Care and Protection of Peony.

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-1180

CARE AND PROTECTION OF PEONY. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pursuant to a petition filed by the Department of Children

and Families (department) under G. L. c. 119, § 24, a judge of

the Juvenile Court adjudicated the mother currently unfit to

parent the child, Peony, and granted permanent custody to the

father. The mother's parental rights were not terminated. The

judge ordered supervised visits with the mother and the child's

older siblings every other week. The mother appeals, arguing

that (i) the judge erred and violated her due process rights by

limiting her access to the department's file; (ii) several of

the judge's findings of fact and conclusions of law were clearly

erroneous; and (iii) there was insufficient evidence of harm to

the child from the mother's behavior to justify the custody

order. We affirm.

1 A pseudonym.
We summarize the facts as found by the judge, supplemented

by undisputed evidence from the record and reserving some facts

for our discussion. Peony was born in June 2017; 2 the mother and

father were not married and are no longer in a relationship, but

both have been involved in Peony's care. The judge found that

the mother had "a very difficult history of trauma and sexual

abuse in her own life as a child." The department began working

with the mother in December of 2014, before Peony was born, when

it investigated reports of neglect of the mother's two older

children. 3 The investigation revealed that the mother and

maternal grandmother were sharing adult matters with the older

children and that the mother's mental health raised concerns.

By October 2016, however, the department had closed the case

because the mother was gainfully employed and demonstrated an

ability to support the older children "financially, emotionally,

and physically."

2 In addition to Peony, the mother has two children, born in 2008
and 2009, by another father. The portion of the care and
protection petition pertaining to the older children was
dismissed; the judge found that there was "no evidence that the
mother obsessively question[ed] or physically examine[d] the
older children in her care," and "she appear[ed] to meet their
basic needs." The father of the older children did not
participate in these proceedings. Unless otherwise specified,
references herein to "the father" refer to the father of Peony.
3 The department's involvement began when the mother reported

that she suspected her stepfather of sexually abusing her son
(one of the two older children); the department investigated the
report but found it unsupported.

2
In December of 2017, the department received a report

pursuant to G. L. c. 119, § 51A (51A report), from the police

alleging neglect of all three of the children following a

physical altercation. The altercation involved the mother,

Peony's father, and the paternal grandmother, and resulted in

the mother's arrest for domestic assault and battery. A

subsequent care and protection action was dismissed on June 28,

2018. Thereafter, the parents shared custody; the father had

visits with Peony every other weekend overnight and every other

weekday after work.

Over the course of several months in the spring and summer

of 2019, the mother reported concerns that the father had been

inappropriately touching Peony. 4 Visits with the father were

suspended temporarily by a judge of the Probate and Family

Court. In April, Peony was examined by her pediatrician who did

not observe any evidence of sexual abuse; the department did not

support the allegation. The probate judge ordered visitation

with the father to resume in the late spring of 2019. After the

4 Specifically, the mother reported that Peony told her that the
father had "licked her 'pee pee,'" Peony exhibited some
sexualized behavior, the father exhibited "suspicious" behavior
while changing Peony's diaper, and that Peony had developed a
fear of trains and when asked, replied "daddy" and "pee pee."
In addition, the mother reported that after a visit to the
father, Peony's vagina looked "different." The judge did "not
credit [the m]other's testimony that [Peony] made a consistent
disclosure of sexual abuse by [the f]ather."

3
mother refused to allow Peony to visit with the father, the

probate judge found the mother in contempt, and she was ordered

to comply with the visitation schedule.

Over the following four days, on seven occasions the mother

requested police to do a well-being check of Peony while she was

in the father's care. On July 8, 2019, Peony returned to the

mother following an extended visit with the father, and the

mother noted during a diaper change that Peony's vagina appeared

"different." The mother brought Peony to Community Health

Programs (CHP), where a pediatrician examined her and did not

note any concerns. The mother testified that, when they

returned home, she undressed Peony and observed ten to twelve

circles with dots and scratches on Peony's back, leading the

mother to theorize that Peony was injected with something. The

judge specifically declined to credit the mother's testimony

about this. The mother brought Peony to a hospital emergency

room where ten or so faint circular marks were observed on

Peony's back; there, the mother also repeated her concerns about

Peony's "private parts." The doctor did not observe anything

notable, but informed the mother that she should make an

appointment with a specialist in sexual abuse at a nearby

hospital if she wanted further medical assessment.

The reports that the father sexually abused Peony

ultimately were screened out by the department after an

4
investigation and the district attorney's office did not pursue

charges. The events of July 8 and July 9, 2019 resulted in

removal of all three of the children from the mother on an

emergency basis. This care and protection petition was filed on

July 11, 2019, due to the department’s concerns about the

mother's "mental health, her growing preoccupation with the

allegations of sexual abuse, and her conduct of continually

subjecting [Peony] to invasive and unnecessary examination."

