Adoption of Wanida.

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-694

ADOPTION OF WANIDA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a review and redetermination trial, a Juvenile

Court judge adjudicated the mother currently unfit to further

the welfare and best interests of the child, found that said

unfitness is likely to continue into the indefinite future,

awarded permanent custody of the child to the Department of

Children and Families (department), and terminated the mother's

parental rights. The putative father died several months before

the birth of the child. The mother filed unsuccessful motions

for relief from judgment. The mother appeals from the judgment

and the postjudgment motions, and we affirm.

Background. Born substance exposed to methadone in 2019,

the child (age four at trial), was diagnosed with neonatal

1 The child's name is a pseudonym.
abstinence syndrome. The mother knowingly used fentanyl and had

a positive screen for benzodiazepines while pregnant with the

child. The child remained hospitalized for almost three weeks

following her birth, so that she could be weaned off methadone.

The substance-exposed birth resulted in a report filed pursuant

to G. L. c. 119, § 51A (51A report), and a subsequent

investigation supported the allegation of neglect. The child

had a condition that required follow-up care by a cardiologist

and an ophthalmologist.

About four months after the first 51A report, a second 51A

report, also substantiated, alleged medical neglect of the child

after the mother missed at least six separate medical

appointments for the child and failed to reschedule. Despite

the involvement of the department, a third 51A report followed

about ten months later, again alleging medical neglect of the

child due to the child being six weeks behind in medical

appointments as well as immunizations.

After the third 51A report, the department remained

significantly involved with the mother and the child and

conducted regular home visits and offered referrals for

services. The child experienced speech and developmental delays

and required early intervention services which the mother

attended for three months before she stopped attending and

2
became unreachable by clinicians for six months through the

child's third birthday.

The mother suffered from significant mental health

conditions (including major depressive disorder, posttraumatic

stress disorder, anxiety, and attention deficit and

hyperactivity disorder) and substance use issues. The mother

often canceled scheduled home visits, and a department social

worker frequently found the home dirty and cluttered and in

complete disarray. The social worker noted that the child did

not make eye contact, lacked age-appropriate socialization,

mainly watched television, always had a full diaper, and

developed a significant rash. The department made several

referrals for early intervention services, dentists, mental

health services, and medical providers for both the child and

mother, but the mother rarely followed through. Noting that the

child did not have an appropriate bed, the department ordered a

toddler bed for the child, but the mother was unavailable for

delivery on two occasions. The mother continued to use

fentanyl, marijuana, and other non-prescribed substances.

In June 2022, the department petitioned for and received

custody of the child, based on the mother's continued substance

use, non-compliance with services for substance use and mental

health, and failure to meet the child's needs. Following

3
removal, the mother missed visits and arrived late on seventy-

five percent of the visits she did attend, leaving the child

waiting. The mother also disregarded rules that were put in

place for the child's health and well-being.

In April 2023, the mother stipulated to her unfitness, and

the department obtained permanent custody of the child. One

year later, in July 2024, following a review and redetermination

trial over five non-consecutive days starting in May 2024, with

seven witnesses testifying and ninety-nine exhibits being

admitted into evidence, the judge found the mother unfit to

parent the child and that it was in the child's best interest to

terminate the mother's parental rights. The judge also

concluded that the mother's visitation with the child would not

be in the child's best interest.

In January 2025, the mother filed motions seeking a new

trial and post-termination visitation. She claimed that counsel

was ineffective and changed circumstances required modification

of the visitation provisions in the judgment. A second judge

denied the motions in a memorandum of decision.

Discussion. 1. Effective assistance of counsel. "A

parent facing termination of parental rights is entitled to the

effective assistance of counsel." Adoption of Ulrich, 94 Mass.

App. Ct. 668, 672 (2019). We examine counsel's conduct "under

4
the standards applicable to judging the effectiveness of

counsel's assistance in criminal cases." Adoption of Yvette

(No. 1), 71 Mass. App. Ct. 327, 345 (2008). That examination

requires "a discerning examination and appraisal of the specific

circumstances of the given case to see whether there has been

serious incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). If such an error has been

made, we then must examine "whether it has likely deprived the

[client] of an otherwise available, substantial ground of

defence." Id. "Where a strategic choice is at issue, '[a]n

attorney's tactical decision amounts to ineffective assistance

of counsel only if it was manifestly unreasonable when made.'"

Adoption of Yvette, 71 Mass. App. Ct. 327, 345 (2008), quoting

Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

We disagree with the mother's contention that counsel

rendered ineffective assistance by failing to contest evidence

from a department report indicating a positive drug screen for

fentanyl in March 2023. The mother contends that the positive

screen, briefly referenced by the judge in extensive findings,

should not have been admitted and is otherwise contradicted by a

two-page Drug Monitoring Report (DMR) that was never offered by

5
the mother's counsel and showed a negative result for fentanyl

and a positive result for norfentanyl. The main problem with

this claim is that the second page of the DMR explains in a note

that "Norfentanyl detected is consistent with the use of the

drug Fentanyl." Thus, the DMR, when read in its entirety, would

have been consistent with the department's case and the judge's

findings. As such, we discern no error by counsel.

