CARE AND PROTECTION OF FRANCINE (And Two Companion Cases).

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-547

CARE AND PROTECTION OF FRANCINE (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this care and protection proceeding, after trial, a

judge of the Juvenile Court concluded that the mother was unfit

to parent all three of the subject children2 and that her

unfitness was likely to continue into the future. With respect

to Amy and Laura, the two younger children, the judge concluded

that it was in their best interests to terminate the mother's

parental rights. She did not terminate the mother's parental

rights with respect to Francine, the oldest subject child.

The mother has appealed. Francine has also appealed,

arguing that the mother should not have been found unfit with

1Adoption of Amy and Adoption of Laura. The names of the
children are pseudonyms.

2The mother has two older children who are not subjects of
this proceeding.
respect to her. Amy and Laura defend the finding of unfitness

and the termination of the mother's parental rights as to them

in its entirety and take no position with respect to the case of

Francine.

1. The younger children. It appears that no party claims

that the judge erred in finding the mother currently unfit to

parent Amy and Laura, the two younger children. The mother,

however, asserts that her unfitness was only temporary and that

the Department of Children and Families (department) could not

show that her unfitness was likely to continue indefinitely into

the future because it failed to make reasonable efforts to

reunify the family.

We conclude that the judge did not err in concluding the

mother was unfit with respect to the two younger children. The

judge provided a detailed, eighty-six page, single-spaced

decision in this case containing 331 factual findings and forty-

three conclusions of law. The facts the judge found reflect

clear and convincing evidence supporting the judge's conclusion

that the mother is unfit and that her unfitness is likely to

continue indefinitely into the future. See Adoption of Ilona,

459 Mass. 53, 60 (2011). We need not recite those facts in

full, but note the following findings as examples of the

mother's neglect of these two children. When the department

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gained emergency temporary custody of them, Amy was seven and

Laura was six. Laura was not toilet trained. Both children

were behind educationally, as neither had been enrolled in

school. Laura did not know how to write her name and could not

recognize it in writing. The judge found that the mother never

enrolled the younger children in school, and, despite the

judge's emphasis on the importance of the mother's obtaining the

valid identification required to have them enrolled, at the time

of trial, the mother had still not obtained a valid

identification.

The mother failed to provide adequate housing for the

children. She had a subsidized Section 8 apartment, but its

condition was terrible. Plumbing issues caused the dishwasher

to clog and flood and the sink and toilets to back up, and mold

to grow. Notably, the apartment was infested with mice to such

a degree that they once ate the wires of the stove, leaving the

mother without a stove for several months, and they frequently

ate their way into the family's refrigerator, where they then

died. The mold and mice issues were so severe the board of

health's "hazmat team" came to the apartment.

Of course, we appreciate that the likelihood of obtaining a

decent apartment is lower for those in poverty. See Carter v.

Lynn Hous. Auth., 450 Mass. 626, 638 (2008), quoting Spence v.

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Gormley, 387 Mass. 258, 275 (1982) (noting that those in public

housing "may have nowhere else to turn"). But in this case, for

over four years, with children living in these conditions, the

mother never took even the first step toward finding alternate

subsidized housing. Again, this was something that she could

not do without a valid identification, and she never obtained an

identification.

The mother, at one point, directed the younger children's

former foster parent, who was watching them for the weekend, to

give one of the children an expired medication that the pharmacy

indicated should not be used. The mother failed to obtain any

dental treatment for the children for three years, so that when

they left her care, they required massive dental work, including

a full mouth dental rehabilitation for Amy, which involved

multiple root canals, tooth extractions, and caps. Laura also

received a full mouth dental rehabilitation.

