Adoption of Orr.

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-224

ADOPTION OF ORR.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

the mother unfit to parent Orr, terminated her parental rights,

dispensed with her consent to adoption, and approved the

adoption plan of the Department of Children and Families

(department) for Orr. On appeal, the mother contends the judge

abused her discretion and erred by denying her requests for a

trial continuance, finding her unfitness to parent Orr not

temporary, endorsing the department's adoption plan, and

concluding that the termination of her parental rights was in

Orr's best interests. She further argues that some of the

1 A pseudonym.
judge's findings of fact and a conclusion of law were clearly

erroneous.2 We affirm.3

1. Background. We summarize the judge's findings of fact,4

supplemented by uncontested evidence from the record.

Orr was born in December 2020. The next day the department

received a report under G. L. c. 119, § 51A (51A report)

alleging neglect of Orr by his mother after Orr's urine tested

positive for marijuana. The department's ensuing G. L. c. 119,

§ 51B investigation revealed that the mother used marijuana

daily during her pregnancy, had postpartum depression following

Orr's birth, and did not have custody of her three older

children.

The mother has an extensive history with the department as

an adult, dating back to 2009 when a 51A report was filed

alleging neglect of one of her children, Ella.5 She does not

2 Orr argues for affirmance of the decree.

3 The father is not a party to this appeal. He stipulated
to the termination of his parental rights and executed an open
adoption agreement on August 19, 2024.

4 The trial judge made ninety "specific and detailed"
findings and forty-seven conclusions of law 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).

5 A pseudonym.

2
have custody of Ella6 or her two other older children, Toni7 and

Luke.8, 9 When the department initiated its care and protection

petition, the mother had an open criminal child endangerment

case resulting from allegations of neglect of Toni. Toni had

sustained a cigarette burn on her leg; when asked how she got

the burn, Toni reported that "mommy did it accidentally." Toni

also had bruises on her body, matted hair, and lice. The mother

admitted to sufficient facts on the child endangerment charge

prior to the instant trial.

In January 2021, the department and Orr's mother and father

agreed to a safety plan that prohibited the mother from being

Orr's primary caretaker and assigned that role to the father and

Orr's paternal grandmother. Six months later, on June 23, 2021,

6 In June 2009, the department received two 51A reports
alleging neglect of Ella by the mother and Ella's father due to
ongoing domestic violence in the home. The allegations were
supported following a 51B investigation. In August 2010, a 51A
report was filed alleging neglect of Ella by the mother due to
drug use, drug dealing in the home, and lack of supervision.
The allegations of drug use and drug dealing were supported and
the allegations of lack of supervision unsupported following a
51B investigation.

7 In September 2016, May 2018, and July 2019, 51A reports
were filed alleging neglect of Toni by the mother. The
September 2016 and July 2019 allegations were supported. Two
separate 51A reports were filed in September 2016 alleging
neglect of Toni by her father. The allegations were supported.

8 The children's names are pseudonyms.

9 The mother was pregnant with her fifth child at the time
of the instant trial.

3
the mother reported to a social worker that she no longer wanted

to follow the safety plan.

Subsequently, on June 25, 2021, the department filed a care

and protection petition, pursuant to G. L. c. 119, § 24, on

behalf of Orr.10 The father was granted conditional custody,

with the condition that mother was prohibited from being Orr's

sole caretaker. Over the next one and one-half years, Orr was

raised by his father and paternal grandmother. On January 9,

2023, after a care and protection trial at which the mother did

not appear, a judge found both the father and the mother unfit,

granted the department permanent custody of Orr, and placed Orr

with his paternal grandmother. In August 2023, the department

learned that the paternal grandmother was permitting the mother

and the father to live in her home and visit with Orr without

the department's knowledge. As a result, the department placed

Orr in a kinship foster home with his paternal grandfather.

