Adoption of Brianna.

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-550

ADOPTION OF BRIANNA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a Juvenile Court

judge finding her unfit to parent her daughter, Brianna,

terminating the mother's parental rights, and approving the plan

of the Department of Children and Families (department) for the

adoption of Brianna by her foster parent. On appeal, the mother

contends that (1) the finding of unfitness was not supported by

clear and convincing evidence; (2) the termination of her

parental rights was not in the child's best interests; (3) the

department failed to make reasonable efforts to reunify the

mother and child; (4) the judge abused her discretion in denying

trial counsel's motion to continue the trial; and (5) the judge

erred in restricting the mother's post termination visitation

1A pseudonym. We use the same pseudonym assigned to the
child in an earlier case before this court. See Adoption of
Brianna, 102 Mass. App. Ct. 1125 (2023).
and not ordering post adoption visitation. Brianna also

maintains that the judge ignored her expressed preference to

live with her mother.

Background. We summarize the relevant, mostly undisputed

facts and procedural history as set forth in the judge's

decision and as supported by the record, reserving certain

details for later discussion.

A. Factual background. The mother has long suffered from

mental illness and was herself involved with the department from

the age of nine until the age of eighteen.2 Brianna was born on

March 27, 2014. When Brianna was one month old, a report was

filed pursuant to G. L. c. 119, § 51A (51A) alleging parental

neglect after a domestic violence incident between her mother

and father. The department investigated pursuant to G. L.

c. 119, § 51B (51B), and determined that the mother was the

victim of domestic violence by the father. Allegations of

neglect were supported against the father but not against the

mother. In July 2014, another 51A report was filed after the

2 The mother was hospitalized due to her mental illness for
sixteen days when she was about ten years old and then
hospitalized again for nearly three months when she was fifteen.
Over the course of years, the mother has been diagnosed with
mood disorder, psychotic disorder, bipolar disorder, generalized
anxiety disorder, major depression, post traumatic stress
disorder, borderline personality disorder, and schizo-affective
disorder. The mother has also experienced auditory and visual
hallucinations, mania, depression, poor impulse control, and
physically aggressive behaviors.

2
mother was arrested and charged with assault with a knife on the

father. The police arrested the mother, but due to her

disruptive behavior at the police station, transported her to

the hospital for a psychiatric evaluation. That same month, the

department was granted temporary custody of Brianna and placed

her in a foster home because of ongoing concerns about domestic

violence.

Brianna was reunited with her mother in November 2014, and

in May 2015 another 51A report was filed alleging neglect of the

child after the mother delayed seeking medical treatment for

Brianna, who was one year old, when Brianna had difficulty

breathing. When the mother did take the child to the hospital,

she left with her against medical advice before Brianna could be

fully examined.3 The mother then disregarded a recommendation by

the medical providers to return for a follow-up appointment, and

she lost Brianna's prescription. This resulted in the

department's taking temporary custody of Brianna for a second

time.

In April 2016, the department reunified Brianna with the

mother. Fourteen months later, however, the department filed a

3 The mother stated that she did not want the hospital "to
experiment" on her child.

3
petition for temporary custody of Brianna for the third time,

based on its concerns about mother's mental health.4

In June of 2017, when police responded to a call of

domestic violence involving the mother, she tried to hide from

emergency medical responders who were trying to take her to the

hospital and she attempted to strangle herself by wrapping an

extension cord around her neck. When she arrived at the

hospital for an evaluation, she assaulted several security

officers, and it took as many as eight staff members to

physically restrain her.

Although the mother was given conditional custody of

Brianna in August 2017, custody was revoked less than one month

later because the mother failed to comply with the conditions of

the order. In September 2017, a 51A report was filed when the

mother approached a department worker during a supervised

visitation with Brianna, became agitated with the worker in

front of Brianna, and used profanities. In investigating that

allegation, the shelter where the mother and Brianna had

recently resided told the department that the mother had not

been taking her medications, her mental health was "out of

4 In November 2016, the mother was stopped when she
attempted to leave a grocery store without paying for her items.
When police responded to the supermarket, the mother refused to
leave the store's bathroom for forty-five minutes. She bit a
police officer who was attempting to talk her into coming out of
the bathroom.

4
control," and she was abusive towards the staff. The staff at

the shelter also noted that the mother left Brianna unclean and

in a dirty stroller for long periods of time, had to be taken to

shop for food, and created a fire hazard by barricading the back

door of the residence to stop people from looking inside.

