Care and Protection of Umeko. ( 2023 )

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
22-P-487
CARE AND PROTECTION OF UMEKO.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A judge of the Juvenile Court adjudicated the father
currently unfit to parent the child, and the child in need of
care and protection, and granted custody of the child to the
Department of Children and Families (department). See G. L.
c. 119, § 26. The father appeals, arguing that the finding of
unfitness was not supported by clear and convincing evidence.
The father also argues that the finding that the child requires
placement in a residential program cannot stand, because the
finding conflicts with the child's individualized education plan
(IEP) and did not comply with the special education system for
disabled children, and because the finding was based on the
1 A pseudonym.
opinion of a clinician who was not qualified as an expert
witness.2 We affirm.
Background. We summarize the judge's findings of fact,
supplemented by undisputed evidence from the record. The child
was born in July 2012. When the child was four years old, she
was diagnosed with level 3 autism spectrum disorder. At the
time the department obtained emergency custody of the child in
June 2017, the child was living with the mother and maternal
grandmother, who had guardianship of the child.3 The father and
mother had ended their relationship in 2013, and the father had
moved to Florida in 2016 to care for his grandfather. When the
father learned that the child was in the department's custody,
he returned to Massachusetts and expressed an interest in taking
custody of the child.
The child is nonverbal and cognitively delayed. After she
entered the department's care in June 2017, she had several
2 The mother did not appeal from the adjudication that she was
currently unfit to parent the child.
3 The department's June 2017 emergency removal of the child was
the culmination of multiple reports of neglect of the child
beginning in 2014 and the department's investigation of those
reports. The child's school reported that she had a poor
attendance record and chronic head lice and that when she did
attend school, her diaper was soiled and her hygiene was
generally poor. During visits to the child's home, the
department workers saw holes in the wall caused by the child's
head butting, and dirty and unsanitary conditions. The maternal
grandmother announced that she no longer wanted to be the
child's guardian.
2
placements before being placed in the Evergreen Center
(Evergreen) in July 2018, where she remained at the time of
trial. Evergreen is a residential treatment program, where the
child attends school and lives in a home with the same peer
group; the educational objectives and residential objectives are
very similar, and designed to build up her skills "across
settings and across people." It is undisputed that the child
"has made great progress" while at Evergreen.4 The judge found
that despite the child's progress, however, she required twenty-
four hour "attentive supervision," as well as specialized
instruction and intensive treatment, as provided by Evergreen.5
4 When the child started at Evergreen, she was unable to
communicate, either verbally, by sign language, or by gestures.
She had tantrums, banged her head on the wall, and "headbutted"
staff members. She was not toilet trained and had issues with
food and eating.
By the time of trial in June and July 2021, the child was
able to communicate on a limited basis by modified sign language
and she was learning to use a device to communicate some of her
needs. She used the bathroom independently, was banging her
head less frequently and against softer surfaces when she did
so, and had fewer issues with food and eating.
5 Because the child wakes up in the middle of the night several
times per week and sometimes does not go back to sleep, she is
monitored by Evergreen staff all night. There was also evidence
that the child "requires a lot of really specialized instruction
[such as] careful arrangements of stimuli and reinforcement
contingencies in order to learn effectively," and that even with
such special instruction, "it has still taken her a very long
time to learn new skills."
3
The judge further found that the child would regress if she were
to live with the father.
The father is able to visit the child anytime at Evergreen
as long as he gives notice. He has also had four overnight
visits with the child in his home since December 2020, and
neither Evergreen nor the department had any concerns after
these visits. However, the father has not been consistent about
attending training sessions offered by Evergreen, IEP meetings,
and treatment meetings.
It is undisputed that the father has "really positive"
interactions with the child.6 He has "maintained communication
with the Department and been generally compliant with his action
plans." The child is described as happy, "always laughing and
gigg[l]ing."
Discussion. In a care and protection case, the department
must prove, "by clear and convincing evidence, that a parent is
currently unfit to further the best interests of a child and,
therefore, the child is in need of care and protection"
(citation omitted). Care & Protection of Rashida, 489 Mass.
