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Appeals Court of Massachusetts.

ADOPTION OF SANTIAGO (and a companion case 1).


Decided: February 25, 2021

By the Court (Sullivan, Massing & Englander, JJ.2)


After a trial that was subject to several delays, a judge of the Juvenile Court found the mother currently unfit and terminated her parental rights with respect to her children, fraternal twins Santiago and Samuel.3 The judge adjudicated Santiago and Samuel to be in need of care and protection, committed them to the permanent custody of the Department of Children and Families (department), and ordered the issuance of decrees dispensing with the mother's consent to adoption.

On appeal, the mother contends that the judge's finding of her unfitness was not supported by clear and convincing evidence, and that obvious errors in the judge's findings of fact demonstrate an inattention to the evidence. We affirm.

Discussion. The family has a lengthy history of department involvement, which began before the twins’ birth. Santiago and Samuel were born to the mother at twenty-five weeks gestation. Because of their prematurity, the twins had health issues that required significant medical attention, including the regular administration of medication and the use of specialized medical equipment. Samuel needed to wear a helmet, and at some point both twins, and later only Samuel, required oxygen monitoring. Santiago was discharged from the hospital to his parents before Samuel, whose health was more fragile.

The department initiated the instant care and protection petition in June 2011, when the twins were about four months old, after a report was filed under G. L. c. 119, § 51A (51A report), alleging medical neglect of Samuel. The department obtained emergency temporary custody of the twins. Santiago was returned to his parents’ care and custody shortly thereafter, while Samuel remained in the department's custody for a little more than one month. While this petition was pending, the twins were placed in the department's care and custody several times.4 In December 2015, the department changed its goal for Santiago and Samuel to adoption. Trial began on August 1, 2016, when Santiago and Samuel were about five years old. After multiple continuances, trial concluded on March 2, 2018.

1. The mother's fitness. The judge found by clear and convincing evidence, which the record supports, that the mother was unfit to care for Santiago and Samuel. In particular, the mother had difficulty providing proper medical care for and managing the health of Santiago and Samuel, keeping a clean home,5 and maintaining her own and the twins’ personal hygiene. The mother also faced significant challenges managing her own physical and mental health. She had cognitive delays, bipolar disorder, high blood pressure, and kidney failure, among other conditions.6 She struggled especially with the serious complications of her kidney failure. During the course of the petition, her housing was at times unstable.

The mother also had a history of relationships with abusive partners, including the twins’ father, who faced serious substance use issues.

To support a finding of parental unfitness, the judge's findings must “show [the parent has] ‘grievous shortcomings or handicaps that would put the child's welfare ․ much at hazard.’ ” Adoption of Bea, 97 Mass. App. Ct. 416, 427 (2020), quoting Petition of New England Home for Little Wanderers, 367 Mass. 631, 646 (1975). The findings need to demonstrate “more than ineptitude, handicap, character 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). “To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ ” Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011).

The judge concluded that the mother's unfitness “stem[med] from [her] ․ inability to manage her own healthcare, inability to manage the healthcare of her children, instability in housing, instability in relationships, severe mental instability, inability to provide an emotionally and physically safe home environment, inability to recognize inappropriate characters to bring around the children, inability to effectively and appropriately discipline and manage the children's behavior.” The evidence supports this conclusion. The judge also applied the statutory factors outlined in G. L. c. 210, § 3 (c), in terminating the mother's parental rights. See Adoption of Bea, 97 Mass. App. Ct. at 427.

Without challenging any specific finding concerning her unfitness, the mother contends that the evidence does not clearly and convincingly support the judge's conclusion that she is unfit to parent Santiago and Samuel. Instead, the mother contends that the evidence shows “that [she] was capable of forming warm and loving bonds with the children, despite the lengthy periods when they were removed from her care.” While this may be true, the mother's love and affection for the twins does not overcome the clear and convincing evidence of her unfitness.7

The mother states that “even [the department] believed she was fit to parent [the twins’ older sister] and left her in the mother's custody.”8 However, the mother rightly does not argue that this means she was fit to parent Santiago and Samuel. “A parent may be fit to raise one child but not another.” Guardianship of Estelle, 70 Mass. App. Ct. 575, 581 (2007). “Beyond that, the assessment of parental fitness must focus on the children actually involved in the proceedings, with their specific needs, interests, and requirements.” Care & Protection of Olga, 57 Mass. App. Ct. 821, 830 (2003).

The twins’ special needs were different from the needs of the older sister. Born at twenty-five weeks, they required an extremely clean environment due to their own medical conditions. The judge's finding that the mother was unable to attend to her own complex medical needs, or maintain personal hygiene, much less that of Santiago and Samuel, was fully supported by the evidence.

