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-536
CARE AND PROTECTION OF EDWARD. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Edward appeals from a judgment of the
Juvenile Court committing Edward to the permanent custody of the
Department of Children and Families (department). The trial
judge determined that mother was currently unfit to parent
Edward due to untreated mental health issues, which, in turn,
resulted in a lack of housing and employment stability, and an
inability to meet Edward's needs. 2 Edward has submitted a brief
in which he requests that we affirm the judgment. The mother
argues that the judge abused his discretion, and instead of
granting custody to the department, he should have ordered the
1 A pseudonym.
2Edward's father, who was incarcerated at the time of trial, has not had contact with the mother or Edward since 2011. His trial was bifurcated from the mother's trial and the judge found him currently unfit and terminated his parental rights. The father has not appealed. department to develop a reunification plan. The mother also
challenges two of the judge's findings (and related conclusions
of law) as clearly erroneous and asserts that the department
failed to make reasonable efforts to return Edward to her
custody. We affirm.
As an initial matter, we note that the mother's parental
rights were not terminated, and the judge did not dispense with
the need for her consent to adoption. Consequently, the mother
may petition the court, under G. L. c. 119, § 26 (c), for a
review and redetermination of Edward's current needs. At oral
argument, which was held on December 5, 2024, the mother, who
appeared pro se, represented that her circumstances had changed
such that she is now capable of properly providing for her son.
However, as an appellate court, we are allowed to consider only
rulings by the trial courts and the evidence that was before
those courts and may not consider new information. Accordingly,
should she wish to do so, the mother must first present her
argument and evidence supporting it before the judge who
presided over the prior proceedings. We take no view on whether
the mother should pursue such a petition. We simply note that
this avenue is available to her.
We now turn to the merits of the mother's appeal. We need
not provide a detailed summary of the judge's findings. It
suffices to note the following relevant facts. Edward was born
2 prematurely, and substance exposed on August 19, 2010. The
department became involved with the family at that time, and
again in 2013, after the mother sought services from the
department due to her belief that Edward had been sexually
abused by her mother (grandmother) and the grandmother's
boyfriend. The department engaged with them once more in 2019
in response to reports that the mother neglected to send Edward
to school regularly. The department began working with the
mother to assist her in obtaining services for both herself and
for Edward, but she remained uncooperative. During this time,
the mother made numerous reports claiming that Edward was being
sexually assaulted by unknown persons, and that the police and
Federal Bureau of Investigation were working together to turn
her son away from her. At a later point, the mother claimed
that the department had installed cameras in her home.
The mother eventually stopped sending Edward to school
during the 2019-2020 school year and was charged with failure to
send her child to school. The mother then chose to homeschool
Edward. The judge found that this decision resulted in
significant harm to Edward's educational progress. In addition,
the mother neglected to bring Edward to see his pediatrician
from June 2019 to April 2021. Edward's health declined during
this period. He gained approximately sixty pounds, used a
walker, and had trouble walking long distances.
3 In June, 2021, the department filed a care and protection
petition and sought temporary custody of Edward. Edward was
removed from the mother's custody on June 25, 2021, and placed
in a kinship foster placement with his maternal aunt.
Throughout the following year, the mother was inconsistent in
visiting Edward and refused to engage in mental health services
or meet with the department. The mother was hospitalized around
the same time Edward was removed from her care and was diagnosed
with an unspecified schizophrenic spectrum and other psychotic
disorder after she presented as extremely paranoid. She was
hospitalized again in May and August 2022 and diagnosed with
bipolar disorder, posttraumatic stress disorder, anxiety, and
depression. Notwithstanding these diagnoses, by the time of
trial, the mother had made significant progress. She was
engaged in psychiatric services and was more cooperative with
the department. She also was more consistent with her
visitation schedule. However, the judge found that despite this
improvement, the mother had not demonstrated a sufficient
commitment to addressing her mental health needs such that she
could assume parental responsibilities. He found that in
addition to the mother's mental health struggles, she had not
demonstrated an ability to meet Edward's medical, educational,
and emotional needs. Nor was the mother able to provide stable
housing. In 2018, due to her unemployment, the mother had
4 fallen behind on rent and was evicted from her apartment. She
later lost her housing, obtained through the South Middlesex
Opportunity Council (SMOC), where she had been residing with
Edward at the time he was removed because, without custody of
Edward, she no longer met the shelter's requirements.
