Adoption of Indi.

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-272

ADOPTION OF INDI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

Juvenile Court finding her unfit, committing the child, Indi, to

the permanent custody of the Department of Children and Families

(department), and terminating the mother's parental rights.1 We

affirm.

Background. We summarize the trial judge's findings of

fact, supplemented by uncontroverted evidence from the record,

and reserve certain facts for later discussion. The mother has

"a history of mental health concerns and has been diagnosed with

bipolar disorder, depression, anxiety, PTSD, ADHD, and opioid

addiction disorder." She also has a long history of substance

1The judge also declined to order any posttermination or
postadoption contact between Indi and the mother.
use, for which she has intermittently received treatment for

most of her teenage and adult life.

The mother gave birth to Indi in March 2022.2 A few days

after Indi was born, the department received a report filed

under G. L. c. 119, § 51A, alleging that he was a substance-

exposed newborn and that the mother had been using substances

throughout her pregnancy and living in a car with the putative

father.3 The department commenced an investigation pursuant to

G. L. c. 119, § 51B, and ultimately supported the allegation of

neglect against the mother because of concerns of substance use

and instability. On March 23, 2022, the department filed the

present care and protection petition pursuant to G. L. c. 119,

§ 24, and was awarded emergency temporary custody of Indi, who

remained at the hospital for treatment for withdrawal symptoms.

Beginning in March 2022, the department provided the mother with

action plans which tasked her, inter alia, with maintaining her

sobriety; developing and maintaining a stable, sober community;

engaging in therapy; obtaining safe and stable housing

2 The mother has three older children who are not named on
this petition; her parental rights to those children were
terminated.

3 The putative father is not listed on the birth certificate
and did not establish paternity. On the first day of trial, the
judge struck him from the petition.

2
appropriate for reunification with Indi; and attending weekly

supervised parenting time with Indi.

The mother did not productively utilize the department's

services or consistently visit Indi. The department provided

the mother with access to the child while he was hospitalized,

including overnight visits, which she declined. After several

brief visits with Indi during his three-and-a-half-week

hospitalization following his birth in March 2022, the mother

maintained minimal contact with the department, did not engage

with her action plan until November 2022, and did not visit Indi

again until October 2022.

The mother experienced housing instability throughout the

pendency of the case. From the time of Indi's birth in March

2022 to October 2022, the mother was "squatting" in a building.

During a home visit in September 2022, outside the home the

department's workers observed hypodermic needles and a large

amount of trash and empty medication bottles belonging to the

mother; the home had no electricity. During that time, the

mother tested positive for cocaine and fentanyl and admitted to

smoking crack cocaine. From November 2022 to January 2023, the

mother alternated between sleeping at a hotel where her mother

worked and sleeping in her car. She slept in her car from March

2023 to October 2023. The mother tested positive for cocaine in

May 2023 and failed to provide the department with consistent

3
drug screens thereafter. The department offered the mother a

letter to enable her to enter a recovery program and reunify

with her child there, which she declined. She denied that she

had a substance use issue.

In October 2022, the department changed Indi's permanency

goal from reunification to adoption. Indi transitioned to his

preadoptive home in February 2023, where, at the time of trial

in January 2024, he was thriving. Indi's preadoptive family is

"extremely involved with [his] growth and development, and

advocate[s] for all his medical, educational, and

extracurricular activities."

In November 2023, with trial then scheduled for December

2023, the mother began to engage with her action plan. She

completed an online parenting course, engaged in a domestic

violence program, reengaged in counseling services, and obtained

an apartment. However, the mother admitted to her social worker

that she told the housing resource that she and Indi would be

reunified immediately if she obtained an apartment, though that

was not true.

On December 8, 2023, the mother filed a motion to continue

the trial, alleging that the department failed to comply with

the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et

seq., and that a continuance of the trial was necessary for

remedial accommodations to be put in place. The judge denied

4
the motion. On December 18, 2023, the mother filed a motion for

a determination that the department failed to make reasonable

efforts towards reunification and for entry of remedial orders

(motion for reasonable efforts). The judge continued the motion

to be heard with the trial.

Discussion. 1. Factual challenges. "Unless shown to be

clearly erroneous, we do not disturb the judge's findings, which

are entitled to substantial deference." Adoption of Jacques, 82

Mass. App. Ct. 601, 606-607 (2012).

