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14-P-189                                                 Appeals Court

                      CARE AND PROTECTION OF LAURENT.1


                               No. 14-P-189.

         Middlesex.       September 5, 2014. - January 9, 2015.

               Present:    Green, Graham, & Katzmann, JJ.


Minor, Care and protection. Parent and Child, Care and
     protection of minor. Practice, Civil, Care and protection
     proceeding, Findings by judge.



     Petition filed in the Middlesex County Division of the
Juvenile Court Department on October 17, 2011.

     The case was heard by Kenneth J. King, J.


     David J. Cohen, Committee for Public Counsel Services, for
the mother.
     Richard A. Salcedo for Department of Children and Families.
     Julia A.B. Pearson for the child.


     GRAHAM, J.       On October, 17, 2011, the Department of

Children and Families (department) filed a care and protection

petition in the Middlesex County Division of the Juvenile Court


     1
       A pseudonym, as are all the children's names in this
decision.
                                                                      2


Department pursuant to G. L. c. 119 § 24, alleging Laurent was a

child in need of care and protection.     On that day, the trial

court judge granted temporary emergency custody of Laurent to

the department.   The department later placed him in foster care,

where he remained through the conclusion of the trial.

     Trial on the department's petition occurred over seven non-

consecutive days, beginning on November 1, 2012, and concluding

on January 3, 2013.     On February 21, 2013, the judge found the

mother unfit, essentially, on the basis that she was too

cognitively limited to parent the child.     Accordingly, the child

was committed to the custody of the department, with

reunification as the plan.

     On appeal, the mother contends that the judge's findings

regarding her parenting deficiencies, taken as a whole, do not

support a conclusion that the child was at risk of serious harm,

and thus in need of care and protection.2    We agree with mother

and, accordingly, reverse the judgment.

     1.   Background.    We summarize the material facts from the

judge's extensive findings, which are supported by the evidence,

and essentially undisputed.




     2
       The judge concluded that although Laurent's father
attended court hearings and paid child support, he had never
visited Laurent since the case had begun; hence, he lacked an
ongoing relationship with Laurent and could not care for him.
                                                                     3


    Laurent is one of five children born to the mother, who was

forty years old at time of trial.   The mother experienced

significant trauma and neglect as a child.    As a child, the

mother contracted lead poisoning, which resulted in severe

developmental disabilities.    In addition, the mother sustained a

skull fracture when she was eight years old.    When she was

fourteen, she was placed in department custody due to abuse and

neglect.   She was placed in foster care and residential programs

through her teens.    When the mother turned eighteen years old,

she was released from department custody, and eventually

returned to live with her mother.

    The mother has an extensive history of alcohol and cocaine

abuse.   In addition, she has been diagnosed with attention

deficit hyperactivity disorder (ADHD), anxiety, and "executive

function impairment" (cognitive impairments), all of which

significantly compromise her ability to understand, process, and

retain information.    The mother's cognitive impairments

presented challenges that led to an unsuccessful school career.

However, after attending a residential home in her teens and the

Learning Prep School in the West Newton area of Newton, she

obtained her graduate equivalency degree.    Moreover, she has

been gainfully employed in the past, and has resided at the same

address for the five years prior to trial.    At the time of the

trial, the mother was unemployed, receiving cash benefits from
                                                                     4


the State, section 8 housing assistance, and supplemental

nutrition assistance program benefits.

    The mother's four other children, ages fourteen through

twenty-one at the time of trial, have been involved with the

department, and all of them have been adopted.    Her oldest three

children were adopted when they were very young by a New

Hampshire family with which the mother remains in contact and

visits several times each year.   The mother lost custody of her

fourth child, Bill, after the department found that the mother

seriously neglected him while under the influence of alcohol and

cocaine.   Bill was adopted by a family with whom the mother does

not have contact.

    Laurent, nine years old at the time of the trial, has been

diagnosed with ADHD, an adjustment disorder with mixed anxiety,

depressed mood, obesity, and asthma.     At the time of the trial,

Laurent was prescribed Ritalin and Guanfacine to treat ADHD,

Albuterol and Flovent to treat his asthma (with medication

administered by inhaling through a nebulizer), Clonidine as a

sleep aid, and Zyrtec, an over-the-counter allergy medication.

While Laurent was in the mother's care, he had not learned how

to use the nebulizer properly.

