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15-P-1451 Appeals Court

CARE AND PROTECTION OF VICK.

1

No. 15-P-1451.

Plymouth. May 10, 2016. - July 13, 2016.

Present: Cypher, Blake, & Henry, JJ.

Parent and Child, Care and protection of minor, Custody of 

minor, Interference with parental rights. Minor, Care and 

protection, Custody.

Petition filed in the Plymouth County Division of the 

Juvenile Court Department on November 25, 2013.

The case was heard by John P. Corbett, J.

Karen O. Young for the mother.

Rizwanul Huda for the child.

Sookyoung Shin, Assistant Attorney General, for Department 

of Children and Families.

Dennis M. Toomey for the father.

BLAKE, J. A judge of the Juvenile Court found that the 

child was in need of care and protection, that the mother was 

unfit to assume parental responsibility, and that the unfitness 

 

1 A pseudonym.
2

was likely to continue into the indefinite future. On appeal, 

the mother challenges the sufficiency of the evidence supporting 

the judge's conclusion that she was unfit, contending that the 

evidence failed to establish a nexus between her parenting and a 

showing of harm to the child. She also claims that the judge 

did not conduct an evenhanded assessment of the evidence, and 

ignored the child's preference to live with his mother. The 

child joins in these arguments. We affirm on the basis that the 

mother was unfit to assume parental responsibility due to 

neglect of the child.

1. Background. We summarize the relevant facts and 

procedural history as set forth in the judge's decision and as 

supported by the record, reserving other facts for later 

discussion. The parents met in high school and, shortly 

thereafter, the mother became pregnant. The child was born in 

February, 2002. Immediately after his birth, and for the next 

four and one-half years, the father was the child's primary 

caretaker; during that time period, the father and child lived 

with the father's mother. When the father lost his job, he 

placed the child in the mother's care. In 2008, the father 

moved to Georgia, where he has extended family, because he was 

unable to find employment in Massachusetts. Despite the 

distance, the father maintained contact with the child's schools 
3

and medical providers. From 2008 to 2013, the child spent most 

of his summers with the father in Georgia.

In 2013, the mother resided in Brockton with the child, her 

sister (aunt), and her father (grandfather). She also had a 

residence in Stoughton. In November of that year, the police 

responded to the Brockton home after the aunt fell in the 

shower. Following that incident, the Department of Children and 

Families (DCF) received three reports, filed pursuant to G. L. 

c. 119, § 51A (51A reports), each alleging the neglect of the 

child by the mother. The primary concerns expressed were the 

condition of the mother's Brockton home, the lack of food 

available, and the exposure of the child to drug abuse. The 51A 

reports were investigated and substantiated.

After the mother failed to cooperate or provide access to 

the Brockton home, on November 25, 2013, DCF filed a care and 

protection petition pursuant to G. L. c. 119, § 24, alleging 

that the child was in need of care and protection. On December 

5, 2013, a stipulation of conditional custody was approved 

allowing the mother to have continuing custody of the child.2 On 

 

2 The conditions, agreed to by the mother, were that DCF was 

to have unfettered access to the child at home or at school; she

would cooperate with DCF to create a service plan; the child's 

physical, medical, educational, and psychological needs would be

met, including the maintenance of "a safe and clean home 

environment"; the mother would remain drug and alcohol free; and 

she would meet with her DCF social worker and comply with the 

assessment process.
4

February 10, 2015, DCF removed the child following the mother's 

failure to comply with her DCF plan. Following a trial, the 

judge found the mother unfit to parent the child and the father 

fit to assume parental responsibility, and awarded custody of 

the child to the father pending the outcome of a home study of 

the father's residence.

3 This appeal followed.

2. Standard of review. 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. 

See Care & Protection of Laura, 414 Mass. 788, 793 (1993); 

Custody of Eleanor, 414 Mass. 795, 799 (1993). "Taken together, 

these findings must then prove clearly and convincingly that the 

[parent is] currently unfit to provide for the welfare and best 

interests of [the child]." Adoption of Quentin, 424 Mass. 882, 

886 (1997). Parental unfitness is determined by considering a 

parent's character, temperament, conduct, and capacity to 

provide for the child's particular needs, affections, and age. 

Adoption of Mary, 414 Mass. 705, 711 (1993).

