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March 20, 2026 Get Citation Alerts Download PDF Add Note

Adoption of Odile.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0850

• Precedential Status: Non-Precedential

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (63.4K)

• PDF

Combined Opinion

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

25-P-850

ADOPTION OF ODILE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, a judge found the

mother unfit to parent her child, Odile, and terminated her

parental rights.2 On appeal, the mother challenges the judge's

finding of current unfitness and the decision to terminate her

parental rights. The mother also argues that the judge erred

and violated her due process rights by allowing the foster

mother to attend the entirety of the 2021 hearing and the 2024

trial, and that the Department of Children and Families

(department) made reasonable efforts toward reunification. We

affirm.

1 A pseudonym.

2The father is not a party to this appeal. He stipulated
to unfitness and the termination of his parental rights at the
2021 hearing on the merits.
1. Background. We summarize the facts as found by the

judge, who issued comprehensive, detailed findings of fact and

conclusions of law.

A hearing on the merits (hearing) was held in 2021. The

mother requested that all nonparties, including the foster

mother, be sequestered; the judge denied her request. The

mother continued to object to this ruling throughout the

hearing. Following the hearing, the judge found that the mother

was currently unfit, but that the department had not "met its

burden by clear and convincing evidence that said unfitness is

likely to continue into the indefinite future to a near

certitude."

A review and redetermination and termination of parental

rights trial (trial) occurred in 2024. At trial, the judge

denied the mother's motion to sequester all nonparty witnesses.

After trial, the judge found that the mother was currently

unfit, that the unfitness was likely to continue into the

indefinite future to a near certitude, and that the department's

goal of adoption was in Odile's best interests. The judge's

order provided for four supervised posttermination and four

supervised postadoption visits per year between the mother and

Odile.

2
The mother has two children, an older son, and the subject

child.3 The mother became involved with the department in July

2018 after she brought her son to the hospital because he "fell

out of their second-story apartment window." The son is in his

father's custody, and the mother has supervised visitation.

The mother and Odile's father4 were in a relationship for

two years prior to Odile's birth. The mother has a history of

"engaging in violence in her relationships." While with her

son's father, she applied for and obtained a G. L. c. 209A abuse

prevention order after a physical altercation between them.

Although she testified that the father had a short temper, she

denied the presence of domestic violence. The judge did not

credit the mother's denial.

Odile's birth was traumatic. She suffered a "left clavicle

fracture and right arm fracture," and was diagnosed with Erb's

palsy. Odile was in the neonatal intensive care unit for

approximately two weeks.

At around three months old, Odile suffered "inflicted

injuries from an unknown person." The injuries were discovered

3 The children do not have the same father.

4 The father also has a history with the department, and
lost custody of his oldest child because of neglect and physical
abuse. The mother testified that she knew about the father's
involvement with the department but "denied knowing the extent
of his other child's . . . injuries," until after Odile was
injured. The judge did not credit this testimony.

3
when the mother brought Odile to the hospital, after noticing

that she was "warm to the touch . . . [and] didn't want to eat a

lot," and "wasn't moving" her right arm "as she should." Odile

was in the care of her father the day the injuries were

discovered. Odile was seen by an expert in child abuse

diagnoses, who reviewed x-rays and CT scans and concluded that

Odile had a "fractured forearm, fractured ribs, fracture of the

right wrist, fracture of the left foot, and bruising on the left

side of her forehead and the right side of her back." She also

suffered "intracranial injuries accompanied by retinal

hemorrhages." The expert opined that the "injuries occurring

after birth were most likely child abuse." The mother did not

have an explanation for how the injuries had occurred besides

the "difficult birth." The judge found that Odile's injuries

were "the direct result of either abuse or gross neglect by [the

m]other."

After Odile was discharged from the hospital, she was

placed in a foster home.5 At that time, she "suffered from

seizures. Her arm was in a cast, she had broken ribs, fracture

on her foot, and was not responsive to stimulus." These

5 The foster home is Odile's preadoptive placement.

4
conditions required extensive follow-up care, and the injury to

her eyes will require surgery.6

The mother was initially "not cooperative" with the

department's investigation of a report under G. L. c. 119,

§ 51A, alleging physical abuse of Odile by the father. She did

not allow her son to be screened for injuries, nor did she want

her son's father to be notified about Odile's injuries. At an

interview with the department, when asked how she thought

Odile's injuries occurred, the mother said that the "[f]ather

told [her] that he placed [Odile] on a sectional couch and left

both [Odile] and [her son] . . . in the living room . . . [and

her son] was swinging a toy around, inferring that [her son] hit

[Odile] with the toy." In his department interview, the father

denied blaming the mother's son, and stated that "nothing

unusual happened on the day Odile was brought to the hospital."