The department prepared action plans to assist the mother,

but she was unwilling to fully comply with them; she refused

mental health medication and told her social worker that she did

not need it. In March 2018, during a supervised visit with

Brianna, the mother confronted a social worker and screamed

profanities in the child's presence. Attempts by the

departmental staff to de-escalate the situation proved futile.

The mother grabbed Brianna, who appeared frightened by her

mother's behavior,5 and took her out of the building. When

security attempted to stop her, the mother kicked the social

worker's car and windows, and the mother had to be physically

restrained when police arrived.

The mother was hospitalized because of mental illness in

January 2019 and again less than a month later. During a home

visit by the social worker, the mother was unresponsive to the

social worker's attempts to go over her service plan, making

comments that were unrelated and disconnected to the

5 Brianna was noticeably upset and crying.

5
conversation.6 The mother's mental health continued to decline

and in October 2020, emergency medical services personnel were

twice dispatched to the mother's home because of her paranoid

thoughts. She was psychiatrically hospitalized for eleven days

starting October 23, 2020, during which she displayed

disorganized thinking and paranoid thoughts, believing that her

landlord and the hospital were conspiring against her. In July

2022, the mother was charged with assaulting a parking garage

attendant. In October 2023, a few months before her trial, the

mother arrived unannounced at the department's area office and

confronted staff, shouting in a supervisor's face. By the time

of trial in December 2023, the mother's social worker reported

that she was often manic and had difficulty remaining focused

and on-topic when discussing her past. The mother remained

defensive and resistant to the therapist's feedback and remained

unable to comprehend the gravity and responsibility of properly

caring for a child.

B. Procedural history. A trial commenced in November

2019, but a mistrial was declared in January 2020. A second

trial concluded in September 2021, and the trial judge entered a

6 For example, the mother told the social worker that she
"was a slave for five years," she was starved, and that "[l]ife
was either jail or institution." The mother was unable to
explain her comments and when asked if she was safe, the mother
responded that "life is busy and I'll be going like a spring
chicken."

6
decree finding the mother unfit and terminating parental rights.

The mother appealed, and, in an unpublished opinion entered on

July 5, 2023, a panel of this court vacated the decree of

termination of mother's parental rights and remanded the case to

the Juvenile Court. See Adoption of Brianna, 102 Mass. App. Ct.

1125 (2023). The mother was appointed counsel that same month

and a pretrial conference was held on August 17, 2023. The

mother's counsel agreed to trial dates of December 4, 5, and 13,

2023, with discovery completion by November 1, 2023. A two-day

trial occurred on December 4 and 5, 2023. At the time of this

trial, Brianna was nine years old. After making 173 findings of

fact and forty-four conclusions of law, the judge concluded that

the mother was unfit, that her unfitness was likely to continue

into the indefinite future, and that termination of parental

rights was in the child's best interest. This appeal followed.

Discussion. 1. Standard of review. "To terminate

parental rights to a child, the judge must find, by clear and

convincing evidence, that the parent is unfit and that the

child's 'best interests will be served by terminating the legal

relation between parent and child.'" Adoption of Luc, 484 Mass.

139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59

(2011). The department bears the burden of proof as to both

unfitness and the child's best interests. See Care & Protection

of Erin, 443 Mass. 567, 571-572 (2005). "While a decision of

7
unfitness must be supported by clear and convincing evidence,

. . . a judge's findings will be disturbed only if they are

clearly erroneous." Adoption of Paula, 420 Mass. 716, 729

(1995). "A finding is clearly erroneous when there is no

evidence to support it, or when, although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed" (quotations and citation omitted). Adoption of

Rhona, 57 Mass. App. Ct. 479, 482 (2003).

2. Termination of parental rights. As noted, the

termination of a parent's right to a child requires a two-step

analysis, requiring clear and convincing evidence of parental

unfitness and that termination of parental rights is in the

child's best interests. See Adoption of Luc, 484 Mass. at 144

(2020). Parental unfitness, which requires careful

consideration of the facts of any given case, is "determined by

taking into consideration a parent's character, temperament,

conduct, and capacity to provide for the child in the same

context with the child's particular needs, affections, and age."

