Adoption of Geri.

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-476

ADOPTION OF GERI.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a four-day trial, a judge of the Juvenile Court found

the mother unfit to parent her child, Geri, terminated her

parental rights, and ordered posttermination and postadoption

visits for the mother and Geri. Both the mother and Geri have

appealed, arguing that the judge abused her discretion in

finding that the mother's unfitness was not temporary, and in

finding that termination was in Geri's best interests. The

mother contends that the judge erroneously relied on

impermissible hearsay in reaching those conclusions. In

addition, Geri argues that the judge abused her discretion in

1 A pseudonym.
setting certain conditions for posttermination and postadoption

visitation. We affirm.2

Background. The mother gave birth to Geri in March 2019

and moved with her to North Dakota two months later.3 In August

2020, when Geri and the mother returned to Massachusetts, the

department received a report filed pursuant to G. L. c. 119,

§ 51A (51A report), alleging neglect of Geri by the mother due

to concerns about the mother's mental health and medical neglect

of Geri.4 Prior to filing the instant care and protection

petition, the department had received four additional 51A

reports alleging neglect of Geri by the mother.5

The mother has been diagnosed with multiple mental health

disorders, including bipolar disorder and post-traumatic stress

2 The father's rights were also terminated but he has not
appealed and is not a party to this appeal.

3 The trial judge made 355 "specific and detailed" findings
in support of her decision to terminate the mother's parental
rights, and the findings "demonstrate that close attention has
been given the evidence." Custody of Eleanor, 414 Mass. 795,
799 (1993).

4 The allegations of neglect were supported.

5 The department received 51A reports in September 2020,
October 2020, and two in February 2022. All these reports
alleged neglect of Geri by the mother due to concerns with the
mother's mental health. The allegations, except for those in
the first February 2022 report, were supported following 51B
investigations.

2
disorder. In October 2020, the department conducted an

emergency removal of Geri and filed a care and protection

petition after the mother was hospitalized for making threats to

murder Geri's father and paternal grandmother.6 Sometime after

her commitment, the mother started taking her prescribed

medications and complied with most of her service plan, and the

petition was dismissed in March 2021.

By September 2021, the mother had stopped taking her

medications and was having suicidal thoughts. In February 2022,

the mother was psychiatrically hospitalized for the second time,

the department removed Geri from the mother, and the department

filed the instant care and protection petition.7 Around March

2022, the mother resumed taking her medications, and for the

next year, the department's goal for Geri was reunification.

Between March 2022 and 2023, the mother adhered to most of the

6 The mother and Geri were residing at a shelter at that
time. The mother was transported to the emergency room by the
police due to concerns for her mental health and homicidal
statements. Once in the emergency room, the mother's condition
"escalated" and she was committed under G. L. c. 123, § 12.

7 Geri was initially placed with her paternal aunt. The
aunt asked that Geri be removed from her care after the mother
falsely accused her of living in a drug house. Geri was then
placed with a new foster family. After the goal changed to
adoption, the family was approved as Geri's pre-adoptive family.
However, after trial began, the family withdrew their
application due to concerns about how the mother's mental health
would impact their family.

3
department's action plan. However, in March 2023, the mother

again stopped taking her medications, and she was hospitalized

for a third time in June 2023. In October 2023, the department

changed its goal for the Geri to adoption due to the mother's

ongoing mental health struggles, inconsistent and unverified

commitment to treatment, failure to communicate with the

department, inappropriate behavior toward social workers, and

unstable living situation. The mother resumed taking her

medications in November 2023 leading up to trial, which began in

February 2024.

