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-152
CARE AND PROTECTION OF ZIMMER. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother and the father appeal from a decision of the
Juvenile Court in this care and protection case finding them
currently unfit as of the time of trial and awarding the
Department of Children and Families (DCF or department), which
before trial had temporary custody of their child, permanent
custody. The appeal does not involve the termination of
parental rights, so the judge did not determine that the
parents' unfitness was likely to extend indefinitely into the
future. The judge also agreed with the parents that the
department had not made the statutorily-required reasonable
efforts toward reunification of the family.
1 A pseudonym. In order to ensure privacy, we use only descriptive words for the parties (i.e., mother, father, child) rather than their names. When the decision was issued, it was accompanied only by a
two-page opinion. Months after the trial, the trial judge
issued detailed findings of fact and conclusions of law.
Although the parents are correct that this decision contains
some findings supported by unadmitted posttrial evidence which
cannot properly be used to justify the judgment, we nonetheless
conclude that the judge's error in relying on that evidence
ultimately was immaterial to the decision made by the judge.
There is clear and convincing evidence of the parents' current
unfitness at the time of trial, even after excising the
improperly-relied-upon findings of fact. See Adoption of Luc,
484 Mass. 139, 148 (2020). Finally, although the judge found
that the department failed to engage in reasonable efforts
toward reunification, we conclude she did not abuse her
discretion by not entering a specific remedial order. We thus
affirm.
Background. The facts of the case are well known to the
parties. They will not be repeated here except as necessary.
This case commenced on November 2, 2022, when the then five
year old child opened the door to his home in Chelsea to a
utility service worker, who discovered that the child was home
alone and unattended. The mother reported that she was working
on Cape Cod and was on her way back. The father had separated
from the mother about a week before and was not involved in the
2 child's life at the time. A mandated reporter filed a report
pursuant to G. L. c. 119, § 51A (51A report), which was screened
in for an emergency response.
During the department's investigation, the child disclosed
that he was frequently left at home with no one to watch him.
His pediatrician disclosed that the child had not received
recommended medical care and had not been seen by the
pediatrician for over eighteen months at the time the department
filed the care and protection petition, and that the mother had
failed to attend multiple pediatric appointments, including four
appointments in 2022. The department discovered that the child
was not in school due to missing immunization records, although
he was old enough for kindergarten. The mother had previous
involvements with the department with two of her five children
due to 51A reports alleging she had committed domestic violence
against them that DCF found supported.
DCF obtained custody of the child on the same day he was
found home and unattended, and retained custody since then. DCF
filed a care and protection petition pursuant to G. L. c. 119,
§ 24, the next day, November 3, 2022.
The department held a six-week review on February 3, 2023.
The mother had failed to engage in any services during the prior
six weeks, stating that she needed to work to provide for the
family. In August 2023, in discussions with the department, the
3 mother maintained that she had done nothing wrong and that the
child should be returned home to her. She stated that she left
the child in the care of her older son. The department told her
that the older son was not an appropriate caretaker because of
significant mental health concerns for which he was receiving
services through the department.
The mother's action plan included the following tasks:
participate in family stabilization services, attend family
therapy sessions, participate in Parenting Journey classes,
participate in a parenting capacity evaluation, and engage in
domestic violence services. The judge found that DCF failed to
provide the mother with an action plan in Spanish until after
the first foster care review.
The mother complied with some of the tasks on her action
plan but was not consistent in attending visitation or family
therapy sessions. The mother had a full-time job with a private
employer, painting bridges for the Commonwealth. Her working
there often caused her not to ensure proper supervision of, or
attention to services for, her child.
The department changed its permanency goal for the child to
adoption on February 29, 2024, citing the mother's lack of
insight and partial engagement with the action plan. During a
May 21, 2024, foster care review, the panel found that the
department had not completed the necessary steps to address the
4 needs of the family and recommended the permanency goal be
changed to reunification. However, during the July, 2024,
permanency planning conference, the clinical team reviewed DCF's
permanency goal and maintained the goal of adoption.
The father resided with the mother from the child's birth
in 2016 to around a week before the removal, when he separated
from the mother. The mother had previously obtained a
restraining order against the father in 2020 after the father
made threats against her. In November 2022, the same month of
removal, the father moved to Maryland, where he remained until
November 2023, when he returned to Massachusetts. At the time
of trial, he had subsequently visited with the child twice. The
father did not seek reunification with the child at trial, but
supported the child's reunification with the mother.
