ADOPTION OF DENISE (And Two Companion Cases).

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

24-P-705

ADOPTION OF DENISE (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After eleven-month old Amy was brought to the hospital

suffering from significant facial bruising, medical personnel

discovered that she had a fractured skull and several other

serious injuries resulting from non-accidental trauma. The

mother denied inflicting the injuries and claimed that she did

not know who harmed Amy. Following a trial in the Juvenile

Court, the judge issued decrees finding the mother unfit to

parent Amy and her two other children, Denise and Erik;2 that her

unfitness was likely to continue into the indefinite future; and

that it was in the children's best interests to terminate her

1Adoption of Amy and Adoption of Eric. The children's
names are pseudonyms.

2Denise was born in 2018, Amy was born in 2020, and Erik
was born in 2021.
parental rights.3 On appeal, the mother claims that (1) the

judge committed prejudicial error by failing to conduct a

colloquy concerning her waiver of her right to a Spanish-

speaking interpreter; (2) the judge improperly drew a negative

inference when considering that some of the mother's visits with

the children were virtual and not in-person; and (3) the

Department of Children and Families (department) failed to

demonstrate by clear and convincing evidence that she was unfit

to assume parental responsibilities for the children. We

affirm.

Background. We summarize the judge's detailed findings of

fact and conclusions of law, reserving certain details for later

discussion. On January 17, 2021, a report was filed pursuant to

G. L. c. 119, § 51A (51A report), alleging physical abuse of

Amy, who was brought to the hospital by the mother and found to

be covered in bruises. Amy, who was almost one year old, had

two black eyes and bruising and swelling in the facial area

consistent with being punched in the head. When interviewed by

medical personnel, the mother denied that she or anyone else had

3 The judge also issued decrees terminating the parental
rights of Denise's unidentified father and Erik's father, Frank,
and neither is a party to this appeal. The judge found Amy's
father a fit parent and, consequently, he is not a party to this
appeal.

2
physically abused Amy and said that Amy was in her crib all day.

The mother stated that she noticed Amy's injuries two days prior

but that her injuries had worsened. When hospital staff

attempted to speak with the mother, she avoided eye contact, was

on her telephone, and would not engage with the staff about Amy.

Due to the severity of the injuries, Amy was transferred to

Boston Children's Hospital by ambulance, where she was diagnosed

with a skull fracture and multiple hemorrhages and contusions to

her head. Amy also suffered injuries to the inside of her

mouth, a torn upper-lip frenulum, and bruising to her thighs.

The cause of the injuries was determined to be non-accidental

trauma. The department was awarded emergency temporary custody

of Amy and Denise on January 19, 2021.4

Earlier on January 17, the mother had been seen at the

hospital emergency department as she was pregnant and

experiencing abdominal pain. The mother was at the hospital for

about eight hours and told the nurse that during that time the

mother's boyfriend (hereafter, Frank [a pseudonym], the father

of Erik) and his family had watched Amy. While the mother was

awaiting treatment for her abdominal pain, she and Frank

exchanged text messages, and Frank sent video recordings showing

4 On January 18, 2021, another 51A report was filed,
alleging neglect of Amy and Denise by the mother and her
boyfriend (the father of Erik).

3
Amy's injuries and telling the mother that Amy's facial swelling

was worsening. The mother did not ask how Amy was injured, and

when the mother returned home from the hospital, she did not

immediately seek treatment for Amy but rather took a nap. When

she woke up from her nap at around 8 P.M., the mother noticed

Amy's worsening facial swelling, and then took Amy to the

hospital. The mother did not ask anyone in the home how Amy had

been injured.

When questioned by medical personnel as to how Amy was

injured, the mother said she believed Amy might be having a

reaction to a dose of Benadryl that the mother had given her

earlier in the day. The mother also told medical staff that Amy

might have a genetic blood disorder that the mother also has,

causing Amy to bruise easily. A blood test concluded that Amy

did not have the same blood disorder. Although the mother

initially denied that Amy had fallen, she later reported that

Amy could have been injured when, two weeks earlier, she fell

off the bed while having her diaper changed. The mother said

that despite the fall from the bed, Amy did not present with any

bruising afterwards. All three explanations of Amy's injuries

were ruled out by the medical professionals.

