Adoption of Camden.

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-1204

ADOPTION OF CAMDEN.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following trial in the Juvenile Court, a judge found the

mother unfit to parent her son, Camden,2 terminated her parental

rights to him, and approved the plan of the Department of

Children and Families (department) for the adoption of the

child. See G. L. c. 119, § 26. The mother appeals and raises

three arguments: (1) the judge's findings of fact are not

entitled to their usual deference due to a delay in their

issuance; (2) the judge erroneously concluded the department had

made reasonable efforts to reunify the mother and Camden; and

(3) the judge erred in limiting the mother's posttermination and

1 A pseudonym.

2"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 [Camden]."
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
postadoption visitation with Camden to two visits per year. We

affirm.

Delay in findings of fact. The mother argues that the

findings of fact were delayed and thus they should not be given

deference. The evidentiary portion of the trial spanned two

nonconsecutive days, taking place on October 19, 2022, and

November 28, 2022. On January 5, 2023, the judge announced her

decision from the bench, finding that the mother was unfit, that

Camden was in need of care and protection, and that it was in

his best interests to terminate the mother's parental rights.

The decree terminating the mother's parental rights entered that

same day, along with the judge's written decision and order as

to the termination. The mother timely filed a notice of appeal

on January 27, 2023. On October 4, 2023, the judge issued

written findings of fact and conclusions of law (findings and

conclusions). The mother argues that she was prejudiced by the

almost nine-month gap between the judge's decision on January 5

and the issuance of the findings and conclusions on October 4.

See Juvenile Court Standing Order 2-18(III)(C) (judge required

to transmit decision and written findings within ninety days

from close of evidence). She argues that the delay rose to the

level of a violation of due process, see Care & Protection of

Martha, 407 Mass. 319, 330 (1990), and given the judge's

rejection of certain evidence, "stricter scrutiny" is warranted.

2
Adoption of Abby, 62 Mass. App. Ct. 816, 817 (2005). We

disagree.

Here, the judge timely announced her decision approximately

thirty days after the close of evidence. See Juvenile Court

Standing Order 1-10(5). While it is true that the findings and

conclusions were issued more than ninety days after the close of

evidence, "[t]he mother has not indicated in any meaningful way

how the delay affected the judge's findings or conclusions."

Adoption of Luc, 94 Mass. App. Ct. 565, 571 (2018), S.C., 484

Mass. 139 (2020). See Adoption of Don, 435 Mass. 158, 170

(2001) (no violation of due process rights where parents unable

to show outcome of case would have been different without

delay). Additionally, the mother has not indicated that the

delay caused the judge to misremember any testimony from the

trial. See Adoption of Luc, 94 Mass. App. Ct. at 571 & n.9

(delay of one year following mother’s notice of appeal not found

to affect judge's findings or conclusions).

Reasonable efforts to reunify. The mother, for the first

time on appeal, claims that the department failed to make

reasonable efforts at reunification as required by G. L. c. 119,

§ 29C. She makes three arguments: First, she argues that she

is entitled to raise this issue now because her mental health

issues were a theme that "ran through the life of the case."

Second, she argues that the department did not fulfill its duty

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to make reasonable efforts to reunify Camden with her. Finally,

she argues that these duties were not fulfilled because the

department did not tailor its services to her needs.

"A parent cannot raise a claim of inadequate services for

the first time on appeal, as the department would not have had

the opportunity to address it." Adoption of West, 97 Mass. App.

Ct. 238, 242 (2020). However, where inadequate services "was a

theme that ran through the life of the case," we may still

review the issue. Adoption of Chad, 94 Mass. App. Ct. 828, 839

n.20 (2019). Here, the mother never formally raised a claim for

inadequate services during the trial. See Adoption of West,

supra at 242-243 (noting "avenues available to raise a claim of

inadequate services"). However, several reports by a court

appointed special advocate (CASA) expressed the concern that the

mother's mental health issues would prevent her from engaging

with services.3 Additionally, the judge acknowledged that the

mother's "diagnoses present a barrier to her engaging with

services." As a result, we will review the issue.

3 An early report from November 3, 2021, stated, "This CASA
is concerned that [the mother] may need a reasonable
accommodation to effectively access services. However, this
CASA is worried that the process of determining such
accommodation, as well as adherence to other ADA requirements
related to a parent with a disability, is not being considered
in providing assistance to her." The last CASA report before
trial was dated October 19, 2022, and stated that "[t]his CASA
is concerned that [the mother] may need a reasonable
accommodation to effectively access services."

