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-919
CARE AND PROTECTION OF QUIRA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a Juvenile Court judge found the mother
currently unfit to parent her daughter, Quira, adjudicated Quira
in need of care and protection, and committed her to the custody
of the Department of Children and Families (department). See
G. L. c. 119, § 26. The mother appeals.2 She contends that
(1) the judge found her unfit based on clearly erroneous factual
findings and speculation, (2) the judge erred by conflating her
"positivity, spirituality, and willingness to follow the
[doctors'] recommendations . . . with a lack of insight into
[the] [d]aughter's condition and needs," and (3) the mother is
currently fit because she plans to keep Quira in a residential
1 A pseudonym.
2The father was also found unfit, but did not file a notice of appeal. care facility and to follow the recommendations of the medical
professionals, which satisfies the "minimally acceptable care"
standard. See Care & Protection of Yetta, 84 Mass. App. Ct.
691, 698 (2014). Because the evidence demonstrates the mother's
lack of understanding of her daughter's complex medical needs
and failure to learn about or plan to care for them, clear and
convincing evidence supports the judge's ultimate conclusion of
unfitness. We affirm.
Background. We summarize the relevant facts found by the
judge, reserving some details for our discussion. The
department filed this care and protection petition in September
2022 and assumed temporary custody over the daughter.3 While in
the department's custody and visiting with her parents in June
2023, Quira was struck by a car and sustained life-threatening
injuries, including a traumatic brain injury. She was treated
for these injuries at Massachusetts General Hospital for three
months, until she was discharged to the Disorders of
Consciousness program at Spaulding Rehabilitation Hospital
(Spaulding).4
3 At the same time, the department petitioned for custody of two of the parents' sons (the daughter's brothers). While the sons were also in the department's custody at the time of the accident, custody has since been returned to the parents and was not at issue at the trial.
4 The judge's finding number 14 states that Quira moved to Spaulding in January 2024, but the record reflects that Quira
2 At Spaulding, Quira required round-the-clock care to
address all functions in life, including "breathing, feeding,
communication, self-care, and mobility." The daughter's care
team included three attending physicians, physical therapists,
occupational therapists, speech and swallow therapists, a
nutritional team, and nurses. One of the daughter's attending
physicians, Dr. Jennifer Wu, who was qualified as an expert in
pediatric rehabilitation medicine, testified that the care
team's goal was for Quira to regain as much function as possible
through a standardized eight-week program with intensive
therapies. While this team successfully stabilized the
daughter, her progress was slow, and at the time of discharge
she remained fully dependent on a gastrostomy tube ("G-tube")
for nutrition and medication, could not communicate in a
meaningful way, could only intermittently process information,
and lacked control over her limbs.
The parents remained positive about the daughter's
treatment at Spaulding and her prognosis, preferring not to
discuss the possibility that she may not make a full recovery
and viewing that mindset as too negative. At a meeting with her
care team shortly after she arrived at Spaulding, the father
moved from Massachusetts General Hospital to Spaulding in September 2023. This discrepancy does not appear to have affected the judge's ultimate conclusions.
3 opted to take Quira for a walk rather than stay for the
conversation about her anticipated aftercare. The mother did
not attend this meeting as she found it very difficult to
participate in discussions about her daughter's condition and
care. The parents avoided such discussions throughout the
daughter's stay at Spaulding, and their sporadic visits meant
they were not present during morning rounds, when care teams
typically discussed aftercare options with families.
In January 2024, Quira was discharged from Spaulding and
transferred to a long-term residential care facility run by
Seven Hills, the only program in Massachusetts that could
accommodate the daughter's need for a G-tube. The daughter's
attending physician believes, and the judge found, that Seven
Hills only treats patients who are in the department's custody.
Patients like Quira who are not in the department's custody are
typically discharged to a similar residential program in New
Hampshire, which does not accept the parents' MassHealth
insurance.
At trial -- before Quira's discharge from Spaulding -- the
parents testified that she could speak a few words, communicate
through blinking, understand everything that was being said,
focus and recognize people, respond to instructions, hold a
ball, and stand. The judge did not credit the parents'
assertions, instead crediting the testimony of the daughter's
4 attending physician, Dr. Wu, and finding the parents' "belief
about how much functioning [Quira] has regained differs greatly
from what medical professionals at Spaulding have communicated
to them." The judge found both parents unfit, found Quira in
need of care and protection, and found it was in her best
interests to place her in the department's permanent custody.
