Heard: November 7, 2018.
filed in the Norfolk County Division of the Juvenile Court
Department on September 9, 2014. The case was heard by Mary
M. McCallum, J.
S. Spanos for the mother.
T. Rose for Chad.
M. Murphy for Department of Children and Families.
M. Toomey for Anne.
Present: Milkey, Henry, & Englander, JJ.
care and protection case, a Juvenile Court judge found the
mother of two children unfit and terminated her parental
rights as to them. The judge's decision was based in
critical part on her assessment that the mother was unable to
appreciate or address both children's extensive special
needs. The mother and one of the children have appealed. For
the reasons that follow, although we agree with the judge
that serious issues regarding the mother's fitness have
been raised, we nevertheless conclude that various
shortcomings in the proceedings necessitate that the matter
1980, the mother moved to Massachusetts at age seventeen with
her parents. In January of 1999, the Department of Children
and Families (DCF) removed the mother from her home after
reports that she was being physically abused, and she
remained in DCF's care and protection until August of
2002 (the month she turned twenty-two) . At that point, the
mother was placed with the Department of Developmental
Services (DDS) because of her mental disabilities.
judge did not make findings about the degree of the
mother's mental disabilities, nor is that clear from the
trial record. On one hand, there is a reference in one of the
exhibits to the mother being "very cognitively
challenged," and the extent of the services that she has
received from DDS suggests a substantial mental disability.
On the other hand, there are other suggestions in the record
that her disability is only "moderate" or even
"mild," with one person describing her as being
"smart as a whip and doing fine." No expert
testified as to her disabilities; in fact, no one from DDS
testified at all. There was evidence that the mother's
therapist had assigned to her a "global assessment
functioning [rating] of 51 out of 100," without any
explanation of what that meant or how it mattered. Although
the judge appears to have accepted that assessment, no
evidence of how that particular level of functioning affected
the mother's parenting skills was presented.
2016, the mother was diagnosed as also suffering from a
moderate degree of major depressive disorder. In addition, it
is uncontested that the mother is morbidly obese (weighing
over 500 pounds at the time of trial), and that this
condition at least somewhat affects her mobility.
The nature of the trial evidence.
turning to a summary of DCF's involvement with the
family, we highlight the nature of the evidence adduced at
trial. Although the mother testified at length, her testimony
mainly addressed the period after the children were removed
in September of 2014. There were three other witnesses at the
trial: the woman who had served as the foster mother of the
children for a period of time after their removal, the DCF
adoption worker assigned in 2015, and the DCF social worker
assigned in 2015. Thus, there was almost no live testimony
that addressed the mother's parenting of the children
while they were in her care.
DCF relied on the documentary record with regard to what
happened prior to the children's removal. That record,
consisting of thirty-six trial exhibits, included reports
produced pursuant to G. L. c. 119, §§ 51A and 51B
(51A reports and 51B reports), and the report of a
court-appointed investigator appointed pursuant to G. L. c.
119, § 24. Those reports were submitted with agreed-upon
redactions, and the parties and the judge shared a common
understanding that the 51A reports could be used only to
"set the stage," and that the 51B reports were
"admitted to the extent that they contain[ed] primary
fact and statements of the mother." See Custody of
Michel, 28 Mass.App.Ct. 260, 266-267 (1990) . See also
Adoption of Luc, 94 Mass.App.Ct. 565, 566-569
(2018). We turn next to what the documentary record
established with regard to DCF's involvement with the
family prior to the removal of the children.
was born in November of 2006. The mother and Chad lived in a
DDS-funded group home in the Dorchester section of Boston,
operated by Dare Family Services (Dare), where the mother had
been placed just before Chad was born. At the group home, the
mother had twenty-four hour assistance from a full-time staff
supplied by DDS. The record reflects that during this period,
the mother was able to attend to Chad's everyday needs
with the help of the Dare staff, which led DCF to close a
case it had opened before newborn Chad had been discharged
from the hospital. In June of 2008, a 51A report was filed
expressing concern over the mother's yelling at Chad and
lack of attentiveness toward him, but DCF closed the matter
after concluding that the mother showed apparent improvement.
February of 2011, the mother and Chad had moved to a
"shared living" home in the Roxbury section of
Boston, still with round-the-clock supervision, where they
remained under the care of DDS. That same month, the mother
gave birth to Anne, and the family moved back to Dare's
Dorchester group home. During this period, DCF looked into
allegations that the mother was neglecting newborn Anne and
physically abusing Chad. However, further investigations
"indicated that the mother and children were doing
fairly well," and DCF ultimately concluded that the
allegations were unsupported.
The family moves to Brockton.
December of 2011, DDS moved the mother and her children to a
foster home in Brockton. At the Brockton home, also run by
Dare, the proprietor, Betsy Goodacre (a pseudonym), looked
after the family. In addition, the mother was later provided
the weekly services of an aide to assist her in staying on
top of appointments and such. The family remained at the
Brockton home until the summer of 2014.
March of 2012, Chad, then five years old, began to exhibit
sexualized behavior at school, such as telling a girl that he
wanted "to lick her between her legs." Concerned
that Chad might have been subjected to sexual abuse, DCF
investigated. The mother and Chad denied any allegations of
sexual abuse, and DCF did not find such allegations
supported.DCF did document a number of ways that Chad
could have been exposed to inappropriate sexual images or
activity. These included his having observed instances of
nudity and sexual behavior involving third parties at the
Dorchester group home, and his having observed pornography on
the mother's tablet computer or cellular telephone.
Notably, the clinical supervisor at Dare -- one of two
parties who reported Chad's sexualized behavior --
nevertheless concluded that Chad could remain in the home (so
long as he had a separate bedroom), and she expressed her
view that the mother "ensures that the basic needs of
her children are met at all times."
August of 2012, while the family was still living in
Brockton, the mother had to be hospitalized for a physical
ailment, and she left her children in the care of Goodacre.
This led to a 51A report expressing concern about the
mother's ability to care for the children, especially if
her absence became prolonged. Apparently after the mother was
discharged from the hospital, DCF screened out the concerns
based on existing supports.
February of 2014, an early intervention provider for one of
the children expressed concerns to DCF about the mother's
ability to care for the children. The concerns were over
whether the mother's cognitive issues and weight-related
immobility were causing the mother not to meet the
children's basic needs or to follow up on recommended
services for them. At this time, Goodacre stated her view
that the mother "is a good mother and does the best that
she can." The Dare clinical supervisor shared that view
and requested that an aide be arranged for the mother; one
was ultimately provided to her for four months.