Adoption of Mary, 414 Mass. 705, 711 (1993). "'[P]arental

unfitness' means 'grievous shortcomings or handicaps' that put

the child's welfare 'much at hazard.'" Adoption of Jacob, 99

Mass. App. Ct. 258, 262 (2021), quoting Adoption of Katharine,

42 Mass. App. Ct. 25, 28 (1997). The considerations of

8
unfitness and best interests "are not mutually exclusive, but

rather reflect different degrees of emphasis on the same

factors" (quotations and citations omitted). Adoption of

Garret, 92 Mass. App. Ct. 664, 671 (2018).

In deciding parental unfitness, the "central judgment does

not concern the [parent's] merits or demerits, but whether, in

all of the circumstances (including merits and demerits), he [or

she] has the capacity to act as a fit parent." Adoption of

Rhona, 63 Mass. App. Ct. 117, 125 (2005), quoting Adoption of

Nicole, 40 Mass. App. Ct. 259, 262 (1996). Evidence of a

parent's refusal to cooperate with the department, engage in

counseling, or maintain department service plans is also

relevant to the determination of unfitness. See Adoption of

Rhona, supra at 126. The judge considered the evidence on this

point, including that the mother displayed a lack of cooperation

with the department and failed to consistently attend services

that were part of her plan. And, when the mother did engage in

a parenting program, she was often disruptive and did not

participate effectively in treatment. Likewise, evidence of

domestic violence is relevant because domestic violence "may

imperil a child's physical safety and psychological

development." Adoption of Jacob, 99 Mass. App. Ct. 258, 262

(2021). The judge's findings reflect her consideration of this

evidence, as well.

9
It is apparent from the judge's findings, however, that the

judge's determination of unfitness rested primarily on the

mother's long history of untreated mental illness. Having a

mental disorder is relevant to the determination of parental

unfitness if "it affects the parents' capacity to assume

parental responsibility, and ability to deal with a child's

special needs." Adoption of Frederick, 405 Mass. 1, 9 (1989).

A review of the record supports the conclusion that the mother's

failure to engage in mental health counseling and take

prescribed medication interfered with her ability to assume

parental responsibilities for Brianna. Brianna had been removed

from her mother's care on several occasions because of the

mother's untreated mental health issues. The judge properly

considered the multiple incidents in which the mother was unable

to manage her emotions and stress because of her untreated

mental health, and the impact it had upon Brianna, who witnessed

it. The judge also considered the number of times in which the

mother's untreated mental health resulted in neglect of Brianna.

The judge was appropriately concerned for Brianna's safety when

the mother's mental illness resulted in the mother's failure to

timely and adequately respond to Brianna's health needs.

In concluding that mother was currently unfit, the judge

carefully assessed the evidence of unfitness, which was not

fleeting in nature but rather spanned the course of several

10
years. On these facts, the findings of mother's unfitness and

that mother's pattern of unstable behavior would place the child

"at serious risk of peril" is justified. See Adoption of

Cadence, 81 Mass. App. Ct. 123, 131 (2012). As recently as the

trial in 2023, despite engaging in therapy, the mother's mental

health was still poor. The judge noted that the mother's trial

testimony was "tangential, circuitous and nonresponsive,"

demonstrating "her ongoing struggles with mental health and

inability to care for her daughter despite her affection for

her."7 All of this evidence demonstrated the mother's continuing

mental health struggles and, despite her care and affection for

her daughter, the mother's unfitness was not temporary.

Nevertheless, the mother argues that the judge erred

because, even considering her "perceived shortcomings" in the

aggregate, they did not amount to clear and convincing evidence

that her unfitness would remain so indefinitely. The mother

points to the fact that, despite her mental health challenges,

by the time of the trial she had earned her high school diploma,

obtained stable housing and employment, engaged in parenting and

domestic violence classes, and had mostly positive visits with

7 The judge specifically noted that during her trial
testimony, the mother's speech was pressured, she needed
constant redirection by counsel to answer a question, her
responses were often tangential and nonresponsive, and she
lacked insight into her mental illness.

11
Brianna. While the mother's accomplishments are not in dispute,

and the judge acknowledged recent improvements by the mother in

her written decision, there was ample evidence to support the

judge's conclusion that the mother was unfit, that her unfitness

was not temporary, and that termination was in Brianna's best

interests.

3. Child's expressed preference. We are not persuaded by

the argument of both the mother and the child that termination

of the mother's parental rights was in error because the judge

ignored the existence of the strong bond that existed between

the two. In fact, the judge acknowledged the mutual affection

between the mother and Brianna and acknowledged that during

supervised visitation, Brianna was happy to see her mother.8

We agree with Brianna that a judge should consider the

wishes of the child in making custodial determinations, and a

child's wishes "are entitled to weight in custody proceedings."

