Care and Protection of Vick

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

15-P-1451 Appeals Court

CARE AND PROTECTION OF VICK.1

No. 15-P-1451.

Plymouth. May 10, 2016. - July 13, 2016.

Present: Cypher, Blake, & Henry, JJ.

Parent and Child, Care and protection of minor, Custody of
minor, Interference with parental rights. Minor, Care and
protection, Custody.

Petition filed in the Plymouth County Division of the
Juvenile Court Department on November 25, 2013.

The case was heard by John P. Corbett, J.

Karen O. Young for the mother.
Rizwanul Huda for the child.
Sookyoung Shin, Assistant Attorney General, for Department
of Children and Families.
Dennis M. Toomey for the father.

BLAKE, J. A judge of the Juvenile Court found that the

child was in need of care and protection, that the mother was

unfit to assume parental responsibility, and that the unfitness

1
A pseudonym.
 2

was likely to continue into the indefinite future. On appeal,

the mother challenges the sufficiency of the evidence supporting

the judge's conclusion that she was unfit, contending that the

evidence failed to establish a nexus between her parenting and a

showing of harm to the child. She also claims that the judge

did not conduct an evenhanded assessment of the evidence, and

ignored the child's preference to live with his mother. The

child joins in these arguments. We affirm on the basis that the

mother was unfit to assume parental responsibility due to

neglect of the child.

1. Background. We summarize the relevant facts and

procedural history as set forth in the judge's decision and as

supported by the record, reserving other facts for later

discussion. The parents met in high school and, shortly

thereafter, the mother became pregnant. The child was born in

February, 2002. Immediately after his birth, and for the next

four and one-half years, the father was the child's primary

caretaker; during that time period, the father and child lived

with the father's mother. When the father lost his job, he

placed the child in the mother's care. In 2008, the father

moved to Georgia, where he has extended family, because he was

unable to find employment in Massachusetts. Despite the

distance, the father maintained contact with the child's schools
 3

and medical providers. From 2008 to 2013, the child spent most

of his summers with the father in Georgia.

In 2013, the mother resided in Brockton with the child, her

sister (aunt), and her father (grandfather). She also had a

residence in Stoughton. In November of that year, the police

responded to the Brockton home after the aunt fell in the

shower. Following that incident, the Department of Children and

Families (DCF) received three reports, filed pursuant to G. L.

c. 119, § 51A (51A reports), each alleging the neglect of the

child by the mother. The primary concerns expressed were the

condition of the mother's Brockton home, the lack of food

available, and the exposure of the child to drug abuse. The 51A

reports were investigated and substantiated.

After the mother failed to cooperate or provide access to

the Brockton home, on November 25, 2013, DCF filed a care and

protection petition pursuant to G. L. c. 119, § 24, alleging

that the child was in need of care and protection. On December

5, 2013, a stipulation of conditional custody was approved

allowing the mother to have continuing custody of the child.2 On

2
The conditions, agreed to by the mother, were that DCF was
to have unfettered access to the child at home or at school; she
would cooperate with DCF to create a service plan; the child's
physical, medical, educational, and psychological needs would be
met, including the maintenance of "a safe and clean home
environment"; the mother would remain drug and alcohol free; and
she would meet with her DCF social worker and comply with the
assessment process.
 4

February 10, 2015, DCF removed the child following the mother's

failure to comply with her DCF plan. Following a trial, the

judge found the mother unfit to parent the child and the father

fit to assume parental responsibility, and awarded custody of

the child to the father pending the outcome of a home study of

the father's residence.3 This appeal followed.

2. Standard of review. 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 Care & Protection of Laura, 414 Mass. 788, 793 (1993);

Custody of Eleanor, 414 Mass. 795, 799 (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). 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 Mary, 414 Mass. 705, 711 (1993).

3. The mother's unfitness. The mother claims that DCF

failed to prove that her parenting placed the child at serious

risk of harm "from abuse, neglect, or other activity harmful to

the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758,

3
At the time of trial, the father was employed and living
in Georgia with his wife and stepdaughter. The parties do not
challenge the father's fitness on appeal.
 5

761 (1998). Specifically, she claims that the condition of the

Brockton home, coupled with her failure to cooperate with DCF,

did not endanger the child to the degree necessary to

demonstrate unfitness. We disagree.