The mother's lack of consistency in addressing her mental

health disorders contributed to a pattern of housing insecurity

and erratic behaviors. When Geri was approximately two months

old, the mother and Geri moved from Massachusetts to North

Dakota, and during that time her housing was unstable. Since

returning to Massachusetts in August 2020, the mother has lived

with friends and in various shelters and apartments. The mother

was forced out of apartments at least twice "for aggressive and

threatening behaviors." At the start of trial, the mother was

in a shelter placement that was set to expire in May 2024. In

addition to housing insecurity, the mother's "inability to

control unparental traits of character and conduct" resulted in

a pattern of aggressive and threatening behaviors toward social

4
workers and family members, including threats of murder, arson,

and suicide, and harassing behavior.

The department's concerns about the mother's parenting were

based on her mental health challenges and lack of consistency in

taking medications and following treatment plans and not on her

inability to bond with Geri. Indeed, the mother and Geri have

an observable bond, and during visits, the mother was "gentle

and appropriate."

Following trial, the judge found the mother unfit and Geri

in need of care and protection. The judge approved the

department's plan for adoption of Geri by maternal grandmother,

contingent on approval of an Interstate Compact on the Placement

of Children (ICPC) home study. The judge also determined that

no fewer than four posttermination and postadoption visits

between the mother and Geri, subject to the mother's mental

stability, would be in Geri's best interests. The judge

ordered, however, that if the mother missed two consecutive

visits, the obligation of Geri's custodian to provide four

annual visits would be null and void, though the parental

custodian would still have discretion to allow for parent-child

contact so long as such contact was in Geri's best interests.

Discussion. 1. Termination. "In deciding whether to

terminate a parent's rights, a judge must determine whether

5
there is clear and convincing evidence that the parent is unfit

and, if the parent is unfit, whether the child's best interests

will be served by terminating the legal relation between parent

and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). On

review, we "give substantial deference to a judge's decision

that termination of a parent's rights is in the best interest[s]

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." Adoption of Yalena, 100 Mass. App. Ct.

542, 549 (2021), quoting Adoption of Ilona, 459 Mass. at 59.

"The concepts of parental fitness and a child's best

interests are not separate and distinct but, instead, are

cognate and connected steps that reflect different degrees of

emphasis on the same factors" (quotations and citation omitted).

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

determining a child's best interests, a judge must decide

whether "the parent's unfitness at the time of trial may only be

temporary" before taking the "extreme step" of terminating the

parent's rights (citations omitted). Adoption of Ilona, 459

Mass. at 59. However, a finding that unfitness is only

temporary "must rest on credible evidence supporting a

reasonable likelihood that the parent will become fit, not on a

'faint hope'" (citation omitted). Id.

6
a. Mother's unfitness. The mother and Geri contend that

the judge abused her discretion in finding the mother unfit to

parent Geri because the mother substantially completed her

action plan tasks and was taking her prescribed medications at

the time of trial.8 We disagree. When faced with a petition to

terminate parental rights, the judge must find by clear and

convincing evidence that the parent is unfit, and that "the

unfitness will continue undiminished into the future, affecting

the welfare of the child." Adoption of Lisette, 93 Mass. App.

Ct. 284, 296 (2018). "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." Adoption of Anton, 72 Mass. App. Ct. 667,

673 (2008). In determining future fitness, the judge "properly

may consider a pattern of parental neglect or misconduct."

Adoption of Elena, 446 Mass. 24, 33 (2006). The judge's

subsidiary findings must be proved by a preponderance of the

evidence and will only be disturbed if clearly erroneous. See

Adoption of Patty, 489 Mass. 630, 637 (2022).

8 "Despite the moral overtones of the statutory term
'unfit,' the judge's decision [is] not a moral judgment or a
determination that [the mother] do[es] not love [Gerri]."
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).

7
Having carefully reviewed the record, "[w]e see no basis

for disturbing the judge's view of the evidence." Adoption of

Quentin, 424 Mass. 882, 886 n.3 (1997). Here, the judge

properly relied on evidence of the mother's longstanding mental

health issues and inconsistent participation in treatment in

concluding that "[t]he mother's mental health has directly

impacted her care of the child." The judge found that the

mother "does not believe in taking medication and stops taking

it periodically." While the mother has on occasion cooperated

with treatment and "stabilizes . . . on prescribed medication"

in accordance with a treatment plan, she has been unable to

consistently maintain compliance with her treatment protocols.

