NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-705
ADOPTION OF DENISE (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After eleven-month old Amy was brought to the hospital
suffering from significant facial bruising, medical personnel
discovered that she had a fractured skull and several other
serious injuries resulting from non-accidental trauma. The
mother denied inflicting the injuries and claimed that she did
not know who harmed Amy. Following a trial in the Juvenile
Court, the judge issued decrees finding the mother unfit to
parent Amy and her two other children, Denise and Erik;2 that her
unfitness was likely to continue into the indefinite future; and
that it was in the children's best interests to terminate her
1Adoption of Amy and Adoption of Eric. The children's names are pseudonyms.
2Denise was born in 2018, Amy was born in 2020, and Erik was born in 2021. parental rights.3 On appeal, the mother claims that (1) the
judge committed prejudicial error by failing to conduct a
colloquy concerning her waiver of her right to a Spanish-
speaking interpreter; (2) the judge improperly drew a negative
inference when considering that some of the mother's visits with
the children were virtual and not in-person; and (3) the
Department of Children and Families (department) failed to
demonstrate by clear and convincing evidence that she was unfit
to assume parental responsibilities for the children. We
affirm.
Background. We summarize the judge's detailed findings of
fact and conclusions of law, reserving certain details for later
discussion. On January 17, 2021, a report was filed pursuant to
G. L. c. 119, § 51A (51A report), alleging physical abuse of
Amy, who was brought to the hospital by the mother and found to
be covered in bruises. Amy, who was almost one year old, had
two black eyes and bruising and swelling in the facial area
consistent with being punched in the head. When interviewed by
medical personnel, the mother denied that she or anyone else had
3 The judge also issued decrees terminating the parental rights of Denise's unidentified father and Erik's father, Frank, and neither is a party to this appeal. The judge found Amy's father a fit parent and, consequently, he is not a party to this appeal.
2 physically abused Amy and said that Amy was in her crib all day.
The mother stated that she noticed Amy's injuries two days prior
but that her injuries had worsened. When hospital staff
attempted to speak with the mother, she avoided eye contact, was
on her telephone, and would not engage with the staff about Amy.
Due to the severity of the injuries, Amy was transferred to
Boston Children's Hospital by ambulance, where she was diagnosed
with a skull fracture and multiple hemorrhages and contusions to
her head. Amy also suffered injuries to the inside of her
mouth, a torn upper-lip frenulum, and bruising to her thighs.
The cause of the injuries was determined to be non-accidental
trauma. The department was awarded emergency temporary custody
of Amy and Denise on January 19, 2021.4
Earlier on January 17, the mother had been seen at the
hospital emergency department as she was pregnant and
experiencing abdominal pain. The mother was at the hospital for
about eight hours and told the nurse that during that time the
mother's boyfriend (hereafter, Frank [a pseudonym], the father
of Erik) and his family had watched Amy. While the mother was
awaiting treatment for her abdominal pain, she and Frank
exchanged text messages, and Frank sent video recordings showing
4 On January 18, 2021, another 51A report was filed, alleging neglect of Amy and Denise by the mother and her boyfriend (the father of Erik).
3 Amy's injuries and telling the mother that Amy's facial swelling
was worsening. The mother did not ask how Amy was injured, and
when the mother returned home from the hospital, she did not
immediately seek treatment for Amy but rather took a nap. When
she woke up from her nap at around 8 P.M., the mother noticed
Amy's worsening facial swelling, and then took Amy to the
hospital. The mother did not ask anyone in the home how Amy had
been injured.
When questioned by medical personnel as to how Amy was
injured, the mother said she believed Amy might be having a
reaction to a dose of Benadryl that the mother had given her
earlier in the day. The mother also told medical staff that Amy
might have a genetic blood disorder that the mother also has,
causing Amy to bruise easily. A blood test concluded that Amy
did not have the same blood disorder. Although the mother
initially denied that Amy had fallen, she later reported that
Amy could have been injured when, two weeks earlier, she fell
off the bed while having her diaper changed. The mother said
that despite the fall from the bed, Amy did not present with any
bruising afterwards. All three explanations of Amy's injuries
were ruled out by the medical professionals.