128, 131 (2022). We do not disturb a judge's findings unless
6 The clinician testified "that [the father] really cares about
her and he loves her . . . . [T]hey definitely have a way to
communicate with each other a little bit." The department
social worker testified that the child responds positively to
the father during their visits and engages with him.
4
they are clearly erroneous. See Care & Protection of Vieri, 92
Mass. App. Ct. 402, 405 (2017). "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." Care & Protection of Vick, 89
Mass. App. Ct. 704, 706 (2016). "[T]he assessment of parental
fitness must focus on the [child] actually involved in the
proceedings, with [her] specific needs, interests and
requirements, and not on some hypothetical child . . . .
Fitness to act as a parent, in statutory and decisional context,
involves inquiry not only into the capacity of the biological
parent but into the best interests of the child. Parental
fitness and the child's best interests are interrelated
inquiries and are considered together" (quotations and citations
omitted). Care & Protection of Laurent, 87 Mass. App. Ct. 1, 6
(2015).
We reiterate that "[t]he burden of proof on the department"
to prove current unfitness is "heavy." Care & Protection of
Elaine, 54 Mass. App. Ct. 266, 271 (2002). "The requisite proof
must be strong and positive; it must be full, clear and
decisive" (quotation and citation omitted). Id. The evidence
here is sufficient to meet that high standard.
1. Father's unfitness. The father argues that it was not
shown by clear and convincing evidence that he was unfit -- that
5
is, that he had "grievous shortcomings or handicaps that put the
child's welfare much at hazard" (quotations and citation
omitted). Adoption of Greta, 431 Mass. 577, 587 (2000). He
notes that there have been no allegations that he abused or
neglected the child, and that he completed all the action plan
tasks. He emphasizes that it is undisputed that he "has a
special bond with" the child and that he loves and cares for the
child. He also contends that he has shown that he can provide
the care the child needs, inasmuch as he has administered to all
of her needs during his visits with the child, including the
four overnight visits, without generating any concern from
Evergreen or the department.
In his thoughtful decision, the judge recognized that the
father clearly cares for the child, but based the finding of
current unfitness on the father's inability "to further the
welfare and best interests of" the child. The critical facts
are that the child has "extensive needs," and that the father
has not demonstrated that he can care for those needs at this
time. Rather, the judge found that the father did not have
"full understanding of [the child's] needs, and he has not
consistently demonstrated a willingness to meet them." The
judge also expressed concern that due to the father's
minimization of the child's needs, and his inconsistent
attendance at treatment sessions and meetings offered by
6
Evergreen, "[the child] will not receive appropriate and
necessary services and structure if she were transitioned home
at this time." The judge also concluded that the father's
"handful of incident-free overnight visits does not support the
conclusion that Father is fit to parent his daughter on a full-
time basis." There was clear and convincing evidence to support
these findings,7 see Care & Protection of Laura, 414 Mass. 788,
790 (1993), and "the judge did not abuse his discretion or
commit a clear error of law in determining that the [father] was
unfit," Adoption of Luc, 484 Mass. 139, 147 (2020).
2. Subsidiary findings of fact. In challenging the
unfitness finding, the father also challenges certain subsidiary
findings as not supported by clear and convincing evidence.
Many of his challenges are "no more than a disagreement with the
judge's weighing of the evidence and credibility determinations
regarding witnesses." Adoption of Don, 435 Mass. 158, 166
(2001). For example, the father takes issue with the judge's
statement, in finding no. 57, that the father left a treatment
7 The judge could have relied on the following testimony by the
father to conclude that the father was currently unfit. The
father had not read the child's IEP in its entirety but what he
took away from it was that "she doesn't have good speech"; the
father did not know the methods by which Evergreen taught the
child to decrease head-banging behavior; further, he did not
understand why the child was prescribed her medications, did not
fully understand the programs developed by Evergreen to increase
the child's communication skills, and was not aware that she was
under the care of a psychiatrist.
