CARE AND PROTECTION OF WAYLON (And a Companion Case).

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-866

CARE AND PROTECTION OF WAYLON (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, a judge

adjudicated the mother unfit to parent Waylon (born in 2013) and

Peter (born in 2017), awarded permanent custody of Waylon to his

father, and awarded permanent custody of Peter to his father.

The mother appeals, arguing that the Department of Children and

Families (department) failed to meet its burden of proving her

to be unfit, failed to make reasonable efforts to reunify the

family before removing the children, and that her constitutional

rights were violated. We affirm.

Background. 1. History with the department. We summarize

the facts as found by the judge, supplemented by uncontroverted

facts from the record. The mother and Waylon's father met in

2010 and began dating. When Waylon was born in 2013, they lived

1 Care and Protection of Peter. The children's names are
pseudonyms.
together in Boston. Their relationship lasted until 2015, and

they coparented Waylon from 2013 to 2015. During that time,

Waylon's father was incarcerated twice, and the mother moved

twice, ultimately residing in Dorchester, where she met Peter's

father in 2014. The mother and Peter's father lived together

briefly in Brockton following Peter's birth in 2017. Within a

few months, however, Peter's father moved out of the Brockton

apartment.

The department first became involved with the family in

2013 due to allegations of domestic violence between the mother

and Waylon's father in the presence of Waylon.2 In 2015, the

department filed a care and protection petition based on

concerns of neglect of Waylon by the mother and his father.

Temporary custody was awarded to the mother before the petition

was ultimately dismissed in 2016.

In 2017, the department received a report pursuant to G. L.

c. 119, § 51A (51A report), alleging neglect of Waylon by the

mother. The report alleged that the mother repeatedly left

Waylon unattended in the hallway when dropping him off at day

care and that Waylon was frequently picked up late.

2 Waylon's father has a lengthy criminal record, and there were
previous incidents of domestic violence between him and the
mother. While incarcerated, Waylon's father participated in
domestic violence and batterer's courses, and at the time of
trial, the department had no current concerns about domestic
violence by him.

2
Additionally, a teacher assisting Waylon in the bathroom

observed dried feces stuck to his genitals, legs, and socks.

In November 2019, the mother and the two children moved

into a maternal aunt's apartment. The mother and the children

slept on an air mattress on the floor of the living room. On

June 16, 2020, the department received three 51A reports

alleging neglect of Waylon and Peter by the mother. On that

date, Peter's father had gone to the apartment to check on the

children due to his concerns that the mother had left the

children home alone in the past. When he told the mother that

he was going to check on the children, she responded that Peter

did not need to be picked up, and she wanted Peter to remain

with Waylon. However, she sent a text message while Peter's

father was on his way, asking him to check on the children. He

entered the unlocked apartment and found the children alone in

an unsanitary apartment with rodent feces, trash, and urine

stains on the floor. Additionally, there was moldy food in the

kitchen, and the bathtub and bathroom were stained with dirt and

grime.

Peter's father called 911 upon his arrival, and emergency

medical services and the police responded to the home. The

mother was not present while emergency personnel were at the

home. Waylon and Peter were transferred to a local hospital,

where emergency response workers from the department interviewed

3
them as well as the mother and Peter's father. Waylon told the

department that the mother had left him alone in the past when

she went to work.3 Peter's father reported that this was the

second time he had found the children alone while in the

mother's care, and he showed photographs he had taken two to

three weeks prior depicting trash and rodent feces on the floor

of the home. He also reported that Peter had bite marks on his

cheek, which he believed were from mice.

Upon questioning by the department, the mother denied that

she had left the children alone and told the department that she

left them in the care of their maternal uncle. The mother was

unable to provide a clear explanation for where the maternal

uncle was during the emergency response at the home. Initially,

she stated that he smoked on the porch every thirty minutes but

then told the department that sometimes he smoked on a bench

away from the home, so he may not have heard the emergency

personnel arrive. The judge did not credit the mother's

testimony that she left the children in the care of the maternal

uncle, because the uncle was not present when Peter's father

arrived and did not return to the apartment until sometime

later.

3 The judge considered statements made by the children not for
the truth of the matter, but for the children's state of mind.

4
A seventy-two hour hearing was held on June 22, 2020, and a

different judge found that exigent circumstances justified the

children's removal and that the department made reasonable

efforts to avoid removal. The department was granted temporary

custody of both children. The department placed Peter with his

father. The department initially placed Waylon in a foster

home, and then with his father in New Jersey in December 2020

after an Interstate Compact on the Placement of Children (ICPC)

was approved. A trial was held in May 2021. On November 3,

2021, the judge entered judgments finding the mother unfit to

care for the children and adjudicated the children in need of

care and protection. Permanent custody of each child was

granted to his father. The mother's parental rights were not

terminated. The mother timely appealed.