The judge did not credit either of their accounts.

The mother testified that she was not concerned about the

father hurting Odile until she knew the extent of the father's

eldest child's injuries. At the hearing, the mother refused to

blame the father for the injuries because she did not see the

father abuse "any children." However, at the trial, the mother

6 The mother does not want Odile to have the eye surgery
because she felt that she "did not really need it."

5
testified that it was the father who injured Odile, but the

judge found that these statements were "self-serving at best."

The mother participated in some services but failed "to be

transparent with [the department] regarding therapy and her

relationships." The mother "represented to the [department]

that she was in therapy when in fact she was not." She also

withheld information from the department about her dating

relationships. Approximately eight months before the trial, the

mother began a new relationship but did not disclose it to the

department until a week before the trial started. The judge

found that the mother is "resistant to acknowledging that her

relationships with various men are an issue that reflect on her

ability to parent."

The mother was also not forthcoming about where she was

living. After Odile was removed from the mother's custody, she

was evicted. The mother then lived with the father for a few

months, until she moved in with the maternal grandmother, where

she lived at the time of trial. Around December 2022, the

mother changed her address and "planned to move in with a male

friend, but the move fell through." Although she never moved,

she continued to use the address for filings with the Probate

and Family Court regarding her son and did not "provide

sufficient information about the future roommate to the

6
[d]epartment." She did not cooperate with the department's home

visits until July 2022.

The mother has struggled with her mental health and is

diagnosed with depression, posttraumatic stress disorder,

anxiety, social anxiety, and bipolar disorder. She was in and

out of therapy due to insurance lapses, but the judge did not

credit the mother's claim that she could not afford health

insurance and was otherwise ineligible for MassHealth. She

testified that she did not think therapy or medication was

necessary because she has "always been able to control" her

mental health. In April 2021, the mother had a psychological

evaluation, but did not provide the report to the department

until the day before the hearing. The evaluation recommended,

in part, that the mother use a mood journal, but she did not do

this until a few weeks before the trial.

Before the hearing, the foster mother "[p]rovided extra

visits . . . shared photos and updates . . . [and] allowed [the

mother] to attend doctor visits without [the department]

present." This stopped after the hearing. The mother had four

hours of visitation with Odile monthly, and it increased to six

hours in February 2024.

1. Discussion. a. Unfitness and the termination of the

mother's parental rights. "To terminate parental rights to a

child, the judge must find, by clear and convincing evidence,

7
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). "We give

substantial deference to the judge's findings of fact and

decision, and will reverse only 'where the findings of fact are

clearly erroneous or where there is a clear error of law or

abuse of discretion.'" Id. "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. 795, 799 (1993), quoting Building Inspector of Lancaster

v. Sanderson, 372 Mass. 157, 160 (1977).

The mother argues that the "judge's findings and the record

. . . do not support the conclusion that [the m]other is

currently unfit because they rely on stale evidence, are

unsupported by the record, clearly erroneous and an abuse of

discretion." We disagree.

The mother contends that the judge abused her discretion

by relying on the mother's "hesitancy" to suggest that the

father caused the child's injuries because "she had no knowledge

of his past abuse and was not home when the injuries occurred."

However, the judge did not credit this testimony. A judge's

8
finding on witness credibility is "quintessentially the domain

of the trial judge [so that (her)] assessment is close to immune

from reversal on appeal except on the most compelling of

showings." Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496

(2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536

(1995). Here, the judge was in the best position to determine

credibility and did not abuse her discretion by considering the

mother's knowledge of the father's past abuse and her denial

thereof in the evaluation of her unfitness. See id.; Adoption

of Larry, 434 Mass. 456, 471-472 (2001) (failure of mother to

protect child from father's physical abuse probative of mother's

parental unfitness).

