# Adoption of Leonard

> Massachusetts Appeals Court · September 26, 2023

URL: https://www.frixlaw.com/law-library/cases/9866901

## Case

- **Court:** Massachusetts Appeals Court
- **Decided:** September 26, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
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1030; SJCReporter@sjc.state.ma.us

22-P-568 Appeals Court

ADOPTION OF LEONARD.1

No. 22-P-568.

Barnstable. February 6, 2023. - September 26, 2023.

Present: Henry, Shin, & Hodgens, JJ.

Adoption, Dispensing with parent's consent. Minor, Adoption.
Parent and Child, Dispensing with parent's consent to
adoption. Indian Child Welfare Act. Evidence,
Qualification of expert witness. Witness, Expert.
Practice, Civil, Adoption. Department of Children &
Families.

Petition filed in the Barnstable County/Town of Plymouth
Division of the Juvenile Court Department on March 22, 2017.

The case was heard by James J. Torney, Jr., J.

Lois M. Farmer for the mother.
Richard A. Salcedo for Department of Children and Families.
Natalie K. Hoppel for the child.

HODGENS, J. Following trial, a Juvenile Court judge

concluded that the mother was unfit and terminated her parental

1 A pseudonym.
2

rights with respect to her son, Leonard, who is an enrolled

member of the Mashpee Wampanoag tribe. See G. L. c. 119, § 26;

G. L. c. 210, § 3. On appeal, the mother raises two primary

arguments: (1) the evidence failed to support some of the

judge's findings, and (2) the termination proceedings failed to

comport with the requirements of the Indian Child Welfare Act of

1978 (ICWA), 25 U.S.C. §§ 1901 et seq. While we conclude that

the evidence supported the challenged findings, we vacate the

decree and remand for further proceedings mandated by the ICWA.

Background. We summarize the facts found by the judge,

supplemented by evidence from the record consistent with those

findings. The mother struggles with mental health issues

including bipolar disorder, posttraumatic stress disorder

(PTSD), anxiety, and depression. Continuing through the time of

trial, the mother has refused to take prescribed medications,

has been "homeless her entire adult life," has "exhibited a

pattern of leaving stable housing," and lives with family and

friends, in the woods, or in her car. She also has "a limited

employment history" and receives Social Security income. She

has a criminal history that includes open cases of assault,

assault on a family or household member, harassment, and

breaking and entering with the intent to commit a felony.

The Department of Children and Families (department) became

involved with the mother and the child (born in 2013) in 2014,
3

when it received a report pursuant to G. L. c. 119, § 51A (51A

report), alleging neglect of the child. That report was

unsubstantiated; however, the department substantiated four out

of five 51A reports of suspected neglect filed from 2014 to

2016. The child was removed from the mother's care in March

2017, following an incident during which the mother became

disruptive at a hospital while giving birth to her second child.

Neither the mother's second child nor her third child, born

during the course of these proceedings, is a party to this

appeal.

A family action plan developed by the department outlined a

number of tasks for the mother in order to work toward

reunification with the child. The mother's mental health

struggles impeded the child's healthy development and

contributed to the mother's housing instability. The mother did

not follow through with any of the tasks in the action plan

apart from sporadic visits with the child. In particular, she

did not avail herself of necessary mental health services,

failed to communicate consistently with the department, and

missed "numerous" visits with the child. On the occasions when

she did visit, the mother "fail[ed] to demonstrate an

understanding of [the child's] developmental level and needs."

The department social worker assigned to the case attempted to

assist the mother in filling out applications to access mental
4

health and housing services, but the mother often rebuffed her

efforts.

The child has "special needs that . . . require active

engagement by his caretaker." He is "delayed in the areas of

adaptive and personal-social development." He is in therapy and

has been diagnosed with PTSD, attention deficit hyperactivity

disorder, and generalized anxiety and adjustment disorder. He

also sees an occupational therapist "for concerns related to

body awareness and personal boundaries as well as emotional

regulation and attention and behavior issues." His behavioral

issues include being aggressive toward his peers, being

particularly aggressive toward females, using inappropriate

language, and making sexual gestures.

Following his removal from the mother's custody in March

2017, the child was placed in multiple foster homes. Since

August 2017, the child has been living in a tribal kinship

foster home. The foster mother is a maternal second cousin.

The foster mother enrolled him in a program that provides

special needs services, arranged for corrective surgery related

to a congenital abnormality, and cares for his physical,

emotional, behavioral, and educational needs. Both the child

and the foster mother are members of the Mashpee Wampanoag

tribe, and the child attends an indigenous language immersion

school as well as an after-school program. He is "comfortable
5

and thriving" in the foster mother's home and has "bonded to

her."

