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Appeals Court of Massachusetts.

ADOPTION OF XANTHA (and a companion case 1).


Decided: October 26, 2021

By the Court (Massing, Kinder & Neyman, JJ.2)


After a trial, a Juvenile Court judge found the mother unfit to parent Andrew and Xantha and terminated her parental rights to both children. The judge also found the father unfit to parent Andrew and terminated his parental rights. In this appeal, the mother challenges the judge's determination of her unfitness as well as the termination of her parental rights. The father challenges the termination of his parental rights, and he also contends that he was denied the right to counsel during portions of the trial, which he raised in the Juvenile Court via a motion for new trial. We affirm.

Background. The Department of Children and Families (department) initiated the underlying care and protection proceedings in December 2013, when Andrew was twenty-two months old and Xantha was three years old, after a series of reports filed under G. L. c. 119 § 51A (51A reports), and G. L. c. 119 § 51B (51B reports), alleged physical abuse and neglect of Andrew, Xantha, and the seven other children in the mother's care at that time. The father, whose only child is Andrew, was not living with the mother and her nine children but occasionally provided child care and financial support.

The department initially obtained emergency custody of all nine children. Six were eventually returned to the mother's custody. Andrew and Xantha remained in the department's custody following the emergency removal and had lived with the same foster families since January 2014 and December 2013, respectively.3

While many of the mother's children have needs requiring specialized care and attention, the needs of Andrew and Xantha are particularly complex and challenging to manage. Andrew's working diagnoses at the time of trial included autism spectrum disorder and unspecified disruptive, impulse control, conduct disorder with marked hyperactivity-impulsivity. His lack of body awareness, impulsivity, and escalated behaviors resulted in serious self-injury requiring two crisis hospitalizations. Heightened behavioral issues at school necessitated his transition to a specialized therapeutic school where he received at least one-on-one attention and spent significant time in restraints or in a quiet room. He had an individualized education plan (IEP), received occupational and speech therapy, and was monitored by a psychiatric team. He took daily medications to regulate his self-destructive behaviors. His foster family traveled with a safety stroller for him when in public. At age seven, he was not able to spell his name, count to ten, or recite the alphabet.

The mother had not seen Andrew's IEP or attended meetings to discuss it. She believed he was a typical child and was not concerned with his behavior. The father was wholly absent from Andrew's life for five years and had spent minimal time with him. The father became involved in December 2018 primarily because he was interested in exploring a renewed relationship with the mother. He had visited Andrew only a few times and had never inquired about his various appointments and diagnoses.

Xantha has been diagnosed with hydrocephalus, cerebral palsy, speech delays, global developmental delays, asthma, stage one retinopathy of prematurity eye disease, posttraumatic stress disorder, and mood deregulation disorder. She underwent surgery to receive a ventriculoperitoneal shunt, emergency surgery to address issues with the shunt, and bilateral osteotomy to correct the positioning of her legs. She was able to walk on her own with assistive devices, but she required ankle braces for stability, received Botox injections in her legs every six months, and took daily muscle relaxants. Future surgeries may be required.

Xantha's diagnoses required monitoring and treatment from numerous medical specialists. She took several daily medications to manage unpredictable episodes of anger and sadness. She attended physical and occupational therapy twice per week and speech therapy at school weekly. Her foster mother, who does not work outside the home, spent at least fifty percent of her time caring for Xantha, including trips to Xantha's school twice each week, daily check-ins with her teachers, weekly check-ins with her medical specialists, and annual meetings related to her IEP.

When Xantha was in the mother's care, the mother struggled to attend to Xantha's complex medical needs. Xantha missed numerous appointments with medical specialists and did not wear her ankle braces for the full length of time recommended by her orthopedist. When she first came into the care of her foster family at age three, she was not toilet trained, was not able to walk on her own, ate uncontrollably, and resisted bathing.

While the mother acknowledged that Xantha required a high level of care, she did not appear to fully appreciate or understand what it took to provide such care. She was unaware of Xantha's grade level, missed her school meetings and some of her recurring medical appointments, and was not familiar with her IEP.