The cleanliness of a parent's home is an appropriate factor

for consideration in determination of that parent's fitness.

See Care & Protection of Three Minors, 392 Mass. 704, 713 & n.11

(1984). Here, the December 3, 2013, stipulation of conditional

custody clearly directed the mother as to the actions she needed

to take to maintain custody of the child, including maintaining

a safe and clean home environment. Yet during a visit to the

Brockton home on March 18, 2014, a Juvenile Court probation

officer found the home to be in a "deplorable" condition, with

dirty rugs and refrigerator, a blackened stove, and a toilet

that was dirty with brown water. On a return visit, the

probation officer found the conditions had not improved, which

prompted a judge of the Juvenile Court (not the trial judge) to

visit the home. That judge deemed the home unsafe for the child

and awarded custody of the child to DCF in April, 2014. In an

effort to regain custody of the child, the mother eventually

allowed DCF access to the Stoughton home, which was deemed safe.

The mother's service plan required that the child remain in the

Stoughton home, and prohibited his sleeping at the Brockton home

due to safety concerns. At subsequent visits to the Stoughton
 6

home, the probation officer and a social worker were left with

the impression that the house had not been lived in and was

essentially abandoned.4 After a meeting at the school with the

child, it was clear that both he and the mother were living in

the Brockton home. The grandfather confirmed this, but

continued to deny the social worker access to the Brockton home.

When DCF removed the child on February 10, 2015, the Brockton

home had no heat, minimal lighting, a strong smell of animals

and cigarettes, and piles of trash and dirt on the floor.

Throughout the DCF investigation, multiple professionals5 viewed

the Brockton home and all agreed that it was unsuitable for the

child. At trial, the mother nevertheless insisted that she had

adequately provided for the child. The judge was free to reject

her testimony, which was not supported by other evidence.6 In

4
The social worker observed mail piled up outside the
mailbox, minimal food in the refrigerator, a strong odor of
trash, and no bed for the mother. At a second visit, the mail
was again piled up, snow had not been shoveled, and a window was
boarded up. The mother confirmed the Stoughton home did not
have electricity.
5
DCF social workers, Brockton police officers, a Juvenile
Court probation officer, and a judge of the Juvenile Court.
6
After the child's removal, a DCF social worker visited the
mother in the Stoughton home. The mother was unable to produce
a lease or utility bill to demonstrate that she was living
there. Despite a judgment against her in excess of $7,800 for
unpaid rent owed to the Stoughton Housing Authority, the mother
denied being evicted from that home. She claimed to have
secured a new apartment in Brockton, but could not produce a
lease.
 7

sum, despite numerous opportunities to rectify the living

situation at the Brockton home, the mother failed to maintain

safe and sanitary conditions for the child.7

Likewise, "[e]vidence of parents' refusal to cooperate with

[DCF], including failure to maintain service plans . . . , is

relevant to the determination of unfitness." Adoption of Rhona,

63 Mass. App. Ct. 117, 126 (2005). Here, the mother rejected

all attempts by DCF to work with her to improve her situation.

She did not return telephone calls and prevented access to the

home. She declined to work with a parent aide and refused all

mental health services, despite having expressed "violent

thoughts" to a social worker. She refused to comply with her

service plan tasks. Even though DCF granted her substantial

flexibility, the mother responded with "defiance."8

The mother has also made poor choices regarding caretakers

for the child. The aunt, who provided much of the child care,

7
The mother correctly observes that poverty alone cannot
support a finding of unfitness. Custody of a Minor, 389 Mass.
755, 766 (1983). Here, however, the judge did not find that
poverty was the cause of the conditions in the Brockton home,
but rather the mother's poor judgment. Moreover, the mother
earned $1,350 biweekly, plus a monthly commission that ranged
from $1,000 to $3,000, income well outside the threshold for
indigency in the Commonwealth. See generally G. L. c. 261,
§ 27A(b) (defining indigent in terms of inability to pay court
filing fees).
8
In response to the allegations set forth in the last of
the three 51A reports, the mother responded, "Game on!"
 8

had outstanding warrants.9 Prior to trial, the mother indicated

her plan was for an uncle to care for the child while she is at

work. The uncle contended he had no legal involvement, yet his

criminal offender record information was "very concerning" to

DCF. Finally, after removal from her care, the mother only

visited with the child once prior to trial. See Adoption of

Darla, 56 Mass. App. Ct. 519, 522 (2002) (failure to visit child

was relevant to parental unfitness).

