Care and Protection of Verena.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-553

CARE AND PROTECTION OF VERENA.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial on October 31, 2023, and the father's

stipulation to unfitness, a Juvenile Court judge adjudicated the

mother unfit to parent Verena, awarded permanent custody of the

child to the Department of Children and Families (department),

but did not terminate the mother's parental rights to the child.

The mother appeals, arguing that the judge made erroneous

subsidiary findings and ignored evidence favoring the mother.

We affirm.

Background. The child, age thirteen at the time of the

trial, has been diagnosed with behavioral dysregulation,

posttraumatic stress disorder (PTSD) and aggression, and has a

history of self-harm and making suicidal statements. A team of

1 A pseudonym.
psychiatric professionals (including a psychiatrist, therapist,

and intensive care coordinator) provides care to the child.

Since 2016, the mother has been psychiatrically hospitalized at

least six times. By the time of trial, the mother, forty-five

years old, suffered from bipolar disorder, depression, anxiety,

and PTSD. She complied with treatment and prescribed

medications.

The department's most recent involvement began in August

2019, after receiving the first in a series of reports pursuant

to G. L. c. 119, § 51A (51A report), alleging the neglect of the

then nine year old child by the mother. On that date, both the

mother and the child were admitted to the hospital for mental

health treatment. While the mother remained hospitalized and

unable to care for the child, the department substantiated the

allegation of neglect, and the child, upon discharge from the

hospital, temporarily resided at a home for children. In July

2020, while the mother and the child resided alone together, the

department received, and later substantiated, 51A reports

alleging the neglect of the child when the mother repeatedly

became intoxicated while taking her prescription medication.

Two months later, in September 2020, another substantiated 51A

report alleged that the mother left the child home alone against

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professional advice given the child's history of self-harming

ideations and hiding knives in her bedroom.

In October 2020, the child had to be hospitalized after

exhibiting dysregulated behaviors, screaming, and being

inconsolable, and the mother had to be psychiatrically

hospitalized approximately two weeks later. On November 5,

2020, the department filed a care and protection petition

pursuant to G. L. c. 119, § 24, and the department obtained

temporary custody of the child. The child's course of treatment

included court-authorized antipsychotic medication over the next

two years. By March 2021, the child transitioned to a foster

home.

In August 2022, the child (then twelve years old) was

briefly reunified with the mother. The next month, the mother

took the child and the child's friend (also a minor) to an adult

party where the mother provided the child and her friend with

alcohol and left them alone while she went outside to smoke

marijuana and cigarettes and drink beer. While the mother was

outside, an adult male sexually assaulted the child and the

child's friend in a bedroom. After Boston police officers

responded, the mother helped the suspect flee. Officers found

the mother, the child, and the child's friend to be heavily

intoxicated. Medical personnel transported all three to the

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hospital, where they presented as heavily intoxicated. The

mother told a social worker that she did not want to report the

perpetrator to the police because she "wanted to avoid this."

She also acknowledged that it was not appropriate to provide

alcohol to minors, but she admitted doing so at the party and

admitted to "sometimes" drinking alcohol with the child when

they "share a . . . bottle." Following this sexual assault, the

child has remained in the department's care.

At trial, which was held on October 31, 2023, the

department sought permanent custody of the child, but did not

seek to terminate the mother's parental rights. On November 7,

2023, the judge adjudicated the child in need of care and

protection, found the mother unfit, and placed the child in the

permanent custody of the department.

Discussion. "Parental unfitness is determined by

considering a parent's character, temperament, conduct, and

capacity to provide for the child's particular needs,

affections, and age." Adoption of Anton, 72 Mass. App. Ct. 667,

673 (2008). In care and protection cases, the judge's

subsidiary findings must be proved by a preponderance of the

evidence and will only be disturbed if clearly erroneous. See

Custody of Eleanor, 414 Mass. 795, 799 (1993); Care & Protection

of Laura, 414 Mass. 788, 793 (1993). "Taken together, these

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findings must then prove clearly and convincingly that the

parent[] [is] currently unfit to provide for the welfare and

best interests of the[] child[]." Adoption of Quentin, 424

Mass. 882, 886 (1997). "[D]issatisfaction with the judge's

weighing of the evidence" is not a sufficient basis to warrant

relief on appeal. Id. at 886 n.3. The department bears a

"heavy" burden to prove unfitness. Care & Protection of Elaine,

54 Mass. App. Ct. 266, 271 (2002).

We disagree with the mother's contention that the

department failed to demonstrate by clear and convincing

evidence that she was unfit. She notes that she has been

compliant with her mental health providers and treatment plan

and that she has maintained the same housing for three years.

She emphasizes that not only has she been consistent in visiting

with the child, but she has demonstrated that she has the

ability to care for the child and to help the child "with her

behaviors."