The mother's "lack of consistency in treatment" led to three

separate psychiatric hospitalizations resulting in removal of

Geri and contributed to her housing instability and her

threatening and aggressive behavior toward family members and

department staff.

Although, in 2022, after the child was removed, the mother

completed action plan tasks and demonstrated "continued personal

growth," she again struggled to maintain compliance and complete

tasks in the year preceding the trial. For example, she did not

8
complete a mental health safety plan with her therapist,9 did not

comply with meetings with her Homeless Navigator -- resulting in

her being discharged from that service -- and refused to

cooperate with her Department of Mental Health program. The

mother also twice disrupted Geri's foster placements by making

unsupported allegations against the caregivers. Moreover, at

trial, the mother acknowledged that taking her medications was

"a requirement for [her] to get [her] daughter back," but she

did not commit to continuing her medications if she moved back

to North Dakota. Although she created a mental health safety

plan with her private social worker, she was not following the

plan when she signed it and did not comply with it as her mental

health deteriorated. The mother does not recognize when she is

decompensating even when it results in her making threats of

murder, arson, and suicide. Based on the evidence, the judge

properly found that "there is a nexus between Mother's mental

health" and "danger to [Geri]" if they were to be reunified.

The judge was not required to provide the mother with infinite

chances to address her parenting deficiencies. See Adoption of

Nancy, 443 Mass. 512, 517 (2005) ("In these circumstances, where

the [parent] has had ample opportunity to achieve fitness as a

9 The judge acknowledged that the mother's therapist was at
least somewhat responsible for this.

9
parent but has failed to follow through, it is only fair to the

children to say, at some point, 'enough'"). See also Adoption

of Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a

parent's unfitness is not temporary if it is reasonably likely

to continue for a prolonged or indeterminate period").

Finally, while the judge considered a 51A report alleging

medical neglect of Geri, she did not base her unfitness

determination on that evidence, as claimed by the mother. In

considering evidence that Geri was medically behind when she was

removed from the mother, the judge did not make a finding of

medical neglect and noted, instead, that the mother expressed

willingness to engage in recommended services. The judge found,

however, that the mother's mental health issues affected her

"capacity to provide for the child's particular needs."

Adoption of Anton, 72 Mass. App. Ct. at 673.

b. Geri's best interests. The mother and Geri argue that

it was not in Geri's best interests to terminate the mother's

parental rights because the mother and Geri shared a strong bond

and the mother's unfitness was temporary where evidence

demonstrated that she was taking steps to address her mental

health issues and housing instability. We disagree. Where the

judge properly found that the mother was unfit and that her

unfitness was not temporary, and where mother's lack of

10
consistency in mental health treatment "would place [Geri] in

danger," terminating the mother's rights was not an abuse of

discretion. See Adoption of Ilona, 459 Mass. at 62.

Geri asserts that in light of her bond with her mother,

Geri's "present or future welfare" does not "demand" termination

of the mother's parental rights. Adoption of Carlos, 413 Mass.

339, 350 (1992). Notwithstanding even a strong bond, given

Geri's need for stability and the judge's warranted

determination that "the mother would not become fit in the

foreseeable future," the judge "did not err in terminating the

mother's parental rights." Adoption of Bianca, 91 Mass. App.

Ct. 428, 432 (2017). The judge properly accounted for the

parent-child bond by ordering visitation between the mother and

Geri. See Adoption of Franklin, 99 Mass. App. Ct. 787, 807

(2021).

c. Hearsay. The mother argues that the judge' findings

relied on inadmissible hearsay in 51A and 51B reports and in

other department-created documents. Specifically, she claims

that forty-three of the 355 findings are based on inadmissible

hearsay. We note that the record does not indicate that the

mother tried to subpoena the declarants who the mother now

claims were unavailable for cross examination at trial, namely

Geri's father and employees of the North Dakota Child Protective

11
Services. "If the source of a challenged statement is not

already present in court, the burden to subpoena that source

rests with the party challenging the statement's admission."

