ADOPTION OF YIMO (And a Companion Case).

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

25-P-845

ADOPTION OF YIMO (and a companion case1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a 2024 trial, the mother appeals from decrees issued

by a Juvenile Court judge finding her unfit to parent her

children, Yimo and Samuel, and terminating her parental rights

pursuant to G. L. c. 119, § 26 (b), and G. L. c. 210, § 3 (c).2

Because we conclude that the mother's unfitness at the time of

trial was not established by clear and convincing evidence, we

vacate the decrees and remand for further proceedings.

Background. The Department of Children and Families

(department) became involved with the mother in October 2021

after she and the father brought Samuel (then ten weeks old) to

1 Adoption of Samuel. The children's names are pseudonyms.

2The father was also found unfit and his rights were
terminated. He appealed but never docketed his appeal in this
court. At the time of trial he was no longer in a relationship
with the mother and lived in another State.
his pediatrician over concerns about his constant crying. The

doctor noticed bruising on Samuel's abdomen and advised the

family to go to an emergency room. There, believing that the

bruises were consistent with potential child abuse, providers

filed a G. L. c. 51A report. Yimo was evaluated but there were

no signs of similar injuries. Providers then discovered that

Samuel also had multiple skull fractures.

When asked about the source of Samuel's injuries, the

mother reported that the abdominal bruising was likely from the

father's heavy-handed attempts at burping the colicky baby. She

did not, however, have any explanation for the skull fractures

at that time. As the parents could not provide a satisfactory

explanation for all of Samuel's injuries, both children were

taken into department custody that night.

On October 12, Dr. Peter Sell examined Samuel and evaluated

the injuries and examined him again nearly two weeks later.

Because the type of skull fractures that Samuel experienced

could result from either accidental or nonaccidental trauma, and

because it is difficult to bruise a baby as young as Samuel, Dr.

Sell concluded, and testified at trial, that Samuel's injuries

were concerning for an inflicted injury or physical abuse,

absent other circumstances to explain them. Dr. Sell did not

have the opportunity to speak to the parents and, when asked

2
about any history that might explain Samuel's injuries,

testified that he was not provided with any history. Dr. Sell

testified that the injuries were "most consistent" with child

abuse, see note 5 infra, but he did not know the cause of the

fractures and bruises, and he opined that an accidental cause

was possible. In the second examination, Dr. Sell found the

bruises had resolved, and Samuel presented as a "very healthy"

baby.

The mother's inability to explain how Samuel sustained the

skull fractures remained the department's paramount concern

through trial. Her action plans included a task that she "[b]e

open and honest with the [d]epartment and providers around what

happened with the child(ren) that led to the initial removal."

The mother consistently stated that she did not know how the

skull fractures occurred, and at the prompting of the department

she offered numerous potential explanations of how the baby

might have hit his head and been injured.

The judge found these explanations implausible and found

that "without offering a reasonable explanation for how all of

the injuries occurred, both [p]arents continue to pose a risk to

the safety and well-being of the subject children." The judge

also made findings about the mother's mental health struggles,

marijuana usage, and anger management issues. The judge made

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the following ultimate finding with respect to mother's current

and future fitness:

"Without the ability to control [her] emotions, provide a
reasonable explanation as to [Samuel's] injuries, and treat
[her] mental health diagnoses appropriately, the Court
finds that [m]other . . . [is] currently unfit to assume
parental responsibility of the subject children and that
this unfitness will continue undiminished into the future."

Discussion. The department bears the burden to prove by

clear and convincing evidence that the mother was, at the time

of trial, unfit to parent and that the children's best interests

would be served by dispensing with her consent to adoption. See

Adoption of Gregory, 434 Mass. 117, 125-126 (2001). We review

"to determine whether the judge's findings were clearly

erroneous and whether they proved parental unfitness by clear

and convincing evidence." Custody of Eleanor, 414 Mass. 795,

802 (1993). "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" (quotation and citations omitted). Id. at 799.

Furthermore, even if none of the subsidiary findings are clearly

erroneous, it does not necessarily follow that those findings

prove parental unfitness by clear and convincing evidence. See

id. at 799-800. The clear and convincing evidence standard

means that, for the ultimate finding of unfitness, "[t]he

4
requisite proof must be strong and positive; it must be 'full,

clear and decisive'" (citation omitted). Adoption of Iris, 43

Mass. App. Ct. 95, 105 (1997), S.C., 427 Mass. 582 (1998)

(Iris).

