Care and Protection of Vijay.

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-619

CARE AND PROTECTION OF VIJAY.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge found the father

currently unfit to parent Vijay and awarded permanent physical

custody to the mother. The father appeals, arguing that several

of the judge's findings of fact were clearly erroneous, and the

unfitness determination was therefore not supported by clear and

convincing evidence. The father also argues that the judge

erred by ignoring evidence of the mother's unfitness when

granting her permanent custody of Vijay. We affirm.

Background. We recount the relevant facts from the judge's

findings, reserving certain details for later discussion. The

mother and father met in 2013 and were married in 2015. Vijay

was born in 2015. The father has been diagnosed with anxiety,

depression, delusional disorder, a mood disorder, and a thought

1 A pseudonym.
disorder with significant paranoid thinking. His mental illness

has resulted in numerous episodes in which he displayed paranoid

behavior. For example, he spoke about aliens, he believed his

cell phone was being hacked, and he believed the mother was

being unfaithful and would not allow her to go to work with

other men, believing that the mother had a "sexual addiction."

Other times, he stated that he believed he was being monitored

by his television and other electronics or watched by the

police. In August of 2021, this fear had grown to the point

that he contacted the FBI about his devices being hacked, who in

turn informed the Department of Children and Families

(department). The father denies that he has any mental health

issues and has not engaged in mental health treatment for the

problems at issue in this case.

In 2017, after the department filed a prior care and

protection petition, a Juvenile Court judge ordered that the

mother have sole physical custody of the child, that the parents

have shared legal custody, and that the father have visitation.

In February 2019, the mother experienced substance use issues

and, with her consent, a judge of the Probate and Family Court

awarded sole physical custody of Vijay to the father. In August

2020, the mother, having remarried, moved to Virginia with her

husband and his three children, while Vijay remained in

Massachusetts with the father.

2
While in the father's care, the father's paranoia affected

Vijay in several ways.2 The father's paranoia entered an acute

phase after a visit to a hospital emergency room in February

2021, where the father, understandably concerned, took Vijay

because the child had blood in his stool. The father reported

that Vijay had told him the mother's husband had sexually abused

him. The doctor who examined Vijay found no signs of sexual

abuse and determined the blood was likely caused by

constipation. Vijay later admitted that his allegations of

sexual abuse were untrue and that he made up the story when he

was bored and lonely at the father's home. The father reported

the alleged abuse to the department, who investigated and found

no support for the allegations.

In May 2021, the father abruptly went to Brazil, in part

due to his paranoid belief that he was being tracked by the

mother's husband. The father planned for Vijay to reside with

the mother and her husband while he was in Brazil, which the

child did for two months. The mother moved Vijay to Virginia,

enrolled him in school and football, and obtained a pediatrician

and therapist for him. The father returned from Brazil the

In August 2019, the father reported to Vijay's physician
2

that either the father's girlfriend or his girlfriend's mother
was poisoning Vijay. The father later explained that his own
thinking may have been delusional and admitted that he sometimes
blew things out of proportion. He explained that Vijay had
vomited that day and that he let his thoughts get away from him.

3
first week of August 2021 and drove to Virginia to take Vijay

from the mother's house.3 The father brought Vijay back to

Massachusetts, falsely promising the mother he was only going to

take the child away for two weeks. At all times, the parents

retained joint legal custody. Once back in Massachusetts,

Vijay, who had just turned six, told a department social worker

that the father had to leave because "people [were] after my dad

because it's not a safe world." Later that month, the father

took Vijay to urgent care, reporting Vijay was urinating

frequently, and expressed his concern that Vijay had contracted

a sexually transmitted disease at the mother's house. Tests

showed no issue, and the doctor noted no other concerns.4 The

next day, the father took Vijay to his pediatrician for what

turned out to be a fungal infection. After the child was seen,

the father asked to meet with the doctor alone to discuss his

3 The father did not inform the mother he was traveling from
Massachusetts to Virginia to take Vijay. When he arrived there,
he told the mother he would return Vijay to her in two weeks so
he could start school in Virginia. She asked to put that
agreement in writing, but he believed she was "blackmailing" him
into signing documents that would give her custody of Vijay.
The father then refused to share information with the mother
about where he and Vijay were living, despite the fact that they
shared legal custody.

4 Later that month, the father obfuscated his true reasons
for this visit when a department social worker asked him why he
had taken Vijay to urgent care. The father became defensive
when the social worker brought up the father's belief that Vijay
had a sexually transmitted disease.

4
belief that Vijay was sexually abused by the mother's husband.

The doctor noted concerns about the father's paranoia and

questioned his truthfulness. He recommended that Vijay would

benefit from therapy and that the child start meeting with a

social worker until enrolling in therapy. The father did not

follow up on the doctor's recommendation.

In September 2021, the father brought Vijay to a different

pediatrician, again for symptoms he believed were related to

sexual abuse. This visit resulted in the pediatrician, a

mandatory reporter, filing a report pursuant to G. L. c. 119,

§ 51A, alleging sexual abuse of Vijay by the mother's husband.