More than once when the mother did have the children in her

custody, she sent them to stay with other family members because

she was unable or unwilling to care for them. After the death

of her sister, the mother sent the younger children to live with

their paternal grandmother, repeatedly extending their stay

while allowing Francine to return home. Roughly nine months

after the younger children eventually returned to the mother's

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home, she again sent them away -- this time, to live with their

maternal grandmother -- claiming that she, the mother, was

overwhelmed and had too much going on with Francine. The mother

left the younger children with the maternal grandmother for

nearly two months and never visited them. The children later

disclosed that the maternal grandmother hit them, but the mother

denied knowing this at the time.

Again, the facts articulated in the judge's findings of

fact demonstrate that there is clear and convincing evidence

supporting the finding not only of unfitness, but, given how

long her unfitness has persisted and her unwillingness or

inability to correct it, and the extensive health, educational,

and behavioral needs of the children, that the unfitness "is

reasonably likely to continue for a prolonged or indeterminate

period." Adoption of Ilona, 459 Mass. at 59.

As to termination of parental rights, given the need for

stability and permanency in the lives of Amy and Laura if they

are to have hope of a successful future, and given the length of

time during which the mother failed to remedy her grievous

shortcomings, we think the judge did not abuse her discretion

nor commit a clear error of law in determining that it was in

their best interests to terminate the mother's parental rights.

See Adoption of Elena, 446 Mass. 24, 30 (2006).

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The mother argues that the department did not make

reasonable efforts to assist her in addressing her parental

shortcomings. As this was not raised below at any point at

which the judge could have addressed the claim if it had merit,

the claim is waived. See Adoption of West, 97 Mass. App. Ct.

238, 242 (2020). In any event, even in cases where reasonable

efforts have not been made, the judge is bound to act in the

best interests of the child, see Ilona, 459 Mass. at 61, citing

G. L. c. 119, § 29C, and in light of the mother's current

circumstances, and with respect to the two younger children, the

children's best interests clearly warrant the judge's action.

2. The older child. a. Background. Francine's situation

is more complex. Both she and the mother argue that the mother

is fit with respect Francine.

While in the mother's care, Francine was educationally

behind, lacked seasonally appropriate clothing, and, as with two

younger children, lacked safe and clean housing, adequate

medical care, and proper dental care. Additionally, the mother

inappropriately relied on Francine to care for the younger

children, and, on at least one occasion, had Francine stay home

from school to watch Amy and Laura. Francine is a kind and

loving person who loves her mother and her siblings. The

mother, however, has failed utterly to adequately supervise

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Francine or to place the child's needs above her own. When

Francine was twelve and essentially in charge of the younger

children, she took out the trash one day, bringing Amy with her.

Francine thought the mother's explanation for forbidding her

from visiting a friend in Boston was unreasonable and, with Amy,

disappeared.

The mother looked for Francine and Amy and learned that

they had been seen at the grocery store across the street. She

went to the grocery store and had an employee call for the

children over the loudspeaker, before returning home and calling

the police, Francine's friend, and the transit police. The

mother eventually learned that Francine and Amy had gone to

Boston, and the mother called her sister and asked her to pick

up the children while the mother drove to Boston. The mother's

sister recovered Amy, but not Francine. Francine eventually

called the mother, and the mother was able to locate her and

pick her up. Francine had been at a friend's house, and she

admitted that, while there, she smoked marijuana. After the

family returned home, police arrived, and Francine panicked and

felt dizzy and sleepy. As a result, an ambulance was called,

and she was taken to the hospital.

While in the mother's care, Francine exhibited concerning

sexual behaviors, and the mother often did not respond

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appropriately. When Francine was thirteen, there were concerns

she may have been pregnant. While the mother initially agreed

to take Francine to the doctor and to look into birth control

for her, the mother failed to follow through on these

commitments. Francine continued to run away from the mother's

home. The department harbored concerns that Francine was at

risk for commercial sexual exploitation. On multiple occasions,

the mother refused to cooperate with investigations into

potential sexual exploitation of Francine.

The department filed this care and protection petition and

took emergency temporary custody of all three children, alleging

that they were at risk for neglect.

