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

23-P-668

CARE AND PROTECTION OF GLENDA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a judgment issued by a Juvenile 

Court judge pursuant to G. L. c. 119, § 26, finding the mother 

currently unfit to parent her child, Glenda, and committing the 

child to the permanent custody of the Department of Children and 

Families (DCF).2 The mother argues that the judge, in finding 

the mother unfit to care for the child, improperly focused on 

the mother's care of the child's younger brother. The mother 

also claims that the judge erred in finding her unfit to parent 

the child by clear and convincing evidence. We affirm.

1 A pseudonym.

2 In addition to finding the mother unfit to parent the 

child, the judge found that the father was unfit. He did not 

appeal. The judge also found that DCF had not made reasonable 

efforts toward reunification, and ordered DCF to update the

parents' action plan, convene a permanency planning conference 

to determine a goal for the family, provide the mother with 

weekly visits with the child, and confirm participation with all 

collaterals on a monthly basis.
2

1. Focus on the younger brother. The mother argued that 

the trial judge's focus on the mother's care of the child's 

younger brother was improper. We disagree. The mother is 

correct that "[a] determination of parental unfitness must be 

child-specific" and must focus on the particular child at issue. 

Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004), citing 

Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985). It is also 

true, however, that a parent's care for a child's sibling may 

bear on the parent's fitness to care for the subject child. See

Adoption of Carla, 416 Mass. 510, 513 (1993) (stating that 

parent's fitness to raise one child is relevant to their fitness 

to raise sibling, and noting that "a parent may be fit to raise 

one child and unfit to raise another," but parent may also "be 

unfit to raise any child" [citation omitted]).

In this case, the trial judge found that the mother had 

missed several medical appointments for the younger brother, who 

had a number of specialized health needs. The younger brother 

was born premature and spent three months in the neonatal 

intensive care unit (NICU) before being discharged to the 

mother's custody. He was diagnosed with failure to thrive and 

needed a nasal gastro tube to be fed. When the tube became 

dislodged, medical providers requested that he be brought to the 

hospital immediately, as he needed to be fed every three hours, 

but the mother did not bring him in until the next day, at which 
3

point he had lost 1.5 ounces. The mother later failed to bring 

the younger brother to several other medical appointments, and 

he lost more than one pound while in her care. The younger 

brother was ultimately removed from the mother's custody due to 

medical neglect.

The mother challenges this focus on the younger brother, as 

the case at hand is not about him, but about Glenda. The trial 

judge did not, however, consider only the mother's medical 

neglect of the younger brother; indeed, the trial judge also 

focused on the mother's medical neglect of Glenda, and even of 

herself, in coming to the conclusion that the mother was unfit 

to parent the child.

Although the child does not have as many specialized health 

needs as the younger brother, she has required specialized care. 

The child was born one month premature and spent one month in 

the NICU before being discharged to the mother's care. 

Approximately one month after the child's birth, shortly after 

the child was released from the NICU, the mother failed to bring 

her in for her initial follow-up medical appointment. The 

mother then failed to bring her to the following seven 

rescheduled appointments. Although the mother contends that the 

child had "no chronic medical issues," the trial judge came to 

the reasonable conclusion that failure to bring the child to her 

first follow-up appointment after being released from the NICU
4

(and seven attempts at rescheduling) constituted medical 

neglect.

The trial judge also found that the mother has not managed 

her own health consistently. A parent's failure to seek medical 

treatment for herself can result in danger to the child. See 

Petition of the Dep't of Social Servs. to Dispense with Consent 

to Adoption, 16 Mass. App. Ct. 965, 965 (1983). The mother has 

several physical and mental health diagnoses, including 

diabetes, epilepsy, asthma, posttraumatic stress disorder 

(PTSD), and bipolar disorder, and she also has a history of 

substance abuse. Despite these health issues, the mother has 

been inconsistent with her treatment. She attended only four 

appointments with her neurologist between the summer of 2020 and 

December 2021, and has since missed several more appointments. 

She attended a few appointments for trauma therapy during the 

summer of 2021, but stopped soon after in the fall of 2021. 

Similarly, she attended one appointment with a psychiatrist, but 

declined to attend the follow-up appointment. The mother later 

began individual therapy, but when her regular therapist went on 

leave for approximately six months, the mother did not engage in 

therapy with the substitute therapist. The mother has also 

misrepresented her treatment to DCF, stating that she had weekly 

appointments with her substance abuse counsellor despite the 
5

fact that, according to the counsellor, they did not have a 

regular meeting schedule.

