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
25-P-979
CARE AND PROTECTION of MARCIE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father and the child appeal from a judgment issued by
the Juvenile Court judge finding the parents unfit and granting
permanent custody of the child to the Department of Children and
Families (DCF).2 We conclude that the trial judge properly found
clear and convincing evidence of parental unfitness caused
primarily by the father's lack of suitable and safe housing, his
neglect of the child's educational and medical needs, and his
partner's untreated and unaddressed mental health issues and
substance use. Discerning no significant error in the findings
1 The child's name is a pseudonym.
2The judgment also granted permanent custody of one of the child's two siblings, who are not the father's biological children, to DCF. The child's eldest sibling obtained adulthood before the judgment. The mother, the siblings, and the siblings' biological fathers are not parties to this appeal. No party challenges the finding that the mother is unfit. and concluding that the judge reasonably chose guardianship by
DCF as the best of the imperfect options in the best interests
of the child, we affirm.
1. Background. DCF's most recent involvement with the
family began in November 2021, when Marcie was six years old,
after a report that the family was living in a motel room and
that Marcie was not attending school. Motel staff confirmed
that the family was staying there, and DCF attempted to contact
the family for several days before visiting in person. The
mother had opened the door to DCF, but provided a false
identity, claiming that DCF had the wrong room. The mother
called DCF the next day, however, and admitted that she had lied
about her identity. The mother eventually agreed to meet with
DCF on December 6, 2021. Both the mother and the father
attended the meeting and shared that Marcie had never been
enrolled in school.
In June 2022, the family was evicted from the motel and
moved to one in a nearby town. On July 13, 2022, the mother
contacted DCF and stated that she was in Florida with the father
and the children and would not be back until the end of July.
Then, from late July to October 2022, notwithstanding DCF's
consistent efforts, the family proved unreachable. Finally, on
October 31, 2022, DCF located the eldest child at his
2 girlfriend's home. The child reported that the rest of his
family was in Florida, but he had stayed behind.
Shortly after the start of DCF's involvement with the
family in November 2021, all three children were enrolled in the
Virtual Academy, but the number of absences remained markedly
high. At one point, the Virtual Academy reported that Marcie
had attended for only one hour across two days in all of April
2022. DCF instructed the mother that Marcie and the mother's
second oldest son would attend school in person for the 2022-
2023 year. The mother agreed to enroll the children herself.
In March 2022, DCF referred the family to both in-home
therapy services and services to support the family with school
attendance. The family never contacted either service and
failed to follow up after multiple attempts to facilitate
services. In addition, the children had not been seen by a
pediatrician for approximately three years. In April 2022,
after direction from DCF, the mother brought Marcie to a
doctor's appointment. The pediatrician expressed concerns about
Marcie's weight gain and noted that Marcie had "terrible dental
hygiene."
By early November 2022, DCF had obtained custody of the
children after learning that none of the three children had
attended school for the academic year 2022-2023. From November
2022 to December 2024, random drug screening of the mother
3 consistently detected the presence of unprescribed drugs, such
as Suboxone, Benzodiazepine, and Oxycodone. The mother ignored
requests for further drug testing, denied having a substance use
disorder, and refused to engage in treatment or services. The
father, too, rejected therapy services, and reported having no
mental health concerns. After attending only three sessions,
the father stopped because he did not understand why he needed
therapy. He was compliant with drug evaluations and completed
one parenting class. Otherwise, though, the father generally
did not meet the tasks in his action plans.
The first task on each of the father's service plans
required that he "obtain and maintain a safe, stable, nurturing
home." Despite DCF's (and the family's own social worker's)
connecting the family with resources and recommendations on
housing services, the parents' housing remained unresolved as of
trial. Both parents were living with the father's brother, who
was a level three registered sex offender.
After a trial in June 2024, a Juvenile Court judge found
that both the father and the mother were unfit and granted DCF
permanent custody of Marcie. This appeal followed.
