Adoption of Ulon.

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

23-P-273

ADOPTION OF ULON. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from the decree of a Juvenile Court

judge terminating the father's parental rights as to his son,

Ulon. The father, who suffers from unspecified cognitive,

developmental, and learning disabilities, claims that the

Department of Children and Families (department) failed to

provide him with reasonable accommodations in violation of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

(ADA), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794. We affirm.

Background. We summarize the trial judge's undisputed

findings of fact. The father and Ulon's mother attended the

same middle school and then fell out of contact. Sometime in

late 2019, the father and mother met again by chance. The

mother, who was fighting with her boyfriend at the time,

1 A pseudonym.
accepted the father's invitation to accompany him to Vermont,

where he was headed for work. The mother stayed with the father

at a hotel for two weeks. A few months later, the mother

informed the father that she was pregnant, but that she believed

her boyfriend, with whom she had reconciled, was the father.

Ulon was born in 2020. The mother came to believe that the

child was not her boyfriend's when she saw how much the child

resembled the father. Shortly after the child's birth, the

mother visited the father and left Ulon with him, saying "this

baby is yours." The father did not want anything to do with

Ulon until he was certain that Ulon was in fact his biological

son, so he asked his mother, the paternal grandmother

(grandmother), to take care of the baby. The grandmother cared

for Ulon for the next few days, clothing, feeding, and cleaning

him. When Ulon was one week old, the grandmother and Ulon's

mother together took Ulon to the local police department and

asked for advice about Ulon's custody. The police referred them

to the court, where they were able to craft a document in which

the mother agreed to allow the grandmother to take Ulon home.

The maternal grandfather (grandfather) soon intervened.

After disputes about Ulon's custody, the grandmother reluctantly

agreed to leave the baby with the grandfather and his partner,

who was not the maternal grandmother. Ulon has resided with

them ever since.

2
Meanwhile, the department had become involved days after

Ulon's birth, when a report was filed pursuant to G. L. c. 119,

§ 51A, by the office of Ulon's pediatrician. The report alleged

that the mother was "exhibiting unusual behaviors." The mother

also admitted to breastfeeding Ulon despite being discouraged

from doing so because of her "chronic and frequent" use of

marijuana. The mother did not attend the follow-up appointment

later that day. Instead, the grandmother took Ulon to the

appointment and told the pediatrician that the mother did not

want Ulon and was threatening to kill him. The department

opened an investigation under G. L. c. 119, § 51B.

Another 51A report was filed when Ulon was about two months

old, after the mother made threats to remove Ulon from the

grandfather's home and harm him. After the 51B investigation,

the department took emergency custody of Ulon and filed a care

and protection petition. A Juvenile Court judge granted the

department continued custody of Ulon shortly thereafter.

When Ulon was about seven months old the department

determined that the mother had made insufficient progress toward

reunification, and the goal for Ulon was changed to permanency

through adoption. A preadoptive license home study was

initiated for the grandfather and his partner but was delayed

when Ulon's mother sadly was killed in a car accident.

3
Around the same time that the mother died, the father

established paternity; thereafter, the department began working

with him to develop a plan for reunification. The father

received a series of action plans with tasks and services to

facilitate reunification. However, the father lacked any

motivation to parent Ulon. He avoided visits by ignoring calls

and messages from his social worker, failed to engage in

services or to make any improvements in his parenting skills,

and prioritized his hobbies, such as fixing cars, over

developing a bond with his son.

Early in the case, the grandmother reported to a department

social worker that she was the father's "custodian" because he

was "mild[ly] retarded." However, the department did not become

aware of any specific diagnosis until April 2021, shortly after

the father established paternity, when the department sought and

received records regarding the father's Social Security

Disability Insurance (SSDI) benefits. The SSDI records

described the father's disability as cognitive delays and

deficits. 2 The department subsequently updated the father's

2 The father was not aware he was receiving SSDI payments and,
testifying at trial, disagreed with the diagnosis. The
grandmother testified that the father had been receiving SSDI
payments since he was sixteen years old, which she collected on
his behalf. She also testified that the father knew he was
receiving SSDI payments, but the judge did not credit this
testimony.

