Care and Protection of Quira.

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-919

CARE AND PROTECTION OF QUIRA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found the mother

currently unfit to parent her daughter, Quira, adjudicated Quira

in need of care and protection, and committed her to the custody

of the Department of Children and Families (department). See

G. L. c. 119, § 26. The mother appeals.2 She contends that

(1) the judge found her unfit based on clearly erroneous factual

findings and speculation, (2) the judge erred by conflating her

"positivity, spirituality, and willingness to follow the

[doctors'] recommendations . . . with a lack of insight into

[the] [d]aughter's condition and needs," and (3) the mother is

currently fit because she plans to keep Quira in a residential

1 A pseudonym.

2The father was also found unfit, but did not file a notice
of appeal.
care facility and to follow the recommendations of the medical

professionals, which satisfies the "minimally acceptable care"

standard. See Care & Protection of Yetta, 84 Mass. App. Ct.

691, 698 (2014). Because the evidence demonstrates the mother's

lack of understanding of her daughter's complex medical needs

and failure to learn about or plan to care for them, clear and

convincing evidence supports the judge's ultimate conclusion of

unfitness. We affirm.

Background. We summarize the relevant facts found by the

judge, reserving some details for our discussion. The

department filed this care and protection petition in September

2022 and assumed temporary custody over the daughter.3 While in

the department's custody and visiting with her parents in June

2023, Quira was struck by a car and sustained life-threatening

injuries, including a traumatic brain injury. She was treated

for these injuries at Massachusetts General Hospital for three

months, until she was discharged to the Disorders of

Consciousness program at Spaulding Rehabilitation Hospital

(Spaulding).4

3 At the same time, the department petitioned for custody of
two of the parents' sons (the daughter's brothers). While the
sons were also in the department's custody at the time of the
accident, custody has since been returned to the parents and was
not at issue at the trial.

4 The judge's finding number 14 states that Quira moved to
Spaulding in January 2024, but the record reflects that Quira

2
At Spaulding, Quira required round-the-clock care to

address all functions in life, including "breathing, feeding,

communication, self-care, and mobility." The daughter's care

team included three attending physicians, physical therapists,

occupational therapists, speech and swallow therapists, a

nutritional team, and nurses. One of the daughter's attending

physicians, Dr. Jennifer Wu, who was qualified as an expert in

pediatric rehabilitation medicine, testified that the care

team's goal was for Quira to regain as much function as possible

through a standardized eight-week program with intensive

therapies. While this team successfully stabilized the

daughter, her progress was slow, and at the time of discharge

she remained fully dependent on a gastrostomy tube ("G-tube")

for nutrition and medication, could not communicate in a

meaningful way, could only intermittently process information,

and lacked control over her limbs.

The parents remained positive about the daughter's

treatment at Spaulding and her prognosis, preferring not to

discuss the possibility that she may not make a full recovery

and viewing that mindset as too negative. At a meeting with her

care team shortly after she arrived at Spaulding, the father

moved from Massachusetts General Hospital to Spaulding in
September 2023. This discrepancy does not appear to have
affected the judge's ultimate conclusions.

3
opted to take Quira for a walk rather than stay for the

conversation about her anticipated aftercare. The mother did

not attend this meeting as she found it very difficult to

participate in discussions about her daughter's condition and

care. The parents avoided such discussions throughout the

daughter's stay at Spaulding, and their sporadic visits meant

they were not present during morning rounds, when care teams

typically discussed aftercare options with families.

In January 2024, Quira was discharged from Spaulding and

transferred to a long-term residential care facility run by

Seven Hills, the only program in Massachusetts that could

accommodate the daughter's need for a G-tube. The daughter's

attending physician believes, and the judge found, that Seven

Hills only treats patients who are in the department's custody.

Patients like Quira who are not in the department's custody are

typically discharged to a similar residential program in New

Hampshire, which does not accept the parents' MassHealth

insurance.

At trial -- before Quira's discharge from Spaulding -- the

parents testified that she could speak a few words, communicate

through blinking, understand everything that was being said,

focus and recognize people, respond to instructions, hold a

ball, and stand. The judge did not credit the parents'

assertions, instead crediting the testimony of the daughter's

4
attending physician, Dr. Wu, and finding the parents' "belief

about how much functioning [Quira] has regained differs greatly

from what medical professionals at Spaulding have communicated

to them." The judge found both parents unfit, found Quira in

need of care and protection, and found it was in her best

interests to place her in the department's permanent custody.

