CARE AND PROTECTION OF RAVENNA (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: February 13, 2025
• Docket: 24-P-0634
• Status: Unpublished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

24-P-634

CARE AND PROTECTION OF RAVENNA (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a judgment issued by a Juvenile

Court judge finding her unfit and granting permanent custody of

the children to the Department of Children and Families (DCF).

We conclude that the trial judge did not err in finding a

sufficient nexus between the mother's substance use and harm to

the children or in relying on DCF reports documenting material

witness statements. Further concluding that the trial judge

acted within his discretion in denying the mother's request for

a continuance and the motion judge properly found that she

received effective assistance of counsel, we affirm.2

1Care and protection of Efron. The children's names are pseudonyms. The father was not present at trial as his whereabouts are unknown, and he is not a party to this appeal.

2We are unpersuaded that the mother's appeal is moot. In light of the possible admissibility of the findings under review in a later care and protection or termination trial held after 1. Background. DCF first entered the family's lives in

March 2017, when the children were nine and three years old,

after a domestic violence incident involving the mother and her

then boyfriend. Although neither child witnessed this incident,

the children witnessed the couple's further fighting because the

mother continued her relationship with the boyfriend.

In March 2018, the mother was arrested after she assaulted

the boyfriend while intoxicated. At one point during the fight,

the mother's boyfriend woke the older child, who was ten at the

time, in an attempt to calm down the mother. This child later

explained to DCF that the couple "fight a lot because of their

drinking" and that they drink "a lot." She stated that she had

not previously disclosed these fights because the mother hit her

across the face and told her that if she "talk[s] about what

happens at home," she would be "taken away." The mother denied

that alcohol was an issue in her relationship and opposed DCF's

decision to ask the boyfriend not to live with the family. DCF

closed the family's case in November 2018.

our decision, Adoption of Darla, 56 Mass. App. Ct. 519, 521 (2002), it has not been demonstrated to us that the instant judgment would not affect the mother in the future. See Ralph v. Civil Serv. Comm'n, 100 Mass. App. Ct. 199, 201 n.4 (2021). Cf. Styller v. Zoning Bd. of Appeals of Lynnfield, 487 Mass. 588, 595 (2021), quoting Rosado v. Wyman, 397 U.S. 397, 403 (1970) ("Unlike standing, 'mootness [is] a factor affecting [the court's] discretion, not its power,' to decide a case").

2 In November 2019, when in New York City, the mother slapped

the older child while intoxicated after the child raised her

concern about the mother's drinking during an argument. Local

police separated the children from the mother, requiring the

mother's boyfriend to transport them back to Massachusetts

without her. The mother stated that she "accidentally grazed"

the older child and that this was because "the kids had been

behaving awfully and that they and [her boyfriend] ganged up on

her and 'ma[d]e her act like this.'" The mother ended her

relationship with her boyfriend after the incident and began

participating in a sobriety program.

On July 4, 2021, the mother got drunk and became embroiled

in a conflict with house guests. She then instructed the older

child to arrange a ride for herself and her younger sibling to

their maternal aunt's house, purportedly so that they would not

be present for mother’s fight with her guests. Although the

older child managed to secure a ride to her maternal aunt's home

in accordance with a family safety plan, the mother did not

notify the aunt that the children were coming. The older child

told a DCF investigator that her mother had physically abused

her in the past, including by hitting her, spitting on her, and

grabbing her neck, and that she had not told anyone before about

the abuse because she was not allowed to talk to DCF or others

alone. The mother had told the older child that "she is a

3 burden and that she wished she never had kids." The younger

child told a DCF investigator that the mother "grabs him by the

arm and squeezes" when she is mad at him, and he sometimes does

not feel safe her with her. For her part, the mother "said that

drinking is not an issue and that the kids want to control what

she does just like her sister." She stated that the children's

behavior was the issue, not her own behavior. On July 26, 2021,

DCF sought and obtained emergency custody of the children,

continuing their placement with the maternal aunt.

In August 2021, DCF provided the mother with an action plan

that required her, among other tasks, to complete a

neuropsychological evaluation and to engage in individual

therapy and substance use treatment, including screening tests.

The mother never completed the required neuropsychological

evaluation. She claimed it was unnecessary because she does not

"have brain damage." In October 2021, the mother completed a

parenting class but refused DCF's request that she complete an

additional class. The mother did not participate in individual

therapy between December 2021 and her trial in October 2022.

Although she claims she was diagnosed with chronic posttraumatic

stress disorder (CPTSD), the mother was not taking any

medication to treat the disorder and has generally not taken any

medication for her mental health since 2016, as she claimed that

the medication did not help her. From April to July 2022, the

4 mother missed six drug screening tests and tested positive for

methamphetamines five times. The mother was referred to the

Institute of Recovering Health but her brief engagement with the

service terminated because she denied all substance use.