Adoption of Luc, 484 Mass 139, 150 (2020). Because the mother

made no attempt to subpoena the sources of the hearsay who were

not present at the trial, she has waived her claim that they

were unavailable. See Care & Protection of Leo, 38 Mass. App.

Ct. 237, 243 (1995).

However, even if the judge erred in admitting and relying

on impermissible hearsay, "there was no resulting prejudice."

See Adoption of Luc, 484 Mass. at 149. The judge's findings,

excluding the forty-three challenged findings, provided

sufficient evidence of the mother's longstanding mental health

issues and housing instability, her threatening and aggressive

behavior toward family and department staff, and her pattern of

noncompliance with department action plans. Such evidence

demonstrated a nexus to her parental unfitness and supported the

judge's ultimate conclusion. See Adoption of Kimberly, 414

Mass. 526, 538 (1993) (no prejudice where findings based on

alleged inadmissible evidence "not so inconsistent with the

judge's other findings as to raise any question concerning his

ultimate conclusion"). Further, in her conclusions of law, the

judge set forth the proper evidentiary and hearsay principles

12
applicable to department-created documents. We see nothing in

the record to intimate that the judge did not follow these

principles by using statements for anything more than the

purpose for which they were admitted. See Commonwealth v.

Watkins, 63 Mass. App. Ct. 69, 75 (2005).

2. Posttermination and postadoption visitation. Geri also

argues that the judge abused her discretion in placing certain

conditions on the mother's right to visit with Geri

posttermination and postadoption. We disagree. "A judge may

decline to order postadoption visitation, or 'may order limited

postadoption contact, including visitation, between a child and

a biological parent where such contact is currently in the best

interests of the child.'" Adoption of Saul, 60 Mass. App. Ct.

546, 556 (2004), quoting Adoption of Vito, 431 Mass. 550, 553

(2000). "[A]n order for postadoption contact is grounded in the

over-all best interests of the child, based on emotional bonding

and other circumstances of the actual personal relationship of

the child and the biological parent, not in the rights of the

biological parent nor the legal consequences of their natural

relation" (citation omitted). Adoption of Saul, supra. "In

issuing such an order, the judge must determine that '[o]nce it

[has been] established that a parent is unfit, the decision

whether to grant postadoption [or posttermination] visits must

13
be left to the sound discretion of the trial judge.'" Adoption

of Zander, 83 Mass. App. Ct. 363, 365 (2013), quoting Adoption

of Terrence, 57 Mass. App. Ct. 832, 839 (2003).

Here, the judge, acknowledging the "strong and

affectionate" bond between Geri and the mother, found that

posttermination and postadoption contact would be in Geri's best

interests, and that no fewer than four visits per year was

appropriate, subject to the mother's mental stability. The

judge gave Geri's custodian discretion to cancel any visit if

the mother's mental health is not stable. The obligation of

Geri's custodian to provide at least four visits per year "shall

be null and void" if two consecutive visits are canceled due to

the mother's behavior. However, even if the mother does miss

two consecutive visits, the custodian is not foreclosed from

arranging visits between the mother and Geri so long as such

visits are "consistent with the child's best interests." See

Adoption of Ilona, 459 Mass. at 64 (adoptive parents presumed to

act in child's best interests). Based on the mother's

longstanding mental health issues and their impact on Geri's

stability and wellbeing, it was not unreasonable for the judge

14
to set these conditions on parent-child visits. We conclude

there was no abuse of discretion.

Decrees affirmed.

By the Court (Vuono, Shin &
Smyth, JJ.10),

Clerk

Entered: January 9, 2026.

10 The panelists are listed in order of seniority.

15