In Re Adoption of Chad

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18-P-606 Appeals Court

ADOPTION OF CHAD (and a companion case1).

No. 18-P-606.

Norfolk. November 7, 2018. - February 27, 2019.

Present: Milkey, Henry, & Englander, JJ.

Adoption, Dispensing with parent's consent. Parent and Child,
Adoption, Dispensing with parent's consent to adoption.
Minor, Adoption. Practice, Civil, Adoption, Findings by
judge.

Petition filed in the Norfolk County Division of the
Juvenile Court Department on September 9, 2014.

The case was heard by Mary M. McCallum, J.

Diana S. Spanos for the mother.
Rachel T. Rose for Chad.
Lynne M. Murphy for Department of Children and Families.
Dennis M. Toomey for Anne.

MILKEY, J. In this care and protection case, a Juvenile

Court judge found the mother of two children unfit and

terminated her parental rights as to them. The judge's decision

1 Adoption of Anne. The children's names are pseudonyms.
2

was based in critical part on her assessment that the mother was

unable to appreciate or address both children's extensive

special needs. The mother and one of the children have

appealed. For the reasons that follow, although we agree with

the judge that serious issues regarding the mother's fitness

have been raised, we nevertheless conclude that various

shortcomings in the proceedings necessitate that the matter be

remanded.2

Background.3 1. The mother. Born in 1980, the mother

moved to Massachusetts at age seventeen with her parents. In

January of 1999, the Department of Children and Families (DCF)

removed the mother from her home after reports that she was

being physically abused, and she remained in DCF's care and

protection until August of 2002 (the month she turned twenty-

two). At that point, the mother was placed with the Department

of Developmental Services (DDS) because of her mental

disabilities.

2 The father of Chad did not participate in the trial and
has not appealed. We affirm the decree terminating his parental
rights. The paternity of Anne was never determined, and a
decree was issued terminating the parental rights of her
"unknown or unnamed father." We affirm that decree as well.

3 The factual recitation that follows relies on the judge's
detailed subsidiary findings, none of which the mother has shown
to be clearly erroneous. We supplement those findings slightly
with material from the documentary record.
3

The judge did not make findings about the degree of the

mother's mental disabilities, nor is that clear from the trial

record. On one hand, there is a reference in one of the

exhibits to the mother being "very cognitively challenged," and

the extent of the services that she has received from DDS

suggests a substantial mental disability. On the other hand,

there are other suggestions in the record that her disability is

only "moderate" or even "mild," with one person describing her

as being "smart as a whip and doing fine." No expert testified

as to her disabilities; in fact, no one from DDS testified at

all.4 There was evidence that the mother's therapist had

assigned to her a "global assessment functioning [rating] of 51

out of 100," without any explanation of what that meant or how

it mattered. Although the judge appears to have accepted that

assessment, no evidence of how that particular level of

functioning affected the mother's parenting skills was

presented.

In 2016, the mother was diagnosed as also suffering from a

moderate degree of major depressive disorder.5 In addition, it

The mother herself testified extensively at the trial, and
4

with respect to her ability to respond to the questions posed to
her, no obvious, cognitive lapses jump off the pages of the
transcript. That said, as discussed infra, the judge's findings
that the mother lacked the ability to understand or provide for
her children's special needs are well supported by the record.
4

is uncontested that the mother is morbidly obese (weighing over

500 pounds at the time of trial), and that this condition at

least somewhat affects her mobility.

2. The nature of the trial evidence. Before turning to a

summary of DCF's involvement with the family, we highlight the

nature of the evidence adduced at trial. Although the mother

testified at length, her testimony mainly addressed the period

after the children were removed in September of 2014. There

were three other witnesses at the trial: the woman who had

served as the foster mother of the children for a period of time

after their removal, the DCF adoption worker assigned in 2015,

and the DCF social worker assigned in 2015. Thus, there was

almost no live testimony that addressed the mother's parenting

of the children while they were in her care.

