ADOPTION OF OSLA v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found that the mother and the father were each unfit to parent the children, Osla and Emily, and that each child's best interests would be served by the termination of the parents’ parental rights. Both parents appeal from the decrees terminating their parental rights, arguing that the judge should have permitted them to testify at the second day of trial by video conferencing. In addition, the father argues that the judge's ruling permitting him to watch the second day of trial by video conferencing amounted to a constructive denial of counsel. The mother also argues that the Department of Children and Families (DCF) did not make reasonable efforts to restore the children to her care. We affirm.

Background. The mother is deaf and has significant developmental deficits, with cognitive ability at about a third grade level, as a result of which she struggles to retain new information or skills without consistent instruction. In about 2021, the mother met the father online and moved from Virginia to Massachusetts to live with him. The father is also deaf and has cognitive difficulties; he has been diagnosed with attention deficit hyperactivity disorder, posttraumatic stress disorder, and borderline intellectual functioning. Beginning in about 2000, the father was receiving services from the Department of Developmental Services (DDS). He also had a guardian appointed by the Probate and Family Court.

Osla was born in 2022. Just after she was born, a report pursuant to G. L. c. 119, § 51A (51A report), was filed with DCF, and later substantiated, alleging neglect of her as a result of both parents’ parental incapacity and level of functioning, lack of supports, and the father's temper. While in the hospital, the mother had extreme difficulty with tasks required to care for Osla, including wiping her during diaper changes. During the investigation of the 51A report, the father's DDS case worker related that the father had been violent to DDS workers and as a result, DDS required police presence when its employees met with him. Through DDS, the father was receiving housing support from Work Inc., which informed DCF that his compliance with services was very inconsistent, and due to grave concerns about his inability to care for a child and his long history of impulsivity and acts of violence, if Osla were permitted to go home with him, Work Inc., would no longer provide him with services.

On February 25, 2022, with the hospital's American Sign Language (ASL) interpreter present, the DCF social worker informed both parents that DCF was taking custody of Osla. The father threatened to kill the social worker and approached her with a raised fist. Hospital security guards intervened, and the father struggled with them until police arrived and restrained him. An interpreter from the Massachusetts Commission for the Deaf and Hard of Hearing (MCDHH) arrived at the hospital and helped to calm the father. Because of the parents’ cognitive limitations, complex legal concepts are best communicated to them through two interpreters, one ASL interpreter and one certified deaf interpreter (CDI).

On February 28, 2022, DCF filed a petition for the care and protection of Osla and was granted temporary custody of her. Osla was placed with a nonkinship foster family, where she remained for more than one year.

The mother's maternal aunt (great aunt) and her spouse (great uncle), who live in Virginia, expressed a desire to provide permanency for Osla, and in March 2022 filed an application pursuant to the Interstate Compact for Placement of Children, which was later approved. Beginning in October 2022, the great aunt and great uncle had monthly in-person visits with Osla, for which they traveled from Virginia to Massachusetts. DCF's goal for Osla was changed to adoption in March 2023.

Emily was born in 2023. Another 51A report was filed, alleging neglect of Emily by both parents, and later substantiated. At the hospital, Emily was removed from the parents’ care, and ASL and CDI interpreters were present to facilitate communication. The great aunt and great uncle requested that Emily also be placed with them. In June 2023, DCF's goal for Emily was changed to adoption.

Between March 2022 and September 2023, the parents were offered weekly one-hour supervised visits with Osla that also included Emily after she was born. Most visits were attended by both ASL and CDI interpreters, as well as a parent aide trained to work with the deaf, who instructed the parents on child care.

In March 2023, the parents and Osla jointly filed a motion to enjoin DCF from removing Osla to Virginia in order to place her in the custody of the great aunt and great uncle.² The judge denied the motion and found that DCF had made reasonable efforts to reunify Osla with the parents. The parents sought interlocutory relief from a single justice of this court, who denied the petition.

