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

22-P-487

CARE AND PROTECTION OF UMEKO.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Juvenile Court adjudicated the father 

currently unfit to parent the child, and the child in need of 

care and protection, and granted custody of the child to the 

Department of Children and Families (department). See G. L. 

c. 119, § 26. The father appeals, arguing that the finding of 

unfitness was not supported by clear and convincing evidence. 

The father also argues that the finding that the child requires 

placement in a residential program cannot stand, because the 

finding conflicts with the child's individualized education plan 

(IEP) and did not comply with the special education system for 

disabled children, and because the finding was based on the 

1 A pseudonym.
2

opinion of a clinician who was not qualified as an expert 

witness.2 We affirm.

Background. We summarize the judge's findings of fact, 

supplemented by undisputed evidence from the record. The child 

was born in July 2012. When the child was four years old, she 

was diagnosed with level 3 autism spectrum disorder. At the 

time the department obtained emergency custody of the child in 

June 2017, the child was living with the mother and maternal 

grandmother, who had guardianship of the child.3 The father and 

mother had ended their relationship in 2013, and the father had 

moved to Florida in 2016 to care for his grandfather. When the 

father learned that the child was in the department's custody, 

he returned to Massachusetts and expressed an interest in taking 

custody of the child. 

The child is nonverbal and cognitively delayed. After she

entered the department's care in June 2017, she had several 

2 The mother did not appeal from the adjudication that she was 

currently unfit to parent the child. 

3 The department's June 2017 emergency removal of the child was 

the culmination of multiple reports of neglect of the child 

beginning in 2014 and the department's investigation of those 

reports. The child's school reported that she had a poor 

attendance record and chronic head lice and that when she did 

attend school, her diaper was soiled and her hygiene was 

generally poor. During visits to the child's home, the 

department workers saw holes in the wall caused by the child's 

head butting, and dirty and unsanitary conditions. The maternal 

grandmother announced that she no longer wanted to be the 

child's guardian. 
3

placements before being placed in the Evergreen Center 

(Evergreen) in July 2018, where she remained at the time of 

trial. Evergreen is a residential treatment program, where the 

child attends school and lives in a home with the same peer 

group; the educational objectives and residential objectives are 

very similar, and designed to build up her skills "across 

settings and across people." It is undisputed that the child 

"has made great progress" while at Evergreen.4 The judge found 

that despite the child's progress, however, she required twentyfour hour "attentive supervision," as well as specialized 

instruction and intensive treatment, as provided by Evergreen.5 

4 When the child started at Evergreen, she was unable to 

communicate, either verbally, by sign language, or by gestures. 

She had tantrums, banged her head on the wall, and "headbutted" 

staff members. She was not toilet trained and had issues with 

food and eating. 

By the time of trial in June and July 2021, the child was 

able to communicate on a limited basis by modified sign language 

and she was learning to use a device to communicate some of her 

needs. She used the bathroom independently, was banging her 

head less frequently and against softer surfaces when she did

so, and had fewer issues with food and eating.

5 Because the child wakes up in the middle of the night several 

times per week and sometimes does not go back to sleep, she is 

monitored by Evergreen staff all night. There was also evidence 

that the child "requires a lot of really specialized instruction 

[such as] careful arrangements of stimuli and reinforcement 

contingencies in order to learn effectively," and that even with 

such special instruction, "it has still taken her a very long 

time to learn new skills."
4

The judge further found that the child would regress if she were 

to live with the father.

The father is able to visit the child anytime at Evergreen 

as long as he gives notice. He has also had four overnight 

visits with the child in his home since December 2020, and 

neither Evergreen nor the department had any concerns after 

these visits. However, the father has not been consistent about 

attending training sessions offered by Evergreen, IEP meetings, 

and treatment meetings.

It is undisputed that the father has "really positive" 

interactions with the child.6 He has "maintained communication 

with the Department and been generally compliant with his action 

plans." The child is described as happy, "always laughing and 

gigg[l]ing."

Discussion. In a care and protection case, the department 

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

currently unfit to further the best interests of a child and, 

therefore, the child is in need of care and protection" 

(citation omitted). Care & Protection of Rashida, 489 Mass. 

