ADOPTION OF EILEEN v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Juvenile Court, the judge found the mother unfit to assume parental responsibility for the child and issued a decree terminating her parental rights. The mother has now appealed.

Because of the constitutional rights involved, before parental rights may be terminated, there must be clear and convincing evidence that a parent is currently unfit to further the child's best interest, and that that unfitness is likely to continue indefinitely into the future. See Adoption of Ilona, 459 Mass. 53, 59 (2011) (“In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit ․ [A] judge must decide both whether the parent is currently unfit and whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary” [quotation and citation omitted]). The judge must also determine whether the child's best interests will be served by terminating the legal relationship between parent and child. See Adoption of Gillian, 63 Mass. App. Ct. 398, 404 (2005) (“Once the judge determines that a parent is unfit, she must then ascertain whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child” [quotation and citation omitted]).

Although there is sufficient evidence in the record to support the judge's conclusions with respect to both unfitness and the best interests of the child, evidence ably marshalled by the Department of Children and Families (department) in its brief before us, “[w]e do not sit as a trial court to review de novo the evidence presented by the parties.” Adoption of Paula, 420 Mass. 716, 730 (1995). It is for the trial judge to make findings of fact based upon the evidence. Indeed, “the judge's findings in a custody proceeding must be specific and detailed so as to demonstrat[e] that close attention has been given the evidence and that the necessity of removing the child[ ] from [his or her] parents has been persuasively shown” (quotation and citation omitted). Care & Protection of Martha, 407 Mass. 319, 327 (1990).

The findings of fact made by the judge in this case are unusually thin for a case involving a termination of parental rights. To give just one example, the department asserts in its brief that the child was removed from mother's custody in April 2017, after mother left the child with the paternal grandmother on April 7 and did not return as planned on April 9, resulting in the child staying with the grandmother for over a week. The department asserts that while in the grandmother's care during this period, the child fell and broke her arm, and that the child's medical care was complicated because the hospital was unable to reach mother for authorization to provide treatment. The department asserts that as a result of these events, temporary guardianship of the child was awarded to the paternal grandmother.

The judge, however, made no findings with respect to these events, which are not mentioned in her memorandum. In fact, her memorandum does not mention them at all. Reading the findings of fact leaves one with the impression that the child was removed because of an earlier event, in which the child was not picked up at the paternal grandmother's home the morning after an overnight visit. On that occasion, the paternal grandmother was unable to reach the mother until 2 p.m. the next day, following which the mother failed to pick up the child “throughout the day.” Without minimizing the seriousness of mother's failure on that occasion, it obviously was not as serious as the event that, the department asserts, actually led to the paternal grandmother being given temporary guardianship of the child. And indeed, the judge's memorandum left us with the impression that there was only the one occasion on which the mother left the child with a caregiver and did not return as promised.

Likewise, the judge did not make findings of fact with respect to many of the concerns described in the evidence. Nor did she make findings about the way in which whatever shortcomings there were did or did not affect the mother's ability to parent the child.

In short, “[t]aken together,” the facts as found by the judge do not “constitute[ ] clear and convincing evidence of the mother's current unfitness.” Adoption of Paula, 420 Mass. at 730.

“It may well be that the evidence originally produced by the department is sufficient to yield detailed and specific findings” demonstrating mother's unfitness by clear and convincing evidence. See Care & Protection of Ian, 46 Mass. App. Ct. 615, 619 (1999). But “the findings regarding the mother's over-all capability as a parent at the time of trial ․ lack the sort of specificity and detail that is required in these cases.” Id. at 618.

Consequently, we vacate the decree and follow the procedure set out in Care & Protection of Lillith, 61 Mass. App. Ct. 132, 142 (2004), “remand[ing] the case for clarification of the judge's findings” on the relevant matters. “[D]uring the pendency of [the remand proceedings] the present custody arrangements are to be maintained.” Care & Protection of Ian, 46 Mass. App. Ct. at 618. “[W]e do not by this decision require the judge to hear further testimony if [she] does not consider this necessary, but at the least [she] must hear both parties and make explicit findings on the matters” necessary to reach a determination on the questions before her (quotation and citation omitted). Care & Protection of Lillith, supra.

So ordered.

Vacated.