ADOPTION OF TONI (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-765

ADOPTION OF TONI (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge issued

decrees finding the mother unfit to assume parental

responsibilities for the three children -- Toni, Amy, and

Eric -- terminated her parental rights, approved the adoption

plan proposed by the Department of Children and Families

(department), and declined to order posttermination and

postadoption visitation. The mother appeals. She argues that

the judge abused his discretion by admitting certain expert

testimony. She also argues that the department did not make

reasonable efforts toward reunification and that the finding of

unfitness was not supported by clear and convincing evidence.

We affirm.

1Adoption of Amy and Adoption of Eric. The names of the

children are pseudonyms.

Background. The department's involvement with the mother

dates to the birth of the oldest child in 2008. Between 2008

and 2018, the department received twelve reports pursuant to

G. L. c. 119, § 51A (51A report), alleging that the parents had

misused substances and neglected the children.2 Over the years,

several of these reports were screened in and the department

provided the mother with services. Namely, in March 2018, a 51A

report alleged that the mother fell asleep in a clinic with her

head resting on the youngest child, then a baby, whose cries did

not wake the mother. The subsequent investigation, which

supported the 51A report, revealed that the mother tested

positive for oxycodone and benzodiazepines. In April 2018,

another 51A report alleged neglect of all three children after

the mother arrived at a school that Toni and Amy did not attend

and attempted to pick them up. The mother appeared to be

intoxicated; she later admitted to using oxycodone and marijuana

that day. After the department's investigation supported the

51A report, the department filed a care and protection petition

pursuant to G. L. c. 119, § 24, and removed the children from

the mother's custody.

Although the children's permanency plan originally called

for reunification, the goal changed to adoption in 2019. During

2 The father passed away in 2018.

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this time, the mother failed to fully comply with her family

action plans. Notably, the mother continued to use marijuana

and prescription drugs and minimized her substance misuse. The

mother also failed to address her mental health challenges by

failing to meaningfully participate in therapy. Although the

mother saw an individual therapist for a time, she was

discharged from the practice in December 2022 for missing

appointments and failing to fully engage. As of the time of

trial, the mother had not seen a therapist since 2022.

Meanwhile, the three children lived in a temporary kinship

placement. The department found a preadoptive family in

Massachusetts; however, that family ultimately elected not to

adopt the three siblings. In 2021, the department identified a

family in New York that was willing to adopt all three children.

The department moved the children to New York to be placed with

the preadoptive family, and thereafter notified the mother by

text message of the move.

The children have thrived in their current placement, and

the preadoptive parents have demonstrated their ability to

address and care for the children's special needs.3 The two

3 The oldest child was diagnosed with posttraumatic stress

disorder (PTSD), attention deficit hyperactivity disorder

(ADHD), and depression. The middle child was diagnosed with

PTSD, ADHD, and a mood disorder. The youngest child has autism,

ADHD, and a speech impediment.

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older children, aged fifteen and thirteen, respectively, at the

time of trial, have expressed a consistent desire to remain with

their preadoptive family and to be adopted. After moving to New

York, the children visited the mother once per month in

Massachusetts. The visits often did not go well. The mother

sometimes arrived late, and visits frequently ended early. The

oldest child refused visits outright after the mother asked how

old she was. Although the younger two children vacillated about

whether they wished to visit with the mother, all three children

at various times refused visits.

In 2021, the mother petitioned for review and

redetermination (R&R) pursuant to G. L. c. 119, § 26. The first

R&R best interests trial ended in a mistrial. Shortly before

the second trial, the mother filed an abuse of discretion

motion, arguing that the department failed to make reasonable

efforts at reunification. See Care & Protection of Rashida, 488

Mass. 217 (2021), S.C., 489 Mass. 128 (2022). The judge allowed

the motion in November 2023, although the mother never sought a

continuance to allow the parties time to affect a reunification.

After trial that began in December 2023 and concluded in January

2024, the judge issued rulings and orders determining that the

department had made reasonable efforts and decrees terminating

the mother's parental rights. The mother appeals.