4
action plan and included referrals for five different services

to accommodate his cognitive disabilities. The department also

offered to assist the father in applying for these services. He

refused all but one of them -- the neuropsychological evaluation

discussed below. The father did not want or believe he needed

services, and he did not want the department to "know his

business."

Seeking clarification of the father's disability to make

additional accommodations, the department in June 2021 sought a

court order to compel the father to undergo a neuropsychological

evaluation. The motion was allowed in early July 2021, about

five months before the trial began. The department referred the

father to an entity called Family Networks, which contracted

with an entity called Children's Charter. As of the time of

trial, the father was still on a waitlist for this evaluation. 3

In September 2021, the father's counsel independently

arranged for the father to participate in a neuropsychological

evaluation. The father appeared for the appointment but left

soon after it began because he was sweating and felt "weird."

3 The father's ongoing social worker called Family Networks
multiple times inquiring if the father could be referred to a
different contractor, but she was informed that Children's
Charter was the only service available. The service was halted
during the COVID-19 pandemic, and was just starting to resume
services at the time of trial.

5
He refused to return for his make-up appointment the next day

and never completed the evaluation.

In October 2021, the father's counsel wrote a letter to the

department's ADA liaison requesting reasonable accommodations

for the father. The liaison responded one month later, stating

the department's position that the father's action plan already

provided him with sufficient accommodations.

Discussion. The father claims that the trial judge's

finding of unfitness violated the ADA because it did not take

into account the possibility the father could care for the child

with the support of the grandmother. He also argues that the

decision to terminate his parental rights violated the ADA

because the decree entered before the father could complete the

neuropsychological evaluation, denying him the opportunity to

benefit from accommodations tailored to his specific diagnosis.

1. The ADA. Congress enacted the ADA to "assure equality

of opportunity, full participation, independent living, and

economic self-sufficiency" for individuals with disabilities.

42 U.S.C. § 12101(a)(8). The relevant portion of the ADA

provides that "no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination

by any such entity." 42 U.S.C. § 12132. The ADA requires that

6
a public entity make "reasonable modifications" to allow

individuals with disabilities to receive the services or to

participate in the public entity's programs. 28 C.F.R.

§ 35.130(b)(7).

However, "proceedings to terminate parental rights under

G. L. c. 210, § 3, do not quality as 'services, programs, or

activities' under the ADA, and thus, the ADA may not be raised

as a defense to such proceedings" (citation omitted). Adoption

of Gregory, 434 Mass. 117, 120 (2001). The ADA does require

that the department provide appropriate services as reasonable

accommodations for a parent's disability. See id. "What

constitutes reasonable efforts . . . must be evaluated in the

context of each individual case." Care & Protection of Walt,

478 Mass. 212, 227 (2017).

2. Support from the grandmother. The department had the

burden to prove by clear and convincing evidence that the father

was unfit. See Adoption of Gregory, 434 Mass. at 125-126.

"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

Mary, 414 Mass. 705, 711 (1993).

The father contends that because of his disabilities, the

judge was required to factor family support into its fitness

7
determination, and that the judge erred by failing to consider

the possibility that assistance from the grandmother could

compensate for the father's unfitness. The father's sole

support for this claim is an investigation report from U.S.

Departments of Justice of Health and Human Services (DOJ/HHS

report), included as an addendum to his brief, examining a case

in which the department removed a newborn whose mother had a

cognitive disability. 4 The DOJ/HHS report found that the

department had overlooked the mother's significant efforts to

improve her parenting skills and her ability to care for her

child with the support of family members, who were available and

eager to help. Rather, the department insisted that the mother

demonstrate she could parent the child on her own, which the

report found to violate the ADA's requirement to reasonably

modify practices to accommodate disabilities. In addition, the

report faulted the department's "excessive focus" on obtaining a

neuropsychological evaluation and an exact diagnosis of the

mother's disability, despite the fact that the department

already possessed enough information to inform proper

accommodations.