After a trial in October 2022, a Juvenile Court judge found

that the mother was unfit and granted DCF permanent custody of

the children. In November 2023, the mother filed a motion for a

new trial on the ground of ineffective of assistance of counsel.

A different Juvenile Court judge held an evidentiary hearing and

then, in December 2023, denied the motion. This appeal, of both

the October 2022 judgment and the denial of the motion for a new

trial, followed.

2. Reliance on reports. "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). "[F]irst- and second-level hearsay

contained within DCF reports and official DCF records is

admissible for statements of primary fact, so long as the

hearsay source is specifically identified in the document and is

available for cross-examination, should the party challenging

the evidence request to do so" (footnotes omitted). Adoption of

Luc, 484 Mass. 139, 153 (2020). Specifically, a judge may "rely

on statements of fact contained in [G. L. c. 119, §] 51B

5 reports, as those records are admissible as 'required government

report[s].'" Adoption of Querida, 94 Mass. App. Ct. 771, 778

(2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267

(1990). See Mass. G. Evid. § 1115(b)(2)(B) (2024). "We give

substantial deference to 'the judge's assessment of the weight

of the evidence and the credibility of the witnesses.'"

Adoption of Querida, supra, quoting Adoption of Quentin, 424

Mass. 882, 886 (1997).

Here, the trial judge, quoting Custody of Michel, 28 Mass.

App. Ct. at 267, specifically stated that G. L. c. 119, § 51A,

reports were admitted "solely 'to set the stage,'" and that

§ 51B reports "were considered by the Court 'for statements of

fact . . . and not for the purposes of diagnosis, prognosis, and

evaluation.'" The judge further credited the statements made by

the children, pursuant to Adoption of Luc. In doing so, the

trial judge properly followed the case law.

The mother's reliance on Adoption of Rhona, 57 Mass. App.

Ct. 479, 484-488 (2003), is misplaced. Unlike in that case, the

judge here did not resort to "speculation" to conclude that the

mother had repeatedly abused the children. See id. at 485.

Rather, the judge properly relied on statements made directly to

a DCF investigator by the mother, children, and identifiable

witnesses, which (once credited by the judge) established the

mother's abuse.

6 3. Nexus of unfitness and substance use. "Evidence of

alcohol or drug abuse is . . . relevant to a parent's

willingness, competence, and availability to provide care."

Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008). A

parent's substance use disorder, however, is not sufficient to

justify a finding of parental unfitness "[w]ithout a showing

that the mother's drug and alcohol use rendered her unable to

provide minimally acceptable care for her child." Adoption of

Zoltan, 71 Mass. App. Ct. 185, 191 (2008).

Here, the evidence showed that the mother's problems with

substance use negatively impacted her children. Nearly every

incident triggering a DCF response between March 2017 and July

2021 involved the mother's use of alcohol. As early as 2018,

the children informed DCF that the mother and her then boyfriend

would fight when they drank alcohol. The children frequently

became involved in these fights, and, in one instance, the

mother slapped the older child when she raised concerns about

the mother's alcohol use during a family argument. Despite the

children's and DCF's concerns, the mother has steadfastly

refused to engage in meaningful treatment and categorized

proposed changes to her alcohol use as attempts to control her.

See Adoption of Luc, 484 Mass. at 147 ("the parent's willingness

to engage in treatment is an important consideration in an

unfitness determination where the substance dependence inhibits

7 the parent's ability to provide minimally acceptable care of the

child"). Moreover, the mother has failed to honestly represent

her substance use as highlighted by her trial testimony that she

has never used substances other than cannabis and alcohol

despite testing positive for methamphetamine five times during

2022. Accordingly, the trial judge properly found a nexus

between the mother's substance use and her parental unfitness.3

4. Ineffective assistance of counsel. To prevail on a

claim of ineffective assistance of counsel, the mother was

required to show that the "behavior of counsel [fell] measurably

below that which might be expected from an ordinary fallible

lawyer" and that this conduct was prejudicial to the mother.

Adoption of Yvette, 71 Mass. App. Ct. 327, 345 (2008), quoting

Care & Protection of Stephen, 401 Mass. 144, 149 (1987). See

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[P]rejudice

is not shown if there is overwhelming evidence of unfitness."

Adoption of Azziza, 77 Mass. App. Ct. 363, 368 (2010). "We

review the denial of a motion for new trial for an abuse of

3 The mother's argument that the trial judge erred in faulting her for not completing tasks assigned in her action plan is without merit. The mother misunderstands that the referenced conclusion of law raised concerns over the possibility of future domestic violence given her failure generally to engage in recommended DCF services, not her failure to engage in specific domestic violence services.