Discussion. "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." Care & Protection of Erin, 443 Mass. 567,

570 (2005). See Care & Protection of Ian, 46 Mass. App. Ct.

615, 616 (1999). Parental unfitness means "grievous

shortcomings or handicaps" that put the child's welfare "much at

hazard." Petition of the New England Home for Little Wanderers

to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).

1. Subsidiary findings. The mother's argument that the

finding of her parental unfitness was not supported by clear and

convincing evidence rests largely on a claim that the judge's

subsidiary findings, as they relate to the mother's

5
understanding of her daughter's condition and progress, are

clearly erroneous.5

In care and protection proceedings, subsidiary findings

need only be proved by a fair preponderance of the evidence.

See Care & Protection of Laura, 414 Mass. 788, 793 (1993).

Taken together, these facts must then prove parental

unfitness -- the critical inquiry -- by clear and convincing

evidence. Id. While clear and convincing evidence must support

a decision of unfitness, a judge's findings will be disturbed

only if clearly erroneous. See Adoption of Paula, 420 Mass.

716, 729 (1995). "A finding is clearly erroneous when there is

no evidence to support it, or when, 'although there is evidence

to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has

been committed'" (citation omitted). Custody of Eleanor, 414

Mass. 795, 799 (1993).

5 The mother also argues that the judge improperly based her
decision on speculation because she commented that the trial was
"rife with speculation" when sustaining a speculation objection.
We take the judge's comment to mean that complex medical cases
like Quira's are "rife with speculation" by nature, due to the
difficulties of predicting any specific patient's recovery
trajectory. As the mother concedes, even Quira's physician
"could not predict what [Quira's] long-term outcome would be or
exactly what those logistics would entail." Because there was
significant nonspeculative evidence about Quira's current
situation and the parents' reactions to it presented throughout
the trial, we disagree that the judge based her decision on
speculation.

6
Our review of the record reveals that two of the judge's

factual findings may be considered clearly erroneous.6 These are

harmless, however, as the findings are not central to the

judge's ultimate conclusion of unfitness, which is supported by

clear and convincing evidence. See Care & Protection of Olga,

57 Mass. App. Ct. 821, 825 (2003). The mother's remaining

challenges amount to dissatisfaction with the judge's weighing

of the evidence and decision not to credit her testimony about

Quira's progress at Spaulding. We do not reweigh the evidence

on appeal, as the judge's "assessment of the weight of the

evidence and the credibility of the witnesses is entitled to

deference." Custody of Eleanor, 414 Mass. at 799.

First, the mother challenges the judge's finding that

"Mother believes [Quira] can grip a ball" as erroneous because

the mother testified that Quira "can, kind of, hold the ball."

6 The first is finding number 38 which states that the
medical staff at Spaulding did not let the mother change the
daughter's diaper. At best, the record on this issue is
unclear: the father testified that staff had not let him change
Quira's diaper, but that his "wife can change her diaper." The
mother testified that she knows how to change a diaper, but not
that she has done so for Quira since the accident. Dr. Wu did
not indicate whether either parent can or has changed Quira's
diaper. Because no evidence shows that the medical staff at
Spaulding did not let the mother change Quira's diaper, this
finding is clearly erroneous. See Custody of Eleanor, 414 Mass.
at 799.

The second finding concerning the timing of Quira's move to
Spaulding, though not challenged by the mother, is addressed in
note 5, supra.

7
The mother was asked at trial, "Is [Quira] able to grip a pen or

a pencil?" She responded, "Yeah. I know my husband's working

on that with her. . . . Right now, she can, kind of, hold the

ball." We are not left with the "definite and firm conviction"

that the trial judge made a mistake and discern no clear error

in this finding (citation omitted). Custody of Eleanor, 414

Mass. at 799.

Next, the mother contests the judge's decision not to

credit her testimony that Quira focuses, understands everything

that is being said, communicates through blinking or a thumbs

up, and speaks a few words, including "hi" and "Mom." The judge

did not credit these beliefs because they contradicted

observations made by Spaulding's medical professionals,

including Dr. Wu, whose testimony she did credit. Dr. Wu

testified that Quira was not communicating "in a perceivable

way" when she left Spaulding. While the care team could tell

when Quira was happy or sad, she did not speak and could not

interact with an assistive visual communicator. Moreover, Quira

could only understand others and follow simple commands on rare

occasions during her stay. The judge's findings that the

mother's understanding of Quira's abilities contradicted that of

the medical professionals have strong support in the evidentiary

record.

