Adoption of Amari.

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-947

ADOPTION OF AMARI.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Juvenile Court judge issued a decree finding the

mother unfit, terminating her parental rights, and approving the

Department of Children and Families' (department) adoption plan

for Amari, the mother appealed. Several months later, the

mother filed a motion for new trial, pursuant to Mass. R. Civ.

P. 60 (b), 365 Mass. 828 (1974), asserting that she was denied a

reasonable accommodation at trial. After a non-evidentiary

hearing, the judge denied the mother's motion. The mother again

appealed and the appeals were consolidated in this court. We

affirm both the decree and the denial of the motion for new

trial.

Background. Amari was born in the fall of 2022. The

following day, the department filed a petition for care and

1 A pseudonym.
protection of Amari, based on two reports pursuant to G. L.

c. 119, § 51A, documenting that Amari was born substance-exposed

and that the mother did not have a home. The department took

custody of Amari and retained custody through trial. Trial was

heard on October 3, 2024.2 The judge subsequently issued

detailed findings supporting her conclusions that the mother was

unfit and likely to remain so and that Amari's best interests

were served by terminating the mother's parental rights.3

Discussion. "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

provided by at least a fair preponderance of the 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). "The judge must also find that

the current parental unfitness is not a temporary condition"

(quotation and citation omitted). Adoption of Arianne, 104

Mass. App. Ct. 716, 720 (2024). "We give substantial deference

to the judge's decision to terminate parental rights and reverse

only where the findings of fact are clearly erroneous or where

2 The trial initially began in July 2024, but that trial
resulted in a mistrial.

3 Amari's putative father was struck from the case for
failing to establish paternity and is not a party to this
appeal.

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there is a clear error of law or abuse of discretion" (quotation

and citation omitted). Id. "An abuse of discretion exists

where the decision amounts to a clear error of judgment [in

weighing the relevant factors, such] that [the decision] falls

outside the range of reasonable alternatives" (citation

omitted). Id.

1. Termination of the mother's rights. The mother argues

that the judge abused her discretion by relying on two factual

findings that the mother claims were clearly erroneous: (1) the

mother failed to maintain "significant and meaningful contact

with the child during the previous six months," and (2) the

mother failed to demonstrate an effort "to remedy conditions

which create a risk of harm due to abuse or neglect of the

child." See G. L. c. 210, § 3 (c) (iii), (viii). We disagree.

a. Contact with Amari. The mother attended many visits

with Amari in the six months leading up to the trial, but she

also cancelled several visits and sometimes nodded off at visits

or asked to end a visit early. In August 2024, the mother's

visits were reduced from one hour weekly to biweekly due to her

lack of compliance with the department's plans or progress

toward reunification. When she responded angrily to this

reduction in visitation and threatened the department, the

mother's visits were suspended for about two weeks, until the

department could meet with her and her counsel to discuss the

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incident. In contrast to the mother's assertion that the judge

drew unsupported inferences from a gap in the department's

reporting, the judge made twenty-six findings about the mother's

visitation history, and each finding included a citation either

to the department's reports or the mother's testimony. Based on

the mother's gaps in visits and lack of meaningful engagement

with Amari at some visits, there was ample support for the

judge's finding that the mother failed to maintain meaningful

contact with Amari. Because the factual finding was not clearly

erroneous, the judge's reliance on it as a factor in determining

the mother's fitness was not an abuse of discretion. See

Adoption of Ilona, 459 Mass. 53, 62 (2011).

b. Efforts to remedy harmful conditions. The department's

action plans for the mother sought to address her mental health,

substance use, housing instability, and visitation planning and

behavior. The mother engaged at times with programs that would

address each of these issues, including participating in a

residential treatment program that would allow her to have Amari

with her. She stayed in a residential treatment program from

March 2023 through May 2023, a second one from July 2023 through

November 2023, and a third from December 2023 until around April

2024. However, the mother was terminated from each of these

programs when she relapsed or did not follow the program rules.