The child also has behavioral and educational issues, and

the judge concluded that the mother was unwilling or unable "to

comprehend the impact of [her] behaviors" on the child.10 The

mother insists the child has no issues at school, and as the

judge concluded, "has consistently and repeatedly refused to

cooperate with [DCF]," which was physically and emotionally

detrimental to the child. The mother's ongoing refusal to

acknowledge her shortcomings and to participate in DCF remedial

programs further supports the inference that her parental

deficiencies will remain unaddressed.

9
The judge's finding that it was the mother who had
outstanding warrants is clearly erroneous. The error is
harmless, however, as the judge neither relied on, nor
mentioned, any criminal history of the mother in his conclusions
of law. See Care & Protection of Olga, 57 Mass. App. Ct. 821,
825 (2003).
10
The court investigator's report indicates that the child
had multiple school suspensions and detentions, and was
frequently tardy.
 9

Under these circumstances, where the child has been

remarkably resilient despite his neglect by the mother, the

judge did not "need to wait for inevitable disaster to happen"

before acting in the child's best interests. Adoption of

Katharine, 42 Mass. App. Ct. 25, 32 (1997). See Custody of a

Minor (No. 2), 378 Mass. 712, 714 (1979) ("the State's interest

in protecting children from suffering harm at the hands of their

parents may properly be preventive as well as remedial"); Care &

Protection of Bruce, 44 Mass. App. Ct. at 761. Where the child

was surviving in deplorable conditions, with a mother who

obstinately and defiantly refused to allow DCF access to the

home, the judge's conclusion that the child was "at near certain

risk of future harm" was supported by clear and convincing

evidence.

4. Other issues. a Mother's mental health. Contrary to

the assertions of the mother and the child on appeal, the

judge's determination of unfitness was in no way tied to his

finding that she had an undiagnosed mental illness. Rather, the

mother's over-all demeanor, including her defensiveness, refusal

to accept services, and her court room outburst,11 was one of

several factors that contributed to her parental shortcomings.

11
On cross-examination, the mother "became hysterical,
screaming, and falling to the courtroom floor." The judge
categorized this response as evidence of an "undiagnosed and
untreated mental illness."
 10

The determination whether the mother suffers from a mental

illness was hamstrung by the mother's refusal to be evaluated

and accept mental health services. Regardless, the mother's

inability to provide for the child's over-all welfare and best

interests was the central determination of her unfitness. See

Adoption of Eduardo, 57 Mass. App. Ct. 278, 283 (2003).

b. Assessment of the evidence. The judge's findings are

both "specific and detailed," demonstrating, as we require,

"that close attention was given to the evidence." Adoption of

Helen, 429 Mass. 856, 859 (1999). Those findings, which reflect

endangerment and neglect of the child, provide clear and

convincing evidence of the mother's unfitness. The mother's

claim that the judge's pretrial comments indicate that he

"prejudged the case" is unavailing. See Adoption of Tia, 73

Mass. App. Ct. 115, 119-124 (2008) (judge's comments, although

"troubling," did not require reversal where evidence

"substantially supported the judge's findings and conclusions").

c. Child's preference. At trial, counsel for the child

argued that the mother was unfit and that the child should not

be returned to her care. With new counsel on appeal, the child

now contends the mother is fit and that his wishes were not

properly considered. A judge should consider the wishes of the

child in making custodial determinations, and those wishes "are

entitled to weight in custody proceedings." Care & Protection
 11

of Georgette, 439 Mass. 28, 36 (2003). The child's wishes,

however, are neither decisive nor outcome dispositive, ibid.,

and must be considered against the backdrop of the mother's

unfitness, which has been shown here by clear and convincing

evidence. See Adoption of Rhona, 63 Mass. App. Ct. at 126.

5. Conclusion. Collectively, the mother's utter failure

to accept services, the unsafe and unsanitary conditions of the

home, and her lack of judgment concerning the child's needs

clearly supported the determination of unfitness.

Judgment affirmed.