2. Unfitness determination. a. Standard of review. "To
find a child in need of care and protection, there must be 'an
affirmative showing of parental unfitness.'" Care & Protection
of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting Custody of
4 a Minor, 377 Mass. 876, 882 (1979). "[T]he idea of 'parental
unfitness' means 'grievous shortcomings or handicaps' that put
the child's welfare 'much at hazard.'" Adoption of Yvonne, 99
Mass. App. Ct. 574, 577 (2021), quoting Adoption of Katharine,
42 Mass. App. Ct. 25, 28 (1997). Specifically, a judge may
consider "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." Care &
Protection of Laurent, 87 Mass. App. Ct. 1, 6 (2015), quoting
Adoption of Mary, 414 Mass. 705, 711 (1993). "The judge's
fitness determination must be supported by 'specific and
detailed' findings that demonstrate parental unfitness by clear
and convincing evidence." Care & Protection of Gaston, 106
Mass. App. Ct. 450, 456 (2026), quoting Custody of Eleanor, 414
Mass. 795, 799 (1993). The evidence adequately supported the
judge's conclusion that the father's unfitness "resulted from a
'constellation of factors'" that rendered him presently
incapable of providing appropriate care for his daughter.
Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting
Adoption of Greta, 431 Mass. 577, 588 (2000).
b. Housing instability. "While homelessness, poverty, and
financial instability alone are not sufficient to terminate a
person's parental rights, they are proper considerations in an
unfitness determination." Adoption of Virgil, 93 Mass. App. Ct.
5 298, 303 (2018). Although a child "should never be removed
. . . on the sole basis of homelessness," Adoption of Linus, 73
Mass. App. Ct. 815, 821 (2009), quoting 110 Code Mass. Regs.
§ 1.11 (2000), the judge may properly consider a parent's
"inability to secure 'adequate stable housing.'" Adoption of
Anton, 72 Mass. App. Ct. 667, 676 (2008), quoting Adoption of
Vito, 431 Mass. 550, 555 (2000).
Here, the family has a history of housing instability. See
Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004)
(parent and child's frequent moves were factor supporting
finding of unfitness). After moving, by agreement, from their
apartment in 2021, the family moved between friends' homes and
motels. They then spent several weeks in Florida and, upon
returning to Massachusetts, "the only hotel [the father] could
find was in New York State." Before the family could head to
New York, however, the children were removed from the parents'
custody.
At the time of the trial, the parents were living together
with the father's mother and brothers. The father acknowledged
that a registered sex offender's living in the same house as him
and the mother "has been an issue for [DCF]," and that he has
asked his brother to move out "[a]t least three" times "[s]ince
the children have been taken out of [his] custody." The father
provided no concrete timeline or plan for the brother's move out
6 of the house, instead simply stating, "He's working on it at the
moment right now. He will be out." The mother stated that the
house has three bedrooms, but she and the father sleep "[i]n the
dining room." The mother also stated that, in the event of
reunification, the family would live in this house and the
children would sleep "[i]n the bedroom upstairs," which is the
room "that [the brother] will be leaving." Nevertheless, the
evidence showed that the brother still lived there, and DCF had
never been allowed to visit the home because the owner, another
of the father's brothers, was "not comfortable with it." There
was no way for DCF to confirm whether the house would be
suitable even if the sex offender did leave.
DCF reported that "[n]either parent has provided proof of
efforts to obtain their own housing." When asked what he had
done to secure housing for the family, the father answered, "I'm
not really able to because of work." DCF confirmed that the
family had no active housing assistance applications. Moreover,
only the mother reported what steps the family took toward
obtaining housing. The record provided adequate support for the
judge's findings that the "[f]ather has not obtained a safe and
stable home" or "done anything to get housing" and that "the
housing issue [was] still an issue at the close of evidence."
See Adoption of Yvonne, 99 Mass. App. Ct. at 581 (judge's
findings "that the mother did not maintain stable housing for
7 nearly the entire duration of the proceedings, that the mother
made insufficient efforts to secure such housing for herself and
the children, and that the mother 'fail[ed] to appreciate the
seriousness of her family's housing crisis,' were not clearly
erroneous").
c. Educational and medical support. The record
demonstrated that the father "had failed to meet the daily needs
of the children for proper medical, dental, educational support
and care." See Adoption of Anton, 72 Mass. App. Ct. at 676
("Where a parent is ineffective in obtaining medical care for a
child, causing neglect of the child, it is relevant to finding
of unfitness"). As of 2022, the child had not seen a
pediatrician since 2019. At the child's 2022 visit, the doctor
expressed concern about her weight, as she had gained thirty-
four pounds in three years. The evidence of medical neglect
also included a marked failure to tend to the child's dental
hygiene. The pediatrician noted that the child's teeth were
"down to the gumline." Since the child had been in DCF custody,
the father had attended only two of her medical appointments.