Throughout this case, the mother was subject to numerous

action plans, each of which identified the mother's tasks to

maintain Orr's safety and welfare and to achieve his permanency

10On May 25, 2023, the department's goal for Orr changed
from permanency through stabilization of the family to
permanency through guardianship. On February 6, 2024, the goal
for Orr changed to adoption.

4
through stabilization goal.11 The mother's tasks, which remained

substantially the same across the action plans, included

participating in individual therapy, taking medications as

prescribed and meeting consistently with her prescriber,

refraining from alcohol and illegal drug use, completing mental

health programs, visiting with Orr as scheduled, meeting with

the department, and attending all court hearings. The mother

failed to meaningfully engage in the department's recommended

services and support from the beginning of this case in June

2021 until February 2024.

Moreover, the mother "did not consistently engage with the

Department for the better part of this case."12 In fact, from

October 2021 until June 2023, the mother did not have contact

with the department, despite monthly attempts by the department

to contact her. Even after the department was back in contact

with her, the mother repeatedly failed to allow the department

access to her home and refused to engage in conversations with

social workers, often demonstrating emotionally volatile

11From December 28, 2021, through July 31, 2024, the family
was subject to five action plans, each of which enumerated the
mother's tasks.

12The mother explained to the social worker that "she had
not communicated with the Department on the advice of her
criminal counsel attorney." The judge did not credit this
explanation "because the criminal case was pending at the
inception of this case" and "Mother's reason also conflicts with
a different reason she provided later."

5
behavior. Due to the mother's actions, the department was not

able to conduct a home visit until October 2023. In addition,

mother refused visits with Orr between August 2023 and March

2024.

The mother also has ongoing substance use and mental health

issues. She did not maintain her sobriety as required by her

action plans. She continued to test positive for fentanyl,

cocaine, and amphetamines; she most recently tested positive for

fentanyl in May 2024. The mother also has a history of mental

health issues, and "is presently diagnosed with Major Depressive

Disorder, Generalized Anxiety Disorder, and Post Traumatic

Stress Disorder." The judge found she had stopped taking her

prescribed Zoloft and Ativan at the time of trial. While the

mother engaged in some services to address her ongoing substance

use and mental health issues, her involvement was inconsistent,

demonstrating a "fail[ure] to satisfactorily address the issues

that brought her to the attention of the Department."

The department proposed that Orr be adopted by his paternal

aunt, with whom Orr had had day and overnight visits and who had

already started to identify a pediatrician, daycare, and dentist

for Orr. The mother did not submit an alternative plan. The

judge concluded that the department's plan was in Orr's best

interests.

6
2. Discussion. a. Request for trial continuance. The

mother claims the judge abused her discretion and denied the

mother a meaningful opportunity to be heard by denying her oral

motions, made on the first and second trial dates in August

2024, to continue the trial. We are not persuaded. "Whether to

continue any judicial proceeding is a matter entrusted to the

sound discretion of the judge, and [her] decision will be upheld

absent an abuse of that discretion." Care & Protection of

Quinn, 54 Mass. App. Ct. 117, 120 (2002). The "[s]peedy

resolution of cases involving issues of custody or adoption is

desirable . . . ." Id. at 122, quoting Adoption of Emily, 25

Mass. App. Ct. 579, 581 (1998).

The judge's denial of a continuance of the trial date was a

reasonable exercise of her discretion and did not amount to a

deprivation of the mother's due process rights. First, the

judge properly considered that by the time of trial the case had

been pending for over three years. See, e.g., Adoption of

Varik, 95 Mass. App. Ct. 762, 774 n.14 (2019) (finding no abuse

of discretion in denial of father's motion to continue where

case was more than two years old). Second, the trial had

already been continued from June 12, 2024, when the mother had

not appeared for trial.13 Third, she also had not appeared at

13In addition to not appearing for the initial trial date
on June 12, 2024, and the August 19 and August 20, 2024 trial

