MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This care and protection case involves two sisters who were ages three and five at the conclusion of the Juvenile Court trial.
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After trial, the judge found the father currently unfit to parent either child and terminated his parental rights. As for the mother, the judge ultimately dismissed the older childs care and protection petition upon taking additional evidence after trial and returned full custody to the mother. However, the judge found the mother currently unfit to parent the younger child, committed her to the permanent custody of the Department of Children and Families (department), and found that establishing a guardianship with her current foster parent was in her best interest. The mother, the father, and the two children all separately appealed.
In a care and protection case, subsidiary evidentiary findings must be proved by a fair preponderance of the evidence and these facts taken together must demonstrate parental unfitness by clear and convincing evidence. See Care & Protection of Laura, 414 Mass. 788, 793 (1993). “Parental unfitness ․ means more than ineptitude, handicap, character flaw, ․ or inability to do as good a job as the childs foster parent. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the childs welfare much at hazard” (quotations and citation omitted). Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009).
The mother and the children on appeal argue that several subsidiary findings made by the judge were clearly erroneous and that the mothers unfitness to parent the younger child was not shown by clear and convincing evidence, which is a high bar. See Custody of Eleanor, 414 Mass. 795, 800 (1993) (“Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence” [citation omitted]). Even if we assume without deciding that none of the judges findings were clearly erroneous, we conclude that the facts as found by the judge did not demonstrate the mothers unfitness to parent the younger child by clear and convincing evidence.
The primary reasons the judge gave for finding the mother unfit were missed medical appointments and parent-child visits, and the younger childs various special needs, which the judge found the mother could not meet because she was already struggling to take care of her three other children. Addressing first the missed medical appointments, the mother was required to attend the younger childs medical appointments by her department family action plan, but she admitted to missing an estimated five to ten of them. We do not find it particularly surprising that the mother was unable to attend medical appointments that other appropriate adults were already attending, where the mother was not consulted regarding the scheduling of those appointments. More troubling is the substantial number of missed parent-child visits, especially since they were scheduled on the mothers designated day off from work.
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While we share the judges concern, she did not make a finding that the mothers failure to visit was due to indifference or lack of concern toward the younger child, which would be a much more serious problem.
Turning to the younger childs various special needs, we note that the department changed the younger childs permanency goal from reunification to guardianship in large part because of what was then thought to be necessary eye surgery. However, as the judge noted in her factual findings, eye surgery turned out to be unnecessary, and the younger child was given prescription eyeglasses instead. Nonetheless, the department did not change the permanency goal back to reunification. The judge also listed certain behavioral and cognitive issues the younger child exhibited when first placed with her foster parent. However, the judge made no finding that the mother was the cause of any such issues, and at the time of trial, the child, though at times challenging, appeared to be developing normally and exhibiting age-appropriate behaviors.
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The judge lastly pointed to various other medical conditions, such as several food allergies and sensitivities, eczema, and ear infections. These needs are not trivial, but given the fact that one of the primary reasons for changing the permanency goal to guardianship, eye surgery, is no longer required, and the younger childs other needs are not particularly severe, we do not consider this to be sufficiently strong evidence, even when taken with the other findings, that the mother would be unable to care for this child.
Lastly, we address the finding that the mother was struggling to meet her other childrens needs, especially the behavioral needs of the older child. This finding is of course of some concern, although none of the judges findings indicated a causal relationship between the older childs behavioral problems and the mothers parenting. Moreover, the judge did ultimately determine that the mothers progress in parenting the older child was sufficiently satisfactory that the older childs care and protection case was dismissed. Of course, “[a] parent may be fit to raise one child and unfit to raise another.” Adoption of Cesar, 67 Mass. App. Ct. 708, 712 (2006). However, while it is entirely possible that the mother would not be able to care adequately for all four children at once, we are not persuaded that the judges prediction about this is supported by “clear and convincing” evidence.
Having addressed the primary reasons the judge found the mother unfit, we briefly turn to two additional findings that contributed to the decision. First, the judge found that the mothers home was “messy” and “unclean” at times, and there was some clutter in the home throughout most of 2018. “The cleanliness of a parents home is an appropriate factor for consideration in determination of that parents fitness.” Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016). While uncleanliness that poses a health and safety risk to the children is a severe problem, the judges findings regarding the mothers home do not rise to that level of seriousness. In fact, the judge acknowledged that the apartment “appears to be basically adequate safety-wise for herself and the three children,” and that a messy house was understandable for a single parent of three young children.
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Second, the judge found that the mother was diagnosed with posttraumatic stress disorder (PTSD) and suffered depressive episodes, and the judge seemed especially concerned that the mother only attended individual therapy when she was experiencing symptoms. The judge may properly consider a parents mental illness in determining parental fitness, but it is “relevant only to the extent that it affects the parent[s] capacity to assume parental responsibility, and ability to deal with a childs special needs.” Adoption of Frederick, 405 Mass. 1, 9 (1989). While we may wish the mother was more consistent about attending therapy, the judge did not make any finding that the mothers mental illness affected her ability to care for her children.