Care & Protection of Vick, 89 Mass. App. Ct. 704, 710 (2016),

quoting Care & Protection of Georgette, 439 Mass. 28, 36 (2003).

"The child's wishes, however, are neither decisive nor outcome

dispositive, . . . and must be considered against the backdrop

of the mother's unfitness." Care & Protection of Vick, supra.

8 We also note that, when Brianna's visits with the mother
were suspended, Brianna would ask for her mother and wanted to
spend time with her.

12
Here, the judge recognized Brianna's preference to return to her

mother but ultimately determined that the child's best interests

would be served by termination of her mother's parental rights.

Likewise, we recognize Brianna's sincere desire to be reunited

with her mother despite her untreated mental illness, but we are

also constrained from making a custody decision that would

subject Briana to an unacceptable risk of harm and neglect.

In addition to Brianna's expressed preference, the judge

also appropriately considered the academic, emotional, and

social progress Brianna has made during the time she lived with

her preadoptive family as compared to her deficits in these

areas while in the mother's care. The judge could also consider

the harm that Brianna would suffer if she lost the stable and

secure living arrangement that she had lived in for six years as

exemplified by Brianna's strong reaction to a temporary

alternate placement in 2018. See Adoption of Rhona, 63 Mass.

App. Ct. at 126-129. There is adequate support in the record

that termination of the mother's rights was warranted, despite

Brianna's expressed interest.

4. Reasonable efforts. "When a child is removed from his

or her home and placed into the custody of the [department], the

department is required by statute to make ongoing 'reasonable

efforts to make it possible for the child to return safely to

his [or her] parent or guardian.'" Care & Protection of Rashida,

13
488 Mass. 217, 218 (2021), quoting G. L. c. 119, § 29C.9 This

general obligation requires the department "to 'encourage the

use by [the mother] of all available resources' to promote the

'strengthening and encouragement of family life for the

protection and care of [the] children.'" Care & Protection of

Elaine, 54 Mass. App. Ct. 266, 274 (2002), quoting G. L. c. 119,

§ 29C. "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),

citing Adoption of Ilona, 459 Mass. at 61-62. However, even

when a judge has found that the department has failed to make

reasonable efforts, "a trial judge must still rule in the

child's best interest." Adoption of West, supra, quoting

Adoption of Ilona, supra at 61.

Assuming that the claim of inadequate reasonable efforts

was properly preserved, we discern no error in the judge's

conclusion that the department made reasonable efforts toward

reunification in this case. The department repeatedly returned

the child to the mother's custody and attempted to work with the

mother to provide a safe home for the child in the mother's

9 In determining the fitness of a child's parent, the judge
must consider the factors listed in G. L. c. 210, § 3 (c), some
relating to whether the department provided reasonable services
and whether the parent utilized said services. See G. L.
c. 210, § 3 (c). See also Adoption of Gregory, 434 Mass. 117,
126 (2001).

14
care. Moreover, the department recommended mental health

counseling for the mother, but her participation and medication

compliance was inconsistent, and she failed to recognize the

need for such services. Although the mother participated in a

number of parenting groups, she was often unable to grasp the

information or communicate what she learned in the group

programs. Similarly, although the mother engaged in individual

therapy, she was unable to communicate the goals of that

therapy. We conclude that the judge could consider the mother's

lack of consistent engagement in mental health counseling and

medication compliance as well as her failure to meaningfully

participate in or benefit from other services when determining

whether the department's efforts, in the context of the entire

case, were reasonable.

We are likewise unpersuaded by the mother's argument that

the department's efforts were not reasonable where the

department failed to comply with its own disability policy. The

mother argues that the department was keenly aware of the

mother's long history of mental illness and her failure to

consistently engage in counseling and take prescribed medication

yet, despite this knowledge, offered nothing more than an action

plan including generic mental health counseling and medication

compliance. While the mother does not identify the specific

service that should have been provided, she argues that had the

15
department done something more, it was possible that the judge

would not have found that mother's unfitness was likely to

continue for the indefinite future.

