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Appeals Court of Massachusetts.

CARE AND PROTECTION OF PAUL (and three companion cases 1).


Decided: February 09, 2021

By the Court (Green, C.J., Kinder & Englander, JJ.2)


After trial, a Juvenile Court judge found the mother unfit to parent four of her children and adjudicated those children in need of care and protection. The mother's parental rights to Nancy, Sarah, and David were terminated, while Paul was placed in the permanent custody of the Department of Children and Families (department).3 The mother's husband, who is the father of Nancy, Sarah, David, and two other children who are not involved in these proceedings (father), was also found unfit to parent Nancy, Sarah, and David, and his rights to those children were terminated.

Both the mother and the father appeal from decrees dispensing with the need for their consent to the adoption of Nancy, Sarah, and David.4 The mother also appeals from the adjudication that Paul is in need of care and protection. Both parents challenge the sufficiency of the evidence that they are unfit. The mother also claims error in the judge's findings that (1) the department made reasonable efforts toward reunification, and (2) the mother and the father displayed a lack of effort to secure adequate housing. Finally, the father contends that the department's adoption plans for Nancy, Sarah, and David were insufficient. We affirm.

Background. Following multiple nonconsecutive days of trial between September and December of 2019, the judge made 314 findings of fact and fifty-three conclusions of law that “demonstrat[e], as we require, that close attention was given to the evidence.” Adoption of Don, 435 Mass. 158, 165 (2001). We summarize the pertinent findings.

Paul, who is autistic, had been the subject of multiple reports pursuant to G. L. c. 119, § 51A (51A report), alleging neglect by the mother. The 51A reports were unsupported until February of 2013, when a department worker discovered an overwhelming odor at the home of the mother, the maternal grandmother, and six year old Paul. The worker observed that the family was living in deplorable conditions with dirty clothing and dishes everywhere, garbage throughout the home, a litter box overflowing with feces, and a floor so cluttered that it was barely visible. The department opened a case for services for the mother and Paul, which remained open throughout 2014, when the mother met the father and his five year old daughter Mary;5 2015, when the mother and the father married, lived together with Mary and Paul in an apartment in Taunton, and had Nancy; 2016, when Sarah was born; and 2017, when the mother reported being overwhelmed with Mary's care. During this period the department provided various services to the parents including autism education, a parent aide, in-home therapy, daycare, early intervention, a mentor, parenting classes, anger management groups, counseling, summer camp, clothing, and Christmas gifts.

In March 2017, police officers responded to a noise complaint at the mother and father's home and observed decomposing food on the counters, dishes stacked in the sink, piles of dirty clothes, and a stench from open bags of trash covered with flies and maggots. Shortly thereafter, the department received a 51A report alleging neglect of Mary, then age eight, after a passerby found her wandering the street alone in her pajamas. The allegations of neglect were supported after further investigation revealed that the mother and the father allowed Mary to leave the home and did not appear to understand her behavioral problems. These events, and persistent concerns about the condition of the home, caused the department to file a petition alleging that all four children were in need of care and protection.6 See G. L. c. 119, § 24.

On September 18, 2017, a 51A report was filed after the father threw Paul to the floor and punched him in the head when Paul interceded in an argument between the mother and the father. That incident resulted in criminal charges against the father that were resolved after the father completed one year of probation. As a result of this conduct, the department obtained temporary custody of all three children. One month later, Nancy and Sarah were returned to the mother's custody on the condition that the father remain out of the home. Paul was placed with a foster family.

In February of 2018, the mother stipulated to her unfitness to parent Paul and he was adjudicated in need of care and protection.7 Paul was placed in the department's permanent custody, Nancy and Sarah were dismissed from the petition, and the father resumed living in the home. Almost immediately, the parents stopped engaging in services and removed Nancy and Sarah from daycare. Over the course of the next seven months, the parents refused to cooperate with the department and repeatedly denied social workers full access to the home.

On September 30, 2018, the landlord, along with two realtors, visited the parents’ home and observed squalid living conditions. Nancy and Sarah were barricaded in a room. The police were contacted and a 51A report was filed. The department's emergency response workers, along with the police, arrived to check on the children that evening, but the parents refused to allow them to enter the home. When the police forced entry, the mother assaulted an officer.8 The department workers’ observations confirmed the squalor. Two plastic baby gates, zip-tied one on top of the other, were blocking the doorway to Nancy and Sarah's room, where both girls were located. Three year old Nancy was naked from the waist down, extremely filthy, and “covered with fecal matter.” In that room, dirty diapers covered the floor and an overturned children's toilet spewed feces. Two year old Sarah was lying in her crib on a plastic mattress without sheets and stained with feces, and was naked except for a diaper overflowing with feces. David, who was almost four weeks old, was found in a crib in the mother and the father's bedroom. The floor of that bedroom was covered with clothes, trash, dirty diapers, sanitary pads, and used condoms. In addition, the home's bathroom was dirty and the toilet was encrusted with feces, the kitchen sink was full of dirty dishes, and there was mold on food in the refrigerator. The children were removed on an emergency basis and taken to a hospital in order to be medically cleared.