In June 2023, outside the father's presence, the ongoing DCF social worker met with the mother and her collateral supports including two parent aides, a case worker from a deaf social services agency who was helping her with her finances, and a case worker from MCDHH who was helping her apply for DDS assistance. The case workers expressed concerns that the mother often gave most of her government benefit money to the father, who did not allow her to use her own debit card, and, as a result, she often ran out of money and had to contact her family to obtain money for food. The MCDHH case worker related that the father had called her demanding that she tell the mother to give her money to him and his brother. The mother appeared to thrive when she was with her family in Virginia, but when she was with the father, she became unassertive and usually did not speak without asking his permission. The mother's case workers encouraged her to move to Virginia near her family, and the mother said she planned to do so.

Beginning in September 2023, Osla and Emily were placed in the custody of the great aunt and great uncle, who have since become their preadoptive parents. The great aunt and great uncle began teaching the children sign language to communicate with the parents. The great aunt has encouraged the parents numerous times to move to Virginia. The judge credited the great aunt's testimony that she and the great uncle have a genuine desire to facilitate posttermination contact between the parents and the children.

DCF arranged for the parents to have monthly in-person visits, for which the great aunt and great uncle transported the children from Virginia to Massachusetts, a drive of at least ten hours. After the parents missed two in-person visits, DCF held visits by video conferencing in a DCF office, at first scheduled weekly, and then, after the parents failed to attend, scheduled monthly until December 2023, after which they were discontinued. The great aunt continued to arrange some video conferences with the parents, the last one of which took place in October 2024.

In April 2024, the parents moved to Connecticut. The judge credited the father's testimony that they did so to evade DCF. After the move, the parents stopped engaging with DCF and refused to provide DCF with their contact information. In 2024 in Connecticut, the mother gave birth to a third child, Maura.³ In December 2024, at a homeless shelter in Connecticut, the father was arrested for domestic violence after he punched the mother in the pelvic area. The mother obtained an emergency abuse prevention order and went to Virginia, but soon returned to the father in Connecticut.

On June 27, 2024, the judge held a one-day trial, limited by agreement of the parties to evidence affecting custody of the children and the issues of posttermination and postadoption contact. Both parents testified. The judge issued decrees finding the parents unfit and terminating their parental rights. After the parents filed notices of appeal, DCF filed a motion to reopen the evidence, on the grounds that the evidence at the first day of trial had been limited based on the parties’ expectation that the parents would enter into an open adoption agreement, but due to each parent's significant cognitive impairments, neither parent was able to do so. The judge allowed the motion.

On May 22, 2025, the judge held a second day of trial, at which two DCF social workers and the great aunt testified. The judge credited a social worker's testimony that the father controlled the mother's communications with DCF, and that the mother disclosed to the social worker that the father had subjected her to domestic violence. The judge also credited evidence of the parents’ unemployment, difficulty managing money, and housing instability. The judge found that the parents were each unfit to parent the children, and that each child's best interests would be served by termination of each parent's parental rights and adoption by the great aunt and great uncle. The judge ordered that the parents be offered six posttermination visits per year and three postadoption visits per year.

Discussion. 1. Denial of requests to testify by video conferencing. Both parents argue that the judge violated their constitutional due process rights in denying their requests to testify on the second day of trial by video conferencing. In the Juvenile Court, neither parent specifically raised their constitutional rights to due process, and neither asserted an intent to testify on the second day of trial, as each had on the first day. In those circumstances, the parents’ constitutional arguments were arguably waived. See Adoption of Ursa, 103 Mass. App. Ct. 558, 569-570 (2023). Even so, we exercise our discretion to consider them.

The father filed a motion in limine to be permitted to “appear” and “participate” by video conferencing on the second day of trial. At a hearing on January 23, 2025, the judge denied that motion, but allowed DCF's motion to permit the great aunt to testify by video conferencing.⁴

On the morning of the second day of trial, May 22, 2025, the father filed a renewed motion to be permitted to appear by video conferencing, asserting that he “can not afford” transportation to Massachusetts, his car had broken down, and DCF “potentially intends to enter evidence on factual issues that were not asked or discussed” on the first day of trial, and he “should have an opportunity to be able to answer and or discuss all issues.” The mother's counsel filed a similar “motion for virtual appearance.” The judge noted that five interpreters were present -- two ASL interpreters, two CDI interpreters, and an intern -- and the trial date had been scheduled for May 22 and 23, four months in advance to arrange for them, as discussed at the January 23 hearing.⁵ The judge pointed out that, during that time, the parents could have sought help from their collateral supports in arranging transportation. The judge also reminded the parties that at the January 23 hearing she had ruled, “parents must appear in person.” The father requested an emergency continuance of the trial to a date when he could be present, which the judge denied. The judge explained the accommodations available to the parents as follows:

“I will allow the parents to observe via [video conferencing], which is now going to necessitate the use of the interpreters that are here, but we have no way of knowing exactly how much of this they're able to see and understand, and I'm not really willing to interrupt proceedings repeatedly to accommodate them when they should be here in person. I don't know that they'll need that or request that, but I guess we'll see how it goes. But I'm not going to allow them to testify. They can only testify in person.”