Due to the mother's lack of progress with her action plan

tasks, the department in July 2018 changed its goal from

reunification with the mother to a permanent guardianship with

the foster mother and sought termination of the mother's

parental rights. After a trial where the judge found the mother

unfit and terminated her parental rights, the parties filed a

joint motion to vacate the decree because the expert witness

presented by the department failed to meet the requirements of

the ICWA. The judge allowed the motion. Following a second

trial that included forty-four exhibits and testimony from the

mother, the department social worker, the foster mother, and a

different expert witness on Native American cultures, the judge

issued a decree terminating the mother's parental rights on

November 8, 2021, and the mother appealed.

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

proved by at least a fair preponderance of evidence, that the

parent is unfit to care for the child and that termination is in

the child's best interests." Adoption of Xarina, 93 Mass. App.

Ct. 800, 802 (2018), quoting Adoption of Jacques, 82 Mass. App.

Ct. 601, 606 (2012). When, as here, a child is a member of an
6

Indian tribe, Federal law imposes additional requirements before

parental rights may be terminated. Two of those requirements

are at issue here. First, the judge must determine that "active

efforts have been made to provide remedial services and

rehabilitative programs designed to prevent the breakup of the

Indian family and that these efforts have proved unsuccessful."

25 U.S.C. § 1912(d). Second, the judge must make an additional

"determination, supported by evidence beyond a reasonable doubt,

including testimony of qualified expert witnesses, that the

continued custody of the child by the parent or Indian custodian

is likely to result in serious emotional or physical damage to

the child." 25 U.S.C. § 1912(f). We do not disturb a judge's

decision terminating parental rights unless the findings of fact

are "clearly erroneous" or "there is a clear error of law or

abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59

(2011).

Unfitness. The mother contends that the judge erred by

finding that she exhibited a "persistent lack of stable and

appropriate housing" despite evidence showing that she had

stable housing from March to September 2017. We disagree. The

evidence clearly supported the judge's finding of the mother's

persistent homelessness, which is a "proper consideration[] in

an unfitness determination," when coupled with the mother's

refusal to avail herself of available housing. Adoption of
7

Virgil, 93 Mass. App. Ct. 298, 303 (2018). By her own admission

at trial, the mother had been homeless "all [her] life before

and after [she] had kids." She testified that she "stay[s] with

friends and family, sometimes in [her] vehicle." The record

also showed that the mother had a history of abandoning housing

arrangements: in the summer of 2016, she abandoned housing in a

New Bedford shelter; in September 2017, she abandoned tribe-

provided housing on Cape Cod; in December 2017, she abandoned

housing in a shelter in Springfield; and in June 2019, she

abandoned housing in Chatham. The mother also testified that

she did not have a place to live if the child were returned to

her custody. In assessing the mother's fitness, the judge

properly considered this evidence of the mother's history of

abandoning housing and was not required to give "undue weight"

to a fleeting period of housing stability. Care & Protection of

Lillith, 61 Mass. App. Ct. 132, 136 (2004). See Adoption of

Anton, 72 Mass. App. Ct. 667, 676 (2008) ("inability to secure

'adequate stable housing'" properly considered [citation

omitted]).

We also discern no error in the judge's finding that the

mother's untreated mental health issues endangered the child.

The mother contends there was no nexus between her mental health

issues and her ability to parent, but the record shows

otherwise. The mental health issues cannot be viewed in
8

isolation. As the judge found, "persistent lack of stable and

appropriate housing, untreated mental health issues, and limited

insight into [the child's] needs" coalesced to endanger the

child. The record showed that the mother had mental health

issues including bipolar disorder, PTSD, anxiety, and

depression, but refused to take prescribed medications. On

March 22, 2017, the incident occurred resulting in the mother

losing custody of the child. While in active labor with her

second child, the mother came to the hospital with the child and

became disruptive. The mother argued with hospital staff and

threatened to leave against medical advice. Based on this

incident, the department supported allegations of neglect

against the mother due to, untreated mental health issues. See

Adoption of Xarissa, 99 Mass. App. Ct. 610, 617 (2021) ("judge

reasonably concluded that the mother's failure to address her

mental health concerns properly perpetuated the issues that

brought the child into the department's custody").

Relying on Care & Protection of Bruce, 44 Mass. App. Ct.