Instead, DCF relied on the documentary record with regard

to what happened prior to the children's removal. That record,

consisting of thirty-six trial exhibits, included reports

produced pursuant to G. L. c. 119, §§ 51A and 51B (51A reports

and 51B reports), and the report of a court-appointed

investigator appointed pursuant to G. L. c. 119, § 24. Those

5 Although the mother once was diagnosed with bipolar
disorder, her DDS service coordinator reported in 2006 that that
diagnosis "was questionable and that she had ended her
medication three years earlier on the advice of her
psychiatrist."
5

reports were submitted with agreed-upon redactions, and the

parties and the judge shared a common understanding that the 51A

reports could be used only to "set the stage," and that the 51B

reports were "admitted to the extent that they contain[ed]

primary fact and statements of the mother." See Custody of

Michel, 28 Mass. App. Ct. 260, 266-267 (1990). See also

Adoption of Luc, 94 Mass. App. Ct. 565, 566-569 (2018). We turn

next to what the documentary record established with regard to

DCF's involvement with the family prior to the removal of the

children.

3. The children. Chad was born in November of 2006. The

mother and Chad lived in a DDS-funded group home in the

Dorchester section of Boston, operated by Dare Family Services

(Dare), where the mother had been placed just before Chad was

born. At the group home, the mother had twenty-four hour

assistance from a full-time staff supplied by DDS. The record

reflects that during this period, the mother was able to attend

to Chad's everyday needs with the help of the Dare staff, which

led DCF to close a case it had opened before newborn Chad had

been discharged from the hospital. In June of 2008, a 51A

report was filed expressing concern over the mother's yelling at

Chad and lack of attentiveness toward him, but DCF closed the

matter after concluding that the mother showed apparent

improvement.
6

By February of 2011, the mother and Chad had moved to a

"shared living" home in the Roxbury section of Boston, still

with round-the-clock supervision, where they remained under the

care of DDS. That same month, the mother gave birth to Anne,

and the family moved back to Dare's Dorchester group home.

During this period, DCF looked into allegations that the mother

was neglecting newborn Anne and physically abusing Chad.

However, further investigations "indicated that the mother and

children were doing fairly well," and DCF ultimately concluded

that the allegations were unsupported.

4. The family moves to Brockton. In December of 2011, DDS

moved the mother and her children to a foster home in Brockton.

At the Brockton home, also run by Dare, the proprietor, Betsy

Goodacre (a pseudonym), looked after the family. In addition,

the mother was later provided the weekly services of an aide to

assist her in staying on top of appointments and such. The

family remained at the Brockton home until the summer of 2014.

In March of 2012, Chad, then five years old, began to

exhibit sexualized behavior at school, such as telling a girl

that he wanted "to lick her between her legs." Concerned that

Chad might have been subjected to sexual abuse, DCF

investigated. The mother and Chad denied any allegations of
7

sexual abuse, and DCF did not find such allegations supported.6

DCF did document a number of ways that Chad could have been

exposed to inappropriate sexual images or activity. These

included his having observed instances of nudity and sexual

behavior involving third parties at the Dorchester group home,

and his having observed pornography on the mother's tablet

computer or cellular telephone. Notably, the clinical

supervisor at Dare -- one of two parties who reported Chad's

sexualized behavior -- nevertheless concluded that Chad could

remain in the home (so long as he had a separate bedroom), and

she expressed her view that the mother "ensures that the basic

needs of her children are met at all times."

In August of 2012, while the family was still living in

Brockton, the mother had to be hospitalized for a physical

ailment, and she left her children in the care of Goodacre.

This led to a 51A report expressing concern about the mother's

ability to care for the children, especially if her absence

became prolonged.7 Apparently after the mother was discharged

6 During the course of the investigation, Goodacre told DCF
that Chad -- in response to being asked where he learned the
things he had said at school -- had stated "that his mother
wants him to lick her in that manner." In finding allegations
of sexual abuse unsupported, DCF appears to have not credited
that account.

7 Part of the concern related to the fact that although
Goodacre was willing to provide child care, it was not within
8

from the hospital, DCF screened out the concerns based on

existing supports.

In February of 2014, an early intervention provider for one

of the children expressed concerns to DCF about the mother's

ability to care for the children. The concerns were over

whether the mother's cognitive issues and weight-related

immobility were causing the mother not to meet the children's

basic needs or to follow up on recommended services for them.