8 discretion." Adoption of Raissa, 93 Mass. App. Ct. 447, 455

(2018).

"Where a strategic choice is at issue, '[a]n attorney's

tactical decision amounts to ineffective assistance of counsel

only if it was manifestly unreasonable when made." Adoption of

Yvette, 71 Mass. App. Ct. at 345, quoting Commonwealth v.

Martin, 427 Mass. 816, 822 (1998). Trial counsel's decision not

to introduce a substance use evaluation or to call for

corresponding testimony was not manifestly unreasonable as the

evaluation was stale by the time of trial, the evaluator did not

consider extrinsic information or the mother's drug use, an

update would have brought the mother's five positive

methamphetamine tests and her multiple missed tests to the

evaluator's attention, and the evaluator recommended that the

mother abstain from alcohol. See Commonwealth v. Teixeira, 486

Mass. 617, 637 (2001). Similarly, trial counsel did not

introduce the family action plan, because it showed the mother's

failure to complete required DCF tasks, or the mental health

evaluation and substance screening tests, because they

highlighted the mother's five positive methamphetamine tests and

multiple missed tests. These decisions were not manifestly

unreasonable.4

4 The mother's argument that trial counsel was ineffective given his failure to introduce the Life Safety Plan is also

9 That said, trial counsel's restrictions on communications

with the mother leading up to the trial and his bare bones

closing argument both seem rather below the standard of an

ordinary, fallible attorney. See Commonwealth v. Baran, 74

Mass. App. Ct. 256, 274-278 (2009). Nonetheless, the mother has

failed to show that these deficiencies prejudiced her in the

context of this nontermination trial in light of the

overwhelming evidence of the mother's current unfitness. See

Adoption of Azziza, 77 Mass. App. Ct. at 368. The evidence

showed that the mother repeatedly drank alcohol and then

physically and emotionally abused the children. DCF created an

action plan to address these problems, but the mother repeatedly

failed to complete her action plan tasks or meaningfully engage

with offered services, including seeking and maintaining mental

health care treatment. See Adoption of Luc, 484 Mass. at 147,

quoting Petitions of the Dep't of Social Servs. to Dispense with

Consent to Adoption, 399 Mass. 279, 289 (1987) ("the mother's

unwillingness to adhere to DCF's service plan, which required

her to obtain treatment for her mental health challenges and

substance use disorder, is 'relevant to the determination of

unfitness'"). The mother consistently blamed others, including

without merit because she suffered no prejudice. The trial judge credited the mother for her decision to send the children to the maternal aunt's house, the required action under the plan.

10 her own children, during her trial testimony for her

shortcomings and the family's issues, highlighting her present

unwillingness to accept responsibility and make necessary

changes. Accordingly, the mother was not prejudiced by her

trial counsel's performance, given the overwhelming evidence of

the mother's current parental unfitness and the fact that her

parental rights were not terminated.

5. Continuance. "The decision on whether to continue any

judicial proceeding is a matter entrusted to the sound

discretion of the judge, and the judge's decision will be upheld

absent an abuse of that discretion." Adoption of Gillian, 63

Mass. App. Ct. 398, 409-410 (2005). Here, the trial judge acted

within his discretion in denying the mother's request for a

continuance. The case had been pending for over a year, and

both children objected to the continuance. Moreover, the trial

judge properly highlighted how the trial offered the mother the

opportunity to be fairly heard and potentially win back custody

while explicitly clarifying that termination of parental rights

was not at issue. Finally, the request for a continuance was

based on the mother's belief that counsel was unprepared and not

counsel's belief that more time was necessary. Accordingly, the

11 trial judge acted within his discretion in denying the mother's

request for a continuance.5

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Neyman, Ditkoff & Wood, JJ.6),

Clerk

Entered: February 13, 2025.

5 The mother's argument that a continuance was appropriate given the trial judge's finding that reunification was impossible because of the mother's move to New Hampshire is unpersuasive as the Interstate Compact on the Placement of Children (ICPC) does not prevent reunification following a determination that a parent is fit. Adoption of Knox, 102 Mass. App. Ct. 84, 92 ("None of this is to dispute the mother's point that had the judge found her fit, he theoretically could have returned [the child] to her without the existence of an ICPC agreement"). It is decidedly unlikely that the judge would have found the mother unfit and nonetheless returned the children to her on the facts in this case, regardless of whether an ICPC agreement had been reached.

6 The panelists are listed in order of seniority.