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Appeals Court of Massachusetts.



Decided: March 02, 2021

By the Court (Green, C.J., Meade & Rubin, JJ.2)


In 2011, following a grave injury requiring emergency surgery, the Juvenile Court -- with the mother's consent -- adjudged the three year old child to be in need of care and protection, and committed her to the custody of the Department of Children and Families (DCF). Shortly thereafter, DCF placed the child with her maternal grandmother (grandmother), who the court named the child's permanent guardian. In 2018, the mother moved for review and redetermination of the child's status, see G. L. c. 119, § 26 (c), and for termination of the grandmother's guardianship. After denial of those motions, the mother appealed, challenging both the ultimate determination of her parental unfitness, which the judge found by clear and convincing evidence, and a number of the subsidiary factual findings, which must be proved by a preponderance of the evidence. See Care & Protection of Erin, 443 Mass. 567, 570 (2005); Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). We affirm.

Subsidiary findings. With one exception, we see no merit in the mother's contention that the judge's subsidiary findings were not supported by the evidence. First, there is no indication that the judge gave improper weight to the events that gave rise to the initial care and protection proceedings in 2011. Although the focus of a review and redetermination proceeding is the change in circumstances since the prior judgment, “the judge does not start with a blank slate, but builds on findings established in the preceding stages.” Care & Protection of Erin, 443 Mass. at 570. Here, the judge did just that; his findings reference the child's injury to frame its current impact on the child and the mother's current understanding of that impact.3

Likewise, we see no sign the judge gave undue weight to the two temporary restraining orders that issued against the mother for the benefit of the grandmother. The grandmother sought the restraining orders because of an altercation between her and the mother outside the court house, the facts of which were testified to by the mother and grandmother, and recounted in an affidavit from the child, who witnessed the altercation. The judge had the full context of the restraining orders available to him, and considered them appropriately in making his findings.

The mother also argues that the judge erroneously found three of the G. L. c. 210, § 3 (c), factors applicable, each of which implicate the mother's failure to utilize services “on a regular and consistent basis.” G. L. c. 210, § 3 (c) (ii), (iv), (vi). We see no error in the judge's finding the factors applicable. The judge found that although the mother completed classes in anger management, domestic violence, and nurturing, she “has been unable to effect the changes necessary to enable her to provide for [the child's] health, safety, and well-being.” “Mere participation in the services [offered by DCF] does not render a parent fit without evidence of appreciable improvement in her ability to meet the needs of the child” (quotation and citation omitted). Adoption of Ulrich, 94 Mass. App. Ct. 668, 677 (2019).4

Lastly, the mother takes issue with the judge's finding that G. L. c. 210, § 3 (c) (xii), was applicable. This factor applies if “a condition which is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent ․ unlikely to provide minimally acceptable care of the child.” Contrary to the mother's suggestion, the statute does not require a finding of mental illness; mental illness is merely provided as an example of a qualifying condition. The judge properly could have found that the mother's consistent failure to take responsibility for her poor relationship with the grandmother (and the resulting harmful effect on the child) was a prolonged condition that would interfere with the mother's ability to provide acceptable care. See Adoption of Adam, 23 Mass. App. Ct. 922, 926 (1986) (“consistent lack of insight [and] willingness to take responsibility” support finding of unfitness).

The mother correctly points out that there was no evidence that she was unwilling to participate in family therapy with the grandmother; the judge's subsidiary findings to that effect are erroneous. We consider the error to be harmless, however, in light of the other evidence supporting the judge's conclusion that the mother is unfit to parent the child.

Unfitness. The evidence of unfitness was clear and convincing. Regardless of the mother's willingness to try family therapy, the underlying problem remained: she had a highly acrimonious relationship with the grandmother, no plans to repair that relationship, and no understanding of how harmful that was for the child. That acrimony has manifested, in front of the child, as at least one physical altercation and multiple instances of verbal abuse. Moreover, although the child's wishes regarding custody are not determinative of this case, or essential to the findings of unfitness and best interests, they are entitled to be given some weight. See Adoption of Nancy, 443 Mass. 512, 518 (2005). The child, eleven years old at the time of the hearing, and had lived with the grandmother since she was three years old and repeatedly expressed her desire to continue doing so; she “wants nothing to do with [the] mother.”5 The judge found, and the evidence reveals, that the child and the grandmother shared a strong bond.6 The mother's indifference to that bond was apparent -- she testified that her hostility toward the grandmother “shouldn't impact” the child -- and it was proper for the judge to weigh that testimony in making his determination of unfitness. See Adoption of Adam, 23 Mass. App. Ct. at 926.

In making that ultimate determination of unfitness, the judge did not fail to credit the mother's positive changes. His findings commended her, multiple times, for participation in educational and therapeutic services between 2011 and 2014. The findings also acknowledged the mother's two other children, and noted that she was their sole caretaker and that neither had ever been in DCF custody. The mother's care of her other two children may be probative of her fitness to parent the child, but it is not determinative, particularly in light of the strong bond between the child and the grandmother, the disruption the child would experience upon any separation from the grandmother, and the mother's failure to display an ability to understand the child's needs and put them before her own. The judge was free to give the evidence the weight he deemed appropriate. See Custody of a Minor, 383 Mass. 595, 600 (1981) (“A finding of parental unfitness may be predicated on the circumstances within a particular family, as they adversely affect the particular child, without regard to the general quality of parental conduct per se”); Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006) (“A parent may be fit to raise one child and unfit to raise another”).

Considering the record as a whole, we discern no error in the judge's ultimate finding of the mother's unfitness to parent the child. Likewise, we see no error in his determination that it would be in the child's best interests for the grandmother to remain her guardian.7 The orders denying the motion for review and redetermination and the motion to terminate guardianship are affirmed.8

So ordered.



3.   To the extent the mother argues that the judge improperly used the incident as a basis for application of two of the G. L. c. 210, § 3 (c), factors, we disagree. The mother's repeated verbal attacks on the grandmother, a figure the child loves, qualify as repetitive emotionally abusive conduct, see G. L. c. 210, § 3 (c) (ix), and, when considered together with the physical clash with the grandmother outside the court house, also constitute “a pattern of parental ․ misconduct,” G. L. c. 210, § 3 (c) (xiv).

4.   The mother testified that she completed “everything the courts told [her]” to do, a statement the judge partially credited.

5.   In an interview with a court investigator, the mother claimed that the child actually wanted to live with her, but was “confused.”

6.   Given the ample other evidence supporting the determination of unfitness, this finding of a strong bond was not “the determinative factor” such that additional specific findings were required under Adoption of Katharine, 42 Mass. App. Ct. 25, 30-31 (1997).

7.   Although the standards are not identical, “[t]he tests of parental unfitness and the child's best interest ‘are not separate and distinct but cognate and connected.’ ” Guardianship of Cheyenne, 77 Mass. App. Ct. 826, 829 (2010), quoting Guardianship of Estelle, 70 Mass. App. Ct. 575, 580 (2007). Here, the judge “hear[d] these cases simultaneously,” and the mother does not advance any independent grounds for error in the denial of the guardianship motion.

8.   Contrary to the mother's assertion, the judge was not required to make findings regarding DCF's decision not to advocate at the proceedings. As the mother's counsel acknowledged at the pretrial hearing, a child may argue for a finding of parental unfitness where DCF does not. Cf. Care & Protection of Benjamin, 403 Mass. 24, 26 (1988) (declining to dismiss care and protection petition where DCF-predecessor stepped out of case but father wished to continue).

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