The mother also stopped complying with the department's drug

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testing after January 2024 and reported to the department in

April 2024 that she would refuse any more programs. At the time

of trial, the mother did not have housing and was not engaged in

substance use or mental health treatment. Based on the mother's

failure to complete the residential programs or maintain

sobriety, the judge concluded that she had not "follow[ed]

through with the changes necessary" to address her mental

health, substance use, and housing instability issues or

"adequately engage" in treatment. Again, where the judge's

factual determinations were supported by the record, it was not

an abuse of discretion for the judge to consider that the mother

failed to demonstrate an effort to address conditions that

created a risk of harm to Amari. See Adoption of Ilona, 459

Mass. at 62.

2. Mother's request for a reasonable accommodation at

trial. The mother also claims that the judge improperly denied

her request for a reasonable accommodation at trial. She argues

that the judge compounded this error and abused her discretion

by denying the mother's motion for a new trial. See Adoption of

Raissa, 93 Mass. App. Ct. 447, 455 (2018). We disagree.

Massachusetts courts owe a duty to provide reasonable

accommodations to a witness with disabilities. See McDonough,

petitioner, 457 Mass. 512, 522-526 (2010). See also Adjartey v.

Central Div. of the Hous. Court Dep't, 481 Mass. 830, 848 (2019)

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(duty to provide reasonable accommodations extends to civil

trials). "[A]s a first step, a witness with a disability . . .

should alert a judge and the adverse party that the witness

needs accommodation, and identify the reasonable accommodation

that the witness seeks." McDonough, supra at 523. After the

issue is raised, "in many cases the matter will be resolved to

the satisfaction of all involved without a hearing." Id. at

524. On appeal, we look at whether the judge "preclude[d] a

witness with a disability from testifying by denying a request

for accommodation." Id. at 528.

Here, just before the trial commenced, the mother moved for

a disability accommodation based on her anxiety and depression.

Specifically, the mother requested that she be permitted to

testify without interruption prior to any objections from

opposing counsel. When the mother alerted the judge to her

disability and requested accommodation, the department responded

that it "would be willing to do accommodations." Amari's

attorney stated she was "fine" with letting the mother answer

fully before objecting. Consequently, the judge was not required

to hold a hearing about the reasonableness of the accommodation.

See McDonough, 457 Mass. at 524.

Although the judge denied the motion, subject to further

consideration as the trial progressed, the mother's request for

accommodation functionally was granted. During the department's

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direct examination of the mother, there were three objections

raised, two by Amari's counsel and one by the mother's counsel.

Each objection was made after the mother completed her answer.

In other words, counsel complied with the mother's request. We

are not persuaded by the mother's contention that she was denied

reasonable accommodation when, during her own attorney's cross-

examination, the judge asked the mother to wait "[j]ust a

minute" and "hold on" before answering two questions with

objections. Simply put, the accommodation the mother requested

said nothing of the judge asking for a momentary pause to make a

ruling. The judge did not preclude the mother from testifying,

and the mother's decision to walk out of the courtroom and

refuse to continue her testimony cannot be blamed on a failure

by the trial judge to provide reasonable accommodation. See

McDonough, 457 Mass. at 528.

Finally, we disagree with the mother's contention that it

was unfair for the judge to draw a negative inference from her

absence because she was rendered unable to meaningfully

participate in the trial. The judge's findings about the

mother's temperament at trial are separable from the mother's

accommodation request. After the mother left the witness stand,

she did not return to the courtroom to resume her testimony.

After the mother did return, during the department social

worker's subsequent testimony, she shouted, "she's lying" and

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had to be escorted out of the courtroom. In these

circumstances, the mother's need for an accommodation to

facilitate her testimony did not preclude the judge from

considering her behavior during the trial. See Custody of Two

Minors, 396 Mass. 610, 616-617 (1986). See also Adoption of

Yvonne, 99 Mass. App. Ct. 574, 580 (2021) (judge may properly

consider parent's behavior at trial).

In sum, we discern no error in the judge's application of

the guidelines for providing a reasonable witness disability

accommodation to the mother or drawing a negative inference from

the mother's behavior at trial, nor an abuse of discretion in

denying the mother's motion for a new trial.

Decree affirmed.

Order denying motion for new
trial affirmed.

By the Court (Walsh, Grant &
Brennan, JJ.4),

Clerk

Entered: May 5, 2026.

4 The panelists are listed in order of seniority.

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