MA CHILD WELFARE - PATTERN OF NEGLECT OR MISCONDUCT NOT REFUTED

 

IN RE ADOPTION OF COLTON, No. 25-P-710. Mass: Appeals Court 2026:

"HERSHFANG, J.

After trial, a judge of the Juvenile Court entered decrees terminating the mother's parental rights to two of her children, Alison and Colton.^[2] The mother maintains that the judge erred by placing too much weight on the mother's history rather than focusing on evidence of the significant and laudatory changes she had made. She also asserts that the judge improperly failed to order posttermination visitation with the children. We affirm.

Background. Alison was born in June 2019. At the time of trial, she was five years old. Colton was born in January 2021. At the time of trial, he was three years old. The mother tested positive for marijuana and alcohol during her pregnancy with Alison, and both children were exposed to Suboxone, a substance taken by the mother to manage a heroin addiction that began after she was raped at age twelve and which, after many efforts, she had successfully learned to manage. When Colton was eight days old, he was diagnosed with a skull fracture; both parents denied knowing the cause, and an investigation conducted pursuant to G. L. c. 119, § 51B, supported allegations of physical abuse by the parents.

Alison lived with both parents for approximately the first two years of her life. Colton lived with both parents from his birth in January 2021 until May 2021, when the father was awarded conditional custody of both children. The mother had not had custody of either child since May 2021, although she lived with them occasionally, as discussed below. In early November 2021, the Department of Children and Families (department) was awarded temporary custody of both children. The children have been in a preadoptive kinship foster home since December 2021.

Beginning at age eighteen, the mother was the victim of domestic violence in her intimate relationships. At age twenty-two, the mother became pregnant with her oldest child, who was in the department's custody and not a subject of this proceeding. That daughter was removed by the department after the mother was in a collision while driving with the child in the car. The mother was arrested and charged with possession of heroin and operating a motor vehicle while under the influence of drugs.

The mother and the father were married in 2019, shortly before Alison was born, when the mother was twenty-six years old. Around that time, the maternal grandmother saw bruises all over the mother's body and worried that the father was abusing the mother. Between 2020 and 2022, the parents obtained many abuse prevention orders against each other pursuant to G. L. c. 209A (209A orders). Those included multiple 209A orders against the mother directing her to have no contact with and stay away from the father. Each parent sought 209A orders against the other and then violated them. At different times, each parent was charged with assault and battery on the other. Both children witnessed violence and arguments between their parents beginning at a very young age. Despite the violence in their relationship and their frequent, bilateral restraining orders, the parents continued to live and vacation together.

The mother reported to the department that she had not used heroin since 2017, right before she began receiving Suboxone treatment. She tested positive for cocaine twice since 2017, most recently in December 2021. She also tested positive for codeine in January 2024, which was six months before trial commenced. As part of the mother's action plan, the department asked her to submit to regular urine screens. Since 2021, the mother many times tested positive for substances, including alcohol, marijuana, codeine, and Suboxone. The mother missed numerous urine screens.

In May 2023, the department added a requirement to the mother's action plan tasks that the mother abstain from alcohol. After the results of three screens were negative for alcohol in July and August 2023, the mother missed three months of urine screens. The results of her last three urine screens before trial were positive for alcohol. The mother completed one of her two scheduled substance use evaluations prior to trial. That evaluation stated that although results of her urine screens have consistently been positive for "a low amount" of alcohol, she has "never presented as under the influence of any substance."

Addressing her history of domestic violence and trauma has been an ongoing effort for the mother. Before the department took custody of the children, she engaged intermittently in therapy with a series of providers. The mother has been diagnosed with posttraumatic stress disorder, anxiety, and bipolar disorder. Twice she voluntarily sought inpatient mental health treatment, in May 2020 for seven days and in May 2022 for nine days. She attributed these admissions to symptoms of postpartum depression that were exacerbated by the department's removal of the children.

Following the children's removal in early November 2021, the mother's action plan tasks included engaging with an individual therapist to address traumas related to her substance use history, addiction, and involvement with the department. Adding this requirement did not meaningfully change the mother's level of engagement with therapy. The department gave the mother references and resources to help her meet the tasks on her action plan. Although she expressed her willingness to participate, the record again reflects only intermittent engagement before August 2023. Between May and August 2022, the department could not assess the mother's use of services because the mother did not keep active releases for the department to speak to her providers. Between January and March 2023, she met four or five times with a new therapist but then stopped attending her sessions. As late as April 2023, she had yet to begin taking medication prescribed in February to treat bipolar disorder. Beginning in August 2023, she engaged in weekly therapy with a second therapist. She continued this treatment through trial.

Throughout the pendency of the case, the mother experienced instability in housing and employment. During the period of the department's involvement with Alison and Colton, the mother lived with her own parents, with the children's father (sometimes in violation of active restraining orders), in a motel, in her car, in shelters, and in her own apartment. When confronted in October 2021 about living with the father in violation of restraining orders and custody arrangements, the mother told a department social worker that she and the father had been "together this whole time" and asserted that she would "continue to violate whatever to be able to spend time with [her] kids." In September 2023, the mother found stable housing in Providence, Rhode Island, where she had a three-bedroom, two-bathroom apartment.

From the time of Alison's birth, the parents' volatile relationship was central to their family life. The children were removed in April 2021 because they were being put in the middle of the parents' constant fighting, yet the parents failed to comply with repeated requests by the department to stop spending time together. The parents violated the conditional custody order by communicating in emotional text messages, telephone calls, and in-person exchanges of the children. They argued in front of the children and struggled to coparent. In May 2021, the police were dispatched to the father's home because the parents were arguing. The father obtained another 209A order against the mother.

The parents continued their tumultuous relationship. In September 2021, they traveled together to New York City to celebrate the father's birthday, leaving each child with a caretaker not approved by the department. On the way home, the parents picked up Alison, arguing bitterly. The mother, father, and children were living together at the time, unbeknownst to the department and in violation of the conditional custody order.

Some of the parents' disputes were physical or involved threats of physical violence. In October 2021, the mother reported that the father had "choked" her in the presence of both children and that Alison had tried to intervene by hitting the father. The father reported that the mother had "hacked into his phone" and changed his voicemail greeting and that she had left him over one hundred threatening voicemail and text messages, some of which were later corroborated by a department social worker.

The parents twice went to Las Vegas together and misrepresented their whereabouts to the department. In late December 2021, the parents canceled two scheduled visits with the children, claiming they had COVID-19. Actually, they had been in Las Vegas. At that same time, a department social worker had sent the mother a $325 gift card to help pay for rent, but a week later, the mother had to move out of her room in a motel because she owed $300. The mother showed poor money management skills and prioritized taking a vacation over having stable housing. She gave conflicting statements about where she was living, asserting that she was living in her car or, alternatively, with the father.

In January 2022, the parents received a judgment of divorce nisi, with a finalization date of April 28, 2022. This did not end their troublesome patterns. That same month (January 2022), the police were called to the father's home for an alleged mutual assault by the parents. The father reported that the mother had punched him repeatedly on the left side of his face, which was red. The mother reported that the father had grabbed and punched her, showing the officer that her neck and chest were red. The mother reported to a department social worker that she had again been living with the father. Another 209A order issued against the mother, effective for one year, that forbade her from contacting the father, coming within twenty-five yards of him, or coming to his residence.

Between February 26 and March 6, 2022, while the 209A order remained in effect, the mother again traveled to Las Vegas with the father. When asked about this trip, the mother explained that she had minimized its costs; she acknowledged having asked the department for financial assistance when traveling to Las Vegas and asked, "aren't we supposed to use our resources?"

In March 2022, the mother again violated the 209A order and was arrested at the father's house. She missed a visit with the children because she was incarcerated. In July 2022, the mother sought out the father's new girlfriend on an online social media site, broke into his voicemail and listened to a message from the girlfriend, and reported to the department that the father had shown up at her work location. The 209A order against the mother was still in effect at that time.

On July 31, 2022, the mother was living on Cape Cod and the father in New Bedford, yet they ended up at a pub in New Bedford at the same time. They fought over the mother's cellular telephone and the father hit the mother. The mother admitted to police that she knew she was violating the 209A order by meeting the father. The mother was arrested for violating the 209A order and the father was charged with assault and theft. Despite this, during a late-August visit with the children, the mother told them details about their next visit with the father, leading the trial judge to infer that the mother had communicated with the father even after the pub incident on July 31, 2022. This conflicted with the mother's reports that she had no contact with the father since then.

The mother's action plan tasked her with completing domestic violence counselling programs. Although she had a fitful start, she completed two in October 2022. And, in December 2023, she completed a program called "Behavioral Health Supports for Justice Involved." Since 2022, the mother has not been accused of violating a 209A order.

Still, the mother's contact with the father continued. In November 2022, the mother sent an e-mail message with an online video recording of the father's fiancée to a department social worker. On January 24, 2023, a department social worker listened to a voicemail the mother had left for the father earlier that month. The father knew facts about the mother's life, including that her car had been repossessed in November. Also in January 2023, the mother reported that the father was harassing her on social media and had shown up at her home and flattened her tires. The mother subsequently obtained a 209A order against the father on January 27, 2023, but three months later, while the order remained in effect, continued to monitor the father's social media posts, which she showed to a department social worker. When asked about this by a department social worker and a court investigator, the mother denied having done so. She told the court investigator she had not had any contact with the father since the summer of 2022. The trial judge did not credit these denials, remarking that the father "was also aware of [the m]other's car being repossessed" in November 2022 and that the mother "continued to monitor [the father's] social media and keep up with his life" after she obtained a 209A order in January 2023.

The mother frequently blamed others for the positive results on her drug and alcohol screens. When her urine tested positive for cocaine, the mother denied using the drug and suggested that she might have been exposed to it from hugging her brother (a cocaine user) or from the father's having laced her marijuana with cocaine. She offered to take a hair follicle test if the department would pay for it but did not take the test when the funds were secured. In October 2022, she blamed irregularities in her Suboxone use on the father's having purportedly stolen her prescription. In June 2023, the mother claimed that her car had been repossessed with her prescriptions inside, so she was not taking either her prescribed Suboxone, which she was buying on the street or getting from a friend, or her psychiatric medications. In July 2023, the mother told a department social worker that she believed the maternal grandmother was "sabotaging" her by putting alcohol in her food, claiming she had not consumed alcohol since April 2023. On January 4, 2024, after testing positive for codeine, the mother denied using codeine and asked for a urine screen, then did not produce the result to the department.