Meanwhile, the child was placed by the department in
thirteen different substitute care settings over seven months,
at which he exhibited challenging behaviors including tantrums
and sexualized behaviors. The child was placed at Walker
Therapeutic & Education Programs (Walker), the thirteenth
placement, in June 2023, and was diagnosed with adjustment
disorder. The child was ready for discharge at the end of the
2024 school year but remained at Walker at the time of trial.
The child's position at trial, as here, was that he wants to be
reunified with the mother.
5 Trial on this matter began on July 29, 2024, and continued
for three nonconsecutive days. At trial, the mother first
testified that the child was removed because of a "lie" that her
children had told. She said she believed that the father
counseled her children to lie and to state that she hit them.
She alleged that she left the child with a family friend on the
day of his removal but could not state who that was. She then
testified in contradiction that she left the child in the care
of her older son. After much direction, the mother finally
testified that the child was removed because she left him home
alone while she was at work.
The judge found as a fact that the mother's ongoing
vacillation as to what transpired that day –- and her disregard
of the department's concern about the older son supervising the
child –- demonstrated a lack of insight into her actions and the
risk of harm to the child on that day.
The judge noted that the mother had demonstrated an
inability to arrive on time for visits or therapy sessions.
Although the judge deemed visitation overall to have gone well,
at some visits the mother took phone calls or attended to work.
When she was on leave from work, she nonetheless failed to
attend five scheduled medical and/or dental appointments for the
child. The judge found that the mother did not understand why
the child was in therapy, but did not credit her testimony that
6 she had never been told the reason by the department. The judge
acknowledged that the mother had completed many of the tasks on
her action plan but also found that, at least at the time of
trial, the child remained at risk of harm should he be left home
alone for any significant period and still required mental
health intervention.
The judge essentially concluded that the mother lacked
insight into, and failed to take accountability for, leaving her
child alone, she incorrectly believed her obligation was simply
to work and provide physical sustenance for her family, and did
not consider that it was not in the child's best interests to be
left alone and unattended in the home. The judge concluded that
"Mother does not prioritize [the child] and his needs as much as
she does her work." The judge found her currently unfit.
The judge also found that the father had little to no
involvement during the pendency of this action and did not visit
with his child until at least a year after his removal. Nor had
he maintained any substantial level of contact with the
department throughout the pendency of the action. The judge
found the father currently unfit.
Meanwhile, the judge ruled that DCF had failed to make
reasonable efforts toward reunification of the family, and she
concluded that the department failed in its responsibility to
7 identify an appropriate setting for the child after discharge
from Walker.
Discussion. On appeal, the mother and the father challenge
the findings of current unfitness. A finding of unfitness must
be supported by clear and convincing evidence, but a judge's
subsidiary findings will be disturbed only if clearly erroneous.
See 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'" (citation omitted). Custody of Eleanor, 414 Mass.
795, 799 (1993).
The mother and the father also challenge the failure of the
judge to order DCF to engage in any specific remedial efforts,
based on her conclusion about reasonable efforts. A judge has
the equitable authority to order the department to take
reasonable remedial steps where the judge finds the department
"failed to fulfil its duty to make reasonable efforts" (citation
omitted). Care & Protection of Rashida, 488 Mass. 217, 234 n.25
(2021). We review the lack of a remedial order by the judge for
abuse of discretion. See Care & Protection of Walt, 478 Mass.
212, 230 (2017).
8 1. The father's unfitness. The father argues that the
trial judge erred in finding him unfit. He contends that even
though he had separated with the mother before the removal and
subsequently moved to Maryland, the judge made a clear error in
finding he lacked involvement in the child's life.
The father lists instances of communicating with DCF to
promote reunification with the mother and his visitation with
the child upon returning to Massachusetts. The father also
argues that DCF never considered, after the removal, the option
of placing the child with the father to reside in Maryland. But
the father's recitation in detail of his interactions with DCF
and the child do not demonstrate that the judge's finding was
clearly erroneous. See Adoption of Don, 435 Mass. 158, 166-167
(2001). Indeed, he does not contest any of the subsidiary
factual findings made by the judge, including the finding that
he only began meeting with the department in October 2023,
nearly a year after the removal, and thereafter the father did
not make himself consistently available to the department. We
see no clear error in the judge's findings and no error in the
judge's conclusion that clear and convincing evidence
demonstrates the father was, at the time of trial, currently
unfit.