When interviewed by the department at the early stages of

the investigation, the mother's statements were inconsistent

4
with what she told the hospital staff about when and how Amy was

injured and who was responsible for her care. While the mother

told the hospital staff that she noticed Amy's bruising two days

earlier, she told the department investigator that she saw the

bruising on January 17, the day she took Amy to the hospital.

The mother told the investigator that she noticed the bruising

but wasn't worried, because she believed it was caused by "rough

play" between Amy and her two-year old sister Denise, although

she never saw Denise hit Amy in the face. The mother also said

she had seen Amy hit the mesh sides and metal poles of the crib.

The department worker asked the mother if she understood the

seriousness of the situation because Amy had suffered a

fractured skull. The mother stated that she understood, but

said she had no concerns that Frank would hurt Amy. The mother

also provided inconsistent statements as to who cared for Amy in

the mother's absence, ultimately saying she could not recall who

watched the children.

After securing emergency custody of Amy and Denise, the

department provided the mother with recommendations for services

and an action plan; over time, the department crafted five

additional revised action plans. Given her history with housing

instability, the action plan required the mother to establish

safe, appropriate, and stable housing. Additional tasks

5
included meeting monthly with the department, signing necessary

releases, and -- significant to this case -- participating in

parenting classes that were trauma informed. Throughout the

three years that the department worked with the mother, she

failed to engage with services in a meaningful way. For

example, the mother was offered a shelter placement, where she

could engage in services that would potentially reunite her with

the children. The department social worker told the mother that

she needed to work on assessing dangerous situations and

informed the mother (who was pregnant with Erik), that if she

continued to live with Frank, she risked losing custody of Erik

upon birth. Instead of complying with the action plan and

ending her relationship with Frank, the mother stayed with Frank

and his family until they were evicted from the home in May

2021. Only then did the mother temporarily agree to the

department's shelter plan, but she was noncompliant with the

shelter rules by staying at Frank's house for multiple nights in

a row, ultimately abandoning her placement to live with Frank

again.5

5 In July 2021, the mother gave birth to Erik. Erik was
removed from mother's custody soon after birth, as she refused
to end her relationship with Frank despite the department's
concerns that Frank had injured Amy.

6
In September 2021, the mother reported to the department

that she had relocated to Connecticut, but she could not provide

the investigator any details about her current address. The

mother said she was living with a friend but claimed that she

did not know the address, never noticed any street signs, and

had no idea what town she was living in. Suspicious that the

mother was not being truthful about her living situation,

especially since the social worker noticed that the mother was

calling from a cell phone belonging to Frank's family member,

the social worker made an unannounced visit to Frank's family

home. Upon arrival, the social worker saw the mother running

from the porch to hide in a nearby cemetery. The mother's

action plan was updated, given the department's concern that the

mother was not being truthful about her living situation or her

continued relationship with Frank, and it required the mother to

be truthful regarding her relationship with him.

A short time later, the mother became homeless but still

did not engage with the department to find housing. In January

2022, the mother moved to Puerto Rico and moved into the "family

home" of Frank, who had also relocated to Puerto Rico. After

she relocated to Puerto Rico, the department referred the mother

to programs and services in her area, but she did not engage in

most of the recommended services. In fact, the only service the

7
mother completed between January 2021, when Denise and Amy were

removed from her custody, and the conclusion of the trial in

November 2023, was a parenting group in Massachusetts and a

parenting class in Puerto Rico, which lacked a necessary trauma-

informed parenting component.

Discussion. 1. Use of the interpreter at trial. At

trial, the mother was provided with a Spanish-speaking

interpreter but requested that she be allowed to speak in

English because she believed that the interpreter was not fully

translating the essence of her testimony. Now on appeal, the

mother claims that the judge erred by allowing her request to

speak in English without first conducting a colloquy pursuant to

G. L. c. 221C, § 3.

At the beginning of the trial, the judge informed the

mother that all of her testimony should be in Spanish and that

the interpreter would translate her testimony. Despite the

judge's instruction and subsequent reminders to speak one

language, on several occasions the mother alternated between

speaking Spanish and English. At times in her testimony, the

mother struggled to speak Spanish and, when she had difficulty

finding the correct Spanish words, reverted to speaking English.

