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March 13, 2026 Get Citation Alerts Download PDF Add Note

Care and Protection of Marcie.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0979

• Precedential Status: Non-Precedential

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

• Similar Cases (23.3K)

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Combined Opinion

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-979

CARE AND PROTECTION of MARCIE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father and the child appeal from a judgment issued by

the Juvenile Court judge finding the parents unfit and granting

permanent custody of the child to the Department of Children and

Families (DCF).2 We conclude that the trial judge properly found

clear and convincing evidence of parental unfitness caused

primarily by the father's lack of suitable and safe housing, his

neglect of the child's educational and medical needs, and his

partner's untreated and unaddressed mental health issues and

substance use. Discerning no significant error in the findings

1 The child's name is a pseudonym.

2The judgment also granted permanent custody of one of the
child's two siblings, who are not the father's biological
children, to DCF. The child's eldest sibling obtained adulthood
before the judgment. The mother, the siblings, and the
siblings' biological fathers are not parties to this appeal. No
party challenges the finding that the mother is unfit.
and concluding that the judge reasonably chose guardianship by

DCF as the best of the imperfect options in the best interests

of the child, we affirm.

1. Background. DCF's most recent involvement with the

family began in November 2021, when Marcie was six years old,

after a report that the family was living in a motel room and

that Marcie was not attending school. Motel staff confirmed

that the family was staying there, and DCF attempted to contact

the family for several days before visiting in person. The

mother had opened the door to DCF, but provided a false

identity, claiming that DCF had the wrong room. The mother

called DCF the next day, however, and admitted that she had lied

about her identity. The mother eventually agreed to meet with

DCF on December 6, 2021. Both the mother and the father

attended the meeting and shared that Marcie had never been

enrolled in school.

In June 2022, the family was evicted from the motel and

moved to one in a nearby town. On July 13, 2022, the mother

contacted DCF and stated that she was in Florida with the father

and the children and would not be back until the end of July.

Then, from late July to October 2022, notwithstanding DCF's

consistent efforts, the family proved unreachable. Finally, on

October 31, 2022, DCF located the eldest child at his

2
girlfriend's home. The child reported that the rest of his

family was in Florida, but he had stayed behind.

Shortly after the start of DCF's involvement with the

family in November 2021, all three children were enrolled in the

Virtual Academy, but the number of absences remained markedly

high. At one point, the Virtual Academy reported that Marcie

had attended for only one hour across two days in all of April

1. DCF instructed the mother that Marcie and the mother's

second oldest son would attend school in person for the 2022-

2023 year. The mother agreed to enroll the children herself.

In March 2022, DCF referred the family to both in-home

therapy services and services to support the family with school

attendance. The family never contacted either service and

failed to follow up after multiple attempts to facilitate

services. In addition, the children had not been seen by a

pediatrician for approximately three years. In April 2022,

after direction from DCF, the mother brought Marcie to a

doctor's appointment. The pediatrician expressed concerns about

Marcie's weight gain and noted that Marcie had "terrible dental

hygiene."

By early November 2022, DCF had obtained custody of the

children after learning that none of the three children had

attended school for the academic year 2022-2023. From November

2022 to December 2024, random drug screening of the mother

3
consistently detected the presence of unprescribed drugs, such

as Suboxone, Benzodiazepine, and Oxycodone. The mother ignored

requests for further drug testing, denied having a substance use

disorder, and refused to engage in treatment or services. The

father, too, rejected therapy services, and reported having no

mental health concerns. After attending only three sessions,

the father stopped because he did not understand why he needed

therapy. He was compliant with drug evaluations and completed

one parenting class. Otherwise, though, the father generally

did not meet the tasks in his action plans.

The first task on each of the father's service plans

required that he "obtain and maintain a safe, stable, nurturing

home." Despite DCF's (and the family's own social worker's)

connecting the family with resources and recommendations on

housing services, the parents' housing remained unresolved as of

trial. Both parents were living with the father's brother, who

was a level three registered sex offender.

After a trial in June 2024, a Juvenile Court judge found

that both the father and the mother were unfit and granted DCF

permanent custody of Marcie. This appeal followed.

