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-447
CARE AND PROTECTION OF ZERLINDA.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a trial, a judge of the Juvenile Court found the
mother, the father, and the maternal grandmother (grandmother)
unfit to parent Zerlinda,2 adjudicated the child to be in need of
care and protection, and committed her to the permanent custody
of the Department of Children and Families (DCF). See G. L.
c. 119, §§ 24-26. The grandmother appeals, contending that DCF
failed to demonstrate by clear and convincing evidence that she
was unfit to assume parental responsibility for the child and
that the unfitness was likely to continue into the indefinite
future. The grandmother also claims the judge committed
1 A pseudonym.
2At trial, the father and mother conceded their parental unfitness and requested the return of custody of the child to the grandmother. The parents are not parties to this appeal. prejudicial error by predicating findings of fact on
inadmissible hearsay. We affirm.
Background. We summarize the judge's findings of fact,
reserving certain details for later discussion.3 Zerlinda was
born in February 2012. In late 2012, she began to reside with
the grandmother full time after the grandmother suspected the
mother of using drugs. The grandmother eventually filed a
petition for guardianship, and following a hearing in the
Probate and Family Court, she was appointed guardian of Zerlinda
in January 2015. The grandmother permitted the mother to visit
with Zerlinda so long as the mother was sober, and the
grandmother was present. There were occasions where the
grandmother asked the mother to leave the grandmother's home at
the start of a visit or as the visit went on due to concerns
about the mother sobriety. In one such instance, in November
2014, a report alleging abuse and neglect was filed under G. L.
c. 119, § 51A (51A report), alleging the mother and grandmother
had a physical altercation in which the mother cut the
grandmother on the lip with a knife. Zerlinda was in the home
3 The trial judge made 157 findings and twenty-two conclusions of law in support of her decision that the parents and the grandmother were unfit, and the findings "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993).
2 and asleep during the altercation.4 Another time, in February
2021, the mother was at the grandmother's home when the mother
was civilly committed under G. L. c. 123, § 35.5
Despite the grandmother's efforts, Zerlinda was exposed to
the mother's substance use in several instances while in the
grandmother's care. The most alarming instance of exposure
occurred between October and November 2022, when the grandmother
permitted the mother and the mother's boyfriend to reside at the
grandmother's home while Zerlinda was present. During this
time, on November 8, 2022, the grandmother left the child in the
home with the mother while the grandmother drove the mother's
boyfriend to a court appearance for a drug-related case. In the
grandmother's absence, Middleborough police officers attempted
to serve arrest warrants6 on the mother at the grandmother's
home. Upon arrival, the police discovered a man in a vehicle
parked at the residence. After speaking with this man, the
police recovered fentanyl from his pocket. After knocking on
4 The allegations were unsupported by DCF.
5 General laws c. 123, § 35, allows a qualified person to request a court order requiring an individual to be civilly committed and treated involuntarily for "an alcohol or substance use disorder."
6 At the time, the mother had three default warrants for drug offenses, including two counts of possession of a class E substance, possession of a class A substance, and possession of a class B substance and shoplifting.
3 the door and receiving no answer, the police entered the
residence and found Zerlinda, who told them she was home alone.
The police then found a purse with drug paraphernalia, including
suspected fentanyl residue, syringes, and a spoon, in close
proximity to the child. The police discovered the mother hiding
under a bed. The arresting detective described mother as "a
suffering drug addict on the verge of death": she was covered
in sores, underweight, and "had teeth falling out." The
detective also concluded that the mother had been using drugs in
the home. While being placed under arrest, the mother yelled at
Zerlinda for "ratt[ing] her out" and screamed that she "fucking
hate[d] [Zerlinda]." When the grandmother returned home,
although she appeared sober to the police, she admitted to
having actively been using cocaine that she bought from the
mother's supplier.
Following the November 8 incident, the Middleborough police
filed a 51A report alleging neglect of Zerlinda by the mother
and grandmother due to substance use concerns. Additionally,
the report alleged that the mother's boyfriend, who had also
been living with the grandmother, was in possession of a firearm
and was wanted by police for armed robbery and drug possession.
