Adoption of Amanda.

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-43

ADOPTION OF AMANDA. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 29, 2024, following a trial, a judge of the

Juvenile Court issued a decree adjudicating Amanda (Amanda or

child) in need of care and protection, and terminating the

parental rights of the mother. 2 Amanda was born in September

2022 and has been in the care of the maternal grandmother since

April 2023. On appeal, the mother argues that numerous factual

findings made by the judge were clearly erroneous, the remaining

findings do not prove the mother's indefinite parental unfitness

by clear and convincing evidence, and the judge engaged in

invalid viewpoint discrimination in her findings. We affirm.

1 A pseudonym.

2The judge also found the father unfit and terminated his
parental rights. The father did not appeal and is not a party
before this court.
1. Factual findings. As a preliminary matter, the mother

challenges approximately fifty of the judge's factual findings.

She contends that the findings violate general evidentiary rules

for custody hearings or are simply unsupported by the evidence.

For most of these factual findings, we find no merit to the

mother's arguments. For those with which we agree with the

mother, any error was not prejudicial, and as discussed further,

we do not disturb the final decree.

Subsidiary factual findings must be proved by a fair

preponderance of the evidence, and we give substantial deference

to the judge's findings. Adoption of Jacques, 82 Mass. App. Ct.

601, 606 (2012). We review the judge's subsidiary findings to

determine whether they were clearly erroneous. Custody of

Eleanor, 414 Mass. 795, 802 (1993). "A finding is clearly

erroneous where 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.'" Id. at 799,

quoting Building Inspector of Lancaster v. Sanderson, 372 Mass.

157, 160 (1977).

a. Findings related to the father's conduct. The mother

challenges several factual findings and conclusions of law as

2
they relate to the father's unfitness. 3 As the father is not a

party to this appeal, we decline to address the claims of error

concerning the father's behavior, most of which are irrelevant

to the adverse unfitness finding against the mother. See

Adoption of Paula, 420 Mass. 716, 723 n.8 (1995). Were we to

reach the propriety of these findings, we would discern no

prejudicial error to the mother.

b. Findings derived from G. L. c. 119, § 51A reports. The

mother also challenges numerous factual findings that derive

from information in several G. L. c. 119, § 51A reports (51A

reports), arguing that the judge used the reports impermissibly

as substantive evidence. 4 The mother did not file a motion for

reconsideration regarding these findings, nor did she file a

motion for amended findings of fact. Assuming without deciding

that this issue is not waived, we find no merit to the mother's

arguments.

3 The judge's decision misnumbers the findings of fact after
finding number 227. We have used the actual numbers in this
decision. The challenged findings about the father's conduct
include findings numbers 79, 98, 102, 108, 211, 212, 213, 235,
and 255.

4 Included in that category are findings numbers 21, 74, 76,
77, 95, 98, 102, 106, 107, 110, 111, 114, 117, 118, 119, 126,
127, and 128. The mother also purports to challenge factual
finding number 101 on this basis, but this finding was based on
a G. L. c. 119, § 51B report, not a 51A report.

3
Section "51A reports are admissible to 'set the stage' to

explain how the department became involved with the family."

Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019). See

Mass. G. Evid. § 1115(b)(2)(A) (2025). Judges are entitled to

reference the 51A reports in their findings as long as they do

not use the information contained in the reports as substantive

evidence. See Adoption of Querida, supra.

Here, upon admitting the 51A reports in evidence, the judge

expressly noted at a hearing on November 7, 2023, that these

reports were admitted only to set the stage and "with some

limitations." Furthermore, in each finding of fact that the

mother challenges, the judge used variations of the word

"allege," demonstrating that she was not taking the information

in the reports as substantive, but merely setting the stage for

how the Department of Children and Families (department) became

involved with the mother. See Adoption of Querida, 94 Mass.

App. Ct. at 778 ("[E]ach time the judge referenced the 51A

reports, he did so using the words 'alleged' or 'allegations,'

making clear that he was not using any information contained in

the 51A reports" improperly). Furthermore, even if there was

error with these eighteen factual findings, which we do not

find, there was ample support for the judge's finding of

unfitness, under the clear and convincing standard based on the

4
other 269 factual findings in the record, and thus no prejudice

to the mother. See Adoption of Luc, 484 Mass. 139, 148 (2020).

c. Findings derived from G. L. c. 119, § 51B reports. The

mother also claims that several findings of fact deriving from

hearsay in G. L. c. 119, § 51B reports (51B reports) and not

falling within a common-law or statutory exception are clearly

erroneous. 5 While we agree with the mother that several of these

findings were impermissible based on the evidentiary rules

applicable to 51B reports, none of those findings were important

to the determination of unfitness, and thus, there was no

prejudice. See Care & Protection of Olga, 57 Mass. App. Ct.