1. Unfitness determination. a. Standard of review. "To

find a child in need of care and protection, there must be 'an

affirmative showing of parental unfitness.'" Care & Protection

of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting Custody of

4
a Minor, 377 Mass. 876, 882 (1979). "[T]he idea of 'parental

unfitness' means 'grievous shortcomings or handicaps' that put

the child's welfare 'much at hazard.'" Adoption of Yvonne, 99

Mass. App. Ct. 574, 577 (2021), quoting Adoption of Katharine,

42 Mass. App. Ct. 25, 28 (1997). Specifically, a judge may

consider "a parent's character, temperament, conduct, and

capacity to provide for the child in the same context with the

child's particular needs, affections, and age." Care &

Protection of Laurent, 87 Mass. App. Ct. 1, 6 (2015), quoting

Adoption of Mary, 414 Mass. 705, 711 (1993). "The judge's

fitness determination must be supported by 'specific and

detailed' findings that demonstrate parental unfitness by clear

and convincing evidence." Care & Protection of Gaston, 106

Mass. App. Ct. 450, 456 (2026), quoting Custody of Eleanor, 414

Mass. 795, 799 (1993). The evidence adequately supported the

judge's conclusion that the father's unfitness "resulted from a

'constellation of factors'" that rendered him presently

incapable of providing appropriate care for his daughter.

Adoption of Oren, 96 Mass. App. Ct. 842, 845 (2020), quoting

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

b. Housing instability. "While homelessness, poverty, and

financial instability alone are not sufficient to terminate a

person's parental rights, they are proper considerations in an

unfitness determination." Adoption of Virgil, 93 Mass. App. Ct.

5
298, 303 (2018). Although a child "should never be removed

. . . on the sole basis of homelessness," Adoption of Linus, 73

Mass. App. Ct. 815, 821 (2009), quoting 110 Code Mass. Regs.

§ 1.11 (2000), the judge may properly consider a parent's

"inability to secure 'adequate stable housing.'" Adoption of

Anton, 72 Mass. App. Ct. 667, 676 (2008), quoting Adoption of

Vito, 431 Mass. 550, 555 (2000).

Here, the family has a history of housing instability. See

Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004)

(parent and child's frequent moves were factor supporting

finding of unfitness). After moving, by agreement, from their

apartment in 2021, the family moved between friends' homes and

motels. They then spent several weeks in Florida and, upon

returning to Massachusetts, "the only hotel [the father] could

find was in New York State." Before the family could head to

New York, however, the children were removed from the parents'

custody.

At the time of the trial, the parents were living together

with the father's mother and brothers. The father acknowledged

that a registered sex offender's living in the same house as him

and the mother "has been an issue for [DCF]," and that he has

asked his brother to move out "[a]t least three" times "[s]ince

the children have been taken out of [his] custody." The father

provided no concrete timeline or plan for the brother's move out

6
of the house, instead simply stating, "He's working on it at the

moment right now. He will be out." The mother stated that the

house has three bedrooms, but she and the father sleep "[i]n the

dining room." The mother also stated that, in the event of

reunification, the family would live in this house and the

children would sleep "[i]n the bedroom upstairs," which is the

room "that [the brother] will be leaving." Nevertheless, the

evidence showed that the brother still lived there, and DCF had

never been allowed to visit the home because the owner, another

of the father's brothers, was "not comfortable with it." There

was no way for DCF to confirm whether the house would be

suitable even if the sex offender did leave.

DCF reported that "[n]either parent has provided proof of

efforts to obtain their own housing." When asked what he had

done to secure housing for the family, the father answered, "I'm

not really able to because of work." DCF confirmed that the

family had no active housing assistance applications. Moreover,

only the mother reported what steps the family took toward

obtaining housing. The record provided adequate support for the

judge's findings that the "[f]ather has not obtained a safe and

stable home" or "done anything to get housing" and that "the

housing issue [was] still an issue at the close of evidence."

