Care and Protection of Andre.

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-949

CARE AND PROTECTION OF ANDRE. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge found the mother

currently unfit to parent the child, adjudicated the child in

need of care and protection, and placed the child in the

permanent custody of the Department of Children and Families

(department). The mother's parental rights remained intact, and

the department's goal remained reunification. Concluding that

the mother's incarceration at the time of trial and her

inadequate care plan established her current unfitness by clear

and convincing evidence and that it was within the judge's

discretion to deny the mother's motion to reopen evidence, we

affirm.

Background. In November 2021, the mother's parental rights

to her two older children were terminated. In June 2023, the

1 A pseudonym.
child was born. After the department received a report pursuant

to G. L. c. 119, § 51A (51A report), alleging that the child was

born substance exposed, the mother told a court investigator

that she had a history of drug and alcohol abuse and had largely

been sober for the past seventeen months, but had relapsed

during March or April of 2023, while she was pregnant with the

child.

On February 2, 2021, the mother was charged with assault

and battery, wanton destruction of property, and malicious

destruction of property (February charges). The mother was

subject to pretrial conditions of release on the February

charges. On March 18, 2021, the mother was charged with assault

and battery on a family or household member (March charge). On

May 20, 2021, the mother again was charged with assault and

battery on a family or household member. On June 6, 2021, the

mother was charged with receiving stolen property. The mother

was placed on probation for the February and March charges on

September 29, 2021. The mother defaulted on multiple court

appearances, culminating in a March 8, 2023 default, for which a

probation warrant and default warrants were issued. 2

On July 3, 2023, the mother reported to a department social

worker that she was receiving drug addiction treatment,

2 The May 2021 domestic assault and battery charge had been
dismissed on February 28, 2023.

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participating in support groups, and had a relapse prevention

plan in place. The mother denied having a criminal background

or history of domestic violence. She also falsely stated that

she had an "open" probation matter that "she did not need to

check in on" when, in fact, she was in default on her probation

case. On July 6, 2023, the department sought and received

temporary custody of the child, because of concerns surrounding

the mother's relatively short period of sobriety and ability to

parent the child on her own in light of her history of substance

abuse, and mental health and domestic violence issues. On or

around July 7, 2023, the department placed the child with the

mother at a residential treatment program. In December 2023,

after the mother allegedly failed to comply with the residential

treatment program's rules and had interpersonal conflicts with

its staff, the mother was discharged from the program. In

January 2024, the mother and the child moved to a second

residential treatment program.

Prior to March 15, 2024, a department supervisor advised

the mother that it would remove the child from her care if she

were discharged from another program. The mother was discharged

from the second residential treatment program. The mother

acknowledged that the discharge resulted from a verbal

altercation with another resident. The judge found that the

mother's conduct was the cause of her interpersonal conflicts

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and discharges from the programs. Following the second

discharge, the department removed the child from the mother's

care.

On March 21, 2024, the mother called a department

supervisor to ask why the department would not return the child

to her care, and the supervisor responded that the department

needed to determine whether the mother was able to manage her

anger and comply with the rules of a residential program. The

mother swore at the supervisor, called her names, and said that

she was going to kill herself.

On March 25, 2024, the mother addressed the warrants on her

criminal cases, which had been outstanding for over a year. In

July 2023, the mother had assured the department that she would

deal with the warrants within seven days but did not do so. The

mother was held in custody, and she remained incarcerated on the

date of her trial in the present case. At the time of trial,

the mother's period of incarceration was unknown. At trial, the

mother offered a potential caretaker for the child, but the

potential caretaker did not appear in court or testify. At the

conclusion of trial, the judge reviewed the mother's updated

court activity record information, and noted that the mother was

not only being held on four warrants, but also she was subject

to future probation violation proceedings. The judge found the

mother currently unfit to assume parental responsibility of the

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child and ordered that the child remain in the custody of the

department. The judge determined that it was in child's best

interests to remain in the foster home he shared with his

siblings. On June 11, 2024, the judge denied the mother's

motion to reopen evidence and committed the child to the

permanent custody of the department.