The mother, at times, deprived the department of requested information about her substance use and participation in services in general. For example, although it was a part of the conditional custody order and a task on her action plan that the mother sign all necessary releases, the mother did not do so. And between February and May 2022, the department was unsuccessful in obtaining urine screens from the mother; when those screens were later produced, the results were all positive for alcohol. The mother testified at trial that her positive alcohol screens resulted from her being required to drink as part of her bartending jobs, an explanation that the judge did not credit but rather viewed as "additional evidence of [the m]other's lack of accountability for her actions."

In April 2023, the mother was unemployed. She gave conflicting reports to the department and her Suboxone provider about where she was living. To the Suboxone provider, she reported that she was spending most of her nights at the home of a boyfriend who had been released from jail and was on house arrest. To the department, she reported that she was living at the maternal grandparents' home.

The mother's move to an apartment in Providence in September 2023 coincided with new stability in her life. She obtained that apartment with the help of a community outreach worker who had been advising her about money management skills and housing applications weekly since early 2023. She continued to see her psychiatric nurse practitioner and her Suboxone provider. She also met weekly with a new therapist. The mother reported to a department social worker that she had ended a new relationship when she noticed that her partner was getting angry easily and raising his voice. The mother had a new car as well as a new job. When asked by the social worker, the mother described having learned many ways to seek and cultivate healthy relationships.

In October 2023, the mother completed a six-part education series, "Raising Healthy Families." When the father reached out to her the next month on social media, the mother reported having sent him an e-mail message telling him they could not communicate with each other. When the social worker asked to see the mother's prescription medications, the mother was initially unable to locate them; when she found them, it had been more than three months since she had filled her prescriptions for treatment of bipolar disorder and anxiety. In early 2024, she reported that she was taking her medications as prescribed.

Between November 2021 and August 2024, when trial was underway, the mother consistently attended visits with the children, which generally went well. The mother was largely appropriate, and the children were happy. The judge found that "[t]he visits would end well with [the m]other bringing the children to the social worker's car and giving them hugs and kisses." However, Alison and Colton both struggled behaviorally after the visits. The judge found that "[t]he children are confused by statements [the m]other makes about going home and talking about their bedrooms at home." As a result, the department reduced the mother's visits from one hour weekly to ninety minutes every other week and required every other visit to occur at the public library. The mother testified at trial that if she was awarded custody of Alison and Colton, she would need at least six months before she could care for them full time. She explained that she needed time to "get to know" the children, because "she barely knows the[m] and they barely know her."

Since December 2021, the children have lived together in a preadoptive kinship foster placement. Alison was two years old at the time they entered this home and Colton was ten months old. The preadoptive father is a sibling of the children's maternal grandmother (a great uncle) who is only about ten years older than the mother. The preadoptive mother is his long-term partner and fiancée; she works as a supervisor at the local hospital. The preadoptive parents ensured that Alison got the therapy she needed and supported her therapeutic needs at home. She was doing well in school and enrolled in swim and dance classes. She was a good big sister to Colton. Colton successfully completed an early intervention program. The preadoptive father helped Colton adjust after visits with the mother, which caused "aggressive behaviors towards his peers at daycare." Colton sought out the preadoptive father for attention and affection and the preadoptive father was patient and calm with him. Both children were thriving in the preadoptive placement.

Discussion. 1. Termination of parental rights. "Although the law recognizes that the custody, care and nurture of the child reside first in the parents, where those parents have failed to fulfil the duties of parenthood, their rights are no longer paramount" (quotation and citation omitted). Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 5 (1979). "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). For evidence to be clear and convincing "[t]he requisite proof must be strong and positive; it must be `full, clear and decisive.'" Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

The decision to terminate parental rights requires "a two-part analysis." Adoption of Nancy, 443 Mass. 512, 515 (2005). "First, the judge must find that the parent is presently unfit." Adoption of Cadence, 81 Mass. App. Ct. 162, 167 (2012). "The judge `must also find that the current parental unfitness is not a temporary condition.'" Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019), quoting Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018). "Second, the judge must find that `it would be in the child's best interests to end all legal relations between parent and child.'" Adoption of Cadence, supra, quoting Adoption of Nancy, supra.

"We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence," Adoption of Nancy, 443 Mass. at 515, "and [we] reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. at 59. On appeal, "we do not disturb" findings where the challenge is "based on the judge's credibility determinations." Adoption of Querida, 94 Mass. App. Ct. at 778.

The mother does not contest the trial judge's subsidiary findings of fact. Instead, she challenges the judge's weighing of the evidence, asserting that the judge paid inadequate attention to the mother's "present flourishing" and too much to her past conduct. "In the main [her] arguments simply reflect dissatisfaction with the judge's `weighing of the evidence and [her] credibility determinations.'" Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). But "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). A judge is neither obligated to credit all evidence equally, see Care & Protection of Three Minors, 392 Mass. 704, 711 (1984), nor "required to view the evidence from the parent's perspective." Adoption of Lisette, 93 Mass. App. Ct. 284, 295 (2018).

The mother stipulated to her current unfitness in May 2023, and the children were committed to the permanent custody of the department. Since then, she emphasizes, much has changed. And so it had. The mother made significant strides in maintaining sobriety from heroin; she found suitable housing; she was employed, at least seasonally, in a professional position, and when that job waned, she found other work so as to maintain an income; and she terminated a relationship when she realized her partner was "getting mad easily and raising his voice." She completed an education series, "Raising Healthy Families." She rejected one communication from the father. She attended virtual meetings of "Alcoholics Anonymous" and "Narcotics Anonymous."

The judge's findings acknowledged each of these laudable advances. Nonetheless, "[a] judge properly may consider a pattern of parental neglect or misconduct in determining future fitness and the likelihood of harm to the child." Adoption of Elena, 446 Mass. 24, 33 (2006). "Although `stale information cannot be the basis for a finding of current parental unfitness. . . history . . . has prognostic value.'" Adoption of Jacques, 82 Mass. App. Ct. 601, 607 (2012), quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). "[A] judge's conclusion that a parent's unfitness is temporary," and termination of parental rights is therefore not warranted, "must rest on credible evidence supporting a reasonable likelihood that the parent will become fit, not on a `faint hope.'" Adoption of Ilona, 459 Mass. at 59, quoting Adoption of Inez, 428 Mass. 717, 723 (1999). "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, supra at 59-60.

The mother lost custody of Alison and Colton three years before this matter came to trial, a period longer than one-half of Alison's life and all of Colton's. In that time, and despite her evident and heartfelt desire to be their custodial parent, the mother persisted in patterns of behavior that endangered that possibility. Despite her significant positive steps — which we do not overlook, and which are a credit to her — the judge found that aspects of the mother's troubling history persisted from May 2023 to the time period of the trial, and she inferred from that evidence that the mother had not truly changed. In June 2023, for example, the mother informed her psychiatrist that she was not taking her prescribed Suboxone or her psychiatric medications. She was taking her friend's Suboxone or buying it "off the street" and living in her car. When she tested positive for alcohol that month, the mother complained that the maternal grandmother was sabotaging her by putting alcohol in her food, and that she had not drunk alcohol since April 2023. She did not attend a foster care review on November 2, 2023.

The mother also continued her troubling and violent relationship with the father, despite the existence of 209A orders against her (which the judge found she repeatedly violated), contrary action plan tasks, and multiple requests by the department that she stop. "It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children." Custody of Vaughn, 422 Mass. 590, 599 (1996). "Violence within a family is highly relevant to a judge's determination of parental unfitness and the best interests of the children," Adoption of Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005), because a child who witnesses "such abuse suffers a distinctly grievous kind of harm." Custody of Vaughn, supra at 595. The mother repeatedly misled the department with respect to her contact with the father into at least early 2023. The trial judge found that the mother "significantly minimize[d] her role" in the parents' "toxic" relationship and the effects of that abusiveness on Alison and Colton. Thus, "[t]he evidence in this case supported the judge's reliance on domestic violence as a significant factor in deeming the mother unfit." Adoption of Jacob, 99 Mass. App. Ct. 258, 264 (2021).

In both November 2023 and February 2024, the department discovered evidence suggesting the mother was not regularly taking her prescribed medications. She declined department home visits in December 2023 and January 2024. Also that January, her urine tested positive for codeine and alcohol but not her prescribed medications. As had been true with the positive cocaine results, the mother denied using codeine; once again she was afforded an opportunity to get a second test, but again she did not do so. This evasive behavior in avoiding home visits, combined with the positive results of urine screens and the mother's denial that she had used a substance revealed by the screens, echoed some of her earlier behavior. In a further echo, she missed three appointments with her psychiatrist between October 2023 and January 2024 and stated two months before trial that she would not have so many appointments with providers if the department were not involved.

Trial began in June 2024. That September, the mother missed two trial dates because she was in Florida for a business trip. The judge did not credit the mother's testimony that her return had been delayed when she contracted COVID-19, and the judge then concluded that the mother's decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities" regarding her children. "[A] trial judge has discretion to determine whether to draw an adverse inference from a parent's absence. . . . In determining whether to exercise that discretion, `the judge as fact finder' is to consider whether such an inference is `fair and reasonable based on all the circumstances and evidence before' her." Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014).

The judge was "entitled to consider the evidence of [the mother's] recent improvements within the context of her earlier and continuing deficits." Adoption of Jacques, 82 Mass. App. Ct. at 608. And where, as here, the "judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3 (c)," we cannot say that the trial judge clearly erred by not including specific facts or giving more weight to certain facts than others. Adoption of Nancy, 443 Mass. at 516. Considering the evidence of the mother's longstanding history with domestic violence and substance misuse; her continued failure to confront her own role in both, and their impact on Alison and Colton; her persistent refusal to take responsibility for positive results of drug and alcohol tests; and her poor money management history, "the judge did not clearly err in finding that the mother was unfit and that her unfitness was not temporary." Adoption of Ilona, 459 Mass. at 62.^[3]

"Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period." Adoption of Ilona, 459 Mass. at 60. By the time trial concluded in October 2024, Alison and Colton were both "thriving" in the preadoptive placement where they had been for three years. The mother, by her own testimony at trial, felt she needed at least six more months before she might be capable of parenting Alison and Colton full time. For five years since Alison was born, however, the department had already been providing services to the mother aimed at preparing her to parent the children full time. Where the mother had become stable only in the year before trial and acknowledged she still needed more time, "the court must say, `Enough,' and act in the children's best interests." Adoption of Inez, 428 Mass. at 724, quoting Adoption of Carlos, 31 Mass. App. Ct. 233, 242 (1991), S.C., 413 Mass. 339 (1992). Affording "substantial deference" to the trial judge's findings, as we must, Adoption of Nancy, 443 Mass. at 515, we cannot say that she "abused [her] discretion or committed a clear error of law" in concluding that the mother's current unfitness was not likely to be temporary. Adoption of Elena, 446 Mass. at 30.