See Adoption of Yvonne, 99 Mass. App. Ct. at 581 (judge's

findings "that the mother did not maintain stable housing for

7
nearly the entire duration of the proceedings, that the mother

made insufficient efforts to secure such housing for herself and

the children, and that the mother 'fail[ed] to appreciate the

seriousness of her family's housing crisis,' were not clearly

erroneous").

c. Educational and medical support. The record

demonstrated that the father "had failed to meet the daily needs

of the children for proper medical, dental, educational support

and care." See Adoption of Anton, 72 Mass. App. Ct. at 676

("Where a parent is ineffective in obtaining medical care for a

child, causing neglect of the child, it is relevant to finding

of unfitness"). As of 2022, the child had not seen a

pediatrician since 2019. At the child's 2022 visit, the doctor

expressed concern about her weight, as she had gained thirty-

four pounds in three years. The evidence of medical neglect

also included a marked failure to tend to the child's dental

hygiene. The pediatrician noted that the child's teeth were

"down to the gumline." Since the child had been in DCF custody,

the father had attended only two of her medical appointments.

Moreover, while in the father's care, the child did not

attend a single day of school for the 2022-2023 school year.

Since being in DCF custody, the child was "doing well

academically in school." She "excel[led] in reading and math."

The mother's testimony at trial also established that, in the

8
event of reunification, the mother would be the one to "get [the

child] up, have breakfast, ready for school, get her to school,

come home, help her with whatever homework she would have."

Despite repeated requests for a parenting plan, the father

presented no alternative plan. As the judge found, although the

"[m]other may have been the daily caregiver when [the father]

was at work, . . . both failed to meet their children's needs

for these important childhood needs." See Care & Protection of

Gaston, 106 Mass. App. Ct. at 456 ("Although the father's

employment constraints contributed to his unavailability for

some visits, the judge properly found that the father

'contributed substantially to the lack of progress in expanding

his relationship with his son' by 'putting his own needs or

preferences before [his son's]'"). See also Guardianship of a

Minor, 1 Mass. App. Ct. 392, 396 (1973), quoting Richards v.

Forrest, 278 Mass. 547, 554 (1932) ("inability or indisposition

to control unparental traits of character or conduct, might

constitute unfitness . . . also, incapacity to appreciate and

perform the obligations resting upon parents might render them

unfit").

d. General parenting capacity. The evidence supported the

conclusion that the father lacked "insight into [the mother's]

substance abuse and how that may negatively impact her care of

9
children."3 See Adoption of Flavia, 104 Mass. App. Ct. 40, 49

(2024), quoting Adoption of Talik, 92 Mass. App. Ct. 367, 374

(2017) ("The parents' pattern of minimizing responsibility for

incidents resulting in harm to all three children, . . . their

limited understanding of their roles in causing . . . trauma in

the family . . . were 'compelling evidence for a finding of

parental unfitness'"). Although the father participated in a

parenting class, DCF reported that he had "yet [to]

demonstrate[] the tools he learned" from the class. See

Adoption of Terrence, 57 Mass. App. Ct. 832, 835-836 (2003)

("evidence of the mother's participation in parenting programs

at the request of DSS, without evidence of appreciable

improvement in her ability to meet the needs of the child, does

not undermine a finding of unfitness"). He did not engage

consistently in services. Although acknowledging that the

father worked during the day, the judge appropriately noted that

it nonetheless matters for the child, in light of the mother's

unchallenged unfitness, that the father missed (or failed to

3 DCF noted "med seeking" behavior in the mother. The
mother would report having visited the emergency room and having
received prescriptions. She was hospitalized for seizures and
pain but never arranged to see a neurologist or a doctor to
determine a plan of care. She stated that she has "never had
any addiction issues." DCF requested that the father provide a
list of the mother's prescription medications. He did not do
so.

10
attend) appointments.4 The father presented no parenting plan

for the child, despite repeated requests from the social worker.

See Adoption of Ramona, 61 Mass. App. Ct. 260, 263 (2004),

quoting Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985) ("the

issue is the current fitness of the biological parents to

further the welfare and the best interests of the particular

child"). DCF's expert opined that the father and the mother did

not have "sufficient parenting capacity during the parent/child

visit[s] to manage [the children's] individual social,

emotional, and behavioral needs."

"All of the subsidiary facts, taken together, ultimately

supported the judge's conclusion of parental unfitness by clear

and convincing evidence." Adoption of Yvonne, 99 Mass. App. Ct.

at 582. See Care & Protection of Vieri, 92 Mass. App. Ct. 402,

405 (2017), quoting Petitions of the Dep't of Social Servs. to

Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987)

("Evidence such as the failure of the parents to keep a stable

home environment for the children, the refusal of the parents to

maintain service plans, visitation schedules, and counseling

programs designed to strengthen the family unit are relevant to

the determination of unfitness").