Discussion. "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." Care & Protection of Erin, 443 Mass. 567,
570 (2005). See Care & Protection of Ian, 46 Mass. App. Ct.
615, 616 (1999). Parental unfitness means "grievous
shortcomings or handicaps" that put the child's welfare "much at
hazard." Petition of the New England Home for Little Wanderers
to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).
1. Subsidiary findings. The mother's argument that the
finding of her parental unfitness was not supported by clear and
convincing evidence rests largely on a claim that the judge's
subsidiary findings, as they relate to the mother's
5 understanding of her daughter's condition and progress, are
clearly erroneous.5
In care and protection proceedings, subsidiary findings
need only be proved by a fair preponderance of the evidence.
See Care & Protection of Laura, 414 Mass. 788, 793 (1993).
Taken together, these facts must then prove parental
unfitness -- the critical inquiry -- by clear and convincing
evidence. Id. While clear and convincing evidence must support
a decision of unfitness, a judge's findings will be disturbed
only if clearly erroneous. See Adoption of Paula, 420 Mass.
716, 729 (1995). "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'" (citation omitted). Custody of Eleanor, 414
Mass. 795, 799 (1993).
5 The mother also argues that the judge improperly based her decision on speculation because she commented that the trial was "rife with speculation" when sustaining a speculation objection. We take the judge's comment to mean that complex medical cases like Quira's are "rife with speculation" by nature, due to the difficulties of predicting any specific patient's recovery trajectory. As the mother concedes, even Quira's physician "could not predict what [Quira's] long-term outcome would be or exactly what those logistics would entail." Because there was significant nonspeculative evidence about Quira's current situation and the parents' reactions to it presented throughout the trial, we disagree that the judge based her decision on speculation.
6 Our review of the record reveals that two of the judge's
factual findings may be considered clearly erroneous.6 These are
harmless, however, as the findings are not central to the
judge's ultimate conclusion of unfitness, which is supported by
clear and convincing evidence. See Care & Protection of Olga,
57 Mass. App. Ct. 821, 825 (2003). The mother's remaining
challenges amount to dissatisfaction with the judge's weighing
of the evidence and decision not to credit her testimony about
Quira's progress at Spaulding. We do not reweigh the evidence
on appeal, as the judge's "assessment of the weight of the
evidence and the credibility of the witnesses is entitled to
deference." Custody of Eleanor, 414 Mass. at 799.
First, the mother challenges the judge's finding that
"Mother believes [Quira] can grip a ball" as erroneous because
the mother testified that Quira "can, kind of, hold the ball."
6 The first is finding number 38 which states that the medical staff at Spaulding did not let the mother change the daughter's diaper. At best, the record on this issue is unclear: the father testified that staff had not let him change Quira's diaper, but that his "wife can change her diaper." The mother testified that she knows how to change a diaper, but not that she has done so for Quira since the accident. Dr. Wu did not indicate whether either parent can or has changed Quira's diaper. Because no evidence shows that the medical staff at Spaulding did not let the mother change Quira's diaper, this finding is clearly erroneous. See Custody of Eleanor, 414 Mass. at 799.
The second finding concerning the timing of Quira's move to Spaulding, though not challenged by the mother, is addressed in note 5, supra.
7 The mother was asked at trial, "Is [Quira] able to grip a pen or
a pencil?" She responded, "Yeah. I know my husband's working
on that with her. . . . Right now, she can, kind of, hold the
ball." We are not left with the "definite and firm conviction"
that the trial judge made a mistake and discern no clear error
in this finding (citation omitted). Custody of Eleanor, 414
Mass. at 799.
Next, the mother contests the judge's decision not to
credit her testimony that Quira focuses, understands everything
that is being said, communicates through blinking or a thumbs
up, and speaks a few words, including "hi" and "Mom." The judge
did not credit these beliefs because they contradicted
observations made by Spaulding's medical professionals,
including Dr. Wu, whose testimony she did credit. Dr. Wu
testified that Quira was not communicating "in a perceivable
way" when she left Spaulding. While the care team could tell
when Quira was happy or sad, she did not speak and could not
interact with an assistive visual communicator. Moreover, Quira
could only understand others and follow simple commands on rare
occasions during her stay. The judge's findings that the
mother's understanding of Quira's abilities contradicted that of
the medical professionals have strong support in the evidentiary
record.
