CARE AND PROTECTION OF KODA v. << (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is a tragic case. The facts we recite are taken from the detailed findings of fact made by a Juvenile Court judge following a trial. When he was nine years old, the child was removed from the parents’ care by the Department of Children and Families (Department or DCF). Due to its uninhabitable condition, the house in which the child had been living with the parents had been condemned. Among other things, the house was full of garbage and animal feces. The parents had been hoarding and the exits from the house were blocked. There were twenty-two cats living in the house, a mouse infestation that was visible from the outside, and the odor of cat urine emanating from the house that could be detected from the outside.

The child was the victim of neglect at the time of his removal from the parents. He was allegedly being homeschooled by the parents -- although no program had ever been approved by the school department -- and did not know the letters of the alphabet or any numbers. He had not seen a doctor in almost three years “because the parents did not believe in seeing a doctor unless one is sick.” The child's dental care had also been neglected. He had a root canal at age ten, and he had rotting teeth that eventually had to be surgically removed. The judge found that at the time of his removal, the child had not been toilet trained by the parents and experienced encopresis. Although the father argues that this factual finding is clearly erroneous, there is certainly evidence in the record supporting the judge's conclusion. The child's pediatric gastroenterologist found no medical cause of his encopresis and stated that treatment of the child soiling himself was a matter of his own will, which could suggest that it would not be a problem if he had been toilet trained by his parents; and, when he first came into foster care, the child would go in the corner of his room and defecate when he felt he had to go to the bathroom. The child's encopresis improved after he was removed from his parents and placed in foster care.

The child is obviously a remarkable person. DCF enrolled him in school -- initially, he was required to attend first grade despite his age, given the absence of education he had been provided. By the time of trial, however, he was fourteen years old and in sixth grade. He received “A” and “B” grades in classes and had friends and a social life. He was eventually placed in a foster home that was not a preadoptive resource, but in which the foster mother had agreed to keep the child with her for as long as was necessary.

On March 5, 2019, the Department filed a care and protection petition pursuant to G. L. c. 119, § 24, and was granted emergency temporary custody of the child. A judge granted the Department continuing temporary custody, after a hearing on March 14, 2019. On April 26, 2024, a different judge (trial judge) approved the Department's permanency goal of adoption and determined that the Department's efforts to achieve reunification had been reasonable. On September 24, 2024, after a trial on the merits of the Department's petition, the trial judge concluded that both parents were unfit and that the child was a child in need of care and protection. The trial judge did not determine that it was in the child's best interest to terminate the parents’ rights. On August 11, 2025, the trial judge issued findings of fact and conclusions of law.

The parents and the child timely appealed. The correctness for each parent of the finding of unfitness is the central question before us.

1. Standard of review. To find a child in need of care and protection, there must be “an affirmative showing of parental unfitness” (citation omitted). Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014). A judicial finding of unfitness must be supported by “ ‘specific and detailed’ findings that demonstrate parental unfitness by clear and convincing evidence” (citation omitted). Care & Protection of Gaston, 106 Mass. App. Ct. 450, 456 (2026). We defer to the judge's findings of fact unless they are clearly erroneous. Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).

2. Mother's fitness. Neither the parents nor the child argues that the mother is fit to parent the child. That she is not was shown by clear and convincing evidence. Among other things, due to health reasons, she lives in and is considered a long-term resident of a nursing facility that is an hour and forty-five minutes away from the father. But the trial judge found other reasons for her unfitness, including the mother's lack of insight into what was required to reunify safely with the child, which were also demonstrated by clear and convincing evidence.

3. Father's fitness. a. Taking account of father's progress. Both the mother and the father argue that the trial judge erred in finding the father unfit. The father argues that the finding is based on outdated or stale information and that the trial judge did not take the father's progress into account. But the trial judge did explicitly recognize progress that the father had made and concluded that the evidence demonstrated that despite that progress, he was not, at the time of trial, fit to parent the child. The trial judge found with adequate support, inter alia, that the father does not know what a safe home is; cannot adequately protect the child from abuse or neglect he might experience from the mother's parents, under whose care the father would put the child; lacks the insight to be fit to further the child's schooling; cannot function independently of the mother; and is unfit to make decisions to further the welfare of the child.

The trial judge specifically noted the progress the father made, finding that,

“in the several months before the trial commenced, Father in particular began to develop insight and develop a limited understanding of what would be required for [the child] to safely reunify. However, it remains clear to the court, and the court finds, that he has not made sufficient progress to safely parent [the child] at this juncture. His continued resistance to educators and medical providers, and his lack of a supportive plan to manage his own health as his mobility continues to deteriorate, prevent reunification. He remains unfit.”

The findings established by clear and convincing evidence that despite whatever progress he made, the father remained at the time of trial unfit to parent the child.

b. Other evidence of unfitness. The trial judge concluded that, “If the parents cannot articulate and understand their own medical, mental health, and situational needs or limitations, it is unlikely they will be able to do so for [the child]. As such, neither parent can provide minimally acceptable care to [the child].”

As to the child's educational and medical needs, the trial judge concluded,

“[The child] loves school and [the parents] say they will have him continue to attend, [but] the court finds that they lack the capacity to advocate appropriately for his learning needs and would undermine [the child's] education if he were to return to them. Similarly, the parents are contentious with doctors and discourage [the child] from cooperating with medical care. The parents lack the capacity to advocate appropriately for his medical needs and would undermine his treatment if he were returned to them. This renders them unfit.”