7
meeting at Evergreen when told that there is no cure for autism,
and that the father "testified that he was in denial and did not
want to hear that his daughter would always be this way." The
father argues that "[t]his finding is factually inaccurate and
misrepresents" his actual testimony. The father does not
contest that he left the treatment meeting, however, nor does he
contest that he used the word "denial" to describe his reaction
to what he was being told about his daughter. We see no
material error in the judge's characterization of the father's
testimony.
Similarly, finding no. 58, in which the judge found that
the father "lacks a complete understanding of the medication he
administers to [the child] when she is in his care," is
supported by the father's testimony that he does not know "what
[the medications] are meant to treat." In finding no. 71, the
judge stated that the child still "requires attentive
supervision, [twenty-four] hours per day"; the father objects to
this statement as it "suggests that such supervision cannot be
accomplished in Father's custody." We do not agree with the
father's description of the finding. Rather, we view this
statement, in the context of the entire finding, as a recounting
by the judge of the child's nighttime routine at Evergreen, and
as supported by the evidence.
8
The father contests finding no. 73 insofar as it states
that the clinician from Evergreen "testified, and the Court so
credits, that [the child] would regress if she were returned
home right now." The remainder of the finding states, "The
Court is concerned with Father's understanding of [the child's]
needs at this time. Evergreen provides services and trained-
staff supervision around the clock. . . . She requires
specialized instruction and intensive treatment. It has taken
her a few years to develop new skills even with this type of
instruction." The judge accurately reprised the clinician's
testimony, and we are not persuaded by the father's claim that
this finding impermissibly shifted the burden of proof to him to
prove that he was unable to meet the child's needs. We discuss
the father's argument regarding the clinician's qualifications
infra.
The father also challenges findings no. 78 and 79 -- which
discuss the father's failure to fully understand the child's
needs and his minimization of her diagnosis and prognosis -- but
those challenges are unavailing as they are supported by the
father's own testimony. For example, the father testified that
the child does not "deserve[] to live" at Evergreen, that "[s]he
needs to be around more kids that are more awake so she can
awake that motor skill in her head," and that she has never been
aggressive and that her main problem is her lack of speech. The
9
judge was not required to accept the father's views of the
child's needs and situation in light of other evidence in the
record that contradicted the father's views -- to the effect
that the child needed intensive support and constant
supervision. See Care & Protection of Olga, 57 Mass. App. Ct.
821, 824 n.3 (2003) ("Where there are two permissible views of
the evidence, the factfinder's choice between them cannot be
clearly erroneous" [citation omitted]).
3. Child's need for residential placement. The father
argues that the judge's conclusion that the child requires a
residential school placement cannot stand because such a
placement was not included as a component of the child's IEPs.
According to the father, the judge transgressed State and
Federal laws by in essence amending the child's IEPs, or making
a finding that contradicts them. See Kelly K. v. Framingham, 36
Mass. App. Ct. 483, 484 (1994) ("The rights of all children with
disabilities are provided for in an extensive and detailed
legislative and regulatory scheme, both Federal and State"). We
disagree, however, because the premise of the argument -- that
the child's IEPs did not contemplate a residential placement --
is incorrect. Indeed, the IEPs contain an acknowledgement that
the child was placed at Evergreen and that the cost of the
placement was shared by the local school system and the
department.
10
The father also argues that the judge's conclusion that the
child required a residential placement violated 603 Code Mass.
Regs. § 28.01 (2014), which requires that a child with special
needs be educated "in the least restrictive environment."
However, the judge was entitled to conclude, based on all the
evidence, that placement in a residential program was the least
restrictive environment for this child. There was testimony,
and the judge found, that the child required twenty-four hour
supervision. The judge was not required to accept the father's
belief that the child could and should live at home with her
family. See Care & Protection of Three Minors, 392 Mass. 704,
711 (1984) (judge "not obliged to believe the [parent's]
testimony or that of any other witness").
