Massachusetts DCF Attorney Nicole K. Levy reviews the factors that Massachusetts judges use to identify unfit parents in Juvenile and Probate and Family Courts.

Claims of parental unfitness are frequently made in divorce and child custody cases, but are the main concern of judges who are focused on the “best interest of the child” standard. The threshold for proving unfitness are high, and often involve at least a minimal level of involvement by the Department of Children and Families (DCF), and so long as a child has one “fit” parent, Probate and Family Courts can generally determine custody and parenting time using the “best interests of the child standard” instead of delving into unfitness. In Guardianship of a Minor proceedings, however, the law requires a finding of unfitness in order for a non-parent to retain custody of a child over a biological parent’s objection. Meanwhile, even in child custody cases involving biological parents, the elements of the unfitness analysis can be useful in evaluating problematic parental behavior.

We have discussed what parental unfitness means in Massachusetts before, and a recent opinion from the Massachusetts Appeals Court provides some additional detail to the elements we have discussed in our blogs surrounding child neglect and abuse.

Alleged Incidents of Violence and Substance Abuse Result in Children’s Removal From Home

The case in question was Adoption of Ulrich (2019), which concerned the welfare of five children who had been removed from their parents’ home by DCF in late 2012 and early 2013 pursuant to care and custody proceedings brought in the Suffolk County Juvenile Court before Hon. Stephen M. Limon. According to the Appeals Court opinion, the children were removed from the home after their mother was arrested for allegedly stabbing the children’s father with a pair of scissors in front of the children.

Following the mother’s arrest, the children were initially placed by DCF with the children’s grandmother, before being placed with a paternal aunt. The children were subsequently removed from this home, as well, “after evidence of sexual and physical abuse of at least some of the children within the paternal aunt's home became apparent” and DCF “obtained custody of the four children on May 20, 2013.”

The mother gave birth to a fifth child, a daughter, in March of 2013. A few months later, however, “the mother (believing that the father had engaged in a romantic relationship with a neighbor's daughter) forced her way into the neighbor's apartment while making threats and brandishing a knife.” The youngest child was subsequently removed from the mother’s care by DCF.

As the case proceeded over several years, DCF placed the children in different locations:

In July, 2013, Ulrich, who turned ten during the trial, and Charles, who turned eight during the trial, were both placed in a residential treatment facility (residential facility). By the time of trial, Ulrich had been placed in a foster home. Sarah, nearly seven years old by the end of trial, and Amy, who turned five years old during trial, were placed together in the department's foster care in May, 2013. In November, 2013, Sarah and Amy were placed in separate foster homes. Ellen was placed in a kinship foster home in February, 2014, where she remained at the time of trial.

Additional evidence at trial included the results of a psychological evaluation in which the “mother was diagnosed with mood disorder, post-traumatic stress disorder, and polysubstance dependence.” In 2014, the mother “entered a residential substance abuse treatment facility but was soon asked to leave after that facility designated her as a safety risk.”

In 2015, the mother made strides, however. That year, she was “deemed to be in full compliance with her service plan and had improved her anger management and communication skills.” She also completed a “parenting course and engaged in a parenting support group, and there were no longer substance abuse concerns.” During a home visit, “the court investigator reported that the mother's four-bedroom apartment was extremely clean and well kept, furnished with beds for the children, and was ‘nothing short of impressive.’” Despite this progress, concerns remained:

However, at the time of trial, the mother had not seen her mental health therapist in several months and missed a scheduled home visit the week before trial.

According to the Appeals Court, “[v]isits between the mother and children ranged from successful to disastrous.” The opinion describes a variety of problematic behaviors attributed to mother during visits, ranging from statements made to the children to conduct aimed at staff and supervisors. Furthermore, foster care placements proved to be significantly beneficial to the children involved. Following a trial in the summer of 2016, the mother’s parental rights of the five children were terminated. The mother appealed, but the Massachusetts Appeals Court affirmed the Juvenile Court’s decision.

The Statutory Factors in Parental Unfitness Cases

Before moving forward with the analysis, it’s important to understand one major difference between the “best interests of the child” standard employed in traditional child custody cases involving two parents, and the “parental unfitness” standard employed in Care and Custody and Guardianship proceedings. Unlike the amorphous “best interest of the child” standard, which some have described as “you know it when you see it,” the unfitness standard is actually based on a clear statute.

The Massachusetts adoption without consent statute, Ch. 210 § 3 (c), provides the following specific factors that can give rise to a finding of unfitness:

• the parent abused or neglected the child or another immediate family member;
• the parents have not maintained contact with the child for the previous six months;
• the child who is four or older, has been in foster care for at least twelve of the preceding fifteen months, and cannot be returned to his or her parents’ care;
• the child who is under four, has been in foster care for at least six of the preceding twelve months, and cannot be returned to his or her parents’ care;
• the parents cannot provide proper care for the child;
• the child has formed a strong positive bond with his or her substitute caretaker that cannot be broken without harm to the child, and the parent is unable to alleviate the harm;
• the parent has put forth effort to remedy the conditions that led to the child’s removal from the home;
• the child, or another child in the home, has been subjected to severe or repetitive physical, emotional, or sexual abuse or neglect by the parent;
• the parent willfully failed to visit the child;
• the parent willfully failed to pay support for the child;
• the parent has a condition that is prolonged and that will prevent him or her from caring for the child;
• the parent is incarcerated and cannot provide a home for the child; and,
• there has been a prior pattern of neglect or misconduct, or an assault resulting in serious bodily injury to the child.

