Care and Protection of Glenda.

• Court: Massachusetts Appeals Court
• Decided: April 4, 2024
• Docket: 23-P-0668
• Status: Unpublished

Opinion

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

23-P-668

CARE AND PROTECTION OF GLENDA.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, Glenda, and committing the

child to the permanent custody of the Department of Children and

Families (DCF).2 The mother argues that the judge, in finding

the mother unfit to care for the child, improperly focused on

the mother's care of the child's younger brother. The mother

also claims that the judge erred in finding her unfit to parent

the child by clear and convincing evidence. We affirm.

1 A pseudonym.

2In addition to finding the mother unfit to parent the child, the judge found that the father was unfit. He did not appeal. The judge also found that DCF had not made reasonable efforts toward reunification, and ordered DCF to update the parents' action plan, convene a permanency planning conference to determine a goal for the family, provide the mother with weekly visits with the child, and confirm participation with all collaterals on a monthly basis. 1. Focus on the younger brother. The mother argued that

the trial judge's focus on the mother's care of the child's

younger brother was improper. We disagree. The mother is

correct that "[a] determination of parental unfitness must be

child-specific" and must focus on the particular child at issue.

Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004), citing

Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985). It is also

true, however, that a parent's care for a child's sibling may

bear on the parent's fitness to care for the subject child. See

Adoption of Carla, 416 Mass. 510, 513 (1993) (stating that

parent's fitness to raise one child is relevant to their fitness

to raise sibling, and noting that "a parent may be fit to raise

one child and unfit to raise another," but parent may also "be

unfit to raise any child" [citation omitted]).

In this case, the trial judge found that the mother had

missed several medical appointments for the younger brother, who

had a number of specialized health needs. The younger brother

was born premature and spent three months in the neonatal

intensive care unit (NICU) before being discharged to the

mother's custody. He was diagnosed with failure to thrive and

needed a nasal gastro tube to be fed. When the tube became

dislodged, medical providers requested that he be brought to the

hospital immediately, as he needed to be fed every three hours,

but the mother did not bring him in until the next day, at which

2 point he had lost 1.5 ounces. The mother later failed to bring

the younger brother to several other medical appointments, and

he lost more than one pound while in her care. The younger

brother was ultimately removed from the mother's custody due to

medical neglect.

The mother challenges this focus on the younger brother, as

the case at hand is not about him, but about Glenda. The trial

judge did not, however, consider only the mother's medical

neglect of the younger brother; indeed, the trial judge also

focused on the mother's medical neglect of Glenda, and even of

herself, in coming to the conclusion that the mother was unfit

to parent the child.

Although the child does not have as many specialized health

needs as the younger brother, she has required specialized care.

The child was born one month premature and spent one month in

the NICU before being discharged to the mother's care.

Approximately one month after the child's birth, shortly after

the child was released from the NICU, the mother failed to bring

her in for her initial follow-up medical appointment. The

mother then failed to bring her to the following seven

rescheduled appointments. Although the mother contends that the

child had "no chronic medical issues," the trial judge came to

the reasonable conclusion that failure to bring the child to her

first follow-up appointment after being released from the NICU

3 (and seven attempts at rescheduling) constituted medical

neglect.

The trial judge also found that the mother has not managed

her own health consistently. A parent's failure to seek medical

treatment for herself can result in danger to the child. See

Petition of the Dep't of Social Servs. to Dispense with Consent

to Adoption, 16 Mass. App. Ct. 965, 965 (1983). The mother has

several physical and mental health diagnoses, including

diabetes, epilepsy, asthma, posttraumatic stress disorder

(PTSD), and bipolar disorder, and she also has a history of

substance abuse. Despite these health issues, the mother has

been inconsistent with her treatment. She attended only four

appointments with her neurologist between the summer of 2020 and

December 2021, and has since missed several more appointments.

She attended a few appointments for trauma therapy during the

summer of 2021, but stopped soon after in the fall of 2021.

Similarly, she attended one appointment with a psychiatrist, but

declined to attend the follow-up appointment. The mother later

began individual therapy, but when her regular therapist went on

leave for approximately six months, the mother did not engage in

therapy with the substitute therapist. The mother has also

misrepresented her treatment to DCF, stating that she had weekly

appointments with her substance abuse counsellor despite the

4 fact that, according to the counsellor, they did not have a

regular meeting schedule.

The incident that precipitated the child's removal

demonstrates how the mother's failure to care for her own health

could impact the child. The mother had a medical marijuana

card, as she used marijuana to treat her epilepsy. On the day

of the child's removal, the mother purchased marijuana from an

acquaintance rather than using her medical marijuana card at a

dispensary. After using this marijuana, the mother lost

consciousness and had to be taken to the hospital, where she

tested positive for cocaine. The mother stated that she

believed the marijuana was laced with cocaine. The child was in

the home sleeping when this occurred. Although the child was

asleep and the mother's brother was also in the home, he was

asleep and not acting as a sober caretaker for the child. Based

on this incident, the trial judge could reasonably conclude that

the mother's failure to properly treat her epilepsy could place

the child at risk if returned to the mother's custody.

Taken together with the mother's failure to maintain her

own health properly and her medical neglect of the child, the

mother's medical neglect of the younger brother was not an

improper consideration for the trial judge, as it offered

evidence of a pattern of behavior and therefore had prognostic

value. Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986).

5 2. Sufficiency of the evidence. The mother also argues

that the evidence was 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, including the mother's medical neglect of the

child, the mother's unsafe use of marijuana, the environment of

domestic violence, and the mother's inconsistent visitation with

the child.

