Adoption of Usha.

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-1218

ADOPTION OF USHA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a decree issued by a Juvenile Court

judge finding her unfit to parent her daughter, Usha,

terminating her parental rights, and denying her request for

posttermination and postadoption visitation.2 We affirm.

Background. The mother had prior extensive involvement

with the Department of Children and Families (department)

regarding her four older children when she learned in June 2021

that she was pregnant with Usha. In 2021, the mother's parental

rights to her older children were terminated. The mother, who

struggled with substance use disorder, used illicit substances

throughout her pregnancy with Usha. She also had diagnoses of

1 A pseudonym.

2The father moved to dismiss his appeal with prejudice,
which we allowed. Accordingly, we consider only the mother's
appeal.
anxiety, depression, attention deficit hyperactivity disorder,

bipolar disorder, and posttraumatic stress disorder.

Usha was born in March 2022 and hospitalized for twenty-

four days after she tested positive for methadone and

amphetamines.3 One day after Usha's birth, a mandated reporter

filed a report alleging that she was a substance exposed

newborn. The department assumed emergency custody of Usha the

next day. The department then filed a petition alleging Usha

was in need of care and protection.

Although the department initially identified a goal of

adoption for Usha the following month, it accepted the judge's

subsequent order for a goal of reunification. After discharge

from the hospital, Usha was placed with a foster family in a

home with one of her half-brothers.

The department updated the mother's action plan, requiring

her to engage in therapy, take steps to prevent future intimate

partner violence, maintain appropriate housing, and refrain from

criminal activity and substance misuse. However, since Usha's

birth, the mother struggled to meet these objectives.

From June 2022 to March 2023, the mother tested positive

for cocaine multiple times, which resulted in her being

discharged from treatment programs and incarcerated.

3 The mother was prescribed methadone and Adderall.

2
Consequently, the mother did not maintain stable housing during

this time. The mother also did not consistently engage in

therapy or take steps to protect herself from domestic violence

from Usha's father.

After Usha's removal, the department initially offered the

mother biweekly visits for two hours. After sixty days, the

department increased those visits to every week for two hours.

However, due to multiple cancellations, the mother only had nine

visits with Usha in the thirteen months the department had

custody of her leading up to trial. In February 2023, the

department filed a petition to change Usha's goal to adoption.

Following a trial in April 2023, the judge issued a decree

finding the mother unfit and terminating her parental rights.

The judge also denied the mother's requests for posttermination

and postadoption visitation with Usha.

Discussion. 1. The judge's reliance on prior findings and

conclusions of law. The mother argues that the judge improperly

relied on findings and conclusions of law from a prior

proceeding involving her older children. However, the mother

did not object to their admission as an exhibit and therefore

waived this argument on appeal.4 See Adoption of Kimberly, 414

Mass. 526, 534-535 (1993).

4 Consequently, the department was not on notice that the
mother wanted to challenge the prior findings and conclusions of

3
Even if we reached the merits of the mother's argument, the

judge's reliance on the prior findings was not improper.

"Generally, recent findings from a prior care and protection

decision are admissible in a later care and protection or

termination proceeding when such findings are relevant and

material and made during a proceeding in which the parents had a

compelling incentive to litigate." Adoption of Darla, 56 Mass.

App. Ct. 519, 520-521 (2002). Here, the prior findings were

recent, as they were issued just over one year before the trial

in this proceeding. They were also relevant and material, as

they detailed the mother's history of instability and previous

relationship with the department. Finally, the prior findings

were made during a proceeding which the mother had a compelling

incentive to litigate, and in fact did litigate. Therefore,

there was no error.5 See id.

Even if admission of the prior findings was error, the

mother was not prejudiced. Ultimately, the judge based her

decision on the mother's significant and ongoing challenges with

law and therefore did not submit the underlying exhibits in
support of those findings.

5 The mother's reliance on Care & Protection of Zita, 455
Mass. 272 (2009), is misplaced because here, the judge did not
take judicial notice of the findings. See id. at 273, 278.
Instead, the findings became record evidence when they were
admitted as evidence at trial.

4
substance use, mental health issues, domestic violence, criminal

activity, and housing instability. Other evidence in the record

supported the judge's conclusion of unfitness.6

2. 51A reports. The mother argues that the judge's

reliance on old 51A reports briefly referred to in a 51B

investigation to establish her prior history with the department

went beyond its admissibility to "set the stage." See Adoption

of Querida, 94 Mass. App. Ct. 771, 778 (2019). The mother,

however, did not object to the admission of the 51B

investigation and therefore waived this argument on appeal. See

Adoption of Kimberly, 414 Mass. at 534-535.

In any event, the mother did not establish that the trial

judge's use of the 51A reports was for any purpose other than to

set the stage, and he appropriately noted when a 51A report was

screened out. See Adoption of Querida, 94 Mass. App. Ct. at 778

(judge's findings made "clear" that 51A reports were used to set

stage where they were described as allegations and referenced

only in section titled "DCF Involvement"). We discern no error.

3. Posttermination and postadoption visitation. The

mother argues that the judge erred in not ordering

posttermination or postadoption visitation. We disagree. The

6 We acknowledge and encourage the mother's efforts to
pursue sobriety. Although she was found unfit, this does not
mean she does not love the child. See Adoption of Bianca, 91
Mass. App. Ct. 428, 432 n.8 (2017).

5
record does not reflect a significant bond between the mother

and Usha that would warrant posttermination or postadoption

contact. See Adoption of Rico, 453 Mass. 749, 759 (2009). At

the time of trial, Usha was thirteen months old and had lived

with her preadoptive family her whole life and had developed a

loving relationship and bond with them. Usha only had nine

visits with the mother during this time.

To the extent the mother speculates that Usha might become

confused when she someday learns that her half siblings have

visitation with the mother while she does not, we discern no

error. It would be inappropriate for a judge to speculate as to

"some hypothetical dynamic between parent and child," such as

this. Adoption of Vito, 431 Mass. 550, 565 (2000). Should Usha

someday become confused, her adoptive parent will be in the best

position to decide which course of action to take. See id.

Decree affirmed.

By the Court (Henry, Sacks &
Singh, JJ.7),

Clerk

Entered: March 27, 2025.

7 The panelists are listed in order of seniority.

6