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-868
CARE AND PROTECTION OF HUNTER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge determined that the father of Hunter
was currently unfit to parent him and awarded custody of Hunter
to his mother. See G. L. c. 119, §§ 24, 26; G. L. c. 210, § 3.
The father appeals, primarily arguing that the judge's
subsidiary findings -- the "core" of the judge's unfitness
determination -- were clearly erroneous. We affirm.
Background. We summarize the judge's findings of fact and
conclusions of law, while reserving further details for
discussion. In June or July 2021, the mother moved to
Massachusetts and into the father's home, where several of his
family members also lived. The home was filthy, smelt like
marijuana, and had garbage littered throughout. The family had
seven dogs, whose feces and urine were all over the house, along
1 A pseudonym. with rodents, roaches, and bed bugs. Subsequently, the house
was condemned by the Medford Fire Department and the board of
health of Medford in November 2022.
Throughout the mother and the father's relationship, the
father assaulted the mother. For instance, he slapped her in
the face, bit her arm, pushed her down, punched her, and swore
at her. The father continued to assault the mother while she
was pregnant. The father's family members also abused the
mother in the presence of the father, who did nothing or joined
in the abuse.
Hunter was born on October 2, 2022. In January 2023, the
Department of Children and Families (the department) filed a
care and protection petition for Hunter, alleging there was
domestic violence and poor living conditions at the father's
home. After a temporary custody hearing on January 17, 2023, a
judge ordered custody of Hunter to remain with the department.
On February 20, 2024, the judge found the father currently unfit
and awarded custody of Hunter to the mother. The father
appealed.
Discussion. 1. The father's unfitness. The father
contends that the judge erred in finding, by clear and
convincing evidence, that he is unfit to provide for the welfare
and best interests of Hunter. "Parental unfitness must be
2 determined by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993).
Subsidiary findings in care and protection cases must be proved
by a fair preponderance of the evidence, and taken together,
must then prove current parental fitness clearly and
convincingly. See Custody of Eleanor, 414 Mass. 795, 799
(1993). The trial judge, "who hears the evidence, observes the
parties, and is most familiar with the circumstances remains in
the best position to make the judgment" as to parental fitness.
Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). The
judge's subsidiary findings will not be disturbed unless they
are clearly erroneous. See Adoption of Quentin, 424 Mass. 882,
886 (1997).
Here, the evidence was sufficient for the judge to conclude
the father lacked parental fitness. Over the course of a seven-
day trial, the judge heard testimony from four witnesses and
twenty documents were admitted as exhibits. The judge carefully
issued 146 detailed factual findings and thirty-three
conclusions of law. The judge's subsidiary findings were amply
supported by the evidence, and considered together, established
3 by clear and convincing evidence that the father was unfit.2 See
Adoption of Anton, 72 Mass. App. Ct. 667, 672-673 (2008).
Predominant among the judge's findings was the father's history
of domestic violence and the father's unsafe home environment
that placed Hunter at risk of neglect.
Domestic violence "within a family is highly relevant to a
judge's determination of parental unfitness." Adoption of
Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Custody of
Vaughn, 422 Mass. 590, 599-600 (1996); Care & Protection of
Lillith, 61 Mass. App. Ct. 132, 139 (2004).
The father's history of domestic violence toward the mother
and his inability to protect her from abuse by his family
members was pervasive. The judge found that the father
subjected the mother to verbal, emotional, and physical abuse,
including slapping her in the face; biting her arm; dragging her
across a room and pushing her down while she was pregnant;
smashing her phone; cursing at her; and, in response to the
2 The father challenges three of the judge's factual findings as clearly erroneous. Much of the father's arguments amounts to mere dissatisfaction with the judge's weighing of the evidence and her credibility determinations. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). For example, the judge was entitled to discredit the father's claim that he was the victim of domestic violence by the mother. Thus, we discern no basis to disturb the judge's view of the evidence and conclude that substantial evidence supports the judge's findings.