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).

a. Marijuana use. In addition to the medical neglect of

the child, described above, the trial judge relied on the

mother's unsafe use of marijuana in finding her currently unfit

to parent the child. Substance abuse is a relevant

6 consideration in a determination of unfitness if 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 has consistently used marijuana since the age of

eighteen, and she uses it to treat her epilepsy. Against

medical advice, the mother used marijuana while pregnant with

the child. The trial judge found that the mother's marijuana

use during her pregnancy "contribut[ed] to [the child] being

born premature," a finding the mother does not contest as

clearly erroneous, though she does note there is evidence that

might support an opposite conclusion. She did disclose her

marijuana use to her medical providers, causing the child to be

labeled a substance-exposed newborn (despite the fact that both

the mother and child tested negative for all substances). The

mother claimed she was not told by medical providers to stop

using marijuana while pregnant, but the trial judge did not

credit that statement. At trial, the mother testified that she

continued to use marijuana one to two times per week.

As noted above, the child was removed following the

mother's collapse after she used marijuana that she purchased

from an acquaintance rather than a dispensary, and which she

later claimed to have come to believe was laced with cocaine

after a urine screen came back positive for cocaine. At the

7 time of the incident, emergency workers noticed marijuana

wrappers and a "heavy odor of marijuana" in the mother's

apartment.

After the child's removal, DCF created a medical marijuana

safety plan with the mother that included "1) no smoking in the

apartment with the child[] present, 2) having a sober adult

present in the apartment when Mother was under the influence, 3)

following Mother's medical providers' advice on intake amount,

4) only buying from medical marijuana dispensaries, 5) and

storing the medical marijuana safely in a lockbox provided by

[DCF]." Despite this safety plan, after each of four overnight

visits with the mother, the child would return to her foster

family with an odor of marijuana, which led the trial judge to

conclude that the mother "continued to use substances in the

presence of [the child]," a finding that is not, as the mother

claims, clear error given the evidence that there was an odor of

marijuana on the child after overnight visits, in the apartment,

and in mother’s car, even if the odor in the apartment was not

of concern to the social worker. And at the time of trial, the

mother continued to smoke marijuana despite being pregnant.

According to G. L. c. 94G, § 7 (d), "[a]bsent clear,

convincing and articulable evidence that the person's actions

related to marijuana have created an unreasonable danger to the

safety of a minor child," legal possession and consumption of

8 marijuana shall not "form the sole or primary basis for

substantiation, service plans, removal or termination or for

denial of custody, visitation or any other parental right or

responsibility." In this case, the mother's unsafe marijuana

use did create an unreasonable danger to the safety of the

child. On the day of the child's removal, the mother used

marijuana from an unregulated source and had to be brought to

the hospital, leaving the child in her apartment while no sober

caretaker was present and awake. Additionally, after a

marijuana safety plan was put in place, the judge found that the

mother was not following it, as she was using marijuana in the

presence of the child. Even if the mother's marijuana use did

not create an unreasonable danger to the safety of the child, it

was not the sole basis for the judge's finding of unfitness, as

the judge also relied on the mother's pattern of medical

neglect, including of the child, the environment of domestic

violence, and her inconsistent visitation with the child.

b. Domestic violence. In his determination that the

mother was unfit to parent the child, the judge considered the

fact that the majority of the mother's relationships have

involved domestic violence. "[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).

9 The mother's relationship with the father involved verbal

and emotional abuse. The mother never sought a restraining

order against the father. After the mother's relationship with

the father ended, she entered a relationship with the younger

brother's father, and this relationship also involved domestic

violence. The details of the domestic violence are known to the

parties and need not be recounted here. What is relevant is

that, despite numerous instances of domestic violence with the

younger brother's father, several of which involved physical

abuse, the mother continued her relationship with him for over a

year after the first incident and even lived with him. The

mother also declined to pursue a restraining order against him,

and failed to report certain incidents to DCF. The younger

brother's father was eventually arrested due to an incident of

domestic violence with the mother, and then was released from

incarceration several months later. The mother testified that

she has not had contact with him following his release, but the

trial judge did not credit that testimony. Although there was

no evidence that the child ever witnessed any domestic violence,

the trial judge did not err in considering the effect that

domestic violence could have if the child were returned to the

mother's custody, 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).

10 c. Inconsistent visitation. Finally, the judge considered

the mother's inconsistency in visiting the child in his

determination that the mother was unfit to parent the child.

This was an appropriate consideration for the trial judge in

determining the mother's unfitness, as "the refusal of the

parents to maintain service plans, visitation schedules, and

counseling programs designed to strengthen the family unit are

relevant to the determination of unfitness." Petitions of the

Dep't of Social Servs. to Dispense with Consent to Adoption, 399

Mass. 279, 289 (1987).

After the child was removed from the mother's custody, the

mother was initially consistent with her visitation. However,

by November 2021, the mother's visitation became much more

inconsistent. Because the mother cancelled numerous visits, she

did not attend any visits with the child in November or

December, and attended only one visit in January and one in

February. Then in March, she once again had no visits.

Although the mother attended several visits in April, she still

cancelled three visits, and in May, she had only one visit,

because she cancelled four. The mother's visits with the child

were suspended for several months following the younger

brother's removal, but were reinstated in July 2022. Even after

that months-long break in visitation, the mother continued to

cancel several visits over the following months.

11 3. Conclusion. Based on all of the above considerations,

there was sufficient evidence for the trial judge to find by

clear and convincing evidence that the mother was, at the time

of trial, currently unfit to parent the child.

Judgment affirmed.

By the Court (Rubin, Massing & Desmond, JJ.3),

Assistant Clerk

Entered: April 4, 2024.

3 The panelists are listed in order of seniority.