Discussion. 1. The mother's unfitness. The mother

contends that the judge erred in finding that she was unfit to

parent the child. "[I]n any proceeding to commit a child

permanently to the custody of the department, the department

bears the burden of proving, by clear and convincing evidence,

that a parent is currently unfit to further the best interests

of a child and, therefore, the child is in need of care and

protection" (quotation and citation omitted). Care & Protection

of Rashida, 489 Mass. 128, 131 (2022). "In making a custody

determination, the driving factor is the best interests of the

child" (quotation and citation omitted). Adoption of Garret, 92

Mass. App. Ct. 664, 676 (2018). "The best interests of the

child standard requires the trial judge to make a discretionary

decision based on her experience and judgment, and [the

decision] will not be overturned unless it amounts to an abuse

of discretion or a clear error of law" (quotation and citation

omitted). Id. at 675. "Parental unfitness must be determined

by taking into consideration a parent's character, temperament,

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conduct, and capacity to provide for the child in the same

context with the child's particular needs, affections, and age."

Adoption of Mary, 414 Mass. 705, 711 (1993).

Here, the fact that the mother was incarcerated

indefinitely at the time of trial, coupled with her inadequate

substitute care plan, supported the judge's finding that the

mother was currently unfit. See Adoption of Mary, 414 Mass. at

711; Adoption of Serge, 52 Mass. App. Ct. 1, 8 (2001) ("Physical

unavailability of the parent to provide day to day care for the

child, including for reasons of incarceration, was relevant

evidence of unfitness"). Simply put, the mother's incarceration

made her unavailable to assume custody of the child, even if she

were otherwise fit, and the judge was not presented with any

substitute caregiver who was fit and available to take care of

the child. 3 Although the mother was hopeful that she would be

released shortly after the trial, as the judge found, "there was

no guarantees that [the mother's] hopes would be realized."

Moreover, the mother's alternative caretaker neither appeared in

3 Based on this conclusion, we need not and do not address
the mother's contentions that the judge erred by (1) considering
the mother's probation record because that record did not
contain any convictions, and was not relevant to her parenting
abilities; (2) relying on 51A reports or the court
investigator's report to make findings regarding the mother's
history of substance abuse and domestic violence; and (3) using
stale evidence of the mother's history of domestic violence and
substance abuse.

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court physically nor testified virtually. The only evidence of

the mother's proposed caretaker's qualifications was the

mother's testimony that the proposed caretaker was currently a

foster parent, was a "good parent," and had previously taken

care of the mother's older children. The judge found that she

was unable to even evaluate whether the mother's proposed

caregiver was fit and available. Thus, as the judge noted, even

if she had ruled in the mother's favor on the day of the trial,

as a practical matter, no suitable substitute caregiver was

available to provide care to the child.

"At the core of the [parental fitness] inquiry is the

question of what is in the best interests of the child."

Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997). Here,

the judge found that given the mother's unavailability and her

inability to assess the mother's substitute caregiver, the

child's "welfare and security outweighed Mother's custody

rights," and that it was in the child's best interests to remain

in the foster home he shared with his siblings. We discern no

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

the mother was currently unfit at the time of trial and that

placing the child in the department's permanent custody was in

the child's best interest. See Adoption of Mary, 414 Mass. at

711.

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2. The judge's decision not to reopen evidence. The

mother also argues that the judge abused her discretion by

denying the mother's motion to reopen evidence because the

mother was released from custody three days after the end of

trial. The decision whether to reopen evidence is within the

discretion of the trial judge. See Clark v. Leisure Woods

Estates, Inc., 89 Mass. App. Ct. 87, 95 (2016). At the hearing

on the mother's motion, the department's attorney told the judge

that the mother had been arrested on a new assault and battery

charge after she was released from custody. Additionally, the

mother's parental rights remained intact, and the department's

goal was reunification. The mother was entitled to a review and

redetermination hearing in less than four months from the date

of the judge's denial of the motion. See G. L. c. 119,

§ 26 (c). The judge's decision not to reopen evidence was not a

"clear error of judgment" falling "outside the range of

reasonable alternatives," and thus not an abuse of the judge's

discretion. See Adoption of Talik, 92 Mass. App. Ct. 367, 375

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(2017), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

Judgment affirmed.

Order denying motion to
reopen evidence affirmed.

By the Court (Blake, C.J.,
Ditkoff & Brennan, JJ. 4),

Clerk

Entered: June 23, 2025.

4 The panelists are listed in order of seniority.

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