4. Testimony of Evergreen's clinician. At trial, the
clinician was asked her opinion about whether it was better for
the child to be in a residential program, as opposed to living
with the father and attending a day program. An objection to
that question was sustained. The clinician was then asked if
she had any concerns if the child were returned to the father's
custody. There was no objection to this question, and the
clinician answered that she "would be concerned that [the
child's] progress would regress" because "she would not be
receiving the intensive treatment that she would require in
order to maintain [the skills she had achieved] or to learn
11
effectively new skills that she could carry from one setting to
the next." The clinician also testified without objection that
she had concerns that if the child were moved to a day program,
her regressions could be safety issues because she lacked "self-
preservation skills."
The judge credited the clinician's testimony. The father
argues that the clinician should not have been allowed to
testify about what would happen if the child were returned to
the father's custody because she was not qualified as an expert.
Although the father objected to the first question, whether it
was better for the child to live with the father or in a
residential program, no objections were raised as to the
subsequent questions and answers about the clinician's concerns.
The argument was accordingly waived. See Adoption of Carla, 416
Mass. 510, 515 (1993). In any event, the clinician testified to
her "concerns" based upon her personal observations and
knowledge of the child; such testimony was within the purview of
a lay witness. And lastly, even without consideration of the
clinician's testimony complained of by the father, the judge
could fairly infer from all the evidence that the child would
not continue to make progress if she instead lived with the
father.
5. Father's financial status. The father argues that the
judge "predicated" his finding of unfitness "on Father's
12
inability to pay for private residential care."8 Father's br.
47. This is based on the judge's finding that "[i]f custody
were returned to Father, the Department would no longer fund the
residential services at Evergreen. . . . [The child's] IEP does
not include residential services." The father reasons that
"[e]ven if there was enough evidence to show that the child
needed residential level of care, that finding alone would not
be sufficient to find a parent unfit, unless one also finds that
Father's inability to pay the steep program fee is the reason
for his unfitness -- a conclusion not only precluded by current
caselaw but also patently absurd."
We are not persuaded by the father's reasoning. A review
of the judge's findings and conclusions indicates many reasons
for the judge's finding of unfitness that are unrelated to the
costs of residential services. Moreover, in the passage the
father highlights, the judge was not making a finding about the
father's financial status, but instead, was explaining that the
child could not attend Evergreen if she lived with the father
because (1) Evergreen was a residential program and did not
permit students to only attend the day program, (2) Evergreen
was not approved as a day school, and (3) the child's local
school system had not agreed to pay for her to attend a
8 The clinician testified that Evergreen's annual tuition was
"around $200,000."
13
residential program like Evergreen. We see no basis for the
father's claim that the finding of unfitness was "premised" on
the father's inability to pay Evergreen's tuition.
Conclusion. The judge recognized, as do we, the father's
"commitment and love for his daughter."9 However, the judge was
also constrained to consider the child's very special needs and
specific disabilities in determining whether the father was fit
to parent this child. See Adoption of Abigail, 23 Mass. App.
Ct. 191, 193 (1986) (child's "special needs are relevant because
they bear on whether this particular [parent] can be a fit
parent to this particular child"). See also Guardianship of
Estelle, 70 Mass. App. Ct. 575, 581 (2007) ("A parent may be fit
to raise one child but not another"). We note that the
department did not seek a termination of the father's parental
rights and that the permanency plan remains reunification of the
child with the father. To that end, the judge encouraged the
father "to continue working with [the child] and [Evergreen]
toward an eventual reunification and the filing of a review and
redetermination petition, when appropriate, in the future." See
G. L. c. 119, § 26 (c) (parent "may petition the court not more
than once every [six] months for a review and redetermination");
9 A finding of parental unfitness is "not a moral judgment or a
determination that the [parent] . . . does not love the child."
Adoption of Knox, 102 Mass. App. Ct. 84, 95 n.16 (2023), quoting
Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017).
14
Care & Protection of Erin, 443 Mass. 567, 572 (2005) (parent may
seek review and redetermination of custody order if he can
"present some credible evidence that circumstances have
changed"). In the particular circumstances present here, there
was no error in the judge's finding that the father is currently
unfit.
Judgment affirmed.
By the Court (Englander,
Grant & Brennan, JJ.10),
Clerk
Entered: April 20, 2023.
10 The panelists are listed in order of seniority.
15