We conclude that this standard was not met. As the judge

stated, despite "both parents engag[ing] in the majority of

their action plan tasks," the "central issue before this [c]ourt

remained [m]other and [f]ather's lack of explanation as to

[Samuel's] injuries." As we discuss below, (1) the judge's

finding that the mother was unable to explain Samuel's bruising

was clearly erroneous; (2) the judge's finding that the mother's

inability to explain the skull fractures showed her unfitness

was error in these circumstances; and (3) the judge's remaining

concerns about the mother's marijuana use, anger management

issues, mental health struggles, and failure to comply fully

with her action plan -- although certainly worthy of

consideration -- do not rise to the level of clear and

convincing evidence of the mother's unfitness.

1. Bruising. Regarding Samuel's bruising, the judge

found, consistent with Dr. Sell's testimony, that such bruising

would not be expected from "normal burping," and that, to cause

the injuries, the father would have had to use an inappropriate

amount of force when attempting to burp the baby. She also

5
found that the "[f]ather was overly aggressive when burping

[Samuel]," that hospital staff had observed the father burping

Samuel "aggressively" and told him "this burping could cause

bruising," and that the father acknowledged that he probably

caused the injuries, given that the location of the bruises

corresponded to how he held and burped Samuel.

Despite these findings, the judge found that "neither

[m]other nor [f]ather was able to provide . . . a reasonable

explanation for the cause of [Samuel's] multiple bruises." This

finding is clearly erroneous, where the judge found that both

parents provided the same explanation -- one first raised by

medical staff at the hospital -- and there was no evidence that

the explanation was unreasonable or false.3 Dr. Sell did not

testify that the father's overly aggressive burping could not

have caused the bruising. He was given no information about the

3 The judge found the mother's statements to be
"inconsistent and contradictory" regarding when she first
noticed Samuel's bruising -- on October 8, 2021, or instead on
October 9, 2021. While perhaps true, this does not equate to a
finding that the mother's proffered explanation of how the
bruising happened was false or unreasonable. We also
acknowledge the judge's comment in her conclusion of law number
17 that "[t]he burping does not explain the bruising on
[Samuel's] leg." We are loath to attribute much significance to
this finding, where neither Dr. Sell nor either parent was asked
or testified about whether what Dr. Sell called "this small
bruise . . . a centimeter or two above [Samuel's] ankle", could
or could not be explained by the father's aggressive method of
burping.

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father's burping technique, other than having seen a reference

in the medical records to "burping the baby too hard," an entry

that he "didn't know what to make of."

Although the judge found the mother unfit based in part on

her inability in 2021 to protect Samuel from the father's overly

forceful burping, the judge did not connect this past failing to

the mother's unfitness at the time of the 2024 trial. The

record does not illuminate how the mother's inability to protect

a ten week old infant from his other live-in parent's attempts

at soothing colic has any significant bearing on the mother's

ability at the time of trial to protect that child, then three

years old and no longer experiencing colic, from a noncustodial

parent who at that time lived in another State. The judge did

not find that this aspect of the mother's unfitness was anything

more than temporary, nor even that it was current. See Adoption

of Ilona, 459 Mass. 53, 59 (2011) (judge must decide both that

parent is currently unfit and that unfitness is not merely

temporary). At best, the bruising issue could be significant to

the mother's fitness only if taken together with a properly

supported conclusion regarding the mother's role in the

unexplained skull fractures, an issue to which we now turn.

2. Skull fractures. The judge credited Dr. Sell's opinion

that, absent another explanation, the skull fractures were

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concerning for abuse, and she found that none of the

explanations offered by the mother sufficiently explained the

injuries.4 However, our cases have repeatedly concluded that

unexplained physical injuries, even if consistent with abuse,

are insufficient to establish unfitness of a primary caretaker-

parent where the injuries were not shown to be attributable to

that parent's abuse or neglect. See, e.g., Adoption of Zoltan,

71 Mass. App. Ct. 185, 188-189 (2008) (Zoltan); Adoption of

Abby, 62 Mass. App. Ct. 816, 824-825 (2005) (Abby); Iris, 43

Mass. App. Ct. at 104-106. Here, where Samuel's skull fractures

were consistent with accident or abuse, it is not enough for the

mother to be found unfit on the basis of her inability to

identify with specificity an accidental cause.5 Compare Zoltan,

4 With respect to one of these explanations, the judge
discredited the mother's theory that Samuel might have been
injured when the family's fifty-pound pit bull jumped on the
mother while she was holding Samuel on the couch; the judge
found that the mother "denied that [Samuel] sustained an injury
from this incident." This finding is not supported by the
record. The mother testified that she was "positive the dog hit
the child" and that "[h]e was hit but I didn't think he was hit
in a severity where I thought he was that injured." Immediately
before this testimony, the mother agreed that, while she
originally believed Samuel was crying due to colic, he may have
been crying from an unknown injury.