The department, upon conducting an investigation pursuant to

G. L. c. 119, § 51B, learned from the pediatrician that Vijay

never reported any abuse by the mother's husband but rather the

father had supplied that information. The pediatrician saw no

signs of sexual abuse or trauma during Vijay's examination, and

indicated that the father appeared to be encouraging Vijay to

say things she felt may have been untrue.

In addition to the repeated doctor visits, the father's

mental illness interfered with his ability to provide care for

Vijay. The father lacked housing stability -- he and Vijay

lived in a shelter prior to obtaining a studio apartment through

the Department of Transitional Assistance (DTA). By January

2022, Vijay had accrued twenty-three absences from school that

5
year. The school's social worker reported the school absences

to the department, noting that one of Vijay's teachers expressed

concerns for Vijay as he often told teachers that the mother was

"evil" and "wicked." The teacher believed that Vijay was

struggling academically because of the school absences and

attempted to communicate with the father about the importance of

Vijay attending school regularly. The father was not receptive

to this conversation and was not concerned about Vijay's school

absences, telling the teacher that he was proud of how well

Vijay was doing, and that his only concern was with the school

sharing any information about Vijay with the mother. The father

also ignored the advice of Vijay's pediatrician that Vijay would

benefit from therapy. When requested to enroll Vijay in therapy

by a department interim action plan,5 the father engaged a

therapist only to seek a sexual abuse evaluation in order to

provide evidence to a judge that the mother's husband had abused

Vijay. The therapist had concerns that the father's untreated

and unmedicated mental health issues were negatively affecting

Vijay's own mental health and sense of reality. The father

became upset when the therapist did not provide the sexual abuse

assessment he was seeking and terminated her services.

5 The department created the interim action plan for the
father after a meeting on October 28, 2021.

6
In February 2022, the department filed the underlying care

and protection petition "seeking a non-emergency hearing date to

determine whether custody should remain with" the father. The

father was granted conditional custody of Vijay later that

month. In May 2022, after the father failed to enroll Vijay in

therapy -- one of the conditions of the father's conditional

custody -- the department was granted custody of Vijay. After a

four-day trial, a Juvenile Court judge determined the father was

unfit to assume parental responsibility and granted custody of

Vijay to the mother. This appeal followed.

Discussion. 1. Standard of review. "[A] finding of

parental unfitness must be based on clear and convincing

evidence in care and protection cases." Custody of a Minor, 392

Mass. 719, 725 (1984). "When making this determination,

subsidiary findings of fact must be supported by a preponderance

of the evidence, with the ultimate determination of unfitness

based upon clear and convincing evidence." Adoption of Rhona,

63 Mass. App. Ct. 117, 124 (2005). "Clear and convincing proof

involves a degree of belief greater than the usually imposed

burden of proof by a preponderance of the evidence, but less

than the burden of proof beyond a reasonable doubt imposed in

criminal cases." Care & Protection of Yetta, 84 Mass. App. Ct.

691, 696 (2014), quoting Custody of Eleanor, 414 Mass. 795, 800

(1993).

7
2. Unfitness determination. The father challenges certain

of the judge's factual findings and claims the determination of

his unfitness therefore was not based on clear and convincing

evidence. The father argues that the judge erred in finding

(i) that there was no evidence to corroborate his belief that

Vijay was sexually abused; (ii) that the father brought Vijay to

multiple doctors seeking treatment for sexual abuse; and

(iii) that the father lacked housing stability "throughout the

pendency of the case." "We do not substitute our judgment of

the evidence for the subsidiary findings of the judge absent

clear error." Mason v. Coleman, 447 Mass. 177, 186 (2006). "A

finding is clearly erroneous when there is no evidence to

support it, or when, 'although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.'" Custody of Eleanor, 414 Mass. at 799, quoting

Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160

(1977).

The father points to facts in the record that he argues

corroborated his belief that Vijay was abused.6 He argues,

6 These facts include that the father discovered blood in
Vijay's stool, that Vijay alleged to the father that the
mother's husband had abused him, that Vijay's penis was itchy,
that Vijay engaged in age-inappropriate sexual behaviors, and
that a department social worker followed up after an interview

8
accordingly, that the judge's finding that there was "no

evidence corroborating Father's beliefs that [Vijay] had been

the victim of any sexual abuse" was clearly erroneous. The

father's argument is misplaced. The question before the judge

was not whether the father earnestly believed Vijay was abused,

but rather whether that belief was a product of the father's

untreated mental illness. The judge had an obligation to

evaluate the credibility of the evidence including the father's

testimony and make findings of fact. See Custody of Eleanor,

414 Mass. at 800. Here, the judge did not credit the father's

beliefs regarding sexual abuse, so it was appropriate for the

judge to look for corroboration elsewhere. The record supports

the judge's finding that there was no evidence, other than the

father's uncredited assertions, that corroborated the father's

belief that Vijay was sexually abused. See Adoption of Rhona,

63 Mass. App. Ct. at 124.

Next, the father challenges the finding that he brought

Vijay to multiple doctors seeking treatment for sexual abuse.