Discussion. “To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). “While a decision of unfitness must be supported by clear and convincing evidence, a judge's findings will be disturbed only if they are clearly erroneous” (citation omitted). Adoption of Paula, 420 Mass. 716, 729 (1995). “Moreover, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.” Custody of Eleanor, 414 Mass. 795, 799 (1993). Whether termination of parental rights is in a child's best interests is a discretionary decision. See Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied, 526 U.S. 1034 (1999).

1. The mother's fitness to parent Andrew and Xantha.4 The judge found by clear and convincing evidence, which the record supports, that the mother was unfit to care for Andrew and Xantha.5 In particular, the mother had a history of ongoing parental neglect and demonstrated difficulty understanding and managing Andrew's and Xantha's complex medical, mental health, and educational needs. She also had not made meaningful progress in completing her service plan tasks and, following the trial, would have six other children, many with their own special needs, under her care. At the same time, Andrew and Xantha had come to rely on their respective foster families, who had provided them the care they required for the nearly six years they had been in the families’ care.

The mother asserts that the subsidiary findings supporting the judge's unfitness determination are clearly erroneous in two particulars: his finding that Andrew and Xantha had insignificant bonds to the mother's family, and his findings that the mother failed to bring Xantha to scheduled medical appointments. “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Custody of Eleanor, 414 Mass. at 799, quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

The judge's conclusion that the children's bonds to the mother and her family are “not significant” was supported by many of the judge's other findings, none of which the mother directly contests. The children were both removed from the mother's care at very young ages and had spent nearly six years outside her care. Xantha asked her foster family why she had to go the supervised visits with her mother and siblings. Andrew was unable to pronounce the names of his siblings, some of whom had not consistently attended visits with Andrew and Xantha.

The finding of insignificant family bonds is not, as the mother argues, inherently inconsistent with simultaneously ordering posttermination and postadoption contact with the mother and the children's siblings. A child's bond with a biological parent is but one factor among many to consider when determining whether visitation is in the child's best interest. See Adoption of Ilona, 459 Mass. at 63-64. Indeed, “a child who is adopted following termination of his parents’ rights may benefit from contact with his birth parents even if he did not earlier form a strong bond with them.” Adoption of Rico, 453 Mass. 749, 759 (2009). Accordingly, the finding is not clearly erroneous.6

The mother also argues that the judge's findings related to missed medical appointments for Xantha are clearly erroneous because they were based on inadmissible hearsay from 51A and 51B reports that the judge struck from evidence. As an initial matter, the judge's reliance on the reports was consistent with the standard rules of admissibility for such reports. See Mass. G. Evid. § 1115(b)(2)(A)-(B) (2021). The judge's use of words such as “alleging” and “asserted” when referencing the list of missed appointments in the 51A report from January 13, 2012, demonstrates that he relied on the list only to “set the stage” for how “the department became involved with [Xantha].” Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). The judge was permitted to rely substantively on the statements about missed appointments in the 51B reports from September 9, 2011, and January 22, 2018, because they are “statements of primary fact” from a “hearsay source [who] is specifically identified in the document and [was] available for cross-examination” (footnote omitted). Adoption of Luc, 484 Mass. at 153.

We are not persuaded that the casual characterizations of the evidentiary rulings by the judge and the department's lawyer at trial precluded the judge's proper reliance on the 51A and 51B reports. Significantly, the judge's written rulings on the reports conform with the standard admissibility rules described above, and the judge made no other notations on the reports indicating that the statements about missed appointments were inadmissible.7 Accordingly, none of the challenged findings that rely on the 51A and 51B reports are clearly erroneous.

2. The best interests of Xantha. The record also supports the judge's finding that the termination of the mother's parental rights was in Xantha's best interests. In particular, the mother had a history of ongoing neglect and had not shown improvement in handling the complex issues Xantha faced, as evidenced by the mother's insufficient effort to learn more about what it would take to address Xantha's needs, as well as the mother's difficulty in meeting the needs of the children in her care at the time of trial. Moreover, Xantha's forced removal from her foster home, where she had spent nearly six formative years and was comfortable, could have been traumatic. The mother contends that four of the judge's findings supporting this determination are clearly erroneous. We disagree.