Indeed, in the child custody context, it is not unusual for family law attorneys to point to the presence of some of these factors as grounds for a parent’s request for sole custody under a “best interest of the child” analysis.

Parental Unfitness and Best Interests of the Child: Dual Standards in Care and Custody Proceedings

Before examining the Appeals Court’s analysis in Ulrich, it’s worth acknowledging the somewhat convoluted standard of review employed by Massachusetts appellate courts in Care and Custody decisions. The Ulrich Court defined the legal standard as follows:

A person's right to parent her child can be terminated only if a judge determines that she is unfit, and that termination is in the best interests of the child. These twin determinations are not separate and distinct but, instead, are cognate and connected steps that reflect different degrees of emphasis on the same factors. Parental unfitness must be proved by clear and convincing evidence and we review the judge's determination of the child's best interests for an abuse of discretion. Subsidiary findings must be supported by a preponderance of the evidence, and none of the findings will be disturbed unless clearly erroneous. We review the judge's findings with substantial deference, recognizing [his] discretion to evaluate a witness's credibility and to weigh the evidence. (Citations and internal quotations omitted.)

It is fair to call the above legal standard “convoluted,” where it is nearly impossible to separate the Court’s parental fitness analysis – which purports to focus on the parent’s behavior – from its “best interest of the child analysis” – which focuses on the individual needs of the child. The “clear and convincing evidence” standard is meant to convey a more stringent standard of proof than in ordinary custody determinations. However, as noted in our blog on Massachusetts contempt cases, the “clear and convincing” standard is actually poorly defined in Massachusetts:

[T]he phrase “clear and convincing evidence” is poorly defined under Massachusetts law. Here is what we know: in an ordinary civil case, the winning party must prove its case by a “preponderance of the evidence”. This means that one party need only prove that his or her position was more likely to be correct than the opponents. Thus, if the jury felt 51% sure the plaintiff should win correct – and 49% convinced the defendant should win – then the plaintiff would prevail, because his or her case was slightly better than the defendant’s case.

In contrast, in a criminal case, the state must prove a defendant’s guilt “beyond a reasonable doubt”. This is a far more difficult threshold to meet than “preponderance of the evidence.” A judge or jury must find a defendant “not guilty”, in a criminal case, if the fact-finder has any reasonable doubt at all regarding the defendant’s guilt. Accordingly, “preponderance of the evidence” and “beyond a reasonable doubt” stand at opposite extremes in terms of evidentiary burdens. Preponderance of the evidence is a relatively low, easy to meet standard, requiring less persuasive evidence. Beyond a reasonable doubt is a high, difficult to meet standard, requiring much more persuasive evidence. The “clear and convincing” standard used in contempt cases is the often ignored “middle-step-child” of legal standards in Massachusetts. It is largely defined as falling somewhere between a “preponderance of the evidence” and “beyond a reasonable doubt”.

Making Care and Custody cases even more confusing is that the judge’s factual findings are reviewed by the Appeals Court using the lower, “preponderance of the evidence” standard, and that these findings are given “substantial deference” by the appellate Court, and that the lower court will ultimately be reversed if the appellate court finds that the lower court “abused its discretion”.

As a practical matter, we know that Juvenile Court decisions terminating parental rights are very frequently appealed and only very infrequently reversed on appeal. It is also worth noting that unlike traditional child custody cases before the Probate & Family Court, where litigants must typically pay for their own attorneys, care and custody proceedings generally include the appointment for each parent, each child, DCF and sometimes even guardians and foster parents. The proliferation of state-paid attorneys in care and custody proceedings make them some of the most frequently appealed cases in Massachusetts.

Seven Concrete Details that Contributed to a Finding of Parental Unfitness in Ulrich

In affirming the Juvenile Court’s ruling of unfitness in Ulrich, the Massachusetts Appeals Court focused on seven distinct factual areas in the record. While these focus areas are not an all-inclusive test for unfitness, the accumulation of facts presents a typical analysis. Also notable is the blending between “unfitness” and “best interest of the child”.

1.) The first issue in focus was the Juvenile Court’s finding that “[t]he record shows that the mother had a difficult time managing her anger and that this issue had a significant effect on the children.” The Appeals Court cited lower court findings that the mother “stabbed the father during an argument” and “threatened a neighbor with a knife and then attempted to break down a woman's door.” In addition:

The mother was also asked to leave a substance abuse treatment facility because she was deemed to be a safety risk. Additionally, the mother displayed an aggressive attitude with the children and counsellors at a number of visits, including one incident where she shouted obscenities at one of the children along with telling him that ‘I don't want to see you again.

