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Appeals Court of Massachusetts.

CARE AND PROTECTION OF LEILA (and two companion cases 1).


Decided: February 01, 2021

By the Court (Neyman, Henry & Desmond, JJ.2)


The mother appeals from judgments of the Juvenile Court finding her unfit due to being unavailable to further the best interests of her children, Leila, Simon, and Alexander; adjudicating the children to be in need of care and protection; and granting permanent custody of the children to their respective fathers. The mother's parental rights were not terminated. On appeal, the mother contends that there was insufficient evidence of her being unavailable, and that the judge erred in ordering that her visitation with the children be left in the discretion of their custodians. We affirm.

Background. At the time of trial, Leila, Simon, and Alexander, were twelve, eleven, and six years old respectively. Leila and Simon have the same father, and Alexander has a different father. The mother's eldest child, Madeline,3 is not a subject of this appeal.4

The Department of Children and Families (DCF) opened the present case with the family for services in March 2013 after a report pursuant to G. L. c. 119, § 51A (51A report), was filed alleging that the children were being physically abused and neglected based in part on Leila going to school with a black eye. After an investigation pursuant to G. L. c. 119, § 51B (51B investigation), the 51A report was supported only for neglect. In April 2014, another 51A report was filed, and ultimately supported, alleging the physical abuse of Simon by Alexander's father after Simon appeared at school with abrasions on his neck. In July 2015, an additional 51A report was filed, and subsequently supported, alleging the neglect of Alexander by the mother and his father. The police had discovered the mother, Alexander's father, and Alexander sitting in a van, with Alexander not having a car seat. Alexander was reportedly crying and dirty, with bug bites all over his body and a bump on his head. During the 51B investigation, a DCF worker observed two of the children with bites on their bodies consistent with bed bugs. Alexander's father reported to the DCF worker that the apartment was infested with bed bugs, but that the children had not received any medical treatment.

In January 2016, two additional 51A reports were filed alleging the neglect of Madeline as a result of an incident at school. Madeline disclosed thoughts of harming herself with a piece of a broken mirror, and the school administration called the mother. The mother did not respond immediately, but appeared at the school one hour after the school day had ended and insisted that Madeline not be evaluated. Instead, the mother assured school staff that she would bring Madeline to the hospital. When Madeline reported to school two days later, she disclosed that she had not gone to the hospital and had not been evaluated. DCF filed a care and protection petition on behalf of the four children several days later and was granted temporary custody; the children were removed from the home and placed in the care of their maternal grandmother.

In April 2016, custody of the four children was returned to the mother on a conditional basis.5 To maintain custody, the judge ordered the mother to “provide for the children's health, safety, and welfare, including but not limited to the children's medical and therapy appointments, school attendance, and daycare.” In addition, the mother was ordered to enroll Madeline in therapy, and the mother herself was required to engage in therapy. The mother was further ordered to comply with the treatment recommendations made by her therapist and with her DCF action plan. Both the mother and Alexander's father were required to maintain a safe and clean home environment for the children. The order specifically provided that any violation could result in the transfer of custody to DCF.

In the months immediately following the temporary custody order, the children had several unexcused school absences and were tardy to school. While the mother appeared to make an effort to meet with her therapist and attended two of her scheduled therapy appointments, she also missed two of her scheduled appointments in April and June 2016. Despite attempts to contact the mother regarding in-home therapy for Madeline, the provider was unable to reach the mother and Madeline's slot was closed; Madeline was not engaged in therapy at that time. The mother and Alexander's father complied with meeting monthly with the DCF social worker, but the DCF worker observed the apartment to be dirty and unkempt. The mother and Alexander's father also enrolled in a parenting course as required by their action plans; however, they missed some of the scheduled classes and ultimately failed to complete the course.

In July 2016, the mother was admitted to a hospital after she was reportedly discovered wandering alone at night speaking about her children. She was prescribed medication, including Risperdal, Ativan, and Lithium, and when she returned home, the mother's condition appeared to be improving. A 51A report was filed several days later due to concerns about the mother's mental health. The mother did not attend any of her scheduled therapy sessions from late September 2016 to mid-October 2016, reporting on one instance that she was “too depressed to get out of bed.” On November 9, 2016, a DCF social worker conducted a home visit, and the mother informed the worker that the three youngest children had lice, and that she did not take them to the doctor's office because she did not have clean clothes for the children to wear.

On February 20, 2017, the mother was involuntarily hospitalized, pursuant to G. L. c. 123, § 12, which left Madeline, Leila, and Simon without a legal custodian. As a result, on March 8, 2017, the mother's temporary custody of the children was vacated, Simon's father was granted temporary custody of Leila and Simon, and Alexander's father was granted temporary conditional custody of Madeline while continuing to have conditional temporary custody of Alexander. At that time, the mother's visitation with the children was court ordered to be supervised. By the middle of March, the mother was released from the hospital and living with the maternal grandmother.

