Care and Protection of Edwina.

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-1166

CARE AND PROTECTION OF EDWINA.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, Edwina, and committing the

child to the permanent custody of the Department of Children and

Families (DCF).2 In a thoughtful decision, the judge also found

that DCF had not made reasonable efforts toward reunification

and therefore ordered DCF to increase both the duration and

frequency of the mother's parenting time with the child. The

mother appealed from the judge's determination that she is

currently unfit to parent the child. The mother first argues

1 A pseudonym.
2 As to the father, the judge found that he had engaged in
serious acts of domestic violence against the mother, assaulting
her at least once in the child's presence. The father
stipulated that he was unfit and that the child was in need of
care and protection. He was thus found "unfit as a result of
being unwilling, incompetent, or unavailable." The father did
not appeal that decision.
that the trial judge failed to make sufficiently specific and

detailed findings in that she did not address the mother's

expert witness's testimony. Second, she argues that the trial

judge erred in finding her unfit to parent the child by clear

and convincing evidence, asserting that she adequately managed

her mental health and substance use challenges, was no longer in

a relationship involving domestic violence, and had a sufficient

plan for housing in the event that the child was returned to her

care. We remanded the case for the trial judge to supplement

her findings and conclusions to address the evidence provided by

the mother's expert witness. Now that the trial judge has

issued supplemental findings regarding the expert testimony, the

mother argues that such findings are not entitled to traditional

deference, as they were issued "nearly two years since the trial

ended." We affirm the judgment, but because we appreciate this

concern raised by mother with respect to these findings, we

tailor our decision to address them.

1. Background. a. Factual history. The mother has a

history of challenges with mental health, substance abuse, and

domestic violence. She has been diagnosed with attention

deficit hyperactivity disorder (ADHD), anxiety, and

posttraumatic stress disorder (PTSD), and has been involuntarily

hospitalized for mental health concerns three times, most

recently in 2019 when the child was removed from her home. At

2
the time of trial, the mother's only prescription medication was

Adderall, although she had been prescribed other medications at

other times. The mother testified that she is an alcoholic,

that she regularly uses marijuana, and that she has abused her

prescribed medications in the past. She also testified that all

of her intimate relationships have involved domestic violence.

When the child was born in December 2018, a report was

filed pursuant to G. L. c. 119, § 51A (51A report), alleging

that both the child and the mother tested positive for

amphetamines, and that the mother had tested positive for

marijuana during her pregnancy. This report did not result in

removal of the child, as DCF determined that, despite the

presence of amphetamines in both mother and child's blood, the

mother was appropriately caring for the child.

In July 2019, DCF received another 51A report alleging

that, while the mother and father were intoxicated, there was an

altercation outside the maternal grandmother's home, and both

parents were arrested.3 At the time of the incident, the

maternal grandmother was inside the home with the child, who was

about seven months old. This incident led to DCF removing the

child from the mother's care. This was not the first incident

3 There is some question as to whether the altercation was
physical or not, as the 51A reporter stated that it was physical
but the mother and father denied that. Whether the altercation
was physical or not has no bearing on our decision.

3
involving domestic violence that occurred while the child was in

the parents' custody. In early 2019, while both the mother and

father were intoxicated, the father pulled the mother's hair and

threw her to the ground, and during that incident, the child was

in a portable crib in the same room. The mother then called the

maternal grandmother to pick up both the mother and the child.

The mother did not, however, inform DCF about the incident.

There were other incidents of domestic violence both before the

child was born and after removal, the details of which are known

to the parties and need not be recounted here. At the time of

trial, the mother was no longer in a relationship with the

father, although they were still legally married.

