Care and Protection of Vick
89 Mass. App. Ct. 704
Mass. App. Ct.2016Background
- Child born 2002; father was primary caregiver early on and later moved to Georgia; father maintained contact and spent summers with child. Mother lived in Brockton and Stoughton; concerns arose in 2013 about the Brockton home's condition, food scarcity, and drug exposure leading to three substantiated 51A reports.
- DCF obtained a stipulation of conditional custody in December 2013 requiring a safe, clean home and full cooperation; mother repeatedly failed to comply and denied access to the Brockton residence.
- Multiple professional inspections found the Brockton home unsanitary and unsafe (no heat, strong odors, trash, dirty fixtures); mother claimed the Stoughton home was suitable but evidence suggested it was unoccupied or lacked utilities.
- Mother refused DCF services (parent aide, mental health evaluation), failed to follow the service plan, had concerning choices for caretakers, and visited the child only once after removal; child displayed school behavioral issues.
- Juvenile Court judge found mother unfit and likely to remain unfit; awarded custody to the father (whose fitness was not challenged). Appeals Court affirmed, concluding neglect and failure to cooperate supported the unfitness finding.
Issues
| Issue | Mother's Argument | DCF / Father's Argument | Held |
|---|---|---|---|
| Whether evidence showed mother was presently unfit to parent | Brockton home condition and noncooperation did not establish harm or nexus to child's welfare | Home was unsafe, mother refused services and access, creating near-certain future risk | Mother unfit due to neglect and refusal to comply; clear and convincing evidence supported finding |
| Whether judge improperly relied on alleged mental illness | Mother: judge tied unfitness to undiagnosed mental illness and refused evaluation | DCF: demeanor and refusal to engage were relevant but not sole basis for unfitness | Court: unfitness based on neglect and refusal to accept services; mental-health inference was ancillary |
| Whether judge prejudged case or misassessed evidence | Mother: pretrial remarks show bias and unfair assessment | DCF: judge made specific, detailed findings supported by record | Held: findings were detailed and supported; comments did not require reversal |
| Weight to give child's custodial preference | Child (on appeal): wishes favored return to mother and were insufficiently considered | DCF: child’s wishes outweighed by clear-and-convincing evidence of mother’s unfitness | Held: child's preference considered but not decisive in face of proven unfitness |
Key Cases Cited
- Care & Protection of Laura, 414 Mass. 788 (discusses standard of review for Juvenile Court findings)
- Adoption of Quentin, 424 Mass. 882 (clear-and-convincing standard for parental unfitness)
- Care & Protection of Three Minors, 392 Mass. 704 (home cleanliness relevant to fitness)
- Care & Protection of Bruce, 44 Mass. App. Ct. 758 (state may act preventively to protect children)
- Adoption of Rhona, 63 Mass. App. Ct. 117 (refusal to cooperate with DCF relevant to unfitness)
- Adoption of Katharine, 42 Mass. App. Ct. 25 (court need not wait for actual harm when risk is clear)
- Care & Protection of Georgette, 439 Mass. 28 (child’s wishes entitled to weight but not dispositive)