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
22-P-1166
CARE AND PROTECTION OF EDWINA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a judgment issued by a Juvenile
Court judge pursuant to G. L. c. 119, § 26, finding the mother
currently unfit to parent her child, Edwina, and committing the
child to the permanent custody of the Department of Children and
Families (DCF).2 In a thoughtful decision, the judge also found
that DCF had not made reasonable efforts toward reunification
and therefore ordered DCF to increase both the duration and
frequency of the mother's parenting time with the child. The
mother appealed from the judge's determination that she is
currently unfit to parent the child. The mother first argues
1 A pseudonym. 2 As to the father, the judge found that he had engaged in serious acts of domestic violence against the mother, assaulting her at least once in the child's presence. The father stipulated that he was unfit and that the child was in need of care and protection. He was thus found "unfit as a result of being unwilling, incompetent, or unavailable." The father did not appeal that decision. that the trial judge failed to make sufficiently specific and
detailed findings in that she did not address the mother's
expert witness's testimony. Second, she argues that the trial
judge erred in finding her unfit to parent the child by clear
and convincing evidence, asserting that she adequately managed
her mental health and substance use challenges, was no longer in
a relationship involving domestic violence, and had a sufficient
plan for housing in the event that the child was returned to her
care. We remanded the case for the trial judge to supplement
her findings and conclusions to address the evidence provided by
the mother's expert witness. Now that the trial judge has
issued supplemental findings regarding the expert testimony, the
mother argues that such findings are not entitled to traditional
deference, as they were issued "nearly two years since the trial
ended." We affirm the judgment, but because we appreciate this
concern raised by mother with respect to these findings, we
tailor our decision to address them.
1. Background. a. Factual history. The mother has a
history of challenges with mental health, substance abuse, and
domestic violence. She has been diagnosed with attention
deficit hyperactivity disorder (ADHD), anxiety, and
posttraumatic stress disorder (PTSD), and has been involuntarily
hospitalized for mental health concerns three times, most
recently in 2019 when the child was removed from her home. At
2 the time of trial, the mother's only prescription medication was
Adderall, although she had been prescribed other medications at
other times. The mother testified that she is an alcoholic,
that she regularly uses marijuana, and that she has abused her
prescribed medications in the past. She also testified that all
of her intimate relationships have involved domestic violence.
When the child was born in December 2018, a report was
filed pursuant to G. L. c. 119, § 51A (51A report), alleging
that both the child and the mother tested positive for
amphetamines, and that the mother had tested positive for
marijuana during her pregnancy. This report did not result in
removal of the child, as DCF determined that, despite the
presence of amphetamines in both mother and child's blood, the
mother was appropriately caring for the child.
In July 2019, DCF received another 51A report alleging
that, while the mother and father were intoxicated, there was an
altercation outside the maternal grandmother's home, and both
parents were arrested.3 At the time of the incident, the
maternal grandmother was inside the home with the child, who was
about seven months old. This incident led to DCF removing the
child from the mother's care. This was not the first incident
3 There is some question as to whether the altercation was physical or not, as the 51A reporter stated that it was physical but the mother and father denied that. Whether the altercation was physical or not has no bearing on our decision.
3 involving domestic violence that occurred while the child was in
the parents' custody. In early 2019, while both the mother and
father were intoxicated, the father pulled the mother's hair and
threw her to the ground, and during that incident, the child was
in a portable crib in the same room. The mother then called the
maternal grandmother to pick up both the mother and the child.
The mother did not, however, inform DCF about the incident.
There were other incidents of domestic violence both before the
child was born and after removal, the details of which are known
to the parties and need not be recounted here. At the time of
trial, the mother was no longer in a relationship with the
father, although they were still legally married.
The mother has also struggled with housing instability
during the pendency of this case. Between the child's birth and
her removal, the mother lived with and paid rent to the maternal
grandmother. For a brief period in 2020, after the child's
removal, the mother and father were homeless, living out of a
car at campsites. The mother has also stayed in a domestic
violence shelter on two occasions since 2019. At the time of
trial, the mother was living "off and on" with her uncle, but
she did not think that home was an appropriate place for the
child, as another resident of the home was abusing prescription
drugs. She also did not think living with maternal grandmother
would be appropriate for the child. The mother was on a housing
4 voucher list, and, if given custody of the child, planned to
obtain a housing voucher.