2. Mother's mental health. Throughout her involvement

with the department, the mother made multiple statements that

raised concerns about her mental health. The mother told the

department that Peter's father made the June 16, 2020, 51A

reports as retaliation for the mother's choice to be celibate in

their relationship, and that he was sleeping with the children's

maternal aunt. In August 2020, the mother told a court

investigator that she moved to Rhode Island because she believed

Peter's father was trying to kill her. She also reported that

he broke into her home and had obtained her computer passwords

5
and deleted records concerning discoveries she had made about

him. Additionally, the mother reported that he would come to

her home at 2 A.M. and kick in her window to see Peter. The

mother made similar statements during parenting classes, which

the class facilitator found concerning. The judge did not

credit the mother's accusations against Peter's father and found

them to be indicative of her poor mental health.

The mother exhibited inappropriate behavior during virtual

visits with Waylon in 2020, which included telling him not to

trust anyone in his foster home. Additionally, a discussion

between the mother and Waylon about his desire to live with his

father made Waylon so upset that he ran out of the social

worker's car and into the street. During a virtual visit in

September 2020, the mother told Waylon, "I know people are

trying to kill me, but I am not going anywhere. I know they're

trying to kill us."

The mother vacillated between denying that she had a mental

illness and informing the department that she was receiving

treatment but refusing to sign a release of information to

confirm treatment and permit review of her treatment records.

Although the mother's action plan required her to seek mental

health treatment, the department was unable to confirm her

participation. The mother refused to undergo a

neuropsychological evaluation at the request of the department

6
because she did not believe that she had a mental illness.

Later at trial, however, the mother testified that she did

undergo an evaluation but was unable to provide the results to

the department. Despite reporting that she did not have a

mental illness, the mother also informed the department that she

had participated in therapy from September 2020 to February

2021, she but refused to sign a release of information. She

later testified that she no longer attended sessions because her

therapist informed her that she no longer required therapy.

3. Child care plans. At the time of trial, Waylon's New

Jersey social worker had conducted monthly visits and found that

Waylon had his own bedroom in his father's apartment and a good

relationship with his stepmother, whom his father married in

2021. Since moving to New Jersey, concerns that the department

had about Waylon's mental and behavioral health resolved.

Additionally, at the time of trial, Waylon and his father were

working with a family therapy team that was assisting his father

in accessing additional community resources for Waylon.

At the time of trial, Peter's father had been employed as a

bus driver for seven years. He was sharing a two-bedroom

apartment in outside of Boston with his brother, and Peter had

his own bed. While living with his father, Peter received early

intervention services until he aged out of the program. Peter's

7
father testified that he planned to seek additional services for

a speech impediment identified when Peter began preschool.

After the children were removed from her care, the mother

moved to an apartment in Rhode Island. During a virtual tour,

the department observed the apartment to be safe and clean.

However, the mother was unable to articulate a suitable care

plan for the children, and her testimony shifted depending on

the question being asked. For example, the mother stated that

she could not visit Waylon in New Jersey because she did not

have a reliable car, but she later testified that she did have a

functioning car for use in her child care plan. The judge did

not credit the mother's testimony on this issue, as she found it

evolved significantly when the mother was questioned, suggesting

that she did not have a plan.

Discussion. 1. Current parental unfitness. Without

challenging any specific findings, the mother contends that the

evidence does not clearly and convincingly support the judge's

conclusion that she is unfit to parent Waylon and Peter.4

4 The judge issued ninety-four detailed findings of fact and
thirty-seven conclusions of law. Although the mother did not
challenge any specific finding as being clearly erroneous, she
argues that the maternal uncle's arrival before the children
were removed on June 16, 2020, "cast[s] doubt on the idea that
they were home alone." The judge did not credit the mother's
testimony that the maternal uncle was supervising the children
because he failed to present himself when emergency personnel
initially responded to the home and did not appear until
sometime later. See Petition of the Dep't of Social Servs. to

8
"Parental unfitness is determined by considering a parent's

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

child's particular needs, affections, and age." Adoption of

Anton, 72 Mass. App. Ct. 667, 673 (2008). A finding of parental

unfitness must be supported by clear and convincing evidence.

See Adoption of Katharine, 42 Mass. App. Ct. 25, 27 (1997).