After a hearing, the judge awarded temporary custody of Peony to

the father and ordered supervised visitation with the mother. 5

During July through October 2019, the mother continued to

make accusations against the father, calling the police on

multiple occasions to (i) inquire about a case against the

father, and (ii) request that they make well child checks; she

also called the FBI to share her concerns regarding Peony's

sudden fear of trains. She also contacted the "Steve Wilkos

Show" in an effort to have the father take a lie detector test.

In August 2019, the father obtained a harassment prevention

order against the mother. In the following months, although the

mother began therapy, she continued to examine Peony's genitals

during visits and to report concerns to the social worker and to

excessively contact the police.

5 The two older children were returned to the mother after the
hearing.

5
The department's investigation concluded that the

allegations of sexual abuse by the father were unsupported and

allegations of neglect by the mother were supported. The judge

found that the mother "has harmed [Peony] by continually

questioning her about sexual abuse and obsessively checking her

genitalia for signs of abuse." The judge did not credit the

mother's testimony that Peony made statements indicating the

father sexually abused her, as the statements and conduct "have

been assessed by law enforcement and medical professionals and

determined not to warrant further action against" the father.

After a multiday trial, and based on the foregoing findings

of fact, among others, the judge found that the mother was

currently unfit to assume parental responsibility of Peony and

that Peony's best interests would be served by granting the

father permanent custody. The judge found that the mother

"struggles with mental health issues, and . . . perseverates on

accusing . . . [the f]ather of sexually abusing [Peony] when

there is no credible evidence." The judge noted that the mother

participated in therapy for one year from December 2019 to

January 2021 but, "never changed her belief that [Peony] was

sexually abused, has not shown the ability to move on or forward

from these allegations, and she has not gained any insight into

how her behavior affects and harms [Peony]." Further, "at the

time of trial, [the m]other was not engaged in any services. In

6
the absence of any treatment or help, the Court [was] convinced

that [the m]other [would] continue to obsessively question

[Peony], and check the child's body and genitalia, for what she

believes will be signs of sexual abuse." As a result, the judge

concluded that supervised visits should continue. The judge

found that the mother "has no insight whatsoever that what she

has done, and what she is still doing, is harmful to her

daughter."

Discussion. 1. Discovery. During the discovery phase,

counsel for the mother was allowed to withdraw due to other

commitments. Thereafter, the mother chose to represent herself

and rejected the judge’s offer to assist her in finding counsel.

The judge conducted a colloquy to ensure that the mother

understood the disadvantages of proceeding pro se and that her

decision was informed and knowing.

Thereafter discussion turned to providing discovery to the

mother. Both counsel for the department and counsel for the

child expressed concerns about sensitive matters being in

circulation and sought a protective order requiring the mother

to review the documents in the Juvenile Court Clerk's office or

an order compelling the return of the documents at the end of

the litigation. The mother said she understood and shared the

concerns about "things" being on social media, and she told the

7
judge she would be able to go to the Clerk's office to view the

documents. The judge offered to allow further access if needed.

At a later hearing, after the judge noted the "great

disadvantage" of representing herself, the mother agreed to

allow the judge to appoint standby counsel. At yet another

hearing, the mother mentioned that other commitments had made it

difficult for her to review the documents but did not ask the

judge to change the way that discovery had been made available

to her.

On appeal, the mother's principal argument is that due

process and fundamental fairness compel the conclusion that

discovery disclosures were inadequate. However, the mother

neither objected to the procedure nor made any related motions

prior to or during trial. The issue is waived. See McLaughlin

v. American States Ins. Co., 90 Mass. App. Ct. 22, 33 n.17

(2016). "An issue not raised or argued below may not be argued

for the first time on appeal" (citation omitted). Carey v. New

England Organ Bank, 446 Mass. 270, 285 (2006). See Adoption of

Donald, 52 Mass. App. Ct. 901, 901 (2001) ("As a general

practice we do not consider issues, particularly constitutional

ones, raised for the first time in this court" [citation

8
omitted]). Here, the judge gave the mother ample opportunity to

object to the discovery plan, but the mother never did. 6

2. Judge's findings. "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."

Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).

"Parental unfitness is determined by considering a parent's

character, temperament, conduct, and capacity to provide for the

child in the same context with the child's particular needs,

affections, and age." Id. The judge's findings must prove

"clearly and convincingly that the [parent is] currently unfit

to provide for the welfare and best interests of [the child]."

Id., quoting Adoption of Quentin, 424 Mass. 882, 886 (1997).

Here, the mother argues that some of the judge's findings are

clearly erroneous and, in their absence, the department failed

to meet its burden.