The incident that precipitated the child's removal 

demonstrates how the mother's failure to care for her own health 

could impact the child. The mother had a medical marijuana 

card, as she used marijuana to treat her epilepsy. On the day 

of the child's removal, the mother purchased marijuana from an 

acquaintance rather than using her medical marijuana card at a 

dispensary. After using this marijuana, the mother lost 

consciousness and had to be taken to the hospital, where she 

tested positive for cocaine. The mother stated that she 

believed the marijuana was laced with cocaine. The child was in 

the home sleeping when this occurred. Although the child was 

asleep and the mother's brother was also in the home, he was 

asleep and not acting as a sober caretaker for the child. Based 

on this incident, the trial judge could reasonably conclude that 

the mother's failure to properly treat her epilepsy could place 

the child at risk if returned to the mother's custody.

Taken together with the mother's failure to maintain her 

own health properly and her medical neglect of the child, the 

mother's medical neglect of the younger brother was not an 

improper consideration for the trial judge, as it offered

evidence of a pattern of behavior and therefore had prognostic 

value. Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986).
6

2. Sufficiency of the evidence. The mother also argues 

that the evidence was insufficient to prove by clear and 

convincing evidence that she was unfit to parent the child. We 

disagree, as there was significant evidence supporting the trial 

judge's decision, including the mother's medical neglect of the 

child, the mother's unsafe use of marijuana, the environment of 

domestic violence, and the mother's inconsistent visitation with 

the child.

For a judge to commit a child to DCF's custody, DCF must 

prove, "by clear and convincing evidence, that a parent is 

currently unfit to further the best interests of a child." Care 

& Protection of Erin, 443 Mass. 567, 570 (2005). A finding that 

a parent is unfit requires "more than ineptitude, handicap, 

character flaw, conviction of a crime, unusual life style, or 

inability to do as good a job as the child's foster parent." 

Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). The

judge must instead find "'grievous shortcomings or handicaps'

that put the child's welfare 'much at hazard.'" Id., quoting 

Petition of New England Home for Little Wanderers to Dispense 

with Consent to Adoption, 367 Mass. 631, 646 (1975).

a. Marijuana use. In addition to the medical neglect of 

the child, described above, the trial judge relied on the 

mother's unsafe use of marijuana in finding her currently unfit 

to parent the child. Substance abuse is a relevant 
7

consideration in a determination of unfitness if the substance 

abuse interferes with a parent's ability to provide minimally 

acceptable care of the child. See Adoption of Katharine, 42 

Mass. App. Ct. at 31.

The mother has consistently used marijuana since the age of 

eighteen, and she uses it to treat her epilepsy. Against 

medical advice, the mother used marijuana while pregnant with 

the child. The trial judge found that the mother's marijuana 

use during her pregnancy "contribut[ed] to [the child] being 

born premature," a finding the mother does not contest as 

clearly erroneous, though she does note there is evidence that 

might support an opposite conclusion. She did disclose her 

marijuana use to her medical providers, causing the child to be 

labeled a substance-exposed newborn (despite the fact that both 

the mother and child tested negative for all substances). The 

mother claimed she was not told by medical providers to stop 

using marijuana while pregnant, but the trial judge did not 

credit that statement. At trial, the mother testified that she 

continued to use marijuana one to two times per week.

As noted above, the child was removed following the 

mother's collapse after she used marijuana that she purchased 

from an acquaintance rather than a dispensary, and which she 

later claimed to have come to believe was laced with cocaine 

after a urine screen came back positive for cocaine. At the 
8

time of the incident, emergency workers noticed marijuana 

wrappers and a "heavy odor of marijuana" in the mother's 

apartment.

After the child's removal, DCF created a medical marijuana 

safety plan with the mother that included "1) no smoking in the 

apartment with the child[] present, 2) having a sober adult 

present in the apartment when Mother was under the influence, 3) 

following Mother's medical providers' advice on intake amount, 

4) only buying from medical marijuana dispensaries, 5) and 

storing the medical marijuana safely in a lockbox provided by 

[DCF]." Despite this safety plan, after each of four overnight 

visits with the mother, the child would return to her foster 

family with an odor of marijuana, which led the trial judge to 

conclude that the mother "continued to use substances in the 

presence of [the child]," a finding that is not, as the mother 

claims, clear error given the evidence that there was an odor of 

marijuana on the child after overnight visits, in the apartment,

and in mother’s car, even if the odor in the apartment was not 

of concern to the social worker. And at the time of trial, the 

mother continued to smoke marijuana despite being pregnant.