758, 764 (1998), the mother contends that the department's

service plan amounted to the heavy-handed ultimatum, "no

medication, no child." To the contrary, the department

presented a comprehensive action plan that included specific

tasks tailored to the mother's mental health issues: submitting

to a "full scale" psychological evaluation, signing releases for
9

the department's access to psychological records, engaging in

mental health treatment, taking all prescribed medications, and

notifying the department of her medications. According to the

testimony of the department social worker, the mother failed to

complete any of the tasks and remained "emotionally unstable."

The social worker also testified that the Department of Mental

Health had "offered [the mother] a bed," but she declined.

These untreated mental health issues also hindered the

mother's ability to address the needs of the child. "When

assessing parental fitness, it is not enough to state that a

parent is mentally impaired, rather there must be a showing that

the condition affects the parent's ability to care for the

child." Adoption of Quentin, 424 Mass. 882, 888 (1997).

According to the department social worker's testimony, the child

had special needs, including "diagnosed disorders" of his own,

that required a "stable" parent to be actively engaged in his

psychological, emotional, and educational care. That social

worker, with five years of experience in working with this

family, testified that the mother "has not obtained or followed

through in terms of getting any kind of stability in her life."

Although the judge could have elaborated further, we conclude

that he properly considered the nexus between the mother's

untreated mental health issues and her "capacity to assume

parental responsibility." Adoption of Frederick, 405 Mass. 1, 9
10

(1989). See Adoption of Quentin, supra (nexus shown where

"mother's mental deficiencies impaired her ability to protect

and care for the children"); Adoption of Jacob, 99 Mass. App.

Ct. 258, 265 (2021) (nexus shown where mother's "failure to

address her numerous mental health issues" interfered with her

parental responsibilities).

Based on the foregoing, the challenged findings of fact are

amply supported by the record. Especially in light of the

mother's pattern of leaving stable housing and her untreated

mental health issues that coincided with neglect of the child,

the judge did not "need [to] wait for disaster to happen but

[could] rely upon past patterns of parental neglect or

misconduct in determining current or future fitness." Adoption

of Virgil, 93 Mass. App. Ct. at 301. The findings of fact are

not "clearly erroneous," and we discern no "clear error of law

or abuse of discretion" in the judge's unfitness determination.

Adoption of Ilona, 459 Mass. at 59.

ICWA. The mother challenges the judge's application of the

ICWA. She contends that the department failed to demonstrate

that "active efforts" were made to prevent the breakup of the

Indian family and failed to demonstrate that the child would

suffer "serious emotional or physical damage" in her custody.

25 U.S.C. § 1912(d),(f).
11

Congress enacted the ICWA in response to "the separation of

large numbers of Indian children from their families and tribes

through adoption or foster care placement, usually in non-Indian

homes." Mississippi Band of Choctaw Indians v. Holyfield, 490

U.S. 30, 32 (1989). The ICWA is designed "to protect the best

interests of Indian children and to promote the stability and

security of Indian tribes and families by the establishment of

minimum Federal standards for the removal of Indian children

from their families." 25 U.S.C. § 1902. "The act thus serves

to protect not only the interests of the child and the parents,

but of the tribe as a whole." Adoption of Arnold, 50 Mass. App.

Ct. 743, 748 (2001). Congress authorized the Secretary of the

Interior to "promulgate such rules and regulations as may be

necessary to carry out the provisions" of the ICWA. 25 U.S.C.

§ 1952.

Active efforts. The pertinent Federal regulation defines

"active efforts" as

"affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with his
or her family. Where an agency is involved in the child-
custody proceeding, active efforts must involve assisting
the parent or parents or Indian custodian through the steps
of a case plan and with accessing or developing the
resources necessary to satisfy the case plan."

25 C.F.R. § 23.2.

The judge concluded that the department had made active

efforts by facilitating visits with the mother, making referrals
12

to service providers, assisting the mother in locating housing,

and locating the mother in the community when she became

unavailable. He further concluded that these efforts proved

unsuccessful because the mother was unwilling or unable to

cooperate with the department. We discern no error.

The record provides ample support for the judge's findings

and conclusions on this point. The department developed a

family action plan with the stated goal of reunification. The

plan included specific tasks for the mother designed to

strengthen the familial bond: engaging in parenting classes,

attending scheduled child visits, participating in parenting

activities, and preparing a household budget. Apart from

sporadic visits with the child, the mother did not complete any

tasks on the action plan. The department "repeatedly" offered

to help the mother, but she "didn't engage" with the department.