8
a. Seven Hills. The mother argues that the judge

improperly shifted the burden to her to prove current fitness,

requiring her to demonstrate that she had crafted "an adequate

plan" for Quira's long-term care, as the department had not

proven her current unfitness by clear and convincing evidence.

See Care & Protection of Erin, 443 Mass. at 570 (burden of

proving unfitness rests on department); Care & Protection of

Ian, 46 Mass. App. Ct. at 616 (same).

The mother argues that the department did not meet its

burden to prove that Seven Hills is the only program in

Massachusetts that could accommodate Quira's G-tube, that it

only treats patients who are in the department's custody, and

that the parents' insurance would not cover her placement there.

At trial, Dr. Wu testified that Spaulding discharged Quira

to Seven Hills, which could provide her with the appropriate

level of care, in January 2024. Quira's need for "a residential

home type of level of care" drove Spaulding's push for the Seven

Hills program. The department social worker explained that

Quira's need for a G-tube seriously limited her ability to

access many residential placement options. Dr. Wu believed this

facility only treats patients in the department's custody

(though Dr. Wu acknowledged that Spaulding's case manager would

know better than her). And Dr. Wu testified that patients with

similar needs to Quira were typically discharged to a

9
residential program like Seven Hills in New Hampshire. Because

the parents have MassHealth insurance, Dr. Wu testified that the

New Hampshire facility likely would not accept their insurance,

but that she has seen similar families relocate to New Hampshire

to access that care. She also testified that other

Massachusetts programs that could meet Quira's medical and

nursing requirements would require some kind of private

insurance.

On this basis, the judge found that the facility only

treats patients who are in the department's custody, that Seven

Hills is the only program in Massachusetts that can accommodate

Quira's need for a G-tube, and that there is a similar

residential program in New Hampshire, but it does not accept

MassHealth insurance. Contrary to the mother's argument, the

judge did not find the mother unfit because of her potential

inability to pay for Quira's residential care at Seven Hills.7

7 While the judge made factual findings related to the
family's income, it does not appear that this affected the
judge's ultimate conclusions, and these were proper
considerations. See Adoption of Virgil, 93 Mass. App. Ct. 298,
303 (2018) ("While homelessness, poverty, and financial
instability alone are not sufficient to terminate a person's
parental rights, they are proper considerations in an unfitness
determination"). We agree with the department's argument that
the lower court found the mother unfit where her health
insurance limited the options for programs she could access,
and, as the judge found, the mother had taken no steps to find
alternate programs to meet Quira's needs. Even if we were to
assume error, a plethora of appropriate evidence supports the

10
The mother contends that Dr. Wu's testimony that other in-

State residential programs would require private insurance

contradicts the judge's finding that Seven Hills is the only

program in Massachusetts that can accommodate the daughter's

need for a G-tube; thus, she argues, the judge erred in

concluding that Quira could only access Seven Hills by remaining

in the department's custody. We disagree. The judge was not

required to credit all of Dr. Wu's testimony, see Care &

Protection of Three Minors, 392 Mass. 704, 711 (1984), and Dr.

Wu also testified that similar patients to Quira who remained in

their own parents' custody were discharged to the New Hampshire

program. While this could mean those parents also had

MassHealth insurance, it may also mean that they found no

residential placements that could accommodate their children's

needs in Massachusetts. Because the judge's conclusion falls

within the range of reasonable alternatives from the evidence,

this was not error. See M.G. v. G.A., 94 Mass. App. Ct. 139,

148 (2018) ("[R]esolution of questions of credibility,

ambiguity, and contradiction" are for fact finder).

While the testimony about accessing appropriate residential

programs was by no means unequivocal, it was uncontroverted, and

we are not left with the definite and firm conviction that a

judge's conclusion of unfitness. See Care & Protection of Three
Minors, 392 Mass. 704, 713 (1984).

11
mistake has been made. See Custody of Eleanor, 414 Mass. at

799. The burden of proof rests with the department -- and the

judge's decision makes clear that the judge applied this

principle -- but the parents had the opportunity to, and did,

cross-examine the department's witnesses on this testimony.8 See

Adoption of Iris, 43 Mass. App. Ct. 95, 100-101 & n.8 (1997)

(reversing unfitness determination where only evidence

department offered was testimony by one case social worker and

unredacted documents and reports containing multilevel hearsay,

where parents were given no opportunity to rebut hearsay or

adverse or erroneous information, and where judge declined

parents' request to cross-examine documents' and reports'

authors). The contested findings have evidentiary support, and

the judge did not shift the burden to the mother to show an

"adequate plan" for Quira's long-term care.