The mother challenges three of the judge's findings on the

grounds that they were incorrectly attributed in full or in part

to the mother's testimony despite her never testifying at trial.

Based on our review of the record, we conclude that these

misattributions are harmless error because each of the contested

findings is supported by the evidence. See Care & Protection of

Olga, 57 Mass. App. Ct. 821, 824-825 (2003) (findings supported

by evidence or that contain immaterial errors are not clearly

erroneous).

The mother also argues that findings twelve and thirteen,

taken together, are erroneous because the social worker did not

make the referral until late 2023. Finding twelve states that

the social worker learned of the mother's disability in

September 2022. Finding thirteen addresses the social worker's

consultation with a supervisor and efforts to schedule a

5
disability consult with the mother and refer her for a

neuropsychological evaluation. The mother contends that the

findings imply that the department immediately investigated the

disabilities when the social worker did not make the referral

until late 2023. In fact, the social worker testified that she

consulted with her supervisor about the mother's disability in

September 2022 and made efforts to pursue a neuropsychological

evaluation in late 2022. We discern no error.

We also find unconvincing the mother's contention that

finding thirteen is erroneous as a matter of law for stating

that a scheduled "disability consult . . . was unfruitful as

mother never requested any accommodations." Rather than

expressing a legal conclusion, we construe this finding as

representing the social worker's rationale pursuant to her

understanding of the department's disability policy.

The mother also appears to challenge the judge's

introductory statement in the findings that the mother "tested

positive for prescribed subutex throughout her pregnancy, as

well as marijuana" on the basis that the record elsewhere

indicates only two positive marijuana screens. We conclude that

the error was immaterial considering the judge's subsequent

finding that there were just two positive marijuana screens

during the pregnancy. See Care & Protection of Olga, 57 Mass.

App. Ct. at 825.

6
Accordingly, we do not disturb the judge's lengthy and

comprehensive "specific and detailed [findings] . . .

demonstrat[ing] that close attention was given to the evidence."

Adoption of Georgia, 433 Mass. 62, 66 (2000).

2. Reasonable efforts. The mother contends that, under

the department's own disability policies and the ADA, the

department had an obligation to commence accommodations for the

mother's disability which was triggered as soon as the

department became aware that the mother had a disability. She

argues that the department's failure to meet this obligation

constituted a failure to make reasonable efforts to reunify her

with Indi and that the judge erred by failing to make findings

as to the department's obligations and failures under the ADA

and the department's disability policy. We disagree.

The department "is required to make reasonable efforts to

strengthen and encourage the integrity of the family before

proceeding with an action designed to sever family ties."

Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). "A

judge's determination that the department made reasonable

efforts will not be reversed unless clearly erroneous."

Adoption of West, 97 Mass. App. Ct. 238, 242 (2020).

"[B]ecause termination proceedings do not constitute

'services' under the ADA, the ADA may not be raised as a defense

in these proceedings." Adoption of Gregory, 434 Mass. 117, 118

7
(2001). A parent who believes that the department is not

reasonably accommodating a disability has the burden to "raise a

claim of inadequate services in a timely manner so that

reasonable accommodations may be made." Id. at 124. To be

timely, the claim should be raised "either when the parenting

plan is adopted, when [the parent] receives those services, or

shortly thereafter." Id. Failure to make a timely claim bars

the parent from raising the department's "noncompliance with the

ADA or other antidiscrimination laws for the first time at a

termination proceeding." Id.

We find unavailing the mother's contention that the judge

abused her discretion in finding that the department made

reasonable efforts toward reunification. Here, the error

alleged by the mother turns on her claim of inadequate services.

"Where a parent, as here, has cognitive or other limitations

that affect the receipt of services, the department's duty to

make reasonable efforts to preserve the natural family includes

a requirement that the department provide services that

accommodate the special needs of a parent." Adoption of Ilona,

459 Mass. 53, 61 (2011). "What constitutes reasonable efforts

. . . must be evaluated in the context of each individual case."

Care & Protection of Walt, 478 Mass. 212, 227 (2017).

During the pendency of the case, the mother never requested

any reasonable accommodations. In the twenty months prior to

8
the mother's motion, three consecutive action plans had run

their course without the mother bringing any request for

accommodations or claim of inadequate services. The department

was aware of the mother's learning disability in March 2022.

When the social worker asked for information about the mother's

disabilities in September 2022, the mother never provided it.