821, 825 (2003).

Section 51B reports may be considered for statements of

primary fact, Custody of Michel, 28 Mass. App. Ct. 260, 267

(1990), if the hearsay source is specifically identified and is

available for cross-examination. See Mass. G. Evid.

5 Included in that category are findings numbers 3, 38, 49,
52, 100, 124, and 130. Findings numbers 3 and 100 are not
clearly erroneous. Finding number 3 was not error where the
judge's finding, that mother had a "troubled adolescence," was
supported elsewhere in the record. The mother's challenge to
finding number 100 on evidentiary grounds is also without merit,
where the hearsay declarant, the maternal grandmother, was
identifiable, available for cross-examination should mother have
subpoenaed her, and the contents included the grandmother's
observations of the mother's moving from place to place. Also,
there is no legal significance to the use of the word
"allegedly" in factual finding number 100, and as such, the
mother's challenge to factual finding number 100 on this ground
is also without merit.

5
§ 1115(b)(2)(B). "Statements of primary fact are observations,

rather than opinions, made by an individual with personal

knowledge . . . ." Adoption of Luc, 484 Mass. at 153 n.34.

Three of the judge's findings that derive from the 51B

reports are opinions, rather than observations, such as "mother

appeared to be just waking up," and mother was "rude and

berating." See Adoption of Luc, 484 Mass. at 153 n.34.

Furthermore, two of the findings properly identify statements of

primary fact, yet fail to include the full name of the hearsay

declarant, and as such, the declarant is not identifiable within

the meaning of § 1115(b)(2)(B). See Adoption of Luc, supra at

153 & n.35.

To the extent that these findings are erroneous, they were

not prejudicial to the mother, as they were cumulative evidence,

Adoption of Luc, 484 Mass. at 148 & n.21, and, where the judge's

decision does not suggest that she relied on these specific

findings in her determination of the mother's unfitness, the

findings were "not central to the ultimate conclusion of

unfitness." Care & Protection of Olga, 57 Mass. App. Ct. at

825. Moreover, numerous other findings, which the mother does

not challenge, stand for the same proposition that these

challenged findings stood for: the mother has a violent temper,

and the mother struggles with substance use.

6
d. Findings derived from police reports. The mother also

challenges four findings that derive from information in police

reports. These challenges are meritless. 6

Police reports are admissible under the business record

exception to the hearsay rule, to the extent that the reports

include the officers' firsthand observations. See Adoption of

Paula, 420 Mass. at 727; Mass. G. Evid. § 1115(b)(5). Opinions

and evaluations within the police reports are not admissible,

unless they separately satisfy another hearsay exception. See

Mass. G. Evid. § 1115(b)(5). At the November 7, 2023 hearing,

the judge properly stated these evidentiary limitations when

admitting the police reports.

With regard to the two findings challenged that reference

specific allegations of child abuse and threatening behavior

that were reported to the police, these findings do not assert

that the contentions in the police reports are taken for their

truth. Furthermore, no conclusion of law suggests that these

specific allegations were taken for their truth, nor does the

mother cite to any of the judge's conclusions that take those

allegations for their truth.

The two other findings challenged relate specifically to

reports police received of the mother's suicidal ideations.

6 Included in that category are findings numbers 170, 202,
209, and 215.

7
These findings do not violate any evidentiary rules, where

finding number 215 does not invoke any hearsay statements, and

in finding number 170, the judge does not rely on opinions or

evaluations of officers, but rather independently concludes that

the mother has expressed suicidal ideation based on the police

officers' observations.

e. Remaining challenges. The mother's remaining

challenges to other factual findings generally allege that the

findings are simply unsupported by the record. 7 For nearly all

of the challenges, there is ample information in the record to

support the judge's findings by a preponderance of the evidence.