According to the social worker, the department went "above and

beyond" its usual role to try and help the mother. The

department repeatedly tried to "reengage" the mother and address

the action plan to no avail. The social worker "repeatedly"

called the mother and left messages and searched for her in the

community in places "where she might be staying." The

department tried to help the mother complete an application for

assistance from the Department of Mental Health, but the mother

declined to cooperate. The department worked with three ICWA
13

caseworkers for the Wampanoag tribe as well as the foster mother

and the child. The department developed a visitation schedule

between the mother and the child. Following the COVID-19

pandemic, the department tried to develop another visitation

schedule, but the mother "would not respond." Such evidence

provided strong support for the judge's conclusion that the

department engaged in "active efforts" to provide remedial

services and rehabilitative programs designed to prevent the

breakup of the child's family. 25 U.S.C. § 1912(d).

Qualified expert witness. Before the mother's parental

rights could be terminated, the ICWA required the department to

present expert testimony showing that "custody of the child by

the parent or Indian custodian is likely to result in serious

emotional or physical damage to the child." 25 U.S.C.

§ 1912(f). The social worker "regularly assigned to the Indian

child may not serve as a qualified expert witness." 25 C.F.R.

§ 23.122(c). Testimony may come "from one or more experts." 25

C.F.R. § 23.121(b). See Guidelines for State Courts; Indian

Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979).

The mother contends that the expert presented by the department

was not qualified under 25 U.S.C. § 1912(f) to testify about the

likelihood of "serious emotional or physical damage to the

child." We agree.
14

The department offered a member of the Peoria Indian Tribe

of Oklahoma as its expert. The witness's educational background

included a bachelor's degree in economics (modified by Native

American studies) as well as a law degree. The witness

explained that her modified undergraduate degree was similar to,

but not designated as, a minor in Native American studies

because at the time of her degree the college had a Native

American studies program rather than a department. She has been

a member of the Indian Child Welfare Association since 2008 and

received training through that organization on the ICWA. She

has practiced law in Massachusetts since 1999 and is certified

to take care and protection cases. Her work experience includes

roles as a court investigator, educational advocate, and

guardian ad litem. She has presented training programs on the

ICWA for members of the local bar and previously qualified to

testify as a "Native American expert" in Massachusetts courts in

"Indian child welfare cases." She has no experience working

with the Wampanoag tribe.

Based on these qualifications, the department moved at

trial to qualify the witness "as an expert in native American

cultures and traditions." The mother indicated that she had no

objection. Near the conclusion of the witness's direct

testimony, the department asked whether the child would suffer

serious emotional or physical damage if returned to the mother.
15

The witness replied that it was "a really difficult question,"

but based on her "reading of what has occurred over the past

four years," her opinion was that the mother was "still

unstable" and that it would cause the child "serious emotional

damage" if he were returned to the mother. At this point, the

mother objected on the ground that "[t]his is an expert in ICWA

affairs, not an expert in child psychology." The judge

overruled the objection.

A trial judge has "wide discretion" when deciding whether

to qualify an expert witness, and such decision "will be

reversed only where it constitutes an abuse of discretion or

other error of law." Commonwealth v. Javier, 481 Mass. 268, 285

(2019), quoting Commonwealth v. Frangipane, 433 Mass. 527, 533

(2001). "The crucial issue is whether the witness has

sufficient 'education, training, experience and familiarity'

with the subject matter of the testimony" (citation omitted).

Letch v. Daniels, 401 Mass. 65, 68 (1987). See Mass. G. Evid.

§ 702 note (2023). "[A] judge's discretion can be abused when

an expert witness is permitted to testify to matters beyond an

area of expertise or competence." Frangipane, supra.

In the present case, the expert's testimony lacked the

requisite foundation about her ability to predict the likelihood

of harm to the child. In cases in which 25 U.S.C. § 1912(f)

applies, an expert witness (or expert witnesses) "must be
16

qualified to testify regarding whether the child's continued

custody by the parent or Indian custodian is likely to result in

serious emotional or physical damage to the child and should be

qualified to testify as to the prevailing social and cultural

standards of the Indian child's Tribe" (emphasis added). 25

C.F.R. § 23.122(a). Neither the governing statute nor

regulations provide any exception when, as here, a child is

placed with another member of the same tribe. Such mandated,

specialized expertise on the issue of emotional or physical harm

requires more than showing that the witness has knowledge and

experience in economics, Native American studies, law, the ICWA,

care and protection cases, and the customs of the Peoria Indian

Tribe of Oklahoma. See Oliver N. v. State, 444 P.3d 171, 179-

180 (Alaska 2019) (while experts were qualified to testify to

tribal customs and standards and had backgrounds involving ICWA,

they lacked sufficient expertise to opine on likelihood of harm

to child if returned to parent's custody).