2. Posttermination visitation order. The mother also challenges the judge's conclusion that it was not necessary to enter an order for posttermination visitation. While we agree with the department that this issue could have been better preserved for appeal, we exercise our discretion to address it, as the judge discussed it in her decision. See Adoption of Mary, 414 Mass. 705, 712 (1993). A "judge who finds parental unfitness to be established has broad discretion to determine what is in a child's best interests with respect to custody and visitation with biological family members thereafter." Adoption of Rico, 453 Mass. 749, 756 (2009). In determining whether such visitation is in a child's best interests, the judge must consider whether the child has a "significant, existing bond with the biological parent" and whether "the child `has formed strong, nurturing bonds'" with a preadoptive family. Adoption of Ilona, 459 Mass. at 63-64, quoting Adoption of Vito, 431 Mass. 550, 563 (2000). "A judge should issue an order of visitation only if such an order, on balance, is necessary to protect the child[ren]'s best interest[s]." Adoption of Ilona, supra at 65.

The judge concluded that, while the evidence "demonstrate[d] that [the m]other's visits with the children generally went well, and the children were happy to see her" and had "fun at visits with their mother," they also had "a hard time following the visits and [took] a couple of days to regulate." The judge noted the mother's testimony that the children barely know her, and she barely knows them; she further noted that the preadoptive parents "support[ed] continued contact between the children and [the m]other so long as [the m]other is sober and her mental health is stable." The judge's ultimate conclusion that a visitation order was not necessary to protect the children's best interests followed her careful weighing of the evidence of the children's bonds with their mother against their needs and connections with the preadoptive family. We discern no abuse of discretion in the judge's ruling.

Decrees affirmed.

WOOD, J. (dissenting).

"The natural bond between parent and child should not be permanently severed unless the child's present or future welfare demands it. None of our cases, in which we have said that current parental unfitness is a prerequisite to the allowance of a petition to dispense with consent to adoption, should be construed as requiring such an extreme step whenever the parents are currently unfit, or as limiting the inquiry to parental fitness at the time of trial."

Adoption of Carlos, 413 Mass. 339, 350 (1992).

To establish that the termination of parental rights is warranted, it is not enough to find that the parent is currently unfit. "The judge must also find that the current parental unfitness is not a temporary condition" (quotation and citation omitted). Adoption of Querida, 94 Mass. App. Ct. 771, 777 (2019). There must be clear and convincing evidence that "the mother's current unfitness is likely to continue indefinitely." Adoption of Arianne, 104 Mass. App. Ct. 716, 721 (2024). "The requisite proof must be strong and positive; it must be `full, clear and decisive'" (citation omitted). Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998).

I agree with the majority that the judge did not clearly err or commit an abuse of discretion in finding that the mother was currently unfit at her 2024 trial. But I disagree with the majority's second conclusion that the judge did not clearly err or commit an abuse of discretion in ruling "that said unfitness is likely to continue into the indefinite future to a near certitude."

The judge found that the mother's "lack of progress throughout the pendency of this matter is a strong indicator that her unfitness will continue undiminished into the future with an attendant harmful [e]ffect on the children." In fact, the record evidence established, and the majority acknowledges, that the mother made significant "progress" since the Department of Children and Families (department) was granted temporary custody of her children in November 2021. Specifically, the mother made great strides in managing her substance use disorder; freeing herself from a "toxic," violent domestic relationship; and achieving safe housing and financial stability. Collectively, this progress established an undeniable upward trend toward fitness, such that the judge clearly erred in weighing the factors relevant to the decision whether the mother's "unfitness is likely to continue into the indefinite future to a near certitude." See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion). "The judge, having been alerted to what had been reported as the mother's recent positive gains, should have considered whether she would be likely to improve in the future." Adoption of Imelda, 72 Mass. App. Ct. 354, 363 (2008). Accordingly, I dissent.

The judge focused on three areas of concern in the mother's life: (1) her substance misuse; (2) her past abusive relationship with the children's father; and (3) her financial irresponsibility in the face of housing insecurity. I discuss each area of concern as well as the mother's health.

1. Substance misuse. The mother struggled to overcome a heroin addiction in rehabilitation programs for fourteen years, from the ages of twelve to twenty-six. Then, in January 2018, she began receiving Suboxone treatment (before either of the subject children were born). She had been sober from heroin since that date. Indeed, during the pendency of this case, the mother took eighteen department-mandated urine screens, from August 2021 to April 2024, all of which showed results that were negative for heroin.

The mother tested positive for cocaine twice in 2021, and once for codeine in January 2024. The mother drank alcohol and used marijuana in moderation, but her substance use evaluator did not report any concerns about that behavior. The mother never presented as intoxicated during nearly three years of weekly supervised visits with her children, from November 2021 to June 2024, and was never reported to have been under the influence anywhere else.

The majority focuses on the fact that the department's action plan tasks gave clear instructions to abstain from alcohol, and the fact that the mother repeatedly deflected and avoided responsibility for her alcohol consumption. I agree that the mother's deflection of responsibility for consuming alcohol supports the judge's finding of current unfitness.

But it is also clear that the mother's multiyear struggle to maintain sobriety demonstrated a sustained commitment to achieving parental fitness. To the extent that the judge was concerned the mother's use of alcohol and marijuana supported a potential relapse into substance abuse, "[t]he passage of [more than] four years [since she achieved sobriety] is too long a period to rely on the predictive value of past behavior without verification — especially when evidence contradicting the prediction is readily available" (footnotes omitted). Adoption of Rhona, 57 Mass. App. Ct. 479, 486 (2003), S.C., 63 Mass. App. Ct. 117 (2005).

2. Domestic violence. The mother had a toxic and destructive relationship with the father. But over the course of six months from August 2022 to January 2023, she extracted herself from that relationship. At the very least, that achievement demonstrated progress toward fitness, and undermined the probative value of this factor as evidence of permanent unfitness.

The mother scheduled an intake appointment with a provider on August 15, 2022, seeking to reengage in its domestic violence education and prevention services. As the majority notes, the mother completed two domestic violence counselling programs. On January 27, 2023, she obtained a restraining order against the father.^[1] From that point forward, there is no evidence that she had contact with the father except for a single e-mail message in November 2023, following the father's violation of that order, to tell him that they could not communicate.^[2] Finally, in October 2023, she completed a third education program about domestic violence, a six-part series entitled "Raising Healthy Families."

"At trial, there was no evidence presented that domestic violence . . . was still present in the mother's life." Care & Protection of Laurent, 87 Mass. App. Ct. 1, 4 (2015). Nothing in the record suggested that the mother had seen or even spoken to the father in the twenty-one months leading up to and during trial. Accordingly, the evidence does not support the judge's conclusion that "[i]f the children were returned to [the m]other, it is likely the parents would reengage in communication, and [the m]other would be vulnerable to further abuse from [the f]ather."

3. Housing instability and financial irresponsibility. The judge noted that in December 2021 and February 2022, the mother used department housing funds to travel to Las Vegas with the father. I agree with the judge and the majority that this "showed poor money management skills and [that she] prioritized taking a vacation over having stable housing." Ante at 8. The judge also noted that her decision to leave Massachusetts during trial "call[ed] into question her judgment and priorities to her children." Although I agree that this evidence supports the judge's finding of current unfitness, it was also clear that the mother acknowledged her financial irresponsibility, sought help to address it, and made progress in achieving that goal.

First, the mother maintained relatively steady employment throughout the pendency of this matter, despite experiencing seasonal layoffs and housing instability. Second, in early 2023, at the same time that she was ending the toxic relationship with the father, the mother engaged with a community outreach worker. He met with the mother weekly to teach her money management skills and help her fill out housing applications. With his help, the mother obtained a subsidized apartment in Providence on September 1, 2023.

Also, the mother's undisputed record of consistent and loving weekly visits with her children from 2021 through 2024 spoke to "her judgment and priorities to her children." Collectively, the mother's behavior demonstrated her ongoing commitment to improve her financial situation, maintain "adequate stable housing," and prioritize building a better life for her children. Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008).

4. Medical and psychiatric diagnoses. Finally, the majority notes that the mother struggled consistently to engage with individual therapy and to take medication prescribed to treat diagnosed medical and psychiatric conditions. But neither the majority nor the judge identified any nexus between those shortcomings and a risk of harm to the children. "Mental [illness] is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's . . . needs." Adoption of Luc, 484 Mass. 139, 146 (2020), quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). The judge made no such finding here.

Moreover, the mother made progress managing symptoms which corresponded to her diagnoses. First, in January 2023, as she was ending her toxic relationship with the father, she engaged a therapist for a few sessions. Then, after five months of searching for a new therapist, she found one in August 2023. She met with him weekly throughout the trial; by October 2024, she had consistently participated in mental health and substance abuse counselling for fourteen months. Second, at the beginning of 2023, the mother reengaged with her psychiatric nurse practitioner (NP), who prescribed medications to manage symptoms of the mother's conditions. Although the evidence supported the judge's findings that the mother struggled to manage her medication regimen, it also supported that she was making progress on that front. By the start of trial in June 2024, the psychiatric NP reported to the department that she had no concerns about the mother. In any event, as noted, the judge did not find that the mother's diagnoses "affect[ed] [her] capacity to assume parental responsibility." Adoption of Luc, 484 Mass. at 146.

Collectively, in every area of concern, the mother made "significant progress" toward parental fitness, beginning at least eighteen months before trial. Adoption of Carlos, 413 Mass. at 351. This evidence of progress "casts doubt on several of the findings central to the judge's decision." Adoption of Imelda, 72 Mass. App. Ct. at 363. Indeed, the judge's findings of likely future unfitness despite such significant progress over an eighteen-month period before trial is contrary to this court's precedent.

