely enroll Bryan in school, and for several months in

2020 purported to "homeschool" Bryan, which consisted of using

worksheets the mother obtained from a friend. The mother

reenrolled Bryan in school in October 2020, but the school

confirmed that initially Bryan had not logged on to the video

conferences for any of his classes up through the date of the

51A report, and subsequently Bryan was logging on but not

turning on his video or responding when called upon. 3

Furthermore, the mother did not sign the consent form to allow

the school to conduct testing for an IEP. DCF ultimately

concluded the investigation and supported the allegation of

neglect.

A clinical case was opened and the mother's action plan

required her to, inter alia, meet with the social worker

monthly, follow through with recommendations, attend therapy,

work with a parenting aide, and ensure that Bryan regularly

attended school. 4 The mother was referred to a parenting aide

and an individual therapist, but both services closed out due to

3 At this time the school was conducting classes by video
conference due to the COVID-19 pandemic.

4 The mother was diagnosed with anxiety and depression by
her primary care physician.

3
the mother's noncompliance. 5 The mother failed, again, to

consent to any IEP assessment for Bryan. In addition, between

late 2020 and April 15, 2021, Bryan was absent from school

twenty times, late forty-nine times, and the school staff

subsequently filed a complaint under G. L. c. 76, § 2, against

the mother in the Juvenile Court due to Bryan's "chronic

absenteeism." The mother did consent to an ADHD evaluation in

2021, and Bryan's doctor prescribed medication to treat Bryan's

ADHD. The mother, however, failed to take Bryan to his follow-

up appointments and was resistant to having Bryan take his

medication, and Bryan's school counselor expressed concern that

Bryan was not taking his ADHD medication and was missing his

medical appointments.

From September 15, 2021, to October 13, 2021, Bryan was

placed in the temporary custody of the maternal grandmother.

When it was discovered that the maternal grandmother had failed

to provide Bryan with his medication or cooperate with DCF, a

Juvenile Court judge directed the Worcester Probate and Family

Court probation department to file a care and protection

petition on behalf of Bryan in the Juvenile Court.

5 In April 2021, the school filed another 51A report, which
was subsequently screened out. A few weeks later, yet another
51A report was filed involving, inter alia, an allegation of
physical abuse. That allegation was also unsupported.

4
Following the removal of Bryan, the mother's action plan

was updated several times. The mother failed to perform the

vast majority of the tasks on her action plans. Specifically,

the mother failed to, inter alia: cooperate with DCF, schedule

and attend monthly visits with DCF, engage in therapeutic

services, schedule and consistently attend visits with Bryan,

obtain safe and stable housing, 6 contact Bryan's providers, or

consistently attend her weekly visits with Bryan. From October

2021 to November 2022, the mother attended only thirty-two of

fifty-eight offered visits with Bryan, and of the visits she did

attend, she was late to nearly half of them. Her inconsistent

visitation attendance continued from November 2022 to April

2024. The mother was uncooperative with DCF and told a social

worker, "We are going to get Bryan back very soon and it is not

going to be through DCF, the courts, or the action plan." In

addition, her "presentation and behavior at several visits"

contributed to DCF's "concern for her mental health and ability

to speak appropriately with Bryan." During trial, Bryan

testified that he did not want to resume supervised visits with

the mother, and "[a]s of the conclusion of trial," Bryan

"continued to refuse to attend supervised visits with [the]

After Bryan was removed from the mother's custody, she
6

lived in four different locations: with her grandparents; at an
"AirBnB" paid for by her mother; at an apartment; and with her
mother.

5
[m]other." Indeed, "[d]espite her awareness that her

inconsistent attendance significantly impacted Bryan's emotional

well-being, [the] [m]other refused to take responsibility for

her inconsistency and did not improve her attendance." Bryan,

however, showed improvement, he took his prescribed medication,

attended therapy, and his behavior at school improved.

After DCF removed Bryan in October 2021, Bryan was placed

in several different foster homes and a kinship placement. 7

Bryan exhibited significant behavioral issues at some of the

placements, including aggressive behaviors toward pets and other

children in the homes. On September 14, 2022, DCF changed

Bryan's permanency plan from reunification to adoption. In

October 2022, Bryan was placed in the care of his foster mother

with whom he remained through trial.

In November 2023, the mother completed a mental health

intake assessment and was assigned a therapist. However, she

only attended two therapy sessions before reporting to DCF that

she no longer attended due to an issue with health insurance.

DCF again provided a referral for in-home therapy to improve the

communication between her and Bryan, but the mother failed to

complete the intake assessment.

7 One of Bryan's foster resources gave notice that she could
not continue to serve as his placement and expressed concern to
DCF that the mother was stalking Bryan.

6
Following a trial in September 2024, the judge ordered the

entry of a decree finding the mother unfit 8 and terminating her

parental rights. The judge also found that "there is an

existing bond between [the] [m]other and Bryan," and that

terminating posttermination and postadoption contact between the

mother and Bryan would not serve the child's best interests.

However, "given the current state of the [the] [m]other's

relationship with the subject child," the judge declined to

order a specific number of visits and instead left to Bryan's

legal custodian the right to determine the amount and frequency

of contact between the mother and Bryan. The mother appeals

from the decree.