128, 131 (2022). We do not disturb a judge's findings unless 

6 The clinician testified "that [the father] really cares about 

her and he loves her . . . . [T]hey definitely have a way to 

communicate with each other a little bit." The department 

social worker testified that the child responds positively to 

the father during their visits and engages with him.
5

they are clearly erroneous. See Care & Protection of Vieri, 92 

Mass. App. Ct. 402, 405 (2017). "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." Care & Protection of Vick, 89 

Mass. App. Ct. 704, 706 (2016). "[T]he assessment of parental 

fitness must focus on the [child] actually involved in the 

proceedings, with [her] specific needs, interests and 

requirements, and not on some hypothetical child . . . . 

Fitness to act as a parent, in statutory and decisional context, 

involves inquiry not only into the capacity of the biological 

parent but into the best interests of the child. Parental 

fitness and the child's best interests are interrelated 

inquiries and are considered together" (quotations and citations 

omitted). Care & Protection of Laurent, 87 Mass. App. Ct. 1, 6 

(2015).

We reiterate that "[t]he burden of proof on the department" 

to prove current unfitness is "heavy." Care & Protection of 

Elaine, 54 Mass. App. Ct. 266, 271 (2002). "The requisite proof 

must be strong and positive; it must be full, clear and 

decisive" (quotation and citation omitted). Id. The evidence 

here is sufficient to meet that high standard. 

1. Father's unfitness. The father argues that it was not 

shown by clear and convincing evidence that he was unfit -- that 
6

is, that he had "grievous shortcomings or handicaps that put the 

child's welfare much at hazard" (quotations and citation 

omitted). Adoption of Greta, 431 Mass. 577, 587 (2000). He 

notes that there have been no allegations that he abused or 

neglected the child, and that he completed all the action plan

tasks. He emphasizes that it is undisputed that he "has a 

special bond with" the child and that he loves and cares for the 

child. He also contends that he has shown that he can provide 

the care the child needs, inasmuch as he has administered to all 

of her needs during his visits with the child, including the 

four overnight visits, without generating any concern from 

Evergreen or the department.

In his thoughtful decision, the judge recognized that the 

father clearly cares for the child, but based the finding of 

current unfitness on the father's inability "to further the 

welfare and best interests of" the child. The critical facts

are that the child has "extensive needs," and that the father 

has not demonstrated that he can care for those needs at this 

time. Rather, the judge found that the father did not have 

"full understanding of [the child's] needs, and he has not 

consistently demonstrated a willingness to meet them." The 

judge also expressed concern that due to the father's

minimization of the child's needs, and his inconsistent 

attendance at treatment sessions and meetings offered by 
7

Evergreen, "[the child] will not receive appropriate and 

necessary services and structure if she were transitioned home 

at this time." The judge also concluded that the father's 

"handful of incident-free overnight visits does not support the 

conclusion that Father is fit to parent his daughter on a fulltime basis." There was clear and convincing evidence to support 

these findings,7 see Care & Protection of Laura, 414 Mass. 788, 

790 (1993), and "the judge did not abuse his discretion or 

commit a clear error of law in determining that the [father] was 

unfit," Adoption of Luc, 484 Mass. 139, 147 (2020).

2. Subsidiary findings of fact. In challenging the 

unfitness finding, the father also challenges certain subsidiary 

findings as not supported by clear and convincing evidence. 

Many of his challenges are "no more than a disagreement with the 

judge's weighing of the evidence and credibility determinations 

regarding witnesses." Adoption of Don, 435 Mass. 158, 166 

(2001). For example, the father takes issue with the judge's 

statement, in finding no. 57, that the father left a treatment 

7 The judge could have relied on the following testimony by the 

father to conclude that the father was currently unfit. The 

father had not read the child's IEP in its entirety but what he 

took away from it was that "she doesn't have good speech"; the 

father did not know the methods by which Evergreen taught the 

child to decrease head-banging behavior; further, he did not 

understand why the child was prescribed her medications, did not 

fully understand the programs developed by Evergreen to increase 

the child's communication skills, and was not aware that she was 

under the care of a psychiatrist.
8

meeting at Evergreen when told that there is no cure for autism, 

and that the father "testified that he was in denial and did not 

want to hear that his daughter would always be this way." The 

father argues that "[t]his finding is factually inaccurate and 

misrepresents" his actual testimony. The father does not

contest that he left the treatment meeting, however, nor does he 

contest that he used the word "denial" to describe his reaction 

to what he was being told about his daughter. We see no 

material error in the judge's characterization of the father's 

testimony. 