For example, during her testimony on the first day of trial, the

mother stopped speaking in Spanish and switched to English,

8
asking, "How do you say 'shaking' in Spanish?" The judge told

the mother that, if she was unsure of the word in Spanish, she

would have to say it in English. At all times when the mother

elected to speak in English, she had access to the services of

an interpreter.

Late in the afternoon of the first day of trial,6 the

mother's counsel asked permission for the mother to testify in

English and, if she needed help, that she be allowed to utilize

the services of the interpreter. The mother expressed concerns

that her answers in Spanish were not "exactly what she intended

them to be." Counsel assured the judge that the mother

understood English but may need assistance from the interpreter

with certain vocabulary or if words were spoken too quickly.

The department objected, stating that it may create an

appealable issue. While the judge was hearing from counsel, the

mother interjected, telling the judge that she testified in

English at her last court appearance with the interpreter

standing by. The judge allowed the request over the

department's objections. The judge also allowed mother's

counsel, on cross-examination, to clarify any inaccuracies or

6 The trial transcript indicates that the mother's counsel
made the request for the mother to speak in English at 3:43 P.M.
on the first day of trial.

9
confusion over her testimony in Spanish during the first day of

trial.

During the second and third day of trial, the mother

testified in English and was provided an interpreter in the

event she needed assistance or decided to resume her testimony

in Spanish. During those two days, the mother answered hundreds

of questions in English and only relied on the interpreter for

assistance on six occasions. On the fourth day of trial, the

judge informed the parties that he had become aware that the

protocol for the Office of Language Access did not permit the

interpreter to be used in a standby capacity or to translate

single words. Rather, it was office policy to either provide

complete translation services or none at all. In response, the

judge told the mother's counsel that the mother would need to

decide whether she would speak fully in Spanish or forgo the

services of the interpreter. The mother chose to speak in

Spanish and testified in Spanish during the remaining days of

trial.

For the first time on appeal, the mother argues that it was

error for the judge to allow her to testify in English during

days two and three of trial without first conducting a colloquy

and securing a formal waiver of her right to use an interpreter.

The mother presses this argument even though she had the use of

10
the interpreter throughout the entire trial. We review this

claim for an abuse of discretion. See Commonwealth v. Lee, 483

Mass. 531, 541 (2019).

Indisputably, non-English speakers in legal proceedings

have a statutory right to the assistance of an interpreter. See

G. L. c. 221C, § 2.7 See also Lee, 483 Mass. at 540. If a non-

English speaker decides to forgo the use of an interpreter, a

formal waiver on the record is required after the non-English

speaker has consulted with counsel. G. L. c. 221C, § 3 (a).

See Commonwealth v. Gautreaux, 458 Mass. 741, 753 (2011). The

party claiming a violation of G. L. c. 221C, § 2, bears the

burden of proving that the affected party is a non-English

speaker. See Commonwealth v. Vargas, 475 Mass. 338, 355-356

(2016); Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729,

735 (2006). Where a party has "some ability to understand and

communicate" in English, the determination regarding the need

for an interpreter is left to the wide discretion of the trial

judge. Commonwealth v. Turell, 6 Mass. App. Ct. 937, 938

(1978), quoting United States v. Carrion, 488 F.2d 12, 14 (1st

Cir. 1973), cert. denied, 416 U.S. 907 (1974).

7 A non-English speaker is defined as a "person who cannot
speak or understand, or has difficulty in speaking or
understanding, the English language, because he [or she] uses
only or primarily a spoken language other than English." G. L.
c. 221C, § 1.