When interviewed by the department at the early stages of
the investigation, the mother's statements were inconsistent
4 with what she told the hospital staff about when and how Amy was
injured and who was responsible for her care. While the mother
told the hospital staff that she noticed Amy's bruising two days
earlier, she told the department investigator that she saw the
bruising on January 17, the day she took Amy to the hospital.
The mother told the investigator that she noticed the bruising
but wasn't worried, because she believed it was caused by "rough
play" between Amy and her two-year old sister Denise, although
she never saw Denise hit Amy in the face. The mother also said
she had seen Amy hit the mesh sides and metal poles of the crib.
The department worker asked the mother if she understood the
seriousness of the situation because Amy had suffered a
fractured skull. The mother stated that she understood, but
said she had no concerns that Frank would hurt Amy. The mother
also provided inconsistent statements as to who cared for Amy in
the mother's absence, ultimately saying she could not recall who
watched the children.
After securing emergency custody of Amy and Denise, the
department provided the mother with recommendations for services
and an action plan; over time, the department crafted five
additional revised action plans. Given her history with housing
instability, the action plan required the mother to establish
safe, appropriate, and stable housing. Additional tasks
5 included meeting monthly with the department, signing necessary
releases, and -- significant to this case -- participating in
parenting classes that were trauma informed. Throughout the
three years that the department worked with the mother, she
failed to engage with services in a meaningful way. For
example, the mother was offered a shelter placement, where she
could engage in services that would potentially reunite her with
the children. The department social worker told the mother that
she needed to work on assessing dangerous situations and
informed the mother (who was pregnant with Erik), that if she
continued to live with Frank, she risked losing custody of Erik
upon birth. Instead of complying with the action plan and
ending her relationship with Frank, the mother stayed with Frank
and his family until they were evicted from the home in May
2021. Only then did the mother temporarily agree to the
department's shelter plan, but she was noncompliant with the
shelter rules by staying at Frank's house for multiple nights in
a row, ultimately abandoning her placement to live with Frank
again.5
5 In July 2021, the mother gave birth to Erik. Erik was removed from mother's custody soon after birth, as she refused to end her relationship with Frank despite the department's concerns that Frank had injured Amy.
6 In September 2021, the mother reported to the department
that she had relocated to Connecticut, but she could not provide
the investigator any details about her current address. The
mother said she was living with a friend but claimed that she
did not know the address, never noticed any street signs, and
had no idea what town she was living in. Suspicious that the
mother was not being truthful about her living situation,
especially since the social worker noticed that the mother was
calling from a cell phone belonging to Frank's family member,
the social worker made an unannounced visit to Frank's family
home. Upon arrival, the social worker saw the mother running
from the porch to hide in a nearby cemetery. The mother's
action plan was updated, given the department's concern that the
mother was not being truthful about her living situation or her
continued relationship with Frank, and it required the mother to
be truthful regarding her relationship with him.
A short time later, the mother became homeless but still
did not engage with the department to find housing. In January
2022, the mother moved to Puerto Rico and moved into the "family
home" of Frank, who had also relocated to Puerto Rico. After
she relocated to Puerto Rico, the department referred the mother
to programs and services in her area, but she did not engage in
most of the recommended services. In fact, the only service the
7 mother completed between January 2021, when Denise and Amy were
removed from her custody, and the conclusion of the trial in
November 2023, was a parenting group in Massachusetts and a
parenting class in Puerto Rico, which lacked a necessary trauma-
informed parenting component.
Discussion. 1. Use of the interpreter at trial. At
trial, the mother was provided with a Spanish-speaking
interpreter but requested that she be allowed to speak in
English because she believed that the interpreter was not fully
translating the essence of her testimony. Now on appeal, the
mother claims that the judge erred by allowing her request to
speak in English without first conducting a colloquy pursuant to
G. L. c. 221C, § 3.
At the beginning of the trial, the judge informed the
mother that all of her testimony should be in Spanish and that
the interpreter would translate her testimony. Despite the
judge's instruction and subsequent reminders to speak one
language, on several occasions the mother alternated between
speaking Spanish and English. At times in her testimony, the
mother struggled to speak Spanish and, when she had difficulty
finding the correct Spanish words, reverted to speaking English.