7
the trial on January 9, 2023, where the court found Orr in need

of care and protection and granted the department custody of

Orr. Fourth, although the mother appeared on the first day of

the August 2024 trial in this case, she departed before the case

was called. Her trial counsel then requested a continuance,

citing the mother's high-risk pregnancy without providing any

supporting documentation (e.g., a note from a health care

provider). While counsel for the mother also advised the judge

that the stress of the trial was a reason for a continuance, the

mother did not present any indication that her condition would

be sufficiently improved in the future so as to allow her to

participate in a trial. Finally, when the mother failed to

appear on the second day of trial, her counsel again failed to

provide any supporting documentation for the claim that the

stress of the trial was a danger to the mother's pregnancy,

despite clear notice of this issue. Accordingly, we conclude

that the mother "had an opportunity to be heard at a meaningful

time and in a meaningful manner," thereby satisfying due

process. Care & Protection of Quinn, 54 Mass. App. Ct. at 122.

b. Unfitness determination. The mother next contends that

the judge erred in terminating her parental rights because the

facts as found were not sufficient to support a determination of

dates, the mother failed to attend at least four other court
proceedings between 2021 and 2024.

8
likely indefinite unfitness. We disagree. "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). "Where there is evidence that a parent's unfitness is

not temporary, the judge may properly determine that the child's

welfare would be best served by ending all legal relations

between parent and child." Adoption of Cadence, 81 Mass. App.

Ct. 162, 169 (2012). "[W]e rely on the trial judge to weigh the

evidence in order to determine whether there is a sufficient

likelihood that the parent's unfitness is temporary." Adoption

of Ilona, 459 Mass. 53, 59-60 (2011). "Because childhood is

fleeting, a parent's unfitness is not temporary if it is

reasonably likely to continue for a prolonged or indeterminate

period." Id. at 60.

Predictions about a parent's unfitness must be "more than

hypothetical," Adoption of Inez, 428 Mass. 717, 723 (1999), and

are determined by "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

9
may consider a pattern of parental neglect or misconduct."

Adoption of Elena, 446 Mass. 24, 33 (2006).

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 that throughout most of the pendency

of this case, the mother consistently failed to engage in

services, cooperate with the department, visit with Orr, and

attend court dates. The judge also properly considered evidence

of the mother's ongoing mental health and substance use issues.

Notably, the mother does not dispute that she is currently unfit

to parent Orr. The judge's decision was firmly rooted in

subsidiary findings that were proved by a preponderance of the

evidence and clearly and convincingly demonstrated that the

mother was unfit, such that termination of her parental rights

was in Orr's best interests.

The judge properly considered all the evidence in

determining that the mother was not likely to meet Orr's needs

in the future. Contrary to the mother's claims, the judge did

not disregard the mother's efforts to address her parental

deficiencies in determining whether her unfitness was likely to

continue into the foreseeable future. Instead, the judge

explicitly found that the mother began weekly individual

domestic violence counseling and a weekly four-week parenting

10
class and signed information release forms. However, the mother

only participated in domestic violence counseling and the

parenting class in the month before trial, demonstrating a last-

minute effort to engage in the services prescribed in the

family's action plans since December 28, 2021. The judge also

found that while the mother had been receiving methadone

treatment since October 2021 and engaging in individual therapy,

the mother continued to test positive for illegal substances

throughout the pendency of the case, including most recently in

May 2024, and had not yet provided a therapy treatment plan to

the department at the time of trial. Moreover, while the mother

did complete a substance use assessment on July 9, 2024, she did

not inform her clinician about her May 2024 positive test for

fentanyl and cocaine.

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 father has had ample opportunity to

achieve fitness as a parent but has failed to follow through, it

is only fair to the children to say, at some point, 'enough'");

Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting

Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003)

(noting that "mere participation in the services does not render

a parent fit 'without evidence of appreciable improvement in her

11
ability to meet the needs of the child[ren]'"). The mother's

inability to comply with the action plans is "relevant to the

determination of unfitness." Petitions of the Dep't of Social

Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289

(1987).

