Care and Protection of Hunter.

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-868

CARE AND PROTECTION OF HUNTER.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Juvenile Court judge determined that the father of Hunter

was currently unfit to parent him and awarded custody of Hunter

to his mother. See G. L. c. 119, §§ 24, 26; G. L. c. 210, § 3.

The father appeals, primarily arguing that the judge's

subsidiary findings -- the "core" of the judge's unfitness

determination -- were clearly erroneous. We affirm.

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

conclusions of law, while reserving further details for

discussion. In June or July 2021, the mother moved to

Massachusetts and into the father's home, where several of his

family members also lived. The home was filthy, smelt like

marijuana, and had garbage littered throughout. The family had

seven dogs, whose feces and urine were all over the house, along

1 A pseudonym.
with rodents, roaches, and bed bugs. Subsequently, the house

was condemned by the Medford Fire Department and the board of

health of Medford in November 2022.

Throughout the mother and the father's relationship, the

father assaulted the mother. For instance, he slapped her in

the face, bit her arm, pushed her down, punched her, and swore

at her. The father continued to assault the mother while she

was pregnant. The father's family members also abused the

mother in the presence of the father, who did nothing or joined

in the abuse.

Hunter was born on October 2, 2022. In January 2023, the

Department of Children and Families (the department) filed a

care and protection petition for Hunter, alleging there was

domestic violence and poor living conditions at the father's

home. After a temporary custody hearing on January 17, 2023, a

judge ordered custody of Hunter to remain with the department.

On February 20, 2024, the judge found the father currently unfit

and awarded custody of Hunter to the mother. The father

appealed.

Discussion. 1. The father's unfitness. The father

contends that the judge erred in finding, by clear and

convincing evidence, that he is unfit to provide for the welfare

and best interests of Hunter. "Parental unfitness must be

2
determined by taking into consideration 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." Adoption of Mary, 414 Mass. 705, 711 (1993).

Subsidiary findings in care and protection cases must be proved

by a fair preponderance of the evidence, and taken together,

must then prove current parental fitness clearly and

convincingly. See Custody of Eleanor, 414 Mass. 795, 799

(1993). The trial judge, "who hears the evidence, observes the

parties, and is most familiar with the circumstances remains in

the best position to make the judgment" as to parental fitness.

Guardianship of Estelle, 70 Mass. App. Ct. 575, 579 (2007). The

judge's subsidiary findings will not be disturbed unless they

are clearly erroneous. See Adoption of Quentin, 424 Mass. 882,

886 (1997).

Here, the evidence was sufficient for the judge to conclude

the father lacked parental fitness. Over the course of a seven-

day trial, the judge heard testimony from four witnesses and

twenty documents were admitted as exhibits. The judge carefully

issued 146 detailed factual findings and thirty-three

conclusions of law. The judge's subsidiary findings were amply

supported by the evidence, and considered together, established

3
by clear and convincing evidence that the father was unfit.2 See

Adoption of Anton, 72 Mass. App. Ct. 667, 672-673 (2008).

Predominant among the judge's findings was the father's history

of domestic violence and the father's unsafe home environment

that placed Hunter at risk of neglect.

Domestic violence "within a family is highly relevant to a

judge's determination of parental unfitness." Adoption of

Gillian, 63 Mass. App. Ct. 398, 404 n.6 (2005). See Custody of

Vaughn, 422 Mass. 590, 599-600 (1996); Care & Protection of

Lillith, 61 Mass. App. Ct. 132, 139 (2004).

The father's history of domestic violence toward the mother

and his inability to protect her from abuse by his family

members was pervasive. The judge found that the father

subjected the mother to verbal, emotional, and physical abuse,

including slapping her in the face; biting her arm; dragging her

across a room and pushing her down while she was pregnant;

smashing her phone; cursing at her; and, in response to the

2 The father challenges three of the judge's factual
findings as clearly erroneous. Much of the father's arguments
amounts to mere dissatisfaction with the judge's weighing of the
evidence and her credibility determinations. See Adoption of
Quentin, 424 Mass. 882, 886 n.3 (1997). For example, the judge
was entitled to discredit the father's claim that he was the
victim of domestic violence by the mother. Thus, we discern no
basis to disturb the judge's view of the evidence and conclude
that substantial evidence supports the judge's findings.

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father's sister slapping the mother, telling the mother she

"deserved it." The judge also found that the father's family

subjected the mother to abuse, including slapping her; giving

her a black eye; throwing cold water in her face; pulling her

hair; throwing a can at her; cursing at her; hitting her in the

arm with a shoe; throwing a phone at her head; and punching and

hitting her in the head and breaking her glasses. Finally, the

mother witnessed the father's parents fight and push one

another.

We discern no error in the judge's determination that,

despite the father's participation in some of the services

available to him,3 including therapy and parenting classes, his

failure to benefit from those services left him unfit to parent

Hunter. See Adoption of Terrence, 57 Mass. App. Ct. 832, 835-

836 (2003) (parent's mere participation in parenting programs,

"without evidence of appreciable improvement in her ability to

meet the needs of the child, does not undermine a finding of

unfitness").

Although the father completed some tasks from his action

plan, such as engaging in a mental health evaluation, he has not

completed the necessary intake paperwork for a responsible

3 Contrary to the father's argument, the judge did
acknowledge the father's engagement in some services.

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fatherhood program or a neurological evaluation. Nor has the

father acknowledged his role as a perpetrator of domestic

violence, thereby rendering him ineligible for the abuse

education program part of his action plan. In sum, the father

has failed to "substantially and meaningfully engage in domestic

violence services." See Adoption of Ulrich, 94 Mass. App. Ct.

668, 677 (2019) (parent's inability to "benefit from classes

required by her service plan is relevant to the determination of

unfitness" [quotations and citation omitted]).

"Cleanliness of a home is [also] an appropriate factor for

consideration" of parental fitness. Care and Protection of

Inga, 36 Mass. App. Ct. 660, 665-666 (1994). See Care &

Protection of Three Minors, 392 Mass. 704, 713 (1984). The

judge found that the father's home was "filthy," "deplorable,"

and "unlivable"; and that it was filled with garbage, smelled

like marijuana, and there were flies, rats, and feces and urine

from seven dogs all over the house. Additionally, feces was

observed around Hunter's playpen. Even once the father moved

out of the condemned home, the cleanliness of his living

situation was not fully addressed -- he brought a toy covered in

feces to a visit with Hunter.

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2. The mother's fitness. The father also challenges the

judge's finding that the mother is parentally fit.4 The record

supports the judge's finding. The mother has since left the

father and moved to Michigan where she has support from her

family. In Michigan, the mother has been engaged in services,

including a parenting class and individual therapy. A social

worker in Michigan monitors the mother.

Conclusion. Based on the judge's subsidiary findings,

which are abundantly supported by the evidence, we discern no

error in the judge's determinations that the father is currently

unfit to parent Hunter and that the mother is fit to assume

parental responsibility.

Judgment affirmed.

By the Court (Meade,
Desmond & D'Angelo, JJ.5),

Clerk

Entered: January 28, 2025.

4 The father does not have standing to challenge the
mother's fitness. Cf. Adoption of Paula, 420 Mass. 716, 722 n.8
(1995) (declining to address father's arguments regarding
fitness of mother). Nonetheless, even if the father had
standing, the judge had sufficient evidence to find that the
mother was fit.

5 The panelists are listed in order of seniority.

7