At this time, Goodacre stated her view that the mother "is a

good mother and does the best that she can." The Dare clinical

supervisor shared that view and requested that an aide be

arranged for the mother; one was ultimately provided to her for

four months.

5. The family's stay in hotels. In July of 2014, Goodacre

went on vacation, and the mother and children were placed in

respite care. During this period, the mother decided that

lingering problems with her Brockton shared living placement

were sufficiently serious that she could not go back.8 This led

to something of a crisis, because a suitable substitute

her DDS responsibilities and thus DDS could not pay her for
that.

8 The mother made various complaints about her Brockton
living situation, including that Goodacre swore at her and that
Chad was displaced from his assigned bedroom by the son of
Goodacre's new boy friend.
9

placement could not be found. As a result, the mother and the

children -- together with a full-time aide -- had to be housed

in hotels.

During the period that the family was placed in hotels,

various individuals filed a series of 51A reports alleging

neglect or abuse of the children by the mother. The documentary

record includes contradictory "evidence" about these allegations

and suggests unanswered questions. For example, based on a

bungee cord being attached to Anne's crib and some marks on

Anne's ankle, a DDS clinical supervisor had concern that the

mother may have tied Anne to the crib to keep her there. Given

that the mother had around-the-clock supervision, the record

reflects some perplexity on the part of DCF about how -- if the

allegations were true -- someone could have missed the mother's

alleged abuse or neglect. In addition, the record reflects that

one of the mother's aides told DCF that she did "not have any

concerns for [the] mother's parenting since she was placed at

the hotel." Of potential significance, DCF's evaluation of the

living situation at this time includes the following statement:

"The mother has an aide in the room [twenty-four] hours a
day. They are currently in a hotel room because D[are]
ca[nn]ot find a placement that will take mother and her
children. [Dare] and DDS have been advocating for [DCF] to
take custody of the children because of their barrier to
10

placement and the expense of maintaining the current
situation."9

In any event, matters came to a head on September 8, 2014,

when one of the mother's aides reported to DCF two significant

concerns. The first was that the mother was lying in bed all

day and not responding in a timely manner to prompts that she

feed the children. The second was that Chad allegedly had told

her that he had seen the mother masturbating (describing this in

detail), and that both children were exhibiting sexualized

behavior, including Chad "french kiss[ing]" his three year old

sister.10 DCF conducted an emergency removal of the children the

following day.

6. The placement of the children postremoval. Anne was

placed at an intensive foster home operated by a foster parent,

Susan Johnson (a pseudonym). Johnson had specialized training

in addressing children with special needs, and she herself had a

developmentally disabled child. After a two-month temporary

placement elsewhere, in November of 2014, Chad also was placed

9 This statement appears in the section of a 51A report that
includes a summary of the interview with the aide. It is not
clear whether this statement is properly attributed to the aide
being interviewed or to the DCF author of the report.

10Despite the mother's hotel room being "staffed [twenty-
four seven]," the 51A report also noted that, "[w]hen asked
where the staff person [wa]s when this [wa]s happening, and why
it [wa]s allowed to go on, it was said that it is unknown who
the staff person was when this was happening."
11

with Johnson, who retained physical custody of both children

until December of 2015. However, Johnson ultimately realized

that she could not handle both children in her home, in great

part because Chad needed full-time supervision, and the children

continued to exhibit sexualized behavior with each other if left

unattended. Chad therefore was sent to the Bridge Home, a

facility that could provide "a higher level of care and

supervision." From there, he was transferred to the Stetson

School in Barre, which had a specialized residential treatment

program.11 It is well established that Chad has learning

disabilities and attention deficit problems (ADHD) in addition

to his other special needs. He has also been diagnosed with

posttraumatic stress disorder.

Meanwhile, Anne stayed at Johnson's home until June of

2016. At that time, Johnson moved to Florida for reasons not

explained in the record, and Anne was placed in a series of

temporary foster homes. Johnson eventually moved back to

Massachusetts and sought to regain custody of Anne; however, she

was unable to obtain suitable housing. At the time of trial,

DCF viewed Johnson as a potential adoption resource for Anne if

11With over two years having passed between the trial and
the hearing in our court, see note 18, infra, we requested from
counsel an oral update regarding the placement of the children.
Counsel represented that Chad was now living in regular foster
care but attending specialized day programs.
12

she could solve her housing needs.12 In the time between Anne's

placement at Johnson's home and the trial, her sexualized

behavior improved significantly to the point where she no longer

presented such behavior. However, Anne did exhibit other

problematic behaviors such as throwing extreme tantrums, and she

has some degree of developmental disabilities.