11
We are not persuaded by the mother's claim that the judge

erred in failing to conduct a formal colloquy on the record to

ensure that the mother's waiver of the interpreter was knowing

and voluntary. To show that a colloquy was required, the mother

must first demonstrate that she is a non-English speaker and

entitled to an interpreter under G. L. c. 221C, § 2. She has

not done so. The mother told the trial judge that she

understood English. Also, according to the mother, she

testified in English at the 2021 temporary custody hearing and

only used the interpreter in a standby capacity. The mother's

social worker spoke English to her and never used an

interpreter. In 2023, the department's investigator noted that

"[m]other is fluent in English," and the manager of the shelter

also reported that the mother communicated in English. When the

mother participated in virtual visits with the children, her

primary language was English.

At trial, counsel for the mother told the judge that the

mother understood English and only needed help "sometimes." The

fact that the mother understood and took issue with the accuracy

of the interpreter's translation further demonstrated her

proficiency with the English language. We have reviewed the

record and observe that the mother answered hundreds of

questions in English with clear, responsive answers. In fact,

12
when the mother did rely on the interpreter, most often she

needed the interpreter's help to find a word in Spanish -- not

English. The mother's proficiency is not belied by the fact

that there were a few instances in which she needed

clarification, and, accordingly, she has not shown that she was

entitled to an interpreter. Where the mother has not

established that she is a non-English speaker, we cannot say

that the judge abused his discretion in failing to obtain a

formal waiver of the interpreter before the mother testified in

English.

Furthermore, even if we were persuaded that the mother met

the requirements under G. L. c. 221C, § 2, as a non-English

speaker, her claim that the judge erred by failing to conduct a

formal colloquy and waiver on the record nevertheless fails. It

is undisputed that the mother had access to the interpreter

standing by while she testified in English. This is not a case

in which the mother decided to forgo the use of an interpreter

altogether.

When confronted with the mother's concern that the

interpreter was not providing the essence of her testimony, the

judge showed great sensitivity, explaining to the mother that

she could speak in whatever language she was most comfortable

with, and the mother could utilize the interpreter whenever it

13
was necessary. The issue of potential waiver of the assistance

of an interpreter did not arise until the fourth day of trial,

when the interpreter informed the judge that acting in a standby

capacity was against office policy. Then, the judge clearly

informed the mother's counsel that the mother needed to decide

whether she would speak in Spanish and fully utilize the

services of the interpreter or whether she would waive the

services of the interpreter. The mother chose to speak in

Spanish for the remainder of the trial and utilize the

interpreter. Thus, there was no need for the judge to formally

conduct a waiver on the record.

2. Mother's virtual visits with children. As noted above,

the mother decided to relocate to Puerto Rico and live with

Frank's family. As a result, from January 2022 until her trial

in September 2023, the only visitation with her children was

through virtual visits. The mother claims that the judge erred

by drawing a negative inference from the fact that her visits

with the children were virtual. The mother's reliance on

Thaddeus v. Secretary of Executive Office of Health & Human

Serv., 101 Mass. App. Ct. 413, 416 (2022), and the department's

previous interim policy on virtual visits is misplaced because

the mother's lack of in-person visitation was not due to the

COVID-19 pandemic. In addition, the judge found that the mother

14
was compliant with her action plan regarding visitation with the

children, while noting that the mother chose virtual visits over

in-person visits by moving to Puerto Rico while the children

remained in Massachusetts. It was proper for the judge to

consider that these visits were not in-person, as we recognized

in Thaddeus the "strong presumption" that "visits between a

parent and a child in department custody are to be in person."

Id. at 422. "The statutory goal is to reunite the family, and

in-person visitation is important to that goal." Id. In short,

it is undeniable that in-person contact provides a child with

benefits that virtual contact cannot, and, although virtual

visits can supplement in-person visits, they are not on equal

footing as far as the benefit to the child. There was no error.

3. Termination of parental rights. When faced with a care

and protection proceeding that involves the termination of

parental rights, the judge must find by clear and convincing

evidence that the parent is unfit, and that the unfitness will

continue into the indefinite future. See Adoption of Lisette,

93 Mass. App. Ct. 284, 296 (2018). "Parental unfitness is

determined by considering a parent's character, temperament,

conduct, and capacity to provide for the child's particular

needs, affections, and age." Adoption of Anton, 72 Mass. App.