We are not persuaded. There was ample evidence of the

mother's current unfitness. The judge found that, without

credible evidence, the mother accused the father of sexually

abusing Peony and "has obsessively sought action from police,

6 We decline the mother's invitation to apply a substantial risk
of a miscarriage of justice to the discovery order. "That
standard is reserved for criminal cases . . . [and] [w]e have
never applied it to a care and protection case." Care &
Protection of Doretta, 101 Mass. App. Ct. 584, 592 n.6 (2022),
further appellate review denied, 491 Mass. 1103 (2023).

9
the DA and medical treatment providers to provide her with

validation of her concerns," and has harmed Peony by repeatedly

"questioning her about sexual abuse and checking her genitalia

for signs of abuse." Thus even if we were to conclude that the

evidence had been insufficient to support the finding,

challenged by the mother, that she inflicted the marks on

Peony's back, there was "overwhelming other evidence supporting

the judge's ultimate findings and conclusions," and any error

was harmless. Adoption of Donald, 49 Mass. App. Ct. 908, 910

(2000). 7

As to that finding, the mother contends that it is based

solely on comments from the physician who examined Peony on July

9, 2019 that "there is a possibility that the mother, with her

extreme preoccupation and with her desire to prevent the child

from being with the father, may be causing the child to undergo

multiple unnecessary exams . . . and may even be capable of

fabricating evidence." Although there was no direct evidence of

how Peony sustained the marks on her back, circumstantial

evidence is sufficient to meet the department's burden in child

7 The mother also argues that the judge erred in concluding that
between April 7, 2014 and June 7, 2021, the mother contacted
police 106 times; she contends a more accurate number is fifty
calls related to Peony over a twenty-six month period between
April 2019 and June 2021. The judge described the mother's
contacts with police as both excessive and obsessive, and that
finding is supported by the record. There was no error.

10
custody cases. See Adoption of Keefe, 49 Mass. App. Ct. 818,

824-825 (2000). "If conflicting inferences are both reasonable

and possible, it is for the trier of fact to determine which is

true." Id. at 825. Here, the mother's frustration that the

pediatrician's July 8, 2019 examination found no evidence of

sexual abuse, the examining physician's failure to observe marks

on Peony's back on that date, the mother's repeated allegations

against the father despite the allegations being unsupported by

medical providers, the department, or law enforcement, and the

timing of the accusations after the mother had regained custody

of Peony for many hours, permit the inference that the mother

inflicted the marks. 8

3. Sufficiency of the evidence. The mother challenges the

judge's conclusion that "[the m]other's unaddressed mental

health issues pose a risk of serious abuse or neglect to

[Peony]." The mother "acknowledged at trial[] certain mental

health difficulties over the course of this case, agreeing for

example, that she was 'having a hard time' mentally," called

police repeatedly, and that she "overreacted" to a scab she

found on Peony's head -- bringing it to the police and demanding

8 To the extent the grandmother so testified, the judge was not
required to credit the grandmother's testimony that the mother
was never alone with Peony such that the mother had no
opportunity to inflict the marks. See Care & Protection of
Three Minors, 392 Mass. 704, 711 (1984) (judge "not obliged to
believe the mother's testimony or that of any other witness").

11
that it be tested to determine whether Peony had been burned.

At the time of trial, she was attending regular visits with

Peony and meeting with her social worker but was not engaged

with any mental health services. The mother contends that

because Peony remains a well-adjusted, happy child who is

cooperative with her visits with the mother, the mother's

conduct has not harmed her. However the father has had primary

custody since 2019, and the mother's visits have been

supervised. Furthermore, the judge was convinced that "[i]n the

absence of any treatment . . . [the mother would] continue to

obsessively question [Peony], and check the child's body and

genitalia, for what she believes will be signs of sexual abuse"

and may even harm Peony "to provide some evidence of abuse."

While mother may initially have acted reasonably in ensuring

that the proper authorities investigated her concerns, her

refusal to accept the results of those investigations, coupled

with repeated unsupported accusations, inquiries, and

examinations of Peony support the judge's conclusion. On this

record, we cannot say the judge's conclusion was clearly

erroneous or amounted to an error of law. Moreover, to the

extent that the mother contends that the judge relied on the

fact that the mother has mental health difficulties, alone, the

judge's findings "explicitly recognized that mental illness per

se is not grounds" to make custody decisions. Adoption of

12
Eduardo, 57 Mass. App. Ct. 278, 282 (2003). "We are satisfied

that the judge properly focused on the adverse effects that

parental behavior had on this parent's ability to provide for

[Peony's] welfare and best interests, and not on the mother's

mental illness." Id. The judge's findings clearly and

specifically show the connection between the mother's mental

health difficulties and harm or potential harm to Peony.

Judgment affirmed.

By the Court (Meade,
Hershfang & D'Angelo, JJ. 9),

Clerk

Entered: October 24, 2023.

9 The panelists are listed in order of seniority.

13