4
"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 West, 97 Mass. App. Ct. at 241, quoting Adoption of

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

citing Adoption of Gregory, 434 Mass. 117, 122 (2001).

"Reasonable efforts is generally understood to include

accessible, available, and culturally appropriate services that

are designed to improve the capacity of families to provide safe

and stable homes for their children and to ensure that parents

and other family members . . . are making progress on case plan

goals" (quotations and citation omitted). Care & Protection of

Rashida, 488 Mass. 217, 219 (2021), S.C., 489 Mass. 128 (2022).

"A judge's determination that the department made reasonable

efforts will not be reversed unless clearly erroneous."

Adoption of West, supra at 242.

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Central to the mother's argument is that the department

failed to implement the recommendations4 made by a Juvenile Court

Clinic evaluator that would have to occur prior to the mother's

reunifying with Camden. However, "heroic or extraordinary

measures, however desirable they may at least abstractly be, are

not required." Adoption of West, 97 Mass. App. Ct. at 245,

quoting Adoption of Lenore, 55 Mass. App. Ct. at 278. See

Adoption of Luc, 484 Mass. at 147, quoting Petitions of the

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

Mass. 279, 289 (1987) ("mother's unwillingness to adhere to [the

department's] service plan, which required her to obtain

treatment for her mental health challenges . . . is 'relevant to

the determination of unfitness'").

The department repeatedly tried, in vain, to have the

mother engage with services. The department's action plan was

"in line" with the recommendations from the court clinic

evaluator. The department made three Family Self Sufficiency

Program referrals to set up home services and connect the mother

4 Some of these services were directed at the mother while
others were directed at the department. These recommendations
included the following: (1) requiring a psychiatric
consultation and ongoing management, (2) implementing a Rogers
monitor, (3) requiring visiting nurse services, (4) reengaging
with Department of Mental Health services, (5) requiring
substance abuse treatment, (6) engaging in individual therapy,
and (7) engaging with ongoing intimate partner violence survivor
and trauma support.

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to additional services as needed, which the mother declined.

The mother also refused to sign releases so the department could

contact her Department of Mental Health worker directly, which

was a critical component of the evaluator's recommendations.

The mother argues that the department went against its own

written disability policy (policy).5 However, the policy is

structured in the alternative, and the mother admits that the

department's ongoing social worker consulted "with her

supervisor and [the Area Program Manager] 'about the

difficulties of having conversation and sort of being able to

get the point across.'"

5 This policy, no. 2022-01, effective January 18, 2022,
states, in relevant part:

"If a Social Worker observes a characteristic or behavior
that may indicate the presence of a disability, the Social
Worker must take at least one of the following steps, but
may take them all:

"(1) Ask the parent/caregiver if they would like an
accommodation to assist with the observed behavior and
explain what an accommodation is.

"(2) Consult with their Supervisor regarding the
observation, what it could mean and potential next steps.

"(3) Consult with a Department specialist, including the
Director of Disability Services, Disability Specialists,
the Statewide Disability Coordinator, the Regional
Disability Liaisons, or any of the Department's mental
health, substance use/misuse, or medical specialists."
(Emphases added.)

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In the end, it cannot be said that the department failed to

make reasonable efforts to have the mother engage with services

in order to reunify her with Camden. See Adoption of West, 97

Mass. App. Ct. at 241. It was the mother's unwillingness to

engage with the recommended services and follow the department's

action plan that ultimately and unfortunately stymied

reunification. See Adoption of Yalena, 100 Mass. App. Ct. 542,

554 (2021).

Posttermination and postadoption visitation. The mother

argues that the judge abused her discretion in providing for

only two posttermination and postadoption visits with Camden per

year. "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). "An 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

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parent is unfit, the decision whether to grant postadoption [or

posttermination] visits must 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). "We review the judge's determination for an abuse

of discretion." Adoption of Zander, supra at 365-366.

The mother claims that there was a "well-documented bond

and positive relationship" between her and Camden and that "most

[supervised] visits . . . have gone well." However, the mother

missed a number of visits due to her hospitalization and

incarceration. Additionally, the mother was not able to control

Camden during some visits -- the judge credited an incident

where Camden ran out of the visitation room and hit his head on

the glass door of the building. Additionally, Camden, has spent

more than one-half of his young life out of the mother's care,

and his speech delay and allergies improved in the care of his

foster parents. We conclude that there was no abuse of

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discretion.

Decree affirmed.

By the Court (Desmond,
Brennan & Smyth, JJ.6),

Clerk

Entered: August 6, 2024.

6 The panelists are listed in order of seniority.

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