CARE & PROTECTION OF BAILEY (And Two Companion Cases).

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

23-P-1350

CARE & PROTECTION OF BAILEY (and two companion cases1).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a Juvenile Court judge found the mother

unfit to parent her three children, adjudicated the children to

be in need of care and protection, and committed them to the

permanent custody of the Department of Children and Families

(department). The judge terminated the mother's parental rights

as to the youngest two children and approved a plan of adoption

for them in the same foster family.2 The judge declined to

terminate the mother's parental rights as to the oldest child.

The mother and the oldest child challenge the judge's finding

that the mother was unfit, as well as the judge's deferral to

1Adoption of Riley and Adoption of Kelly. The children's
names are pseudonyms.

2None of the fathers appeared at trial and their parental
rights were also terminated. No father is a party to this
appeal. The two youngest children did not appeal from the
decrees.
the time of trial of certain motions regarding parenting time.

The oldest child also appeals the judge's posttermination and

postadoption sibling visitation orders. We affirm the decrees

and the judgment finding the mother unfit to parent Bailey but

remand with respect to the sibling visitation orders.

Background. The mother moved to Massachusetts in 2014,

leaving New York where she had a pending child protection case

as to her first-born child alleging failure to thrive and

neglect by the mother.3 The mother moved around from place to

place, staying with friends and at shelters, working

intermittently, mostly in retail and food service. In 2016, the

mother came to the attention of the department due to a G. L.

c. 119, § 51A, report (51A report) alleging that she fought with

another individual at a shelter in front of her children, then

five years old and nine months old, respectively. Thereafter,

further 51A reports alleged the oldest child's chronic

absenteeism from school, as well as various physical injuries to

the oldest child, including scratches and cuts on the child's

hands and cheek, a swollen hand, scratches and dried blood in

3 The mother's explanation of the New York case was that the
oldest child "did not want to eat" because she had a "bad
spirit."

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the child's ear, and scratches and bite marks to the child's

stomach and back.4

The 51A report leading to the first care and protection

petition on behalf of the two oldest children came in May 2019,

when the oldest child, then eight years old, was observed with

two large facial marks, appearing to be burns. Further

investigation revealed injuries all over the oldest child's

body, including healing bite marks. The mother gave

inconsistent explanations for the marks, including that the

injuries were self-inflicted. Following removal from the

mother, both children indicated that the mother had inflicted

the injuries on the oldest child. Additionally, the oldest

child disclosed that the mother would blame the oldest child for

the fact that they had to live in a shelter.

In her interactions with department representatives, the

mother would make threats and accuse them of conspiring against

her. She completed a twelve-week parenting group but exhibited

no observable changes in behavior. She continued to insist that

the oldest child's injuries were self-inflicted even after being

During the investigation that followed, the mother stated
4

that the oldest child was "possessed." The mother also stated
that, when the children were not behaving appropriately, she
would threaten to "give them 'pow-pow.'" The second child
(Riley) later used the same term when reporting how Bailey, the
oldest child, sustained injury.

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confronted with the fact that the location and nature of the

injuries would have made self-infliction physically impossible.

Soon after the mother gave birth to the youngest child in

December 2019, the department filed a second petition for care

and protection on her behalf and obtained custody of the child.5

Subsequently, the mother engaged in programs aimed at helping

her parenting skills and mental health, but they appeared to

have no effect on her behavior. The mother continued to express

her belief that everyone was conspiring against her, left

hostile and profanity-laden messages for department

representatives, and was inappropriate in front of the children

during her parenting time, including arguing with and

threatening department workers and accusing the foster parents

of abusing the children. She was also inappropriate with the

children during parenting time, including changing the youngest

child's formula against pediatrician advice, failing to comfort

the middle child who was crying hysterically on the floor during

a supervised visit, and repeatedly blaming the oldest child for

the mother's own failings.

5 Although the two petitions (the first pertaining to the
older two children and the second pertaining to the youngest
child) have separate dockets, they were tried together.