8 a. Seven Hills. The mother argues that the judge
improperly shifted the burden to her to prove current fitness,
requiring her to demonstrate that she had crafted "an adequate
plan" for Quira's long-term care, as the department had not
proven her current unfitness by clear and convincing evidence.
See Care & Protection of Erin, 443 Mass. at 570 (burden of
proving unfitness rests on department); Care & Protection of
Ian, 46 Mass. App. Ct. at 616 (same).
The mother argues that the department did not meet its
burden to prove that Seven Hills is the only program in
Massachusetts that could accommodate Quira's G-tube, that it
only treats patients who are in the department's custody, and
that the parents' insurance would not cover her placement there.
At trial, Dr. Wu testified that Spaulding discharged Quira
to Seven Hills, which could provide her with the appropriate
level of care, in January 2024. Quira's need for "a residential
home type of level of care" drove Spaulding's push for the Seven
Hills program. The department social worker explained that
Quira's need for a G-tube seriously limited her ability to
access many residential placement options. Dr. Wu believed this
facility only treats patients in the department's custody
(though Dr. Wu acknowledged that Spaulding's case manager would
know better than her). And Dr. Wu testified that patients with
similar needs to Quira were typically discharged to a
9 residential program like Seven Hills in New Hampshire. Because
the parents have MassHealth insurance, Dr. Wu testified that the
New Hampshire facility likely would not accept their insurance,
but that she has seen similar families relocate to New Hampshire
to access that care. She also testified that other
Massachusetts programs that could meet Quira's medical and
nursing requirements would require some kind of private
On this basis, the judge found that the facility only
treats patients who are in the department's custody, that Seven
Hills is the only program in Massachusetts that can accommodate
Quira's need for a G-tube, and that there is a similar
residential program in New Hampshire, but it does not accept
MassHealth insurance. Contrary to the mother's argument, the
judge did not find the mother unfit because of her potential
inability to pay for Quira's residential care at Seven Hills.7
7 While the judge made factual findings related to the family's income, it does not appear that this affected the judge's ultimate conclusions, and these were proper considerations. See Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018) ("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"). We agree with the department's argument that the lower court found the mother unfit where her health insurance limited the options for programs she could access, and, as the judge found, the mother had taken no steps to find alternate programs to meet Quira's needs. Even if we were to assume error, a plethora of appropriate evidence supports the
10 The mother contends that Dr. Wu's testimony that other in-
State residential programs would require private insurance
contradicts the judge's finding that Seven Hills is the only
program in Massachusetts that can accommodate the daughter's
need for a G-tube; thus, she argues, the judge erred in
concluding that Quira could only access Seven Hills by remaining
in the department's custody. We disagree. The judge was not
required to credit all of Dr. Wu's testimony, see Care &
Protection of Three Minors, 392 Mass. 704, 711 (1984), and Dr.
Wu also testified that similar patients to Quira who remained in
their own parents' custody were discharged to the New Hampshire
program. While this could mean those parents also had
MassHealth insurance, it may also mean that they found no
residential placements that could accommodate their children's
needs in Massachusetts. Because the judge's conclusion falls
within the range of reasonable alternatives from the evidence,
this was not error. See M.G. v. G.A., 94 Mass. App. Ct. 139,
148 (2018) ("[R]esolution of questions of credibility,
ambiguity, and contradiction" are for fact finder).
While the testimony about accessing appropriate residential
programs was by no means unequivocal, it was uncontroverted, and
we are not left with the definite and firm conviction that a
judge's conclusion of unfitness. See Care & Protection of Three Minors, 392 Mass. 704, 713 (1984).
11 mistake has been made. See Custody of Eleanor, 414 Mass. at
799. The burden of proof rests with the department -- and the
judge's decision makes clear that the judge applied this
principle -- but the parents had the opportunity to, and did,
cross-examine the department's witnesses on this testimony.8 See
Adoption of Iris, 43 Mass. App. Ct. 95, 100-101 & n.8 (1997)
(reversing unfitness determination where only evidence
department offered was testimony by one case social worker and
unredacted documents and reports containing multilevel hearsay,
where parents were given no opportunity to rebut hearsay or
adverse or erroneous information, and where judge declined
parents' request to cross-examine documents' and reports'
authors). The contested findings have evidentiary support, and
the judge did not shift the burden to the mother to show an
"adequate plan" for Quira's long-term care.