The mother never stated that she had difficulty understanding

information conveyed by the social worker. The judge found that

the social worker nonetheless provided accommodations to the

mother during meetings by simplifying and breaking down the

mother's tasks for her, repeating information, allowing the

mother to take notes, and permitting her representative payee to

be present for support. Furthermore, the mother never expressed

any concern that the steps taken by the department to

accommodate her disability were insufficient.

The department's "obligation to work with the mother was

contingent upon her own obligation to fulfill various parental

responsibilities, including seeking and utilizing appropriate

services and maintaining regular contact with [the department]

and [the child]." Adoption of Serge, 52 Mass. App. Ct. 1, 9

(2001). Between March 2022 and November 2022, the mother had

minimal contact with the department and did not participate in

any of the services offered in conjunction with her action plan.

From April 2022 to September 2022, the mother repeatedly

9
declined the department's offers for visits with Indi to assess

her parental capacity. The mother refused four opportunities to

acquire stable housing facilitated by the department, one of

which could have led to swift reunification with Indi. Given

the department's significant efforts and the mother's lack of

reciprocation or request for accommodation, we conclude that the

judge did not err in determining that the department's efforts

to reunify the mother with Indi were reasonable, notwithstanding

her known disability.

3. Adverse inferences drawn from the mother's absence at

trial. We are not persuaded by the mother's contention that the

judge abused her discretion by drawing adverse inferences from

the mother's absence from the trial.

"We review a trial judge's decision to draw an adverse

inference from a parent's absence under the abuse of discretion

standard." Adoption of Helga, 97 Mass. App. Ct. 521, 526

(2020). "Adverse inference [may] be drawn against a parent who,

having notice of the proceedings, is absent from a child custody

or termination proceeding without an adequate excuse." Id. at

525.

On the first day of trial, the mother came to the

courthouse but did not enter the courtroom.4 Her attorney told

The judge noted that the mother was only twenty to thirty
4

feet outside the courtroom.

10
the judge that the mother did not feel that she could be present

at trial because she did not think she could participate for

emotional reasons, had "protective concerns about her own mental

health," and wanted to leave. At the department's request, the

judge drew a negative inference from the mother's absence. On

the second day of trial, the mother's attorney asked the judge

to reverse the previous day's adverse inference, stating that

the mother had gone to the emergency room due to a panic attack

and that the mother's absence on the second day was out of

concern that "the emotional trauma that she was feeling

yesterday would only be reignited." The judge denied the

request to reverse the inference and also drew an adverse

inference from the mother's absence on the second and third days

of trial.

We agree with the judge's determination that the mother did

not provide any adequate excuse for her absences. See Adoption

of Helga, 97 Mass. App. Ct. at 526. Although the judge invited

the mother's attorney to offer evidence of the mother's medical

excuse through witnesses or certified records, no admissible

evidence was ever introduced besides brief testimony that the

mother was observed yelling and crying in the courthouse

hallway. Moreover, at the start of each day of trial the judge

reiterated the court's willingness to provide the mother

reasonable accommodations to enable her participation, and on

11
the first day of trial the judge invited the mother's attorney

to "text [the mother] periodically to ask her if she's changed

her position" about participating. The judge did not abuse her

discretion in drawing the adverse inferences.

4. Termination of parental rights. The mother challenges

the judge's finding that her unfitness was likely to continue

into the future, arguing that the mother's past conduct was no

longer probative of future unfitness due to her "great strides"

in the months before trial and that termination of her parental

rights was "not necessarily in [Indi's] best interests," because

her recent "accomplishments bode well for Mother’s continued

improvements in the best interests of Child." We are not

persuaded.

"In deciding whether to terminate a parent's rights, a

judge must determine whether 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. at 59. Recognizing that termination of

parental rights is an "extreme step, a judge must decide both

whether the parent is currently unfit and whether, on the basis

of credible evidence, there is a reasonable likelihood that the

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

(quotations and citations omitted). Id.

12
On review, "we must determine whether the trial judge

abused [her] discretion or committed a clear error of law."

Adoption of Elena, 446 Mass. 24, 30 (2006). The judge's fitness

determination must be supported by "specific and detailed"

findings that demonstrate parental unfitness by clear and

convincing evidence. Custody of Eleanor, 414 Mass. 795, 799

(1993).