Taken together, the Appeals Court supported the lower court’s use of the “mother's repeated prior conduct to predict her future interactions with the children” to find unfitness.

2.) Second, while the mother demonstrated signs of improvement and was making an effort to complete parenting courses and self-improvement, the Appeals Court held that “mere participation in the services does not render a parent fit ‘without evidence of appreciable improvement in her ability to meet the needs of the child[ren].’” In addition, the Court noted the following:

At trial, the mother was unable to confirm that she completed an anger management course. She also had not attended therapy during the months leading up to trial. She was not attending a domestic violence program at the time of trial and had not provided her social worker with any certificate of completion from a prior domestic violence program. Nor did her actions indicate that her parenting abilities were improved by the classes she did attend.

Taken together, the Court found that the “the mother's inability to consistently attend, complete, and benefit from classes required by her service plan is ‘relevant to the determination of unfitness.’”

3.) Third, the Juvenile Court found that the mother minimized — and often completely denied — the existence of extremely troubling conditions affecting the children.” Evidence cited by the Court included:

After being confronted with evidence that Ulrich and Charles were sexually abused while in the care of a paternal aunt, the mother denied that any such conduct occurred and stated that the allegations were concocted by the maternal grandmother. When told of the allegations that several of the children were being physically abused in the paternal aunt's home, the mother failed to investigate or take any other action simply because she had no proof that the allegations were true, even though "she had a suspicion someone may have hit" one of the children.

4.) Fourth, the Court found that the mother “refused to acknowledge at trial that Charles was having gender identity issues, stating that he ‘may have’ issues and that she was not ‘too sure because he still identifies himself as a boy.’” The Court cited this and the facts above in concluding that the “evidence clearly and convincingly establishes that the mother was unfit to parent the children.” (Citations omitted.)

5.) Fifth, the Appeals Court examined the needs of the children, noting that “the [lower court] judge found, on clear and convincing evidence, that it was in the best interests of each child to terminate the mother's parental rights.” Supporting evidence for this conclusion included:

Ulrich had been diagnosed with attention deficit hyperactivity disorder and post-traumatic stress disorder, and she had been hospitalized several times for aggressive and self-harming behavior. …. Charles "suffered from `clinically significant' levels of anxiety and depression, [and has been] diagnosed with post-traumatic stress disorder." …. Sarah also had been diagnosed with mental health issues, including post-traumatic stress disorder and reactive attachment disorder. …. Amy was less than two years old when she was removed from her parents' care and showed fewer symptoms of mental health problems than her older siblings. …. Ellen was only a few months old when she was removed from her parents' custody and displayed none of the mental health issues exhibited by her older siblings.

The Appeals Court held that the children’s respective conditions “firmly supports the [lower court] judge's conclusion that the mother was unfit to parent each child and that it was in the best interests of each child for the mother's parental rights to be terminated.”

6.) Sixth, the Appeals Court’s opinion included a recitation of the Mother’s criminal history as follows:

The mother has a criminal history dating to 2004, including convictions of assault by means of a dangerous weapon and assault and battery on a police officer. She has also been the subject of five abuse prevention orders issued pursuant to G. L. c. 209A, brought by five different individuals. Although the Appeals Court did not explicitly tie the Mother’s criminal history to the termination of the Mother’s parental rights, the inclusion of the criminal record in the opinion suggests that the Mother’s criminal record was a factor in the decision.

7.) Seventh and last, the Appeals Court’s analysis included a review of each child’s status and potential options in the foster care system. Descriptions of the children’s foster homes included:

[A]t the time of trial, Ulrich had been placed in the foster home of a former residential facility employee and was happy there. …. At the time of trial Sarah remained in the same foster home where she had been for over two years. This home provided her with a great deal of affection, care, and support. Sarah expressed a strong bond with her entire foster family, and her foster mother was eager to help Sarah with her therapy. …. At the time of trial, [Amy] had been living in the same foster home for over two years, was happy and comfortable in the home, showed a significant bond with her foster mother, and had an affectionate relationship with the other members of her foster family. Sarah and Amy were able to visit one another, and their foster families have relied upon each other to watch both girls when necessary. …. Three years old at the time of trial, [Ellen] had been placed in a kinship foster home, and the mother testified at trial that the foster home provided the type of environment that Ellen required. She exhibited a strong bond with the foster family and was happy and healthy at the time of trial. She received early intervention services, and her foster family had shown a willingness to participate in visits with Sarah's and Amy's foster families. …. Charles "has made progress in the stability that has been provided by the [residential facility]; that progress can be best solidified through the department's efforts to locate a permanent adoptive family for him when he is ready."

As noted above, in parental termination cases, it can be difficult to know where the Court’s “unfitness” analysis ends and the “best interests” analysis begins. What is clear is that the court’s “best interest” analysis often includes a review of the child’s placement in a facility, foster home or adoptive home. However, as the Court acknowledged in Ulrich, a parental termination decree “may issue even if a specific adoptive family has not been identified. In Ulrich, the Court’s decision included a fairly typical mix of “unfitness” and “best interest” factors.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a DCF phone consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.