Trial proceeded, with the video conferencing monitor arranged so that the parents could view a split screen depicting the judge on one side and the witness and interpreters on the other. The judge instructed the interpreters not to interpret any comments the parents might make, unless either parent was unable to see a witness or view the interpreters. The judge told the parents that they could note any questions they had and, with the interpreters’ assistance, discuss them with counsel during breaks, after which counsel could clarify any testimony. The judge also made clear that both parents’ testimony from the first day of trial was in evidence, and “[i]t's all one trial.”

We review the judge's ruling for an abuse of discretion, which occurs when a decision “amounts to a ‘clear error of judgment’ that falls ‘outside the range of reasonable alternatives.’ ” Adoption of Xarissa, 99 Mass. App. Ct. 610, 616 (2021), quoting Adoption of Talik, 92 Mass. App. Ct. 367, 375 (2017). We discern no such abuse of discretion.

As the judge noted, a standing order of the Juvenile Court, as then in effect, provided that a hearing on termination of parental rights “shall be held in person,” except that it may be held by video conferencing “in a specific case in the discretion of the presiding judge.” Juvenile Court Standing Order 1-22(III)(A)(2) (2022) (Juvenile Court standing order).⁶ “Evaluating a witness's credibility is one of the most difficult tasks facing a trier of fact ․ [and] [p]ersonal observation of a witness aids immeasurably this process.” Adoption of Parker, 77 Mass. App. Ct. 619, 623 (2010), quoting Commonwealth v. Bergstrom, 402 Mass. 534, 548 (1988). The judge properly exercised her discretion when she ruled that the parents were required to testify in person because their doing so would aid her in performing the difficult task of assessing their credibility. Contrary to the parents’ arguments, the judge's permitting the great aunt to testify by video conferencing was not inconsistent with her ruling that the parents could not. The parents’ fitness as parents was the most critical issue at trial.

To the extent that the parents argued in the Juvenile Court, and argue again on appeal, that their lack of financial means was reason to permit them to testify by video conferencing, we are not persuaded. Neither parent filed a motion under the indigent court costs law, G. L. c. 261, § 27C (4), for funds for travel expenses.⁷ If a parent is indigent, that might well entitle the parent to funds for travel expenses, but it would not undermine the judge's discretion under the Juvenile Court standing order to require the parent to appear in person to testify at trial. Contrast Adoption of Edmund, 50 Mass. App. Ct. 526, 529-530 (2000) (denial of incarcerated father's repeated requests to participate at trial by telephone conferencing violated due process, where “no other procedure to respond was afforded to him”).

Moreover, the parents have not shown prejudice. As mentioned, the parents both testified on the first day of trial. Also, the judge invited the parents to communicate with their attorneys during breaks about any issues they wanted to raise, and the judge did take a break just before the father's cross-examination of a DCF social worker. Neither parent's counsel communicated to the judge at any point that either parent was having trouble understanding the testimony.⁸ Contrast Adoption of Patty, 489 Mass. 630, 645-648 (2022) (judge abused discretion in drawing adverse inference against parent for not participating in video conference trial, where parent's absence was attributable to inadequate explanation of video technology and technological problems). Although a third trial day was scheduled for the following day, with interpreters available, counsel for both the mother and the father rested, stating that each parent had already testified on the first day of trial. Neither parent filed a motion for relief from judgment setting forth any evidence that they would have introduced had they testified by video conferencing, nor do they assert on appeal that there is any such evidence. Cf. Adoption of Edmund, 50 Mass. App. Ct. at 531 (remanding to permit incarcerated father precluded from participating at trial by telephone to submit affidavit responding to DCF's evidence). For those same reasons, we also conclude that there is no merit to the father's argument that the judge's ruling permitting him to observe by video conferencing the proceedings on the second day of trial amounted to a constructive denial of counsel because he was limited in his ability to communicate with his attorney.