For example, during her testimony on the first day of trial, the
mother stopped speaking in Spanish and switched to English,
8 asking, "How do you say 'shaking' in Spanish?" The judge told
the mother that, if she was unsure of the word in Spanish, she
would have to say it in English. At all times when the mother
elected to speak in English, she had access to the services of
an interpreter.
Late in the afternoon of the first day of trial,6 the
mother's counsel asked permission for the mother to testify in
English and, if she needed help, that she be allowed to utilize
the services of the interpreter. The mother expressed concerns
that her answers in Spanish were not "exactly what she intended
them to be." Counsel assured the judge that the mother
understood English but may need assistance from the interpreter
with certain vocabulary or if words were spoken too quickly.
The department objected, stating that it may create an
appealable issue. While the judge was hearing from counsel, the
mother interjected, telling the judge that she testified in
English at her last court appearance with the interpreter
standing by. The judge allowed the request over the
department's objections. The judge also allowed mother's
counsel, on cross-examination, to clarify any inaccuracies or
6 The trial transcript indicates that the mother's counsel made the request for the mother to speak in English at 3:43 P.M. on the first day of trial.
9 confusion over her testimony in Spanish during the first day of
trial.
During the second and third day of trial, the mother
testified in English and was provided an interpreter in the
event she needed assistance or decided to resume her testimony
in Spanish. During those two days, the mother answered hundreds
of questions in English and only relied on the interpreter for
assistance on six occasions. On the fourth day of trial, the
judge informed the parties that he had become aware that the
protocol for the Office of Language Access did not permit the
interpreter to be used in a standby capacity or to translate
single words. Rather, it was office policy to either provide
complete translation services or none at all. In response, the
judge told the mother's counsel that the mother would need to
decide whether she would speak fully in Spanish or forgo the
services of the interpreter. The mother chose to speak in
Spanish and testified in Spanish during the remaining days of
For the first time on appeal, the mother argues that it was
error for the judge to allow her to testify in English during
days two and three of trial without first conducting a colloquy
and securing a formal waiver of her right to use an interpreter.
The mother presses this argument even though she had the use of
10 the interpreter throughout the entire trial. We review this
claim for an abuse of discretion. See Commonwealth v. Lee, 483
Mass. 531, 541 (2019).
Indisputably, non-English speakers in legal proceedings
have a statutory right to the assistance of an interpreter. See
G. L. c. 221C, § 2.7 See also Lee, 483 Mass. at 540. If a non-
English speaker decides to forgo the use of an interpreter, a
formal waiver on the record is required after the non-English
speaker has consulted with counsel. G. L. c. 221C, § 3 (a).
See Commonwealth v. Gautreaux, 458 Mass. 741, 753 (2011). The
party claiming a violation of G. L. c. 221C, § 2, bears the
burden of proving that the affected party is a non-English
speaker. See Commonwealth v. Vargas, 475 Mass. 338, 355-356
(2016); Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729,
735 (2006). Where a party has "some ability to understand and
communicate" in English, the determination regarding the need
for an interpreter is left to the wide discretion of the trial
judge. Commonwealth v. Turell, 6 Mass. App. Ct. 937, 938
(1978), quoting United States v. Carrion, 488 F.2d 12, 14 (1st
Cir. 1973), cert. denied, 416 U.S. 907 (1974).
7 A non-English speaker is defined as a "person who cannot speak or understand, or has difficulty in speaking or understanding, the English language, because he [or she] uses only or primarily a spoken language other than English." G. L. c. 221C, § 1.