3. The mother's unfitness. The mother claims that DCF 

failed to prove that her parenting placed the child at serious 

risk of harm "from abuse, neglect, or other activity harmful to 

the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 

 

3 At the time of trial, the father was employed and living 

in Georgia with his wife and stepdaughter. The parties do not 

challenge the father's fitness on appeal.
5

761 (1998). Specifically, she claims that the condition of the 

Brockton home, coupled with her failure to cooperate with DCF, 

did not endanger the child to the degree necessary to

demonstrate unfitness. We disagree.

The cleanliness of a parent's home is an appropriate factor 

for consideration in determination of that parent's fitness.

See Care & Protection of Three Minors, 392 Mass. 704, 713 & n.11 

(1984). Here, the December 3, 2013, stipulation of conditional 

custody clearly directed the mother as to the actions she needed 

to take to maintain custody of the child, including maintaining 

a safe and clean home environment. Yet during a visit to the 

Brockton home on March 18, 2014, a Juvenile Court probation 

officer found the home to be in a "deplorable" condition, with 

dirty rugs and refrigerator, a blackened stove, and a toilet

that was dirty with brown water. On a return visit, the 

probation officer found the conditions had not improved, which 

prompted a judge of the Juvenile Court (not the trial judge) to 

visit the home. That judge deemed the home unsafe for the child

and awarded custody of the child to DCF in April, 2014. In an 

effort to regain custody of the child, the mother eventually 

allowed DCF access to the Stoughton home, which was deemed safe. 

The mother's service plan required that the child remain in the 

Stoughton home, and prohibited his sleeping at the Brockton home 

due to safety concerns. At subsequent visits to the Stoughton 
6

home, the probation officer and a social worker were left with 

the impression that the house had not been lived in and was 

essentially abandoned.4 After a meeting at the school with the 

child, it was clear that both he and the mother were living in 

the Brockton home. The grandfather confirmed this, but 

continued to deny the social worker access to the Brockton home. 

When DCF removed the child on February 10, 2015, the Brockton 

home had no heat, minimal lighting, a strong smell of animals 

and cigarettes, and piles of trash and dirt on the floor. 

Throughout the DCF investigation, multiple professionals5 viewed 

the Brockton home and all agreed that it was unsuitable for the 

child. At trial, the mother nevertheless insisted that she had 

adequately provided for the child. The judge was free to reject 

her testimony, which was not supported by other evidence.6 In 

 

4 The social worker observed mail piled up outside the 

mailbox, minimal food in the refrigerator, a strong odor of 

trash, and no bed for the mother. At a second visit, the mail 

was again piled up, snow had not been shoveled, and a window was 

boarded up. The mother confirmed the Stoughton home did not 

have electricity.

5 DCF social workers, Brockton police officers, a Juvenile 

Court probation officer, and a judge of the Juvenile Court.

6 After the child's removal, a DCF social worker visited the 

mother in the Stoughton home. The mother was unable to produce 

a lease or utility bill to demonstrate that she was living 

there. Despite a judgment against her in excess of $7,800 for 

unpaid rent owed to the Stoughton Housing Authority, the mother 

denied being evicted from that home. She claimed to have 

secured a new apartment in Brockton, but could not produce a 

lease.
7

sum, despite numerous opportunities to rectify the living

situation at the Brockton home, the mother failed to maintain 

safe and sanitary conditions for the child.7

Likewise, "[e]vidence of parents' refusal to cooperate with 

[DCF], including failure to maintain service plans . . . , is 

relevant to the determination of unfitness." Adoption of Rhona, 

63 Mass. App. Ct. 117, 126 (2005). Here, the mother rejected 

all attempts by DCF to work with her to improve her situation.

She did not return telephone calls and prevented access to the 

home. She declined to work with a parent aide and refused all 

mental health services, despite having expressed "violent 

thoughts" to a social worker. She refused to comply with her 

service plan tasks. Even though DCF granted her substantial 

flexibility, the mother responded with "defiance."

8

The mother has also made poor choices regarding caretakers 

for the child. The aunt, who provided much of the child care,

 

7 The mother correctly observes that poverty alone cannot 

support a finding of unfitness. Custody of a Minor, 389 Mass. 

755, 766 (1983). Here, however, the judge did not find that 

poverty was the cause of the conditions in the Brockton home, 

but rather the mother's poor judgment. Moreover, the mother 

earned $1,350 biweekly, plus a monthly commission that ranged 

from $1,000 to $3,000, income well outside the threshold for 

indigency in the Commonwealth. See generally G. L. c. 261, 

§ 27A(b) (defining indigent in terms of inability to pay court 

filing fees).