According to G. L. c. 94G, § 7 (d), "[a]bsent clear, 

convincing and articulable evidence that the person's actions 

related to marijuana have created an unreasonable danger to the 

safety of a minor child," legal possession and consumption of 
9

marijuana shall not "form the sole or primary basis for 

substantiation, service plans, removal or termination or for 

denial of custody, visitation or any other parental right or 

responsibility." In this case, the mother's unsafe marijuana 

use did create an unreasonable danger to the safety of the

child. On the day of the child's removal, the mother used 

marijuana from an unregulated source and had to be brought to 

the hospital, leaving the child in her apartment while no sober 

caretaker was present and awake. Additionally, after a 

marijuana safety plan was put in place, the judge found that the 

mother was not following it, as she was using marijuana in the 

presence of the child. Even if the mother's marijuana use did 

not create an unreasonable danger to the safety of the child, it 

was not the sole basis for the judge's finding of unfitness, as 

the judge also relied on the mother's pattern of medical 

neglect, including of the child, the environment of domestic 

violence, and her inconsistent visitation with the child.

b. Domestic violence. In his determination that the 

mother was unfit to parent the child, the judge considered the 

fact that the majority of the mother's relationships have

involved domestic violence. "[A] judge must consider issues of 

domestic violence and its effect upon the child[] as well as a 

parent's fitness." Adoption of Gillian, 63 Mass. App. Ct. 398, 

404 n.6 (2005).
10

The mother's relationship with the father involved verbal 

and emotional abuse. The mother never sought a restraining 

order against the father. After the mother's relationship with 

the father ended, she entered a relationship with the younger 

brother's father, and this relationship also involved domestic 

violence. The details of the domestic violence are known to the 

parties and need not be recounted here. What is relevant is 

that, despite numerous instances of domestic violence with the 

younger brother's father, several of which involved physical 

abuse, the mother continued her relationship with him for over a 

year after the first incident and even lived with him. The 

mother also declined to pursue a restraining order against him, 

and failed to report certain incidents to DCF. The younger 

brother's father was eventually arrested due to an incident of 

domestic violence with the mother, and then was released from 

incarceration several months later. The mother testified that 

she has not had contact with him following his release, but the 

trial judge did not credit that testimony. Although there was 

no evidence that the child ever witnessed any domestic violence, 

the trial judge did not err in considering the effect that 

domestic violence could have if the child were returned to the 

mother's custody, as "[i]n determining parental fitness a judge 

may use past conduct to predict future ability and performance." 

Custody of Michel, 28 Mass. App. Ct. 260, 269-270 (1990).
11

c. Inconsistent visitation. Finally, the judge considered 

the mother's inconsistency in visiting the child in his 

determination that the mother was unfit to parent the child. 

This was an appropriate consideration for the trial judge in 

determining the mother's unfitness, as "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." Petitions of the 

Dep't of Social Servs. to Dispense with Consent to Adoption, 399 

Mass. 279, 289 (1987).

After the child was removed from the mother's custody, the 

mother was initially consistent with her visitation. However, 

by November 2021, the mother's visitation became much more 

inconsistent. Because the mother cancelled numerous visits, she 

did not attend any visits with the child in November or 

December, and attended only one visit in January and one in 

February. Then in March, she once again had no visits. 

Although the mother attended several visits in April, she still 

cancelled three visits, and in May, she had only one visit, 

because she cancelled four. The mother's visits with the child

were suspended for several months following the younger 

brother's removal, but were reinstated in July 2022. Even after 

that months-long break in visitation, the mother continued to 

cancel several visits over the following months.
12

3. Conclusion. Based on all of the above considerations, 

there was sufficient evidence for the trial judge to find by 

clear and convincing evidence that the mother was, at the time 

of trial, currently unfit to parent the child.

Judgment affirmed.

By the Court (Rubin, 

Massing & Desmond, JJ.3),

Assistant Clerk

Entered: April 4, 2024.

3 The panelists are listed in order of seniority.