4 father's sister slapping the mother, telling the mother she
"deserved it." The judge also found that the father's family
subjected the mother to abuse, including slapping her; giving
her a black eye; throwing cold water in her face; pulling her
hair; throwing a can at her; cursing at her; hitting her in the
arm with a shoe; throwing a phone at her head; and punching and
hitting her in the head and breaking her glasses. Finally, the
mother witnessed the father's parents fight and push one
another.
We discern no error in the judge's determination that,
despite the father's participation in some of the services
available to him,3 including therapy and parenting classes, his
failure to benefit from those services left him unfit to parent
Hunter. See Adoption of Terrence, 57 Mass. App. Ct. 832, 835-
836 (2003) (parent's mere participation in parenting programs,
"without evidence of appreciable improvement in her ability to
meet the needs of the child, does not undermine a finding of
unfitness").
Although the father completed some tasks from his action
plan, such as engaging in a mental health evaluation, he has not
completed the necessary intake paperwork for a responsible
3 Contrary to the father's argument, the judge did acknowledge the father's engagement in some services.
5 fatherhood program or a neurological evaluation.
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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-868
CARE AND PROTECTION OF HUNTER.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Juvenile Court judge determined that the father of Hunter
was currently unfit to parent him and awarded custody of Hunter
to his mother. See G. L. c. 119, §§ 24, 26; G. L. c. 210, § 3.
The father appeals, primarily arguing that the judge's
subsidiary findings -- the "core" of the judge's unfitness
determination -- were clearly erroneous. We affirm.
Background. We summarize the judge's findings of fact and
conclusions of law, while reserving further details for
discussion. In June or July 2021, the mother moved to
Massachusetts and into the father's home, where several of his
family members also lived. The home was filthy, smelt like
marijuana, and had garbage littered throughout. The family had
seven dogs, whose feces and urine were all over the house, along
1 A pseudonym. with rodents, roaches, and bed bugs. Subsequently, the house
was condemned by the Medford Fire Department and the board of
health of Medford in November 2022.
Throughout the mother and the father's relationship, the
father assaulted the mother. For instance, he slapped her in
the face, bit her arm, pushed her down, punched her, and swore
at her. The father continued to assault the mother while she
was pregnant. The father's family members also abused the
mother in the presence of the father, who did nothing or joined
in the abuse.
Hunter was born on October 2, 2022. In January 2023, the
Department of Children and Families (the department) filed a
care and protection petition for Hunter, alleging there was
domestic violence and poor living conditions at the father's
home. After a temporary custody hearing on January 17, 2023, a
judge ordered custody of Hunter to remain with the department.
On February 20, 2024, the judge found the father currently unfit
and awarded custody of Hunter to the mother. The father
appealed.
Discussion. 1. The father's unfitness. The father
contends that the judge erred in finding, by clear and
convincing evidence, that he is unfit to provide for the welfare
and best interests of Hunter. "Parental unfitness must be
2 determined by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993).
Subsidiary findings in care and protection cases must be proved
by a fair preponderance of the evidence, and taken together,
must then prove current parental fitness clearly and
convincingly. See Custody of Eleanor, 414 Mass. 795, 799
(1993). The trial judge, "who hears the evidence, observes the
parties, and is most familiar with the circumstances remains in
the best position to make the judgment" as to parental fitness.
Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). The
judge's subsidiary findings will not be disturbed unless they
are clearly erroneous. See Adoption of Quentin, 424 Mass. 882,
886 (1997).
Here, the evidence was sufficient for the judge to conclude
the father lacked parental fitness. Over the course of a seven-
day trial, the judge heard testimony from four witnesses and
twenty documents were admitted as exhibits. The judge carefully
issued 146 detailed factual findings and thirty-three
conclusions of law. The judge's subsidiary findings were amply
supported by the evidence, and considered together, established
3 by clear and convincing evidence that the father was unfit.2 See
Adoption of Anton, 72 Mass. App. Ct. 667, 672-673 (2008).
Predominant among the judge's findings was the father's history
of domestic violence and the father's unsafe home environment
that placed Hunter at risk of neglect.