Where the mother's arguments "amount to no more than

dissatisfaction with the judge's weighing of the evidence and

[her] credibility determinations," we will not disturb the

judge's findings. Adoption of Quentin, 424 Mass. 882, 886 n.3

(1997). 8

7 Included in that category are findings numbers 48, 62, 75,
100, 125, 134, 138, 150, 176, 181, 286, 287, and 288. These
findings relate to, among other topics, domestic violence,
substance abuse, housing instability, and abandonment of
relationship with the child.

8 The mother's argument regarding finding number 93 has
merit. Finding number 93 stated that the mother and the father
were causing a disturbance, but per the police report, the
mother and the father had observed the disturbance, not caused
it. However, for the reasons mentioned, this finding was not
prejudicial where there was abundant other evidence in the
record to support the finding of the mother's unfitness. See
Adoption of Luc, 484 Mass. at 148.

8
2. The mother's unfitness. The mother also claims that

the nonerroneous factual findings do not support the judge's

determination of her unfitness by clear and convincing evidence.

Specifically, she alleges that the judge failed to draw a nexus

between the mother's shortcomings and her inability to meet the

child's needs; and that there is no evidence that the mother's

substance use, criminal conduct, personal instability, housing

instability, abandonment of relationship with the child, or

mental illness, as found by the judge, would make the mother

unable to meet the child's needs; and that the finding of

unfitness was a result of bias against the mother. We are not

persuaded.

We review to assess whether the judge's findings proved

unfitness by clear and convincing evidence. Custody of Eleanor,

414 Mass. at 802. The judge must find that current unfitness is

not temporary. Adoption of Arianne, 104 Mass. App. Ct. 716, 720

(2024). "Parental unfitness must be 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

Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Adoption of

Mary, 414 Mass. 705, 711 (1993). Other proper considerations in

this determination include, but are not limited to, the past

behavior of the parent, see Adoption of Jacques, 82 Mass. App.

9
Ct. at 607, criminal conduct, see Care & Protection of Frank,

409 Mass. 492, 494-495 (1991), failure to complete and benefit

from services, Adoption of Ulrich, 94 Mass. App. Ct. 668, 677

(2019), and inability to secure adequate stable housing,

Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). No single

factor is determinative. Care & Protection of Yetta, 84 Mass.

App. Ct. 691, 695 (2014). Lastly, "the judge's assessment of

the weight of the evidence and the credibility of the witnesses

is entitled to deference." Custody of Eleanor, 414 Mass. at

799.

We conclude that the judge's finding of the mother's

unfitness was supported by clear and convincing evidence. The

judge's 287 findings of fact and fifty conclusions of law

demonstrate that the judge "[gave] the evidence close

attention." Adoption of Nancy, 443 Mass. 512, 515 (2005). The

judge also considered the findings of fact together, in the

aggregate, when making her determination of unfitness. See Care

& Protection of Laura, 414 Mass. 788, 793 (1993). Among those

findings was evidence of consistent housing instability,

supported by the parents' own testimony, the mother's

difficulties in coping with depression, the mother's abandonment

of her relationship with the child in the months leading up to

the trial, the mother's lack of ability to support the child's

specialized needs related to her heart condition, the mother's

10
violence and temper, the mother's continued substance use and

its negative impact on her child, and lastly, the mother's

general criminal conduct. Importantly, the mother refuses to

engage in action plans or to take any steps to alleviate these

issues. See Adoption of Jacques, 82 Mass. App. Ct. at 609. All

of these factors were properly considered for their likelihood

of harm to the child. We do not disturb the judge's finding of

unfitness, where she was in the best position to weigh the

evidence and assess the credibility of the witnesses. See

Adoption of Quentin, 424 Mass. at 886 n.3.

The evidence also supported the finding that the mother's

unfitness is not temporary and would likely continue

indefinitely. "Because childhood is fleeting, a parent's

unfitness is not temporary if it is reasonably likely to

continue for a prolonged or indeterminate period." Adoption of

Ilona, 459 Mass. 53, 60 (2011). By the time the termination of

parental rights trial began in November 2023, the department had

been involved with mother since at least 2007. Over the years,

the concerns of the department continued due in large part to

the mother's resistance to comply with the required action plan

tasks. At trial, the mother refused to take responsibility for

losing custody of any of her children, denied almost every

allegation against her regardless of the evidence suggesting

otherwise, continually emphasized her belief that the action

11
plans were not relevant to her, and stated that she refused to

participate in virtual visits with her child. Where there is

evidence that unfitness is not temporary, we do not substitute

our judgment for that of the judge who heard the evidence.