When DCF workers investigated the report, the grandmother was
not forthright with them. She reported that she was running
errands on November 8, and only admitted she was bringing the
4 mother's boyfriend to court when probed further. The
grandmother minimized her substance misuse history and denied
being on medications before admitting to being prescribed
Suboxone. Additionally, the grandmother denied having a
criminal history, claiming her last arrest had occurred more
than ten years ago despite being arrested for possession of a
class B controlled substance in November 2021. DCF supported7
the 51A report stemming from the mother's arrest on November 8
and conducted an emergency removal of Zerlinda, who was placed
in kinship foster home. Following Zerlinda's removal, DCF
developed action plans for the grandmother, mother, and father.
DCF largely focused on reunification with the grandmother, to
whom Zerlinda wanted to return.
The grandmother did not comply with several of DCF's action
plan tasks. Contrary to DCF's action plan, the grandmother did
not attend all court dates, meetings, and reviews. The
grandmother did not refrain from illegal activities, as the
judge found that she participated in a drug transaction in May
2023. The grandmother also refused to provide treatment
7 As relevant to this appeal, DCF's regulations provided that a 51A report will be "supported" if DCF "has reasonable cause to believe that an incident (reported or discovered during the investigation) of abuse or neglect by a caretaker did occur." 110 Code Mass. Regs. § 4.32(2) (2009).
5 information to DCF relating to concerns around her ongoing
substance use.
Further, the grandmother provided conflicting statements
regarding her ability to set boundaries with the mother. The
grandmother told a DCF social worker she had taken out a "no
trespass order" against both the mother and mother's boyfriend,
but at trial, she admitted she did not take out an order against
the mother. The judge found that at the time of trial, the
grandmother continued to lack insight into the risk the mother
posed when acting as sole caretaker to Zerlinda.
After removal on November 8, 2022, Zerlinda was placed with
a kinship resource until late January 2023, spent one night in
an unrestricted foster home, and then was placed in a different
foster home, where she remained as of trial. Under the
grandmother's care, Zerlinda was frequently absent from or late
to school, received minimal homework assistance from the
grandmother, and was not enrolled in any after-school
activities. In her foster home, Zerlinda received assistance
with her schoolwork and was actively engaged in her school
community. The grandmother also did not ensure Zerlinda was up
to date with dental care. Within the first month of being
placed in her foster home, Zerlinda was brought to the dentist
to receive treatment for a broken tooth and cavities. In
September 2023, DCF changed the goal for Zerlinda from
6 permanency through reunification to permanency through
guardianship, without termination of parental rights; her foster
parent was her proposed guardian.
Discussion. In the context of a care and protection
proceeding involving termination of parental rights, before
turning to the question of termination, in order to remove a
child from a parent and commit her to the permanent custody of
DCF, the judge must find by clear and convincing evidence that
the parent is unfit and that the unfitness will continue
indefinitely into the future. See Adoption of Lisette, 93 Mass.
App. Ct. 284, 296 (2018). See also Adoption of Peggy, 436 Mass.
690, 701 (2002) ("Before a judge may award permanent custody of
the child to the department, the judge must find, by clear and
convincing evidence, that the natural parent is unfit to further
the welfare and best interests of the child"). This is a care
and protection proceeding in which DCF was granted permanent
custody of the child, who was under guardianship of the
grandmother by order of the probate court with mother's consent
and because father was incarcerated. Although the appellant is
the guardian grandmother and not a parent, we will assume
without deciding that is the proper standard here.8 "Subsidiary
8 For the first time on appeal, DCF argues an "unsuitability" standard applies, which is lower than clear and convincing evidence of unfitness, because the grandmother does not possess the same fundamental liberty interest as a parent
7 findings must be proved by a fair preponderance of the
evidence," Adoption of Helen, 429 Mass. 856, 859 (1999), but in
conducting our review, we defer to "the judge's assessment of
the weight of the evidence and credibility of the witnesses."