To qualify as an expert on that issue, the witness must be

capable of testifying to "a causal relationship between the

particular conditions in the home and the likelihood that

continued custody of the child will result in serious emotional

or physical damage to the particular child." 25 C.F.R.

§ 23.121(c). See 25 C.F.R. § 23.121(d) ("evidence that shows

only the existence of community or family poverty, isolation,
17

single parenthood, custodian age, crowded or inadequate housing,

substance abuse, or nonconforming social behavior does not by

itself constitute" sufficient evidence to terminate parental

rights under ICWA). While the statute and regulations do not

specify what type of background is needed for a witness to so

qualify, courts that have considered the question have uniformly

concluded, based on the legislative history of the ICWA and

guidelines issued by the Bureau of Indian Affairs, that

expertise beyond the qualifications of a "normal" social worker

is required. See, e.g., Eva H. v. State, Dep't of Health &

Social Servs., Office of Children's Servs., 436 P.3d 1050, 1054-

1055 (Alaska 2019), overruled on other grounds by State v.

Cissy, 513 P.3d 999 (2022); Matter of M.F., 290 Kan. 142, 153-

154 (2010). For example, courts have qualified witnesses as

experts in this area where they had "substantial education in

social work or psychology and direct experience with counseling,

therapy, or conducting psychological assessments." Eva H.,

supra at 1057. See M.F., supra at 154-155 (citing cases).

The witness here lacked any comparable experience. Her

testimony failed to illuminate how her background and experience

would help the trier of fact to understand the causal

relationship between the conditions in the home and the

likelihood of serious emotional or physical damage to the child.

See Eva H., 436 P.3d at 1058 (witness with long experience as
18

attorney and guardian ad litem, but with no training in social

work, psychology, or counselling, not qualified to testify about

emotional or physical harm). Contrast Walker E. v. State, Dep't

of Health & Social Servs., Office of Children's Servs., 480 P.3d

598, 610 (Alaska 2021) (concluding, under plain error review

applicable to unpreserved objections, that expert was qualified

because her "long experience as a caseworker would naturally

have involved assessing likelihood of harm"); Matter of Candace

A., 332 P.3d 578, 586 (Alaska 2014) (witnesses qualified where

both had "substantial education" in social work, one worked as

supervisor at child welfare agency overseeing hundreds of cases,

and other had lengthy work history as mental health clinician).

Even in the absence of such specific Federal requirements,

we conclude that the witness's experience and training did not

provide a sufficient foundation for "the subject matter of the

testimony," that being the likelihood of harm to the child if he

were returned to the mother's custody. Letch, 401 Mass. at 68.

See Commonwealth v. Rintala, 488 Mass. 421, 437 n.29 (2021)

("That [witness] had worked in the paint industry for twenty

years and was involved with the design and production of the

paint at issue here does not mean that he was qualified as an

expert witness on any topic related to paint"); Frangipane, 433

Mass. at 535 ("judge's qualification of the witness in the field

of child abuse in no way extended to a qualification in the area
19

of the neurological or medical functioning of the brain");

Timmons v. Massachusetts Bay Transp. Auth., 412 Mass. 646, 649

(1992) ("Although the expert was qualified to offer his opinion

on the plaintiff's inability to work paid police details and to

teach self-defense classes, the expert was not qualified to

testify on the issue of the permanency of the plaintiff's

injuries"). This is not a situation where a "generally

qualified" expert in a particular discipline is allowed to

testify about a discrete question of knowledge in a

"subspecialty." Commonwealth v. Mahoney, 406 Mass. 843, 852

(1990). See, e.g., Commonwealth v. Crouse, 447 Mass. 558, 569

(2006) (expert in cause and origin of fire permitted to opine

about "delay between fire ignition and alarm activation");

Letch, supra ("medical expert need not be a specialist in the

area concerned"). As a gatekeeper, a judge "must be satisfied

that the witness offered for this purpose has an expertise with

regard to the subject of inquiry." W.G. Young, J.R. Pollets, &

C. Poreda, Evidence § 702.8 at 811-812 (3d ed. 2023). That

expertise, regarding the likelihood of harm to the child if he

were returned to the mother's custody, was not present in this

case. Because the witness did not explain how her background

and experience would enable her to predict the likelihood of

harm under 25 U.S.C. § 1912(f), we must vacate the decree

terminating the mother's parental rights.
20

Conclusion. We vacate the decree and remand the matter for

further proceedings consistent with this opinion. On remand the

judge may in his discretion take additional evidence on the

issues of the mother's current unfitness and the best interests

of the child. Given the disposition of this case, we need not

address the mother's challenge to the posttermination visitation

order.

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9866901. Public record. Not legal advice.