2. Lack of insight into the daughter's condition and
needs. The mother argues that the judge erred by conflating her
positivity, spirituality, and willingness to follow the doctors'
recommendations with a lack of insight into Quira's condition
and needs.
The mother argues that Dr. Wu was not qualified to testify 8
that the parents' insurance would not cover Quira's placement at the Seven Hills facility. The mother did not object on this basis at trial and has waived this argument on appeal. See Adoption of Kimberly, 414 Mass. 526, 534-535 (1993).
12 "[T]he State interest in protecting neglected children may
properly be preventative as well as remedial," and the court
need not wait until a child is maltreated before deciding the
necessity of "care and protection." Custody of a Minor, 377
Mass. 876, 882-883 (1979). The judge may appropriately assess
"prognostic evidence derived from an ongoing pattern of parental
neglect" to determine "future fitness and the likelihood of harm
to a child." Id. at 883. "Such evidence, particularly where
unrebutted by more recent proof of parental capacity, provides a
satisfactory basis for a finding of current parental unfitness."
Id. (affirming award of custody of newborn child to department
where mother had failed to formulate any realistic plan to care
for her children already in department's custody, and newborn,
although not yet maltreated, was "probable victim of parental
neglect"). See Adoption of Jacques, 82 Mass. App. Ct. 601, 608-
609 (2012) (finding of unfitness supported where mother had
limited understanding of child's diagnoses and was repeatedly
unwilling to and procrastinated in seeking services to assist
her in understanding his special needs); Petitions of the Dep't
of Social Servs. to Dispense with Consent to Adoption, 18 Mass.
App. Ct. 120, 125 (1984) ("The specialized needs of a particular
child when combined with the deficiencies of a parent's
character, temperament, capacity, or conduct may clearly
establish parental unfitness").
13 The judge did not expressly credit the parents' assertions
that they would follow the recommendations of the medical
professionals treating Quira, only noting their testimony that
they would. And while the judge credited the parents' desire to
maintain a positive outlook about Quira's condition in the face
of her traumatic injuries, the judge concluded that their
positivity limited their ability to gain insight into their
daughter's current condition and to discuss a realistic long-
term aftercare plan for her. In addition to the discrepancies
between the mother's and Dr. Wu's understandings of Quira's
condition at Spaulding, see section 1, supra, the following
evidence supports a finding that the mother was unable to
understand her daughter's complex medical needs.
The mother did not want to discuss the possibility that
Quira may not make a full recovery, despite Dr. Wu's prediction
that she will probably need long-term residential-based care and
discussions that her health may be a lifetime concern.9 The
mother never directly spoke to Dr. Wu, one of Quira's attending
physicians, and did not attend the only in-person family meeting
held with Quira's Spaulding care team. While she preferred to
get the information from her husband, he was not at the hospital
during the care team's working hours or morning rounds. The
9 Even on the witness stand, the mother struggled to discuss her daughter's condition.
14 parents were invited to stay overnight to witness a full twenty-
four hours of care, including routinely adjusting Quira's
position in bed every two hours to avoid pressure sores or
injury, but declined. Because they declined, the parents never
received training on how to move their daughter. Dr. Wu
testified that most families are at their child's bedside all
day, experiencing the care in real time and gaining a good
understanding of how much care is involved to keep the child
safe and to meet their needs, and eliminating the need for
formal meetings, but this "piecemeal" training did not happen
with this family.
At the time of discharge from Spaulding, Quira had very
complex outpatient follow-up schedules requiring therapies four
or five time weekly. When Spaulding scheduled time for the
parents to participate in these therapies, they attended
inconsistently, arriving late or failing to attend at all. This
pattern left Dr. Wu concerned about whether they would get Quira
to her outpatient appointments in a timely manner, if custody
was returned to them. The parents had not discussed how they
would transport Quira to those appointments. And while the
mother testified that she knew of a transportation service that
could help, she had not talked to anybody about setting that up.