8 In response to the allegations set forth in the last of 

the three 51A reports, the mother responded, "Game on!"
8

had outstanding warrants.9 Prior to trial, the mother indicated 

her plan was for an uncle to care for the child while she is at 

work. The uncle contended he had no legal involvement, yet his 

criminal offender record information was "very concerning" to 

DCF. Finally, after removal from her care, the mother only 

visited with the child once prior to trial. See Adoption of 

Darla, 56 Mass. App. Ct. 519, 522 (2002) (failure to visit child 

was relevant to parental unfitness).

The child also has behavioral and educational issues, and 

the judge concluded that the mother was unwilling or unable "to 

comprehend the impact of [her] behaviors" on the child.10 The 

mother insists the child has no issues at school, and as the 

judge concluded, "has consistently and repeatedly refused to 

cooperate with [DCF]," which was physically and emotionally 

detrimental to the child. The mother's ongoing refusal to 

acknowledge her shortcomings and to participate in DCF remedial 

programs further supports the inference that her parental 

deficiencies will remain unaddressed.

 

9 The judge's finding that it was the mother who had 

outstanding warrants is clearly erroneous. The error is 

harmless, however, as the judge neither relied on, nor 

mentioned, any criminal history of the mother in his conclusions 

of law. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 

825 (2003).

10 The court investigator's report indicates that the child 

had multiple school suspensions and detentions, and was 

frequently tardy.
9

Under these circumstances, where the child has been 

remarkably resilient despite his neglect by the mother, the 

judge did not "need to wait for inevitable disaster to happen"

before acting in the child's best interests. Adoption of 

Katharine, 42 Mass. App. Ct. 25, 32 (1997). See Custody of a 

Minor (No. 2), 378 Mass. 712, 714 (1979) ("the State's interest 

in protecting children from suffering harm at the hands of their 

parents may properly be preventive as well as remedial"); Care & 

Protection of Bruce, 44 Mass. App. Ct. at 761. Where the child 

was surviving in deplorable conditions, with a mother who 

obstinately and defiantly refused to allow DCF access to the 

home, the judge's conclusion that the child was "at near certain 

risk of future harm" was supported by clear and convincing 

evidence.

4. Other issues. a Mother's mental health. Contrary to 

the assertions of the mother and the child on appeal, the 

judge's determination of unfitness was in no way tied to his 

finding that she had an undiagnosed mental illness. Rather, the 

mother's over-all demeanor, including her defensiveness, refusal 

to accept services, and her court room outburst,

11 was one of 

several factors that contributed to her parental shortcomings. 

 

11 On cross-examination, the mother "became hysterical, 

screaming, and falling to the courtroom floor." The judge 

categorized this response as evidence of an "undiagnosed and 

untreated mental illness."
10

The determination whether the mother suffers from a mental 

illness was hamstrung by the mother's refusal to be evaluated 

and accept mental health services. Regardless, the mother's 

inability to provide for the child's over-all welfare and best 

interests was the central determination of her unfitness. See 

Adoption of Eduardo, 57 Mass. App. Ct. 278, 283 (2003).

b. Assessment of the evidence. The judge's findings are 

both "specific and detailed," demonstrating, as we require, 

"that close attention was given to the evidence." Adoption of 

Helen, 429 Mass. 856, 859 (1999). Those findings, which reflect 

endangerment and neglect of the child, provide clear and 

convincing evidence of the mother's unfitness. The mother's 

claim that the judge's pretrial comments indicate that he 

"prejudged the case" is unavailing. See Adoption of Tia, 73 

Mass. App. Ct. 115, 119-124 (2008) (judge's comments, although 

"troubling," did not require reversal where evidence 

"substantially supported the judge's findings and conclusions").

c. Child's preference. At trial, counsel for the child 

argued that the mother was unfit and that the child should not 

be returned to her care. With new counsel on appeal, the child

now contends the mother is fit and that his wishes were not 

properly considered. A judge should consider the wishes of the 

child in making custodial determinations, and those wishes "are 

entitled to weight in custody proceedings." Care & Protection 
11

of Georgette, 439 Mass. 28, 36 (2003). The child's wishes, 

however, are neither decisive nor outcome dispositive, ibid., 

and must be considered against the backdrop of the mother's 

unfitness, which has been shown here by clear and convincing 

evidence. See Adoption of Rhona, 63 Mass. App. Ct. at 126.

5. Conclusion. Collectively, the mother's utter failure 

to accept services, the unsafe and unsanitary conditions of the 

home, and her lack of judgment concerning the child's needs 

clearly supported the determination of unfitness.

Judgment affirmed.