7. The mother postremoval. After the children were

removed, the mother was placed in a DDS group home in Chelsea

until November of 2015. Then, she moved to a DDS group home in

Dorchester. As the judge found, the group home was "more of an

independent living program" that had a separate bedroom for each

of the four residents, and a communal kitchen, living room, and

dining room. By this time (and continuing through the trial),

the mother participated in a day program that extended from 9

A.M. to 3 P.M. each weekday in Dorchester. That program

"offered education, community support, fitness[,] clinical

rehabilitation," and assistance in seeking employment. As of

the date of trial, the mother -- who once had been employed at

Goodwill -- had participated in one job interview, but had

received no offers of outside employment. She did do custodial-

type work at the day program, for which she received a small

12At oral argument, counsel represented that Anne is now
living in a "specialized group home" and has not been placed
with Johnson.
13

amount of income. Otherwise, her income consisted of Social

Security payments based on her disability, from which amounts

were withheld for her share of housing payments and for access

to the Greater Boston public transportation service known as

"The RIDE."

The mother also participated in other self-improvement

efforts including individual therapy, which, at the urging of

DCF, she began in May of 2015. She met regularly with her first

therapist until that therapist went on maternity leave in

October of 2015. The mother then met with a different

therapist, but that therapist left the agency in January of

2016. When DCF discovered the lapse in therapy, it urged the

mother to contact a certain health center to obtain a new

therapist. The mother stated that she would do so, but this

never came to fruition.

Again at DCF's urging, the mother enrolled in classes at a

parenting program in March of 2016. That program, which

encompassed forty-five hours of training, met every Thursday.

The mother completed this program in June of 2016, and presented

her certificate of completion to DCF prior to the termination

trial. Although the record indicates that the mother agreed to,

and participated in, a formal evaluation of her parenting
14

skills, that parenting evaluation was never admitted at trial,13

and the judge therefore did not have the benefit of it.

Much of the live testimony went to the face-to-face visits,

and other contact, between the mother and the children after

they had been removed. The first-hand accounts of the various

visits between the mother and the children generally are

consistent: the children hugged and kissed the mother,

interacted with her, enjoyed the gifts or appropriate snacks

that she brought, and said things such as "[b]ye Mom" when they

left.14 There was also uncontested testimony that the mother

expressed concern for their well-being, for example, by checking

for dirt under the children's fingernails, and on one occasion

questioning whether Chad had warm enough clothing for a visit to

a park. The third-party accounts of the visits did tend to

emphasize the mother's relative immobility. For example, the

DCF adoption worker who supervised a visit at a restaurant

testified that the mother "remained in a seat the entire time

13The record suggests that the parties may have agreed
prior to trial that this evaluation would be excluded, but no
explanation was offered.

14Initially, in the fall and winter of 2014, there were
reports that both children, particularly Chad, would "cry when
they [saw the mother]" and that they would "tell her that they
miss her and want to go home." However, by 2016, the DCF
adoption worker stated that neither child showed any signs of
distress during the visit she supervised, and that both were
able to "separate pretty well" from the mother.
15

during the visit." The judge herself repeatedly highlighted the

mother's sedentary nature in her subsidiary findings, for

example, by noting that during a visit with the children at the

Dorchester group home, the mother spent most of the time sitting

on the bed.15

A combination of factors placed some constraints on when

and where face-to-face visits could take place. For example,

the mother's Chelsea group home did not allow visits there. The

mother frequently canceled visits, based on asserted reasons

such as physical ailments (e.g., sore feet) or the lack of

proper outdoor clothing. Once DCF placed Chad in the Stetson

School in Barre, transportation there became an obvious problem.

