Background
The Department of Children and Families (DCF) filed a care and protection petition in April 2021 involving a mother’s two young children, alleging neglect. DCF received immediate temporary custody, and the children were placed with their paternal grandparents, who later became their preadoptive parents. The mother, who had been diagnosed with multiple mental health conditions and had a history of self-harm and substance abuse, sporadically engaged with DCF action plans that outlined steps she needed to take — mental health treatment, substance use services, parenting support — to address the concerns that had led to removal. The father separately stipulated to his own unfitness before trial and was not a party to the appeal.
About five months before trial was set to begin, the Juvenile Court judge issued a pretrial order requiring each party to designate expert witnesses in a pretrial memorandum, with the expert’s curriculum vitae and a description of the issues on which the expert would testify. The order explicitly warned that failure to comply could result in evidentiary restrictions. The mother’s counsel filed a pretrial memorandum that designated DCF’s parenting capacity evaluator as a fact witness — not as an expert — and listed the evaluator’s report as a proposed exhibit. Thirteen days before trial, counsel filed a notice of intent to call the evaluator as an expert on bonding, parenting, and parental capacity. DCF moved to exclude, arguing non-compliance with the pretrial order. Replacement counsel (the original attorney had withdrawn for health reasons) had been given ample time to comply with the order but did not do so. Before the judge ruled on the motion in limine, trial commenced. After DCF’s case-in-chief, the judge allowed DCF’s motion and excluded the evaluator’s testimony. Counsel made no offer of proof as to what the evaluator would have said. The results of the parenting capacity evaluation that did appear in the record suggested the evaluator would not have been a favorable witness for the mother.
The judge found the mother unfit, terminated her parental rights, approved DCF’s plan for adoption by the paternal grandparents, and ordered posttermination and postadoption contact. In his written findings, the judge pointed to the constellation of factors supporting termination: the mother’s substance use, her mental health struggles, her inability to maintain stable housing, employment, or relationships, and the children’s strong bond with their preadoptive grandparents. The mother appealed, raising three arguments: that the exclusion of the expert was an abuse of discretion, that the judge improperly considered her noncompliance with DCF action plans, and that a comment the judge made during trial revealed bias against her based on poverty and homelessness.
The Court’s Holding
The Appeals Court (Rubin, Massing & Toone, JJ.) affirmed the decrees of termination on all three grounds.
On the expert exclusion, the court held there was no abuse of discretion. The decision to exclude expert testimony is within the trial judge’s broad discretion and will not be disturbed absent a showing of prejudicial error. Here, the mother’s counsel had failed to comply with a clearly worded pretrial order, and — critically — made no offer of proof at trial as to what the evaluator’s testimony would have contained. Without an offer of proof, the appellate court cannot evaluate whether the exclusion was prejudicial. The court noted that the scattered references to the evaluator’s work in the record suggested her testimony might have been harmful rather than helpful to the mother: the parenting capacity evaluation indicated the mother was not ready to parent and needed to address multiple issues. The court observed that compliance with pretrial expert disclosure requirements is “particularly important” in termination cases where expert evidence can be the central feature of the proceeding.
On the unfitness finding, the court concluded that the mother’s argument was, at bottom, a “reasonable efforts” challenge — a claim under G. L. c. 119, § 29C that DCF had failed to make reasonable efforts to accommodate her particular needs for trauma-informed care. That specific claim had never been raised at trial, and a parent who fails to raise an inadequate-services challenge below waives it on appeal, because DCF has no opportunity to respond. Regardless, the court held that even if evidence of DCF action plan noncompliance were set aside entirely, the remaining uncontested findings — substance use, mental health difficulties, housing instability, and the children’s strong attachment to their preadoptive grandparents — provided clear and convincing support for the fitness and best-interests determinations. A parent’s level of engagement with DCF services is relevant but not determinative of fitness; the judge’s overall assessment rested on a constellation of independently sufficient grounds.
On the bias allegation, the court found that the issue had been waived: the mother’s trial counsel did not object to the judge’s comment or seek recusal. Even if preserved, the court would not have found bias. The judge’s statement that he was “not comfortable sending children into a shelter” was excessively critical and inappropriate, but the court distinguished concern about the mother’s inability to provide stable housing (a legitimate fitness factor under Massachusetts law) from concern about her poverty as such (not a basis for termination). The judge’s detailed written findings and rulings demonstrated thorough, even-handed analysis.
Key Takeaways
- Expert witness designation rules in parental rights termination proceedings are strictly enforced. A failure to comply with a pretrial order designating experts — and a failure to make an offer of proof when testimony is excluded — will almost certainly doom an appellate challenge to the exclusion.
- A parent who believes DCF failed to make reasonable efforts to accommodate her particular needs must raise that claim at trial. Raising it for the first time on appeal waives it, because DCF has no opportunity to respond to a claim it was never given notice of below.
- Even if one evidentiary error is assumed, termination decrees that rest on multiple independent grounds will be sustained if the remaining uncontested findings are individually sufficient to support the fitness and best-interests conclusions.
- A judge’s comment suggesting discomfort with a parent’s housing instability does not establish bias if the written findings focus on the parent’s inability to provide safe and stable housing as a fitness factor, not on the parent’s poverty as a reason for termination. Poverty alone is not a basis for a fitness finding under Massachusetts law.
- Litigants who believe a judge’s in-court statements reflect bias or partiality must object and seek recusal promptly. Failure to do so waives the issue on appeal, absent exceptional circumstances.
Why It Matters
Adoption of Yazlin consolidates several recurring issues in care-and-protection and parental rights termination litigation. The expert witness holding has immediate practical import: counsel representing parents in these high-stakes proceedings must comply precisely with pretrial designation orders, including the curriculum vitae and scope-of-testimony requirements, and must be prepared to make an offer of proof if testimony is excluded at trial. The opinion reinforces the message of Kace v. Liang, 472 Mass. 630 (2015), that preventing untimely expert disclosures is especially critical in proceedings where expert evidence may be the linchpin of the case.
The reasonable efforts holding is a reminder for counsel representing parents challenging DCF action plans as inadequate. Claims that DCF failed to accommodate a parent’s special needs — mental illness, trauma history, disability — must be clearly articulated at the trial level and preserved in the record. The court’s observation that many avenues exist to raise such claims (including raising them with the trial judge during DCF’s case-in-chief or in post-trial briefing) signals that this is not a hard procedural barrier to clear — but it requires counsel to think about the reasonable efforts issue early and strategically, not for the first time on appeal.