The mother's challenge to the judge's finding of a prior pattern of parental neglect is largely based on the contention, which we have already rejected, that the judge relied on inadmissible evidence. Nor did the judge fail to conduct an “even-handed” assessment of the facts merely because he cited the mother's decision to delay bringing Xantha to the hospital as an example of prior neglect without providing the full context. Not only does the mother concede that the judge's statement is “technically true,” but elsewhere in his decision the judge discussed the larger context that the mother now argues he ignored.

The mother's three remaining challenges to the judge's findings fail because the findings are “adequately supported in the record” even if, as the mother points out, some evidence arguably weighs in a different direction. Custody of Eleanor, 414 Mass. at 799 (“the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference”). First, even if the foster mother did not definitively testify that her family would adopt Xantha, the judge's finding that the foster family “want[s] to be considered an adoptive resource” is wholly supported by the foster mother's testimony. Second, the judge's finding that the mother is unable to “organize and take advantage of services offered to her or her children” is supported by the mother's reliance on the department to initiate in-school services for the children under her care, delays in services due to her failure to timely return paperwork, and her inability to ensure the children under her care attend school where they receive most of their services. Finally, the judge's finding that the mother's lack of understanding of Xantha's needs and participation in addressing them is supported by the mother's absence at Xantha's school meetings and recurring appointments, her inconsistent compliance with her service plan, her negligible comprehension of Xantha's IEP, and her inattention to Xantha's safety at supervised visits.

The mother also argues that her rights should not have been terminated because the department failed to make reasonable efforts to reunify the children with her, and that she could have remedied her incomplete understanding of the children's needs if the department had done better. To terminate parental rights, the judge must determine that the parent's unfitness “is reasonably likely to continue for a prolonged or indeterminate period.” Adoption of Ilona, 459 Mass. at 60. “A judge may consider the department's failure to make reasonable efforts [to reunite the child with the parent] in deciding whether a parent's unfitness is merely temporary” or likely to persist. Id. at 61. “However, even where the department has failed to meet [its] obligation [to make reasonable efforts], a trial judge must still rule in the child's best interest.” Id. See G. L. c. 119, § 29C.

The judge determined that the department had not made reasonable efforts to reunify the children with the mother. However, the judge also concluded that “there is no reasonable expectation that [the mother] will be able to provide proper care or custody of Xantha and Andrew within a reasonable time.” This conclusion is supported by the long duration of the mother's unfitness to parent Xantha, Xantha's severe special needs, and the competing needs of the many other children in the mother's care.

Finally, the mother argues that Xantha's struggles in substitute care demonstrate that termination of the mother's parental rights is not in Xantha's best interests. The question before the judge, however, was not whether a substitute caretaker is able to perfectly manage the needs of the child, especially a child with complex needs like Xantha. Rather, the relevant question was whether a currently unfit parent will be able to provide proper care at some point soon. See Adoption of Ilona, 459 Mass. at 60. The foster mother's continued struggles with Xantha despite substantial time investments in Xantha's care only highlights the gap between the mother's current capacity to parent and the capacity required to provide adequate care.

Accordingly, we discern no error or abuse of discretion in the judge's decision to terminate the mother's parental rights to Xantha.

3. The best interests of Andrew. The judge found by clear and convincing evidence that the termination of the mother's and the father's parental rights served Andrew's best interests. The mother demonstrated many of the same deficiencies in caring for Andrew as she did with Xantha, in particular her lack of improvement in understanding and handling the complex issues Andrew faced. Also like Xantha, forced removal of Andrew from his foster home could have been traumatic. As for the father, he abandoned Andrew for approximately five years and had not made a meaningful attempt to reintegrate himself into Andrew's life.