Moreover, while in the father's care, the child did not
attend a single day of school for the 2022-2023 school year.
Since being in DCF custody, the child was "doing well
academically in school." She "excel[led] in reading and math."
The mother's testimony at trial also established that, in the
8 event of reunification, the mother would be the one to "get [the
child] up, have breakfast, ready for school, get her to school,
come home, help her with whatever homework she would have."
Despite repeated requests for a parenting plan, the father
presented no alternative plan. As the judge found, although the
"[m]other may have been the daily caregiver when [the father]
was at work, . . . both failed to meet their children's needs
for these important childhood needs." See Care & Protection of
Gaston, 106 Mass. App. Ct. at 456 ("Although the father's
employment constraints contributed to his unavailability for
some visits, the judge properly found that the father
'contributed substantially to the lack of progress in expanding
his relationship with his son' by 'putting his own needs or
preferences before [his son's]'"). See also Guardianship of a
Minor, 1 Mass. App. Ct. 392, 396 (1973), quoting Richards v.
Forrest, 278 Mass. 547, 554 (1932) ("inability or indisposition
to control unparental traits of character or conduct, might
constitute unfitness . . . also, incapacity to appreciate and
perform the obligations resting upon parents might render them
unfit").
d. General parenting capacity. The evidence supported the
conclusion that the father lacked "insight into [the mother's]
substance abuse and how that may negatively impact her care of
9 children."3 See Adoption of Flavia, 104 Mass. App. Ct. 40, 49
(2024), quoting Adoption of Talik, 92 Mass. App. Ct. 367, 374
(2017) ("The parents' pattern of minimizing responsibility for
incidents resulting in harm to all three children, . . . their
limited understanding of their roles in causing . . . trauma in
the family . . . were 'compelling evidence for a finding of
parental unfitness'"). Although the father participated in a
parenting class, DCF reported that he had "yet [to]
demonstrate[] the tools he learned" from the class. See
Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003)
("evidence of the mother's participation in parenting programs
at the request of DSS, without evidence of appreciable
improvement in her ability to meet the needs of the child, does
not undermine a finding of unfitness"). He did not engage
consistently in services. Although acknowledging that the
father worked during the day, the judge appropriately noted that
it nonetheless matters for the child, in light of the mother's
unchallenged unfitness, that the father missed (or failed to
3 DCF noted "med seeking" behavior in the mother. The mother would report having visited the emergency room and having received prescriptions. She was hospitalized for seizures and pain but never arranged to see a neurologist or a doctor to determine a plan of care. She stated that she has "never had any addiction issues." DCF requested that the father provide a list of the mother's prescription medications. He did not do so.
10 attend) appointments.4 The father presented no parenting plan
for the child, despite repeated requests from the social worker.
See Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004),
quoting Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985) ("the
issue is the current fitness of the biological parents to
further the welfare and the best interests of the particular
child"). DCF's expert opined that the father and the mother did
not have "sufficient parenting capacity during the parent/child
visit[s] to manage [the children's] individual social,
emotional, and behavioral needs."
"All of the subsidiary facts, taken together, ultimately
supported the judge's conclusion of parental unfitness by clear
and convincing evidence." Adoption of Yvonne, 99 Mass. App. Ct.
at 582. See Care & Protection of Vieri, 92 Mass. App. Ct. 402,
405 (2017), quoting Petitions of the Dep't of Social Servs. to
Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987)
("Evidence such as the failure of the parents to keep a stable
home environment for the children, 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").