Similarly, finding no. 58, in which the judge found that 

the father "lacks a complete understanding of the medication he 

administers to [the child] when she is in his care," is 

supported by the father's testimony that he does not know "what 

[the medications] are meant to treat." In finding no. 71, the 

judge stated that the child still "requires attentive 

supervision, [twenty-four] hours per day"; the father objects to 

this statement as it "suggests that such supervision cannot be 

accomplished in Father's custody." We do not agree with the 

father's description of the finding. Rather, we view this 

statement, in the context of the entire finding, as a recounting 

by the judge of the child's nighttime routine at Evergreen, and 

as supported by the evidence.
9

The father contests finding no. 73 insofar as it states 

that the clinician from Evergreen "testified, and the Court so 

credits, that [the child] would regress if she were returned 

home right now." The remainder of the finding states, "The 

Court is concerned with Father's understanding of [the child's] 

needs at this time. Evergreen provides services and trainedstaff supervision around the clock. . . . She requires 

specialized instruction and intensive treatment. It has taken 

her a few years to develop new skills even with this type of 

instruction." The judge accurately reprised the clinician's 

testimony, and we are not persuaded by the father's claim that 

this finding impermissibly shifted the burden of proof to him to 

prove that he was unable to meet the child's needs. We discuss 

the father's argument regarding the clinician's qualifications 

infra. 

The father also challenges findings no. 78 and 79 -- which 

discuss the father's failure to fully understand the child's 

needs and his minimization of her diagnosis and prognosis -- but 

those challenges are unavailing as they are supported by the 

father's own testimony. For example, the father testified that 

the child does not "deserve[] to live" at Evergreen, that "[s]he 

needs to be around more kids that are more awake so she can 

awake that motor skill in her head," and that she has never been

aggressive and that her main problem is her lack of speech. The 
10

judge was not required to accept the father's views of the 

child's needs and situation in light of other evidence in the 

record that contradicted the father's views -- to the effect 

that the child needed intensive support and constant 

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

821, 824 n.3 (2003) ("Where there are two permissible views of 

the evidence, the factfinder's choice between them cannot be 

clearly erroneous" [citation omitted]).

3. Child's need for residential placement. The father 

argues that the judge's conclusion that the child requires a 

residential school placement cannot stand because such a 

placement was not included as a component of the child's IEPs. 

According to the father, the judge transgressed State and 

Federal laws by in essence amending the child's IEPs, or making

a finding that contradicts them. See Kelly K. v. Framingham, 36 

Mass. App. Ct. 483, 484 (1994) ("The rights of all children with 

disabilities are provided for in an extensive and detailed 

legislative and regulatory scheme, both Federal and State"). We 

disagree, however, because the premise of the argument -- that 

the child's IEPs did not contemplate a residential placement --

is incorrect. Indeed, the IEPs contain an acknowledgement that 

the child was placed at Evergreen and that the cost of the 

placement was shared by the local school system and the 

department. 
11

The father also argues that the judge's conclusion that the 

child required a residential placement violated 603 Code Mass. 

Regs. § 28.01 (2014), which requires that a child with special 

needs be educated "in the least restrictive environment." 

However, the judge was entitled to conclude, based on all the 

evidence, that placement in a residential program was the least 

restrictive environment for this child. There was testimony, 

and the judge found, that the child required twenty-four hour 

supervision. The judge was not required to accept the father's 

belief that the child could and should live at home with her 

family. See Care & Protection of Three Minors, 392 Mass. 704, 

711 (1984) (judge "not obliged to believe the [parent's]

testimony or that of any other witness").