Both parents’ principal argument hinges on the fact that the department had not confirmed a preadoptive resource for Andrew and that the chances of successful recruitment appeared remote. “Although a factor, the absence of imminent adoption prospects does not, by itself, invalidate a decision to terminate parental rights.” Adoption of Jacques, 82 Mass. App. Ct. 601, 610 (2012). This is especially true where, as here, the child has minimal bonds with his biological parents. See Adoption of Ramona, 61 Mass. App. Ct. 260, 266 (2004). Beyond adoption prospects, the judge was also permitted to consider Andrew's need for stability, which clear and convincing evidence showed that neither parent would be able to provide within a reasonable time. See Adoption of Nancy, 443 Mass. 512, 517-518 (2005).

With regard to Andrew, the mother makes many of the same arguments we have already addressed with regard to Xantha. Only one -- the judge's finding that the mother's lack of understanding of Andrew's needs and participation in addressing them -- requires further explanation. As with the analogous finding with respect to Xantha, this finding is adequately supported by the evidence, including the mother's denial of Andrew's demonstrated disabilities, her absence at some of his medical appointments, her inattention to his IEP, her inconsistent compliance with her service plan, and her inability to provide adequate supervision at visits.

Accordingly, we have no reason to disturb the judge's decision terminating the mother's and the father's parental rights to Andrew.

4. The father's right to counsel. The judge appointed counsel for the father at the commencement of these proceedings. Counsel later withdrew, however, due to the father's lack of participation. The judge subsequently reappointed counsel for the father on April 24, 2019, when he appeared at the trial after being issued a subpoena to testify. Counsel represented the father for the remainder of the trial. Although the father concedes that he waived his right to counsel for much of this proceeding, he now argues that his right to counsel reattached in December 2018 when he unexpectedly attended a department-supervised visit with Andrew, rather than in April 2019 when he first appeared at trial.

The right to court-appointed counsel in proceedings to terminate parental rights does not attach until the parent “first come[s] forward and appear[s], or in some way indicate[s] a desire to be heard or to contest the [care and protection] petition,” and then “demonstrate[s] his or her indigence.” Adoption of Holly, 432 Mass. 680, 687-688 (2000). The father does not dispute that he did not come forward until April 24, 2019. Nor does he dispute that he had actual or constructive knowledge about the trial well prior to that date.8

That department workers encountered the father at a supervised visit several months prior to the father appearing at trial does not change the analysis. Even if the department's lawyer had been made aware of the father's apparent reinvolvement with the mother and subsequently notified the court,9 the court still would not have been able to appoint counsel before the father appeared in the court room. As a threshold matter, the father had not yet shown indigency as required by G. L. c. 119, § 29. See Adoption of Holly, 432 Mass. at 688. In addition, the father's position on the proceedings was unknown prior to his appearance in court; appointed counsel could not have just assumed what position the father wanted to take. See id. at 689. In short, “when a parent has made no appearance at all, counsel need not be appointed.” Id.

The father's argument that he was effectively without counsel on April 24, May 6, and May 7, 2019, because the appointed counsel lacked sufficient time to prepare for trial is unpersuasive. The appointed counsel did not seek continuances because doing so was counter to the father's stated position at the time. The father cannot now challenge on appeal his own strategic choice not to seek continuances. See Commonwealth v. Finstein, 426 Mass. 200, 204 (1997).

Decrees affirmed.

Order denying father's motion for new trial affirmed.


3.   A third child remained in the department's custody following the emergency removal. The mother does not appeal the custody determination as to that child.

4.   The father does not contest the judge's determination that he was unfit to parent Andrew.

5.   Despite the moral overtones of the statutory term “unfit,” the judge's decision is not a moral judgment or a determination that the parent does not love the child. The inquiry is whether the parent's deficiencies or limitations “place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

6.   Given this conclusion, we also reject the mother's contention that the family's closeness should have weighed against the judge's determination that termination of the mother's parental rights served the children's best interests.

7.   We assume the judge followed his own instructions. See Commonwealth v. Aponte, 71 Mass. App. Ct. 758, 763 (2008).

8.   According to the father's own testimony, he was frequently in contact with the mother, who attended every trial date and would give him updates about Andrew. In fact, the mother attended five trial dates between January and April 2019 while the father was living with her.

9.   When the father first appeared at trial, the department's lawyer told the judge that she was “not aware that [the father] was living in the area.”

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