4
Due to the mother's inappropriate behavior during her

parenting time and the deleterious effect of the visits on the

children, the mother's parenting time was gradually reduced over

time. When the department removed the two oldest children from

the mother's care in May 2019, the mother was offered biweekly,

two-hour, supervised parenting time. In July 2020, during a

virtual visit with the middle child, the mother accused the

foster parents of abusing the child. Thereafter, the department

observed a significant change in the behavior of the child. The

department reduced the mother's parenting time with the middle

child to ninety minutes, twice a month.

In 2021, the middle child began to refuse visits with the

mother, who became irate. There ensued a series of incidents

where the mother became aggressive with staff and threatening to

foster parents; she accused the oldest child of covering for the

foster parents and refused to visit with any of the children if

the middle child was not in attendance. Thereafter, the

department reduced visits with all the children to twice a

month. The middle child continued to exhibit significant

negative behaviors surrounding visits with the mother. In

August 2021, the mother's parenting time with the middle child

was further reduced to once a month. During the visits the

department representatives would remove the middle child after

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forty-five minutes to alleviate "stressors," while the two other

children were permitted to stay for the entire scheduled time.

In September 2021, the mother moved for increased parenting

time, specifically requesting weekly visits with all three

children. The judge deferred ruling on the motion to the time

of trial. In October 2021, the mother filed a motion requesting

the court to make a determination that the department had failed

to make reasonable efforts towards reunification, specifically

complaining about the limited parenting time and requesting

weekly parenting time with all three children. The oldest child

joined in the mother's motion, but the middle child, as well as

the department, filed oppositions. After consideration of all

submissions, the court denied the mother's motion in November

2021.

During a January 2022 visit, the mother became angry and

aggressive in front of the children. As attempts to deescalate

failed, the mother was told that the visit would be ending. The

mother physically intervened as the middle child was being led

away; she put both hands on a department representative, shoving

her out of the way to grab the middle child, who was requesting

to leave the visit. The mother refused to leave and told the

oldest child not to leave, adding that the whole thing was the

fault of the oldest child. The department then terminated in-

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person parenting time and instead offered once a month virtual

visits. In March 2022, the department moved to terminate the

mother's parenting time altogether. As she had done with the

mother's motion for increased parenting time, the judge deferred

ruling on the motion to the time of trial.

The trial took place over twelve nonconsecutive days

between April 20, 2022 and December 14, 2022. By the conclusion

of trial, the oldest child was almost twelve years old and in a

therapeutic residential facility, and no adoptive resource had

yet been identified. Although the judge found the mother unfit

to parent the oldest child, the mother's parental rights were

not terminated as to that child. The judge denied the mother's

motion for increased parenting time but encouraged the

department to reassess the situation and consider reinstituting

in-person visitation between the mother and the oldest child.

The judge also found the mother unfit to parent the younger

two children, terminated her parental rights as to those

children, and approved the plan of adoption by their foster

family. Additionally, the judge ordered a minimum of once a

year posttermination and postadoption visits between the mother

and the two younger children. The middle child's visitation

with the mother was conditioned on the child requesting the

visit. The judge also ordered that the oldest child have

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sibling visitation with the younger two children, but in

consideration of the significant therapeutic issues faced by the

older two children, declined to set a schedule and instead

provided that any sibling visitation should be "consistent with

the therapeutic needs" of the older two children.

Discussion. 1. Termination. To terminate parental rights

to a child, the judge must find, by clear and convincing

evidence, that the parent is unfit and that the child's "best

interests will be served by terminating the legal relation

between parent and child." Adoption of Ilona, 459 Mass. 53, 59

(2011). We give substantial deference to the judge's findings

of fact and decision, and will reverse "only where the findings

of fact are clearly erroneous or where there is a clear error of

law or abuse of discretion." Id.