Custody of Eleanor, 414 Mass. 795, 799 (1993).
1. Grandmother's unfitness. The grandmother argues the
judge erred in determining her to be unfit because there was no
evidence that her parental deficiencies impacted her ability to
parent Zerlinda. We disagree. The grandmother's unfitness
resulted from a "constellation of factors." Adoption of Greta,
431 Mass. 577, 588 (2000).
First, there was ample evidence that the grandmother was
unable or unwilling to set appropriate boundaries with the
mother, in whose care Zerlinda was at risk. On November 8,
2022, the grandmother left the child in the sole care of the
mother. When police officers arrived at the grandmother's
residence, they discovered a man, who possessed suspected
fentanyl, waiting outside in a car, while the mother hid inside
the residence. As detailed above, the officers suspected the
does with their children. "Objections, issues, or claims -- however meritorious -- that have not been raised at the trial level are deemed generally to have been waived on appeal." Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997). Because this claim "fits none of the usual exceptions to the general rule that claims not raised below are waived," we need not address it. Id. at 338-339.
8 mother of using drugs in the home, and they recovered drug
paraphernalia and fentanyl residue in close proximity to
Zerlinda. When DCF workers arrived at the residence on the same
day, Zerlinda reported that the mother had been residing at the
grandmother's home for one month. During this time, Child stated
that the mother would drink "anything"; "took medicine, usually
pills," after which the mother would "become very sleepy, often
falling asleep when sitting or standing up"; and, at times,
"acted strange" and "just stare[d] out the window." By allowing
Zerlinda to be in the supervision of an active drug user and in
close proximity to drugs, the judge's conclusion that the
grandmother exposed the child to considerable risk was amply
supported by the evidence.
Further, the judge properly concluded that this risk was
likely to continue because the grandmother lacked insight into
the danger posed by the mother being left alone with Zerlinda.
For example, at trial, the grandmother expressed regret about
leaving the child in the mother's care on the day of the child's
removal, but only for the reason that the grandmother was
unaware the police would be executing a warrant on the mother
that day. The grandmother's failure to appreciate this risk was
also demonstrated when she provided DCF with inconsistent
statements about her ability to set boundaries with the mother,
including her misleading DCF as to obtaining a "no trespass
9 order" against the mother. Thus, it was proper for the judge to
consider the grandmother's inability to set boundaries with the
mother as evidence that the child would be at risk if placed in
the grandmother's care. See Adoption of Jacob, 99 Mass. App.
Ct. at 272-273 & n.18. See also Adoption of Elena, 446 Mass.
24, 27, 32 (2006) (mother unfit to parent children in part
because she "left them in the care of [drug users]").
Second, the grandmother had her own ongoing challenges with
substance misuse. In November 2022, at the time of the child's
removal, the grandmother admitted to actively using cocaine to
self-medicate. A history of substance misuse is "relevant to a
parent's willingness, competence, and ability to provide care,"
Adoption of Anton, 72 Mass. App. Ct. 667, 676 (2008), provided
there is a sufficient nexus between the substance misuse and
unfitness. See Care & Protection of Bruce, 44 Mass. App. Ct.
758, 763 (1998). See also Adoption of Katharine, 42 Mass. App.
Ct. 25, 34 (1997) ("a cocaine habit, without more, [does not]
translate[] automatically into legal unfitness to act as a
parent").
Such a nexus is present here. For instance, the
grandmother was not forthcoming with information about her
substance misuse and prescribed medications. She initially
denied, before eventually admitting, that she was prescribed
Suboxone, and she refused to provide treatment information to
10 DCF relating to her ongoing substance misuse. In addition, the
judge reasonably found, based on a police officer's testimony,
that in May 2023 the grandmother participated in a drug
transaction involving crack cocaine. Thus, given the
grandmother's lack of candor and proximity to criminal activity
relating to her substance misuse, the judge properly considered
the grandmother's substance misuse as a factor in the unfitness
inquiry. See Adoption of Luc, 484 Mass. at 147 ("the mother's
unwillingness to adhere to DCF's service plan, which required
her to obtain treatment for her . . . substance use disorder, is
'relevant to the determination of unfitness'" [citation
omitted]); Adoption of Helen, 429 Mass. at 860 ("unsuccessful
attempts to address" substance misuse issues properly considered
in termination proceedings); Adoption of Mario, 43 Mass. App.
