MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree issued by a Juvenile Court judge terminating her parental rights with respect to her daughter, Fleur. On appeal, the mother claims that (1) the judge violated her right to due process by excluding the testimony of the mothers social work expert, (2) the Department of Children and Families (DCF) failed to establish by clear and convincing evidence that the mother was an unfit parent, and (3) the evidence did not clearly and convincingly support the termination of the mothers parental rights. We affirm.
Discussion. 1. Exclusion of expert testimony. The mother claims that the judge violated her right to due process by erroneously excluding the testimony of the mothers social work expert. We disagree.
“The admission of expert testimony is ‘largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law.’ ” Adoption of Hugo, 428 Mass. 219, 232 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). A judges discretionary decision is an abuse of discretion only where there was “a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
On September 11, 2019, the judge issued a pretrial conference order (pretrial order) requiring that any party intending to offer expert testimony provide the experts curriculum vitae (CV) and a summary of the anticipated testimony to the other parties. The pretrial order aligned with Rule 15 (B) (7) of the Juvenile Court Rules for the Care and Protection of Children, which requires parties to file the name of any expert witnesses, their CV, and an outline of the issues to which they are expected to testify. The pretrial order set a deadline of December 5, 2019, for the parties to provide experts’ CVs and summaries of testimony. The pretrial order further stated that failure to comply with its terms would be grounds for sanctions, including evidentiary restrictions.
2
The mother did not provide the required documents for any expert witness by the December 2019 deadline. On March 3, 2020, the judge suspended the trial to allow for a court clinic evaluation of the mother. Before the trial resumed, the mother provided the CV of Dr. Karen Clark to the other parties.
3
The mother notified the parties that Dr. Clark would perform a bonding and attachment study. However, the mother did not provide a summary of Dr. Clarks proposed testimony.
It is not an abuse of discretion for a judge to exclude expert testimony where the proponent has not properly disclosed the content of the testimony in advance. See Kace v. Laing, 472 Mass. 630, 636-637 (2015) (judges have broad discretion to exclude expert testimony if proponent does not give proper notice of its subject matter). The purpose of the disclosure rule is to ensure a fair exchange of information and prevent unfair surprises at trial. Id. It is true that a judges discretion to qualify expert witnesses is not unlimited. See Commonwealth v. United Books, Inc., 389 Mass. 888, 896 (1983). But here, where the proponent of the expert testimony violated both a court order and the Juvenile Court Rules, the judge acted well within the range of reasonable alternatives by excluding the testimony. See L.L., 470 Mass. at 185 n.27.
The mother claims the trial judge erred by excluding Dr. Clarks testimony based on a mistaken interpretation of the Code of Massachusetts Regulations governing the practice of social work. We need not resolve this issue because it was within the judges discretion to exclude the testimony for failure to comply with the pretrial order. Moreover, the exclusion of the expert did not prejudice the mother. See Adoption of Carla, 416 Mass. 510, 516 (1993) (even if it were error to admit findings from psychologists evaluation, any such error would have been harmless because court already received findings by other means). Dr. Clark would have testified about a bonding and attachment study she completed for this case. The judge concluded that there was an existing bond between the mother and the child. On this basis, the judge found it was in the childs best interests to allow posttermination visitation with the mother two times per year. Because the judge found a bond existed between the mother and the child, no prejudice resulted from the exclusion of expert testimony on this point.
2. Mothers unfitness. The mother also claims that the judges unfitness determination was not supported by clear and convincing evidence. We disagree. “In deciding whether to terminate a parents 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 childs best interests will be served by terminating the legal relation between parent and child.” Adoption of Ilona, 459 Mass. 53, 59 (2011). On appeal, “[w]e give substantial deference to a judges decision that termination of a parents rights is in the best interest of the child, and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.” Id. “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed’ ” (citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993).
The judges findings in this case are specific and detailed, “demonstrating that close attention has been given to the evidence.” Adoption of Hugo, 428 Mass. at 224. The conclusions of law consider each of the fourteen factors set out in the relevant statute, G. L. c. 210 § 3 (c), and those elaborated in case law. The findings indicate the child was four years old at the time of trial, that she entered DCFs custody at the age of nine months, and that she lived with a preadoptive family since the age of eighteen months. Before the child entered DCF custody, the mother was in an abusive relationship with the father and lacked secure housing. DCF took custody when the mother left the Teen Living Program, where she had received several warnings related to her care of the child. In the intervening years, the judge found the mother was unable to obtain secure housing, only partially complied with DCFs family action plans, and did not acquire the skills or resources to live independently.