4 The judge also found that the DCF social worker failed to invite the parents to some medical appointments.
11 3. Judge's findings. a. Standard of review. "In care
and protection cases, the judge's subsidiary findings must be
proved by a preponderance of the evidence and will only be
disturbed if clearly erroneous." Care & Protection of Vick, 89
Mass. App. Ct. 704, 706 (2016). "A finding is clearly erroneous
when there is no evidence to support it, or when, 'although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.'" Custody of Eleanor, 414
Mass. 795, 799 (1993), quoting Building Inspector of Lancaster
v. Sanderson, 372 Mass. 157, 160 (1977). "'[I]n this field it
is neither possible nor desirable to make decisions with
precision, and [] "much must be left to the trial judge's
experience and judgment"'; therefore, the judge's assessment of
the credibility of the witnesses and the weight of the evidence
is entitled to deference" (citation omitted). Adoption of
Elena, 446 Mass. 24, 31 (2006). The father challenges five of
the trial judge's findings.5 We review each in turn.
5 The father also challenges one of the footnotes in the findings: "All findings as to Mother are relevant to Father's appeal, as his plan for cohabitation and co-parenting with Mother being her caretaker when he is at work." We discern no error where the trial evidence established that the father and the mother intended to remain together as a couple and that the father would continue to rely on the mother for caretaking. See Adoption of Larry, 434 Mass. 456, 471 (2001) (evidence supported "judge's finding that the mother did not intend to remain apart from the father, and she would therefore be unable to protect
12 b. The father's intention to have the mother care for the
child. The judge found, "Father hasn't done anything to get
housing, as he works during the week. I take this testimony to
mean he would intend for Mother to caretake [the child] when he
is at work." The judge's conclusion in this regard was a
permissible inference from the evidence. See Adoption of
Daniel, 58 Mass. App. Ct. 195, 199-200 (2003) (trial judge may
draw reasonable inferences supported by evidence). See also
Care & Protection of Laurent, 87 Mass. App. Ct. at 8
("Speculation about the mother's future ability to feed her
child healthy food, for example, must stem from 'credible
evidence'"). The father maintained that he cannot search for
housing because of work and has not helped the mother obtain an
apartment. The judge's inference was sound that the father, who
(even without the responsibilities of caring for children) is
relying on the mother to find an apartment, would depend on the
mother to care for the child. The father now argues that "[t]he
Trial Court does not even consider . . . possible alternative
childcare plans that Father might implement as any working
[the child] from future abuse. . . . The evidence indicates a strong level of dependency on the father by the mother, and a continuing intention against severing their relationship"). See also Custody of a Minor, 16 Mass. App. Ct. 998, 1001 (1983) ("[B]esides weighing the capacities of mother and father as individuals, the court is to try to envisage how they interact to constitute a unitary household for the care of the child").
13 parent might choose to do." The child also contends that "DCF
never even questioned Father about a caretaking plan." To the
contrary, the evidence shows that DCF repeatedly attempted to
learn the father's parenting plan. A DCF response worker
testified that he had "provided the family with a budget plan
and as well as a parenting plan, which were also not completed."
A DCF social worker testified that the family had "stated that
they had one [parenting plan] completed through . . . the
private social worker that they attained," but "they still
haven't . . . brought it into the Department." The judge was
well justified in discerning, from the father's repeated failure
to provide a parenting plan to DCF, that he had none. Cf.
Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 134 (1990) ("Being
a parent is not a sometimes thing"). We discern no error.
c. The father's participation in therapy. The judge found
that the "[f]ather tried therapy, but it was not for him. He
stopped after three or four sessions." The judge also stated,
"As of August 2023, Father did three sessions of therapy . . . .
He said he didn't understand why he was in therapy, and it
ended. [The DCF social worker] checked with the therapist.
Father stopped therapy." Lastly, the judge found that the
"[f]ather saw [a therapist] for a few therapy sessions. Father
denies having any mental illness. He was discharged from
therapy." Contrary to the father's assertion that "there is no
14 evidence anywhere that [he] stopped therapy on his own," the DCF
social worker's report stated that she contacted the father's
therapist, who reported that the "Father denies having any
mental illness. He was discharged from therapy." She further
testified that the father "talked to [her]" and did not
"understand why he needed to be [in therapy]" and that he never
went back to therapy after his first three sessions. The judge
reasonably inferred from this evidence that the therapy stopped
because the father did not want to continue. The judge, who was
best positioned to assess the witnesses' credibility and to
evaluate the evidence, did not err. See E.K. v. S.C., 97 Mass.