We note that the mother and the father do not contest any of the judge's findings that each of them is unfit and that the children's best interests will be served by terminating their parental rights. The judge's “ ‘specific and detailed’ findings,” which neither parent challenges as erroneous, “demonstrate [the parents’] parental unfitness clearly and convincingly.” Adoption of Jacob, 99 Mass. App. Ct. 258, 262 (2021), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).

2. Reasonable efforts. The mother also argues that DCF did not provide her with services reasonably adapted to her particular needs, and that therefore, the judge erred in finding that DCF had made reasonable efforts towards reunification.

The mother contends that absent evidence of a “professional evaluation” of her cognitive capacity, DCF did not demonstrate that its efforts were reasonably tailored to her disabilities. Both DCF and the children argue that the parents waived this argument by not raising it in the Juvenile Court. Even assuming the issue was preserved, both parents testified at trial that the mother was capable of caring for the children by herself. On the issue of the mother's cognitive ability, the judge properly considered the testimony of the great aunt, with whom the mother had lived for years when she was a child and young adult. Cf. Commonwealth v. Bonds, 445 Mass. 821, 830 (2006) (mother permissibly testified that daughter's mental disorder made her overly “trusting” of people). On that issue, the judge also considered interviews of the mother by a court investigator, testimony of the DCF social workers conveying their observations of the mother, and evidence that the mother qualified for services from DDS. The judge could also consider her own observations of the mother during testimony on the first day of trial.

The mother also argues that the instruction from a parent aide that she received during weekly visits with Osla, and later with both children, was not sufficient to accommodate her communication and developmental needs. Based on the testimony of the social worker, which the judge credited, the judge found that DCF had made reasonable efforts to reunify Osla and Emily with the mother by offering her instruction by parent aides trained to work with the deaf, assisted by ASL and CDI interpreters, during weekly visits with the children. Despite receiving that instruction, the mother was unable to carry over from one week to the next the parenting skills she had been taught.

We discern no abuse of discretion in the judge's determination that DCF made reasonable efforts to reunify Osla and Emily with the mother. See Adoption of Darlene, 99 Mass. App. Ct. 696, 705-706 (2021) (DCF made reasonable efforts including instruction by parent aide, but mother remained unable to care for child independently). Contrast Adoption of Chad, 94 Mass. App. Ct. 828, 841-842 (2019) (largely documentary record did not resolve “fundamental question whether the mother was in a position to meet the children's basic needs”).

Conclusion. The decrees terminating the parental rights of the mother and the father to the two children are affirmed.

So ordered.

FOOTNOTES

2.   On multiple occasions, the father reported to DCF that the great aunt had abused the mother as a child as well as Osla and Emily; the judge did not credit those accusations.

3.   A pseudonym. Maura was placed in the custody of the Connecticut Department of Children and Families.

4.   The father also filed a motion to permit the parents’ advocate from a deaf social services agency in Connecticut to testify by video conferencing. The judge allowed the motion, but the father never called the witness.

5.   The parents have not provided us with a transcript of that hearing. As appellants, it was their duty to provide us with all transcripts “relevant to the appeal.” Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). See Ryan v. Lovendale, 105 Mass. App. Ct. 564, 573 (2025) (“It is the appellant's burden to provide those parts of the transcripts that are necessary for reviewing the appellant's claims”).

6.   That standing order has since been rescinded and replaced with Juvenile Court Standing Order 1-26, effective June 1, 2026. It similarly requires that a hearing on termination of parental rights “shall be held in person,” see Juvenile Court Standing Order 1-26(III), but the presiding judge may permit some parties or witnesses to appear by video conferencing “based on the circumstances of the case, the resources of the court and the availability and needs of the parties, counsel, and witnesses,” 1-26(VI)(B).

7.   Such a motion would have had to have been supported by an affidavit of indigency. See G. L. c. 261, § 27B.

8.   At one point during the father's cross-examination of the social worker, the video display turned off, but the clerk promptly restarted it to the satisfaction of the father's counsel.