In Adoption of Arianne, 104 Mass. App. Ct. at 721, we held that the trial judge abused his discretion and committed an error of law in terminating a mother's parental rights based on a finding that the mother's inconsistent engagement with family action plan tasks established that her current unfitness was likely to continue indefinitely. After successfully extracting herself from a violent relationship, the mother in Adoption of Arianne participated in a domestic violence support group and individual therapy — but only for a few months at a time, and never as consistently as required by her action plan. See id. at 718-720. She became involved in another toxic relationship, but she left that situation after a single incident of domestic violence. Id. at 718. The mother in Adoption of Arianne participated inconsistently in meetings with her parenting aide, visits with her child, and appointments with her department social worker. Id. at 719. She missed the first day of her termination trial without a reasonable excuse. Id. And yet, this court held that because the mother had escaped from a violent relationship and was working toward fitness, albeit imperfectly, the trial judge's findings did not provide clear and convincing evidence that her present unfitness was likely to continue indefinitely. Id. at 722-723. The mother in this case demonstrated greater consistency in visits and compliance with her action plan tasks than the mother in Adoption of Arianne.^[3] This case is more like the illuminating case of Adoption of Carlos, 413 Mass. at 351, in which the Supreme Judicial Court affirmed the denial of a petition to terminate parental rights. Following three years in which the department had custody of the child, the court in Adoption of Carlos concluded that improvement in the mother's "critical area of parental unfitness" from June 1989 to the date of the evidentiary hearing in "early 1990" established "significant progress," and a reasonable likelihood that her unfitness at trial was only temporary when coupled with the fact that "[t]he child ha[d] been regularly visiting with his mother, and remain[ed] attached to her [and was] eager to return home." Id. at 348, 351.

Because the evidence of the mother's progress undermined the judge's ruling "that [her] unfitness is likely to continue into the indefinite future to a near certitude," I cannot agree that the proof rose to a level justifying the "extreme step" of terminating the mother's parental rights (citation omitted). Adoption of Ilona, 459 Mass. 53, 59 (2011). It was not strong, positive, full, clear or decisive, Adoption of Iris, 43 Mass. App. Ct. at 105; accordingly, I respectfully dissent.

[1] Adoption of Alison. The children's names are pseudonyms.

[2] The father is not a party to this appeal, as he stipulated to the termination of his parental rights and entered into an open adoption agreement for both children in 2023.

[3] The dissent compares the facts in the present case to those in Adoption of Arianne, 104 Mass. App. Ct. 716 (2024), and sees this case as more favorable to the mother. We do not see it that way. The mother in Adoption of Arianne, id. at 717, had successfully parented her child for the first two and one-half years of the child's life before voluntarily placing her in the care of the child's godmother (who was also a relative of the mother) for about ten months. Shortly after the child was returned, the mother again placed her with the relative, because the mother was in a violent relationship from which she sought to shield the child. Id. In vacating the decree terminating the mother's parental rights, we said, "[t]he fundamental problem with the judge's decision is that the judge treated the mother's placing the child in the care of the godmother as neglect." Id. at 721. We concluded that it was "not neglect for a parent who recognizes that she cannot provide her child with a safe or appropriate environment to place the child with appropriate caregivers"; instead, that was "the mark of a responsible parent." Id. We emphasized that a "single instance of domestic violence while the child lived with the mother, where the mother's response protected the child from further exposure to domestic violence, does not demonstrate that the mother's current unfitness is likely to last indefinitely." Id. at 723. No such facts were present here, where the mother's parenting challenges, including a toxic domestic relationship, persisted for years; she did not extricate the children; and, at the time of trial, she continued to exhibit concerning behaviors related to drug and alcohol use, truthfulness with the department, and accountability for her actions.

[1] The mother obtained multiple extensions of the order, and the father was arrested and charged with violating that order in November 2023.

[2] To the extent that the majority and the judge relied on the mother's choice to view the father's public social media posts after she had obtained a restraining order as evidence of unfitness, I disagree. Again, the mother's termination of her relationship with the father and the absence of evidence of contact with him after January 2023 rendered that relationship irrelevant to the mother's fitness by the June 2024 trial date.

[3] The majority distinguishes Adoption of Arianne, 104 Mass. App. Ct. at 722-723, by focusing on the judge's error in that case of construing the mother's decision to leave the child with a godparent as neglect. But the majority does not discuss the evidence in that case which we acknowledged supported a finding of unfitness at trial, notwithstanding the judge's error, or compare that evidence to the evidence of the mother's unfitness in this case. See ante at note 3.

After placing the child with her godmother, the mother in Adoption of Arianne experienced at least two incidents of domestic violence with one partner and then a third with a subsequent partner. See id. at 718. More importantly, after trial, the judge found that the mother still lacked insight into the "impact that [domestic] violence could have on [the child] outside of the physical removal from her mother's custody that occurred as a result." Id. at 718-719. Furthermore, the mother missed about one-quarter of her scheduled visits with her child, and the first day of the termination trial because she "forgot about it." Id. at 719 & n.9. We concluded that these inconsistencies, as well as "[t]he mother's inconsistency with completing action plan tasks, . . . established the mother's unfitness to parent the child as of the time of trial because it demonstrated a lack of focus on parenting the child." Id. at 722. Comparatively, by the time of trial in this case, the mother here had a stronger, albeit still imperfect, "focus on parenting the child." Id. Just as we recognized the absence of clear and convincing evidence in Adoption of Arianne that the mother lacked capacity to achieve fitness, I think we should recognize the absence of clear and convincing evidence here."

NY CHILD WELFARE - NEWBORN TEMPORARILY PLACED WITH GRANDMOTHER

In this case, we have a newborn, an at-risk mother but with a credible grandmother. thus, the court feels that the risk is mitigated by supervision, and the child is temporarily placed with family, not removed.... noting of course that this is all temporary before trial.

MATTER OF KENDREW T., 2026 NY Slip Op 51004 - Kings Co. Family Court 2026:

"This neglect petition, which was filed by the Administration for Children's Services ("ACS" or "Petitioner") against the Respondent mother, Ms. Malaysia T, on June 5, 2026 alleges that Ms. Malaysia T. neglected her newborn son Kendrew by misusing drugs, specifically marijuana and cocaine, and not having been in a drug treatment program. Ms. Malaysia T. acknowledged smoking marijuana regularly while pregnant and believes it may have been laced with cocaine, leading to Kendrew's positive toxicology at birth. The ACS caseworker referred the mother for intake at a drug treatment program, as well as random screens, for Ms. Malaysia T. to engage in after she was released from the hospital but she failed to attend in the two months prior to the filing of the petition. Additionally, the petition alleges that Ms. Malaysia T. has a history of "multiple mental health diagnoses, including PTSD, ADHD, Borderline Personality Disorder, anxiety and depression" for which she has been hospitalized and had not received any treatment in at least 1 to 2 years. The ACS caseworker referred her for an evaluation at Kings County Hospital, where she gave birth, but the mother did not attend.

The subject child, Kendrew was born on XX/XX/2026, extremely premature at 26 weeks and he weighed only 1 pound 4 ounces at birth. At that time, Kendrew tested positive for cocaine and had a brain bleed, which the doctor's determined was unrelated to the presence of drugs in his system. As a result of his condition, Kendrew was placed in the NICU and it was initially unclear if he would survive, or if he would need months of hospitalization before he was ready for release. Contrary to expectations, Kendrew recovered much sooner, gained weight consistently and the brain bleed was resolved. During Kendrew's first month of life his mother, Malaysia, who is only 18, and his grandmother, Ms. Tanya T. visited him almost daily. Those visits were less frequent though still consistent, at least by the grandmother, during the infant's second month in the NICU.

Once Kendrew was ready for discharge, ACS filed this petition and requested a removal, opposing release to his mother, and also objected to placing the infant with his maternal grandmother which had been the family's plan. The basis for this objection was prior ACS involvement and an indicated case against the grandmother from 2023 and before for lack of supervision and guardianship over Malaysia due to her failure to attend school regularly and engage in mental health treatment, as well as an allegation that Tanya T, along with Malaysia, smelled of marijuana when they came to visit Kendrew in the hospital. The Respondent mother opposed the request not to release Kendrew to her care or that of her mother, and requested a hearing pursuant to FCA 1027. This Court ordered that Kendrew remain in the NICU, where his mother and grandmother could continue to visit him daily, pending the outcome of this hearing.

ACS called Caseworker Dorman as a witness and introduced various exhibits. The Respondent mother called her mother, Tanya T, as a witness and introduced exhibits, including scholarly articles. The Attorney for the Child ("AFC") did not introduce any evidence and, on summation, opposed a release to the mother but argued in support of a temporary direct placement with the maternal grandmother where the mother would be allowed to remain living in the home with a "no leave alone" order.

DECISION

The Court of Appeals in Nicholson has mandated that, in FCA 1027 hearings, Family Courts "weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by other means, such as issuing a temporary order of protection or providing services to the victim." Nicholson v. Scoppetta, 3 NY3d 357, 378-79 [2004].

This Court agrees with both ACS and the AFC that the infant would be at imminent risk of harm if released to his mother's care. Kendrew is still extremely vulnerable at only 4 pounds and this young first time mother would need support for his care under the best of circumstances. However, it is clear from the evidence that Malaysia has a long history of mental health issues going back to her early childhood, and more recently, a history of substance abuse in the form of very frequent marijuana use and on at least one instance, cocaine. However, Malaysia has stated that she is now willing to engage in treatment, and it is often the case that the reality of motherhood is a significant motivator in obtaining sobriety. When considering a child's safety and wellbeing, the Court must look not only to the present, but to the future as well. If there is an option that keeps Kendrew safe but also allows his mother to have daily contact with him and provides her with hope and incentive to believe she can regain responsibility for his care, this would clearly be in Kendrew's best interest.

The importance of the infant-mother bond on a child of this age cannot be understated. Studies have shown that interruption in this bonding process can have a life-long impact on a child's well-being that cannot be remedied.^[1] In writing about the "Developmental Issues for Young Children in Foster Care," the American Academy of Pediatrics stated, "Paramount in the lives of these children is their need for continuity with their primary attachment figures and a sense of permanence that is enhanced when placement is stable. There are critical periods of interaction among physical, psychological, social, and environmental factors. Basic stimulation techniques and stable, predictable nurturance are necessary during these periods to enable optimal cognitive, language, and personal socialization skills." Respondent's Exhibit C in evidence, Pediatrics Vol. 106 No. 5 November 2000, p. 1145-6.

Ms. Tanya T. had planned to be her grandson's primary caretaker from before his birth. She has maintained a stable 3-bedroom home which is lived in by her daughter as well as her older adult son who is caring for his teenage daughter. ACS found no safety concerns with the manner in which the home was kept. Since the landlord decided to sell the building, Ms. Tanya T. has already secured a new 3-bedroom apartment in the same neighborhood and she is moving into it this week. This should allow a seamless transition to the new home and there is no reason to believe that this new apartment will not be similarly safe for Kendrew. Ms. Tanya T. has already bought baby supplies and everything that is needed for Kendrew to come to her home including a car seat.

