Care and Protection of Quika.

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-280

CARE AND PROTECTION OF QUIKA. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Juvenile Court judge adjudicated the

mother unfit to parent Quika, awarded permanent custody of Quika

to the Department of Children and Families (department), but did

not terminate the mother's parental rights. The mother appeals,

arguing that the department failed to meet its burden and failed

to make reasonable efforts to reunify her with the child, and

that the judge abused his discretion in giving too much weight

to the child's wishes. We affirm.

Background. We summarize the facts as found by the judge,

all which find ample support in the record. Quika was born in

2008 and lived with her mother at her maternal grandmother's

home for about two years. She then lived with her father for

less than a year before returning to her maternal grandmother's

1 A pseudonym.
home for about four years (the mother lived there with them for

two of the four years). When Quika was about eight years old,

she moved in with the mother and the mother's partner, Susan. 2

During that first year, the mother's stepfather died, and then

Quika's father died. Quika's maternal grandmother died later

that same year, followed by Quika's great-grandparents. Quika

was close to these relatives and "fell apart" soon after their

deaths.

In November 2018, the department received a report,

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

mother had overdosed on prescription medication. Another 51A

report was filed in May 2019, alleging that the mother, who was

on probation, was facing incarceration due to a positive drug

screen. 3 During a visit with a department worker, Quika

indicated that she felt "so-so" safe with her mother. Another

51A report was filed in June 2020, after the mother was involved

in a physical altercation in public, while Quika was nearby.

The mother was arrested and charged with assault and battery by

means of a dangerous weapon; the charges were subsequently

dismissed.

2 A pseudonym.

3 The mother was released from custody after five days.

2
In January 2021, the mother and Susan reported to the

department that Quika was "defiant, lied, stole, and had

punched" the mother. Susan stated that she "smacked" Quika in

response, but that she had not hit her before that. The mother

and Susan also disclosed that they used the basement, which did

not have access to the apartment, both as a place for Quika to

wait until an adult came home and as a place of punishment.

In March 2021, a 51A report was filed alleging that the

mother had hit and screamed at Quika and accused her of

stealing. Quika reported that she thought of killing herself

for "a while," fueled by her poor relationship with her mother.

The same day, the mother brought Quika to the emergency room as

Quika was experiencing suicidal ideation and planned to run

away. At the hospital, Quika reported that her mother and Susan

called her derogatory names, and she had made multiple suicide

attempts. After another 51A report was filed, on March 11,

2021, the mother left Quika at the hospital, and the department

took custody of her. Following her release from the hospital,

Quika was placed in foster care where she resided at the time of

trial.

After Quika's removal, the mother went to a substance

misuse treatment program in western Massachusetts where she

remained upon her discharge (notwithstanding that Quika lived in

the eastern Massachusetts). Although the mother had a history

3
of mental health and substance misuse issues, at the time of

trial, she appeared clean and sober. After Quika's removal, the

mother only had two in-person visits with her, but they kept in

contact through telephone calls and text messages. Quika did

not want in-person visits with the mother and expressed a desire

not to return to live with her.

Discussion. 1. Current fitness. The mother contends that

the evidence does not support the judge's conclusion that she is

unfit. "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 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).

Here, the judge's subsidiary findings were "proved by a

preponderance of the evidence," and considered together,

established by clear and convincing evidence that the mother was

unfit. Adoption of Anton, 72 Mass. App. Ct. at 672-673. The

4
judge found that the mother-daughter relationship was

"profoundly dysfunctional" at the time of removal, that "no work

ha[d] been done . . . to build a healthier relationship", and

that the mother was not currently able to help Quika manage her

emotions. The mother showed "no insight" into why the

relationship had deteriorated "or what she would do differently

if [Quika] were returned to her custody." See Adoption of

Ilona, 459 Mass. 53, 62 (2011) ("lack of significant

improvement" in mother's parenting and "continued failure to

come to grips with the problems in her relationship with her

daughter" supported finding of unfitness); Adoption of Holly,

432 Mass. 680, 690 (2000).

The judge found that Quika was "verbally disparaged and

smacked; that is, she was abused." The judge properly

considered that "a child who has been either the victim or the

spectator of [physical] abuse suffers a distinctly grievous kind

of harm." Custody of Vaughn, 422 Mass. 590, 595 (1996). 4

The judge also considered the mother's infrequent

visitation with Quika which is relevant evidence of unfitness.