When asked what the family would need to do for Quira long-
term, the mother consistently answered that they would do
15 whatever needed to be done. But the mother took no steps
towards learning what that might involve: she did not learn to
use or clean the daughter's G-tube, could not name all of her
medications, was not trained on moving her, did not know what
care went into helping her bathe, did not contact insurance to
ask about coverage if the parents regained custody, and did not
discuss with medical professionals what would happen when Quira
was discharged from Spaulding. This evidence supported the
judge's finding that the mother's stanch desire to stay positive
about the future resulted in a lack of insight and inability to
understand Quira's condition and needs.
The proper inquiry in determining parental unfitness is
whether the parent may "place the child at serious risk of peril
from abuse, neglect, or other activity harmful to the child."
Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
If a parent does not understand her child's specialized medical
condition, that parent's ability to make informed decisions
about the child's medical care, advocate for, and care for their
child is compromised, putting the child at risk of serious
neglect. See generally Adoption of Breck, 105 Mass. App. Ct.
652, 660-661 (2025); Adoption of Jacques, 82 Mass. App. Ct. at
608-609; Petitions of the Dep't of Social Servs. to Dispense
with Consent to Adoption, 18 Mass. App. Ct. at 125. This risk
grows when one care option, albeit a "distant second choice" for
16 Dr. Wu, involves the parents providing "24/7" care for Quira at
their own home. It is clear from the judge's specific and
detailed findings that she paid close attention to the evidence,
see Custody of a Minor, 377 Mass. at 885-886, and weighed
heavily the gravity of this risk when finding the mother unfit.
This was a proper consideration for the judge in determining
fitness. See id. at 883. See also Adoption of Breck, supra at
661; Adoption of Jacques, supra; Petitions of the Dep't of
Social Servs. to Dispense with Consent to Adoption, supra.
3. Unfitness. Finally, the mother contends that because
Quira is in a residential care facility, she does not need to
provide more than "minimally acceptable" care, which she is
currently doing by keeping her in the facility, demonstrating
her fitness. See Care & Protection of Yetta, 84 Mass. App. Ct.
at 698. We disagree.
As previously discussed, the mother's failure to learn
about her daughter's complex medical condition and plan for her
future needs creates a serious risk of neglect and harm to
Quira. See section 2, supra. The only concrete evidence of the
mother's plan for Quira's future care concerned her search for a
first-floor apartment or other appropriate housing that could
17 meet her daughter's needs.10 This suggests only a plan to care
for Quira at home, which was inconsistent with the
recommendations of the medical professionals at time of trial.
Given this, the judge properly concluded that the parents' lack
of understanding or planning for their daughter's specialized
needs created a risk that they would push her more than she
could tolerate and created unsafe expectations if she returned
to their care.
The judge was required to address the various placement
options that would further Quira's best interests. See Care &
Protection of Three Minors, 392 Mass. at 714. It was not error
for her to address the mother's failure to plan for any option
other than her daughter's return home, which the evidence
revealed was not safe, in light of the parents' failure to learn
about her daily care. See section 2 supra. The social worker
testified that the department would keep Quira at Spaulding,
with their agreement, until they found an appropriate placement.
Her stay at Spaulding, however, had already exceeded the
standard amount of time patients remained, especially once
progress slowed. Dr. Wu testified that, when a patient's
functional level plateaued, Spaulding typically worked with the
10At the time of trial, the family lived on the third floor of an apartment building with no elevator, and Quira would require a specialized wheelchair for the foreseeable future.
18 parents to find an appropriate program that worked for the
family. Quira's care team was prepared to plan for her future
long-term residential needs; because the parents were still not
ready to participate in those decisions, Spaulding planned with
the department (the legal decision maker) and discharged Quira
to Seven Hills. Spaulding was not required to keep a patient
indefinitely just because the parents would not participate in
difficult conversations. And the evidence supports the judge's
conclusion that the mother would not communicate with the
department and the medical providers about Quira's care plan or
had not taken steps to propose how she could meet her needs.
Accordingly, given the mother's lack of insight into and
failure to plan for her daughter's complex medical condition and
specialized needs, and inability to safely care for her
daughter, the judge did not err by concluding that the
department proved, by clear and convincing evidence, that the
19 mother was unfit to further the welfare and best interests of
Quira.
Judgment affirmed.
By the Court (Blake, C.J., Desmond & Singh, JJ.11),
Clerk
Entered: October 9, 2025.
11 The panelists are listed in order of seniority.