In a comprehensive decision, the judge recognized that the

mother "clearly cares for her child" and had been "compliant

with her [own] mental health providers and treatment plan," but

lacked any "insight into [the child's] needs," including her

"significant mental health needs." This conclusion is well

supported by the record. Over the course of many years, the

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mother suffered from her own mental health needs that resulted

in repeated psychiatric hospitalizations and unavailability to

care for the child. The child also suffered from psychiatric

conditions including behavioral dysregulation, PTSD, aggression,

self-harming, and suicidal ideation, and she required a team of

psychiatric professionals for her care. When the mother was

physically available for the child, supervision proved woefully

inadequate and jeopardized the child's safety. On one occasion,

against professional advice, the mother left the child home

alone after the child had hidden knives in her bedroom the week

before. On a later occasion, with the care and protection

petition pending, the mother provided alcohol to the child, left

her alone at an adult party where the child was intoxicated, and

helped the person who sexually assaulted the child at the party

flee from the police. While the mother's compliance with her

own mental health treatment at the time of trial is certainly

laudable, these incidents illustrate that mere compliance did

not endow the mother with an insight into the particular needs

of the child. See Adoption of Ulrich, 94 Mass. App. Ct. 668,

677 (2019) ("mere participation in . . . services does not

render a parent fit 'without evidence of appreciable improvement

in [their] ability to meet the needs of the child'" [citation

omitted]); Adoption of Dora, 52 Mass. App. Ct. 472, 478 (2001)

6
(unfitness where parent failed to heed medical advice for

child); Adoption of Oliver, 28 Mass. App. Ct. 620, 625 (1990)

(unfitness where parent showed no understanding of child's

medical needs). Thus, "the judge did not abuse [her] discretion

or commit a clear error of law in determining that the mother

was unfit." Adoption of Luc, 484 Mass. 139, 147 (2020).

Contrary to the mother's contention, we discern no clear

error in the judge's factual finding that the mother lacked

"insight" into the child's needs, the severity of the child's

mental health needs, and the necessity of "provid[ing] for her

safety." As previously discussed, the record contains ample

evidence of the mother's lack of insight in all of these areas

despite the strides the mother made in her own mental health

care. Her trial testimony showed that she continued to lack

insight into the needs of the child: when asked to identify the

child's diagnosis, she testified, "stress postpartum"; when

asked her plan if the child returned home, the mother testified

that she would like to visit the Dominican Republic; and when

asked specifically about plans for the child's needs and safety,

the mother testified that her plans would be the same as they

were in September 2022 (when the sexual assault occurred). The

mother also testified that she remained in a relationship with a

boyfriend despite knowing the child reported that he tried to

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kiss her. This evidence showed a persistent lack of insight

into the child's needs. The mother's alternative view of the

facts on appeal amounts to "no more than a disagreement with the

judge's weighing of the evidence and credibility determinations

regarding witnesses." Adoption of Don, 435 Mass. 158, 166

(2001).

We also do not read two notations in the family assessment

from July 2023 as being dispositive on the issue of the mother's

insight into the needs of the child. One notation indicated

that the mother "understands and responds to her child's

emotional needs by engaging in child's meetings and being

present for every supervise[d] visit." Another notation

indicated that the mother sometimes "model[s] empathy." The

mother contends that these notations and the absence of any

reference to these notations by the judge show that the judge

erred. The judge, however, was not required to credit this

assessment or to assume that such observations by the social

workers carried greater weight than incidents of neglect that

evidenced a complete lack of insight into the most basic safety

and mental health needs of the child. See Adoption of Larry,

434 Mass. 456, 467-468 (2001) (unfitness where parent failed to

protect child against actions of abuser); Adoption of Lorna, 46

Mass. App. Ct. 134, 141 (1999) (unfitness where parent failed to

8
protect child). The judge had the obligation to evaluate the

credibility of the evidence, including the mother's testimony,

and to make her findings of fact accordingly. See Custody of

Eleanor, 414 Mass. at 800. We similarly reject the suggestion

that the judge had an obligation to summarize every piece of

evidence that favored the mother's viewpoint. See Adoption of

Franklin, 99 Mass. App. Ct. 787, 799 (2021) (findings do not

require acknowledgement and highlighting of all positive factors

to be sufficiently fair and balanced); Adoption of Jacques, 82

Mass. App. Ct. 601, 608 (2012) ("judge was entitled to consider

the evidence of [the mother's] recent improvements within the

context of her earlier and continuing deficits"); Care &

Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003), quoting

Adoption of Harriet, 29 Mass. App. Ct. 111, 112 (1990) (judge

need not specifically cite every piece of evidence so long as

decision reflected "careful factual inspection" of evidence as

whole).

We disagree with the mother's contention that the evidence

failed to establish a nexus between her mental health issues and

her ability to parent. The mother's mental health 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 Frederick, 405 Mass. 1, 9

9
(1989). Here, the mother's fitness did not turn on the mother's

particular diagnoses; rather multiple commitments to psychiatric

facilities rendered her unavailable to care for the child. See

Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) (mother unfit

where she was physically unavailable to serve as child's

caretaker for substantial periods of child's life). Because the

mother's psychiatric hospitalizations rendered her unavailable

to care for her child, the evidence established the requisite

nexus. See Adoption of Frederick, supra.

Finally, the record does not support the mother's claim

that the judge erroneously found she had been diagnosed with

anxiety and PTSD. Our review of the record indicates that a

report of the court investigator noted the mother had been

"diagnosed with PTSD, depression, anxiety, and bipolar

disorder." This notation is sufficient evidence to support the

judge's finding that the mother was diagnosed with anxiety and

PTSD. Even if the judge erred, which we do not conclude, "there

was no resulting prejudice." Adoption of Luc, 484 Mass. at 148.

As previously discussed, the record shows the mother suffered

10
from several other psychiatric conditions that rendered her

unable to care for the child. Thus, there was no error and no

prejudice.

Judgment affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.2),

Clerk

Entered: March 25, 2025.

2 The panelists are listed in order of seniority.

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