The prior ACS cases involving Ms. Tanya T. as a parent never reached the stage of a filing or any finding of neglect and they occurred when Malaysia was a teenager. This Court is well aware of the challenges faced by any parent of a teen who has a mental health diagnosis but does not wish to engage in mental health treatment or take prescribed medication. Regular school attendance, which is very difficult to obtain with any teen who is resistant, is made even more so when that teen has an untreated mental health condition. ACS has these same challenges with the many teens who are in the agency's care. Unfortunately, this situation remained true up to Kendrew's birth, as Malaysia continued to not engage in treatment after her 18th birthday last year. Neither Malaysia's mother nor the efforts of ACS changed that, and even this Court does not have the power to force Malaysia to obtain the help she clearly needs for both her mental health and substance abuse. The Court can only hope that the birth of her son has in fact motivated that change. Therefore, this prior ACS involvement does not, in the Court's opinion, render Tanya T. an unsafe or inappropriate caretaker for her infant grandson.

As for the allegations of potential marijuana use by Tanya T. herself, the Court finds these to be vague and unsubstantiated. ACS did not call any witness from the hospital who had allegedly "smelled" marijuana coming from the grandmother. Therefore, it is asking the Court to exclude this infant's maternal grandmother as a resource simply on the basis of a claim that is documented in the ACS record from an unnamed source. Specifically, the ACS case record in evidence contains three hearsay references to this allegation. The first, dated April 23rd, states that the Kings County hospital ("KCH") social worker informed the Caseworker Dorman that "she has received reports from nurses that the mother and MGM has [sic] been to visit smelling of marijuana and on one occasion the mother appeared high and could not even hold herself up." The second entry from June 1st states that a Dr. Lahage stated that "the mother and MGM come in [sic] smelling of marijuana and the mother had to be put out of the NICU one time." The last mention of this allegation is that, on May 7th, "CPS obtained collateral from KCH nurse who stated that there was report of the mother visiting the baby and noted to be smelling of marijuana and high on something where she could barely stay up. The nurse also noted that MGM also reeked of marijuana smell." Petitioner's Exhibit 3 in evidence, pp. 50, 60, & 62. Several aspects of these entries are notable and diminish the weight this Court will give them. First, they are all very similar in language and could well have all come from one nurse on one date, especially in regard to the alleged marijuana scent from the maternal grandmother. It is impossible to tell because the caseworker did not obtain the dates of these observations or the name(s) of the person(s) who made them; nor did Ms. Dorman speak to that person directly. Additionally, there is nothing in the record as to whether Ms. Tanya T. was asked about the alleged smell or her marijuana use and what if any response she gave. Further, unlike Ms. Malaysia T. who is observed to be high and unable to hold herself up, there is no such allegation as to Ms. Tanya T.

During her testimony, Caseworker Dorman acknowledged that Ms. Tanya T. had denied any marijuana use when asked and that she had never observed the grandmother to appear under the influence of any substance or smelled marijuana on her. The caseworker testified that she did not smell any marijuana in the apartment when she made a home visit on April 7th and confirmed the presence of all the provisions for Kendrew. She acknowledged that the smell of marijuana is present in the hallways of apartment buildings, including the grandmother's, and outside on the streets of NYC. In fact, this Court has experienced that, since marijuana has been legalized in New York State, people have even come to court on occasion smelling of marijuana. At those times, when the smell of marijuana fills the courtroom, this Court cannot tell which of the several people in the courtroom is responsible. While marijuana is legal and Ms. Tanya T. should not be faulted for its use any more than a person who drinks alcohol, it would indicate poor judgment and be of concern to the Court if a resource used either substance on the day one is visiting a premature and vulnerable baby in the NICU (or coming to court) to the extent where they have a scent of alcohol or marijuana. However, without the opportunity to hear directly from the person who allegedly sensed that smell on Ms. Tanya T. specifically and have her testimony be examined by other counsel, this Court cannot credit this as a basis to believe that Ms. Tanya T. used marijuana. It is also quite possible that the frequency of Malaysia's marijuana use has led to her having the scent of marijuana and that this smell transferred to the grandmother through close and extended physical contact.

The Court has had the opportunity to hear from Ms. Tanya T. directly as she testified credibly in this hearing. Ms. Tanya T. stated that she does NOT smoke marijuana and definitely did not smoke it on a day she was going to visit her grandson in the hospital. However, she was willing to go for drug testing and did take a test during the course of the hearing which was negative for marijuana and any illegal substances. She also expressed her concerns about her daughter's mental health and substance use over the years and her inability to get her daughter to engage in help. While she acknowledged some issues in the past with Malaysia's behavior such that the grandmother had called the police, the most recent being in March of 2025, Ms. Tanya T. expressed that her recent behavior, especially since Kendrew's birth had not been an issue in the home, and that she did not believe there would be any safety concern to allowing her daughter to remain living with them. She explained that she would have Kendrew sleep in the same bedroom as her own and would follow any order, including not to allow her daughter to be alone with Kendrew. Ms. Tanya T. also stated definitively that she would call the police again if needed to keep her grandson with her.

Although ACS has raised concerns about the grandmother's ability or willingness to enforce court orders that might require her to tell her daughter to leave the home or call the police, their counsel was not able to respond to the point made by the mother's attorney that clearly Ms. Tanya T. had shown her willingness to involve the authorities when needed by the prior Domestic Incident Reports ("DIR") placed in evidence where Ms. Tanya T. called the police. See Petitioner's Exhibit 5-8 in evidence, DIRs dated 2/12/20, 11/9/22, 11/23/22, 3/22/25. Ms. Tanya T. made these calls even without the incentive that would be at stake here, namely the grandmother losing the Court's trust in her ability to safely care for her grandson and risking having him removed from the home. Additionally, Ms. Tanya T's adult son, Mr. P, would also be living in the home and stated he would assist his mother and similarly was not concerned about his sister's current behavior being disruptive. See Petitioner's Exhibit 4 in evidence, ACS Court Report dated 6/9/26. His daughter is currently a subject of ACS intervention as there is a pending neglect case against her mother and the child has been released to her father, Mr. Parker. Thus, there is added adult supervision in the home as well as added ACS oversight.

As required by the Court of Appeals in Nicholson, this Court has balanced the risk of harm from removal against the risk of harm for Kendrew being in the care of his grandmother with his mother in the home, and this Court has found that the harm of removal of this newborn from family during this critical bonding period is greater than the theoretical risk that exists in that home given the evidence here and the fact that orders can be made to mitigate the risk by requiring that Ms. Malaysia T. not be left alone with her son and that she engage in mental health and substance abuse treatment as a condition of her living in the same home.

Therefore, at this time, the Court finds that Kendrew would be at imminent risk of physical, mental and/or emotional harm if he were released to his mother but that it is in his best interests to be temporarily directly placed with the maternal grandmother, Ms. Tanya T, under the following conditions:

1. Comply with ACS supervision including allowing announced & unannounced home visits;

2. Insure the infant sleep in the same room and Tanya T. and not allow Malaysia T. to be alone with him; or

3. All contact between Malaysia T. and her son must be closely supervised and if Malaysia T. uses or appears under the influence of substances in the home, or if she is interfering with the grandmother's care of the baby, Malaysia must be told to leave and the police must be called if she does not leave voluntarily;

4. Not leave Kendrew unattended and only with caretakers approved by ACS;

5. Insure Kendrew attends any necessary medical appointments and comply with any recommendations for him;

6. Submit to random screens twice per month and test negative for all substances including marijuana;

7. Not be under the influence of any non-prescribed drugs in the presence of the subject child.

The Respondent mother must engage in outpatient mental health and substance abuse treatment in order to remain in the home with the subject child as soon as a program is available. Kendrew is ordered to remain in the hospital until the grandmother Ms. Tanya T. insures the new apartment is safe for this premature infant which will be no later than THIS Friday June 19th.

[1] Newborns "suffer significant negative effects when taken from their parents, and especially when taken from their mothers. Studies show that newborns prefer the sound of their mothers' voice over those of other females, which doctors see as evidence that the period after birth is critical for bonding. It is also now widely accepted that skin-to-skin contact between parents and their babies in the first hours of life has significant health benefits for the infant. Physical contact and proximity to their parents is therefore crucial for infants." Respondent's Exhibit D in evidence, Shanta Trivedi, The Harm of Child Removal, NYU Review of Law and Social Change, Vol. 43:523, p. 529 [2019]. Separations as brief as a week have been shown to negatively impact the mother-child relationship. Kimberly Howard, et. al., Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families, Attach Hum Dev. 2011 January; 13(1), 1. "Short-term disruptions can result in negative socio-emotional outcomes such as aggression and negativity." Id. at, 10. In short, disruptions in the mother-child relationship can have many negative consequences for a child, some of which can last to adulthood and the "physical accessibility" of the mother has significant implications for positive child development. Id. at 13. See also Mokhtar Malekpour, Effects of Attachment on Early and Later Development, The British Journal of Development Disabilities, Vol. 53, Part 2, July 2007, No. 105, pp. 81-95; William Wan, What Separation from Parents does to Children: "The effect is catastrophic," Washington Post (July 18, 2018)."

NY CHILD CUSTODY - JOINT LEGAL CUSTODY ISSUES

SCOLAVINO v. SCOLAVINO, 247 AD 3d 1078 - NY: Appellate Div., 2nd Dept. 2026:

"In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated October 15, 2024. The order, insofar as appealed from, granted those branches of the defendant's motion which were for declarations that a so-ordered stipulation of settlement dated July 8, 2024, required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning their children and that such major decisions included matters beyond the children's health, education, and religion.

Ordered that the order is affirmed insofar as appealed from, with costs.

In June 2023, the plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a so-ordered stipulation of settlement dated July 8, 2024, which included, inter alia, terms relating to custody and parental access of the parties' two children. The stipulation provided, among other things, that "[t]he parties in this matter will have joint legal custody of the two minor children," that "[t]he parties are going to utilize ... a parent coordinator solely for major decisions of health, education and religion," and that the parties would "be guided by the recommendation of the [parent coordinator] in making major decisions," with the party whose position the parent coordinator supported being permitted to implement that decision, subject to the other party's right to seek a stay from a court of competent jurisdiction. The stipulation further provided that the plaintiff would have primary residential custody of the children, subject to the defendant's parental access schedule, and that each party would be entitled to make the day-to-day decisions for the children while they were in his or her care.