Additionally, the mother contends that "there was no new

evidence during the [trial] regarding" the cause of Odile's

injuries, and therefore the finding of unfitness is based on

stale evidence. However, "[i]n review and redetermination

hearings, the judge does not start with a blank slate, but

builds on findings established in the preceding stages." Care &

Protection of Erin, 443 Mass. 567, 570 (2005). A judge "may

consider past conduct to predict future ability and

performance." Adoption of Katharine, 42 Mass. App. Ct. 25, 32-

33 (1997). Therefore, limited reliance on stale evidence may be

appropriate where it is indicative of a larger pattern of

conduct that extends to the present. See Adoption of Yvonne, 99

9
Mass. App. Ct. 574, 581 (2021). There was no error in

considering the evidence about Odile's injuries from the

hearing, as it would be "inefficient . . . to reestablish by

proof facts already once established and not since altered."

Custody of a Minor (No. 2), 22 Mass. App. Ct. 91, 94 (1986).

The mother next argues that the judge erred by terminating

her parental rights because of her "alleged inconsistent

engagement with services, [and] failure to address mental health

concerns, or maintain transparency." However, the record

supports the judge's findings that the mother did not

consistently comply with the department's action plans.

Although the mother was in therapy at times, she was not

transparent and "represented to the [department] that she was in

therapy," even when she was not. As discussed supra, she did

not provide the department with her psychological evaluation

until the day before the hearing. She was inconsistent about

whether she believed she needed to be in therapy and did not

engage in any other mental health services. Because these

findings are supported by the record, it was not error for the

judge to rely on her inconsistencies in treatment and lack of

transparency with the department. See Adoption of Serge, 52

Mass. App. Ct. 1, 8 (2001) ("mother's lack of meaningful

participation in recommended services was also relevant to the

question of her fitness"). And contrary to the mother's

10
assertions, the judge drew the required nexus between the

mother's "failure to partake" in services and the impact on

Odile, finding that the mother's lack of consistency in service

engagement and inability to be transparent with the department

constituted "grievous shortcomings" that would "impact[]

Mother's insight and ability to make sound choices regarding

[Odile's] safety and wellbeing."7

The mother contends that the finding that she "had

previously been prescribed medications for her mental health,

but refused to take them" was erroneous. She claims that she

stopped taking her one prescribed medication because she was

"unable to wake up for emergencies when taking it," and the

medication was for sleep, not her mental health. Even assuming

this was error, its exclusion would not have changed the

outcome, and therefore, any error was harmless. See Adoption of

Ilian, 91 Mass. App. Ct. 727, 730 (2017) (considering error in

"context of all of the evidence, we cannot say that the judge

7 As an example of the mother's lack of insight that could
place Odile at risk, the judge noted that the mother failed to
disclose her significant relationship with "Nicholas" to the
department for proper vetting until one week before the trial.
The judge found that the mother, who "hope[d] [Nicholas was]
telling her the truth" about his demographic information,
"demonstrates very little insight as to how this could affect
[Odile] if she [was] returned to her care." The judge made
similar findings concerning the mother's online relationship
with a man Odile referred to as her "friend."

11
abused her discretion or committed legal error in the ultimate

decision to terminate the [mother's] parental rights").

The mother next contends that the judge "overstated the

degree of Odile's needs." However, Odile's conditions required

extensive follow-up care and the injury to her eyes required

surgery. Odile is also continually monitored for a seizure

disorder and must have "rescue medication" in case a seizure

happens again. A judge may "use past conduct, medical history,

and present events to predict future ability and performance as

a parent." Care & Protection of Bruce, 44 Mass. App. Ct. 758,

761 (1998). The mother's lack of understanding of the severity

of Odile's injuries supported the judge's finding of unfitness.

See Adoption of Jacques, 82 Mass. App. Ct. 601, 608 (2012)

(unfitness finding was supported by mother's "limited

understanding" of child's medical diagnoses).

The mother further claims that it was an error to terminate

her parental rights due to her "failure to attend medical

appointments," and that the finding that the mother "could have

attended [the appointments] she missed with the help of her

support network" was erroneous. Although the finding that the

mother missed all the appointments in Worcester is not supported

by the record, it was a harmless error, as the mother was

inconsistent in attending Odile's medical appointments. The

social worker testified that the mother had missed several

12
medical appointments, including one in Worcester. And the judge

did not credit the mother's testimony that she missed these

appointments due to lack of transportation. "We accord

deference to a trial judge's assessment of the credibility of

witnesses and the weight of evidence." Adoption of Olivette, 79

Mass. App. Ct. 141, 157 (2011).

