Adoption of Isar. ( 2024 )

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
23-P-1268
ADOPTION OF ISAR.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Juvenile Court, the judge issued a
decree finding that the father was unfit to assume parental
responsibilities for his son, Isar, terminated his parental
rights, ordered posttermination and postadoption visitation, and
approved the adoption plan proposed by the Department of
Children and Families (department).2 The father appeals,
claiming that the department failed to make reasonable efforts
to accommodate his disability by (1) denying his request for an
accommodation to increase visitation time and (2) failing to
hold a meeting pursuant to the Americans with Disabilities Act
(ADA). We affirm.
1 A pseudonym.
2At a separate trial, the mother was found to be unfit, and
her parental rights were terminated. She did not appeal.
Background. One day after his birth in August 2021, the
department received a report from a mandated reporter pursuant
to G. L. c. 119, § 51A, alleging neglect of Isar due to the
parents' lack of clarity about where they would be living after
discharge from the hospital. The department conducted an
emergency visit, during which it learned that the parents were
living in a rooming house that was "not suitable" for a child.
The parents reported that they would be moving in with the
child's paternal great-aunt and grandfather in Rhode Island,
however neither parent could provide an address or phone number.
On investigation, the department learned that the family home in
Rhode Island was a "short-term option only."
The following day, the department conferred with the
parents about having Isar remain an additional night in the
hospital so the department could continue its investigation and
assess the parents' living situation. After resistance from the
father, the department initiated an emergency removal of Isar
and filed a care and protection petition pursuant to G. L.
c. 119, § 24. The father subsequently waived his rights to a
temporary custody hearing, and the department was granted
temporary custody. When he was less than ten days old, Isar was
placed in the care of a foster family, with whom he remained at
the time of trial.
2
After Isar's removal, the department provided the father
with an action plan to facilitate reunification. It became
clear to the department in the nascent stages of the case that
the father has "cognitive difficulties and issues with
processing information," and in response the department tailored
the action plan to meet his needs. The department provided the
father with a clinical parent aide who specialized in assisting
parents with intellectual or mental health challenges, submitted
a referral for a neuropsychological evaluation to assess his
learning patterns and intellectual functioning, and paired him
with a social worker experienced in working with adults with
cognitive limitations. The action plan also tasked the father
with obtaining stable and appropriate housing, attending weekly
supervised visitations with Isar, and enrolling in an intimate
partner abuse education program assessment.3
Between August 2021 and December 2022, the department
endeavored to assist the father in making progress with his
action plan. In October 2021, the department referred the
father to a housing consultant and provided him with ample
resources for housing assistance services. However, throughout
3 The father was charged with assault and battery on a
pregnant person and domestic assault and battery with Isar's
mother as the victim in two separate cases. Those charges were
ultimately dismissed. In addition, in 2018 the father was
charged with domestic assault and battery against the mother of
his other child. That case was also dismissed.
3
the case, the father maintained an unstable living situation,
moving between his family's home in Rhode Island, the rooming
house in Brockton, staying in hotels or with friends, and at
times staying in New York. The department also facilitated the
father's enrollment in a domestic violence assessment program,
offered virtually and at no cost to the father while he searched
for employment. After repeatedly missing sessions, the father
was terminated from the program in April 2022. In November
2021, the department referred the father to a clinical parent
aide to help develop his parenting skills; however in April 2022
he was similarly terminated from the service for lack of
engagement, with the provider noting that there was "no effort
on [the father's] end." The department followed up by referring
the father to a different parent aide, but he never completed
the intake process.
In December 2021, the father's social worker sat down with
him and helped fill out the intake paperwork for the
neuropsychological evaluation and scheduled his appointment for
January 2022. Despite a reminder from the social worker, the
father missed the appointment, and after assistance rebooking a
second appointment, missed the rescheduled appointment in June
2022 as well. Through December 2022, the department continued
to offer the father support in rebooking a third appointment,
4
including offers to pay for transportation, but the father
stated that he was not interested.
In March 2022, the father's attorney hired an independent
expert to assess his parenting progress. After observing
several visits between the father and Isar, the expert
recommended that the father be given additional parenting time
to continue to develop his parenting skills. However, the
father had recently discussed with the department his difficulty
making the current visitation schedule due to his commute
between Rhode Island and Massachusetts and his work schedule.
The father was nevertheless offered additional parenting time,
which he declined. In the months following the independent
expert's request, the father missed at least six scheduled
visits.
The father stipulated to being unfit in May 2022, and due
to the lack of progress with his action plan, the department
changed the goal from reunification to adoption in June 2022.
Isar, now three years old, has lived with his foster mother
since he was less than two weeks old.
Discussion. The father appeals the termination of his
parental rights and argues that the department failed to make
reasonable efforts to accommodate his disability by (1) denying
his accommodation request for increased visitation time and (2)
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failing to hold an ADA meeting. See G. L. c. 119, § 29C. We
are not persuaded.
1. Reasonable efforts. "It is well-established that a
parent must raise a claim of inadequate services in a timely
manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010),
S.C., 460 Mass. 72 (2011). "If a parent believes that the
department is not reasonably accommodating a disability, the
parent should claim a violation of his rights under either the
ADA or other antidiscrimination legislation, either when the
parenting plan is adopted, when he receives those services, or
shortly thereafter." Adoption of Gregory, 434 Mass. 117, 124
(2001). Other avenues include requesting an administrative fair
hearing, rejecting the action plan and filing a grievance,
filing an abuse of discretion motion, or raising the issue
during a pretrial conference. See Adoption of West, 97 Mass.