The mother's claim that the judge based her decision on

domestic violence between the mother and the father, the

mother's substance use, and her general criminality, without

citing a nexus to how those factors hinder the mother from

meeting the child's basic needs, is without merit. To the

contrary, the judge explicitly explained the nexus between these

factors and the mother's inability to meet her child's needs.

Regarding the judge's conclusions related to domestic violence,

the judge explicitly found that "any child in [the mother's]

care would be exposed to . . . violence, domestic and

otherwise," and as a result, "it would be dangerous for [the

child] to reunify with" the mother, particularly because the

mother refuses to engage in domestic violence services. With

regard to substance use, the judge, again, explicitly found that

the mother has prior patterns of substance use, that she refuses

to engage in substance use evaluations and treatment, and that

"there is a nexus between [the m]other's . . . unevaluated and

untreated conditions and [her] ability to parent her children."

The record supports these findings. Regarding the mother's

criminal history, the judge made several findings, most of which

12
the mother does not challenge, relevant to the mother's criminal

and police history. The judge determined that this criminal

activity bears on parental fitness, and here contributes to

putting "the child's welfare in jeopardy."

With reference to the mother's arguments that the finding

of unfitness was a result of bias against the mother, we

disagree. The mother bases her argument on the unfortunate

reality that the mother does not have custody of any of her six

children, suggesting that this reality is a result of the

department's bias against her. But the judge's determination of

unfitness for this child did not hinge on the mother's lack of

custody over her other children. The judge's determination of

unfitness properly focused on the mother's conduct in relation

to this child. 9

9 The mother also purports to directly challenge numerous
conclusions of law. Those conclusions of law include
conclusions numbers 7, 9, 11, 18, 23, 29, 30, 33, 41 (i), 41
(ii), 41 (iii), 41 (v), 41 (ix), 41 (x), 44, 48, and 50. The
mother's arguments are without merit. The mother's challenges
to several conclusions simply reiterate the legal principles the
judge was obligated to follow. The mother's other challenges
mostly amount to a dispute with the judge over the weight given
to the evidence. Adoption of Quentin, 424 Mass. at 886 n.3.
Lastly, the mother's challenge to conclusion number 30 is
without merit where her contention that there was a requirement
of expert testimony for the judge to find psychological harm to
the child if she were removed from her foster placement is
mistaken. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203
(2003).

13
3. Viewpoint discrimination. The mother claims, for the

first time on appeal, that the judge engaged in invalid

viewpoint discrimination in her findings of unfitness and in the

termination of the mother's parental rights. We treat this

claim as waived.

It is well established that an argument may not be raised

for the first time on appeal. Boss v. Leverett, 484 Mass. 553,

562-563 (2020). Here, the mother did not raise this claim in

the Juvenile Court, and therefore, we treat it as waived. Also,

"[w]e generally decline 'to consider constitutional issues for

the first time on appeal,'" Commonwealth v. Guzman, 469 Mass.

492, 500 (2014), quoting Beeler v. Downey, 387 Mass. 609, 613

n.4 (1982), especially where "the record accompanying

[constitutional claims] is lacking." Guzman, supra, quoting

Gagnon, petitioner, 416 Mass. 775, 780 (1994).

Even if this claim were not waived, it is without merit.

The judge did not base her decision on the mother's viewpoints

regarding the department and the police. Rather, the judge

properly determined that the mother's conduct, including her

inability to exhibit consistent temperament and stability, her

threatening behavior, failure to follow service plans, housing

instability, substance misuse, and more, all supported a finding

of unfitness, and a determination that the termination of the

mother's parental rights was in the child's best interests.

14
These considerations were all relevant to the decision to

terminate parental rights and permissible for the judge to

consider. Adoption of Yvonne, 99 Mass. App. Ct. 574, 580-581

(2021) (threatening behavior, unstable housing, and past pattern

of behavior properly considered); Adoption of Ulrich, 94 Mass.

App. Ct. 668, 676-677 (2019) (violence of temper and inability

to comply with or benefit from service plan properly

considered); Adoption of Querida, 94 Mass. App. Ct. 771, 778-779

15
(2019) (history of involvement with department properly

considered).

Decree affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ. 10),

Clerk

Entered: December 17, 2025.

10 The panelists are listed in order of seniority.

16