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Discussion. 1. Expert testimony. The mother argues that

the judge abused his discretion by qualifying what she described

as an undisclosed expert witness who testified for the

department. On the final day of trial, the department called a

court clinician as a witness. Although the department included

the court clinician on its witness list, it did not identify the

court clinician as an expert. The department did not provide

the mother with the court clinician's curriculum vitae or define

which areas she would opine on as an expert. See Rule 15(B) of

the Juvenile Court Rules for the Care and Protection of Children

(2018). The judge previously appointed the court clinician to

conduct a parenting evaluation and substance use evaluation and

ultimately qualified her as an expert in these matters, over the

mother's objection. The mother argues that the court

clinician's expert testimony prejudiced her.

The judge has discretion to admit an untimely expert

opinion. See Kace v. Liang, 472 Mass. 630, 637 (2015). "The

extreme sanction of a new trial requires both surprise and

unfair prejudicial harm." Hammell v. Shooshanian Eng'g Assocs.,

Inc., 73 Mass. App. Ct. 634, 638 (2009). Several factors

undercut the mother's claim of unfair prejudice. First, the

mother never sought a continuance to prepare a cross-examination

of the court clinician. See id., citing Beaupre v. Cliff Smith

& Assocs., 50 Mass. App. Ct. 480, 486 (2000) (failure to seek

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continuance undercuts claim of prejudice). Second, the mother

was on notice that the court clinician would testify to the

contents of her reports, given that the mother moved in limine

to exclude the 2020 report, and the court clinician's expert

testimony was offered in lieu of the 2023 report itself. See

Hammell, supra (party was on notice that substance of expert's

opinion was at issue in case). Third, none of the findings that

the judge derived from the court clinician's expert testimony

are outcome determinative.

As posited by the court clinician, the judge found that

substance misuse recovery means total abstinence rather than a

harm reduction approach. The mother challenges this finding.

Relatedly, the court clinician testified that the mother's

continued use of marijuana did not show a meaningful recovery

from substance misuse. The record is replete with evidence

amounting to the same. For example, the court clinician

recommended in her 2020 report, which was admitted in evidence,

that the mother abstain from all mood-altering substances. The

mother's substance misuse treatment provider recommended the

same. The mother also challenges the finding based on the court

clinician's testimony that she "did not believe Mother could

effectively parent three, high needs children without full

abstinence or recovery from those substances she has

historically abused." This finds ample support in the record.

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The 51A report filed in April 2018 described an incident in

which the mother arrived at the wrong school, trying to pick up

her child, and appeared to be under the influence of substances.

The mother admitted to using opioids and marijuana that day.

Beyond this incident, the mother admitted in a court interview

that she would not be able to take care of the youngest child

with marijuana in her system. The mother argues that these

reports were stale, but this is belied by record evidence that

the mother's toxicology screen were regularly positive for

marijuana leading up to the trial. Regardless, the judge was

entitled to consider all relevant evidence pertaining to

unfitness. See Adoption of Katharine, 42 Mass. App. Ct. 25, 32-

33 (1997) (judge may consider past conduct to predict future

parental fitness). There was no prejudice.4

2. Reasonable efforts. "Before seeking to terminate

parental rights, the department must make 'reasonable efforts'

aimed at restoring the child to the care of the natural

parents." Adoption of Uday, 91 Mass. App. Ct. 51, 53 (2017),

quoting Adoption of Ilona, 459 Mass. 53, 60 (2011). The mother

argues that the department failed to make reasonable efforts to

reunify the family. Specifically, she underscores that the

4 The mother also challenges two findings that relate to her

minimization of the extent of her substance misuse. These

findings likewise are supported elsewhere in the record.

7

judge concluded the department had redressed their lack of

reasonable efforts just two months after he allowed the mother's

abuse of discretion motion. See Care & Protection of Rashida,

488 Mass. at 219-221. The mother argues that the department

could not have overcome their reasonable efforts deficit in a

two-month span. This is not ultimately dispositive.