See Adoption of Talik, 92 Mass. App. Ct. 367, 373 (2017). The

mother was also inconsistent in meeting with the department; the

4 Although the judge did not conclude that the use of the
basement for punishment was abusive, he noted that this means of
punishment "illustrate[d] the need of [the mother] to learn more
effective means" to control Quika's behavior.

5
case worker had been unable to schedule a home visit with her

for months. See Adoption of Rhona, 63 Mass. App. Ct. 117, 126

(2005) ("Evidence of parents' refusal to cooperate with the

department . . . is relevant to the determination of

unfitness").

The judge properly considered the mother's neglect of

Quika's educational needs. The mother and Susan did not allow

Quika to use a computer for remote learning on Wednesdays

because they distrusted Quika's use of technology. Quika missed

all her Wednesday classes as a result. When Quika came into the

department's custody, an individualized education plan was

updated and implemented for her, as there were gaps in Quika's

education. See Care & Protection of Lillith, 61 Mass. App. Ct.

132, 135 (2004) (mother's failure to send child to school and

inability to understand negative effects of such failure were

relevant factors in establishing unfitness). See also G. L.

c. 119 § 24.

2. Child preference. The mother also argues that the

judge improperly based his finding of unfitness on Quika's

expressed preference. Although a child's wishes "are entitled

to weight in custody proceedings," Care & Protection of

Georgette, 439 Mass. 28, 36 (2003), they are not dispositive.

Here, the judge properly considered Quika's expressed desire to

6
remain in her current placement, but this desire did not

underpin the judge's conclusion that the mother was unfit.

3. Best interests. "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).

The judge's findings that Quika's best interests would be served

by granting permanent custody to the department were well

supported. Quika's early childhood had been marked by "a great

deal of instability," followed by the instability of removal.

The mother "did not appear able to offer a specific or realistic

plan" for where Quika would live or go to school if Quika were

returned to her care. Adoption of Serge, 52 Mass. App. Ct. 1, 8

(2001). The judge found that if Quika returned to the mother,

it would cause further instability, whereas Quika "is now in a

placement that can care for her long term." This was a proper

consideration. See Adoption of Nancy, 443 Mass. 512, 517 (2005)

("Stability in the lives of children is important"); Adoption of

Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990) (discussing

importance of stable home environment). 5

5 We note the "significant difference . . . between an award
of custody in a care and protection proceeding, which primarily
addresses only current fitness and is reviewable every six
months . . . and the 'extreme step' of terminating the parent
and child's legal relationship." Adoption of Carlos, 413 Mass.
339, 350 (1992). Here, the mother retains "residual rights," as
her parental rights were not terminated. Care & Protection of
Thomasina, 75 Mass. App. Ct. 563, 569-570 (2009) (comparing

7
4. Reasonable efforts. The mother also argues that the

department failed to make reasonable efforts to reunite the

family by failing to promote visitation and family therapy.

"[T]he department must make 'reasonable efforts' aimed at

restoring the child to the care of the natural parents."

Adoption of Ilona, 459 Mass. at 60, citing Adoption of Leonore,

55 Mass. App. Ct. 275, 278 (2002). It is also "well-established

that a parent must raise a claim of inadequate services in a

timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781

(2010), citing Adoption of Gregory, 434 Mass. 117, 124 (2001).

Here, the mother raised this issue for the first time at trial.

See Adoption of West, 97 Mass. App. Ct. 238, 244 (2020). The

judge nevertheless considered the department's efforts to

promote visitation and family therapy and ordered the department

to increase those efforts. The judge did not make findings

about the reasonableness of these efforts, but he did determine

that transferring custody to the department was in Quika's best

interests, based on his overall assessment of the evidence. See

Adoption of Ilona, 459 Mass. at 61 (even where department has

not made "reasonable efforts," judge may issue appropriate order

conducive to child's best interests).

"residual rights of parents" in care and protection proceedings
with termination of parental rights).

8
Finally, the judge did not improperly base his

determination of parental unfitness on the mother's lack of

visitation, as the record demonstrates that the mother's

unfitness, as addressed supra, was based on a "constellation of

facts." Adoption of Greta, 431 Mass. 577, 588 (2000).

Judgment affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ. 6),

Clerk

Entered: January 15, 2025.

6 The panelists are listed in order of seniority.

9