No. 16-P-1661.


Appeals Court of Massachusetts.

Attorney(s) appearing for the Case

Patricia J. Casey, Esquire , Elizabeth Kaplan , A.A.G., for Plaintiff-Appellee.

Kellee-Sue Milord, Esquire , for Plaintiff-Appellee.

Michael S. Penta, Esquire , for Defendant-Appellant.

By the Court (Trainor, Vuono & Sullivan, JJ.)


Summary decisions issued by the Appeals Court pursuant to its 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 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).

The mother appeals from a decree entered in the Juvenile Court finding her to be currently unfit, terminating her parental rights to her minor child, and approving the adoption plan of the Department of Children and Families (DCF).2 We affirm.

The mother argues that DCF did not provide services that were appropriately tailored to her cognitive limitations. She is correct that "[b]efore seeking to terminate parental rights [DCF] must make `reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. 53, 60 (2011), quoting from Adoption of Lenore, 55 Mass.App.Ct. 275, 278 (2002). When terminating parental rights, a judge must determine whether DCF complied with this obligation. Id. at 61. "[H]eroic or extraordinary measures, however desirable they may at least abstractly be, are not required." Adoption of Lenore, 55 Mass. App. Ct. at 278.

A judge's determination that DCF made reasonable efforts to reunify the family is not reversed unless it is clearly erroneous. See Adoption of Ilona, 459 Mass. at 62; Adoption of Lenore, 55 Mass. App. Ct. at 279. "A finding is clearly erroneous" only if "there is no evidence to support it," or, "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. 795, 799 (1993) (quotation omitted).

Here, DCF offered the mother a variety of services based on an assessment which considered her financial and housing situation, her history of aggression, and her cognitive limitations.3 The service plans focused on addressing these issues by offering parenting classes, anger management therapy, and encouraging her to secure stable housing. The judge specifically found that "[t]he tasks developed by [DCF] for Mother were based on her needs as they were identified during her assessment. Though the individual tasks were not specific to a person with a cognitive disability, the plan was developed in consideration of Mother's apparent needs." The judge concluded that "the services offered have been appropriate to remedy the circumstances that led to [the child's] removal." This conclusion, that DCF made reasonable efforts to reunite the mother and child, was not clearly erroneous.

Additionally, there is no evidence that the services which were provided were unsuitable or that even if DCF could have offered different services, different services would have made a difference. The problem, the judge concluded, was that the mother did not follow through with the services provided or recommended. See Adoption of Gregory, 434 Mass. 117, 123 (2001) ("The [parent's] failure cannot be laid at [DCF's] door").

The mother also refers to a report of the United States Department of Justice (DOJ) and an investigation of the United States Department of Health and Human Services (HHS) into an unrelated case concerning a cognitively impaired parent. The concerns and conclusion of that investigation, however, have no relationship to the issues raised in the case here. The DOJ/HHS concluded that the subject child there was removed from the mother's custody at birth despite strong evidence that the mother could parent the child with appropriate family support. The investigation concluded that DCF sought termination of the mother's parental rights solely on the basis of stereotypical assumptions regarding the mother's developmental disability. Here, to the contrary, there was no evidence that the child was removed solely on assumptions of the mother's capabilities resulting from her cognitive impairment. DCF's focus has been on the development of her parenting skills, management of her anger and emotional issues, and stabilization of her life generally.

The mother also argues that the judge abused his discretion when he denied her request to continue the trial. The decision "[w]hether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and . . . will be upheld absent an abuse of that discretion." Care & Protection of Quinn, 54 Mass.App.Ct. 117, 120 (2002). An abuse of discretion, however, only exists when the judge has made "a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted). The judge's decision, here, to deny the mother's requested continuance did not constitute an abuse of discretion. The termination trial did not begin until twenty-one months after the child was placed in DCF custody. During that time the trial was postponed four times. The mother argues that she needed more time to take advantage of the DCF services being offered. There was, however, very little evidence that the mother would tke advantage of any such services. The mother has consistently resisted DCF services during the pendency of this matter and only identified, at trial, housing assistance as a service needed from DCF. Ultimately, given that "childhood is fleeting," Adoption of Ilona, 459 Mass. at 60, "[s]peedy resolution of cases involving issues of custody or adoption is desirable." Care & Protection of Quinn, 54 Mass. App. Ct. at 122, quoting from Adoption of Emily, 25 Mass.App.Ct. 579, 581 (1988).

Finally, given that there was "clear and convincing evidence" that the mother was currently unfit to parent the child, we must also examine the judge's determination "whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. at 59. The core question is whether the parent's current unfitness may only be temporary. See ibid. There was ample evidence to support the judge's conclusion that the mother's unfitness was not temporary and it would be in the child's best interests to terminate mother's parental rights. The child is now five years old. She has been in foster care since she was two years old. During this time, the mother has failed to make any real progress toward fitness. Even after DCF agreed to specific accommodations for her disability, the mother made no demonstrable progress toward fitness. Considering the child's age and the amount of time she has spent in foster care, and that she has bonded with her foster parent, it was appropriate for the judge to conclude that a stable and loving home was in her best interests. See Adoption of Nancy, 443 Mass. 512, 517 (2005); Adoption of Ilona, 459 Mass. at 62. See also G. L. c. 210, § 3(c)(iv) (supporting termination of parental rights where child older than four years of age has been in DCF care for at least twelve of preceding fifteen months, child cannot be returned to custody of parents, and "the parents were offered or received services . . . and refused or were unable to utilize such services on a regular and consistent basis").

Decree affirmed.


1. A pseudonym.
4. The panelists are listed in order of seniority.
2. The parental rights of a putative father who has not acknowledged paternity, was not named on the birth certificate and did not participate in the trial, and any unknown or unnamed father were also terminated.
3. The Department of Developmental Services tested the mother. Her IQ was fifty-eight. DCF did not obtain the test, but it did recognized that she had cognitive functional deficits.


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