DCF offered to bring Chad to Worcester for visits and suggested

that the mother travel from Dorchester to Worcester on public

transportation, which would be a four-hour round trip.16 After

15To put that fact in perspective, we note that according
to the trial testimony, the mother's bedroom, which was the only
private space she had at the Dorchester group home, measured
only five feet by twelve feet. In fact, the DCF social worker
conceded that the mother's room "lack[ed] . . . floor space" and
that "the main area for visits to occur [in the mother's
bedroom] is the bed."

16After the mother pointed out that she could not afford
the train fare to Worcester, DCF offered to reimburse her after
the fact. At trial, the mother testified that this was an
inadequate solution because she did not have thirty dollars to
purchase the ticket, prior to being reimbursed. The judge did
not make findings as to whether this, or some other reason, led
the mother to reject DCF's offer of Worcester-based visits.
16

Chad was moved to Barre, only one face-to-face visit occurred

between him and the mother, and that was when DCF social workers

drove Chad from Barre to Dorchester, and back.17 In the face of

the travel difficulties, the mother sought to have remote visual

contact with Chad through the Internet-based video-chat service

known as Skype. DCF left it to the mother to make the necessary

arrangements with the Stetson School, and this did not happen.

However, the mother did maintain frequent contact with Chad by

telephone, speaking with him at a regular time each Monday,

"like clockwork."

8. The judge's rulings. At trial, the mother and both

children supported the family being reunited. Nevertheless, the

judge found the mother unfit and ruled that her parental rights

should be terminated. While the judge's findings raise a number

of concerns about the mother's fitness, she rested her ruling on

one ground, namely, that the mother was incapable of addressing

the children's special needs. Although the findings and rulings

that the judge issued to explain her decision total fifty-six

pages,18 her reasoning is capsulized in the following key

passages:

17DCF did arrange to have Anne brought to Barre for
multiple sibling visits. Unexplained in the record is why DCF
could not bring the mother as well.

18The trial concluded in November of 2016. The following
month, the judge issued her decrees finding the mother unfit and
17

"Both [Chad] and [Anne] are children who have significant
specialized needs. [Anne] has required a heightened level
of intensive foster care by a foster parent proficient,
trained and experienced in meeting her specialized needs.
While in [DCF's] custody, [Anne] has especially needed the
experienced advocacy of a knowledgeable caretaker who was
able to pursue additional support services, school and
after school programs and educational supports to meet her
needs. Her behavior and global delays have been quite
challenging for her pre-school and Kindergarten educators.
[Anne]'s specialized needs when combined with the mother's
parental deficiencies and incapacities, clearly establish
the mother's parental unfitness to parent [Anne]. [Chad]
also has significant specialized needs which were beyond
the ability of his intensive foster parent to manage.
[Chad] has required the highest level of intensive care in
a residential therapeutic program which is particularly
able to address his sexualized behavior and his trauma
history. [Chad]'s specialized needs when combined with the
mother's parental deficiencies and incapacities, clearly
establish the mother's parental unfitness to parent
[Chad]. . . . It is clear to this court that each of these
children have required and will continue to require
extraordinary attentiveness on the part of his/her
caretaker and the mother has little or no ability to
provide that level of attentiveness, has little or no
understanding of either child's needs, and little or no
genuine ability to provide for either child's needs."

Then, with regard to the efforts the mother made to improve her

parenting abilities, the judged added the following:

"Despite the mother's efforts and compliance with certain
recommendations set forth on her service plans,
particularly her participation in individual therapy for a
period of months and her attendance at a parenting program,
she has not acquired the genuine ability to benefit from

terminating her parental rights. The judge initially explained
her ruling in a six-page document that accompanied the decrees
and that was entitled "Findings, Adjudication, Commitment Order
and Order to Issue Decrees." After the mother and the children
appealed, the judge issued a further explanation of her ruling
in a supplementary fifty-six page document bearing the same
title. That document was issued in March of 2018, more than
sixteen months after the trial concluded.
18

these services to the extent that she is now able to parent
her children. Indeed, the mother acknowledges in her trial
testimony that she needs significant assistance in managing
[Chad]'s behavior should her son be returned to her care.
Further, the mother indicates in her trial testimony that
she only feels capable of providing for her children's
needs, services and appointments if such services are
physically 'close' and 'nearby' to her. Essentially,
should the children be returned to the mother's care, the
services which are necessary to meet the children's
specialized needs must be convenient for the mother in
order for them to be utilized."