Meanwhile, Edward's health and education improved
significantly while residing with his aunt. The judge noted
that Edward is "very perceptive" regarding his mother's issues
and was "comfortable" living with his aunt, her fiancé, and his
cousin, with whom he had developed a sibling relationship.
Discussion. The mother first argues that two of the
judge's findings and related conclusions of law, with respect to
her housing situation, are clearly erroneous. The mother is
correct that it is not completely accurate that she was
"evicted" from SMOC housing. Rather, she lost such housing
because Edward was no longer living with her, and the Housing
Court proceeding against her ended not in an eviction, but in an
agreement for judgment; 3 however, these discrepancies are not
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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-536
CARE AND PROTECTION OF EDWARD. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother of Edward appeals from a judgment of the
Juvenile Court committing Edward to the permanent custody of the
Department of Children and Families (department). The trial
judge determined that mother was currently unfit to parent
Edward due to untreated mental health issues, which, in turn,
resulted in a lack of housing and employment stability, and an
inability to meet Edward's needs. 2 Edward has submitted a brief
in which he requests that we affirm the judgment. The mother
argues that the judge abused his discretion, and instead of
granting custody to the department, he should have ordered the
1 A pseudonym.
2Edward's father, who was incarcerated at the time of trial, has not had contact with the mother or Edward since 2011. His trial was bifurcated from the mother's trial and the judge found him currently unfit and terminated his parental rights. The father has not appealed. department to develop a reunification plan. The mother also
challenges two of the judge's findings (and related conclusions
of law) as clearly erroneous and asserts that the department
failed to make reasonable efforts to return Edward to her
custody. We affirm.
As an initial matter, we note that the mother's parental
rights were not terminated, and the judge did not dispense with
the need for her consent to adoption. Consequently, the mother
may petition the court, under G. L. c. 119, § 26 (c), for a
review and redetermination of Edward's current needs. At oral
argument, which was held on December 5, 2024, the mother, who
appeared pro se, represented that her circumstances had changed
such that she is now capable of properly providing for her son.
However, as an appellate court, we are allowed to consider only
rulings by the trial courts and the evidence that was before
those courts and may not consider new information. Accordingly,
should she wish to do so, the mother must first present her
argument and evidence supporting it before the judge who
presided over the prior proceedings. We take no view on whether
the mother should pursue such a petition. We simply note that
this avenue is available to her.
We now turn to the merits of the mother's appeal. We need
not provide a detailed summary of the judge's findings. It
suffices to note the following relevant facts. Edward was born
2 prematurely, and substance exposed on August 19, 2010. The
department became involved with the family at that time, and
again in 2013, after the mother sought services from the
department due to her belief that Edward had been sexually
abused by her mother (grandmother) and the grandmother's
boyfriend. The department engaged with them once more in 2019
in response to reports that the mother neglected to send Edward
to school regularly. The department began working with the
mother to assist her in obtaining services for both herself and
for Edward, but she remained uncooperative. During this time,
the mother made numerous reports claiming that Edward was being
sexually assaulted by unknown persons, and that the police and
Federal Bureau of Investigation were working together to turn
her son away from her. At a later point, the mother claimed
that the department had installed cameras in her home.
The mother eventually stopped sending Edward to school
during the 2019-2020 school year and was charged with failure to
send her child to school. The mother then chose to homeschool
Edward. The judge found that this decision resulted in
significant harm to Edward's educational progress. In addition,
the mother neglected to bring Edward to see his pediatrician
from June 2019 to April 2021. Edward's health declined during
this period. He gained approximately sixty pounds, used a
walker, and had trouble walking long distances.