4 The judge also found that the DCF social worker failed to
invite the parents to some medical appointments.

11
3. Judge's findings. a. 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." Care & Protection of Vick, 89

Mass. App. Ct. 704, 706 (2016). "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.'" Custody of Eleanor, 414

Mass. 795, 799 (1993), quoting Building Inspector of Lancaster

v. Sanderson, 372 Mass. 157, 160 (1977). "'[I]n this field it

is neither possible nor desirable to make decisions with

precision, and [] "much must be left to the trial judge's

experience and judgment"'; therefore, the judge's assessment of

the credibility of the witnesses and the weight of the evidence

is entitled to deference" (citation omitted). Adoption of

Elena, 446 Mass. 24, 31 (2006). The father challenges five of

the trial judge's findings.5 We review each in turn.

5 The father also challenges one of the footnotes in the
findings: "All findings as to Mother are relevant to Father's
appeal, as his plan for cohabitation and co-parenting with
Mother being her caretaker when he is at work." We discern no
error where the trial evidence established that the father and
the mother intended to remain together as a couple and that the
father would continue to rely on the mother for caretaking. See
Adoption of Larry, 434 Mass. 456, 471 (2001) (evidence supported
"judge's finding that the mother did not intend to remain apart
from the father, and she would therefore be unable to protect

12
b. The father's intention to have the mother care for the

child. The judge found, "Father hasn't done anything to get

housing, as he works during the week. I take this testimony to

mean he would intend for Mother to caretake [the child] when he

is at work." The judge's conclusion in this regard was a

permissible inference from the evidence. See Adoption of

Daniel, 58 Mass. App. Ct. 195, 199-200 (2003) (trial judge may

draw reasonable inferences supported by evidence). See also

Care & Protection of Laurent, 87 Mass. App. Ct. at 8

("Speculation about the mother's future ability to feed her

child healthy food, for example, must stem from 'credible

evidence'"). The father maintained that he cannot search for

housing because of work and has not helped the mother obtain an

apartment. The judge's inference was sound that the father, who

(even without the responsibilities of caring for children) is

relying on the mother to find an apartment, would depend on the

mother to care for the child. The father now argues that "[t]he

Trial Court does not even consider . . . possible alternative

childcare plans that Father might implement as any working

[the child] from future abuse. . . . The evidence indicates a
strong level of dependency on the father by the mother, and a
continuing intention against severing their relationship"). See
also Custody of a Minor, 16 Mass. App. Ct. 998, 1001 (1983)
("[B]esides weighing the capacities of mother and father as
individuals, the court is to try to envisage how they interact
to constitute a unitary household for the care of the child").

13
parent might choose to do." The child also contends that "DCF

never even questioned Father about a caretaking plan." To the

contrary, the evidence shows that DCF repeatedly attempted to

learn the father's parenting plan. A DCF response worker

testified that he had "provided the family with a budget plan

and as well as a parenting plan, which were also not completed."

A DCF social worker testified that the family had "stated that

they had one [parenting plan] completed through . . . the

private social worker that they attained," but "they still

haven't . . . brought it into the Department." The judge was

well justified in discerning, from the father's repeated failure

to provide a parenting plan to DCF, that he had none. Cf.

Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 134 (1990) ("Being

a parent is not a sometimes thing"). We discern no error.

c. The father's participation in therapy. The judge found

that the "[f]ather tried therapy, but it was not for him. He

stopped after three or four sessions." The judge also stated,

"As of August 2023, Father did three sessions of therapy . . . .

He said he didn't understand why he was in therapy, and it

ended. [The DCF social worker] checked with the therapist.

Father stopped therapy." Lastly, the judge found that the

"[f]ather saw [a therapist] for a few therapy sessions. Father

denies having any mental illness. He was discharged from

therapy." Contrary to the father's assertion that "there is no

14
evidence anywhere that [he] stopped therapy on his own," the DCF

social worker's report stated that she contacted the father's

therapist, who reported that the "Father denies having any

mental illness. He was discharged from therapy." She further

testified that the father "talked to [her]" and did not

"understand why he needed to be [in therapy]" and that he never

went back to therapy after his first three sessions. The judge

reasonably inferred from this evidence that the therapy stopped

because the father did not want to continue. The judge, who was

best positioned to assess the witnesses' credibility and to

evaluate the evidence, did not err. See E.K. v. S.C., 97 Mass.