9 2. The mother's unfitness. Both the mother and the father
challenge factual findings made by the judge related to the
mother's unfitness.
a. Stale and cherry-picked facts. First, the mother
argues that some findings are based on stale evidence and
"seemingly cherrypicked" isolated events in the past. According
to the mother, these findings include mother:
• Leaving the child home alone once in November 2022, which gave rise to the petition;
• Being difficult to direct during a February 2023 six-week case review;
• Maintaining she did nothing wrong in August 2023;
• Missing or being late to five family therapy sessions between July 2023, and May 2024;
• Missing three home visits between November 2022, and January 2024;
• Missing a weekly visit with the child at the DCF area office in January 2023;
• Not interacting with the child during two visits at the DCF area office in December 2022, and January 2023;
• Missing, canceling or being late to twelve weekly visits at Walker between August 2023, and May 2024;
• Telling the social worker to keep the child following a November 2023 foster care review; and
• Not attending the child's medical appointments between December 2023, and February 2024.
These facts certainly include ones from years prior to the
trial, but the judge properly relied on them to make her
10 findings. Although courts cannot rely on stale information to
determine current fitness, the Supreme Judicial Court has
recognized that certain prior history can have "prognostic
value." Adoption of Don, 435 Mass. at 166, quoting Adoption of
George, 27 Mass. App. Ct. 265, 268 (1989). Instead of being
stale or isolated facts, the past events cited by the judge are
indeed probative of the mother's current unfitness in that they
demonstrate her lack of insight into the reason for the child's
removal and her inconsistent engagement with DCF and her DCF
action plan.
b. Clearly erroneous facts. The mother also seeks to
challenge findings of fact numbers 20(b) and 20(e) as clearly
erroneous. The judge found in 20(b) that DCF provided the
mother with the child's new Spanish-speaking clinician's contact
information, and in 20(e) that "Mother refused to engage in any
[individual] mental health services" at North Suffolk and Latino
CART.
The mother contends that with respect to finding number
20(b), the social worker testified on the last day of trial that
she gave the mother the name of the clinician during their last
meeting, but she had not given the mother the clinician's
telephone number yet, which she acknowledged was her
responsibility.
11 As to finding number 20(e), the mother argues that
individual mental health services were not part of her action
plan. This thus is a claim not so much that the finding is
clearly erroneous as that it is immaterial.
Nonetheless, assuming these two findings were in error,
they were irrelevant to the judge's final conclusion about the
mother's fitness, her lack of insight into the dangers facing
the child when she left him unattended, or the child's need for
therapy.
c. Unadmitted evidence. Finally, the mother is correct
that the judge should not have relied in her findings of fact
and conclusions of law upon a December 17, 2024, postjudgment
status report. That status report was issued subsequent to
trial as a result of the order of the judge that also found a
failure to make reasonable efforts towards reunification on the
part of the department.
Throughout the judge's decision, she cited, without
identifying it, "Pet. Ex. 22." There were, however, only
twenty-one exhibits introduced at trial by DCF. The department
identifies exhibit 22 as "the [December 2024] status report,"
and we may assume that that is correct.
This report not only was not admitted at trial, it was not
created until months after the end of the trial and the entry of
judgment, and it describes events occurring after trial. A
12 court may not consider items not in evidence in reaching its
decision. Care & Protection of Frank, 409 Mass. 492, 499
(1991). A report created after judgment entered cannot properly
be used to support the entry of that judgment. Likewise, the
use of any unadmitted evidence deprives the opposing party of
the opportunity to litigate its admissibility or to challenge
the substance through cross-examination or calling witnesses.
See Custody of Two Minors, 19 Mass. App. Ct. 552, 556-557
(1985). Consequently, the status report cannot be used to
support any of the findings made by the judge, and should not
have been utilized by the judge in making her findings of fact
and conclusions of law.