    The department's first supported G. L. c. 119, § 51A

(§ 51A), report was in June, 2010.   The department opened the

investigation following a § 51A report that Laurent ran out of
                                                                   5


the house looking for help because he could not wake up the

mother, who had consumed alcohol, and had accidentally ingested

some of her son's medication.   The department supported

allegations of neglect following this incident and assigned a

social worker, Eric Rollins, to meet with the mother at least

once per month.   The meetings between Rollins and the mother

were generally positive and Rollins considered closing the

mother's case because he was not concerned that Laurent was

abused or neglected.

    However, on October 15, 2011, the department commenced an

investigation following a § 51A report that led to the instant

proceedings.   In the early hours of October 15, 2011, the mother

called the police and reported that Laurent's father had come to

her house and that an altercation had ensued during which he had

attempted to strangle her.   She further informed the police that

Laurent had left the home with father without her permission.

    Police officers responding to the mother's report found her

and Laurent locked out of the house, but did not confirm any

marks or bruises on the mother's neck.    The mother and Laurent

were transported to the police station.   Later, department

investigators arrived at the police station and determined that

the mother appeared to be highly intoxicated.   After

interviewing the mother, and over her protestations, the

department investigators took Laurent to an emergency foster
                                                                     6


home pending the filing of the temporary custody petition by the

department.   Two days later, the department was granted

temporary custody of Laurent.   Thereafter, the department moved

Laurent to his second foster home, where he stayed for two

months before being placed in his current foster home.

     Following Laurent's placement in foster care, the

department initially supervised weekly one and one-half hour

visits between Laurent and the mother, which later became

unsupervised and were extended to close to three hours.     At the

time of trial, Laurent visited with the mother overnight once

per week.3

     Since Laurent's removal from her care, the mother obtained

a restraining order against the father for domestic abuse, and

the father has not been in the mother's home since the October,

2011, incident.   In addition, the mother has received individual

counselling and attended department sponsored meetings designed

to improve her parenting skills and to address issues of anger

management, substance abuse, and relapse prevention.     At trial,

there was no evidence presented that domestic violence or

substance abuse, the issues that spawned the department

investigation, was still present in the mother's life.



     3
       The visits had been briefly stopped due to concerns that
Laurent was falling asleep at school because he would stay up
too late and watch television while in the care of his mother.
                                                                    7


     The mother has also learned to prepare healthier meals for

Laurent and relies less on fast food and sweets.4    She has also

sought and received support for improving her parenting skills

from Aid for Incarcerated Mothers, and, since mid-2012, from the

Department of Developmental Services (DDS).     She meets twice

each week with DDS providers with whom she has a positive

relationship as part of an individualized action plan to address

her neurological deficits.

     Meanwhile, most of the issues related to Laurent's health

and education have been resolved.   Prior to his removal, the

mother requested an educational evaluation of him because she

"had concerns about how he was learning."     The evaluation

resulted in an educational enrichment plan that Laurent now has

in place through which his teachers and adjustment counsellor

interacted regularly with the mother.   In the fall, 2010,

Laurent was in a reading recovery program for first graders, and

later was referred for one-on-one tutoring at the Harvard

Graduate School of Education, Language, and Literacy Program.

In September, 2011, he began receiving one-on-one tutoring twice


     4
       When Laurent was placed in foster care, the mother
recognized that he was overweight. However, she believed that
his weight gain was due to the medication he was prescribed,
including Clonidine, Ritalin, and steroids, which he had had
prescribed for between one and three months due to a flare up of
his asthma. The mother informed the court investigator that she
would work with Laurent's pediatrician to be sure he ate healthy
foods and got enough exercise.
                                                                     8


per week.     He attends an after school program, can complete his

homework with staff support, and has a mentor.

    In addition, Laurent is no longer overweight and "looks

like a healthy eight year old."     His foster parents changed his

diet, and he engages in vigorous exercises, including biking,

swimming, and karate.

    The department had "intended to transition [Laurent] to the

care" of the mother, but reversed itself following "reports from

the school, the in-home team, his foster mother, and his

therapist."    In the reports, members of the department's in-home

team noted that, following Laurent's visits with the mother, his

clothes smelled of smoke.     In addition, they reported that

Laurent's use of the nebulizer exceeded the recommended dosages.