In support of her argument, the mother points to her

reengagement with her action plan, including attaining housing

in November 2023, reengaging with programs and a recovery coach,

and having positive visits with Indi. Although the judge

acknowledged the mother's reengagement with services, the judge

found it "concerning" that the mother waited until two months

before trial. The judge found that the mother had twenty-two

months (the entirety of Indi's life) to engage in services but

"has been unable to meaningfully address the concerns of

substance abuse, housing, mental health, domestic violence and

overall stability."

The evidence shows that the mother failed to comply with

nearly all aspects of her action plan. See Petitions of the

Dep't of Social Servs. to Dispense with Consent to Adoption, 399

Mass. 279, 289 (1987) (inability to comply with action plans is

relevant to determination of unfitness). During the pendency of

the case, the mother was largely absent from Indi's life and

13
refused services -- including a housing placement that could

have led to reunification and multiple housing shelter offers --

instead choosing to remain in an abusive relationship, engage in

substance use, and live unhoused. See Adoption of Vito, 431

Mass. 550, 555 (2000) (lack of adequate stable housing is

relevant to fitness).

The evidence shows that the mother failed to consistently

maintain her sobriety during this case, sporadically using

cocaine or fentanyl throughout 2022 and testing positive for

cocaine in May 2023. See Adoption of Anton, 72 Mass. App. Ct.

667, 676 (2008) (evidence of drug misuse relevant to parent's

ability to provide care).

The mother chose to maintain a significant relationship

with the putative father, despite his history of physical and

verbal abuse toward her and his history of providing her with

drugs. See Adoption of Mary, 414 Mass. 705, 711 (1993)

(parent's decision to continue relationship with violent or

abusive partner bears on fitness because it indicates inability

to protect children from future abuse).

The mother had minimal contact with Indi since his birth.

Despite the many opportunities afforded her by the department,

the mother only attended seven in-person visits with Indi

between April 2022 and trial in January 2024. See Adoption of

14
Darla, 56 Mass. App. Ct. 519, 522 (2002) (failure to visit child

is relevant to finding of parental unfitness).

The judge found that the mother admitted that she was

unable to parent her three older children and that her parental

rights to those children had been terminated. The judge noted

that "[t]he same issues regarding Mother's parenting abilities

continue to date with respect to Indi." See Adoption of

Jacques, 82 Mass. App. Ct. at 607 (prior history of unfitness

has prognostic value). "[A] judge may rely upon a parent's past

conduct with regard to older children to support a finding of

current unfitness as to a different child, so long as that

evidence is not the sole basis for the judge's unfitness

determination." Adoption of Luc, 484 Mass. 139, 145 (2020).

Indi has been separated from the mother for his entire

life, has no emotional attachment to the mother, and has formed

a significant emotional attachment to his preadoptive parents,

with whom he had lived for almost a year at the time of trial.

See Adoption of Frederick, 405 Mass. 1, 7 (1989) ("a lengthy

separation between parent and child, the growth of emotional

ties between the child and a different custodian, and the effect

of a forced return of the child to the biological parents are

all factors that should be weighed by the judge").

The evidence supported the judge's conclusion that the

mother's "continued lack of progress is a strong indicator that

15
her shortcomings will continue undiminished into the future with

an attendant harmful effect on [the child]." "Even if a parent

engages in some of the services offered by the department, mere

participation in the services does not render a parent fit

without evidence of appreciable improvement in [the parent's]

ability to meet the needs of the child[]" (quotation and

citation omitted). Adoption of Breck, 105 Mass. App. Ct. 652,

660 (2025). Though a judge may consider evidence that a parent

will correct a condition or weakness that currently impedes

their ability to serve the child's best interests, the

conclusion that unfitness is temporary requires more than a

"faint hope" that the parent will become fit (citation omitted).

Adoption of Ilona, 459 Mass. at 59. The record here amply

supported the judge's conclusion that the mother's unfitness was

not temporary despite the small improvements made by the mother

just before trial and that terminating the mother's parental

rights served Indi's best interests. The judge did not err or

abuse her discretion in finding that termination of parental

rights was in Indi's best interests. See Adoption of Ilona,

supra at 59 ("We give substantial deference to a judge's

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

interest of the child").