b. Compliance with action plans. The mother's most recent
action plan from DCF, dated October 2020, included the following
tasks: meet with the social worker once a month, attend visits
with the child and confirm them the day prior, engage in therapy
and with the parent aide, take medications as prescribed, sign
releases, submit Adderall blood levels, and obtain a
neuropsychological evaluation. The mother has completed all
tasks on the action plan except providing Adderall blood levels
and obtaining a neuropsychological evaluation. Although DCF had
not received blood tests showing consistent and appropriate
Adderall usage, the DCF social worker testified that the
mother's therapist and psychiatrist were not concerned about the
mother's use of her prescription. As for the neuropsychological
evaluation, the mother stated that it would be triggering for
her, but did not provide any further explanation why she
neglected to follow through with this requirement. The trial
judge found that the mother had demonstrated an unwillingness to
complete the evaluation. The mother did attend all visits with
the child, arrived prepared with toys and snacks for the child,
and behaved appropriately with the child.
c. Mother's expert witness's testimony. Over the course
of the trial, which occurred in December 2021, the judge heard
5 testimony from three witnesses: the mother, the DCF social
worker, and the mother's expert witness. The trial judge's
findings of fact and conclusions of law, issued in March 2022,
cited to the mother's and DCF social worker's testimony numerous
times, but did not refer at all to the mother's expert witness's
testimony. The mother's witness, who was qualified as an expert
in parenting assessments and trauma reactivity by the trial
judge, was a social worker who completed a parenting evaluation
of the mother. This evaluation was based on meetings with the
mother; speaking with her providers and the DCF social worker;
reviewing the mother's records; and observing a one-hour visit
between the mother and the child.
Because the judge made no findings or conclusions regarding
the expert witness's testimony, we remanded for supplemental
findings addressing what significance, if any, this evidence had
on her determination of unfitness.
The trial judge submitted supplemental findings and
conclusions in September 2023, stating which aspects of the
expert witness's testimony the judge did and did not credit. In
a footnote she wrote, "The case in the Juvenile Court is
currently in review and redetermination proceedings, wherein
both [DCF] and the child seek termination of mother's parental
rights. Trial has been continued pending completion of a
competency evaluation of mother after she sought on the one hand
6 to waive counsel and represent herself and, on the other, to
stipulate to a judgment terminating her parental rights and to
enter into an open adoption agreement."4
2. Discussion. a. Mother's expert witness's testimony.
The mother originally argued that the lack of any mention of her
expert witness in the trial judge's findings and conclusions
meant that the trial judge had not made sufficiently specific
and detailed findings. Now that the trial judge has issued
supplemental findings addressing the expert testimony, the
mother argues that, because the supplemental findings were
issued nearly two years after the trial, they are not entitled
to the deference traditionally given to a trial judge's findings
of fact.
In determining that a parent is unfit to care for their
child, a trial judge must make "specific and detailed" findings
"so as to demonstrate that close attention has been given the
4 This is not itself a case involving the possible termination of parental rights, and, having been informed at argument that a review and redetermination proceeding under G. L. c. 119, § 26, was pending, but stayed, in the trial court, we were concerned that our remand order might delay the ultimate resolution of the placement of the child. Consequently, in our remand order we said, "The pendency of this appeal (including this remand) shall not delay the Review and Redetermination Proceeding under G. L. c. 119, § 26, that we are informed is now pending in the trial court, which may proceed forthwith. The order currently under review in this matter and that is the subject of this order shall be of no force or effect in that review and redetermination proceeding."
7 evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993). A
judge's findings are entitled to substantial deference; they
"must be left undisturbed absent a showing that they clearly are
erroneous." Care & Protection of Martha, 407 Mass. 319, 327
(1990). A judge's assessment of a witness's credibility is also
entitled to deference. See Petition of Dep't of Social Servs.
to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986).
However, the passage of time may call the accuracy of a judge's
findings into question, particularly with regard to a witness's
demeanor and credibility. See Adoption of Rhona, 57 Mass. App.
Ct. 479, 486 (2003) ("We establish no per se rule or presumption
concerning the length of time after which the accuracy of a
judge's findings may be called into question. However, a lapse
of three and one-half years after trial began and two years
after trial ended strains the outer limits of any judge's
ability to remember witness demeanor and credibility. In this
case, a number of the judge's findings are contradicted by the
evidence, suggesting that such limits were exceeded").
In the case at hand, only three months passed between the
trial and the issuance of the original findings and conclusions.