In September 2024, the defendant moved for declarations, among other things, that the stipulation (1) required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children, and (2) defined major decisions to include not only matters of the children's health, education, and religion, but also decisions relating to dental, therapeutic, and psychiatric treatment, extracurricular activities, summer camp and summer programs, day care and day care facilities, and tutoring. The plaintiff opposed the motion. In an order dated October 15, 2024, the Supreme Court, 1079*1079 inter alia, granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion. The plaintiff appeals.

"A stipulation of settlement is a contract subject to the principles of contract construction and interpretation" (Sabau v Sabau, 222 AD3d 1017, 1019 [2023]). "A court should interpret the stipulation in accordance with its plain and ordinary meaning, and `arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized'" (id., quoting Matter of Schiano v Hirsch, 22 AD3d 502, 502 [2005]). "`Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'" (Herman v Herman, 220 AD3d 849, 850 [2023], quoting Oakes v Oakes, 38 AD3d 865, 865 [2007]). "Joint custody reposes in both parents a shared responsibility for and control of a child's upbringing" and thus requires "the parties ... to communicate and cooperate on matters concerning the child" (Matter of Lee v Fitts, 147 AD3d 1058, 1059 [2017] [internal quotation marks omitted]).

Here, the stipulation, as placed on the record in open court, is clear and unambiguous (see Herman v Herman, 220 AD3d at 850). Read as a whole, the stipulation reflects the parties' agreement to share joint legal custody of the children and, consistent with the ordinary meaning of that term, to consult in good faith and attempt to jointly resolve all major decisions concerning the children, while specifically carving out a subset of such decisions—those relating to health, education, and religion— for nonjudicial dispute resolution through the parent coordinator (see Matter of Lee v Fitts, 147 AD3d at 1059). Issues such as dental care, summer camp, summer programs, day care, therapy, psychiatric care, and extracurricular activities fall within the umbrella of the categories in the stipulation for which nonjudicial dispute resolution applies.

Accordingly, the Supreme Court properly granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and jointly resolve all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion."

NY CHILD CUSTODY - AFC RIGHT TO APPEAL

Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, (May 21, 2026 NY Court of Appeals):

"The question of whether an attorney for the child (AFC) has the authority to appeal a custody determination made pursuant to Family Court Act article 6 has divided the Appellate Division. We hold that under the plain language of the Family Court Act, an AFC has the authority to appeal a custody determination when the subject child is aggrieved. We therefore reverse the Appellate Division order dismissing the appeal and remit for further consideration.

In proceedings pursuant to article 6 of the Family Court Act, the child may be represented by an attorney appointed at the court's discretion (see Family Ct Act § 249 [a]). The AFC must zealously represent the child's interests, including by advocating for the child's wishes in Family Court (see 22 NYCRR 7.2 [d] [1]-[3]). When an AFC has been appointed by Family Court, their appointment continues without further action by that court when either "the attorney [*2]on behalf of the child files a notice of appeal, or . . . a party to the original proceeding files a notice of appeal" (Family Ct Act § 1120 [b]).

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC's authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly "recognizes that an [AFC] has the right to pursue an appeal on behalf of the child" because it permits the AFC to file a notice of appeal (Matter of Newton v McFarlane, 174 AD3d 67, 72-73 [2d Dept 2019]). The First and Third Departments have adopted the Second Department's reasoning (see Matter of Kylie P. [Carlos P.—Karen G.], 213 AD3d 463, 463 [1st Dept 2023]; Matter of Amber B. v Scott C., 207 AD3d 847, 848 n 1 [3d Dept 2022]). The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child's appeal, reasoning that a "child in a custody matter does not have 'full-party status' " and therefore cannot force their parent to " 'litigate a petition that [they] ha[ve] since abandoned' " (Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017], quoting Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], and Matter of Kessler v Fancher, 112 AD3d 1323, 1324 [4th Dept 2013]; cf. Matter of Muriel v Muriel, 228 AD3d 1345, 1346-1347 [4th Dept 2024] [reaching the merits of an AFC's appeal because the mother had attempted to file her own appeal and supported the AFC's appellate arguments]).

This appeal concerns a Family Court proceeding involving mother, father, and their four children. Mother and father had an agreed-upon custody order providing that the children lived primarily with mother. Father petitioned to modify the custody order, and mother opposed in a competing petition. The attorney appointed to represent the four children opposed father's petition and advocated that the children wished to continue living primarily with mother. Family Court issued an order determining that modification was warranted and awarding the parents joint custody "with designated zones of influence" and shared residency. The AFC noticed an appeal from Family Court's order. Although mother did not file her own appeal, she appears to have filed a letter with the Appellate Division supporting the children's appeal. Father did not appear in connection with the appeal. The Appellate Division dismissed the appeal, following Fourth Department precedent holding that children in custody matters cannot appeal independent of [*3]the parent-parties (see 235 AD3d 1251, 1251 [4th Dept 2025], citing Lawrence, 151 AD3d at 1879). We granted the AFC leave to appeal to this Court (see 44 NY3d 902 [2025]).

We hold that the Family Court Act authorizes an AFC to appeal on behalf of their client. Family Court Act § 1120 (b) provides that the AFC's appointment continues when "the attorney on behalf of the child files a notice of appeal." In turn, section 1115 provides that an appeal is taken by filing a notice of appeal, which begins the appellate process (see Family Ct Act § 1115). Reading these two sections in harmony, the Family Court Act clearly authorizes an AFC to appeal a Family Court decision on behalf of their client (cf. Matter of Marian T. [Lauren R.], 36 NY3d 44, 49 [2020], quoting Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017] [when " 'statutory language . . . is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible' "]). To hold otherwise would render section 1120 (b)'s relevant language without practical effect.

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR's aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an "aggrieved party" may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency.

We hold only that an AFC is authorized to appeal a custody determination on behalf of an aggrieved child. We have no occasion to address how a parent's participation or failure to participate in an appeal may bear on other issues raised on such an appeal.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for consideration of the facts and issues raised but not determined on appeal to that Court.

Order reversed, without costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.

Decided May 21, 2026"

NY - ASSIGNED CHILD WELFARE LAWYER MUST BE EFFECTIVE COUNSEL

And of course, the rule is the same in Massachusetts. See Commonwealth v. Badgett, Mass: Appeals Court 2025an appointed attorney's racist beliefs, as evidenced by his social media posts, presented an actual conflict of interest in his representation of Mr. Badgett (who is Black) in the absence of any outward manifestation of bias in his treatment of Mr. Badgett. 

MATTER OF PARKER J., 2025 NY Slip Op 6533 - NY: Court of Appeals 2025:

"TROUTMAN, J.

This case presents the issue of whether assigned counsel was ineffective when counsel did not speak with a parent before a Family Court hearing to terminate the parent's parental rights. Counsel advised the court that he had not spoken with his client before the hearing began and that he would therefore remain silent. The court informed him that he would have to proceed regardless; counsel did not seek an adjournment in which to speak with the parent until the fact-finding hearing had already begun. We conclude that the parent was deprived of the right to the effective assistance of counsel to which she was entitled.

I.

In 2022, the Onondaga County Department of Child and Family Services (DCFS) commenced this proceeding to terminate the parental rights of respondent, the mother of twins born in 2020. DCFS also named the children's father as a respondent^[1]. The children were removed from the mother's care when they were approximately six months old.

At the first appearance on December 1, 2022, counsel for DCFS reported that it had been unable to serve the mother with the petition, and substitute service was ordered. The next day, Family Court assigned counsel to the mother. At the next court appearance, the mother's counsel was unable to be present, and the mother did not appear. However, the mother's DCFS caseworker had spoken to the mother and relayed that the mother was amenable to surrendering her parental rights. Because substitute service was accomplished, and the mother did not appear, the court then initially found the mother in default. A hearing was thereafter scheduled for February 15, 2023.

On that date, the mother appeared remotely from the alcohol treatment facility in which she was enrolled, and her counsel appeared in person. At the beginning of the hearing, the court asked the parties, "what are we doing today?" because "there was talk that [the mother] was willing to surrender." Counsel for DCFS described the surrender agreement offer to the mother, and the mother's counsel stated that he had not discussed surrender with the mother. After the court asked the mother directly, the mother stated that she would not surrender her parental rights. The court then took a brief recess for the father's counsel to contact the father, who was absent, during which the court told the mother's counsel that he could call her to discuss "the possibility of a surrender." It is unclear whether the mother spoke with counsel during this recess.

When the hearing reconvened, the mother's counsel informed the court that "this is the first time I've actually even had a chance to speak to my client, so I'm going to remain mute during this hearing." The court informed counsel that he could not remain silent because the mother was present, and therefore counsel had to participate. Once counsel had been told he must participate, counsel asked if anyone "ha[d] those records that were subpoenaed." Counsel did not request an adjournment to speak with the mother or review the subpoenaed records on which DCFS would rely during the hearing. Additionally, the father's counsel asked for an adjournment because the father was not present at the proceeding, and the mother's counsel did not join in that request, which was denied.

The mother's DCFS caseworker then began her direct testimony. After the caseworker had been testifying for some time, the mother's counsel objected that he was unable to speak with the mother during the caseworker's testimony because she was appearing virtually, unlike the father's counsel, who could discuss the case with the father while he was present in court. The court granted counsel a five-minute recess for counsel to speak with the mother on the phone. When the proceeding recommenced, the mother asked to represent herself. After a waiver colloquy, the court granted that request, but instructed the mother's counsel to remain as standby counsel and advised the mother to "let [the court] know" if she changed her mind.

Family Court determined that the mother had permanently neglected the children and proceeded to a dispositional hearing on the same date^[2] . After the agency's direct examination of the DCFS caseworker, the court informed the mother that they were "at the dispositional phase of this trial, so you can ask [the caseworker] any questions in that regard." The mother responded that she was "not sure what dispositional means" and declined to cross-examine the caseworker. Later in the dispositional hearing, the court informed the mother that she had the opportunity to testify. The mother responded that she did not "understand any of this, so I don't know what I'm supposed to say and not supposed to say." During the following exchange, the mother asked if she could be represented. The court stated: "You may not at this point," and then proceeded to allow the mother's counsel, who was present in the courtroom, to elicit her testimony with direct questions. When mother's standby counsel asked for "a minute" with the mother "without the presence of the other parties," the court denied the request. Counsel made the request again to speak with the mother, raising his concern that the mother stated she did not understand what a dispositional hearing is. The court then granted counsel five minutes to speak with the mother on the phone. After the dispositional hearing, the court determined that it would be in the best interest of the children for the mother's parental rights to be terminated so that the children could be adopted by their foster family, with whom they had been living for some time.