The mother has also struggled with housing instability

during the pendency of this case. Between the child's birth and

her removal, the mother lived with and paid rent to the maternal

grandmother. For a brief period in 2020, after the child's

removal, the mother and father were homeless, living out of a

car at campsites. The mother has also stayed in a domestic

violence shelter on two occasions since 2019. At the time of

trial, the mother was living "off and on" with her uncle, but

she did not think that home was an appropriate place for the

child, as another resident of the home was abusing prescription

drugs. She also did not think living with maternal grandmother

would be appropriate for the child. The mother was on a housing

4
voucher list, and, if given custody of the child, planned to

obtain a housing voucher.

b. Compliance with action plans. The mother's most recent

action plan from DCF, dated October 2020, included the following

tasks: meet with the social worker once a month, attend visits

with the child and confirm them the day prior, engage in therapy

and with the parent aide, take medications as prescribed, sign

releases, submit Adderall blood levels, and obtain a

neuropsychological evaluation. The mother has completed all

tasks on the action plan except providing Adderall blood levels

and obtaining a neuropsychological evaluation. Although DCF had

not received blood tests showing consistent and appropriate

Adderall usage, the DCF social worker testified that the

mother's therapist and psychiatrist were not concerned about the

mother's use of her prescription. As for the neuropsychological

evaluation, the mother stated that it would be triggering for

her, but did not provide any further explanation why she

neglected to follow through with this requirement. The trial

judge found that the mother had demonstrated an unwillingness to

complete the evaluation. The mother did attend all visits with

the child, arrived prepared with toys and snacks for the child,

and behaved appropriately with the child.

c. Mother's expert witness's testimony. Over the course

of the trial, which occurred in December 2021, the judge heard

5
testimony from three witnesses: the mother, the DCF social

worker, and the mother's expert witness. The trial judge's

findings of fact and conclusions of law, issued in March 2022,

cited to the mother's and DCF social worker's testimony numerous

times, but did not refer at all to the mother's expert witness's

testimony. The mother's witness, who was qualified as an expert

in parenting assessments and trauma reactivity by the trial

judge, was a social worker who completed a parenting evaluation

of the mother. This evaluation was based on meetings with the

mother; speaking with her providers and the DCF social worker;

reviewing the mother's records; and observing a one-hour visit

between the mother and the child.

Because the judge made no findings or conclusions regarding

the expert witness's testimony, we remanded for supplemental

findings addressing what significance, if any, this evidence had

on her determination of unfitness.

The trial judge submitted supplemental findings and

conclusions in September 2023, stating which aspects of the

expert witness's testimony the judge did and did not credit. In

a footnote she wrote, "The case in the Juvenile Court is

currently in review and redetermination proceedings, wherein

both [DCF] and the child seek termination of mother's parental

rights. Trial has been continued pending completion of a

competency evaluation of mother after she sought on the one hand

6
to waive counsel and represent herself and, on the other, to

stipulate to a judgment terminating her parental rights and to

enter into an open adoption agreement."4

2. Discussion. a. Mother's expert witness's testimony.

The mother originally argued that the lack of any mention of her

expert witness in the trial judge's findings and conclusions

meant that the trial judge had not made sufficiently specific

and detailed findings. Now that the trial judge has issued

supplemental findings addressing the expert testimony, the

mother argues that, because the supplemental findings were

issued nearly two years after the trial, they are not entitled

to the deference traditionally given to a trial judge's findings

of fact.

In determining that a parent is unfit to care for their

child, a trial judge must make "specific and detailed" findings

"so as to demonstrate that close attention has been given the

4 This is not itself a case involving the possible termination of
parental rights, and, having been informed at argument that a
review and redetermination proceeding under G. L. c. 119, § 26,
was pending, but stayed, in the trial court, we were concerned
that our remand order might delay the ultimate resolution of the
placement of the child. Consequently, in our remand order we
said, "The pendency of this appeal (including this remand) shall
not delay the Review and Redetermination Proceeding under G. L.
c. 119, § 26, that we are informed is now pending in the trial
court, which may proceed forthwith. The order currently under
review in this matter and that is the subject of this order
shall be of no force or effect in that review and
redetermination proceeding."

7
evidence." Custody of Eleanor, 414 Mass. 795, 799 (1993). A

judge's findings are entitled to substantial deference; they

"must be left undisturbed absent a showing that they clearly are

erroneous." Care & Protection of Martha, 407 Mass. 319, 327

(1990). A judge's assessment of a witness's credibility is also

entitled to deference. See Petition of Dep't of Social Servs.

to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986).