On appeal, the mother contends that the judge's findings

fall short of establishing that the mother was unfit to parent

her children. In particular, she argues that because the judge

made no finding that the mother bit or caused the injuries of

the oldest child -- the allegations prompting the removal of the

two oldest children -- "the court made no direct finding . . .

about the central factual question relevant to the mother's

unfitness." Relying on Care and Protection of Yetta, 84 Mass.

App. Ct. 691 (2014), she claims that the findings were therefore

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insufficient to demonstrate unfitness. The comparison is inapt.

In Care and Protection of Yetta, the allegation leading to

removal was sexual abuse by the father. See id. at 693. The

judge found that the evidence did not establish that sexual

abuse had taken place, but concluded the children were in need

of care and protection based on the father's "loud angry tone"

and the lack of adequate parental supervision. See id. at 691,

693-694. This court reversed the judgment, ruling that in the

absence of sexual abuse or neglect leading to serious harm,

there was insufficient evidence to support the finding of

parental unfitness. See id. at 697-698.

Here, by contrast, the judge found that the oldest child

indeed had been repeatedly physically abused and had sustained

"extensive" injuries all over her body and that the mother's

"grievous shortcomings" placed all the children at risk, if they

were returned to the mother's care. As the judge recognized,

even if the mother herself had not inflicted the injuries on the

oldest child, she had failed in her duty to protect the child.

See Adoption of Yalena, 100 Mass. App. Ct. 542, 552 (2021).

The judge based her unfitness determination in this case on

a number of factors, including the mother's unacknowledged

mental health issues, which the judge found, put the children at

grave risk. There was evidence that among other conditions, the

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mother suffered from delusions that were "pervasive and

persecutory in nature." See G. L. c. 210, § 3 (c) (xii)

(relevant factor in fitness evaluation is whether parent suffers

from mental illness that is "reasonably likely to continue for a

prolonged, indeterminate period," and that renders parent

"unlikely to provide minimally acceptable care" of children).

As the judge found, the mother's perception that everyone was

conspiring against her negatively impacted her education,

employment, and housing, leading to instability for the

children. Additionally, her inability to control her volatile

temper and aggressive behavior, the judge concluded, negatively

impacted the children.6 Moreover, the judge further concluded

that the mother exhibited a lack of empathy towards the children

and concern for their welfare, as she failed to put their needs

above her own.7 In short, there was clear and convincing

6 The mother and the oldest child contend that the judge
erred in attributing the mental health issues of the two older
children to the fact that they spent their early years in the
care of the mother, by comparing them with the youngest child,
who was separated from the mother at birth and had no apparent
mental health issues. Although there certainly are alternative
explanations for the mental health issues experienced by the
older two children, the inference that the judge drew was
supported in the evidence. See Custody of Eleanor, 414 Mass.
795, 799 (1993).

7 The mother argues that the judge improperly relied on her
negative reaction to news of the middle child's exploration of

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evidence of unfitness, even in the absence of a specific finding

that the mother had inflicted physical injury on the oldest

child, and the judge's subsidiary findings amply supported the

judge's ultimate determination of unfitness.8

2. Deferred rulings on motions regarding parenting time.

The mother and the oldest child both fault the judge for not

gender identity in order to find her unfit. The mother claims
that reliance was improper in the sense that the mother was
punished for failing to conform to prevailing social norms.
However, the judge did not fault the mother for refusing to
accept that the middle child may have been engaging in gender
identity exploration; rather, the judge focused on the mother's
antagonistic and explosive behavior in front of the child,
demonstrating indifference to the feelings of the child. See
Adoption of Ulrich, 94 Mass. App. Ct. 668, 676 (2019) (finding
of unfitness supported in part by evidence that mother displayed
"aggressive attitude" with counselors at number of visits).

