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Care and Protection of Vick

Appeals Court of Massachusetts, Plymouth

July 13, 2016

CARE AND PROTECTION OF VICK. [1]

          HEARD: May 10, 2016.

         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.

          Present: Cypher, Blake, & Henry, JJ.

          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 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 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 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. Standa ...


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