However, the passage of time may call the accuracy of a judge's

findings into question, particularly with regard to a witness's

demeanor and credibility. See Adoption of Rhona, 57 Mass. App.

Ct. 479, 486 (2003) ("We establish no per se rule or presumption

concerning the length of time after which the accuracy of a

judge's findings may be called into question. However, a lapse

of three and one-half years after trial began and two years

after trial ended strains the outer limits of any judge's

ability to remember witness demeanor and credibility. In this

case, a number of the judge's findings are contradicted by the

evidence, suggesting that such limits were exceeded").

In the case at hand, only three months passed between the

trial and the issuance of the original findings and conclusions.

Cf. Adoption of Rhona, 57 Mass. App. Ct. at 486 (trial judge did

not enter any findings until two years after end of trial).

Although nearly two years passed between the trial and the

issuance of the trial judge's supplemental findings, the

8
supplemental findings detail exactly which elements of the

testimony the judge credited and those that she did not. The

trial judge stated that she credited the expert witness's

testimony that the mother has PTSD, which renders her less able

to control her emotional functioning and self-control when

triggered. However, the trial judge stated that she did not

credit the expert witness's testimony that the mother's lack of

control over her emotional functioning would not inhibit her

ability to parent the child, particularly given the expert's

limited observations of the mother and the child. While we

understand the concern about the length of time that has passed

between trial and the judge's supplemental findings, we think it

apparent based on an examination of the expert testimony and the

judge's detailed findings that she considered the expert

witness's testimony when making her original decision.5

5 The mother need not be concerned that the determination of
unfitness in this matter will be given deference in the review
and redetermination proceeding, an issue she raised in a motion
for reconsideration of our remand order. It will not. "In a
proceeding to commit a child to the custody of the department
under G. L. c. 119, § 26, the department bears the burden of
proving, 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"
(emphasis added). Care & Protection of Erin, 443 Mass. 567, 570
(2005). When Erin speaks of building on findings, it is clear
that it means factual findings, not the legal conclusion of
unfitness. Consequently, the mother's motion is denied.

9
b. Determination of unfitness. The mother also argues

that the trial judge's findings were 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.

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).

In finding the mother unfit to parent the child, the trial

judge relied in part on concerns regarding the mother's mental

health. Mental health concerns are relevant to a determination

of parental unfitness if they "affect[] the parents' capacity to

assume parental responsibility." Adoption of Frederick, 405

Mass. 1, 9 (1989). The mother has been diagnosed with ADHD,

anxiety, and PTSD. On three occasions, most recently at the

10
time of the child's removal in 2019, the mother has been

involuntarily hospitalized due to mental health concerns. To

address these mental health challenges, the mother has been

engaged in therapy and in treatment with a psychiatrist. The

mother's psychiatrist has recommended that the mother take

antianxiety medications, but the mother declined, as she did not

believe her anxiety impacted her parenting ability.

While the trial judge did find that the mother's "mental

health ha[d] improved over the duration of this case," she was

concerned that the mother at times engaged in erratic and

confrontational behavior. This behavior was evidenced by an

occasion in May 2020 in which the mother sent approximately

thirty e-mail messages to DCF and e-mailed the child's foster

mother, and an August 2021 meeting in which the DCF social

worker noted that the mother behaved erratically. The trial

judge was also concerned that the mother would not "seek help to

keep [the child] safe in the event of a mental health crisis or

other stressor." Additionally, part of the mother's action plan

required that she complete a neuropsychological evaluation, but

the mother has refused to do so. This failure to comply with

DCF's action plan demonstrates the mother's lack of insight into

her own mental health challenges, a lack of transparency with

DCF, and a failure to take advantage of all treatment and

support options.