Cf. Adoption of Rhona, 57 Mass. App. Ct. at 486 (trial judge did
not enter any findings until two years after end of trial).
Although nearly two years passed between the trial and the
issuance of the trial judge's supplemental findings, the
8 supplemental findings detail exactly which elements of the
testimony the judge credited and those that she did not. The
trial judge stated that she credited the expert witness's
testimony that the mother has PTSD, which renders her less able
to control her emotional functioning and self-control when
triggered. However, the trial judge stated that she did not
credit the expert witness's testimony that the mother's lack of
control over her emotional functioning would not inhibit her
ability to parent the child, particularly given the expert's
limited observations of the mother and the child. While we
understand the concern about the length of time that has passed
between trial and the judge's supplemental findings, we think it
apparent based on an examination of the expert testimony and the
judge's detailed findings that she considered the expert
witness's testimony when making her original decision.5
5 The mother need not be concerned that the determination of unfitness in this matter will be given deference in the review and redetermination proceeding, an issue she raised in a motion for reconsideration of our remand order. It will not. "In a proceeding to commit a child to the custody of the department under G. L. c. 119, § 26, the department bears the burden of proving, by clear and convincing evidence, that a parent is currently unfit to further the best interests of a child and, therefore, the child is in need of care and protection" (emphasis added). Care & Protection of Erin, 443 Mass. 567, 570 (2005). When Erin speaks of building on findings, it is clear that it means factual findings, not the legal conclusion of unfitness. Consequently, the mother's motion is denied.
9 b. Determination of unfitness. The mother also argues
that the trial judge's findings were insufficient to prove by
clear and convincing evidence that she was unfit to parent the
child. We disagree, as there was significant evidence
supporting the trial judge's decision.
For a judge to commit a child to DCF's custody, DCF must
prove, "by clear and convincing evidence, that a parent is
currently unfit to further the best interests of a child." Care
& Protection of Erin, 443 Mass. 567, 570 (2005). A finding that
a parent is unfit requires "more than ineptitude, handicap,
character flaw, conviction of a crime, unusual life style, or
inability to do as good a job as the child's foster parent."
Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). The
judge must instead find "'grievous shortcomings or handicaps'
that put the child's welfare 'much at hazard.'" Id., quoting
Petition of New England Home for Little Wanderers to Dispense
with Consent to Adoption, 367 Mass. 631, 646 (1975).
In finding the mother unfit to parent the child, the trial
judge relied in part on concerns regarding the mother's mental
health. Mental health concerns are relevant to a determination
of parental unfitness if they "affect[] the parents' capacity to
assume parental responsibility." Adoption of Frederick, 405
Mass. 1, 9 (1989). The mother has been diagnosed with ADHD,
anxiety, and PTSD. On three occasions, most recently at the
10 time of the child's removal in 2019, the mother has been
involuntarily hospitalized due to mental health concerns. To
address these mental health challenges, the mother has been
engaged in therapy and in treatment with a psychiatrist. The
mother's psychiatrist has recommended that the mother take
antianxiety medications, but the mother declined, as she did not
believe her anxiety impacted her parenting ability.
While the trial judge did find that the mother's "mental
health ha[d] improved over the duration of this case," she was
concerned that the mother at times engaged in erratic and
confrontational behavior. This behavior was evidenced by an
occasion in May 2020 in which the mother sent approximately
thirty e-mail messages to DCF and e-mailed the child's foster
mother, and an August 2021 meeting in which the DCF social
worker noted that the mother behaved erratically. The trial
judge was also concerned that the mother would not "seek help to
keep [the child] safe in the event of a mental health crisis or
other stressor." Additionally, part of the mother's action plan
required that she complete a neuropsychological evaluation, but
the mother has refused to do so. This failure to comply with
DCF's action plan demonstrates the mother's lack of insight into
her own mental health challenges, a lack of transparency with
DCF, and a failure to take advantage of all treatment and
support options.