Ct. 667, 673 (2008). In care and protection cases, the judge's

15
subsidiary findings must be proved by a preponderance of the

evidence and will only be disturbed if clearly erroneous. See

Custody of Eleanor, 414 Mass. 795, 799 (1993); Care & Protection

of Laura, 414 Mass. 788, 793 (1993). Our review on appeal gives

"substantial deference to a judge's decision that termination of

a parent's rights is in the best interest of the child, and

reverse only where the findings of fact are clearly erroneous or

where there is a clear error of law or abuse of discretion."

Adoption of Yalena, 100 Mass. App. Ct. 542, 549 (2021), quoting

Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge's finding of unfitness were primarily focused on

the mother's failure to protect the children from future abuse

and the mother's failure to address her parental shortcomings by

participating in appropriate services outlined in her action

plans. There was ample record evidence to support the judge's

finding of unfitness. The mother did not comprehend the severe

nature of Amy's injuries, offering various and inconsistent

accounts of how Amy may have been injured. An important

requirement of her action plan was for the mother to engage in

counselling to understand the impact of trauma on her children.

She failed to participate in this type of counselling as well as

many other recommendations to improve her parental skills.

Moreover, the mother refused to accept the possibility that

16
Frank had injured Amy, never once asking him what had happened

to cause Amy's skull to be fractured while she was in his care.

Even at trial, the mother still maintained that she was not

worried about the children's safety around Frank and did not

acknowledge that Amy's injuries were the result of non-

accidental trauma.8 The mother's continued refusal or inability

to consider that Frank may have injured Amy coupled with her

lack of participation in specific parenting classes underscores

her inability to protect the children from future harm by

avoiding dangerous situations that would potentially jeopardize

their health and safety. See Adoption of Lorna, 46 Mass. App.

Ct. 134, 140-141 (1999). See also Adoption of Yalena, 100 Mass.

App. Ct. at 552.

The judge's findings that the mother lacked insight into

her own trauma or the children's trauma are also supported by

the record. At trial, the mother was unable to express what, if

anything, she learned from the two parenting groups that she

attended. And when asked what she would have done differently

to prevent Amy's injuries, the mother responded that she "never

8 While ignoring the potential harm inflicted by Frank, the
mother provided various inconsistent explanations of how Amy was
harmed, including accusing, without witnessing, her two-year old
child (Denise) of causing the injuries by playing roughly.

17
would have come to Massachusetts and [she] never would have left

the children with anybody."

The record also supports the judge's finding that the

mother had not sufficiently addressed other parental deficits,

most notably her unwillingness to end her relationship with

Frank. The mother was unable or unwilling to establish safe,

appropriate, and suitable housing so that she could engage in

services to be reunited with the children. Instead, the mother

chose to stay with Frank and his family, despite the concerns

expressed by the department that the mother needed to address

her dangerous living situation. The evidence also supported the

judge's concern that the mother was not being truthful when she

told the department and the judge that she had ended her

relationship with Frank. See Adoption of Larry, 434 Mass. 456,

469-470 (2001).

While the mother did make some strides in her self-

development, such as obtaining health insurance and attending

(but not completing) Job Corps, they were simply not enough.9

9 To the extent that the mother contends that her failure to
participate in counseling was due to the department's failure to
make reasonable efforts, this argument is deemed waived as the
mother failed to raise it in the Juvenile Court. See Care &
Protection of Rashida, 488 Mass. 217, 230 (2021), S.C., 489
Mass. 128 (2022), quoting Adoption of Gregory, 434 Mass. 117,
124 (2001).

18
Even when the mother made a last-minute effort to engage in

counselling prior to trial, she failed to sign the necessary

release forms so that her attendance in individual counselling

could be verified. The judge properly concluded, based on clear

and convincing evidence, that the unfitness of the mother was

likely to continue into the indefinite future as the mother had

shown a long track record of lack of progress. See Adoption of

Ramon, 41 Mass. App. Ct. 709, 718 (1996).

Decrees affirmed.

By the Court (Blake, C.J.,
Shin & Walsh, JJ.10),

Clerk

Entered: May 23, 2025.

10 The panelists are listed in order of seniority.

19