Here, the judge's subsidiary findings were "proved by a

preponderance of the evidence," establishing by clear and

convincing evidence that the mother was unfit. Adoption of

Anton, 72 Mass. App. Ct. at 672. The judge properly considered

past instances of neglect, including the 51A report filed by the

employees at Waylon's preschool, in concluding that the mother

was unfit at the time of trial. See Adoption of Carla, 416

Mass. 510, 517 (1993) (prior history may be considered for

prognostic value); Adoption of Diane, 400 Mass. 196, 204 (1987)

("judge could properly rely upon prior patterns of ongoing,

repeated, serious parental neglect . . . in determining current

unfitness"). The record amply demonstrates that the mother

failed to provide the children with adequate adult supervision,

which was evident when emergency personnel arrived at the

apartment in June 2020 and found the children, who were two and

Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986)
("judge's assessment of the weight of the evidence and the
credibility of the witnesses is entitled to deference" [citation
omitted]).

9
seven at the time, home alone in a filthy apartment. See

Adoption of Daniel, 58 Mass. App. Ct. 195, 202 (2003). See also

Care & Protection of Three Minors, 392 Mass. 704, 713 n.11

(1984) (appropriate for judge to consider cleanliness of living

conditions in consideration of fitness).

The mother's undiagnosed and untreated mental health issues

were also a relevant consideration for the judge. See Adoption

of Luc, 484 Mass. 139, 146-147 (2020) (failure to recognize need

for or to engage consistently in treatment is relevant to

determination of unfitness). The mother's repeated contentions

that she feared Peter's father was trying to kill her, as well

as her inappropriate comments to Waylon, are indicative of her

poor mental health. The mother's refusal to adhere to the

department's action plan resulted in her mental health

challenges remaining undiagnosed and untreated. See id. at 146

n.17 ("Here, the concern for the child is not that the mother

has mental health challenges, but that those challenges remain[]

largely unaddressed, and even unacknowledged"). The nexus

between the mother's mental health and her fitness as a parent

was evident in Waylon's reactions to his virtual visits with the

mother. See Adoption of Querida, 94 Mass. App. Ct. 771, 777

(2019) ("mother's inappropriate behavior at visits [was]

directly related to her fitness"). See also Care & Protection

of Bruce, 44 Mass. App. Ct. 758, 761 (1998) (when past conduct

10
predicts future parenting ability, judge not required to wait

for disaster to happen). Overall, the mother's refusal to

engage with services, as outlined by her action plan, affected

her ability to be a fit parent. See Adoption of Luc, supra at

147.

2. Best interests. "At the core of the [parental fitness]

inquiry is the question of what is in the best interests of the

child[ren]." Adoption of Katharine, 42 Mass App. Ct. at 28.

The judge's findings that Waylon and Peter's best interests

would be served by granting permanent custody to their

respective fathers were supported by clear and convincing

evidence. The judge found that both homes were safe and

adequate for the children, and both children were receiving

necessary services. Waylon's mental and behavioral health had

improved since his placement with his father, and Peter had

received early intervention services. Both children were

adequately supervised by qualified adults before and after

school.

In contrast, the mother repeatedly denied that she had left

the children alone in the past and was unable to articulate a

suitable care plan for the children. The judge was particularly

concerned that the mother refused to acknowledge the flaws in

her initial child care plan, finding that her lack of

understanding suggested she would likely repeat the behaviors

11
that led to the filing of 51A reports. See Care & Protection of

Bruce, 44 Mass. App. Ct. at 761. The evidence supports the

judge's conclusion that the best interests of the children would

be served by granting permanent custody to their respective

fathers based on the stable and safe environments that the

fathers were able to provide and the mother's lack of insight

regarding proper child care. See Adoption of Lisette, 93 Mass.

App. Ct. 284, 296-297 (2018).

3. Other claims. The mother argues that the department

did not make reasonable efforts at reunification. However,

because the mother failed to raise this in the Juvenile Court

and did not file an abuse of discretion motion, it is waived on

appeal. See Adoption of West, 97 Mass. App. Ct. 238, 242

(2020). The mother also argues, for the first time on appeal,

that the entry into her home by Peter's father and the

photographs that he took depicting the conditions where the

children lived violated her rights under the Fourth Amendment to

the United States Constitution. Because the mother did not

raise this claim below, it cannot be raised for the first time

on appeal and is therefore waived. See Boss v. Leverett, 484

12
Mass. 553, 562-563 (2020) ("issues not raised below cannot be

argued for the first time on appeal").

Judgments affirmed.

By the Court (Blake, Grant &
Smyth, JJ.5),

Clerk

Entered: May 9, 2023.

5 The panelists are listed in order of seniority.

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