5 Dr. Sell testified that Samuel's various injuries were
"most consistent with child abuse in the absence of any history
to explain it," but he was not asked and thus did not testify as
to whether, if the bruising was explained by the father's
inappropriate and overly aggressive burping technique, the skull

8
supra at 190 ("Without more, the mother's ignorance as to the

cause of the injury does not reflect the 'grievous shortcomings'

that must underlie a finding of parental unfitness" [citation

omitted]), with Adoption of Lorna, 46 Mass. App. Ct. 134, 139

(1999) (unfitness finding supported when unchallenged medical

records indicated hospital staff specifically ruled out

accident).

Here, moreover, as in Iris, "there was insufficient proof

that [Samuel] was in the exclusive custody of [his] mother and

father during the period in which it is thought the injury

happened, such that they may reasonably be seen as having caused

the injury themselves." Iris, 43 Mass. App. Ct. at 102. Here

the judge found that "[a]ccording to [m]other the children were

always in the care of either [m]other or [f]ather." To the

contrary, the mother testified that during her postpartum

depressive episodes, one of her own parents or the father's

mother cared for the children, and they also did so on an

occasion when the mother and the father went out to dinner.6

fractures were nevertheless still more consistent with child
abuse.

6 The mother also left the father in charge of the children,
or at least Samuel, on some occasions. Indeed, the judge found
that during the mother's postpartum depression, the "[f]ather
assumed the majority of the caretaking responsibilities for both
of the subject children." Even if it were proven that skull
fractures resulted from abuse or neglect while Samuel was in the

9
That the mother chose not to affirmatively suggest that the

skull fractures might have occurred while in the care of other

family members -- i.e., that she chose not to try to "throw them

under the bus" -- does not alleviate our concern that her

inability to offer an explanation was essentially used as

evidence of her own abusive or neglectful parenting.

Also as in Iris, there was no evidence "sufficient to

establish that the [mother] knew who caused the injury or how or

when it happened." Iris, 43 Mass. App. Ct. at 103. The mother

brought Samuel to his pediatrician because he was crying and

having trouble releasing gas, at which time the pediatrician

noted bruises. These are hardly well-known signs of a skull

fracture or other head injury. See id. ("no visible or palpable

marks" on child's head; seizures began only after child arrived

at hospital; no evidence of likely time span between occurrence

of injury and onset of symptoms, or what discernible symptoms

might be).

That the judge rejected the mother's various possible

explanations for how the skull fractures could have resulted

from an accident -- offered while the mother was under pressure

from the department to "be open and honest" about the cause --

father's care, it would be speculative on this record to find
the mother responsible.

10
does not constitute proof that the true explanation was abuse or

neglect attributable to the mother. See Zoltan, 71 Mass. App.

Ct. at 190 (that mother's explanation was ultimately deemed

inconsistent with child's injury does not establish parental

fault).

Additionally, even if there were evidence to support a

finding that Samuel's skull fractures resulted from abuse or

neglect (rather than an accident), and that such abuse or

neglect was attributable to the mother's care, there is no such

evidence in regard to Yimo. There was no sign of injury to Yimo

when he was removed from the mother. Thus, even if the mother

had been unfit to parent Samuel because of his being physically

abused, such a finding would not automatically render her unfit

to parent Yimo. See Guardianship of Estelle, 70 Mass. App. Ct.

575, 581 (2007) ("A parent may be fit to raise one child but not

another").

For all of these reasons, we conclude that whatever role

the mother may have played in Samuel's injuries, the evidence

was insufficient to provide clear and convincing proof of her

present and future unfitness as of the time of trial, as to

either Samuel or Yimo.

3. Other grounds for finding of unfitness. We turn to the

other factors the judge cited in finding the mother unfit: the

11
mother's mental health issues, substance use, and what the judge

termed the mother's "history of violence and aggression."