App. Ct. 403, 409 (2020).

d. The father's support of the mother. The judge found

that DCF's expert "made some recommendations to help improve

parenting time, including trying to set some rules around the

use of electronics by the two boys. Social worker . . . noted

that after this, Mother did try to set some structure and rules

by limiting electronic use. Father did not make an effort to

support Mother in these efforts." DCF's expert witness, a

psychologist, performed a parental capacity evaluation of the

mother and the father. The judge credited the doctor's ultimate

opinion and noted that his report, "when considered in

conjunction with the trial evidence as a whole," supports a

finding of unfitness by clear and convincing evidence. In a

15
relatively minor portion of the report, the doctor concluded

that the parents failed to "set limits regarding technology

usage" during the visit he attended. At subsequent supervised

visits with DCF, however, the mother "utilized some ideas from

[the doctor]," and "tried to set ground rules and asked [the

older children] to take their headphones off and turn off cell

phones during the visit." The DCF social worker noted that the

father "did not make any effort to support [the mother] with

creating structure and setting the ground rules for [the]

visit." The judge's finding was supported by the record.

1. Best interests determination. "Parental fitness and

the child's best interests are interrelated inquiries and are

considered together." Care & Protection of Laurent, 87 Mass.

App. Ct. at 6. "A 'judge who finds parental unfitness to be

established has broad discretion to determine what is in a

child's best interests with respect to custody and visitation

with biological family members thereafter.'" Adoption of Ursa,

103 Mass. App. Ct. 558, 571 (2023), quoting Adoption of Rico,

453 Mass. 749, 756 (2009). An appellate court "defer[s] to the

judge's determinations regarding the best interests of the

child, and reverse[s] only where there is clear error of law or

abuse of discretion." Adoption of Cadence, 81 Mass. App. Ct.

162, 166 (2012). "It is in the best interests of [the child] to

have 'parents' who can and who will, on a consistent, longterm

16
basis, assume all parental responsibilities and who can provide

[the child] with the stable and continuous care and nurturing

she needs and will continue to need as a child." Adoption of

Gwendolyn, 29 Mass. App. Ct. at 136. "An abuse of discretion

exists where the decision 'amounts to a "clear error of

judgment" that falls "outside the range of reasonable

alternatives."'" Adoption of Xarissa, 99 Mass. App. Ct. 610,

616 (2021), quoting Adoption of Talik, 92 Mass. App. Ct. at 375.

Without question, this case presented difficulties in

determining the best interests of the child. As detailed above,

the judge properly found that the father was currently unable to

ensure that the child attended school. The father did not

prioritize the child's medical appointments. The father did not

express any understanding of the mother's substance use and its

impacts on the child. The father was still living with a

registered sex offender and had no appropriate housing plan.

On the other hand, it was unquestionable that the child had

not adapted well to DCF's custody. By October 2023, the child

had to be removed from her foster placement because she was

causing disruption in the home. After moving into another

foster home, the problems continued. She was hurting herself

and other children and breaking things. She eventually was

placed in a residential program where she could engage in one-

on-one therapy and psychiatry services. Moreover, after visits

17
with her parents, the child was sad and expressed that she

misses her parents.

As neither option was without flaws, the judge reasonably

concluded that DCF custody was a better solution for the child,

for now, than placing her in a home with a registered sex

offender, in the care of a father who proved incapable of

attending to her educational and medical needs and showed no

significant improvement over the course of the case. The judge

reasonably rejected DCF's assertion that termination of parental

rights was in the child's best interests, instead hoping that

the father would work to correct his parental deficits and

become the responsible caregiver that the child plainly needs.

As the judge noted, "[i]t is the fervent hope of this Court that

the parents are capable of change." We discern no abuse of

discretion in the judge's determination that this, and not

return to a situation that already proved inadequate, was the

best solution here.

Judgment affirmed.

By the Court (Vuono,
Ditkoff & D'Angelo, JJ.6),

Clerk

Entered: March 13, 2026.

6 The panelists are listed in order of seniority.

18