5. Motion to continue. The mother challenges the judge's

denial of her motion to continue the trial. In that motion, the

16
mother claimed that the department knew of her cognitive

disability since the inception of the case and that the

department's management of the case violated both the ADA and

the department's own disability policy, thereby demonstrating a

failure to provide reasonable efforts. The mother sought a

continuance to give her the opportunity to benefit from

appropriate disability accommodations.

"Whether to continue any judicial proceeding is a matter

entrusted to the sound discretion of the judge, and [the]

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

Care & Protection of Quinn, 54 Mass. App. Ct. 117, 120 (2002).

We discern no abuse of discretion in the judge's denial of the

motion to continue, particularly where the case had been pending

for almost two years and the child was in a preadoptive

placement. See Adoption of Ursa, 103 Mass. 558, 569 (2023)

(judge properly denied mother's motion to continue where case

was three years old and harm of delays "is unfortunately

suffered principally by the children" [citation omitted]).

6. Denial of posttrial motions.5 The mother contends that

the trial judge abused her discretion by denying her motion for

5 The mother included the denial of her motion to stay
assembly of the record in her notice of appeal, but the mother's
brief does not address it. Therefore, we do not address it
here. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481
Mass. 1628 (2019).

17
a new trial or to reopen the evidence pursuant to Mass. R.

Civ. P. 60 (b) (1), (2), (6), 365 Mass. 828 (1974).6 We

disagree.

We review a judge's denial of a rule 60 (b) (6) motion for

abuse of discretion. Adoption of Gillian, 63 Mass. App. Ct.

398, 411 (2005). "In considering a motion under rule

60 (b) (6), a judge may consider whether the moving party has a

meritorious claim, whether extraordinary circumstances warrant

relief, and whether the substantial rights of the parties in the

matter in controversy will be affected by granting the motion"

(quotations and citations omitted). Parrell v. Keenan, 389

Mass. 809, 815 (1983). Where, as here, the "motion judge and

the trial judge were one and the same," we recognize that the

judge may rely on her knowledge of the trial proceedings and we

therefore extend her decisions a "special deference."

Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 811 (2008).

6 "We look to rule 60 (b) by analogy and as a cogent
standard because the Massachusetts Rules of Civil Procedure do
not apply to proceedings to dispense with consent to adoption."
Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011).

Although the mother cited to Mass. R. Civ. P. 60 (b) (1)
and (2) in her motion, she did not make any specific arguments
pursuant to these sections.

18
In her "motion to reopen the trial and/or for a new trial,"7

the mother advanced essentially two arguments. First, the

mother claimed that the combination of the department's late

disclosure of the mother's 2018 neuropsychological evaluation

and the trial judge's denial of the motion to continue violated

the mother's right to due process by depriving trial counsel of

adequate time to prepare the mother's defense to termination of

parental rights. The record, however, shows that on October 2,

2023, trial counsel told the court that she had received the

department's complete file and reviewed it in preparing the

mother's witness and exhibit lists. Furthermore, counsel

received the evaluation on December 4, 2023, more than six weeks

before trial commenced on January 16, 2024.8 We discern no error

here.

Second, the mother argued that a new affidavit from a

housing specialist could correct the court's mistaken impression

that the mother made false representations to obtain her

apartment. In denying the motion, the judge stated that the

housing issue was only "one small component" and that her

We note that our review of the January 2025 ruling on the
7

posttrial motions is limited by a five-minute gap in the
transcript, through no fault of the mother.

Although the judge denied the mother's motion to continue
8

the trial from December 16, 2023, the judge nevertheless
continued the trial to January 16, 2024, to give the department
time to draft an open adoption agreement.

19
findings mention one statement about the mother being dishonest

"[b]ut, there were so many other issues." There was no abuse of

discretion. See Adoption of Gillian, 63 Mass. App. Ct. at 411-

412 (no abuse of discretion in denying rule 60 (b) motion where

the numerous bases for termination persisted after trial).

Additionally, the disputed finding concerning the mother's

dishonest representation came from the testimony of a social

worker whom the judge found credible. The mother had a fair

opportunity to rebut that evidence at trial.

Accordingly, we discern no abuse of discretion in the

judge's denial of the motion to reopen the trial as the mother

has failed to show that the motions were meritorious or

presented any extraordinary circumstances warranting relief.

Parrell, 389 Mass. at 815.

Decree affirmed.

By the Court (Henry, Sacks &
Tan, JJ.9),

Clerk

Entered: January 21, 2026.

9 The panelists are listed in order of seniority.

20