11 We are not persuaded by the mother's claim that the judge
erred in failing to conduct a formal colloquy on the record to
ensure that the mother's waiver of the interpreter was knowing
and voluntary. To show that a colloquy was required, the mother
must first demonstrate that she is a non-English speaker and
entitled to an interpreter under G. L. c. 221C, § 2. She has
not done so. The mother told the trial judge that she
understood English. Also, according to the mother, she
testified in English at the 2021 temporary custody hearing and
only used the interpreter in a standby capacity. The mother's
social worker spoke English to her and never used an
interpreter. In 2023, the department's investigator noted that
"[m]other is fluent in English," and the manager of the shelter
also reported that the mother communicated in English. When the
mother participated in virtual visits with the children, her
primary language was English.
At trial, counsel for the mother told the judge that the
mother understood English and only needed help "sometimes." The
fact that the mother understood and took issue with the accuracy
of the interpreter's translation further demonstrated her
proficiency with the English language. We have reviewed the
record and observe that the mother answered hundreds of
questions in English with clear, responsive answers. In fact,
12 when the mother did rely on the interpreter, most often she
needed the interpreter's help to find a word in Spanish -- not
English. The mother's proficiency is not belied by the fact
that there were a few instances in which she needed
clarification, and, accordingly, she has not shown that she was
entitled to an interpreter. Where the mother has not
established that she is a non-English speaker, we cannot say
that the judge abused his discretion in failing to obtain a
formal waiver of the interpreter before the mother testified in
English.
Furthermore, even if we were persuaded that the mother met
the requirements under G. L. c. 221C, § 2, as a non-English
speaker, her claim that the judge erred by failing to conduct a
formal colloquy and waiver on the record nevertheless fails. It
is undisputed that the mother had access to the interpreter
standing by while she testified in English. This is not a case
in which the mother decided to forgo the use of an interpreter
altogether.
When confronted with the mother's concern that the
interpreter was not providing the essence of her testimony, the
judge showed great sensitivity, explaining to the mother that
she could speak in whatever language she was most comfortable
with, and the mother could utilize the interpreter whenever it
13 was necessary. The issue of potential waiver of the assistance
of an interpreter did not arise until the fourth day of trial,
when the interpreter informed the judge that acting in a standby
capacity was against office policy. Then, the judge clearly
informed the mother's counsel that the mother needed to decide
whether she would speak in Spanish and fully utilize the
services of the interpreter or whether she would waive the
Spanish for the remainder of the trial and utilize the
interpreter. Thus, there was no need for the judge to formally
conduct a waiver on the record.
2. Mother's virtual visits with children. As noted above,
the mother decided to relocate to Puerto Rico and live with
Frank's family. As a result, from January 2022 until her trial
in September 2023, the only visitation with her children was
through virtual visits. The mother claims that the judge erred
by drawing a negative inference from the fact that her visits
with the children were virtual. The mother's reliance on
Thaddeus v. Secretary of Executive Office of Health & Human
Serv., 101 Mass. App. Ct. 413, 416 (2022), and the department's
previous interim policy on virtual visits is misplaced because
the mother's lack of in-person visitation was not due to the
COVID-19 pandemic. In addition, the judge found that the mother
14 was compliant with her action plan regarding visitation with the
children, while noting that the mother chose virtual visits over
in-person visits by moving to Puerto Rico while the children
remained in Massachusetts. It was proper for the judge to
consider that these visits were not in-person, as we recognized
in Thaddeus the "strong presumption" that "visits between a
parent and a child in department custody are to be in person."
Id. at 422. "The statutory goal is to reunite the family, and
in-person visitation is important to that goal." Id. In short,
it is undeniable that in-person contact provides a child with
benefits that virtual contact cannot, and, although virtual
visits can supplement in-person visits, they are not on equal
footing as far as the benefit to the child. There was no error.
3. Termination of parental rights. When faced with a care
and protection proceeding that involves the termination of
parental rights, the judge must find by clear and convincing
evidence that the parent is unfit, and that the unfitness will
continue into the indefinite future. See Adoption of Lisette,
93 Mass. App. Ct. 284, 296 (2018). "Parental unfitness is
determined by considering a parent's character, temperament,
conduct, and capacity to provide for the child's particular
needs, affections, and age." Adoption of Anton, 72 Mass. App.