Unfortunately for this family, however, the department

failed adequately to provide for the "care and protection,"

G. L. c. 119, § 26 (b), of Francine. While in the placements

the department chose for her, Francine routinely ran away. The

department remained concerned that Francine was subject to

commercial sexual exploitation in its custody beginning when the

child was fourteen. The department was aware that Francine had

unexplained access to money, and that older men sent her money

through online accounts. While in the department's custody,

Francine repeatedly left the placement in which the department

placed her to meet men. The men provided her with money,

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alcohol and drugs, and sometimes had sex with her. During one

of these encounters, she was forcibly raped.3

When on the run from her placements, Francine sometimes

returned to the mother's home. She kept in touch with the

mother, almost always contacting the mother when she went on the

run and sometimes informing the mother of her whereabouts.

After roughly eight months and seven placements, the

department decided that, employing a tactic known as "harm

reduction," it would place Francine with the mother because

Francine identified the mother's home as a place where she would

feel safe and not feel the need to run. Unfortunately, while in

the mother's care, Francine continued to run away. On one of

these occasions, the mother told Francine that she was not

welcome back in the home, and the child returned to the

3 The premise of the law's willingness to allow the
Commonwealth to interfere with the constitutionally protected
bonds of family is that it is necessary to do so in some
circumstances to protect the child. See Care & Protection of
Robert, 408 Mass. 52, 60 (1990). The Supreme Judicial Court
recently recognized that "[o]nce the state assumes wardship of a
child, the state owes the child, as part of that person's
protected liberty interest, reasonable safety and minimally
adequate care and treatment appropriate to the age and
circumstances of the child." Gotay v. Creen, 495 Mass. 537, 547
(2024), quoting Tamas v. Department of Social & Health Servs.,
603 F.3d 833, 846-847 (9th Cir. 2010). If the government is
unable to protect a child, as it was unable to here, the removal
of the child from a parent or parents who can do so even
marginally better could raise serious constitutional questions.

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department's care. After another four months and three

additional placements, the department again allowed Francine to

return to the mother's care. After one month with the mother,

Francine was arrested and taken into custody by the Department

of Youth Services, where she remained for at least some of the

course of the care and protection trial. When she ran, Francine

returned sooner if she was at the mother's, and as described

above, she remained in contact with the mother, who clearly

cared about her.

b. Analysis. This unusual set of circumstances provides

the backdrop to the appeals by Francine and the mother. We are

faced with a circumstance in which the department argues that

the mother is unfit to parent this child, and should therefore

lose custody of her, and yet also asserts that the mother offers

the best available physical placement for this child.

Francine argues that the department's inability to care for

her and its willingness in these circumstances to place her with

the mother means that the mother is not only fit, but that the

mother is the best possible caretaker for Francine. We do not

agree with Francine on this point.

The conclusion of the department that placement with the

mother was, at the time of trial, the best available placement

for the child, is well supported. Unfortunately, this does not

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mean that the mother is, herself, fit. The judge's findings

demonstrate by clear and convincing evidence that the mother is

unfit to provide adequate supervision, to meet Francine's

educational needs, to provide safe and stable housing, and to

care for Francine. See Adoption of Ilona, 459 Mass. at 59. The

inability of the department to protect or care for Francine

properly does not change that, so we are not in a position to

overturn the finding of unfitness.

At the same time, we conclude that the judge acted

appropriately in approving the department's formal goal of

"reunification" with the mother, rather than "adoption," and its

plan, at least as of the time of the trial, to place Francine

where she feels "safe and supported": with her mother. As the

judge noted, "While the Court does not find that this

constitutes a superior plan, it nonetheless finds that it is in

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[Francine's] best interests under the circumstances present in

this case." In these circumstances, we think approval of this

plan was appropriate.

Judgment and decrees
affirmed.

By the Court (Rubin, Hand &
Smyth, JJ.4),

Clerk

Entered: May 16, 2025.

4 The panelists are listed in order of seniority.

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