8 The oldest child contends that the judge erred by treating
all three children "as a unit," rather than as individuals,
pointing to the identical findings and rulings on the two care
and protection petitions. See Guardianship of Estelle, 70 Mass.
App. Ct. 575, 581 (2007) ("parent may be fit to raise one child
but not another"). The findings and rulings on the two
petitions are identical, because they were tried together;
nevertheless, they include separate sections pertaining to each
child. In fact, as to the oldest child (in contrast with the
other two children), the judge specifically found that, given
the child's age, interest in ongoing contact with the mother,
and current lack of adoptive resource, it would not be in the
child's best interest to terminate the mother's parental rights.
As to the oldest child's argument that the judge ignored
evidence of the mother's current fitness and instead relied on
stale evidence, the findings make clear that the judge
acknowledged conflicting evidence of the mother's current
fitness and relied on all evidence up through the time of trial.

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ruling on motions regarding parenting time until the conclusion

of trial. See Adoption of Rhona, 57 Mass. App. Ct. 479, 490

(2003) (delay in acting on motions may lead to deterioration of

parent-child bond and development of bond between child and

foster parents, thereby prejudicing parents' positions at

trial). Although the judge did defer ruling on the mother's

September 2021 motion for increased parenting time, the judge

promptly ruled on the mother's October 2021 reasonable efforts

motion, which also requested increased parenting time.

Therefore, the substance of the mother's grievance was timely

addressed such that the claim of delayed decision-making is

without merit. See Care and Protection of Rashida, 488 Mass.

217, 233 (2021) (substance, not label, of motion is what

controls). To the extent that the deferral of motions regarding

parenting time was error, it was not prejudicial as the

termination of the mother's parental rights was not based on

bonding issues. See Adoption of Franklin, 99 Mass. App. Ct.

787, 796-799 (2021) (father not entitled to reversal of decrees

terminating his parental rights where absence of visitation

played minimal role in termination of parental rights and there

was overwhelming evidence of unfitness). Contrast Adoption of

Rhona, supra (parents deprived of visitation during delay in

ruling were prejudiced where bonding was allowed to continue to

12
deteriorate during pivotal period in judicial proceedings and

department argued bonding with foster parents had occurred).

3. Sibling visitation orders. An order of sibling

visitation is available, pursuant to G. L. c. 119, § 26B (b),

where intervention by the Commonwealth has precipitated the

separation of siblings. See Care & Protection of Jamison, 467

Mass. 269, 284-285 (2014) (discussing standard governing sibling

visitation). Here, based on the judge's decrees, the oldest

child was to remain separated from the younger two siblings, who

were to be adopted by their foster family. The judge ordered

that the oldest child would have posttermination and

postadoption visitation with the two younger siblings

"consistent with the therapeutic needs" of the older two

siblings, who each had significant "mental health challenges."

Although an order of sibling visitation may be issued upon

a finding that the visitation is in the best interests of all

the children, see Care & Protection of Jamison, 467 Mass. at

284-285, if the judge orders visitation, the judge must also

decide "the schedule and conditions of visitation." Adoption of

Zander, 83 Mass. App. Ct. 363, 367 (2013), quoting Adoption of

Rico, 72 Mass. App. Ct. 214, 220-221 (2008). Here, the judge

ordered visitation, but only as "consistent with the therapeutic

needs of [the older] children." Here, guided by Care and

13
Protection of Ian, 46 Mass. App. Ct. 615, 620 (1999), we

conclude that the wording of the order could have the unintended

result of terminating all visitation between the oldest child

and other siblings.

Accordingly, the sibling visitation orders are vacated, and

the cases are remanded for further proceedings on that issue.

On remand the judge should reconsider the issue of sibling

visitation, make a specific finding, consistent with the

governing standard, regarding whether sibling visitation is in

the best interests of all three children, and if so, provide an

appropriate scheduling order for posttermination and

postadoption sibling visitation. The decrees are otherwise

affirmed. The judgment finding the mother unfit to parent

Bailey is otherwise affirmed.

So ordered.

By the Court (Singh, Hand &
D'Angelo, JJ.9),

Clerk

Entered: September 6, 2024.

9 The panelists are listed in order of seniority.

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