Although the department must make reasonable efforts, its

"obligation to work with the mother was contingent upon her own

obligation to fulfill various parental responsibilities,

including seeking and utilizing appropriate services" (citation

omitted). Adoption of Daisy, 77 Mass. App. Ct. 768, 782 (2010),

S.C., 460 Mass. 72 (2011). In other words, "[t]he mother's

failure cannot be laid at the department's door." Adoption of

Paula, 420 Mass. 716, 730 (1995). Over the course of five

years, the mother did not fulfill her responsibility to engage

in services to become fit to parent the children. Although the

mother had previously engaged in individual therapy, she was

discharged from therapy in December 2022 and did not participate

in therapy thereafter. This casts doubt on her argument that

the department's failure to provide family therapy contributed

to the breakdown. See Adoption of Daisy, 77 Mass. App. Ct. at

782 ("While we do not condone the department's lapses in

securing appropriate therapy for Daisy, or discount the

possibility that they played a role in escalating the

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deterioration of the relationship between Daisy and her mother,

the mother's own delay in obtaining appropriate therapy for

herself undermines the mother's argument"). The mother also did

not make an effort to have meaningful contact with the children

during visits, nor did she fully engage with the department's

social workers. By the time the judge allowed the mother's

abuse of discretion motion, the mother's relationship with the

children had already suffered a material breakdown.

The mother compounded the problem by waiting until the eve

of trial to raise the issue of reasonable efforts, and by not

seeking a continuance of the trial after the judge allowed her

abuse of discretion motion. By this point, the children had

bonded with their preadoptive family and all three children had

at various times refused visits with the mother. And the

children refused to participate in family therapy. Compare

Adoption of Daisy, 77 Mass. App. Ct. at 783 ("[the department]

was not in a position to force an eleven year old child to

attend visits against her will").

"[T]he proper focus of termination proceedings is the

welfare of the child." Adoption of Gregory, 434 Mass. 117, 121

(2001). The older two children expressed a consistent desire

not to be reunited with the mother and to be adopted by their

preadoptive family. See Adoption of Chad, 94 Mass. App. Ct.

828, 840 n.22 (2019) ("the law presumes [a twelve-year-old

9

child] is competent to express where his best interests lie").

The children have thrived under the care of the preadoptive

parents, who have demonstrated they are able to address the

needs of the three children. Although we do not condone the

department's failure to promptly notify the mother before moving

the children out of State, the judge did not abuse his

discretion in concluding that the department had made reasonable

efforts.

3. Unfitness. The mother challenges multiple findings and

conclusions as clearly erroneous and argues that the ensuing

conclusion that she is unfit was not supported by clear and

convincing evidence. Specifically, the mother contends that the

evidence did not establish a nexus between her use and harm to

the children. We are not persuaded.

The nexus argument is flawed for two reasons. The mother

points out that the judge did not find that the mother was using

prescription opioids at the time of trial. But the judge

properly considered the mother's past conduct in determining her

current and future parental fitness. See Adoption of Katharine,

42 Mass. App. Ct. at 32-33. Second, the record is replete with

evidence of the detrimental impact of the mother's substance use

on the children. The youngest child was born substance exposed

in 2017. The two 51A reports that precipitated the department's

involvement in 2018 involved the mother's substance misuse. The

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mother testified at trial that marijuana use inhibited her

ability to parent her youngest child and that one moment of

distraction could cause him to be injured. See id. at 32

("judges . . . need [not] wait for inevitable disaster to

happen"). The mother consistently tested positive for marijuana

in the months before trial and admitted to using marijuana a

week before trial. We discern no abuse of discretion or error

of law in the judge's findings and conclusions regarding the

mother's unfitness.

This is not a case where "admitted prior marijuana . . .

use, by itself, does not significantly impact the issue of

parental fitness." Adoption of Zoltan, 71 Mass. App. Ct. 185,

190 (2008). See G. L. c. 94G, § 7 (d). The mother has a long

history of misusing opioids and benzodiazepines. Regardless,

the mother admitted that her use of marijuana hurt her children.

There was no error or abuse of discretion.

Lastly, the mother argues that the judge failed to connect

the mother's "sedation" to substance misuse. The mother

admitted that she could not parent her youngest child "while

inhibited or sedated." Elsewhere, the mother reported to a

substance misuse treatment provider that her perceived sedation

was caused by a peak in her methadone dose. Regardless, the

11

mother's sedation was one of many factors the judge considered

in concluding that the mother's substance misuse posed a risk of

harm to the children.

Decrees affirmed.

By the Court (Blake, C.J.,

Meade & Englander, JJ.5),

Clerk

Entered: March 20, 2025.

5 The panelists are listed in order of seniority.

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