2. Lack of insight into the daughter's condition and

needs. The mother argues that the judge erred by conflating her

positivity, spirituality, and willingness to follow the doctors'

recommendations with a lack of insight into Quira's condition

and needs.

The mother argues that Dr. Wu was not qualified to testify
8

that the parents' insurance would not cover Quira's placement at
the Seven Hills facility. The mother did not object on this
basis at trial and has waived this argument on appeal. See
Adoption of Kimberly, 414 Mass. 526, 534-535 (1993).

12
"[T]he State interest in protecting neglected children may

properly be preventative as well as remedial," and the court

need not wait until a child is maltreated before deciding the

necessity of "care and protection." Custody of a Minor, 377

Mass. 876, 882-883 (1979). The judge may appropriately assess

"prognostic evidence derived from an ongoing pattern of parental

neglect" to determine "future fitness and the likelihood of harm

to a child." Id. at 883. "Such evidence, particularly where

unrebutted by more recent proof of parental capacity, provides a

satisfactory basis for a finding of current parental unfitness."

Id. (affirming award of custody of newborn child to department

where mother had failed to formulate any realistic plan to care

for her children already in department's custody, and newborn,

although not yet maltreated, was "probable victim of parental

neglect"). See Adoption of Jacques, 82 Mass. App. Ct. 601, 608-

609 (2012) (finding of unfitness supported where mother had

limited understanding of child's diagnoses and was repeatedly

unwilling to and procrastinated in seeking services to assist

her in understanding his special needs); Petitions of the Dep't

of Social Servs. to Dispense with Consent to Adoption, 18 Mass.

App. Ct. 120, 125 (1984) ("The specialized needs of a particular

child when combined with the deficiencies of a parent's

character, temperament, capacity, or conduct may clearly

establish parental unfitness").

13
The judge did not expressly credit the parents' assertions

that they would follow the recommendations of the medical

professionals treating Quira, only noting their testimony that

they would. And while the judge credited the parents' desire to

maintain a positive outlook about Quira's condition in the face

of her traumatic injuries, the judge concluded that their

positivity limited their ability to gain insight into their

daughter's current condition and to discuss a realistic long-

term aftercare plan for her. In addition to the discrepancies

between the mother's and Dr. Wu's understandings of Quira's

condition at Spaulding, see section 1, supra, the following

evidence supports a finding that the mother was unable to

understand her daughter's complex medical needs.

The mother did not want to discuss the possibility that

Quira may not make a full recovery, despite Dr. Wu's prediction

that she will probably need long-term residential-based care and

discussions that her health may be a lifetime concern.9 The

mother never directly spoke to Dr. Wu, one of Quira's attending

physicians, and did not attend the only in-person family meeting

held with Quira's Spaulding care team. While she preferred to

get the information from her husband, he was not at the hospital

during the care team's working hours or morning rounds. The

9 Even on the witness stand, the mother struggled to discuss
her daughter's condition.

14
parents were invited to stay overnight to witness a full twenty-

four hours of care, including routinely adjusting Quira's

position in bed every two hours to avoid pressure sores or

injury, but declined. Because they declined, the parents never

received training on how to move their daughter. Dr. Wu

testified that most families are at their child's bedside all

day, experiencing the care in real time and gaining a good

understanding of how much care is involved to keep the child

safe and to meet their needs, and eliminating the need for

formal meetings, but this "piecemeal" training did not happen

with this family.

At the time of discharge from Spaulding, Quira had very

complex outpatient follow-up schedules requiring therapies four

or five time weekly. When Spaulding scheduled time for the

parents to participate in these therapies, they attended

inconsistently, arriving late or failing to attend at all. This

pattern left Dr. Wu concerned about whether they would get Quira

to her outpatient appointments in a timely manner, if custody

was returned to them. The parents had not discussed how they

would transport Quira to those appointments. And while the

mother testified that she knew of a transportation service that

could help, she had not talked to anybody about setting that up.