Domestic violence "within a family is highly relevant to a
judge's determination of parental unfitness." Adoption of
Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Custody of
Vaughn, 422 Mass. 590, 599-600 (1996); Care & Protection of
Lillith, 61 Mass. App. Ct. 132, 139 (2004).
The father's history of domestic violence toward the mother
and his inability to protect her from abuse by his family
members was pervasive. The judge found that the father
subjected the mother to verbal, emotional, and physical abuse,
including slapping her in the face; biting her arm; dragging her
across a room and pushing her down while she was pregnant;
smashing her phone; cursing at her; and, in response to the
2 The father challenges three of the judge's factual findings as clearly erroneous. Much of the father's arguments amounts to mere dissatisfaction with the judge's weighing of the evidence and her credibility determinations. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997). For example, the judge was entitled to discredit the father's claim that he was the victim of domestic violence by the mother. Thus, we discern no basis to disturb the judge's view of the evidence and conclude that substantial evidence supports the judge's findings.
4 father's sister slapping the mother, telling the mother she
"deserved it." The judge also found that the father's family
subjected the mother to abuse, including slapping her; giving
her a black eye; throwing cold water in her face; pulling her
hair; throwing a can at her; cursing at her; hitting her in the
arm with a shoe; throwing a phone at her head; and punching and
hitting her in the head and breaking her glasses. Finally, the
mother witnessed the father's parents fight and push one
another.
We discern no error in the judge's determination that,
despite the father's participation in some of the services
available to him,3 including therapy and parenting classes, his
failure to benefit from those services left him unfit to parent
Hunter. See Adoption of Terrence, 57 Mass. App. Ct. 832, 835-
836 (2003) (parent's mere participation in parenting programs,
"without evidence of appreciable improvement in her ability to
meet the needs of the child, does not undermine a finding of
unfitness").
Although the father completed some tasks from his action
plan, such as engaging in a mental health evaluation, he has not
completed the necessary intake paperwork for a responsible
3 Contrary to the father's argument, the judge did acknowledge the father's engagement in some services.
5 fatherhood program or a neurological evaluation. Nor has the
father acknowledged his role as a perpetrator of domestic
violence, thereby rendering him ineligible for the abuse
education program part of his action plan. In sum, the father
has failed to "substantially and meaningfully engage in domestic
violence services." See Adoption of Ulrich, 94 Mass. App. Ct.
668, 677 (2019) (parent's inability to "benefit from classes
required by her service plan is relevant to the determination of
unfitness" [quotations and citation omitted]).
"Cleanliness of a home is [also] an appropriate factor for
consideration" of parental fitness. Care and Protection of
Inga, 36 Mass. App. Ct. 660, 665-666 (1994). See Care &
Protection of Three Minors, 392 Mass. 704, 713 (1984). The
judge found that the father's home was "filthy," "deplorable,"
and "unlivable"; and that it was filled with garbage, smelled
like marijuana, and there were flies, rats, and feces and urine
from seven dogs all over the house. Additionally, feces was
observed around Hunter's playpen. Even once the father moved
out of the condemned home, the cleanliness of his living
situation was not fully addressed -- he brought a toy covered in
feces to a visit with Hunter.
6 2. The mother's fitness. The father also challenges the
judge's finding that the mother is parentally fit.4 The record
supports the judge's finding. The mother has since left the
father and moved to Michigan where she has support from her
family. In Michigan, the mother has been engaged in services,
including a parenting class and individual therapy. A social
worker in Michigan monitors the mother.
Conclusion. Based on the judge's subsidiary findings,
which are abundantly supported by the evidence, we discern no
error in the judge's determinations that the father is currently
unfit to parent Hunter and that the mother is fit to assume
parental responsibility.
Judgment affirmed.
By the Court (Meade, Desmond & D'Angelo, JJ.5),
Clerk
Entered: January 28, 2025.
4 The father does not have standing to challenge the mother's fitness. Cf. Adoption of Paula, 420 Mass. 716, 722 n.8 (1995) (declining to address father's arguments regarding fitness of mother). Nonetheless, even if the father had standing, the judge had sufficient evidence to find that the mother was fit.
5 The panelists are listed in order of seniority.