The mother also challenges as clearly erroneous the judge's

finding that the mother's "lack of awareness" of why she lost

custody of her older children "impedes her ability to make

meaningful changes to her parenting ability" as well as the

judge's conclusion that the mother's "inability to control her

behavior in her interactions with the Department" and

"longstanding patterns of inconsistent follow through"

demonstrate a "continuous failure to identify the deficits that

brought her to the attention of the Department" and thus "render

her unfit." "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" (quotation and citation omitted). Custody of

Eleanor, 414 Mass. 795, 799 (1993).

We discern no merit to either challenge. First, the

judge's finding of the mother's impeded ability to make changes

to her parenting ability is supported by evidence of the

mother's failure to engage with the department and her blaming

12
of her children's respective fathers for her loss of custody.

Second, the judge concluded that evidence of the mother's

recurring angry outbursts and volatile behavior when interacting

with the department, including repeated threats to social

workers, and lack of engagement with services and the

department, show an inability to control her behavior and to

address her parenting deficits.

c. Adoption plan. Although at trial the mother neither

objected to the department's adoption plan, nor proposed an

alternative plan, she now argues on appeal that the department's

proposed adoption plan was not sufficiently detailed and thus

the judge could not meaningfully evaluate it.

In determining whether termination of parental rights is in

the child's best interests, the judge must assess the "ability,

fitness, and readiness of the [child]'s parents to assume

parental responsibility" and meaningfully evaluate all placement

plans, including the plan proposed by the department and any

competing plans. Adoption of Ilian, 91 Mass. App. Ct. 727, 730-

731 (2017), quoting Adoption of Vito, 431 Mass. 550, 568 n.28

(2000). "The adoption plan need not be fully developed to

support a termination order; it need only provide sufficient

information about the prospective adoptive placement 'so that

the judge may properly evaluate the suitability of the

department's proposal.'" Adoption of Willow, 433 Mass. 636, 652

13
(2001), quoting Adoption of Vito, supra. See Adoption of Varik,

95 Mass. App. Ct. at 770-771. We review the judge's assessment

for abuse of discretion. See Adoption of Bianca, 91 Mass. App.

Ct. 428, 434 (2017).

The department proposed, and the judge approved, a plan

under which Orr would be adopted by his paternal aunt in Rhode

Island. The department followed interstate protocols,

initiating an Interstate Compact on the Placement of Children

(ICPC) home study of the paternal aunt and her fiancé through

Rhode Island. The ICPC placement was approved on July 24, 2024.

The department informed the judge that after placing Orr in the

aunt's home, it would request a permanency assessment through

the ICPC.

Contrary to the mother's contention (and even if it were

not waived), the department's proposed plan was not "vague and

hopeful, at best." The judge appropriately considered that Orr

progressed from day visits to overnight visitation with his aunt

on August 10, 2024, and would transition to live in the aunt's

home after a dental procedure on September 24, 2024. Further,

the aunt had already started to identify a daycare,

pediatrician, and dentist for Orr.

Similarly, contrary to the mother's claim, the judge's

finding that the department would take alternative steps

(adoption by recruitment) should the preadoptive aunt no longer

14
be a viable placement was not clearly erroneous. Although the

"backup plan" is not as detailed as the primary plan, it

provides information sufficient for the court to determine in

these circumstances that the department's proposed plans serve

Orr's best interests.

Accordingly, the department's adoption plan, when viewed in

conjunction with the evidence presented at trial concerning the

mother's unfitness and Orr's best interests, was "sufficiently

specific and detailed" to support both Orr's placement and the

termination of the mother's parental rights (citation omitted).

Adoption of Willow, 433 Mass. at 652-653.

Decree affirmed.

By the Court (Sacks, Smyth &
Wood, JJ.14),

Clerk

Entered: October 14, 2025.

14 The panelists are listed in order of seniority.

15