4 See Investigation of the Massachusetts Department of Children
and Families by the United States Departments of Justice and
Health and Human Services Pursuant to the Americans with
Disabilities Act and the Rehabilitation Act (DJ No. 204-36-216
and HHS No. 14-182176), dated January 29, 2015.

8
To the extent we may properly consider the DOJ/HHS report,

which was not brought to the attention of the trial judge, it

does not assist the father. Here, even without obtaining a

specific diagnosis, the department took numerous steps to ensure

that the father had access to appropriate services help him

learn parenting skills. The father's action plan included

referrals to several support services, and the department

offered to assist the father in applying for them. Rather than

taking advantage of these offers, the father rebuffed them. In

addition, at the father's request the ongoing social worker

regularly sent him text messages and left voice messages to

remind the father of visitation dates and other appointments --

to no avail.

Moreover, the judge did consider the grandmother's

assistance. She found that the father's behavior suggested that

the grandmother would not be merely assisting the father with

caretaking, but rather entirely handling Ulon's caretaking while

the father continued his pattern of prioritizing his interests

over Ulon's well-being. Unlike the mother in the DOJ/HHS

report, the father here has repeatedly demonstrated through

words and deeds that he had little interest in parenting his

son. The judge's determination that the father was unfit to

parent Ulon, with or without the grandmother's assistance, is

supported by clear and convincing evidence.

9
3. Failure to obtain evaluation. Despite the fact that

the father was on a waitlist to receive a neuropsychological

evaluation at the time of trial, we discern no error or abuse of

discretion in the judge's decision to terminate the father's

parental rights without waiting for the evaluation to be

completed. The department's obligation to work with the father

is "contingent upon his own obligation to fulfill various

parental responsibilities, including seeking and utilizing

appropriate services." Adoption of Daisy, 77 Mass. App. Ct.

768, 782 (2010), S.C., 460 Mass. 72 (2011). The record supports

the judge’s findings that the department repeatedly attempted to

enroll the father in services that could have both elucidated

and addressed his disabilities, which he refused. Additionally,

the father's counsel arranged for a private neuropsychological

evaluation, but the father left shortly after the evaluation

began and then refused to complete it. In her conclusion of law

concerning the father's disability and the department's efforts

to address it, the judge fully addressed this issue:

"The Department referred Father for a neuropsychological
evaluation and parenting evaluation through Children's
Charter. Due to the pandemic, Father remained on the
waitlist of this service, despite the Department's attempt
to speed up the process. At every stage of this care and
protection case, Father has denied having a disability or
disorder requiring particularized interventions.
Nevertheless, the Department acted diligently in reaching
out to Father about visits and appointments, asking Father
what services he felt would assist him in developing his
parenting skills, and communicating with Father in a way

10
that was clear for him to understand. . . . [T]he
Department made reasonable efforts to engage Father and
provide him with services that would have resulted in a
better understanding of Father's limitations or needs. It
was Father who failed to utilize such services and made the
choice to ignore the Department's requests."

We are not persuaded by the father's circular argument that

his refusal to engage in services was a manifestation of his

disabilities, which the department should have addressed with

other services or accommodations. We also note that the DOJ/HHS

report relied on by the father criticized the department for

delaying services until it could obtain a precise diagnosis,

whereas here the father faults the department for moving forward

without a precise diagnosis. While the department must make

reasonable efforts to address special needs, "heroic or

extraordinary measures, however desirable they may at least

abstractly be, are not required." Adoption of Lenore, 55 Mass.

App. Ct. 275, 278 (2002). Nor was the judge required to wait

indefinitely to give the father additional opportunities to

engage in services to address his unfitness as a parent given

his well-established pattern of avoiding both services and

11
parenting. See Adoption of Nancy, 443 Mass. 512, 517 (2005).

Decree affirmed.

By the Court (Blake,
Massing & Hand, JJ. 5),

Assistant Clerk

Entered: January 2, 2024.

5 The panelists are listed in order of seniority.

12