CARE AND PROTECTION OF YARRICK. 
Care and protection. Parent and Child, Care and protection of
minor. Practice, Civil, Care and protection proceeding,
Findings by judge.
Michael S. Penta for the father.
A. Ciulla for the child.
Marianna Jisun Yang for the mother.
Pariser, Assistant Attorney General, for Department of
Children and Families, was present but did not argue.
consolidated appeal, Yarrick's noncustodial father
challenges (1) an adjudication finding him unfit and the
child to be in need of care and protection, and (2) a
subsequent order specifically finding that the father
remained unfit, but nonetheless dismissing the care and
protection petition and returning the child to the
mother's care. The father contends, and the Department of
Children and Families (department) agrees, that the original
determination of the father's unfitness was infected by
procedural due process irregularities and that the
judge's attempt to imbue the finding of continued
unfitness with preclusive effect is invalid. The mother and
child ask us to affirm both findings of the father's
unfitness. Concluding that the finding of continued unfitness
was not integrally related to the dismissal of the care and
protection petition, we vacate the aspect of the judge's
order of dismissal purporting to give that finding preclusive
effect. We dismiss the appeal from the original finding of
department initiated care and protection proceedings on
behalf of the child in August 2015, when he was nine months
old. See G. L. c. 119, § 24. At that time the mother was
the custodial parent and the father, who had no involvement
in raising the child, had not yet established paternity. The
court granted the department temporary custody. A one-day
trial on the merits was held on July 10, 2017. The father was
neither present nor represented by counsel. After the
mother stipulated to her present inability to care for the
child and the social worker assigned to the case testified
about her own interactions with the father, the judge found
both parents unfit and entered an order committing the child
to the department's custody. The judge subsequently
appointed new counsel for the father, who filed a timely
notice of appeal. The father later established paternity.
review and redetermination hearing was scheduled for
September 17, 2018. The department, satisfied that the mother
had complied with her service plans and was able to care for
the child, sought to dismiss the care and protection
petition. The father was not present but was represented by
counsel. The father's counsel opposed the
department's motion to dismiss and, noting that the
father was not represented or present at the hearing in which
he was originally found unfit, asked to continue the matter
for an updated court investigation and renewed hearing on the
father's fitness. The judge decided to proceed with the
hearing as scheduled. At the conclusion of the hearing, where
again only the social worker testified, the judge concluded
that the mother was currently fit and that the father
remained unfit. The judge granted custody to the mother. The
judge declined to dismiss the petition at that time, however,
taking the final disposition under advisement. A docket entry
dated September 17, 2018, states, "Court issues order
father remains unfit, under advisement whether to
dismiss." The father filed a notice of appeal on October
October 12, 2018, the judge issued "Ultimate Findings,
Orders on Motion for Review and Redetermination, and Order of
Dismissal," memorializing the above findings and
dismissing the petition. The judge noted that the dismissal
rendered future proceedings regarding the child's custody
outside of the Juvenile Court's purview. However, in a
section of the order entitled "Vitality of Unfitness
Findings in Future Proceedings," the judge, citing
Care & Protection of Joselito, 77 Mass.App.Ct.
28 (2010), wrote, "Here, the dismissal of the care and
protection petition is integrally related to the
finding of current fitness regarding Mother and the finding
of continued unfitness of Father" (emphasis added).
"[I]t follows," the judge reasoned, that "the
future evidentiary value of those findings survive and those
findings may be admissible if relevant in future
proceedings." The judge made similar statements in
written findings of fact issued on January 25, 2019, nunc pro
tunc to October 12, 2018.
Care & Protection of Joselito, 77 Mass.App.Ct.
at 29-30, while child custody proceedings between the father
and the mother were pending in the Probate and Family Court,
the department initiated care and protection proceedings in
the Juvenile Court. A Juvenile Court judge found the father
unfit and awarded temporary custody to the mother. When the
Probate and Family Court judge entered final judgment
granting physical custody to the mother, the Juvenile Court
judge dismissed the care and protection petition. In this
posture, we dismissed the father's appeal from the care
and protection proceedings, concluding that "[a]lthough
the case is not moot," the Juvenile Court judge's
finding of the father's unfitness was "an
interlocutory finding from which no appeal lies."
Id. at 29. Because the finding of unfitness was not
"integrally related" to the dismissal, the finding
was implicitly vacated and would not be admissible in any
future proceedings. Id. at 32-33.
fact that the custody determination underlying the dismissal
of the care and protection petition here was made by the same
judge in the same proceeding, whereas the custody
determination in Care & Protection of Joselito
was made by a different judge in a separate proceeding, does
not make the interlocutory finding of the father's
unfitness here any more relevant to the ultimate disposition.
For the same reasons that we dismissed the father's
appeal in Care & Protection of Joselito, we
dismiss the father's current appeal from the original
finding of unfitness.
the judge clearly intended for his subsequent finding of the
father's continued unfitness to have future effect and,
in an attempt to distinguish Care & Protection of
Joselito, announced that that finding was
"integrally related" to the dismissal. It was not.
The finding of the mother's fitness was integrally
related to the disposition, as the dismissal necessarily
rested on the finding that the child was no longer in need of
care and protection and could be returned to her. The finding
of the father's continued unfitness was unnecessary to
the disposition. As in Care & Protection of
Joselito, the father's parental rights were not
terminated. The petition could have been dismissed without a
trial, and without making any findings concerning the
noncustodial father's fitness. "While the factual
circumstances that underlie the findings may be presented in
future applications, given the circumstances of this case,
the Juvenile Court judge's finding of [the father's]
parental unfitness can have no further evidentiary value and
would not be admissible." Care & Protection of
Joselito, 77 Mass.App.Ct. at 32-33. See Care &
Protection of Torrence, 454 Mass. 1010, 1010 (2009).
so much of the order dismissing the petition as purported to
make a finding of the father's continued unfitness is
vacated. The dismissal of the petition is affirmed in all
other respects. The father's appeal from his adjudication
of unfitness dated July 10, 2017, is dismissed.