On appeal, the Appellate Division affirmed (232 AD3d 1244 [4th Dept 2024]). The Appellate Division rejected the mother's contentions that she received ineffective assistance of counsel and that she did not knowingly, voluntarily, and intelligently waive her right to counsel (see id. at 1244). This Court thereafter granted the mother leave to appeal (43 NY3d 984 [2025]). We now reverse because the mother was not afforded the effective assistance of counsel.

II.

A.

"A parent's right to the custody and care of their child is `perhaps the oldest of the fundamental liberty interests' protected by the Constitution" (Matter of K.Y.Z., ___ NY3d ___, 2025 NY Slip Op 05781, *1 [Oct. 21, 2025], quoting Troxel v. Granville, 530 US 57, 65 [2000]). "Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity" (Matter of Marie B., 62 NY2d 352, 358 [1984]). It is therefore "well-settled that parents have a fundamental right to custody of their children" (S.L. v. J.R., 27 NY3d 558, 562 [2016]).

This Court has long recognized that the fundamental nature of this right requires an indigent parent to be assigned counsel if the state seeks to terminate that right. "A parent's concern for the liberty of the child, as well as for [the child's] care and control, involves too fundamental an interest and right . . . to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer" (Matter of Ella B., 30 NY2d 352, 356 [1972]). "To deny legal assistance under such circumstances would . . . constitute a violation of [the parent's] due process rights" (id. at 356-357). This constitutional right to assigned counsel in proceedings to terminate parental rights was codified 50 years ago (see Family Court Act §§ 261, 262).

Despite the longstanding nature of the right to assigned counsel in such proceedings, we have never considered whether the right to assigned counsel in family court proceedings necessarily encompasses the right to effective assistance of counsel. The Appellate Division, however, has determined that "because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings" (Matter of Brown v. Gandy, 125 AD3d 1389, 1390 [4th Dept 2015] [internal quotation marks omitted]; see e.g. Matter of Adam M.M., 179 AD3d 801, 802 [2d Dept 2020]; Matter of Matthew C., 227 AD2d 679, 682 [3d Dept 1996]; see also Matter of Bryant Angel Malik J., 76 AD3d 936, 937 [1st Dept 2010]).

We agree with the Appellate Division—as do all parties to this appeal—that the right to assigned counsel in proceedings to terminate parental rights necessarily encompasses the right to effective assistance of counsel. The fundamental right of parents to the companionship, care, and custody of their children is too precious a right to sever without the meaningful assistance of counsel (cf. Santosky v. Kramer, 455 US 745, 758-759 [1982]). "[W]hether the proceeding be labelled civil or criminal, it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel" (Ella B., 30 NY2d at 357 [internal quotation marks omitted]).

B.

Although an attorney's representation of a parent in Family Court differs in many ways from an attorney's representation of a criminal defendant, we have previously relied upon analogous criminal cases when discussing right-to-counsel issues in the Family Court context (see Matter of Kathleen K., 17 NY3d 380, 384-387 [2011]). In the criminal context, "[t]o prevail on an ineffective assistance claim, [the party bringing the claim] must demonstrate the absence of strategic or other legitimate explanations—i.e., those that would be consistent with the decisions of a reasonably competent attorney—for the alleged deficiencies of counsel" (People v. Maffei, 35 NY3d 264, 269 [2020] [internal quotation marks omitted]; see also People v. Benevento, 91 NY2d 708, 712 [1998]). Additionally, "a court must examine whether counsel's acts or omissions prejudice[d] the defense or defendant's right to a fair trial" (Benevento, 91 NY2d at 713-714 [internal quotation marks omitted]). "While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (id. at 714). Under our state standard, a litigant need not satisfy the prejudice test of the federal standard, because "[o]ur focus is on the fairness of the proceeding as a whole" (People v. Stultz, 2 NY3d 277, 284 [2004]).^[3]

"Essential to any representation, and to the attorney's consideration of the best course of action on behalf of the client, is the attorney's investigation of the law, the facts, and the issues that are relevant to the case" (People v. Oliveras, 21 NY3d 339, 346 [2013]; see People v. Droz, 39 NY2d 457, 462 [1976]). In Droz, for example, we held that counsel was ineffective when he "made little or no effort to prepare the case for trial" and "did not consult with his client until two months after his appointment, and then only on the first day of the initial trial" (Droz, 39 NY2d at 462). The Appellate Division has similarly found counsel to be ineffective in Family Court cases where counsel failed to communicate with their client (see Matter of Mitchell v. Childs, 26 AD3d 685, 687 [3d Dept 2006]). And, in a case involving a determination of filiation and child support, we did not decide an issue regarding effective assistance of counsel but observed that, under the circumstances present in that case, counsel's failure to speak to his client before a hearing began was "troubling" and "should not have occurred" (Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6 [2010]).

Here, despite being assigned more than two months earlier, counsel had not spoken to the mother before the hearing to terminate her parental rights had already begun. We cannot determine based on this record why counsel and the mother did not speak prior to the fact-finding hearing, and the court did not inquire, so the reasons for that lack of communication are pure speculation. Even assuming, however, as DCFS urges us to do, that counsel attempted to contact the mother but was unsuccessful, there is no strategic or other reasonable explanation for counsel's failure to request an adjournment of the proceeding so that he could speak to his client before the fact-finding hearing began, especially when the mother indicated that she would not be surrendering her parental rights. Before the mother indicated that she would not, in fact, surrender her parental rights, counsel could have legitimately thought that the fact-finding hearing would not go forward. However, once it was clear that the hearing was about to commence, counsel should have requested an adjournment to speak to his client about the proceeding and its implications. Counsel's failure to do so lacks a strategic or legitimate explanation.

Counsel also appeared unprepared, questioning whether the records that were subpoenaed were available to be reviewed and announcing that he would remain silent during the hearing, only to be admonished by the court that he was required to participate. In addition, the court, faced with a record that showed counsel's unpreparedness to proceed due to lack of communication, continued forward with the fact-finding hearing and the dispositional hearing even after it was clear that the mother did not understand the proceedings, denied the mother's subsequent request to be represented by counsel even though the court told the mother she could change her mind about self-representation, and gave the mother's standby counsel only five minutes in which to explain the proceedings to her.

We respectfully disagree with the dissent's conclusion that counsel's request for an adjournment would have been "futile" because the court directed counsel to participate and had denied the request of the father's counsel for an adjournment (see dissenting op at 7-8). The fact that the court insisted on counsel's participation in no way relieves him of the obligation to ensure that his client understood the proceedings and to seek an adjournment, if necessary, in which to explain them to her, or to ascertain her objectives before the fact-finding hearing began. Moreover, counsel cannot be relieved of his obligation to protect his client's rights for the record simply because the court insisted on proceeding expeditiously.

In the absence of a statutory mechanism in Family Court proceedings "for determining what may have happened off the record," akin to a CPL article 440 proceeding in the criminal context, the dissent opines that parents who do not have record-based claims of ineffective assistance of counsel are left "in a sort of due process purgatory" (dissenting op at 9-10). Whether the legislature chooses to create such a mechanism in Family Court proceedings (which, as the dissent notes, would impact permanency for the children) is beyond our purview. We simply conclude that parents, like the mother here, who can establish ineffective assistance of counsel on the face of the record are entitled to a remedy.

We are conscious that our determination is based on a cold transcript, and thus we do not have the benefit of context that could bear upon our analysis, and that the mother never complained about the adequacy of her counsel on the record. Nevertheless, counsel's failure to communicate with the mother before the hearing to terminate her parental rights means that counsel necessarily failed to explain the proceedings to the mother, prepare her for testimony, and ascertain her objectives, which undoubtedly impaired her right to a fair proceeding. With so much at stake, counsel could not allow the fact-finding hearing to begin without at least requesting a brief adjournment to discuss the proceeding and its implications with his client. Under the unique circumstances of this case, we conclude that the mother was not afforded the effective assistance of counsel to which she was entitled.

III.

Attorneys who represent family members in Family Court have long been overburdened and under-resourced (see Jeh Johnson, Report from the Special Adviser on Equal Justice in the New York State Courts, 54 [2020] [available at https://www.nycourts.gov/whatsnew/pdf/SpecialAdviserEqualJusticeReport.pdf [last accessed Nov. 19, 2025]; Franklin H. Williams Judicial Commission of the New York State Courts, Report on New York City Family Courts, 3-6 [2022] [available at https://www.nycourts.gov/LegacyPDFS/IP/ethnic-fairness/pdfs/FHW%20-%20Report%20on%20the%20NYC%20Family%20Courts%20-%20Final%20Report.pdf [last accessed Nov. 19, 2025]). Intractable as these structural difficulties may seem, Family Court is not a "second-class court" (Franklin H. Williams Judicial Commission, Report on New York City Family Courts, at 4).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for a new hearing.

CANNATARO, J. (dissenting):

I agree with the majority that individuals who are facing termination of their parental rights are entitled to the effective assistance of counsel. However, any attempt to engraft the criminal standard for reviewing ineffective assistance of counsel claims onto Family Court cases without the well-established procedural safeguards that are in place in the criminal context, such as a mechanism for ascertaining what may have happened between attorney and client outside the record, is not a workable solution (see CPL article 440). In the absence of a similar procedure for evaluating ineffectiveness in termination of parental rights proceedings, the majority declares counsel's performance constitutionally deficient on the face of a murky record. Because I believe both that the recognition of a parallel right to the effective assistance of counsel requires a corresponding method for adjudicating these claims and that, in any event, the result reached by the majority here is not supported by the record in this case, I respectfully dissent.

Mother's twin daughters were born in February 2020 and were removed from her care several months later. In November 2020, mother admitted to neglecting the children due to her untreated substance abuse condition. The Onondaga County Department of Children and Family Services (DCFS) commenced this proceeding in October 2022 to terminate mother's parental rights on the ground of permanent neglect.^[1]

At the initial appearance, DCFS advised the court that it had been unable to serve mother with the petition, but "believe[d] that she may be in treatment." Family Court authorized substitute service and assigned mother new counsel, the attorney who is the subject of this ineffective assistance claim. Mother did not appear at the next court date. However, the agency advised the court that the caseworker had spoken with mother about the possibility of a surrender and that they believed mother was "willing to do that." Family Court found mother to be in default and scheduled the matter for "either a trial or a surrender."