Furthermore, the mother's observation that she “was at least partially compliant with a wide variety of [the department's] services” does not demonstrate adequate engagement or progress, nor does it contradict the judge's findings that “[a]t times [the m]other has flat out failed to participate in services,” and that even when she did participate, “it [was] partial participation, with little to no significant progress being made.” See Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019), quoting Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003) (“mere participation in the services does not render a parent fit ‘without evidence of appreciable improvement in her ability to meet the needs of the child[ren]’ ”). Indeed, the mother did not provide the department with documentation that she had engaged in or completed any of her service plan tasks, including services to address domestic violence, mental health, and parenting skills.

As the record supports the judge's findings and conclusions concerning the mother's unfitness, we discern no abuse of discretion or error of law. See Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012).

2. Errors in the judge's findings. The mother challenges the reliability of the judge's findings based on certain errors in the recitation of the procedural history.9 Indeed, the nine paragraphs reciting the procedural history do not correspond with any of the events noted on the docket and appear to be cut and pasted from another case. Most troubling, in three of those paragraphs the judge wrote that the mother failed to appear for trial and that she drew a negative inference from her absence; however, the three dates listed were all before the trial in this matter even began. The mother was in fact absent from trial on four other days; however, as three of those absences were excusable for health-related reasons, it would be error to draw a negative inference from them. See Adoption of Helga, 97 Mass. App. Ct. 521, 525 (2020) (“adverse inference [may] be drawn against a parent who, having notice of the proceedings, is absent from a child custody or termination proceeding without an adequate excuse”). As the mother does not make any argument in her brief that the judge erred in drawing an adverse inference from her absence, and it does not appear that the judge truly did,10 we do not address the issue further.11

These errors do not, as the mother argues, demonstrate that the judge was inattentive and failed to pay close attention to the evidence. The bulk of the judge's findings and conclusions are “specific and detailed,” Custody of Eleanor, 414 Mass. 795, 799 (1993), and are supported by the record, demonstrating that the judge gave the evidence the “close attention” it required, Adoption of Nancy, 443 Mass. 512, 515 (2005). Taken as a whole, the judge's findings support the ultimate conclusion that the mother was unable to parent Santiago and Samuel, and that the termination of her parental rights was in their best interests.

Decrees affirmed.


3.   The twins’ father passed away in April 2017 due to an overdose, and proof of death was filed in the Juvenile Court in October 2017.

4.   In November 2011, the twins were removed from their parents’ custody for about one month. They were removed again in January 2013 due to neglect. The twins were eventually transitioned to the father's care and custody, however, in January 2015, they were removed because of the father's substance use.

5.   She also declined to seek a different home for her two cats, which was recommended in light of the twins’ health problem.

6.   Midtrial, the mother's trial counsel initiated an evaluation of the mother's competency to participate in the proceedings. She was deemed competent and continued to participate.

7.   While the judge found that the mother was unfit to care for Santiago and Samuel, this says nothing of her love and affection for them. “Despite the moral overtones of the statutory term ‘unfit,’ the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the children.” Adoption of Lisette, 93 Mass. App. Ct. 284, 285 n.2 (2018).

8.   This assertion lacks a reference to the record or to a time frame. The older sister, who is not the subject of this appeal, was almost fourteen years old at the time the trial began. She was removed from the mother's and the father's custody in January 2013 and placed in the department's custody; custody eventually was returned to the father. In January 2015, the department again received custody of the older sister, who was placed in foster care. According to both the mother's and the department's briefs, the older sister was dismissed from the petition after the trial ended. The record is unclear as to where the older sister was placed thereafter.

9.   The mother also challenges the judge's tally of the 51A reports filed against the family. However, 51A reports “are admissible for the limited purpose of setting the stage.” Mass. G. Evid. § 1115(b)(2)(A) (2020). Any error in counting the number of 51A reports is insignificant.

10.   Aside from the three paragraphs in the procedural history, the judge mentions adverse inferences only two times: once where she draws a negative inference from the mother's refusal to meet with the court investigator, and once in a boilerplate paragraph discussing the legal ramifications of a parent's failure to testify, which the judge did not apply to the facts of this case. The three erroneous references to the mother's absence do not appear to enter into the judge's ultimate findings or conclusions.

11.   The mother also points to the final paragraph in the procedural history where the judge states that the father stipulated to his unfitness to parent Santiago and agreed to the termination of his parental rights on the last day of trial. Again, these statements are untethered to the facts of the case. However, elsewhere in the findings the judge states, correctly, that the father died of an overdose. The error in the procedural history had no bearing on the judge's findings with respect to the mother.

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