First, the mother's mental health struggles were not found to be

substantially connected to her fitness. The judge found that

the mother has a lengthy mental health history, including

experiencing postpartum depression after Samuel's birth, and

that she expressed feeling overwhelmed at the time of the

children's removal. But even assuming that the mother's mental

health was a barrier to her adequately parenting the children at

the time of removal,7 the judge made no finding that the mother's

mental health remained unmanaged or rendered her currently unfit

at the time of trial. At that time, the mother was prescribed

medication to treat her depression and anxiety, and she was

engaged in biweekly counseling. Without any nexus to the

mother's current ability to care for the children, her mental

health history has no bearing on her unfitness.

Second, nothing in the judge's findings draws a connection

between the mother's admitted marijuana use and Samuel's injury

7 Although we need not resolve that issue, we comment on the
judge's finding that Yimo needs a caretaker who can "manage his
numerous medical and educational needs related to his Down
Syndrome diagnosis." The judge did not make any findings
indicating that mother was ever deficient in this area. To the
contrary, the judge found that, prior to removal, the mother had
enrolled Yimo in early intervention services and was teaching
him sign language, indicating that she was actively meeting
Yimo's particular needs.

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or any other failure to provide minimally acceptable care.

Rather, the judge expressed only a general concern about the

children having a sober caretaker, without making any findings

that the mother's marijuana use impairs her caretaking

abilities. Without evidence that the mother's marijuana use

rendered her unable to provide minimally acceptable care for her

children, an unfitness finding premised on substance use would

be speculative. See Zoltan, 71 Mass. App. Ct. at 191; Adoption

of Katharine, 42 Mass. App. Ct. 25, 32-33 (1997).

Third, the mother's anger management issues are not

significantly supportive of the determination of unfitness.

Here, the extent of a link found between the two was that the

anger issues existed "in the context of [Samuel's] injuries."

There was no finding that the mother had ever acted aggressively

toward or around the children. To the contrary, at the time of

trial, "the [d]epartment did not express any concerns with [the

mother's] . . . ability to interact appropriately and positively

with the subject children." Of the three instances of

aggression that the judge noted, one predated the births of the

children, the second occurred while the children were in the

department's custody, and the third involved the mother's

initial frustration the night her children were removed,

followed by her regaining control and appropriately saying

13
goodbye to them. Much as in Zoltan, "[w]ithout resorting to

impermissible conjecture, these isolated incidents shed little

light on the mother's ability to provide minimally acceptable

care for her [children], and offer no basis for concluding that

the [children's] welfare was put 'much at hazard' by the

mother's alleged anger issues" (citation omitted). Zoltan, 71

Mass. App. Ct. at 192.

We add that "given the absence of any clear and convincing

evidence of parental unfitness, the mother's failure to comply

more fully with the requirements of her service plan cannot be a

significant basis for the determination of parental unfitness."

Zoltan, 71 Mass. App. Ct. at 192. Because the action plan is

designed to help ameliorate parental deficiencies, where there

are no clear deficiencies that the mother must rectify in order

to provide minimally acceptable care, the mother's imperfect

compliance with the plan has little value in finding her unfit.

We therefore reach the same conclusion and adopt the same

remedy as in Zoltan, 71 Mass. App. Ct. at 196; Abby, 62 Mass.

App. Ct. at 828-829; and Iris, 43 Mass. App. Ct. at 102, 106.

In reaching this conclusion, we share the concern of all for an

infant who presents at the hospital with unexplained bruising

and fractures, but we cannot attribute those injuries to the

mother's unfitness without a sound basis in the evidence.

14
"While [the children's] welfare and best interests were

undoubtedly the central focus of both the judge and the

department in their desire to spare [them] the risk of further

injury, good intentions and genuine concern are not a

satisfactory substitute for clear and convincing evidence."

Iris, supra at 102. See Zoltan, supra at 187-189; Abby, supra

at 828. Accordingly, as in those three cases, the decrees are

vacated and the cases are remanded for further proceedings

consistent with this decision. If the department's goal remains

termination of the mother's parental rights, the judge shall

determine whether the department has sufficient additional

evidence of the mother's unfitness to warrant a new trial, and

if so, the judge shall proceed promptly to trial consistent with

this decision. If a new trial is not warranted or if the

department's goal has changed, a plan for the reunification of

the mother and her children under appropriate terms and

conditions, taking into account the best interests of the

children in regard to the method and timing of such transfer,

15
shall be devised and implemented with judicial oversight and

approval.

So ordered.

By the Court (Sacks,
Hodgens & Toone, JJ.8),

Clerk

Entered: April 23, 2026.

8 The panelists are listed in order of seniority.

16