Although the father articulated reasons other than sexual abuse

for the visits, it was within the judge's discretion to weigh

the credibility of the father's ostensible reasons. See

Adoption of Nancy, 443 Mass. 512, 515 (2005). We see no error

with the father and Vijay to determine whether further
investigation was necessary.

9
in the judge's conclusion that the main purpose of the multiple

visits to doctors was to seek corroboration of sexual abuse,

particularly where the father broached the subject of sexual

abuse each time. See id.

Finally, the father disagrees with the judge's

characterization that he lacked housing stability "throughout

the pendency of this case." At the end of the day, this

argument amounts to a disagreement with the judge's weighing of

the evidence. See Smith v. Jones, 69 Mass. App. Ct. 400, 404

(2007) ("As in other contexts where cases center on the best

interests of the child, we will not disturb the judge's findings

or substitute our judgment for that of the trial judge absent

clear error"). Although it is undisputed that the father did

temporarily reside at an apartment through DTA, the record is

also clear that the father had a history of housing instability

and was homeless when the judge determined him unfit. Even if

the judge's finding was erroneous as to that period of time, the

record supports the conclusion that the father lacked stable

housing because he was homeless and had turned down the

opportunity to obtain housing due to his mental health issues.

After arguing the above facts were clearly erroneous, the

father argues the remaining facts do not amount to clear and

convincing evidence of his unfitness. The father maintains that

he took good care of Vijay and that the judge's findings do not

10
support a nexus between his mental illness and a detriment to

Vijay's welfare. We disagree.

In a comprehensive decision, the judge recognized the bond

between the father and Vijay and the father's care of Vijay, but

her primary concern was with the father's mental illness.

"Mental disorder is relevant only to the extent that it affects

the parents' capacity to assume parental responsibility, and

ability to deal with a child's special needs." Adoption of Luc,

484 Mass. at 146, quoting Adoption of Frederick, 405 Mass. 1, 9

(1989). Here, the judge's conclusion that the father was unfit

due to his untreated mental illness and his resultant inability

to assume parental responsibility is well supported by the

record. As discussed above, his continued irrational belief

that Vijay had been sexually abused exposed the child to

unnecessary medical treatment and challenged Vijay's sense of

reality. Even if we were to ignore the contested facts above,

the uncontested evidence supports the judge's determination of

the father's unfitness. The judge properly considered the

father's lengthy history of untreated mental health conditions

and the fact that he had refused to acknowledge that he had

mental health issues or engage in treatment. In addition, the

judge properly considered the fact that the therapist and

doctors who evaluated Vijay expressed concerns that the father's

mental illness was affecting Vijay's emotional and mental

11
health.7 Vijay had an excessive number of absences from school,

and a teacher had difficulty communicating to the father about

the effect of these absences on Vijay's academics. The father

did not enroll Vijay in therapy despite numerous recommendations

by providers that the child would benefit from it. Finally, the

father's refusal to acknowledge or seek treatment for his mental

illness is also relevant to the judge's unfitness determination.

See Adoption of Luc, supra at 147. We disagree with the

father's contention that the evidence failed to establish a

nexus between his mental health issues and his ability to parent

Vijay. In sum, we discern no error in the judge's determination

that the department met its burden of proving the father's

unfitness by clear and convincing evidence.

3. Mother's fitness. The judge granted permanent physical

custody to the mother. The department presented no evidence of

the mother's unfitness at trial and asked that she be granted

custody. The father did not object at trial and argues for the

first time in this appeal that the mother was unfit. "As a

general practice we do not consider issues . . . raised for the

7 The father appears to argue that some of the medical
opinions the judge relied on in making these findings were
unreliable. The father did not object to the introduction of
the exhibits containing these opinions. To the extent the
father believes the judge should not have relied on the
information, he merely disagrees with the judge's weighing of
the evidence. See Smith v. Jones, 69 Mass. App. Ct. at 404.

12
first time in this court." Adoption of Donald, 52 Mass. App.

Ct. 901, 901 (2001). Although the issue was likely not

preserved in the trial court, the evidence nevertheless

supported the judge's finding of fitness and grant of custody to

the mother. The judge offered the requisite guidance on Vijay's

placement, indicating that placement with the mother was in the

child's best interests. See Care & Protection of Three Minors,

392 Mass. 704, 717 (1984). The judge's findings of fact

acknowledge the mother's previous and ongoing struggles.

However, the judge also found that Vijay was doing well with the

mother and was living in a safe and appropriate environment

where he was engaged in school and therapy, played football, and

had a good relationship with his family members. We discern no

error in the judge's determination on the record before her that

despite some of her challenges in the past, the mother was

currently fit.

Conclusion. Given the judge's findings, we discern no

abuse of discretion or clear error in the judge's determination

13
that the father was currently unfit, that the mother was fit to

assume parental responsibility, and that Vijay's best interests

were served by granting the mother physical custody.

Judgment affirmed.

By the Court (Rubin, Henry &
Walsh, JJ.8),

Clerk

Entered: April 14, 2025.

8 The panelists are listed in order of seniority.

14