Appeals court hears mother's challenge to post-trial placement and visitation after termination of parental rights

Attorney Steve Rosenthal, arguing for the mother-appellant, told the Appeals Court, "May it please the court?" and acknowledged that "at the time of trial, she was unfit," while asking the panel to remand the case for two reasons, primarily that "the adoption plan approved by the trial judge has been disrupted." Rosenthal said the child had been in a specialized foster placement from "September 2020 to December 2023" and that, after trial, the child moved to a kinship placement with an aunt who had had only one visit during the case, which "calls into question the best interests" and the calculus for post-termination visitation.

The panel pressed counsel on whether appellate review may rely on post-trial events and whether the matter should first be addressed by the trial court in a permanency hearing. An unidentified justice asked why the placement change could not be raised in the first instance at the trial level instead of on appeal; Rosenthal responded that he learned of the new placement only when a motion to file a supplemental appendix was filed and maintained that the new custodian's willingness to permit visitation was unknown and worth judicial review.

Matt Burke, appearing for the Department of Children and Families, argued the mother's reasonable-efforts claim had been waived because it was not raised before the trial court and emphasized the trial judge's extensive findings: a history of domestic violence, two psychiatric hospitalizations, experts' testimony that the mother's disabilities made it unlikely she could provide minimal care for the child, and a trial finding that termination served the child's best interests. Burke told the panel that DCF offered "psychiatric evaluations, medication evaluations, psychotherapy, early intervention services, and other parenting training" and that the mother "declined" to participate in many of those services.

Eric Biel, representing the child, agreed with DCF that the reasonable-efforts argument was waived and warned of the difficulty of appellate review without a full trial-court record. Biel further told the panel that a change from one pre-adoptive resource to another "still falls under the plan for adoption that was approved by the court" and noted the trial court had approved a permanency plan with the maternal aunt at a permanency hearing scheduled for 05/21/2024.

Counsel and the panel also discussed procedural remedies: whether Rule 60(b) is the only vehicle to revisit post-termination visitation, and whether permanency hearings under chapter 119, §29B provide an ongoing forum (though DCF acknowledged a terminated parent typically lacks standing at those hearings). After the exchanges the court thanked counsel and "took the case under advisement."