11
In addition to mental health challenges, the mother has

struggled with substance abuse. Substance abuse is a relevant

consideration in a determination of unfitness, but only where

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 testified that

she is an alcoholic, but stated that she has been sober since

her pregnancy with the child. However, the mother has used

alcohol on two occasions since the child's birth, which the

mother considers to be relapses. She testified that she has not

used alcohol since the child's removal, but she was intoxicated

on that occasion. The mother also uses marijuana three to four

times a week, and she tested positive for marijuana during her

pregnancy with the child. The mother and the child both tested

positive for amphetamines at the time of the child's birth. The

mother testified that, in the past, she had abused her

prescription medications, but she has since stopped and is no

longer prescribed those medications. (The mother does attend a

narcotics and alcoholics anonymous group, and has developed a

relapse prevention plan with her therapist.)

The mother is prescribed Adderall for her ADHD, and DCF

requested in its action plan that the mother submit blood tests

showing appropriate Adderall usage. The mother has failed to

comply with this aspect of her action plan. However, the

12
mother's therapist and her psychiatrist were not concerned about

the mother's Adderall usage, and even the DCF social worker was

unable to articulate at trial why DCF had concerns about the

mother's Adderall levels. Because "failure to comply with

[DCF's] service plan is less important where the tasks in the

plan are not closely related to any clearly identified parental

deficiencies," Adoption of Zoltan, 71 Mass. App. Ct. 185, 192

(2008), we do not find the mother's failure to comply with this

aspect of her action plan to be dispositive. That said, her

lack of cooperation with DCF by failing to provide the Adderall

blood levels and the neuropsychological evaluation, as well as

the mother's struggles with substance abuse, were appropriate

considerations for the trial judge in her determination of

unfitness.

The trial judge also remained concerned about the mother's

history of domestic violence and her failure to report incidents

of domestic violence to DCF. A child who witnesses domestic

violence "suffers a distinctly grievous kind of harm." Custody

of Vaughn, 422 Mass. 590, 595 (1996). "[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). All of the mother's intimate

relationships have involved domestic violence, and the mother

remained in each these relationships for several years.

13
The removal of the child was precipitated by an incident

involving domestic violence between the mother and the father.

Additionally, on two occasions since the child's birth, once

before the child's removal and once after, the mother neglected

to report incidents of domestic violence between the mother and

the father to DCF. Although the child was present for only one

of those unreported incidents, the trial judge was appropriately

concerned that the unreported incidents signified that the

mother would not report future incidents of domestic violence

and thereby would not protect the child from harm. This finding

by the trial judge was appropriate 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). The mother is now separated from the

father and testified that she would refrain from engaging in

intimate relationships so as to protect the child from any

domestic violence, but the trial judge relied on the mother's

"pattern of remaining in relationships with domestic violence"

in finding that this strategy was not realistic. The mother

also failed to admit that the father was "an abuser," because he

was intoxicated in each of the three instances of domestic

violence. This denial demonstrates the mother's lack of insight

into domestic violence.

14
The mother's housing instability also poses a considerable

challenge to her care of the child. Housing instability is a

"proper consideration[] in an unfitness determination."

Adoption of Virgil, 93 Mass. App. Ct. 298, 303 (2018). Although

the mother has lived with the maternal grandmother in the past

with the child and currently lives with her uncle, she does not

believe it would be appropriate for the child to live with

either relative. If the mother were to obtain custody of the

child, she hoped to receive a housing voucher, for which she was

on a list. (The mother also testified that she could seek

placement at a Department of Transitional Assistance shelter,

though the judge made no finding on the point. Despite engaging

with a parent aide who assisted her with housing, the mother

appears not to have obtained such housing.) The trial judge

found it likely that the housing instability that mother has

displayed would continue even if the child were returned to her

care.

We acknowledge that the mother has, as the trial judge

found, "engaged in many of the services requested by [DCF]" and

has made significant progress. However, we also conclude that,

considering the evidence discussed above, the trial judge did

not err in finding by clear and convincing evidence that the

mother was, at the time of trial, unfit to care for the child.

We note that many of the concerns laid out above could be

15
transitory, and the question of unfitness will of course have to

be redetermined on the current record in the pending review and

redetermination proceeding, as more than two years have passed

since the trial.

Judgment affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ.6),

Assistant Clerk

Entered: March 8, 2024.

6 The panelists are listed in order of seniority.

16