The child has profound special medical needs, having been diagnosed with microcephaly, low weight and height, and several other conditions affecting her ears, facial features, skin, knees, and hips. Microcephaly has the potential to cause significant cognitive limitations as the child grows. The mother has a history of bipolar disorder, depression, and anxiety. She has failed to seek consistent treatment for her own mental health and has needed ongoing assistance in managing her own well-being.
The mother claims that the evidence was insufficient for the judge to find she would be unable to manage the childs medical care. The mother points to her track record of identifying the childs medical needs, arranging appointments, and administering medications while the child was in her care. But this discussion overlooks other evidence the judge credited, such as the mothers lack of insight into the childs diagnoses and needs, and her failure to engage with the necessary personnel to learn more. Moreover, the judge was required to consider whether the facts in aggregate proved the mothers unfitness. See Care & Protection of Laura, 414 Mass. 788, 793 (1993) (“Taken together, these facts must then prove parental unfitness ․ by clear and convincing evidence”). The mothers lack of understanding of the childs needs was one of many factors the judge validly weighed in the unfitness determination.
The mother further claims that she substantially complied with her family action plans, so the evidence of noncompliance should not have factored into the unfitness analysis.
4
The judge properly considered not only whether the mother had engaged with the required services, but also whether those efforts remedied the parenting problems the plan aimed to address. See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (even when parents substantially comply with service plans, they may still be found unfit if they do not show they benefited from services). The judge found the mother partially complied with the family action plans by engaging in some services and classes. But despite those measures, the mothers parenting skills had not markedly improved.
5
Finally, the mother claims that the judge should not have considered her housing insecurity as part of the unfitness determination. A parents inability to secure adequate stable housing is properly considered in determining unfitness. See Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). Here, the judge found that the mother had not established a stable home environment for the child because the mother was constantly moving from one address to another.
6
The judge correctly considered housing insecurity as a factor.
3. Termination of mothers rights. The mother asserts that termination was improper because she was addressing the concerns that led to removal of the child. A judge is required to consider whether “there is a reasonable likelihood that the parents unfitness at the time of trial may be only temporary.” Adoption of Carlos, 413 Mass. 339, 350 (1992). However, a parents opportunity to achieve fitness is not indefinite. See Adoption of Nancy, 443 Mass. 512, 517 (2005) (where father failed to achieve fitness over several years, children were not required to “wait an unknown additional period”). The judge here considered whether the mothers unfitness was temporary and determined that it would continue into the foreseeable future.
The mother further claims that the judge did not make adequate findings related to the childs separation from her substitute caretakers. General Laws c. 210, § 3 (c) (vii) requires consideration of whether a child would suffer psychological harm from being separated from a substitute caretaker. G. L. c. 210, § 3 (c) (vii). As the mother notes, we have identified four separate factors derived from § 3 (c) (vii).
7
See Adoption of Katharine, 42 Mass. App. Ct. 25, 30-31 (1997). However, these factors are relevant only when potential psychological harm is a decisive factor. Id. Because the judge here already found substantial grounds for unfitness, any harm from separation was not decisive. Because we find no error in the judges determination that the mother was unfit to parent the child, we also find no error in the termination of parental rights. See Adoption of Nancy, 443 Mass. 512, 515 (2005) (“The standard for parental unfitness and the standard for termination are not separate and distinct, but reflect different degrees of emphasis on the same factors” [quotation and citation omitted]).
Decree affirmed.
FOOTNOTES
2
. The mother and her counsel signed the pretrial order.
3
. It is unclear when exactly the mother provided the CV: during voir dire, counsel for the mother stated she provided it “quite some time ago,” while counsel for DCF stated it was a “month or a month and a half ago.”
4
. This argument relies on Adoption of Zoltan, where we noted that a parents service plan compliance need not be perfect. See Adoption of Zoltan, 71 Mass. App. Ct. 185, 192-195 (2008). In Zoltan, however, we held the evidence of unfitness before the Juvenile Court was inadequate. Id. at 188. The mothers service plan compliance there did not need to be perfect because the plan was “not closely related to any clearly identified parental deficiencies.” Id. at 192. Moreover, the mother in Zoltan substantially complied with the plan. Id. at 193.
5
. Among other things, the judge pointed to the mothers lack of engagement and inability to redirect the child during visits.
6
. The mother was on a waiting list for subsidized housing at the time of trial, but the judge did not credit her testimony that she was close to the top of the list. The judge also did not credit the mothers testimony that she could live on her own because the mother stated she could not afford monthly rent for an apartment.
7
. The factors are “the nature of the bonds formed, why serious psychological harm would flow from the severance of those bonds, what means to alleviate that harm had been considered, and why those means were determined to be inadequate.” Adoption of Katharine, 42 Mass. App. Ct. 25, 30-31 (1997).