Although the judge terminated the mother's parental rights,

she ordered regular posttermination and postadoption visitation

between Chad and Anne, and between the children and the mother.

The mother and both children appealed, but eventually Anne

participated as an appellee in support of the decree terminating

the mother's parental rights as to her.19

Discussion. A finding of parental unfitness must be

supported by "clear and convincing evidence." Adoption of

Paula, 420 Mass. 716, 729 (1995). That means that "[t]he

requisite proof must be strong and positive; it must be 'full,

clear and decisive.'" Adoption of Iris, 43 Mass. App. Ct. 95,

105 (1997), quoting Callahan v. Westinghouse Broadcasting Co.,

372 Mass. 582, 584 (1977). "Parental unfitness, as developed in

the case law, means more than ineptitude, handicap, character

19At oral argument, we asked Anne's counsel on what basis
his client had reversed her position. Counsel declined to
provide a direct response, commenting that the question called
for reference to material outside the record.
19

flaw, conviction of a crime, unusual life style, or inability to

do as good a job as the child's foster parent" (footnotes

omitted). Adoption of Katharine, 42 Mass. App. Ct. 25, 28

(1997). "[T]he issue is not 'whether the parent is a good one,

let alone an ideal one; rather, the inquiry is whether the

parent is so bad as to place the child at serious risk of peril

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

(citation omitted). Adoption of Zoltan, 71 Mass. App. Ct. 185,

188 (2008).

A parent may be found unfit because of mental deficiencies,

but only where it is shown that such "deficiencies impaired her

ability to protect and care for the children." Adoption of

Quentin, 424 Mass. 882, 888-889 (1997). "Where a parent, as

here, has cognitive or other limitations that affect the receipt

of services, [DCF's] duty to make reasonable efforts to preserve

the natural family includes a requirement that [DCF] provide

services that accommodate the special needs of a parent."

Adoption of Ilona, 459 Mass. 53, 61 (2011).

Having stated these background principles of law, we turn

now to examining the ground on which the judge relied, the

mother's inability to address the children's special needs.

Certain aspects of this issue are not subject to reasonable

dispute. First, the judge's finding that both children have

serious special needs (not the least of which relate to the
20

sexualized behavior they both have exhibited) is unassailable.

Second, it is indisputable that the mother lacks the capacity to

address those special needs on her own, whether due to her

cognitive limitations, depression, or weight-related immobility.

In fact, the judge's assessment that the mother is unable even

to understand what the children's special needs were is well

supported by the record. Thus, the concerns that animated the

termination decrees are both serious and well substantiated.

At the same time, while it is undisputed that the mother

could not address the children's special needs on her own, it is

also undisputed that their special needs could not be managed by

other individuals either. For example, as the judge herself

recognized, "[Chad] has required the highest level of intensive

care in a residential therapeutic program which is particularly

able to address his sexualized behavior and his trauma history."

In addition, the judge's analysis does not take into account the

availability of support resources to help the mother manage her

life, including her role as a parent.20 The judge did not speak

directly to the nuanced question that the mother's situation

20DCF suggests that the mother waived arguments that
inadequate services were provided to her by failing to raise
them in a timely manner. See Adoption of Gregory, 434 Mass.
117, 124 (2001). We disagree. Although the mother perhaps
could have raised the issue more pointedly at trial, the extent
to which available supports could have compensated for the
mother's cognitive deficiencies was a theme that ran through the
life of the case.
21

posed: whether, with available assistance, the mother would be

able to leverage the outside support that both children plainly

need. To be clear, we note that we do not presume that the

answer to that question is "yes"; in the end, it may well be

that the mother's demonstrated problems with completing tasks

even with some assistance prove too profound. Our point is

simply that before we can countenance the "extreme step" of

terminating a parent's rights (citation omitted), Adoption of

Ilona, 459 Mass. at 59, further proof is warranted as to how the

mother's mental disability and other issues affect her ability

to serve the children's best interests. See Adoption of

Quentin, 424 Mass. at 888.21

In addition, we note that the judge did not squarely

address the separate question whether termination of the

mother's parental rights was warranted even if she was not fit

to assume custody herself. See Adoption of Imelda, 72 Mass.