Discussion. 1. Unfitness and termination of parental

rights. The mother contends, in essence, that the finding of

her unfitness stemmed from Bryan's undiagnosed issues; that she

persisted in efforts to have him take his medication; that he

now takes his medication regularly and has achieved positive

results therefrom; and that the judge should have found a

reasonable likelihood that the mother's unfitness was only

temporary. The argument is unavailing.

8 "Despite the moral overtones of the statutory term
'unfit,' the judge's decision was not a moral judgment or a
determination that the mother . . . [does] not love the
child . . . ." (citation omitted). Adoption of Bea, 97 Mass.
App. Ct. 416, 417 n.2 (2020).

7
"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 interests." Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

affections, and age." Care & Protection of Vick, 89 Mass. App.

Ct. 704, 706 (2016). We give substantial deference to the

judge's findings, which we do not disturb unless they are

clearly erroneous. See Adoption of Jacques, supra at 606-607.

The mother's unfitness resulted from a "constellation of

factors." Adoption of Greta, 431 Mass. 577, 588 (2000). The

evidence supported the judge's ultimate findings that the mother

is presently unfit to parent Bryan and her unfitness is likely

to continue indefinitely, i.e., there is "a reasonable

expectation that [she] will not be able to provide proper care

or custody within a reasonable time considering the age of the

child." G. L. c. 210, § 3 (c) (vi). As the judge found,

consistent with plentiful evidence, the mother failed to

demonstrate the willingness and ability to understand Bryan's

needs, address her own mental health concerns, comply with the

8
majority of her action plan tasks, take advantage of services,

cooperate with DCF, obtain safe and stable housing, or

consistently attend visits with Bryan. 9 See Adoption of Ramon,

41 Mass. App. Ct. 709, 717-718 (1996). Combined with the

findings regarding the mother's past history of educational

neglect of Bryan and the "clear nexus between [the] [m]other's

lack of insight [into her parental shortcomings] and her ability

to provide for [Bryan's] needs," the facts considered together

supported the judge's determination, by clear and convincing

evidence, that the mother is unfit and likely to be so for the

indefinite future.

As to termination of parental rights, the judge evaluated

the provisions of G. L. c. 210, § 3 (c), and found factors (ii),

(iii), (iv), (vi), (viii), (ix), (xii), and (xiv) to be

applicable. The record supports these determinations.

Moreover, as detailed above, in light of the mother's ongoing

inability and unwillingness to recognize and address her

parental deficits, there was ample record evidence to support

9 When determining a parent's fitness, one factor a judge
shall consider is the willful failure to visit a child when the
child is not in the parent's custody. G. L. c. 210,
§ 3 (c) (x). The judge's finding that the mother's inconsistent
visitation attendance was evidence of her unfitness was not
clearly erroneous. See Care & Protection of Vick, 89 Mass. App.
Ct. at 708.

9
the judge's determination that termination of her parental

rights was in the child's best interests.

2. Impact of placement with maternal grandmother. The

mother also argues that DCF was reckless and violated the

mother's constitutional rights by placing Bryan with the

maternal grandmother, who had allegedly neglected the mother

over the years. The mother did not raise this issue at or prior

to trial. Accordingly, the argument is waived. See Adoption of

West, 97 Mass. App. Ct. 238, 242-243 (2020).

3. Posttermination and postadoption visitation. We are

likewise unpersuaded by the mother's argument that the judge

abused his discretion in refusing to order a specific minimum

number of postadoption visits between the mother and Bryan each

year. Judges have broad discretion to order posttermination and

postadoption visits per year. See Adoption of Douglas, 473

Mass. 1024, 1027 (2016). The two primary considerations

governing postadoption visitation are (1) whether postadoption

visitation is grounded in the child's best interests, and (2)

the constitutional rights of the adoptive parents. See Adoption

of Vito, 431 Mass. 550, 562 (2000).

Here, the judge weighed all the relevant factors he was

obligated to consider when determining whether and to what

extent contact is in the child's best interests. See, e.g.,

Adoption of Ilona, 459 Mass. 53, 63-66 (2011); Adoption of Vito,

10
431 Mass. at 553. The judge determined that postadoption

visitation between Bryan and the mother was in Bryan's best

interests based on their emotional bond, but properly sought to

balance the benefit to the child of an order of visitation with,

inter alia, Bryan's current and repeatedly expressed desire to

have no contact with the mother at the present time. Cf.

Adoption of Daisy, 77 Mass. App. Ct. 768, 783 (2010), S.C., 460

Mass. 72 (2011) (DCF "was not in a position to force an eleven

year old child to attend visits against her will"). The judge

then concluded that it was in Bryan's best interests not to

order a specific number of visits but to leave it to the

discretion of the custodian of Bryan with deference to Bryan.

On the record before us, we cannot say that the judge's decision

constituted "a clear error of judgment in weighing the factors

relevant to the decision such that the decision falls outside

the range of reasonable alternatives" (quotation and citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Decree affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ. 10),

Clerk

Entered: December 17, 2025.

10 The panelists are listed in order of seniority.

11