11 In addition to mental health challenges, the mother has
struggled with substance abuse. Substance abuse is a relevant
consideration in a determination of unfitness, but only where
the substance abuse interferes with a parent's ability to
provide minimally acceptable care of the child. See Adoption of
Katharine, 42 Mass. App. Ct. at 31. The mother testified that
she is an alcoholic, but stated that she has been sober since
her pregnancy with the child. However, the mother has used
alcohol on two occasions since the child's birth, which the
mother considers to be relapses. She testified that she has not
used alcohol since the child's removal, but she was intoxicated
on that occasion. The mother also uses marijuana three to four
times a week, and she tested positive for marijuana during her
pregnancy with the child. The mother and the child both tested
positive for amphetamines at the time of the child's birth. The
mother testified that, in the past, she had abused her
prescription medications, but she has since stopped and is no
longer prescribed those medications. (The mother does attend a
narcotics and alcoholics anonymous group, and has developed a
relapse prevention plan with her therapist.)
The mother is prescribed Adderall for her ADHD, and DCF
requested in its action plan that the mother submit blood tests
showing appropriate Adderall usage. The mother has failed to
comply with this aspect of her action plan. However, the
12 mother's therapist and her psychiatrist were not concerned about
the mother's Adderall usage, and even the DCF social worker was
unable to articulate at trial why DCF had concerns about the
mother's Adderall levels. Because "failure to comply with
[DCF's] service plan is less important where the tasks in the
plan are not closely related to any clearly identified parental
deficiencies," Adoption of Zoltan, 71 Mass. App. Ct. 185, 192
(2008), we do not find the mother's failure to comply with this
aspect of her action plan to be dispositive. That said, her
lack of cooperation with DCF by failing to provide the Adderall
blood levels and the neuropsychological evaluation, as well as
the mother's struggles with substance abuse, were appropriate
considerations for the trial judge in her determination of
unfitness.
The trial judge also remained concerned about the mother's
history of domestic violence and her failure to report incidents
of domestic violence to DCF. A child who witnesses domestic
violence "suffers a distinctly grievous kind of harm." Custody
of Vaughn, 422 Mass. 590, 595 (1996). "[A] judge must consider
issues of domestic violence and its effect upon the child[] as
well as a parent's fitness." Adoption of Gillian, 63 Mass. App.
Ct. 398, 404 n.6 (2005). All of the mother's intimate
relationships have involved domestic violence, and the mother
remained in each these relationships for several years.
13 The removal of the child was precipitated by an incident
involving domestic violence between the mother and the father.
Additionally, on two occasions since the child's birth, once
before the child's removal and once after, the mother neglected
to report incidents of domestic violence between the mother and
the father to DCF. Although the child was present for only one
of those unreported incidents, the trial judge was appropriately
concerned that the unreported incidents signified that the
mother would not report future incidents of domestic violence
and thereby would not protect the child from harm. This finding
by the trial judge was appropriate as, "[i]n determining
parental fitness a judge may use past conduct to predict future
ability and performance." Custody of Michel, 28 Mass. App. Ct.
260, 269-270 (1990). The mother is now separated from the
father and testified that she would refrain from engaging in
intimate relationships so as to protect the child from any
domestic violence, but the trial judge relied on the mother's
"pattern of remaining in relationships with domestic violence"
in finding that this strategy was not realistic. The mother
also failed to admit that the father was "an abuser," because he
was intoxicated in each of the three instances of domestic
violence. This denial demonstrates the mother's lack of insight
into domestic violence.
14 The mother's housing instability also poses a considerable
challenge to her care of the child. Housing instability is a
"proper consideration[] in an unfitness determination."
Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018). Although
the mother has lived with the maternal grandmother in the past
with the child and currently lives with her uncle, she does not
believe it would be appropriate for the child to live with
either relative. If the mother were to obtain custody of the
child, she hoped to receive a housing voucher, for which she was
on a list. (The mother also testified that she could seek
placement at a Department of Transitional Assistance shelter,
though the judge made no finding on the point. Despite engaging
with a parent aide who assisted her with housing, the mother
appears not to have obtained such housing.) The trial judge
found it likely that the housing instability that mother has
displayed would continue even if the child were returned to her
care.
We acknowledge that the mother has, as the trial judge
found, "engaged in many of the services requested by [DCF]" and
has made significant progress. However, we also conclude that,
considering the evidence discussed above, the trial judge did
not err in finding by clear and convincing evidence that the
mother was, at the time of trial, unfit to care for the child.
We note that many of the concerns laid out above could be
15 transitory, and the question of unfitness will of course have to
be redetermined on the current record in the pending review and
redetermination proceeding, as more than two years have passed
since the trial.
Judgment affirmed.
By the Court (Rubin, Neyman & Walsh, JJ.6),
Assistant Clerk
Entered: March 8, 2024.
6 The panelists are listed in order of seniority.