3 In June, 2021, the department filed a care and protection
petition and sought temporary custody of Edward. Edward was
removed from the mother's custody on June 25, 2021, and placed
in a kinship foster placement with his maternal aunt.
Throughout the following year, the mother was inconsistent in
visiting Edward and refused to engage in mental health services
or meet with the department. The mother was hospitalized around
the same time Edward was removed from her care and was diagnosed
with an unspecified schizophrenic spectrum and other psychotic
disorder after she presented as extremely paranoid. She was
hospitalized again in May and August 2022 and diagnosed with
bipolar disorder, posttraumatic stress disorder, anxiety, and
depression. Notwithstanding these diagnoses, by the time of
trial, the mother had made significant progress. She was
engaged in psychiatric services and was more cooperative with
the department. She also was more consistent with her
visitation schedule. However, the judge found that despite this
improvement, the mother had not demonstrated a sufficient
commitment to addressing her mental health needs such that she
could assume parental responsibilities. He found that in
addition to the mother's mental health struggles, she had not
demonstrated an ability to meet Edward's medical, educational,
and emotional needs. Nor was the mother able to provide stable
housing. In 2018, due to her unemployment, the mother had
4 fallen behind on rent and was evicted from her apartment. She
later lost her housing, obtained through the South Middlesex
Opportunity Council (SMOC), where she had been residing with
Edward at the time he was removed because, without custody of
Edward, she no longer met the shelter's requirements.
Meanwhile, Edward's health and education improved
significantly while residing with his aunt. The judge noted
that Edward is "very perceptive" regarding his mother's issues
and was "comfortable" living with his aunt, her fiancé, and his
cousin, with whom he had developed a sibling relationship.
Discussion. The mother first argues that two of the
judge's findings and related conclusions of law, with respect to
her housing situation, are clearly erroneous. The mother is
correct that it is not completely accurate that she was
"evicted" from SMOC housing. Rather, she lost such housing
because Edward was no longer living with her, and the Housing
Court proceeding against her ended not in an eviction, but in an
agreement for judgment; 3 however, these discrepancies are not
material because the mother's housing instability was only one
factor the judge considered in reaching his conclusion. See
3 We also note that the judge was entitled to credit the testimony of SMOC's division director about the difficulties the mother, who had been "terminated" from the shelter and evicted in 2018 from other housing, would face in obtaining housing in the future. See Custody of Eleanor, 414 Mass. 795, 800 (1993).
5 Adoption of Yalena, 100 Mass. App. Ct. 542, 553 (2021) (even if
contested findings are erroneous, unfitness conclusion stands if
supported by other clear and convincing evidence). Far more
significant was the mother's inability to address her son's
needs due to her mental health challenges. As the judge noted,
the mother had made progress at the time of trial. Nonetheless,
the judge properly considered the mother's past and did not, as
the mother asserts, abuse his discretion or err as a matter of
law in reasoning that her prior history was indicative of her
current fitness. See Adoption of Katharine, 42 Mass. App. Ct.
25, 32-33 (1997) (a judge "may consider past conduct to predict
future ability and performance").
We further conclude that the evidence presented at trial
demonstrates that the department made reasonable efforts to
assist the mother, including with housing, throughout its
involvement with her and Edward. Although the mother raises
this issue for the first time on appeal and, therefore, we need
not consider it, see Adoption of Gregory, 434 Mass. 117, 124
(2001), the record supports, by a fair preponderance of the
evidence, the judge's determination that the department's
efforts to provide assistance towards reunification were
reasonable under the circumstances. See Care & Protection of
6 Rashida, 489 Mass. 128, 137 (2022). Accordingly, the judgment
is affirmed.
So ordered.
By the Court (Vuono, Singh & Hershfang, JJ. 4),
Clerk
Entered: January 13, 2025.
4 The panelists are listed in order of seniority.