The trial judge further concluded that

“throughout the case, the parents continued to lack understanding of [the child's] educational and medical needs, despite being included in [educational and medical] appointments for a lengthy period of time. The court finds that the parents’ oppositional behavior with medical and educational planners would continue into the future to a near certainty, such that reunification with them would lead to the same neglect that [the child] suffered while in their care.”

The father argues that the trial judge abused her discretion by drawing an adverse inference from the father's unwillingness to disclose the nature of his disability and his medical records. That is incorrect. The trial judge found based on the evidence that the father's mobility is declining and he has failed to get the treatment that he needs. It was reasonable for the trial judge to infer that the father's ability to care for the home and for the child will, without assistance, diminish as his condition progresses.

c. Child's age as it relates to fitness. The father also argues that since the child is now fourteen years old, the requirements for his care are different in material ways with respect to this case than they were when he was nine. We disagree with what he says specifically. For example, it is not safe for the child to be left with a caregiver who has repeatedly overdosed, once in front of him, even if the child is fourteen and might be able to report such an event.

4. Other findings. a. Findings of fact. Both parents argue that a number of other findings of fact are clearly erroneous. For example, the father argues that the trial judge ignored that the house was currently habitable. Even assuming the truth of this assertion, the fact that the house was habitable is not dispositive. Furthermore, there were ongoing issues with trash and cats, among other things. As described above, the parents also argue that the findings they failed to toilet train the child are clearly erroneous. They say the fact that the trial judge found the father no longer owned the house, but that the mortgagee did, was clearly erroneous. They argue that their desire to change the child's school was improperly characterized as “go[ing] behind the Department's back.”²

Again, we will assume without deciding that both parents and the child's assertions are correct regarding all of the findings discussed above. But even if the findings they point to were not considered, the basis for the trial judge's conclusions about the numerous ways in which the parents remain unfit are supported by overwhelming evidence and are sufficient to meet the Department's burden of proof.

b. Child's age as it relates to fitness. Both parents also argue because the child is now fourteen, not nine, this means that his requirements for care are now different than they were when he was nine. While those requirements are different, the trial judge was aware of the child's age and did not ignore those differences in reaching her conclusions.

c. Goal of adoption. Citing to no legal authority, the father complains that where the trial judge concluded that adoption is not in the best interests of the child, it was not appropriate for her to approve a plan that has the goal of adoption. But the trial judge's conclusion, that it was not at the time of trial in the best interests of the child to terminate parental rights, is not the same as concluding that the goal of adoption would not be in the child's best interests

We do recognize that the child, who is over fourteen years old, now has the power to veto any adoption, G. L. c. 210, § 2, and that he said at the time of trial that he would do so, regardless of the adoptive resource. However, the child's position does not render it impermissible for the Department to maintain adoption as its goal for the child's permanency. Should the Department find an actual adoptive resource, the question whether the child will veto that adoption must be assessed considering the circumstances at that time.

Accordingly, we conclude that the child's current intent to veto any adoption did not require that the goal be changed to reunification, nor do we read the trial judge's opinion to say that the goal may not be changed to reunification in the future. Indeed, as the trial judge said,

“[The father] recently has expressed a willingness to work with a parent aide. This is a significant change in position and is key to the court's decision to urge movement from the Department. The Department should begin crafting a plan for [the child] to visit with his father in the family home, supervised by DCF and with the parent aide present. The work of the parent aide and DCF should include identifying [the child's] current medical, social, and educational needs, and a plan to assist Father in meeting those needs.”

d. Reasonable efforts. Finally, the child argues that the judge erred in finding that DCF had made reasonable efforts toward reunification of the family. The Department has the duty to make “reasonable efforts to make it possible for the child to return safely to his parent or guardian,” until the court determines such effort to be inconsistent with the permanency plan for the child. G. L. c. 119, § 29C. See Care & Protection of Rashida, 488 Mass. 217, 218 (2021), S.C., 489 Mass. 128 (2022). As the uncontested and detailed findings of fact by the trial judge demonstrate, there was no failure on DCF's part to make reasonable efforts toward reunification. The failure was of the parents, to take advantage of what DCF offered. See Adoption of Yalena, 100 Mass. App. Ct. 542, 554 (2021).

5. Conclusion. The judge's determination that the parents were currently unfit at the time of trial was supported by clear and convincing evidence. Beyond that, we see no abuse of discretion or other error of law in the judge's decision.

Judgment affirmed.

FOOTNOTES

2.   The child argues that in finding of fact 303 the trial judge found based solely on inadmissible opinion evidence from a foster care review that the parents remain isolated to avoid addressing difficult situations, that the parents have cognitive issues, and that the parents are “closed and not forthcoming.” But what the trial judge actually said was that “The Department's review conjectured” these things, which is supported by the record. The child also challenges findings of fact 364, 213, and 239 as clearly erroneous, but all are adequately supported by the record. The other findings challenged by the child as clearly erroneous are actually conclusions of law. To the extent the child argues that the trial judge's lengthy decision demonstrates that she did not pay close attention to the evidence, we disagree. Although the tenor of some findings of fact differs from the tenor of others, the decision reflects a great deal of attention to the factual details of this case. And, contrary to the assertion in the child's brief, finding of fact 89 does not say that the child's toileting issues had resolved.