Ct. 667, 673 (2008). In care and protection cases, the judge's
15 subsidiary findings must be proved by a preponderance of the
evidence and will only be disturbed if clearly erroneous. See
Custody of Eleanor, 414 Mass. 795, 799 (1993); Care & Protection
of Laura, 414 Mass. 788, 793 (1993). Our review on appeal gives
"substantial deference to a judge's decision that termination of
a parent's 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."
Adoption of Yalena, 100 Mass. App. Ct. 542, 549 (2021), quoting
Adoption of Ilona, 459 Mass. 53, 59 (2011).
The judge's finding of unfitness were primarily focused on
the mother's failure to protect the children from future abuse
and the mother's failure to address her parental shortcomings by
participating in appropriate services outlined in her action
plans. There was ample record evidence to support the judge's
finding of unfitness. The mother did not comprehend the severe
nature of Amy's injuries, offering various and inconsistent
accounts of how Amy may have been injured. An important
requirement of her action plan was for the mother to engage in
counselling to understand the impact of trauma on her children.
She failed to participate in this type of counselling as well as
many other recommendations to improve her parental skills.
Moreover, the mother refused to accept the possibility that
16 Frank had injured Amy, never once asking him what had happened
to cause Amy's skull to be fractured while she was in his care.
Even at trial, the mother still maintained that she was not
worried about the children's safety around Frank and did not
acknowledge that Amy's injuries were the result of non-
accidental trauma.8 The mother's continued refusal or inability
to consider that Frank may have injured Amy coupled with her
lack of participation in specific parenting classes underscores
her inability to protect the children from future harm by
avoiding dangerous situations that would potentially jeopardize
their health and safety. See Adoption of Lorna, 46 Mass. App.
Ct. 134, 140-141 (1999). See also Adoption of Yalena, 100 Mass.
App. Ct. at 552.
The judge's findings that the mother lacked insight into
her own trauma or the children's trauma are also supported by
the record. At trial, the mother was unable to express what, if
anything, she learned from the two parenting groups that she
attended. And when asked what she would have done differently
to prevent Amy's injuries, the mother responded that she "never
8 While ignoring the potential harm inflicted by Frank, the mother provided various inconsistent explanations of how Amy was harmed, including accusing, without witnessing, her two-year old child (Denise) of causing the injuries by playing roughly.
17 would have come to Massachusetts and [she] never would have left
the children with anybody."
The record also supports the judge's finding that the
mother had not sufficiently addressed other parental deficits,
most notably her unwillingness to end her relationship with
Frank. The mother was unable or unwilling to establish safe,
appropriate, and suitable housing so that she could engage in
services to be reunited with the children. Instead, the mother
chose to stay with Frank and his family, despite the concerns
expressed by the department that the mother needed to address
her dangerous living situation. The evidence also supported the
judge's concern that the mother was not being truthful when she
told the department and the judge that she had ended her
relationship with Frank. See Adoption of Larry, 434 Mass. 456,
469-470 (2001).
While the mother did make some strides in her self-
development, such as obtaining health insurance and attending
(but not completing) Job Corps, they were simply not enough.9
9 To the extent that the mother contends that her failure to participate in counseling was due to the department's failure to make reasonable efforts, this argument is deemed waived as the mother failed to raise it in the Juvenile Court. See Care & Protection of Rashida, 488 Mass. 217, 230 (2021), S.C., 489 Mass. 128 (2022), quoting Adoption of Gregory, 434 Mass. 117, 124 (2001).
18 Even when the mother made a last-minute effort to engage in
counselling prior to trial, she failed to sign the necessary
release forms so that her attendance in individual counselling
could be verified. The judge properly concluded, based on clear
and convincing evidence, that the unfitness of the mother was
likely to continue into the indefinite future as the mother had
shown a long track record of lack of progress. See Adoption of
Ramon, 41 Mass. App. Ct. 709, 718 (1996).
Decrees affirmed.
By the Court (Blake, C.J., Shin & Walsh, JJ.10),
Clerk
Entered: May 23, 2025.
10 The panelists are listed in order of seniority.