App. Ct. 354, 360 (2008) ("Unfitness does not mandate a decree

of termination"). This is not a case where the facts dictated

21In Adoption of Quentin, 424 Mass. at 889, the children
had special needs similar to those presented here, and the
Supreme Judicial Court concluded that there was sufficient proof
"that the mother's mental deficiencies impaired her ability to
protect and care for the children." It bears noting, however,
that in that case, the trial judge had the benefit of nine days
of trial testimony with seventeen witnesses, including direct
expert testimony about the extent of the mother's mental
disability and how it affected her ability to care for the
children's special needs. Id. at 884, 887-888.
22

that the relationship between the parent and children be

severed; to the contrary, in recognition of the bond and

positive relationship between the mother and children, the judge

mandated posttermination and postadoption visitation. Nor is

this a case where the children were well-situated for adoption

or other stable, long-term placements. We observe, for example,

that in the mere five months between when Johnson moved to

Florida and the trial, Anne -- the child that all parties appear

to consider the easier one to place -- went through

approximately eight placement transitions. Again, none of this

is to say that the judge could not terminate the mother's

parental rights, and we recognize that such a step may be

necessary as a precursor to a recruited adoption. However, the

question of how termination would serve the children's best

interests deserves to be addressed directly.22

22 As Chad's reply brief eloquently argued:

"It has now been almost two years since trial and it is
unclear upon what DCF grounds [its] rosy predictions for
the adoption prospects of [Chad], who will be twelve in
November [of 2018]. He deserves to spend what little
remains of his childhood with the only stable and loving,
albeit imperfect and disabled, parental figure that he has
ever had in his life."

We note for purposes of the remand that, with Chad now having
turned twelve, the law presumes he is competent to express where
his best interests lie. See G. L. c. 119, § 1.
23

A few additional observations are in order. Although the

judge ultimately focused exclusively on whether the mother could

meet the children's special needs, the record reveals

significant additional concerns regarding her fitness. First

among these is whether the mother was causing the children's

sexualized behavior, not merely failing to address it

adequately. Unless such allegations were substantiated at

trial, however, the mother's parental rights could not be

terminated based on them. See Adoption of Eden, 88 Mass. App.

Ct. 293, 296 (2015) ("It is a bedrock principle that parental

rights may not be terminated on the basis of an unproven

allegation, even one as grave as [the sexual abuse allegation

there]"). See also Custody of Eleanor, 414 Mass. 795, 800–801

(1993) (where allegation of sexual assault was later withdrawn,

that allegation "in the absence of any corroboration or physical

evidence of sexual abuse . . . cannot be said [to establish]

parental unfitness . . . by clear and convincing evidence").

On this issue, the largely documentary record included

signposts that pointed in differing directions, and the

strongest evidence that the mother was somehow the source of the

problem was embedded hearsay (the statements attributed to

Chad). DCF did not press the judge to resolve the question of

the cause of the children's sexualized behavior, and the judge

neither did so nor improperly rested on unproved allegations.
24

We make these observations not to fault the judge -- who we

acknowledge was hamstrung by the far from perfect evidentiary

record put before her -- but to highlight the anomaly that the

most serious concerns about the mother's fitness lay

unresolved.23 We offer these observations as potential

assistance to the judge and parties as they formulate the

proceedings on remand.

The concerns just voiced apply as well to a second serious

concern about the mother's fitness on which the judge did not

rely: whether the mother is able, even with some assistance, to

meet the children's basic needs, not just their special needs.

Again, there were conflicting indications about this in the

largely documentary record. On one hand, that record appears to

indicate that DCF largely was satisfied that the mother

historically was able to meet the children's basic needs so long

as she had sufficient prompts from an aide supplied to her by

DDS or otherwise. On the other hand, the extent to which

appropriate supports were available to the mother prospectively

23The mother argues that the judge relied on the 51B and
court investigator reports beyond "primary fact" purposes and
inappropriately considered hearsay embedded in them. Putting
aside whether such arguments were adequately preserved, we do
not discern such errors in the judge's fact finding. The
problem with DCF's reliance on a mostly paper record was not
that the judge misused that evidence, but that the nature of the
evidence made it so difficult for the judge to get to the bottom
of the underlying facts.
25

was never directly explored at trial; indeed, no one from DDS

even testified. As a result, the fundamental question whether

the mother was in a position to meet the children's basic needs

was never resolved.