We have parsed each of the findings with respect to which
the judge cited exhibit 22 in support. Some of the facts found
in the judge's decision that are supported by the status report,
though improperly included, are favorable to the mother or the
father, or are at least neutral and therefore could not be
prejudicial. For example, finding number 20(a)(ii) describes
the mother attending family therapy sessions on dates after the
trial. Finding number 21 appears to refer to a positive
postjudgment family visit between the mother and the child that
included the child's sister. The first paragraph of finding
number 20 describes the apparent delayed receipt by the mother
of an action plan in Spanish, which could be characterized as
13 neutral. Meanwhile, findings numbers 44, 45, and 46 describe
treatment received by the child and sought by DCF after
judgment. These, too, though like all the others improper,
might be considered neutral.
But most of the findings that cite exhibit 22 for support
are negative: exhibit 22 is cited in support of finding number
20(b), that the mother did not understand why the child was in
therapy and claimed she had never been told the reason. Finding
number 20(e) talks about the mother's refusal to engage in
mental health services. Finding number 21(iv) includes among a
list of missed visits, one postjudgment missed visit described
in the status report. Finding number 21(v) describes the mother
unilaterally extending a posttrial visit, being confronted by
Walker staff, becoming agitated in front of the child,
subsequently being relegated to supervised visits, and behaving
inappropriately at a meeting to discuss the matter with DCF.
And finding number 21(vi) describes the mother bringing the
father to a postjudgment visit without approval.
Finding number 34, 35, and 36 describe posttrial and
postjudgment interactions between DCF and the father, describing
the difficulty the department had contacting him, his finally
scheduling a home visit, and then his not appearing and the home
visit taking place later. These findings conclude that the
14 father has had inconsistent contact with the child and has not
made himself consistently available to the department.
None of these facts can have played any role in the
judgment, and they cannot play any role in justifying it. The
judge's inclusion of them in her findings of fact and
conclusions of law was erroneous.
Nonetheless, even without these erroneously included
findings, the judge's conclusion of unfitness, and her reasons
for that conclusion, had "clear and convincing evidentiary
support." See Care & Protection of Olga, 57 Mass. App. Ct. 821,
824-825 (2003). The findings are in essence add-ons to the
otherwise clear and convincing evidence properly admitted at
trial about then-current shortcomings of the mother and the
father at the time of trial -— essentially the mother's lack of
insight into what was in the best interests of the child, and,
due to that lack of insight, her inability to provide a safe and
adequate home for the child at the time of trial, and with
respect to the father, his lack of involvement with the child.
They are thus essentially insubstantial additional evidence in
addition to the clear and convincing, properly-admitted evidence
of the parents' current unfitness at the time of trial.
Consequently, as in Care & Protection of Olga, supra, we affirm
the determination of current unfitness with no need for a remand
for further proceedings. See Adoption of Luc, 484 Mass. at 148
15 (even after excising thirty-one contested findings of fact,
there was clear and convincing evidence supporting decree).
3. Lack of reasonable efforts and remedy. Of
significance, as this was not a case terminating parental
rights, and as the judge's findings and conclusions could not
have supported termination had it been sought, the judge
concluded that the department had failed to make reasonable
efforts to reunify the family. Indeed, the department's efforts
produced thirteen different placements over the course of seven
months, each of which disrupted. We think a reasonable question
may be raised by the record about whether some of the child's
behavioral problems were the result of events in these
placements.
The department does not contest the finding that it failed
to make reasonable efforts. But both the mother and the father
argue that the Juvenile Court judge abused her discretion by not
exercising the court's equitable power to order specific
remedial measures to address this finding. However, neither the
mother nor the father is asking this court to order entry of any
specific remedial order.
To begin with, we think that this argument is waived, as
the mother and the father did not request any such remedial
order in the trial court. Although Juvenile Court judges may
sua sponte exercise their equitable authority to order remedial
16 efforts, they are not required to do so. Cf. Commonwealth v.
Adams, 416 Mass. 558, 566 (1993).
In any event, we do not see any abuse of discretion in the
method by which the judge addressed the issue in light of her
conclusion. The court continues to have supervisory authority
over the case. The judge ordered DCF to file a status report,
and within that report the department indicated that it had,
among other things, changed the plan for the child from adoption
to reunification (on the propriety of which, of course we
express no opinion). Should the mother or the father conclude
that reasonable efforts toward reunification are not being made,
either one of them may at any time bring a motion before the
17 court. The judgment is affirmed.
So ordered.
By the Court (Rubin, Shin & Singh, JJ. 2),
Clerk
Entered: May 20, 2026.
2 The panelists are listed in order of seniority.