The evidence does not support this contention. While the

mother places significant weight on the failure of the

department to comply with its 2022 disability policy, we note

that much of the evidence of parental unfitness started in 2014

and occurred mostly during a time when the department did not

have such a policy. Furthermore, the mother failed to comply

with most of the recommendations in the service plans the

department did provide and was uncooperative and refused to

comply with the specific mental health recommendations. Where

the mother was oppositional and combative to the department's

attempts to provide her with services, the record provides

abundant evidence that, even if the department complied with its

2022 disability policy, the mother would not have engaged in

meaningful treatment. As such, any deficiency in the services

offered by the department did not affect that ultimate

determination of indefinite unfitness.10

10We note that the department provided the mother with an
individual therapist and a psychiatrist, and the providers made
a coordinated effort to encourage the mother to engage in mental
health counseling and to take her prescribed mental health
medication. Despite these services, the mother's compliance
with medication and treatment was inconsistent at best, and her
mental health had not shown significant improvement by the time
of the trial at issue here.

16
In sum, after reviewing the entire record, we are satisfied

that the judge's comprehensive determination that the mother was

unfit to parent the child, that her unfitness was not temporary,

and that the department had made reasonable efforts towards

reunification was supported by clear and convincing evidence.

4. Motion to continue. The mother claims that the judge's

denial of her motion to continue the trial amounted to an abuse

of discretion. "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." Adoption of Ursa, 103 Mass. App. Ct. 558, 568

(2023), quoting Care & Protection of Quinn, 54 Mass. App. Ct.

117, 120 (2002). Based on the facts presented in this case, we

cannot say that the judge abused her discretion. Trial counsel

was appointed for the mother on July 27, 2023, and the judge set

a discovery compliance date of November 1, 2023, with trial to

begin on December 4, 2023. On November 17, 2023, the mother's

counsel filed an unopposed motion to continue the trial for one

month so that she could have more time prepare for trial;

specifically, the mother's counsel sought additional time to

respond to the discovery the department provided on November 8,

2023, after the discovery deadline had passed. On appeal, the

mother claims that the denial of her motion to continue amounted

to an abuse of discretion because her counsel was unprepared to

17
go to trial without an updated evaluation of the family and

without recent court investigation reports, family assessments

or foster reviews. She has not established, however, that the

thirty-day continuance trial counsel asked for would have been

sufficient to enable the mother to obtain completed reports.

Given all the facts in this case, including the lengthy

procedural history, we cannot conclude that the judge abused her

discretion in the denial of the motion. See Care & Protection of

Quinn, 54 Mass. App. Ct. at 120.

5. Posttermination and postadoption visits. At the time

of trial in 2022, the mother and Brianna had monthly visits.

After trial, the judge ordered that the mother be given no less

than two posttermination visits with Brianna per year. The

mother contends that the judge abused her discretion by

significantly reducing the amount of contact with Brianna after

the termination of her parental rights compared to the amount of

contact she had with Brianna prior to the termination of her

parental rights. While we are sympathetic to the mother's

concern about reduced contact with Brianna, the reduction in

visitation is consistent with the differing purposes of

pretermination contact versus posttermination contact and does

not, without more, amount to an abuse of discretion. See

Adoption of Vito, 431 Mass. 550, 564-565 (2000).

18
As to postadoption visitation, the judge credited the

testimony of the preadoptive mother who believed that Brianna

would benefit from continued contact with the mother and that

she would allow this to occur and did not enter a specific order

requiring postadoption visitation. The decision whether to

require postadoption visits is left to the judge's discretion.

See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). "When

a trial judge decides not to order visitation, . . . [s]he is

not required to make extensive findings if [s]he has already

made specific and detailed findings regarding the child's best

interests and the determination of parental unfitness." Id.

Here, the judge's decision not to order visitation does not

amount to an abuse of discretion. A judge does not abuse her

"discretion in leaving the issue of visitation to the sound

judgment of [a] loving adoptive parent[] who will be in the best

position to gauge whether such visits continue to serve" the

best interests of Brianna, "rather than issuing a specific

visitation order setting forth the frequency and extent of such

visits." Adoption of Ilona, 459 Mass. at 66. The judge took

note of the preadoptive mother's position that the best

interests of the child would be served by continued visitation

between the mother and child, and the judge was not required to

order visitation. Id. Here, given the long and positive

relationship that the child had with her preadoptive mother, we

19
discern no abuse of discretion in the judge's decision to leave

the manner and frequency of the postadoption contact to the

judgment of the preadoptive mother.

Decree affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.11),

Clerk

Entered: April 1, 2025.

11 The panelists are listed in order of seniority.

20