    2.      Determination of parental unfitness.   On February 21,

2013, the judge published his conclusion that the department had

proved by clear and convincing evidence that Laurent was in need

of care and protection, which was followed, on July 22, 2013, by

the judge's findings of fact, rulings of law and order for

judgment.    The judge concluded that the evidence, taken as a

whole, was "adequate, even if just barely" to support a finding

of need of care and protection.     The judge relied, principally,

on three categories of evidence to support his conclusion that

the mother was unfit to parent Laurent:    (1) the lack of

structure in the home including difficulty in assisting Laurent
                                                                    9


with current and future school work; (2) the issues regarding

Laurent's dietary and exercise needs; and (3) Laurent's

difficulties in administering his asthma medication.   In

addition, the judge based his decision on the mother's smoking

in Laurent's presence, and Laurent's expressed preference to

live with his half-siblings' adoptive family in New Hampshire.

    3.   Discussion.    Parents have a "fundamental liberty

interest . . . in the care, custody, and management of their

child," Santosky v. Kramer, 455 U.S. 745, 753 (1982), that does

not go away even when they become "something less than ideal

caretakers."    Care & Protection of Yetta, 84 Mass. App. Ct. 691,

695 (2014).    To interfere with the ties between parents and

their children, the State has to prove parental unfitness with

"clear and convincing evidence."    Adoption of Carlos, 413 Mass.

339, 348 (1992).    The parental unfitness inquiry "means more

than ineptitude, handicap, character flaw . . . or inability to

do as good a job as the child's foster parent," Care &

Protection of Yetta, supra, but rather whether "the parent is so

bad as to place the child at serious risk of peril from abuse,

neglect, or other activity harmful to the child."    Care &

Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).

    "[T]he central judgment does not concern the [mother's]

merits or demerits, but whether, in all the circumstances

(including consideration of those merits or demerits), [she] has
                                                                    10


the capacity to act as a fit parent."    Adoption of Nicole, 40

Mass. App. Ct. 259, 262 (1996).    "Parental unfitness must be

determined by taking into consideration a parent's character,

temperament, conduct, and capacity to provide for the child in

the same context with the child's particular needs, affections,

and age."    Adoption of Mary, 414 Mass. 705, 711 (1993).

    Further, "the assessment of parental fitness must focus on

the children actually involved in the proceedings, with their

specific needs, interests and requirements, and not on some

hypothetical child or children."    Care & Protection of Olga, 57

Mass. App. Ct. 821, 830 (2003).    "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."    Adoption of Nicole, 40 Mass. App. Ct.

at 262.   Parental fitness and the child's best interests are

interrelated inquiries and are considered together.    See

Petition of New England Home for Little Wanderers to Dispense

with Consent to Adoption, 367 Mass. 631, 641 (1975) ("the tests

are not separate and distinct but cognate and connected").

    Here, none of the judge's findings in this case was clearly

erroneous.    Each finding was adequately supported in the record.

It does not follow, however, that the findings, taken together,

proved parental unfitness by clear and convincing evidence.       For

the evidence of parental unfitness to be clear and convincing,
                                                                 11


it "must be sufficient to convey a high degree of probability

that the proposition is true," Adoption of Rhona, 57 Mass. App.

Ct, 479, 488 (2003), quoting from Adoption of Iris, 43 Mass.

App. Ct. 95, 105 (1997), which requires "a degree of belief

greater than the usually imposed burden of proof by a

preponderance of the evidence, but less than the burden of proof

beyond a reasonable doubt imposed in criminal cases."   Care &

Protection of Yetta, 84 Mass. App. Ct. at 696, quoting from

Custody of Eleanor, 414 Mass. 795, 800 (1993).

    While the judge claimed several factors were applicable to

the case, it is clear that the ultimate determination of

unfitness rested primarily on the judge's assessment that the

mother's cognitive disabilities would impact her ability to

"understand" and "follow through on her understanding" of

Laurent's needs if he were returned to her care.   The judge

found that there was no evidence that the mother's substance

abuse problems and her involvement in abusive relationships, the

issues which caused the department to remove Laurent from the

mother's care, and which were responsible for the loss of at

least one of the mother's other children, are currently concerns

in the mother's life.   Similarly, the issues surrounding

Laurent's weight have largely been resolved, and Laurent is

currently doing well in school.
                                                                  12


     While we agree that the judge's findings present a general

source of concern for parental fitness, each is mitigated by

findings discounting such risks due to the mother's compliance

with her service plan, resulting in improvement in her parenting

ability.     DDS services could continue to offer the mother

support for her parenting responsibilities.