Nancy and Sarah were filthy when they arrived at the hospital. The bottoms of their feet were black, dried feces was stuck to their buttocks, and each child had a diaper rash. The judge did not credit the mother's testimony that she had bathed the girls that morning, or that the house was merely “messy.”

In October of 2018, the mother and the father received a notice to quit the apartment in Taunton. Eventually, they moved into the maternal grandmother's two-bedroom apartment, where they continued to reside at the time of trial. They denied the department access to inspect this residence until August, 2019. In about the eleven months preceding trial, neither the mother nor the father secured their own housing, despite the father's employment and a housing specialist offering to assist them. This inaction, and their refusal to sign releases for the department, resulted in the loss of the family's section 8 housing voucher. The mother and father's plan at trial was to reside in the maternal grandmother's two-bedroom apartment with all the children.9

Discussion. 1. Unfitness. “To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of the evidence, that the parent is unfit to care for the child and that termination is in the child's best interests.” Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). “We give substantial deference to a judge's decision ․ and 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 Ilona, 459 Mass. 53, 59 (2011).

Here, the mother's and the father's failure to maintain their home in a minimally clean and safe condition resulted in the removal of the children twice over the course of six years. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987) (failure to keep stable home environment relevant to determination of unfitness). Neither the mother nor the father have demonstrated an ability to resume full responsibility for the children, and the mother does not have a realistic plan for managing Paul's autism while also parenting her other young children. See Adoption of Paula, 420 Mass. 716, 730 (1995). Notwithstanding the mother's and the father's intermittent participation in services, which the judge took into consideration,10 they have neither recognized nor fully addressed their parenting deficiencies. “[M]ere participation in ․ services does not render a parent fit” unless the parent shows some appreciable improvement in his or her ability to meet the children's needs. Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019). See Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999) (inability to demonstrate any benefit derived from services relevant to finding of unfitness).

The judge found that the mother and the father could have, but did not, (1) address the children's living conditions, or (2) obtain adequate housing after the children were removed the second time. These findings were based on the judge's assessment of the witnesses’ credibility and are entitled to “substantial deference.” Adoption of Luc, 484 Mass. 139, 144 (2020). See Custody of Eleanor, 414 Mass. 795, 799 (1993). Having carefully reviewed the lengthy record in this case, we see no reason to disturb the judge's weighing of the evidence, or his conclusion that the evidence of parental unfitness was clear and convincing. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).11

2. Reasonable efforts at reunification. Before termination, the department must make reasonable efforts to restore a child to the care of the natural parents. See Adoption of Ilona, 459 Mass. at 60. The mother argues that the department failed in this regard because it did not incorporate all the recommendations of the appointed court investigator. The department and the children, Nancy, Sarah, and David, respond, in part, that the mother waived this issue because she failed to raise it at trial. We need not decide whether the mother properly preserved this argument because we conclude that it has no merit. The department provided the family with multiple services designed to assist the mother and the father with their parenting skills over the course of six years. These efforts fulfilled the department's legal obligation. See Adoption of Willow, 433 Mass. 636, 649 (2001). The record shows that the mother and the father failed to take advantage of these services and to fulfill their parental responsibilities. In these circumstances, fault does not lie with the department. See Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997).

3. Adoption plan. The father argues that the department's adoption plans for Nancy, Sarah, and David were not sufficiently detailed. We disagree. An adoption plan need not be fully developed to support a termination order, but it must provide enough information about the proposed placement to allow for meaningful evaluation by the judge. Adoption of Varik, 95 Mass. App. Ct. 762, 770 (2019). Here, there were no suitable placements with other family members. The plan was for preadoptive placement of the children with one woman who had significant experience with children and was willing to care for all three siblings. At the time of trial, the children were being transitioned from their foster home placements to the preadoptive mother's home. If that transition failed, the plan for each child was adoption by recruitment. The adoption plans provided enough information for the judge to conduct a meaningful evaluation.

Judgment affirmed.

Decrees affirmed.


3.   Although the judge found the mother unfit, the judge did not terminate her parental rights to Paul. Paul's father, who was also found unfit, is not a party to this appeal.

4.   Paul's consent to adoption was necessary because of his age, and he did not consent.

5.   A pseudonym.

6.   At that time, the department only requested, and was granted, temporary custody of Mary.

7.   The judge was entitled to review and redetermine the need for care and protection of Paul pursuant to G. L. c. 119, § 26 (c).

8.   The mother was placed under arrest and removed from the home. A charge of assault and battery on a police officer was continued without a finding after the mother successfully completed probation.

9.   The mother and the father had another child together, John (a pseudonym), who was placed in the department's custody shortly after his birth in August 2019. John is not the subject of this appeal.

10.   We are not persuaded by the father's claim that the judge ignored “several troublesome facts.” “Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary.” Adoption of Ilona, 459 Mass. at 59-60.

11.   The mother's unfitness likewise applies to Paul and that determination by the judge was supported by clear and convincing evidence, even if the mother's parental rights as to Paul were not terminated. See Adoption of Flora, 60 Mass. App. Ct. 334, 342 (2004). It appears that Paul was returned to the mother's custody after the appeal was entered in this court.

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