When asked what the family would need to do for Quira long-

term, the mother consistently answered that they would do

15
whatever needed to be done. But the mother took no steps

towards learning what that might involve: she did not learn to

use or clean the daughter's G-tube, could not name all of her

medications, was not trained on moving her, did not know what

care went into helping her bathe, did not contact insurance to

ask about coverage if the parents regained custody, and did not

discuss with medical professionals what would happen when Quira

was discharged from Spaulding. This evidence supported the

judge's finding that the mother's stanch desire to stay positive

about the future resulted in a lack of insight and inability to

understand Quira's condition and needs.

The proper inquiry in determining parental unfitness is

whether the parent may "place the child at serious risk of peril

from abuse, neglect, or other activity harmful to the child."

Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

If a parent does not understand her child's specialized medical

condition, that parent's ability to make informed decisions

about the child's medical care, advocate for, and care for their

child is compromised, putting the child at risk of serious

neglect. See generally Adoption of Breck, 105 Mass. App. Ct.

652, 660-661 (2025); Adoption of Jacques, 82 Mass. App. Ct. at

608-609; Petitions of the Dep't of Social Servs. to Dispense

with Consent to Adoption, 18 Mass. App. Ct. at 125. This risk

grows when one care option, albeit a "distant second choice" for

16
Dr. Wu, involves the parents providing "24/7" care for Quira at

their own home. It is clear from the judge's specific and

detailed findings that she paid close attention to the evidence,

see Custody of a Minor, 377 Mass. at 885-886, and weighed

heavily the gravity of this risk when finding the mother unfit.

This was a proper consideration for the judge in determining

fitness. See id. at 883. See also Adoption of Breck, supra at

661; Adoption of Jacques, supra; Petitions of the Dep't of

Social Servs. to Dispense with Consent to Adoption, supra.

3. Unfitness. Finally, the mother contends that because

Quira is in a residential care facility, she does not need to

provide more than "minimally acceptable" care, which she is

currently doing by keeping her in the facility, demonstrating

her fitness. See Care & Protection of Yetta, 84 Mass. App. Ct.

at 698. We disagree.

As previously discussed, the mother's failure to learn

about her daughter's complex medical condition and plan for her

future needs creates a serious risk of neglect and harm to

Quira. See section 2, supra. The only concrete evidence of the

mother's plan for Quira's future care concerned her search for a

first-floor apartment or other appropriate housing that could

17
meet her daughter's needs.10 This suggests only a plan to care

for Quira at home, which was inconsistent with the

recommendations of the medical professionals at time of trial.

Given this, the judge properly concluded that the parents' lack

of understanding or planning for their daughter's specialized

needs created a risk that they would push her more than she

could tolerate and created unsafe expectations if she returned

to their care.

The judge was required to address the various placement

options that would further Quira's best interests. See Care &

Protection of Three Minors, 392 Mass. at 714. It was not error

for her to address the mother's failure to plan for any option

other than her daughter's return home, which the evidence

revealed was not safe, in light of the parents' failure to learn

about her daily care. See section 2 supra. The social worker

testified that the department would keep Quira at Spaulding,

with their agreement, until they found an appropriate placement.

Her stay at Spaulding, however, had already exceeded the

standard amount of time patients remained, especially once

progress slowed. Dr. Wu testified that, when a patient's

functional level plateaued, Spaulding typically worked with the

10At the time of trial, the family lived on the third floor
of an apartment building with no elevator, and Quira would
require a specialized wheelchair for the foreseeable future.

18
parents to find an appropriate program that worked for the

family. Quira's care team was prepared to plan for her future

long-term residential needs; because the parents were still not

ready to participate in those decisions, Spaulding planned with

the department (the legal decision maker) and discharged Quira

to Seven Hills. Spaulding was not required to keep a patient

indefinitely just because the parents would not participate in

difficult conversations. And the evidence supports the judge's

conclusion that the mother would not communicate with the

department and the medical providers about Quira's care plan or

had not taken steps to propose how she could meet her needs.

Accordingly, given the mother's lack of insight into and

failure to plan for her daughter's complex medical condition and

specialized needs, and inability to safely care for her

daughter, the judge did not err by concluding that the

department proved, by clear and convincing evidence, that the

19
mother was unfit to further the welfare and best interests of

Quira.

Judgment affirmed.

By the Court (Blake, C.J.,
Desmond & Singh, JJ.11),

Clerk

Entered: October 9, 2025.

11 The panelists are listed in order of seniority.

20