Likewise, the mother's position on appeal -- that counsel

should have sought to exclude other evidence connected with drug

screens, should have presented an expert to interpret the

evidence, and should have presented witnesses on the sobriety

issue -- is inconsistent with the standards for evaluating

effective assistance and equally inconsistent with the strategy

pursued at trial. "[W]e are not impressed with . . . a

checklist of . . . motions that could theoretically have been

made" in hindsight. Saferian, 366 Mass. at 99. Indeed, "[a]

fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of

hindsight." Strickland v. Washington, 466 U.S. 668, 689 (1984).

Even the best "attorneys would not [represent] a particular

client in the same way." Id.

Here, the mother's testimony and theory of the case never

contested her long-standing problem with a variety of drugs as

6
well as her drug use that persisted during the care and

protection case. She testified that she suffered from an

"Opioid Use Disorder," and began taking prescribed opioids for

pain management in 2012 when she was twenty-four. After a

period of sobriety, at twenty-seven, she turned to heroin for

several years, thereafter treated with methadone, and relapsed

on fentanyl in 2019 when she found the father of the child

deceased. In the spring of 2022 (with the care and protection

case pending), she continued to use marijuana and fentanyl and

tested positive for fentanyl. In August and September 2022, she

tested positive for fentanyl, in October 2022 tested positive

for norfentanyl, and in February 2023 tested positive for

alprazolam. She tested positive for marijuana one month before

testifying but disclaimed more recent use. She finally achieved

sobriety from opiates "purely by abstinence." In her closing

argument, counsel emphasized this terrible struggle with

addiction and how the mother has "progressed exponentially" to

become sober to give her child "a loving mother who would do

anything in her power to get her back." Far from showing a

lapse by counsel, the record shows that counsel strategically

used this evidence hoping to show the enormous, commendable

strides made by the mother in her lengthy struggle to overcome

7
addictions. In short, counsel "played the few cards [she] had."

Saferian, 366 Mass. at 93.

We also note that the mother's current focus on substance

use overlooks other significant factors considered by the judge.

For example, the mother repeatedly rescheduled home visits by

the department, maintained an unclean home with mice droppings

throughout and "no clear paths" to walk through clutter, failed

to avail herself of community supports, never worked with a

psychiatrist during the proceedings, did not complete a

medication evaluation regarding mental health, arrived late to

child visits about seventy-five percent of the time, and

neglected the child's hygiene and medical and developmental

needs. Given this evidence of the complex dynamic and neglect

in the home, any alleged missteps by counsel on the substance

use issue would not have likely deprived the mother "of an

otherwise available, substantial ground of defence." Saferian,

366 Mass. at 96.

2. Visitation. A motion for relief from judgment

"requires a showing of 'extraordinary circumstances'" (citation

omitted). Adoption of Yvonne, 99 Mass. App. Ct. 574, 584

(2021). A decision denying a motion for relief from judgment

"is entitled to great deference, and 'a judge's decision [to

deny such a motion] will not be overturned, except upon a

8
showing of a clear abuse of discretion.'" Adoption of Franklin,

99 Mass. App. Ct. 787, 805 (2021), quoting Adoption of Yvonne,

99 Mass. App. Ct. at 582. We discern no abuse of discretion.

As previously noted, the trial judge concluded that the

mother's visitation with the child would not be in the child's

best interest. In her post-judgment motion, the mother argued

that visitation was warranted because the child was no longer

placed in a pre-adoptive home. The second judge denied the

motion and concluded that the mother "has failed to present any

circumstance so extraordinary as to warrant relief and the

absence of post-termination visitation remains in [the child's]

best interest." The second judge further concluded that

allowing visitation "would jeopardize [the child's] future

placements because Mother has shown an inability to follow

visitation rules and has consistently interfered with [the

child's] attempts at successful placement."

The record shows that the second judge thoughtfully

considered the mother's arguments and distinguished this case

from Adoption of Franklin. In Adoption of Franklin, 99 Mass.

App. Ct. at 806, the child's "imminent" adoption had been

disrupted, the child had no parent-child relationship available

in department custody, and the father had a bond with the child.

None of those factors are present here where the child had only

9
been placed with the pre-adoptive parents during the trial, and

there was "limited evidence that readily points to a significant

bond" between the mother and the child. The second judge was

not required to credit the mother's contentions and was not

required to conduct an evidentiary hearing. See Adoption of

Gillian, 63 Mass. App. Ct. 398, 410 (2005).

Finally, we note that the second judge erred by prohibiting

the mother's counsel from sharing information obtained at the

hearing on the post-judgment motions with the mother on the

ground that the mother supposedly lacked standing. "[W]here a

parent is challenging a decree entered following a best

interests trial, the parent retains standing to challenge the

decree, whether on appeal or through an appropriate posttrial

motion in the trial court, so long as that litigation remains

live." Adoption of Franklin, 99 Mass. App. Ct. at 805. Despite

this error, we discern no prejudice to the mother in advancing

her arguments on appeal. In view of the motion judge's

thoughtful and well-reasoned posttrial orders, we discern

10
no reason, as proposed by the mother, that the case should be

reassigned going forward.

Decree affirmed.

Orders denying motions for
relief from judgment
affirmed.

By the Court (Rubin, Grant &
Hodgens, JJ.2),

Clerk

Entered: May 4, 2026.

2 The panelists are listed in order of seniority.

11