Ct. 767, 772 (1997) (nexus between drug use and parental
unfitness established in part due to mother violating probation
and subjecting herself to incarceration while child was in her
care).
Third, the grandmother failed to provide the child
sufficient dental care or academic support. Subsequent to her
removal, Zerlinda required four appointments to address her
dental needs. Within the first month of being placed in her
foster home, she was brought to the dentist and thereafter had
all of her dental work completed. In considering the
11 grandmother's inadequate pursuit of the child's dental care as a
factor bearing on unfitness and contrasting the child's
condition in the grandmother's care with her condition after
removal, the judge acted within her discretion. 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" [citation
omitted]). See also Adoption of Kimberly, 414 Mass. 526, 530-
531 (1993). Further, the judge found the grandmother did not
assist the child, who had an individualized education plan, with
homework; did not ensure the child's consistent attendance at
school; and noted the child was not enrolled in any after-school
activities. The judge also found that while under the care of
her foster parent, the child received assistance with her
homework and was engaged in cheerleading. The fitness of a
parent or grandparent must be viewed with the specific needs of
the child in mind. See Adoption of Abigail, 23 Mass. App. Ct.
191, 193 (1986). Thus, consideration in the grandmother's
unfitness determination of the child's academic needs, which
were substantial given the child's need for increased academic
attention, and comparing how these needs were met after removal,
was also within the judge's discretion. See Adoption of
Kimberly, 414 Mass. at 530-531; Adoption of Oliver, 28 Mass.
12 App. Ct. 620, 625 (1990) (mother properly found unfit where she
had little understanding of child's substantial needs).
Lastly, the grandmother refused to verify her compliance
with mental health treatment, as set out in her DCF action plan.
The grandmother argues the judge erred under G. L. c. 112,
§ 135B (social worker-client privilege), and G. L. c. 233, § 20B
(psychotherapist-patient privilege), by faulting the grandmother
for refusing to waive the privilege attached to her therapy
records. The statutes, which contain the same relevant
language, provide that "[u]pon the exercise of the privilege
. . . the judge or presiding officer shall instruct the jury
that no adverse inference may be drawn therefrom." Here, the
grandmother did not assert either privilege below; she cannot do
so now. See Adoption of Abigail, 23 Mass. App. Ct. at 198 ("No
effort was made to [assert the patient-psychotherapist privilege
in the trial court], and the privilege issue cannot now be
raised as a second thought of appellate counsel").
2. Hearsay. The grandmother argues that the judge erred
by admitting in evidence and relying on the May 2023
Middleborough police report (police report) in her decision.9
Specifically, the grandmother contends the police report
9 The police report detailed the grandmother's alleged role in a drug transaction that occurred in a public parking lot as observed by police.
13 contained inadmissible hearsay and statements of opinion, which
the judge relied on in making findings of fact, and that
reliance prejudiced her. This argument is unavailing.
"We need not decide whether the judge erred in admitting
[the police report] because, even assuming error, there was no
resulting prejudice." Adoption of Luc, 484 Mass. at 148. The
police report was cumulative of the police officer's trial
testimony. See id. Further, there was other evidence of the
grandmother's substance misuse, and a nexus to her parental
unfitness, as well as other parenting deficiencies that
supported the judge's conclusion. See Adoption of Kimberly, 414
Mass. at 538 (no prejudice where findings based on alleged
inadmissible evidence "not so inconsistent with the judge's
other findings as to raise any question concerning his ultimate
conclusion").
Judgment affirmed.
By the Court (Rubin, D'Angelo & Smyth, JJ.10),
Clerk
Entered: April 10, 2025.
10 The panelists are listed in order of seniority.