At the commencement of the scheduled fact-finding hearing, mother appeared remotely from an inpatient treatment facility while her assigned counsel appeared in person. The court broached the subject of whether mother would be agreeing to a surrender and mother's counsel replied, "I have not had a chance to discuss that with my client." The court then asked mother if that was something she was willing to entertain, and mother responded in the negative. The court then took a brief recess, advising mother's counsel that "[i]f you'd like to step out and give your client a call and talk to her about the possibility of a surrender, I will allow you to do that."

Following the recess, Family Court indicated that it would proceed with the fact-finding hearing, stating "I realize I found [mother] in default, but I will allow everyone to participate today, because everyone's here." When the court asked if there was "[a]nything anyone . . . want[ed] to say before [they] started," mother's counsel replied, "this is the first time I've actually even had a chance to speak to my client, so I'm going to remain mute during this hearing." The court admonished counsel, "You can't do that, . . . . You're the assigned attorney, and she's here. . . . [Y]ou can't remain mute. You have to represent her. Whether she hasn't contacted you, or you haven't contacted her, you've been assigned on this case." After confirming that counsel had been assigned the previous month, the court observed "[t]hat's a lifetime in Family Court. It's been a month, and if she didn't contact you, or you didn't contact her, she has the benefit of counsel, and you need to do your job and represent her, and call her as a witness, or not. You can certainly—after the [agency's] case in chief—have a[n] opportunity to speak to her to see whether she wants to . . . testify or not. But you are also well-versed in this type of law, and you can't stay silent, because she's here. So you gotta participate." Mother's counsel then inquired, "[d]o we have those records that were subpoenaed?" In response, counsel for the agency discussed the three exhibits they would be introducing into evidence. Moments later, father's counsel "request[ed] an adjournment, just for the record" and the court denied same^[2] . Mother's counsel neither requested an adjournment nor joined in father's request.

During the agency's case-in-chief, mother's counsel made relevant objections and noted that the exhibits had not been made available to him until the Friday before the hearing. After counsel asserted that he was at a disadvantage because he could not confer with mother during the proceedings, the court granted him a five-minute recess to allow him to call mother. Immediately following the recess, mother requested to represent herself. The court conducted a thorough inquiry and mother waived her right to counsel. Mother represented herself for the remainder of the proceeding, with assigned counsel as standby counsel.^[3]

Notably, at a subsequent proceeding, Family Court expressed concern that mother was engaging in a "delay tactic" by checking out of her treatment facility after her court appearances and then checking back in again before her next scheduled trial date. The court ultimately determined that mother permanently neglected the subject children and, following a dispositional hearing terminated mother's parental rights.

The Appellate Division affirmed, finding, as relevant here, that mother received meaningful representation during the time she was represented by counsel (232 AD3d 1244 [4th Dept 2024]).

As noted above, the majority adopts the criminal standard for ineffective assistance of counsel to evaluate the claim in this case. The problem is not the legal standard itself—if an individual is entitled to constitutionally effective representation, the well-settled meaningful representation standard is the bar that must be reached. The problem is the application of that standard to the Family Court, both because the majority's one-size-fits-all approach fails to account for the unique challenges presented in the handling of Family Court cases—particularly the piecemeal fashion in which most hearings are conducted and statutory commands regarding the timing of certain hearings—and because there is no available mechanism for a postjudgment hearing to determine matters that may not appear on the record.

"The constitutional requirement of effective assistance of counsel will be satisfied when `the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" (People v. Flores, 84 NY2d 184, 187 [1994], quoting People v. Baldi, 54 NY2d 137, 147 [1981] [emphasis omitted]). "[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" (People v. Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and citations omitted]). As we have recognized, "[g]enerally, the ineffectiveness of counsel is not demonstrable on the main record but rather requires consideration of factual issues not adequately reflected on that record" (People v. Maffei, 35 NY3d 264, 269 [2020] [internal quotation marks and citation omitted]). "[A]lthough there may be some cases in which the trial record is sufficient to permit a defendant to bring an ineffective assistance of counsel claim on direct appeal, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" (id. at 269-270 [internal quotation marks and citations omitted]).

Here, in the absence of this statutory procedure, the majority evaluates mother's claim on the face of the record and concludes that mother was deprived of constitutionally adequate representation. Despite acknowledging that we do not know what transpired in the two brief conferences between mother and counsel prior to mother's request to represent herself, the majority concludes that counsel's "failure to communicate" with mother in a timely fashion "means that counsel necessarily failed to explain the proceedings to the mother, prepare her for testimony, and ascertain her objectives" (majority op at 11) and, alternatively, that even assuming counsel had tried and failed to connect with mother prior to the hearing, counsel was ineffective for failing to request an adjournment. These are conclusions reached without record support.

Although the majority purports to apply the criminal ineffective assistance of counsel standard to this case, it does not actually evaluate the circumstances in their totality, relying instead on the fact that counsel had not spoken with mother before the fact-finding hearing began, that he did not request an adjournment and that he "appeared unprepared." In this regard, the majority freely acknowledges that the reasons for the lack of communication between attorney and client "are pure speculation" (majority op at 9). However, in the process of assuming that counsel made unsuccessful attempts to contact mother prior to the hearing, the majority recognizes that the inability to consult with her prior to the hearing would not, in itself, necessarily be ineffective (see majority op at 9). As a result, the majority must ultimately conclude that the problem is really counsel's failure to request an adjournment and his apparent lack of preparation.

Since we are engaging in speculation, it is not difficult to posit a reasonable explanation for any lack of preparedness on counsel's part, particularly if he was having trouble getting in touch with mother. As noted above, prior to the fact-finding hearing Family Court had found mother in default and the agency represented that they believed mother was willing to consent to a surrender. Thus, counsel may not have requested an adjournment prior to the commencement of the fact-finding hearing because he may not have anticipated that they would be proceeding with a hearing, or at least not a plenary hearing in which mother's participation would be required. Nor is the failure to request an adjournment after it became clear the fact-finding proceeding was going forward, or to join in the adjournment request by father's attorney, impossible to explain on this record. After vacating mother's default, Family Court directed counsel to participate regardless of whether he had had an opportunity to consult with his client and denied father's counsel's request for an adjournment. Counsel could have gleaned that any request for an adjournment on his part would be futile. In addition, to the extent the majority draws the conclusion that counsel was unprepared because, once he was told he had to proceed, he questioned whether the subpoenaed records were available to be reviewed, that is yet another ambiguity in this record^[4] . Later in the proceeding, when the agency's exhibits were being introduced into evidence, counsel stated, in the course of an objection to the admissibility of the records, that he "would like the Court to realize that these exhibits were not made available to counsel until this past Friday." An eminently reasonable conclusion to be drawn from this statement is that counsel had, in fact, reviewed these records prior to the fact-finding hearing, but for whatever reason, did not have them in front of him in the courtroom.

The majority cites People v. Droz (39 NY2d 457 [1976]), as an example of a case where an unprepared attorney who failed to communicate with their client prior to trial was found ineffective (majority op at 8). But, that the effective assistance of counsel requires more than "a person with a law degree" being present in the courtroom, and necessarily incorporates a degree of preparation appropriate to the circumstances of the case, are unremarkable propositions (People v. Bennett, 29 NY2d 462, 466 [1972]; see Strickland v. Washington, 466 US 668, 690-691 [1984]). We review ineffective assistance of counsel claims under a meaningful representation standard and, as explained, the only thing that is clear from this record is that attorney and client had not had an opportunity to connect prior to the first day of the fact-finding hearing. In this vein, the attorney in Droz was not found ineffective solely due to a lack of preparation, but based on "all the omissions and errors of defense counsel," including bringing highly prejudicial information to the jury's attention and opposing the trial court's declaration of a mistrial based on that prejudicial error, due to counsel's misapprehension of the law (see 39 NY2d at 461-463). Indeed, in the criminal context, the defendant has the burden of "overcom[ing] the strong presumption that defense counsel rendered effective assistance" (People v. Ambers, 26 NY3d 313, 317 [2015]). The majority applies a contrary presumption to find mother's counsel ineffective here (compare Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 4, 6 [2010] [characterizing counsel's failure to consult with father, where counsel admitted the "file fell through the cracks," as "troubling"]).

Putting aside any disagreement as to the application of the meaningful representation standard in this case, the absence of a mechanism for determining what may have happened off the record leaves parents in termination proceedings, who are statutorily and constitutionally entitled to the effective assistance of counsel, in a sort of due process purgatory. As in the criminal context, presumably a significant portion of ineffective assistance claims will not be suitable for adjudication on a cold record. Consequently, although the majority deems counsel to have been ineffective under the circumstances presented here, any parent who does not have a record-based claim will be left without a remedy. The legislature should address this inequity in a manner that accommodates both the parents' right to effective assistance of counsel and the priority of permanency for the children.^[5]

Order reversed, without costs, and matter remitted to Family Court, Onondaga County, for a new hearing.

[1] The father subsequently surrendered his parental rights, and he is not a party to this appeal.

[2] At the previous appearance, the court informed the parties that it would reserve decision on the permanent neglect finding until the next appearance, during which the dispositional hearing would also occur.

[3] Although our dissenting colleagues disagree that we should apply this standard to Family Court proceedings, they offer no alternative standard that, in their view, would be better suited.

[1] Mother has not visited with the subject children since May 2022.

[2] As noted in the majority opinion, father ultimately agreed to a surrender of his parental rights. His rights are not at issue on this appeal.

[3] Between appearances at the ongoing fact-finding hearing, counsel continued to communicate with mother and negotiated with the agency for more favorable terms on a potential surrender. In addition, mother permitted now-standby counsel to conduct a direct examination of her and give a brief closing statement at the dispositional hearing. At the close of the termination proceeding, Family Court thanked counsel "for all you've done in this matter."

[4] The majority does not disturb the Appellate Division's conclusion that mother made a valid waiver of the right to counsel (see 232 AD3d at 1244). Nonetheless, the majority references both the court's conduct and mother's apparent lack of understanding of the proceedings following that valid waiver in its discussion of counsel's alleged lack of preparation (see majority opinion at 9-10). Needless to say, these circumstances, occurring after counsel was relieved of his representation, have nothing to do with whether counsel rendered ineffective assistance.

[5] Before the procedures of CPL article 440 were enacted to address claims of ineffective assistance of counsel in the criminal context, there existed the ancient writ of error coram nobis whereby a defendant could seek judicial redress of claims not evident on the face of the record (see e.g. People v. Andrews, 23 NY3d 605, 610-611 [2014]). I do not suggest that the majority should take this opportunity to declare a new writ of error coram nobis for Family Court cases in the absence of a legislative solution—quite the contrary—but even that precipitous "solution" would put more safeguards in place than the procedural void that the majority leaves in its wake today.