The younger childs position, throughout trial and on appeal, has been that the finding of the mothers unfitness was inadequately supported, and that she should be reunited with her mother and three sisters. Of course, the rights of both the mother and the younger child to their natural family are implicated. See Care & Protection of Robert, 408 Mass. 52, 60-61 (1990) (recognizing as due process interest “[a] childs interest in the integrity of his or her family” and “[t]he interest of parents in their relationship with their children,” which “has been deemed fundamental, and is constitutionally protected” [quotation and citation omitted]). As the judge recognized, the question is not whether a judge thinks the mother will not be able to be as good a parent as the younger childs foster parent, see Care & Protection of Thomasina, 75 Mass. App. Ct. at 576, or even whether the younger childs life might in some dimensions be “better” were she placed permanently with the foster parent. See Care & Protection of Three Minors, 392 Mass. 704, 712 (1984) (“[Evidence of unfitness] may not be based on inappropriate factors, such as ․ a comparison of the material opportunities a foster parent may offer with those offered by a natural parent”). Rather, because of the right of a parent to her relationship with her child and vice versa, the only question is whether the mother is fit or unfit to parent the younger child. Because the facts found on that point do not rise to the level of clear and convincing evidence of the mothers unfitness to parent the younger child, at least as of the time of trial, returning custody of the younger child to the mother, as the judge did in the case of the older child would have been the appropriate course.
We recognize that a trial judges decision in a care and protection case is entitled to substantial deference. See Adoption of Hugo, 428 Mass. 219, 225 (1998). But at the end of the day, while we recognize the legitimate concerns expressed by the judge, and we cannot predict whether caring for a fourth child would overwhelm the mother, “[t]aken together,” the facts found by the judge do not “constitute[ ] clear and convincing evidence of the mothers current unfitness” to parent the younger child. Adoption of Paula, 420 Mass. 716, 730 (1995).
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Therefore, we vacate the finding of unfitness of the mother as to the younger child and remand the matter for further proceedings consistent with this memorandum and order.
We are acutely aware that in the two years that have passed since the original trial, circumstances may have changed both for the mother and for the younger child. The bonds the child has formed with her foster parent may have strengthened to the point where transition back to her birth family would prove to be very difficult for her, and would result in much more serious special needs than the ones identified at trial.
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The mothers situation and the needs of her three other children may have changed as well. On remand, the judge will be in a position to hear evidence of the changed circumstances that may be relevant to the decision on the mothers current fitness to parent the younger child.
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As for the fathers appeal, we affirm the judges finding that the father is unfit to parent either the older child or the younger child. Among other shortcomings, the father had failed to maintain sobriety consistently outside of incarceration, had been criminally convicted multiple times resulting in incarceration for long periods of the childrens lives, had missed all but one visit with the children when not incarcerated, and could not accurately recall which child he saw during that one visit. “[E]ven if a parent is found to be unfit, there are some situations in which the childs best interest may be served without a decree of termination.” Adoption of Flora, 60 Mass. App. Ct. 334, 342 (2004). And, as the judge recognized, termination of the fathers rights with respect to the younger child was not necessary in this case because “termination is not a prerequisite for guardianship.” Nonetheless, it is sometimes appropriate in such circumstances, Adoption of Xarina, 93 Mass. App. Ct. 800, 803 (2018), and we see no abuse of discretion in the judges determination that termination of the fathers parental rights was in each childs best interests. Despite our conclusion, however, because the proceedings on remand may alter the disposition with respect to the younger child, we think the prudent course is to vacate the termination decree with respect to the younger child in order to allow the judge to reassess the question of her best interests in light of any new evidence presented on remand and any such new disposition.
Accordingly, the judgment finding the mother unfit as to the younger child is vacated. The judgments finding the father unfit as to the older child and the younger child, as well as the decree terminating the fathers parental rights with respect to the older child are affirmed. The decree terminating the fathers parental rights with respect to the younger child is vacated. The matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Affirmed in part; vacated in part and remanded
FOOTNOTES
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. The mother has two additional children who are not the subject of this appeal.
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. The judge estimated that the mother missed about half of her twenty-seven visits with the younger child in 2018.
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. The child was tested for an individualized education program (IEP) but did not qualify.
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. In terms of the adequacy of space, as of the end of trial, the mother was scheduled to move to a four-bedroom apartment in January of 2019.
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. We again note that it has been the childrens consistent position throughout litigation, up to and including at argument last month, that the younger child be reunited with the mother and her three sisters.
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. Additional testimony from the younger childs current foster parent, as well as expert testimony, may be helpful on this issue.
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. We leave for determination on remand the precise contours of the further proceedings required to resolve the case that will, at a minimum, require the taking of further evidence.