App. Ct. 238, 242-243 (2020). "A parent cannot raise a claim of
inadequate services for the first time on appeal, as the
department would not have had the opportunity to address it."
Id. at 242. Here, the father did not raise the claim in the
Juvenile Court, or at any point in the proceedings when the
department or the judge could properly evaluate it.
Consequently, the claim is untimely and therefore waived. See
Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021).
6
Even assuming, arguendo, that the claim was preserved, the
father's argument is belied by the record. "Where a parent, as
here, has cognitive or other limitations that affect the receipt
of services, the department's duty to make reasonable efforts to
preserve the natural family includes a requirement that the
department provide services that accommodate the special needs
of a parent." Adoption of Ilona, 459 Mass. 53, 61 (2011). "The
department must 'match services with needs, and the trial judge
must be vigilant to ensure that it does so.'" Id., quoting
Adoption of Lenore, 55 Mass. App. Ct. 275, 279 n.3 (2002).
"Nevertheless, heroic 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 the department made reasonable efforts will
not be reversed unless clearly erroneous." Adoption of West, 97
Mass. App. Ct. at 242, citing Adoption of Ilona, supra at 61-62.
Here, the judge's findings that the department made
"exhaustive efforts" to provide the father with appropriate
services, and the plethora of resources and assistance offered
to him, find ample support in the record. The department
tailored its interactions with the father to accommodate his
needs by breaking down and simplifying instructions;
communicating information in person, in writing, over text
message, and by voicemail; making multiple referrals to
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specialized programming and providing hands-on assistance
filling out intake paperwork; sending appointment reminders and
advocating for replacement services when the father missed
appointments; and arranging services at no cost to the father.
Despite the department's efforts, the father did not
meaningfully engage in the services provided. He missed both
appointments for a neuropsychological evaluation (and later
refused to comply with an evaluation geared to better assess his
needs), he was terminated from the parent aide service for
noncompliance, he failed to follow through with the replacement
aide, and he was terminated from the free and virtual domestic
violence education program due to repeated absences. Moreover,
the father rebuffed the department's efforts by asserting that
he neither needed nor wanted the services provided. As the
judge noted when evaluating reasonable efforts, "[t]his is not a
case where a parent with significant limitations seeks out, or
is receptive to, assistance." Because the father "denied [his]
mental health needs by refusing both evaluation and treatment,
[he] cannot successfully argue that [the department's]
reasonable efforts failed to accommodate properly [his] mental
health needs." Adoption of Eduardo, 57 Mass. App. Ct. 278, 282
(2003).
Regarding the request for increased parenting time, the
judge found, and the record reflects, that additional visitation
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time was offered to and refused by the father, and no further
pretrial action was taken by the father or his attorney to
address this specific request. Indeed, the department was
responsive to the father's scheduling needs throughout the case
by modifying the visitation schedule to accommodate his work and
lengthy commute when he brought such concerns to the
department's attention.
As to the ADA meeting,4 while the father asserts that an ADA
meeting was the best method to explore his needs, such a meeting
was only one of several tools available to the parties to
address his needs, and we discern no clear error in the judge's
findings that the department made reasonable efforts to
otherwise accommodate his cognitive limitations. See Adoption
of West, 97 Mass. App. Ct. at 242.
2. Termination of parental rights. "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
4 The department, per its Disability Policy # 2022-01(I)(A),
as in effect at the time of this case, defined an ADA meeting as
"[a] meeting held between Department staff and a parent (and
their counsel if applicable) when necessary to discuss a
parent's disability-related needs and requests for a reasonable
accommodation, or to review a disability-related complaint and
discuss potential resolution." The department's definition of
an ADA meeting was revised in 2023. See Disability Policy # 23-
04(II)(A). The revisions would not affect our analysis here.
9
between parent and child.'" Adoption of Luc, 484 Mass. 139, 144
(2020), quoting Adoption of Ilona, 459 Mass. at 59. "When
reviewing a decision to terminate parental rights, we must
determine whether the trial judge abused [her] discretion or
committed a clear error of law." Adoption of Elena, 446 Mass.
24, 30 (2006). "[T]he judge's assessment of the weight of the
evidence and the credibility of the witness is entitled to
deference." Custody of Eleanor, 414 Mass. 795, 799 (1993).
While the father contends that the judge prematurely
terminated his parental rights prior to a thorough exploration
of his disability-related needs and support network, the judge
made extensive findings of fact, supported by the record,
related to the father's cognitive limitations, their effect on
his parenting abilities, and the department's response to those
needs. Contrast Adoption of Chad, 94 Mass. App. Ct. 828, 829,
839-840 (2019) (further explication needed regarding mother's
mental disabilities before termination of parental rights
warranted). Moreover, the father's disability was not the sole
basis for the judge's determination. The judge also looked to
the father's inability to improve over time; his failure to
provide Isar with a stable home; his lack of compliance with the
action plan and ability to benefit from the services offered;
his history of domestic violence; his mental health; and his
overall inability to meet Isar's needs. These findings were
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grounded in the evidence, and all support the judge's
determination that the father was unfit to parent Isar and that
his unfitness was likely to continue indefinitely.5
Decree affirmed.
By the Court (Blake, Walsh &
Hodgens, JJ.6),
Clerk
Entered: October 1, 2024.
5 We note that the judge's finding that the father was
unemployed at the time of trial was clearly erroneous, as it
appears that he was employed in demolition. However, this does
not impact our analysis.
6 The panelists are listed in order of seniority.
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