Our concern about the state of the record and the limited

nature of the judge's rulings are amplified by arguments the

mother has raised about the motives of DDS and its contractor,

Dare. Although no one from those entities testified, their

observations or views were reflected in the reports that were

included in the documentary record. Much of that evidence was

positive toward the mother, but it became increasingly negative

after the mother refused to return to the Brockton shared living

placement and therefore had to be housed in hotels. The mother

has raised nontrivial arguments that the views or observations

of those at DDS or Dare at that point may have been colored by

institutional bias. Those entities faced an incentive to

justify DCF's removal of the children, the argument goes,

because the presence of the children was the reason for the

expensive hotel placements and prevented DDS and Dare from

finding a suitable alternative placement for the mother (DDS's

only client in the family). DCF properly notes that courts are

to apply a presumption that public officials have acted in an

honest and impartial manner. See, e.g., Konover Mgt. Corp. v.

Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992).
26

However, as noted above, one of DCF's own reports reflects the

view that DDS and Dare sought to have the children removed for

these very reasons. Moreover, the mother's argument is not so

much that DDS and Dare personnel were acting in bad faith, but

rather that their narrow institutional mission created

incentives regarding how they observed and portrayed the

interests of the children. The absence of live witnesses

directly speaking to the mother's parental deficiencies deprived

the judge of the ability to assess the extent to which the

concerns expressed by DDS and Dare were supported by objective

fact.

While the judge's subsidiary findings regarding the

mother's compliance with her service plans are not inaccurate,

they nevertheless inaccurately leave the impression of wholesale

noncompliance. In fact, the mother made significant efforts to

improve her skills despite her disabilities and mobility

challenges. The most prominent example is her completion of the

forty-five hour parenting course, which required her to travel

to regularly-scheduled weekly classes.24 Of course, whether

completion of that course actually improved her parenting skills

24This intensive parenting course required the mother to
participate in group discussions, among other things. In
addition to completing the program, the mother received a "best
attendance award" for it.
27

is a different matter.25 To be sure, there were service plan

tasks that the mother did not complete. However, such

noncompliance must be viewed in light of the limited efforts

that DCF and DDS made to assist the mother in overcoming her

demonstrated problems in completing tasks on her own once the

children had been removed. The record contains several examples

of unexplained failures by the assigned officials to provide

support to help the mother succeed in keeping the family

together.

We additionally note some concern about the degree of

emphasis that the author of the reports, DCF witnesses at trial,

and the judge herself appear to have placed on the mother's

weight-related mobility issues. Indeed, the reference to these

issues appear to outnumber references to concerns about the

mother's mental disabilities. Yet mostly absent from the

judge's findings and rulings is an analysis of how those

mobility issues in fact help render the mother unfit.

Certainly, the judge did observe that, in light of the mobility

issues, "the services which are necessary to meet the children's

specialized needs must be convenient for the mother in order for

them to be utilized." But especially with the mother living in

25The mother testified that she learned helpful information
at the parenting course, in particular regarding how best to
discipline a child with ADHD.
28

Boston and having access to The RIDE, it is not clear whether

such theoretical constraints will matter in practice. Of

course, it is indisputable that Chad did for a period require

services located outside of Greater Boston, but the fact remains

that he was able to take advantage of those services without the

mother's rights being terminated.

In sum, although we agree with the judge that the record

raises serious concerns about the mother's capacity to address

the children's needs, we conclude that, at a minimum, further

exploration and explication is necessary before the mother's

parental rights may be terminated.26 We therefore vacate the

decrees terminating the mother's parental rights and remand this

case to the Juvenile Court for further proceedings consistent

with this opinion. We affirm the decrees terminating the

parental rights of the children's fathers.

So ordered.

26 On remand, the judge may take additional evidence.