App. Ct. 403, 409 (2020).
d. The father's support of the mother. The judge found
that DCF's expert "made some recommendations to help improve
parenting time, including trying to set some rules around the
use of electronics by the two boys. Social worker . . . noted
that after this, Mother did try to set some structure and rules
by limiting electronic use. Father did not make an effort to
support Mother in these efforts." DCF's expert witness, a
psychologist, performed a parental capacity evaluation of the
mother and the father. The judge credited the doctor's ultimate
opinion and noted that his report, "when considered in
conjunction with the trial evidence as a whole," supports a
finding of unfitness by clear and convincing evidence. In a
15 relatively minor portion of the report, the doctor concluded
that the parents failed to "set limits regarding technology
usage" during the visit he attended. At subsequent supervised
visits with DCF, however, the mother "utilized some ideas from
[the doctor]," and "tried to set ground rules and asked [the
older children] to take their headphones off and turn off cell
phones during the visit." The DCF social worker noted that the
father "did not make any effort to support [the mother] with
creating structure and setting the ground rules for [the]
visit." The judge's finding was supported by the record.
4. Best interests determination. "Parental fitness and
the child's best interests are interrelated inquiries and are
considered together." Care & Protection of Laurent, 87 Mass.
App. Ct. at 6. "A 'judge who finds parental unfitness to be
established has broad discretion to determine what is in a
child's best interests with respect to custody and visitation
with biological family members thereafter.'" Adoption of Ursa,
103 Mass. App. Ct. 558, 571 (2023), quoting Adoption of Rico,
453 Mass. 749, 756 (2009). An appellate court "defer[s] to the
judge's determinations regarding the best interests of the
child, and reverse[s] only where there is clear error of law or
abuse of discretion." Adoption of Cadence, 81 Mass. App. Ct.
162, 166 (2012). "It is in the best interests of [the child] to
have 'parents' who can and who will, on a consistent, longterm
16 basis, assume all parental responsibilities and who can provide
[the child] with the stable and continuous care and nurturing
she needs and will continue to need as a child." Adoption of
Gwendolyn, 29 Mass. App. Ct. at 136. "An abuse of discretion
exists where the decision 'amounts to a "clear error of
judgment" that falls "outside the range of reasonable
alternatives."'" Adoption of Xarissa, 99 Mass. App. Ct. 610,
616 (2021), quoting Adoption of Talik, 92 Mass. App. Ct. at 375.
Without question, this case presented difficulties in
determining the best interests of the child. As detailed above,
the judge properly found that the father was currently unable to
ensure that the child attended school. The father did not
prioritize the child's medical appointments. The father did not
express any understanding of the mother's substance use and its
impacts on the child. The father was still living with a
registered sex offender and had no appropriate housing plan.
On the other hand, it was unquestionable that the child had
not adapted well to DCF's custody. By October 2023, the child
had to be removed from her foster placement because she was
causing disruption in the home. After moving into another
foster home, the problems continued. She was hurting herself
and other children and breaking things. She eventually was
placed in a residential program where she could engage in one-
on-one therapy and psychiatry services. Moreover, after visits
17 with her parents, the child was sad and expressed that she
misses her parents.
As neither option was without flaws, the judge reasonably
concluded that DCF custody was a better solution for the child,
for now, than placing her in a home with a registered sex
offender, in the care of a father who proved incapable of
attending to her educational and medical needs and showed no
significant improvement over the course of the case. The judge
reasonably rejected DCF's assertion that termination of parental
rights was in the child's best interests, instead hoping that
the father would work to correct his parental deficits and
become the responsible caregiver that the child plainly needs.
As the judge noted, "[i]t is the fervent hope of this Court that
the parents are capable of change." We discern no abuse of
discretion in the judge's determination that this, and not
return to a situation that already proved inadequate, was the
best solution here.
Judgment affirmed.
By the Court (Vuono, Ditkoff & D'Angelo, JJ.6),
Clerk
Entered: March 13, 2026.
6 The panelists are listed in order of seniority.