The mother argues that the evidence "regarding unstable

housing four years before trial was stale and alleged

instability of [the m]other's current housing was unsupported by

the record and clearly erroneous." The mother acknowledges that

she was evicted after Odile's removal, but states that she has

lived in the same home since March 2020. However, the judge did

not solely rely on the mother's eviction. She also found that

the mother was not "forthcoming or cooperative with the

[d]epartment in terms of home visits or updated contact

information," and noted that the maternal grandmother, with whom

the mother lived, was a caretaker of Odile around the time of

her injuries. Any error was harmless because it did not

contribute significantly to the judge's ultimate unfitness

finding. See Adoption of Bea, 97 Mass. App. Ct. 416, 426 (2020)

("judge's conclusion that the mother was unfit was clearly and

convincingly supported by the judge's [other] subsidiary

findings").

13
In sum, we discern no clear error of law or abuse of

discretion in the judge's unfitness determination and the

decision that termination of the mother's parental rights was in

the best interests of Odile. See Adoption of Xarissa, 99 Mass.

App. Ct. 610, 615-616 (2021).

b. Foster mother's attendance at the two proceedings. The

mother contends that allowing the foster mother to attend the

entirety of the hearing and the trial was "an error of law, a

violation of [the m]other's due process rights, and contrary to

Odile's best interests." She argues that the "'right to attend'

in G. L. c. 119, § 29D does not allow a foster parent access to

the entirety" of the proceedings. It is well established that

the decision as to whether or not to sequester witnesses during

care and protection proceedings is a matter entrusted to the

discretion of the trial judge. See Adoption of Jacob, 99 Mass.

App. Ct. 258, 269 (2021). Although it may be better practice to

sequester a witness, including a foster parent, until after they

testify, here, there was no prejudice to the mother. See

Adoption of Sherry, 435 Mass. 331, 336 (2001) ("we need not

disturb a judgment when error did not affect the outcome").

The mother argues she was harmed by the change in her

relationship with the foster mother as a result of her presence

at the hearing, because the judge considered the mother's

failure to attend all Odile's medical appointments in her

14
finding of unfitness. However, the mother still had the ability

to attend Odile's medical appointments with the department's

supervision. Additionally, the mother did not lose any of her

visits with Odile, as she continued to have visits supervised by

the department, and the judge's order provides for those visits

to continue.

Although the judge found that there was a change in the

mother and the foster mother's relationship after the hearing,

she did not rely on this to find the mother unfit. See Adoption

of Astrid, 45 Mass. App. Ct. 538, 546-547 (1998) (no prejudice

where judge would have reached same result). Therefore, "we

discern no prejudice to the mother . . . , as the remaining

evidence overwhelmingly supports -- by clear and convincing

evidence -- that the mother was unfit as to the [child] and that

termination was in [the child's] best interests." Adoption of

Ulrich, 94 Mass. App. Ct. 668, 680 (2019).

c. Reasonable efforts. Finally, the mother argues that

the finding that the department "made reasonable efforts to

facilitate reunification between the [hearing] and [trial] was

unsupported by the record and clearly erroneous." We disagree.

"Before seeking to terminate parental rights, the department

must make 'reasonable efforts' aimed at restoring the child to

the care of the natural parents." Adoption of Ilona, 459 Mass.

at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278

15
(2002). "The department has a statutory requirement to make

reasonable efforts, but discretionary authority regarding

particular services." Care & Protection of Rashida, 488 Mass.

217, 228 (2021), S.C., 489 Mass. 128 (2022). "A judge's

determination that the department made reasonable efforts will

not be reversed unless clearly erroneous." Adoption of West, 97

Mass. App. Ct. 238, 242 (2020).

However, "[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." Adoption of West,

97 Mass. App. Ct. at 242. Here, the mother failed to raise the

issue of inadequate services and efforts at any time prior to

entry of the decree. Therefore, the issue has not been properly

16
preserved for appellate review and is waived.8 See id. at 242-

243.

Decree affirmed.

By the Court (Blake, C.J.,
Meade & Tan, JJ.9),

Clerk

Entered: March 20, 2026.

Notwithstanding the issue of waiver, the judge did find,
8

based on a number of subsidiary findings, that the department
made reasonable efforts to reunite the mother and Odile, all of
which was supported by the record. Moreover, "[a] determination
by the court that reasonable efforts were not made shall not
preclude the court from making any appropriate order conducive
to the child's best interest[s]." Adoption of Ilona, 459 Mass.
at 61, quoting G. L. c. 119, § 29C.

9 The panelists are listed in order of seniority.

17