Following the children's placement with their respective custodians, their conditions and behavior began to noticeably improve. By the end of March 2017, Madeline and Alexander began in-home therapy, while Leila and Simon reported to school “clean and happy” and were performing “extremely well.” The director of Leila and Simon's after-school program also observed and reported an improvement in the children's behavior and Leila's hygiene.6 At that time, the mother visited Leila and Simon weekly, and visited Madeline and Alexander on a more frequent basis. On one occasion, however, in August 2017, the mother went to her prior apartment to pick up some of her belongings while Alexander's father was present and refused to leave; Alexander's father contacted the DCF worker. On another occasion in August 2017, during a visit with Leila and Simon at the maternal grandmother's home, Simon's father arrived to pick up the children and the mother began to yell and spit at him, which ultimately led to criminal charges against the mother.

The mother remained inconsistent in attending her therapy appointments, and as a result on December 20, 2017, her therapist closed her case. Despite making multiple calls to the mother each month, DCF could not contact her in early 2018. The mother eventually called the DCF social worker in April 2018, threatening to sue DCF for taking her children. The worker scheduled a meeting with the mother, however, the mother cancelled the meeting. The mother did attend the rescheduled meeting with the worker and was provided a copy of her action plan. In May 2018, the mother went to Puerto Rico and notified her DCF social worker of her whereabouts in June 2018; the mother informed the worker that she did not know when she would return because she had lost all of her “documents.” The mother eventually returned to Massachusetts in September 2018, and scheduled two appointments with her DCF social worker; the mother did not attend either appointment. The mother did meet with her worker in December 2018 and disclosed that she had not engaged in mental health services and did not have the financial resources to do so.

On January 11, 2019, the judge ordered bifurcation of the trial as it related to Madeline. On this date, the judge found the mother unfit to parent Madeline as a result of being “unwilling, [i]ncompetent, and/or unavailable,” and, consistent with the mother's wishes, the judge granted the mother's sister permanent custody until March 2019. Later in January 2019, the DCF social worker continued to have difficulty reaching the mother. The mother subsequently notified the worker that she had a new telephone number. The mother met with her DCF social worker on February 12, 2019, and at this meeting, while reviewing her action plan, the mother indicated that she had never before seen an action plan, despite having been provided plans in the past. The mother also expressed that she did not feel that she needed mental health treatment and did not understand why she would benefit from taking a parenting class. Notably, the mother was not engaged in any services at that time.

In February 2019, Leila and Simon's father reported that one of the mother's scheduled visits with Leila and Simon had to be cancelled due to the mother walking around her house naked and talking to herself. At trial, the mother denied that this event occurred. As of March 2019, each of the children were observed to be doing well in their placements. The DCF social worker observed that Leila and Simon were wearing clean clothes and had safe sleeping conditions, and that Alexander was living in a clean home and he had his own bed.

On March 27, 2019, after a hearing, the judge found the mother to be unfit as a result of her being “unavailable to further the welfare and best interests” of Leila, Simon, and Alexander, and adjudicated the children in need of care and protection. As noted supra, the judge did not terminate the mother's parental rights. The judge placed Leila and Simon in the permanent custody of their father and Alexander in the permanent custody of his father. The judge ordered visitation with the mother to be supervised and scheduled at the discretion of the children's respective fathers.

Discussion. 1. Sufficiency of the evidence. The mother argues that there was insufficient competent evidence to find her unavailable to further the best interests of the children. Unavailability is comparable to unfitness. See Care & Protection of Erin, 443 Mass. 567, 568 n.2 (2005). A judge's determination that a parent is unfit must be supported by clear and convincing evidence. Adoption of Luc, 484 Mass. 139, 144 (2020). Subsidiary findings, however, need only “be proved by a fair preponderance of the evidence.” Adoption of Peggy, 436 Mass. 690, 701 (2002). “We give substantial deference to the judge's findings of fact and decision, and will reverse only ‘where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ ” Adoption of Luc, supra, quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother contends that several of the judge's findings pertaining to her mental health are unsupported by the evidence and were improperly relied on by the judge in finding the mother unfit. She primarily challenges the fact that evidence of her mental health was introduced through DCF reports, pursuant to G. L. c. 119, § 21A, rather than through medical records or testimony by her physicians. It is important to note, however, that “first- and second-level hearsay contained within DCF reports and official DCF records is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination, should the party challenging the evidence request to do so” (footnotes omitted). Adoption of Luc, 484 Mass. at 153.

Although, on appeal, the mother correctly points out that many of the statements in the DCF reports concerning her multiple hospitalizations do not specifically identify the hearsay source, and therefore would not be admissible under Adoption of Luc, 484 Mass. at 153, she did not object to the admission of these reports at trial, and thus her argument is waived. See Adoption of Kimberly, 414 Mass. 526, 535 (1993) (“The consequence of ․ a failure to object [at trial] is to waive the objection”). Furthermore, the majority of statements concerning the mother's mental health in the DCF reports have an identified source, and even without the information regarding the mother's hospitalizations, there was ample evidence of the mother's mental health issues and deficiencies and their impact on her ability to parent the children to deem her unfit.

“Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). A parent's mental disorder “is relevant only to the extent that it affects the parent['s] capacity to assume parental responsibility, and ability to deal with a child's special needs.” Adoption of Luc, 484 Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9 (1989). Specifically, where DCF, as part of an action plan, requires a parent to obtain mental health treatment, the parent's unwillingness to do so is “relevant to the determination of unfitness.” Adoption of Luc, supra at 147, quoting Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987).

The mother admitted to DCF that she suffers from depression, and even testified at trial that she experienced a “delirious mania” at one point during DCF's involvement. Both the temporary conditional custody order and the mother's DCF action plan required her to obtain mental health treatment and comply with her providers' treatment recommendations. However, the mother was largely inconsistent in attending her therapy appointments, and this inconsistency ultimately led to her therapist closing her case in December 2017. Furthermore, the mother's psychiatrist prescribed her a number of medications to treat her mental health, but the mother refused to take these medications. The mother's psychiatrist reported to DCF that the mother was in denial about having mental health issues, which was evidenced by the fact that at trial the mother testified that she did not need and had no intention of taking medication in the future, stating instead that she was “perfectly fine.”

The judge concluded that the mother's failure to recognize the need to engage in mental health treatment has placed the children at risk and resulted in their neglect. There have been several instances where the mother has failed to appreciate the severity of the children's situation and has failed to seek out necessary assistance. For instance, when the children were discovered to have bed bugs and lice, the mother did not bring them to the doctor. Moreover, the mother's mental health has directly affected the children on many occasions,7 causing them to live in an unhygienic apartment, attend school with dirty clothing, and witness the mother's combative and unpredictable behavior.8

In addition, in May 2018, the mother left the country to go to Puerto Rico for an extended period of time without notice of her departure to DCF or a planned date of return. She frequently scheduled meetings with her DCF social worker that she failed to attend and was not consistent in engaging in recommended services. Although the mother contends that the judge's findings in this case are “scant,” and comparable to the findings in Adoption of Iris, 43 Mass. App. Ct. 95, 101 (1997), we disagree. We are satisfied that there was clear and convincing evidence that the mother was unfit as a result of her unavailability to further the best interests of the children.

2. Visitation. The mother also argues that judge erred in leaving her visitation with the children in the discretion of the children's respective fathers. The decision to order visitation rests within the sound discretion of the trial judge. See Adoption of Ilona, 459 Mass. at 66. A visitation order is appropriate only when it is in the best interests of the child, and a judicial order, rather than merely relying on the discretion of the child's custodian, is necessary to those interests. See id. at 63-65.

The mother argues that, because there was a strong bond between herself and the children, and her parental rights were not terminated, the judge should have provided her with clear visitation orders or, at a minimum, guidance as to her visitation.9 However, both fathers, as fit parents of their respective children, enjoy the presumption that “they will act in the best interest[s] of the child[ren] in making decisions regarding the child[ren], including decisions about visitation.” Adoption of Ilona, 459 Mass. at 64. The judge found that the children were doing “exceptionally well” with their respective fathers, and therefore left to the fathers' discretion whether visitation with the mother was in the best interests of their respective child. We see no abuse of discretion in that decision.

Judgments affirmed.


3.   A pseudonym.

4.   Madeline was placed in the permanent custody of the maternal aunt, but has since reached the age of emancipation.

5.   Alexander's father, who at the time was living with the mother, was also granted temporary conditional custody of Alexander.

6.   Throughout DCF's involvement, Leila struggled with enuresis and encopresis. Leila's after-school program director informed DCF that, after being placed with her father, Leila was using the bathroom regularly and no longer smelled of urine.

7.   In December 2018, one of the children reported that the mother had been talking to a wall during a recent visit.

8.   For example, in 2018 a 51A report was filed because the mother reportedly physically attacked Madeline as Madeline and Alexander were walking to the bus stop. The allegations of neglect were ultimately unsupported as they related to the mother, but supported as they related to Alexander's father because he left the children with the mother in violation of his temporary custody order and DCF instructions. As a result of this incident, Alexander's father obtained a restraining order against the mother.

9.   The mother argues that she and the children shared a strong bond, and that the judge erred in failing to make a finding addressing that bond. We disagree. At trial, the judge was informed that although the children loved the mother, they had requested that they remain with their respective fathers, and that they have been “more ambivalent about even having visitation” with the mother. This does not evince a “significant bond” requiring an order of visitation as the mother contends, and we see no error in the judge's failure to make such a finding. Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). See id. (“When a trial judge decides not to order visitation, ․ he is not required to make extensive findings if he has already made specific and detailed findings regarding the child's best interests and the determination of parental unfitness”).

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