4. Testimony of Evergreen's clinician. At trial, the 

clinician was asked her opinion about whether it was better for 

the child to be in a residential program, as opposed to living 

with the father and attending a day program. An objection to 

that question was sustained. The clinician was then asked if 

she had any concerns if the child were returned to the father's 

custody. There was no objection to this question, and the 

clinician answered that she "would be concerned that [the 

child's] progress would regress" because "she would not be 

receiving the intensive treatment that she would require in 

order to maintain [the skills she had achieved] or to learn 
12

effectively new skills that she could carry from one setting to 

the next." The clinician also testified without objection that 

she had concerns that if the child were moved to a day program, 

her regressions could be safety issues because she lacked "selfpreservation skills." 

The judge credited the clinician's testimony. The father 

argues that the clinician should not have been allowed to 

testify about what would happen if the child were returned to 

the father's custody because she was not qualified as an expert. 

Although the father objected to the first question, whether it 

was better for the child to live with the father or in a 

residential program, no objections were raised as to the 

subsequent questions and answers about the clinician's concerns. 

The argument was accordingly waived. See Adoption of Carla, 416 

Mass. 510, 515 (1993). In any event, the clinician testified to 

her "concerns" based upon her personal observations and 

knowledge of the child; such testimony was within the purview of 

a lay witness. And lastly, even without consideration of the 

clinician's testimony complained of by the father, the judge 

could fairly infer from all the evidence that the child would 

not continue to make progress if she instead lived with the 

father.

5. Father's financial status. The father argues that the 

judge "predicated" his finding of unfitness "on Father's 
13

inability to pay for private residential care."8 Father's br. 

47. This is based on the judge's finding that "[i]f custody 

were returned to Father, the Department would no longer fund the 

residential services at Evergreen. . . . [The child's] IEP does 

not include residential services." The father reasons that 

"[e]ven if there was enough evidence to show that the child 

needed residential level of care, that finding alone would not 

be sufficient to find a parent unfit, unless one also finds that 

Father's inability to pay the steep program fee is the reason 

for his unfitness -- a conclusion not only precluded by current 

caselaw but also patently absurd."

We are not persuaded by the father's reasoning. A review 

of the judge's findings and conclusions indicates many reasons 

for the judge's finding of unfitness that are unrelated to the 

costs of residential services. Moreover, in the passage the 

father highlights, the judge was not making a finding about the 

father's financial status, but instead, was explaining that the 

child could not attend Evergreen if she lived with the father 

because (1) Evergreen was a residential program and did not 

permit students to only attend the day program, (2) Evergreen 

was not approved as a day school, and (3) the child's local 

school system had not agreed to pay for her to attend a 

8 The clinician testified that Evergreen's annual tuition was 

"around $200,000."
14

residential program like Evergreen. We see no basis for the 

father's claim that the finding of unfitness was "premised" on 

the father's inability to pay Evergreen's tuition.

Conclusion. The judge recognized, as do we, the father's 

"commitment and love for his daughter."9 However, the judge was 

also constrained to consider the child's very special needs and 

specific disabilities in determining whether the father was fit 

to parent this child. See Adoption of Abigail, 23 Mass. App. 

Ct. 191, 193 (1986) (child's "special needs are relevant because 

they bear on whether this particular [parent] can be a fit 

parent to this particular child"). See also Guardianship of 

Estelle, 70 Mass. App. Ct. 575, 581 (2007) ("A parent may be fit 

to raise one child but not another"). We note that the 

department did not seek a termination of the father's parental 

rights and that the permanency plan remains reunification of the 

child with the father. To that end, the judge encouraged the 

father "to continue working with [the child] and [Evergreen] 

toward an eventual reunification and the filing of a review and 

redetermination petition, when appropriate, in the future." See

G. L. c. 119, § 26 (c) (parent "may petition the court not more 

than once every [six] months for a review and redetermination");

9 A finding of parental unfitness is "not a moral judgment or a 

determination that the [parent] . . . does not love the child." 

Adoption of Knox, 102 Mass. App. Ct. 84, 95 n.16 (2023), quoting 

Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
15

Care & Protection of Erin, 443 Mass. 567, 572 (2005) (parent may 

seek review and redetermination of custody order if he can 

"present some credible evidence that circumstances have 

changed"). In the particular circumstances present here, there 

was no error in the judge's finding that the father is currently 

unfit.

Judgment affirmed.

By the Court (Englander, 

Grant & Brennan, JJ.10),

Clerk

Entered: April 20, 2023.

10 The panelists are listed in order of seniority.