     The judge acknowledged the loving relationship between the

mother and Laurent and concluded that there was no evidence that

the lack of structure places Laurent's education at serious

risk.    The mother recognized that Laurent had difficulty in

school, and ably advocated for his placement in an

individualized educational plan that helped him improve his

literacy.5

     There are no findings that would support the conclusion

that any of the mother's present shortcomings, including her

failure to monitor properly Laurent's use of the nebulizer, or

her occasional use of tobacco in Laurent's presence, have caused

Laurent significant enduring harm.




     5
       The judge found that, "[i]n view of [Laurent's therapeutic
mentor] and considering that [the mother] sought out educational
services for [Laurent] and supported his attendance in the after
school program, the Court cannot conclude that her inability to
maintain structure at home places his education at serious
risk."
                                                                   13


     Laurent is no longer obese and has a "better understanding

of his dietary and exercise needs."6   Moreover, the mother has

started preparing more nutritious meals.7

     In reaching a decision of parental unfitness, a judge need

not "wait for disaster to happen" and can use "past conduct to

predict future ability and performance."    Custody of Michel, 28

Mass. App. Ct. 260, 269-270 (1990).    Nevertheless, the inquiry

must focus on the mother's current ability to parent, Care &

Protection of Three Minors, 392 Mass. 704, 711-712 (1984), and

cannot rest on speculation.   See Adoption of Yale, 65 Mass. App.

Ct. 236, 242 (2005).   Speculation about the mother's future

ability to feed her child healthy food, for example, must stem

from "credible evidence."   Cf. Adoption of Serge, 52 Mass. App.

Ct. 1, 7 (2001) (arguing that mother must base predictions that

her parenting will improve on credible evidence and not "faint

hope").   Here, the evidence points to the contrary.

     As the judge noted, the department's case is "long on smoke

and short on fire."    Nonetheless, the judge concluded that

"taken as a whole, the evidence is adequate, even if just

barely," to conclude that Laurent is in need of care and

     6
       It is worth noting that childhood obesity, lack of
parental help with the child's education, and overexposure to
television characterizes entire communities in Massachusetts.
     7
       We note that the judge did, however, express his concern
about the mother's ability to continue cooking healthy meals for
Laurent if he were returned to her custody.
                                                                     14


protection because each piece of evidence exposes Laurent to

"some, albeit ill-defined, risk of harm."     But some amorphous

harm that does not amount to "grievous shortcoming or handicaps"

is not sufficient.    Care & Protection of Yetta, 84 Mass. App.

Ct. at 698, quoting from Adoption of Zoltan, 71 Mass. App. Ct.

185, 189 (2008).     The evidence of mother's unfitness must be

"full, clear and decisive."    Adoption of Rhona, 57 Mass. App.

Ct. at 488.   In this case, the incremental risks to Laurent

simply do not add up to a substantial risk of harm.8

     Finally, we are not persuaded that Laurent's sometimes

expressed preference to live with the New Hampshire family,9

which may be considered by the judge but does not carry

dispositive weight, see Custody of a Minor, 383 Mass. 595, 602

(1981), tilts the balance in the department's favor.     The judge

found that Laurent's wishes are less a sign of his maturity and

more a reflection of his idealized version of the New Hampshire

home that he visits from time to time and where he has fun but

no schoolwork or household chores.




     8
       We note that if we were to embrace the judge's accounting
of harm, no evidence of improvement in the mother's parenting
skills would suffice as long as there is some residual risk
resulting from the mother's cognitive challenges.
     9
       Laurent had previously expressed his wish to return home
with his mother.
                                                               15


    Judgment and order reversed.10

                                     So ordered.




    10
       We do not reach the issue raised by the mother in her
brief of whether the judge improperly considered the "better"
care that could be provided to Laurent by his half-siblings'
adoptive family in New Hampshire because we conclude that, on
the record in front of us, the totality of the evidence does not
support clearly and convincingly a conclusion of parental
unfitness under G. L. c. 119, § 26.
